Bеfore the Court are Defendants Chung, Newton, and Moore’s Motion for Judgment on the Pleadings on Counts One, Two, Three, Eleven, and Twelve of the Second Amended Complaint (“Defendants’ Motion”) (Doc. Ill), the Response, and the Reply. Defendants’ Motion will be granted in part and denied in part.
I. BACKGROUND
On September 25, 2012, Unisource Worldwide, Inc. (“Plaintiff’), a company involved in the marketing, selling, and distribution of packaging, paper, and facilities supplies products throughout the United States and in other countries, brought suit against Troy Swope, a former employee, alleging breach of contract and other transgressions. Plaintiffs Second Amended Complaint (Doc. 64) added a number of additional defendants to the action, among them Defendants Yoke Chung, Cary Newton, Jr., and Brandon Moore. All three are former employees of United Global Solutions (“UGS”), a single division of Uni-source Worldwide, Inc. engaged in the design, sourcing, sale, and distribution of еnvironmentally friendly packaging material. (Doc. 64 ¶¶ 31, 52, 66, 80.) According to Plaintiff, Defendant Chung was the Director of Products and Material Engineering for UGS starting on February 21, 2010; he resigned on November 14, 2012. (Id. ¶¶ 52, 133, 135.) Defendant Newton was employed on November 3, 2010, as UGS’ Manager of Business Development— Technical Packaging, making him responsible for managing customer relationships. (Id. ¶¶ 66-67.) UGS terminated Newton’s employment on November 14, 2012. (Id. ¶ 137.) Finally, Defendant Moore began as a UGS Product Specialist II on October 4, 2009, and was, on August 15, 2011, promoted to the position of Creative Design Engineer II, making him the lead designer for customized packaging designed to fulfill particular customer needs. (Id. ¶¶ 80-82.) He resigned from UGS on November 12, 2012. (Id. ¶ 133-34.)
The allegations against Defendants Chung, Newton, and Moore are as follows: (1) breach of the non-competition covenant by Chung and Newton (Count 1); (2) breach of the non-solicitation of customers covenant by Chung and Newton (Count 2); (3) breach of the non-recruitment of employees covenant by Chung and Newton (Count 3); and, against all three Defendants, (4) breach of the return of property and information covenants (Count 4); (5) breach of the covenant of confidentiality (Count 5); (6) breach of the duty of loyalty and fiduciary duty (Count 7); (7) violation of the Arizona Trade Secrets Act, sections 44-401 to 44-407 of the Arizona Revised Statutes (Count 10); (8) tortious interference with contractual and business relations (Count 11); (9) civil conspiracy (Count 12); and (10) business defamation (Count 13). Defendants Chung, Newton, and Moore now seek a judgment on the pleadings at to Counts One, Two, Three, Eleven, and Twelve.
II. LEGAL STANDARD FOR JUDGMENT ON THE PLEADINGS
A motion for judgment on the pleadings made pursuant to Federal Rule of Civil Procedure 12(c) is evaluated under the same standard as a Rule 12(b)(6) motion to dismiss. Dworkin v. Hustler Magazine, Inc.,
III. CLAIMS POTENTIALLY FACING PREEMPTION
Count Eleven alleges against all Defendants tortious interference with contractual and business relations, and Count Twelve alleges against all Defendants a civil conspiracy. (Doc. 64 ¶¶ 212-28.) Defendants contend that these counts are preempted by the Arizona Uniform Trade Secrets Act (“AUTSA”), sections 44-401 through 44-407 of the Arizona Revised Statutes, and accordingly seek dismissal. Plaintiff asserts that the conduct alleged in Counts Eleven and Twelve goes beyond the scope of claims preempted by the AUTSA; Plaintiff also seeks leave to amend if the claims in the two. counts remain unclear.
A. Factual Overview
The factual allegations in Count Eleven include the following: (1) Defendants had knowledge of Plaintiffs customer and employee relationships; (2) Defendants solicited Plaintiffs customers to discontinue their business with Plaintiff and potentially to purchase the products and services that they had previously gotten from Plaintiff from a competitor; (3) Defendants sought to have Plaintiffs employees leave Plaintiff and work for a competitor; and (4) Defendants induced one another to violate their restrictive covenants and to disclose Plaintiffs confidential information and trade secrets. {Id. ¶¶ 213-21.) For Count Twelve, Plaintiff alleges that Defendants, among other things, conspired to delete, share, and/or misappropriate Plaintiffs confidential information and trade secrets, {Id. at ¶¶ 223-28.) In both counts, Plaintiff also incorporates by reference-all preceding allegations in the Second Amended Complaint. {Id. ¶¶ 212, 222.) Finally, Plaintiff separately alleges in Count Ten that Defendants’ actions violated the AUTSA because Defendants acquired Plaintiffs trade secrets by improper means and used or disclosed those trade secrets without consent. {Id. ¶¶ 206-11.)
B. Legal Background
The Arizona Uniform Trade Secrets Act (“AUTSA”) codifies the common-law protection of trade secrets and lays out the relief available for misappropriation of a trade secret. A.R.S. §§' 44-401 to 44-407. Under the statute, a ‘-‘trade secret” is information that:' (1) derives independent economic value from being not widely known and not easily determinable; and (2) is the subject of reasonable efforts to maintain its secrecy. Id. § 44-401(4). In broad terms, “misappropriation” is the acquisition of a trade secret by someone who knows that imprоper means were used to obtain the information, or the disclosure or use of a trade secret without the consent of its owner under certain circumstances. Id. § 44-401(2). Further, the AUTSA contains a preemption clause: “[T]his chapter displaces conflicting tort, restitutionary and other laws of this state providing civil remedies.for misappropriation of a trade secret.” Id. § 44-407. Contractual remedies, regardless of whether they are rooted in a misappropriation claim, and civil remedies that are not based on misappropriation claims remain unaffected by the AUTSA. Id.
Arizona state courts have not addressed the issue of whether the AUTSA only preempts claims based on misappropriation of information that meets the statutory definition of “trade secret” or whether claims based on misappropriation of information that falls short of that definition might likewise be preempted. In the absence of guidance from the state high court, a federal court evaluates the issue using intermediate appellate court decisions, decisions from other jurisdictions, treatises, and other sources. Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.Bd 958, 960 (9th Cir.2001) (citation omitted). A number of jurisdictions have identical preemption provisions in their trade-secrets statutes, as the statutes derive from the Uniform Trade Secrets Act (“UTSA”). Among courts in those jurisdictions, “[t]he majority interpretation appears to be that the UTSA preempts all common law tort claims based on misappropriation of information, whether or not it meets the statutory definition of a trade secret.” Firetrace USA, LLC v. Jesclard,
Multiple justifications support the majority interpretation. First, the purpose of the statutory scheme was to '“create a uniform business environment [with] more certain standards for protection of commercially valuable information.” Firetrace,
In addition, to the extent that a secondary objective of preemption is to promote efficiency and conserve judicial and party resources, that objective is undermined if the court must consider the often complex question of whether information constitutes a trade secret before addressing preemption. Accordingly, it must be the case that the AUTSA preempts torts based on misappropriation of information regardless of whether it qualifies as a trade secret.
2. Preemption of Claims Premised on Acts Beyond Misappropriation
The AUTSA expressly preempts all common-law tort claims for misappropriation of a trade secret. A.R.S. § 44-407. It does not affect “[o]ther civil remedies that are not based on misappropriation of a trade secret.” Id. The exact implications of that statutоry provision, however, remain unsettled. See Hauck,
Even this Court has been less than consistent in adopting a rule as to the breadth of AUTSA preemption. One approach has been to espouse a narrow form of preemption and hold that an allegation of any act beyond what constitutes misappropriation allows the tort claim to survive preemption. In other words, a tort' is not preempted unless it mimics misappropriation exactly — unless it involves no act beyond that of misappropriation itself. See, e.g., W.L. Gore & Assocs. v. GI Dynamics, Inc.,
Taking those two considerations and the text of the AUTSA into account, the second, broader theory of preemption prevails. First, the language of the AUTSA supports the broader of the two approaches. Under the statute, the preemption provision does not affect “[ojther civil remedies that are not based on misappropriation of a trade secret.” A.R.S. § 44-407(B). The inverse has also been taken as true: “The AUTSA preempts common law claims ‘to the extent they are based on an allegation that [djefendants misappropriated trade secrets.’ ” W.L. Gore,
Second, the broader conception of preemption does more than its narrow counterpart to both further uniformity and reduce the possibility of duplicative recoveries. Reducing the range of common-law claims that a plaintiff can bring has both of these effects. The plaintiff is less able to “dress up” the same nucleus of facts in different guises that could easily allow for different recoveries across jurisdictions, and is less likely to recover more than once for the same actual injury.
Even though the possibility of duplicative recoveries is reduced, broad preemption does not leave a plаintiff with a valid claim of harm without the possibility of remedy. The AUTSA allows for damages for actual losses and unjust enrichment attributable to misappropriation of a trade secret. A.R.S. § 44-403(A). If a plaintiff has common-law claims that are preempted by the AUTSA, and the plaintiff then proves a violation of the AUTSA, it can recover for all of the damages caused by the underlying misappropriation. As such, the plaintiff can ultimately recover under the statute for the harm caused by the effects of the AUTSA violation — whether in theory they derived from the intentional interference with a business expectancy, tortious interference with contracts, or other common-law tortious acts. If, for example, a civil-conspiracy-to-misappropriate claim is preempted by the AUTSA and the plaintiff can establish that AUTSA violation, then the plaintiff can potentially recover for any harm caused by the civil conspiracy over and above the baseline harm due to misappropriation itself. In
For these reasons, AUTSA preemption is relatively broad and extends to any claim that rises or falls with misappropriation of a trade secret. Alternatively put, “if proof of a non-[A]UTSA claim would also simultaneously establish a claim for misappropriation of trade secrets, it is preempted irrespective of whatever surplus elements or proof were necessary to establish it.” Hauck,
C. Analysis of Preemption
1. Preemption of misappropriation claims
First, to the extent that the claims in Counts Eleven and Twelve amount only to misappropriation of trade secrets, they are preempted. A.R.S. § 44-407. Preemption applies whether the misappropriation is of trade secrets or of information that does not meet the definition of trade secret, and so the issue of whether the allegedly misappropriated information constitutes a trade secret need not be decided.
2. Interference with customer relationships
The first claim in Count Eleven derives from the following allegations:
213. Unisource has existing and prospective relationships with numerous customers and with its employees.
214. Defendants had knowledge of these existing customer and employee relationships.
215. Upon information and belief, Defendants have interfered and continue to interfere with Unisource’s relationships with its existing customers by soliciting those customers to discontinue their business with Unisource and/or to purchase from a competitor of Unisource the same products or services that they previously purchased or are currently purchasing from Unisource.
(Doc. 64 ¶¶ 213-15.)
First, although this is not necessary for preemption, customer lists may qualify under Arizona law as trade secrets. See Inter-Tel (Del.), Inc. v. Fulton Commc’ns Tel. Co., Inc., No. CIV 07-866 PHX RCB,
(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means [or]
(b) Disclosure or use of a trade secret of another without express or implied consent by a person who either:
(i) Used improper means to acquire knowledge of the trade secret[;]
(ii) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use[; or]
(iii) Before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.
A.R.S. § 44-401(2). To the extent that Plaintiff is arguing that Defendants used confidential information, customer lists or names, without consent to interfere with Plaintiffs customer relаtionships, the claim is one of misappropriation and is preempted. The allegations are unclear, but if Plaintiff is instead making a claim of tortious interference with customer relations by improper means to complement its related claims, including breach of the covenant not to solicit Plaintiffs customers, the claim is not preempted.
3. Recruitment of Plaintiffs employees
The crux of Plaintiffs second claim in Count Eleven is that:
216. In addition, Defendants have interfered and continues [sic] to interfere with Unisource’s relationships with its employees by soliciting those employees to terminate their employment with Uni-source and obtain employment with a competitor.
(Doc. 64 ¶216.) Plaintiffs tortious interference claim regarding employee relationships is preempted to the extent that Plaintiff is contending that the names of employees are confidential and that Defendants used such information improperly. If Plaintiff is arguing instead that Defendants tortiously interfered by improper means with Plaintiffs contracts with other employees, see Miller v. Hehlen,
4. Violation of existing contractual relationships
Plaintiffs allegations continue as follows:
217. Unisource also has existing contractual relationships with Swope, Chung, Newton, and Moore whereby Swope, Chung, and Newton are obligated to refrain from competing againstUnisource and soliciting its customers and Swope, Chung, Newton, and Moore are obligated to refrain from using or disclosing Unisource’s trade secrets and other confidential and/or proprietary information.
(Id. ¶ 217.) This allegation appears to be a summary restatement of the claims based on the restrictive covenants laid out in Counts One, Two, and Three. Those claims are not preempted by the AUTSA. To the extеnt that Plaintiff is seeking to state a noncontractual claim that any Defendant “used or disclosed” Plaintiffs trade secrets or other confidential information, the claim is flatly one of misappropriation and is preempted.
5. Inducement to violate Defendants’ contracts
Plaintiff also asserts that:
219. Defendants have interfered and continue to interfere with Unisource’s contractual relationships with Swope, Chung, Newton, and/or Moore by inducing Swope, Chung, and/or Newton to compete against Unisource, by inducing Swope, Chung and/or Newton to solicit Unisource’s customers, and by inducing Swope, Chung, Newton, and/or Moore [ ] to disclose Unisource’s trade secrets and other confidential and/or proprietary information in violation of their contractual obligations to Unisource.
(Id. ¶219.) First, the allegation mingles different theories of harm and fails to make clear exactly which Defendant allegedly engaged in what conduct. Second, the claim of inducement “to disclоse Uni-source’s trade secrets and other confidential and/or proprietary information” in violation of a confidentiality covenant is based on misappropriation of trade secrets. Establishing such inducement would necessarily establish misappropriation. Accordingly, the claim of inducement to violate a confidentiality covenant or inducement to otherwise use or disclose Plaintiffs trade secrets or confidential information is preempted. See Hauek, 375 F.Supp.2d at 659 (holding preempted a claim of interference that relied upon the breach of a confidentiality agreement). The claims of inducement to violate contractual obligations not to compete with Plaintiff and not to solicit Plaintiffs customers are not based upon misappropriation and are not preempted.
Plaintiff will have an opportunity to amend its complaint to unfurl what apрear to be different allegations against each Defendant in this Count and thereby to comply with pleading standards. As discussed, any claim based on misappropriation, including the misuse by Defendants of customer lists or names, the misuse by Defendants of confidential employee information, and the use or disclosure by Defendants of trade secrets or other confidential information, is preempted and may not appear in. the amended complaint. Other claims, including tortious interference by improper means with customer or employee relations and inducement to violate contractual obligations, may be clearly alleged in the amended complaint.
6. Civil Conspiracy
Count Twelve alleges a civil conspiracy in which “Defendants conspired by concerted action to delete, share, and/or misappropriate Unisource’s confidential information and trade secrets.” (Doc. 64 ¶ 224.) That claim is entirely based on misappropriation of trade secrets; the civil conspiracy count rises or falls with the misappropriation count. As such, the claim is preempted in its entirety. See Hauek,
IV. CLAIMS BASED ON RESTRICTIVE COVENANTS
Defendants each signed several restrictive covenants as part of their employment contracts with Plaintiff. In Count One, Plaintiff alleges that Defendants Chung and Newton breached their covenants not to compete (“Non-Competition Covenant”). In Count Two, Plaintiff alleges that Defendants Chung and Newton breached their covenants not to solicit Plaintiffs customers (“Non-Solicitation Covenant”). Finally, in Count Three, Plaintiff alleges that Defendants Chung and Newton breached their covenants not to recruit Plaintiffs employees (“Non-Recruitment Covenant”). Defendants contend that the three restrictive covenants allegedly breached are facially unreasonable and accordingly that they should be deemed unenforceable. (Doc. Ill at 2.) If such a judgment cannot be made solely upon the pleadings, Defendants request an evidentiary hearing as to the reasonableness of the restrictive covenants. Plaintiff, in turn, asserts first that the reasonableness of each covenant is a fact-intensive inquiry that cannot be decided on a motion under Rule 12(c) and second that the challenged covenants are indeed reasonable.
A. Factual Overview
Defendant Chung signed a Non-Competition Covenant that reads as follows:
Employee agrees that during employment with the Company, and for a period of 12 months following the cessation of employment for an reason, Employee will not compete, directly or indirectly, with the Business of Unisource by performing activities of the type performed by Employee for the Company within one year prior to Employee’s termination of employment. This paragraph restricts competition only within the counties in which Employee solicited business on behalf of the Company during the 12 months preceding the cessation of Employee’s employment with the Company.
(Doc. 64-1 at 9.) Defendant Newton signed an identical Non-Competition Covenant, except that it also provides purposes for the covenant. (Id. at 13.) “Company” is defined as “Unisource Worldwide, Inc., and its subsidiaries, parents, affiliated entities, and includes the successors and assigns of Unisource or any such related entities.” (Id. at 8.) The “Business of Uni-source,” in turn, is “selling, distributing or otherwise providing рrinting and specialty papers, packaging supplies and equipment, and industrial and commercial maintenance supplies and equipment.” (Id.)
Defendant Chung’s Non-Solicitation Covenant specifies that:
Employee agrees that during employment with the Company and for a period of 12 months following the cessation of employment for any reason, Employee will not directly or indirectly solicit or attempt to solicit any business in competition with the Business of Unisourcefrom any of the Company’s customers or suppliers with whom Employee had Material Contact during the last year of Employee’s employment with the Company.
(Id. at 8-9.) Defendant Newton’s Non-Solicitation Covenant is somewhat broader, also precluding Newton from doing business with or attempting to do business with any Company customer or supplier with whom he had material contact during his final year of employment with Company. (Id. at 13.) In this context, “material contact” means “personal contаct or the supervision of the efforts of those who have direct personal contact with a supplier or customer.” (Id. at 8,12.)
The third restrictive covenant in dispute, the Non-Recruitment Covenant, speaks to the recruitment of Plaintiffs employees, and provides:
Employee agrees that during employment with the Company, and for a period of 12 months following the cessation of employment for any reason, Employee will not directly or indirectly solicit or attempt to solicit any employee of the Company with whom Employee had Material Contact during the last year of the Employee’s employment, for the purpose of encouraging, enticing, or causing said employee to terminate employment with the Company.
(Id. at 9.) Here, “material contact” includes “personal contact with other Unisource employees or the supervision of the work of other employees through subordinate managers in the chain of command.” (Id. at 8, 12.) The operative provisions of Defendants Chung’s and Newton’s Non-Recruitment Covenants are identical.
B. Legal Standard
Arizona law does not look kindly upon restrictive covenants. See Valley Med. Specialists v. Farber,
A restrictive covenant cannot simply squash fair competition by the former employee. Farber,
A restraint that goes too far is unenforceable, and the validity of a restrictive covenant hinges on its reasonableness. Olliver/Pilcher Ins., Inc. v. Daniels, 148 Ariz. .530, 532,
Reasonableness, ultimately, is an issue of law. Farber,
Finally, when a covenant is deemed unreasonable, a court may “blue pencil” the covenant — strike out grammatically severable, unreasonable provisions— in order to save the covenant, if the contract so directs. Farber,
C. Analysis
1. Non-Solicitation and Non-Recruitment Covenants
The language of the Non-Solicitation and Non-Recruitment Covenants does appear to be both expansive and vague. Ambiguity and excessive breadth in such covenants are especially disfavored because of their in terrorem effect on employees, who have little ■ sense of which provisions of a particular covenant will in fact be enforceable and who therefore cannot determine what conduct is precluded. See id. For example, the text of the Non-Solicitation Covenant references “Material Contact” and precludes the former employee from soliciting business from a customer or supplier with whom he had “Material Contact.” (Doc. 64-1 at 8-9.) However, “Material Contact” is not defined as “direct contact,” and an employee may be banned from soliciting business from a customer or supplier with whom he never had direct contact; he may not even realize that the customer or supplier interacted with Unisource. That the language is easily amenable to such a broad reading does justify concern.
Still, reasonableness is generally fact-focused inquiry, and the pleadings do not provide sufficient factual basis for a ruling that the -Non-Solicitation and Non-Recruitment Covenants are unreasonable. Plaintiffs Second Amended Complaint offers the language of the two covenants, a high-level overview of each Defendant’s position and duties for Plaintiff, and a summary of Plaintiffs business activities (see Doc. 64); Defendants’ Answers offer little more in the way of facts. (See Docs. 91, 92, 93). As a result, numerоus questions that bear on the enforceability of the two covenants remain unaddressed. Which business entities constitute “the Company?” With which suppliers and customers did each Defendant have “Mate
2. Non-Competition Covenant
Plaintiffs Non-Competition covenant, however, is unreasonable on its face. First, only “[Reasonable restraints — those no broader than the employer’s legitimately protectable interests — will be enforced.” Amex Distrib.,
The Non-Competition Covenant then serves no purpose, save stifling fair competition and crippling Defendants’ ability to obtain employment elsewhere. Neither thwarting competition nor hamstringing a former employee’s ability to work is a legitimate interest. See Farber,
Plaintiff has the burden of establishing its protectable interests, see Brycelcmd,
In addition, beyond the fact that the Non-Competition Covenant protects no legitimate interest, its scope and vagueness render it unreasonable. While the duration of the provision, twelve months, may be reasonable, its geographical scope is not. Defendant Chung’s Non-Competition Covenant prevents him from doing certain activities “only within the counties in which Employee solicited business on behalf of the-Company during the 12 months pre
Compounding the geographic concern is the fact that Plaintiffs contract provides no clarity as to what it means to “compete, directly or indirectly, with the Business of Unisource by performing activities of the type performed by Employee for the Company within оne year prior to Employee’s termination of employment.” (See Doc. 64-1 at 2-5.) The wide-ranging restriction not only precludes Defendants from doing such work for competitors, but from doing such work anywhere within the restraint’s geographic reach. Thus, if Defendant Chung worked to design any product during his last year with Plaintiff, or interacted with any supplier, or even answered phones, the language of the provision now precludes him from doing the same or any activity of that type at any new employer within certain counties for one year. This is unreasonable. The Non-Competition Covenant is accordingly unreasonable both as to its geographic scope and the range of activities prohibited.
Finally, the Non-Competition Covenant cannot be saved by the blue-pencil rule. While courts may sever provisions of a covenant when doing so makes grammatical sense, Farber,
IT IS THEREFORE ORDERED denying Defendants Chung, Newton, and Moore’s Motion for Judgment on the Pleadings (Doc. Ill) with respect to Counts Two and Three.
IT IS FURTHER ORDERED granting Defendants’ Motion with respect to Counts One and Twelve.
IT IS FURTHER ORDERED granting in part and denying in part Defendants’ Motion with respect to Count Eleven, as explained in the text of this Order.
IT IS FURTHER ORDERED permitting Plaintiff to file a third amended complaint on or before August 26, 2013. Plaintiff is to amend Count Eleven to remove the preempted claims as discussed in this Order and to clarify the remaining claims, in separate counts if appropriate, in conformity with the pleading standards under the Federal Rules of Civil Procedure. Defendants will then have an opportunity to file an amended answer or respоnsive pleading.
Notes
. As a practical matter, the two rules — and other rules espoused by different courts — may produce the same outcome. For example, in Cosmetic Alchemy, LLC v. R & G, LLC, the Court ruled that "to the extent that the counterclaim allege[d] that the intentional interference of business expectancy [was] based on acts, other than the misappropriation of trade secrets, that inducted] or otherwise caus[ed] a third person not to enter into or continue a-business relationship” with the party bringing the tort claim, the claim was not preempted. No. CV-10-1222-PHX-GMS,
. In Defendant Newton’s contract, the terms are defined slightly differently, as follows. "Company” means “Unisource Worldwide, Inc., and its subsidiaries and includes the successors and assigns of Unisource or any of its subsidiaries.” (Doc. 64-1 at 12.) "Business of Unisource” means "selling, distributing, or otherwise providing printing and specialty papers; packaging products, supplies and equipment; and/or industrial and commercial maintenance products, supplies and equipment.” (Id.)
. The blue-pencil rule cannot be applied in this case to save Plaintiffs Non-Competition Covenant. It is important to note, however, that even a rule permitting only limited editing by courts can allow the in terrorem effect of restrictive covenants, an effect of great concern to the Arizona Supreme Court, to persist. The Arizona Supreme Court acknowledged that "[e]mployers may ... create ominous covenants, knowing that if the words are challenged, courts will modify the agreement to make it enforceable.” Valley Med. Specialists v. Farber,