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:

  1. The agreement is too long in duration;
  2. The non-compete covers more territory than is reasonable; or,
  3. 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.

This goes to the heart of any contract – there needs to be a clear “meeting of the minds,” where everyone knows – at the outset – what its respective obligations are.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer