United States Court of Appeals 

For the First Circuit 

No. 19-1611 

NUVASIVE, INC., 

Plaintiff-Appellee, 

v. 

TIMOTHY DAY, 

Defendant-Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Denise J. Casper, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Barron, Circuit Judges. 

 Bryan E. Busch, with whom Busch Slipakoff Mills & Slomka, 

LLC, Steven D. Weatherhead, and Marathas Barrow Weatherhead Lent 

LLP were on brief, for appellant. 

 Mary Taylor Gallagher, with whom Holly M. Polglase, Michael 

S. Batson, Hermes, Netburn, O'Connor & Spearing, P.C., Christopher 

W. Cardwell, M. Thomas McFarland, and Gullett, Sanford, Robinson 

& Martin, PLLC, were on brief, for appellee. 

April 8, 2020 
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BARRON, Circuit Judge. In this appeal, Timothy Day, a 

Massachusetts resident, challenges a preliminary injunction that 

the United States District Court for the District of Massachusetts 

granted to his former employer, NuVasive, Inc., which is a healthcare company incorporated in Delaware. The injunction, which 

enforces a nonsolicitation clause in the employment contract 

between Day and NuVasive, bars Day from engaging in certain work 

for his new employer, Alphatec Spine, Inc., which is one of 

NuVasive's competitors. 

Day's challenge to the injunction turns on a choice-oflaw issue under Massachusetts law. The District Court held that 

Massachusetts' choice-of-law rules permitted it to enforce the 

choice-of-law provision set forth in Day's employment contract 

with NuVasive, which explicitly stated that the "[a]greement shall 

be interpreted and enforced in accordance with Delaware law, 

without giving effect to its laws pertaining to conflict of laws."

The District Court thus premised its issuance of the preliminary 

injunction that is at issue on its application of Delaware law. 

Day contends, however, that Massachusetts' choice-of-law rules 

required the District Court to apply Massachusetts law and that, 

under Massachusetts law, NuVasive could not show that it was 

entitled to the preliminary injunction, even if NuVasive could 

make that showing under Delaware law. We affirm. 
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I. 

NuVasive designs and manufactures products for the 

treatment of spine disease. NuVasive distributes these products 

through both its own employees and exclusive distributors. 

Day first became affiliated with NuVasive in 2008 while 

he was working for Integrity Medical, Inc., which at the time was 

an exclusive distributor for NuVasive. Thereafter, Day became an 

employee of NuVasive, where he worked as a sales representative 

from August of 2011 until December of 2012. 

 At that time, Day left NuVasive to become a sales 

representative for another one of NuVasive's exclusive 

distributors, Magellan Medical LLC. But, five years later, on 

January 1, 2018, Day once again became an employee of NuVasive, 

this time as a sales director for the company in Massachusetts and 

Rhode Island. 

It was during this period of employment with NuVasive 

that Day signed, as a condition of his employment, a Proprietary 

Information, Inventions Assignment, Arbitration and Restrictive 

Covenant Agreement ("PIIA"). The PIIA included a nonsolicitation 

clause and a noncompetition clause, which applied during Day's 

engagement with NuVasive and for one year immediately after.1 

 1 The nonsolicitation clause provides, in relevant part, that 

the employee agrees not to: 
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 On January 3, 2019, however, Day once again left 

NuVasive, this time to become an employee and owner of Rival 

Medical LLC, which was, at that time, itself an exclusive 

distributor for NuVasive. But, then, several months later, in 

 

solicit, entice, persuade, induce, call upon or provide 

services to any of the Customers . . . , accounts or 

clients that [the employee] worked with, had 

responsibility or oversight of, provided services 

related to, or learned significant information about 

during my employment (or other association) with the 

Company for any purpose other than for the benefit of 

the Company . . . . 

And, the noncompetition clause forbids the employee from any 

affiliation with a "Conflicting Organization," which is defined 

as: 

 

any person, group of persons, or organization that is 

engaged in, or about to be engaged in, research on, 

consulting regarding, or development, production, 

marketing or selling of any product, process, invention 

or service, which resembles, competes with, or replaces 

a product, process, machine, invention or service upon 

which [the employee] shall have worked or about which 

[the employee] became knowledgeable as a result of [the 

employee's] relationship with the Company, and whose use 

or marketability could be enhanced by the application of 

Proprietary Information to which [the employee] shall 

have had access during such relationship. 

For employees with certain titles, including Sales Director, Sales 

Associate, and "any substantially similar position[s]," the "postemployment restrictions" described in the noncompetition clause 

are limited to Customers for which the employee "was assigned 

responsibility for by the Company, participated in sales calls 

and/or marketing efforts on behalf of the Company, and/or covered 

medical procedures on behalf of Company, during the last twelve 

months of [the employee's] employment with Company." 
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April of 2019, Day dissolved Rival and terminated its relationship 

with NuVasive. 

 In response, NuVasive sent Day and Rival a notice of 

material breach of contract. Notable for present purposes, 

NuVasive also reminded Day of his noncompetition and 

nonsolicitation obligations under the PIIA. Nonetheless, soon 

after ending his employment at Rival, Day began working as an 

employee of Alphatec Spine, which is one of NuVasive's competitors. 

At that point, NuVasive sued Day in the District of Massachusetts 

based on its diversity jurisdiction. See 28 U.S.C. § 1332.

 NuVasive's complaint against Day alleged tortious 

interference and breach of contract and requested a preliminary 

injunction to bar Day from violating his noncompetition and 

nonsolicitation obligations under the PIIA in his work for 

Alphatec. Day opposed the request for the preliminary injunction 

on the ground that, notwithstanding the choice-of-law provision in 

his contract with NuVasive, Massachusetts rather than Delaware law 

applied to NuVasive's breach of contract claims and that those 

claims must be dismissed under Massachusetts law. NuVasive 

countered that, pursuant to the choice-of-law provision contained 

in its employment contract with Day, Delaware law applied to the 

breach of contract claims and that, under Delaware law, Day's 

opposition to the request for the preliminary injunction lacked 

merit. 
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 To resolve the threshold choice-of-law dispute 

concerning NuVasive's breach of contract claims, the District 

Court applied Massachusetts' choice-of-law rules.2 The District 

Court then held that, under those rules, the choice-of-law 

provision in Day's employment contract with NuVasive governed. 

The District Court thus held that Delaware law applied to 

NuVasive's breach of contract claims and that, although NuVasive 

had not shown "a reasonable likelihood of success" on its claim 

that Day had breached the noncompetition clause of the PIIA by 

taking his new job with Alphatec, NuVasive had "shown a reasonable 

likelihood of success" on its claim that he had breached the 

nonsolicitation clause of the PIIA by doing so. After considering 

the other factors that bear on whether a party is entitled to a 

preliminary injunction, the District Court then issued a 

preliminary injunction that enforced the PIIA's nonsolicitation 

clause against Day. This timely appeal followed.

II. 

 To secure a preliminary injunction, a plaintiff must 

show: "(1) a substantial likelihood of success on the merits, (2) 

a significant risk of irreparable harm if the injunction is 

 2 Although NuVasive also asserted a tortious interference 

claim against Day, the focus of its preliminary injunction motions 

was on its claims for breach of contract, and thus the District 

Court’s analysis was just focused on those claims. 
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withheld, (3) a favorable balance of hardships, and (4) a fit (or 

lack of friction) between the injunction and the public interest." 

Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003); 

see also Lanier Prof'l Servs., Inc. v. Ricci, 192 F.3d 1, 3 (1st 

Cir. 1999) ("We apply the federal preliminary injunction standard 

in a diversity case, at least where the parties have not suggested 

that state law supplies meaningfully different criteria."). The 

only one of these four requirements that is in dispute on this 

appeal concerns the likelihood-of-success requirement. 

 When reviewing "a trial court's ruling on a motion for 

a preliminary injunction, we scrutinize abstract legal matters de 

novo, findings of fact for clear error, and judgment calls with 

considerable deference to the trier." Corp. Techs., Inc. v. 

Harnett, 731 F.3d 6, 10 (1st Cir. 2013) (internal quotation marks 

and citation omitted). We review choice-of-law determinations de 

novo. See Reicher v. Berkshire Life Ins. Co. of Am., 360 F.3d 1, 

4 (1st Cir. 2004). 

 Here, the parties agree that Massachusetts' choice-oflaw rules control, given that Massachusetts is the forum state. 

See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). 

Moreover, Day does not challenge the District Court's ruling that, 

under Delaware law, NuVasive has made the requisite likelihoodof-success showing on its claim that Day breached the 

nonsolicitation clause in his employment contract with NuVasive 
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through his work with Alphatec. Instead, Day contends, 

Massachusetts' usual choice-of-law rule, which is that the law of 

the state that a contract's choice-of-law clause selects is the 

law that controls, does not apply. In consequence, Day contends, 

Massachusetts and not Delaware law applies to NuVasive's breach of 

contract claims against him and thus determines whether NuVasive 

can show that it can satisfy the likelihood-of-success requirement 

in seeking a preliminary injunction based on those claims. This 

contention is critical, because, Day further contends, if 

Massachusetts rather than Delaware law applies, then NuVasive 

cannot satisfy that requirement and thus the preliminary 

injunction against him cannot be sustained. 

In pressing this line of argument, Day relies on two 

exceptions to the usual choice-of-law rule under Massachusetts 

law, which is that the choice-of-law provision in an employment 

contract should be enforced. See Oxford Glob. Res., LLC v. 

Hernandez, 106 N.E.3d 556, 564 (Mass. 2018). But, as we will 

explain, neither of those exceptions applies here. 

The first exception prevents a choice-of-law provision 

in an employment contract from being enforced when such a provision 

chooses the law of a state that "has no substantial relationship 

to the parties or the transaction and there is no other reasonable 

basis for the parties' choice." Oxford Glob. Res., 106 N.E.3d at 

564 (quoting Restatement (Second) of Conflict of Laws § 187(2) 
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(1971)). But, this exception plainly does not apply here, because 

Delaware is NuVasive's place of incorporation and NuVasive is the 

plaintiff. See id. (citing to the Restatement); Restatement 

(Second) of Conflict of Laws § 187(2) cmt. f (1971) (recognizing 

the validity of choice-of-law provisions where "the state of [the 

chosen law] is that where performance by one of the parties is to 

take place or where one of the parties is domiciled or has his 

principal place of business"); see also Cream of Wheat Co. v. Grand 

Forks Cty., 253 U.S. 325, 328 (1920) (explaining that a company is 

domiciled in the state where "it was incorporated under the laws 

of that state").

The second exception prevents a choice-of-law provision 

in an employment contract from being enforced when the "application 

of the law of the chosen state would be contrary to a fundamental 

policy of a state which has a materially greater interest than the 

chosen state [in the determination of the particular issue]," and 

the law of the state with the greater interest would otherwise 

apply "in the absence of an effective choice of law by the 

parties." Oxford Glob. Res., 106 N.E.3d at 564 (alterations in 

original) (quoting Restatement (Second) of Conflict of Laws 

§ 187(2) (1971)). But, even if we were to assume that 

Massachusetts "has a materially greater interest than" Delaware in 

the granting of the preliminary injunction and that Massachusetts 

law would apply "in the absence of an effective choice of law" 
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provision in an employment contract, Day has failed to show that 

the application of Delaware law in this case would be contrary to 

"a fundamental policy" of Massachusetts. Id. 

In contending otherwise, Day first argues that the 

Massachusetts Noncompetition Agreement Act ("MNCA"), Mass. Gen. 

Laws ch. 149, § 24L, which sets forth the requirements for an 

employee noncompetition agreement to be enforceable, represents a 

fundamental Massachusetts policy that would be violated by the 

application of Delaware law here, insofar as Delaware law would 

allow NuVasive to enforce the PIIA's nonsolicitation clause 

against Day pursuant to its breach of contract claim. But, the 

MNCA "only applies to employee noncompetition agreements entered 

into on or after October 1, 2018," Automile Holdings, LLC v. 

McGovern, 136 N.E.3d 1207, 1217 n.15 (Mass. 2020); see St. 2018 

Mass., ch. 228, § 71 ("Section 24L of chapter 149 of the General 

Laws may be referred to as the Massachusetts Noncompetition 

Agreement Act and shall apply to employee noncompetition 

agreements entered into on or after October 1, 2018."), and Day 

signed the PIIA nearly a year earlier, on January 6, 2018. 

Moreover, none of the MNCA's provisions are relevant to the PIIA's 

nonsolicitation clause because, "[b]y its terms, the [MNCA] does 

not apply to nonsolicitation agreements." Automile Holdings, 136 

N.E.3d at 1217 n.15; see Mass. Gen. Laws ch. 149, § 24L (excluding 

"covenants not to solicit or hire employees of the employer" and 
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"covenants not to solicit or transact business with customers, 

clients, or vendors of the employer" from the definition of 

"noncompetition agreement"). 

Day's remaining contention is that Massachusetts' 

"material change" doctrine constitutes a "fundamental" 

Massachusetts policy and that the enforcement of the PIIA's 

nonsolicitation provision against him, pursuant to NuVasive's 

breach of contract claim, would violate that doctrine. Under the 

"material change" doctrine, a "non-solicitation agreement or 

covenant not to compete may be deemed void if there are material 

changes in the employment relationship between an employee and the 

employer." Patriot Energy Grp., Inc. v. Kiley, No. SUCV2013–

04177–BLS1, 2014 WL 880880, at *7 (Mass. Super. Ct. Feb. 26, 2014). 

But, while Day did remain affiliated with NuVasive when 

he left it to work for Rival Medical, as Rival was one of NuVasive's 

exclusive distributors, Day himself stated both that "on January 

3, 2019, Day ceased being a NuVasive employee," as he had by then 

moved over to Rival, and that this date marked the "terminat[ion]" 

of his "employment relationship with NuVasive." That is 

significant because Day has not identified any precedent that 

indicates that such a "termination" -- at least when it has been 

occasioned, as it was in this case, by an employee's own choice to 

terminate that employment -- is a qualifying "change" under 

Massachusetts' "material change" doctrine. Rather, the only cases 
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that Day cites in support of his position as to what constitutes 

such a qualifying "change" involve changes in the conditions of 

employment of an employee who continued to be employed by the same 

employer, such as an employer cutting the employee's pay, an 

employer demoting the employee, or an employer materially 

breaching some term of the employee's employment contract. See 

Agero Admin. Serv. Corp. v. Campolo, 366 F. Supp. 3d 170, 174 (D. 

Mass. 2019); Rent-A-PC, Inc. v. March, Civil Action No. 13–10978–

GAO, 2013 WL 2394982, at *3 (D. Mass. May 28, 2013); Patriot Energy 

Grp., 2014 WL 880880, at *7; Akibia, Inc. v. Hood, No. 

SUCV201202974F, 2012 WL 10094508, at *7-8 (Mass. Super. Ct. Oct. 

9, 2012), aff'd, No. 12–J–390, 2012 WL 12370255 (Mass. App. Ct. 

Nov. 21, 2012); Getman v. USI Holdings Corp., No. 05-3286-BLS2, 

2005 WL 2183159, at *2-4 (Mass. Super. Ct. Sept. 1, 2005); see 

also KNF & T Staffing, Inc. v. Muller, No. SUCV201303676BLS1, 2013 

WL 7018645, at *3 n.4 (Mass. Super. Ct. Oct. 24, 2013) (explaining 

that the "broadest restatement of the doctrine is that '[e]ach 

time an employee's employment relationship with the employer 

changes materially such that they have entered into a new 

employment relationship[,] a new restrictive covenant must be 

signed'" (first alteration in original) (emphasis added) (quoting 

Iron Mountain Info. Mgmt., Inc. v. Taddeo, 455 F. Supp. 2d 124, 

132-33 (E.D.N.Y. 2005))); Astro-Med, Inc. v. Nihon Kohden Am., 

Inc., 591 F.3d 1, 16 (1st Cir. 2009) (quoting Lycos, Inc. v. 
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Jackson, No. 2004–3009, 2004 WL 2341335, at *3 (Mass. Super. Ct. 

Aug. 25, 2004) for the same definition of the doctrine). This 

body of precedent satisfies us that, whatever the precise scope of 

the "material change" doctrine may be under Massachusetts law, it 

is not capacious enough to encompass Day's circumstance. 

Thus, we see no basis for concluding that the District 

Court erred in finding that the fundamental public-policy 

exception to Massachusetts' choice-of-law rules did not apply to 

Day's case, such that the choice-of-law provision in his employment 

contract with NuVasive that selected Delaware law could not be 

given effect.3 Accordingly, we see no basis for concluding that 

the District Court erred in applying Delaware law to assess whether 

NuVasive had satisfied the "likelihood of success" requirement in 

seeking a preliminary injunction based on its breach of contract 

claim alleging Day's violation of the nonsolicitation clause in 

the PIIA. And, that being so, we see no basis for finding merit 

in Day's challenge to the issuance of the preliminary injunction 

against him. 

III. 

 The judgment of the District Court is affirmed. 

 3 Because we conclude that applying Delaware law does not 

contravene either the MNCA or the "material change" doctrine, we 

need not and do not resolve whether either embodies a "fundamental" 

Massachusetts policy.