Four-day mistake costs bank its chance to appeal devastating employee restrictions ruling
Delaware court denied BankUnited's appeal of ruling striking down non-solicitation agreements after bank missed ten-day filing deadline by four days.
The procedural defeat compounds BankUnited's substantive loss from a month earlier, when Vice Chancellor Bonnie W. David found the bank's non-solicitation agreements unenforceable after eleven employees left to join a competitor. The bank now has no path to higher court review of a decision that should alarm any employer using similar restrictive covenant language.
BankUnited filed its appeal application on January 16, fourteen days after the January 2 ruling. Delaware Supreme Court rules require such applications within ten days. When the bank asked the court to excuse the miscalculation, Vice Chancellor David refused. A mistake in calculating the deadline, even if made in good faith, doesn't constitute good cause for an extension.
The court added that even if the application had been timely, it would have denied certification anyway. The ruling followed established Delaware law on restrictive covenants and created no conflict among court decisions requiring immediate appellate review.
The underlying January 2 decision delivered harsh lessons about what makes restrictive covenants unenforceable, starting with events from the previous August. On a Friday afternoon, Brett Shulick, the executive leading BankUnited's National Title...
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