SINGAPORE — The High Court dismissed interim injunctions granted to financial website MoneySmart that prevented a former employee from working for a rival firm, after concluding that the non-compete clause was unreasonable and unfair.

The non-compete clause was also “against the interests of the public”. It was therefore not valid or enforceable, said Senior Judge Tan Siong Thye in a judgment dated on Tuesday (April 2), in which he ruled in favour of the former employee, Mr Artem Musienko.

The non-compete clause, commonly found in employment contracts, restricts an employee from working for competitors for a certain period after their current employment ends. 

MoneySmart, which operates in Singapore, Hong Kong and has a presence in Taiwan and the Philippines, provides online financial product comparison services for customers to review, compare and buy such products through its website. 

In 2022, it launched insurance brand Bubblegum, and hired Mr Musienko to be head of technology in July that year.

As part of his job scope, the Russian led the design, product and technology department for the Bubblegum division to create the brand’s platform and mobile application and ensure its functionality. 

He resigned from MoneySmart on Nov 23, 2023, with his last day of employment on Jan 12, 2024. 

Three days later, Mr Musienko started working as the head of engineering for CAG Regional Singapore, a subsidiary of MoneyHero Limited – MoneySmart’s rival.

Similar to MoneySmart, MoneyHero has its own insurance brand, Seedly Travel Insurance, distributed by a subsidiary in Singapore. 

On Jan 25, MoneySmart filed a suit seeking a 12-month injunction — starting from Jan 12 — to stop Mr Musienko from acting in breach of the non-compete clause.

These included directly or indirectly engaging with any business in Singapore and Hong Kong that provides online financial product comparison services. 

MoneySmart, represented by law firm Shook Lin & Bok, argued that such businesses included MoneyHero Limited and its associated companies. 

The company also sought an injunction to restrain Mr Musienko from acting in breach of the confidentiality clause by using or disclosing all information about MoneySmart. 

It sought damages arising from loss it suffered from the breaches of both the non-compete clause and the confidentiality clause. 

Mr Musienko, represented by law firm Rajah & Tann, applied to set aside the interim injunctions. 

ARGUMENTS FROM BOTH SIDES

MoneySmart argued that its non-compete clause protected legitimate proprietary interests, and was reasonable as it is limited in scope of activity, geographical area and time. 

The company contended that it had built up Mr Musienko’s expertise in the fintech field through training, saying he had no prior experience in the fintech industry. 

As part of its argument, MoneySmart also said the non-compete clause only restricts participation in online financial product comparison services, a niche market dominated by MoneySmart and MoneyHero. Together, they held 95 per cent of the market share in 2022. 

MoneySmart asserted that Mr Musienko breached his obligations under the employment agreement when he began work with CAG Regional Singapore.

But he countered that the non-compete clause was too wide in scope and hence unenforceable, and that it did not protect any legitimate proprietary interest.

He argued that the non-compete clause was “plainly unreasonable” as it prohibited his participation in online financial product comparison services. That’s even though he was not employed in that aspect of the business, and that he was only involved with Bubblegum. 

As for the confidentiality clause, he submitted that MoneySmart had not shown that he had accessed confidential information, much less that the clause had been breached or is likely to be breached. 

He also contended that the interim injunctions should be set aside as MoneySmart had failed to make “full and frank disclosure”, including mischaracterising his working experience before he joined MoneySmart. 

MoneySmart failed to reveal the “acrimonious circumstances” under which he had resigned – particularly that he was effectively asked to resign, said Mr Musienko. 

JUDGE’S DECISION

The judge found that MoneySmart had not made a case that the non-compete clause can protect legitimate proprietary interest. 

Justice Tan said he was unable to accept that MoneySmart had offered training in the “specialised field” of the digital insurance industry to shore up Mr Musienko’s expertise to the extent that it can be said to have invested much time and resources in his training. 

He pointed out that Mr Musienko had the relevant experience in the technology industry and even in the area of fintech before he was hired.  

Justice Tan agreed with Mr Musienko that the scope of the non-compete clause was far too wide.

“There is, at best, a very tenuous connection between the restriction against engaging with any business which provides online financial product comparison services and the work done by (Mr Musienko) while employed by (MoneySmart), much less a close connection. 

“This is because (Mr Musienko’s) employment primarily concerned Bubblegum and digital insurance-related matters, rather than MoneySmart’s provision of online financial product comparison services.”

The judge also ruled that the non-compete clause was too wide in geographical scope. He noted that Mr Musienko’s work with Bubblegum offered products to only Singapore residents, and did not involve other countries. 

Turning to the restraint period of 12 months, the judge noted that the clause had been drafted in a “cascading manner”, which may result in the court arriving at the “longest permissible restraint period”. This was unfair towards Mr Musienko, Justice Tan noted. 

“Thus, for these reasons, the non-compete clause cannot be said to be reasonable as between the parties or in the interests of the public,” he said.

The judge was also not satisfied that the information Mr Musienko had access to was confidential. 

Much of the information was already shared publicly, such as MoneySmart’s financial results and business plans on news sites.

MoneySmart had also not treated the information as confidential – it did not label the information as confidential, and had even shared them with staff who did not need the information for their jobs.  

Mr Musienko used the information disclosed to him for the development of the Bubblegum platform, he added. 

“Thus, (MoneySmart) has failed to establish that there is a good arguable case that the alleged information was confidential and that (Mr Musienko) has breached, or will breach, the confidentiality clause.” CNA

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