When it comes to non-compete agreements, we lawyers typically get asked two primary questions:
First, “Is my non-compete agreement enforceable?”, or in a slightly different version, “This agreement isn’t enforceable – is it?”
And, second, “How do I get around this non-compete so I can go and earn a living?”
In truth, there are a number of different ways that people try to get around their non-competes. But what is often overlooked is the most straightforward way to attack a non-compete:
Instead of going around the agreement, blowing a hole right through it.
Some of the traditional arguments against enforcing a non-compete agreement include that:
- The agreement is too long in duration;
- The non-compete covers more territory than is reasonable; or,
- That the employee isn’t “unique,” and therefore, should not be bound by a non-compete.
All of these arguments are solid, but they may still allow for a court to “blue-pencil” the offending portions of the agreement, leaving the clause more or less intact.
There is a more direct way of attacking some of these agreements, particularly when dealing with a very large corporate employee, and it hearkens back to general contract principles:
Where the non-compete clause is so broad and vague, that the employee has no objective, reasonable way of discerning what activities are permitted, and which activities are prohibited. It can’t be – or shouldn’t be – a subjective question, left to the employer’s sole discretion. Without that critical ingredient, there really was never an agreement.