Strange as it may sound, there is a category of cases where New York’s courts will not only uphold a non-solicit, but will actually imply a non-solicit in an agreement – even if it was completely omitted from the written agreement.

Does that seem extreme?

In truth, it really isn’t.

Although this doctrine really dates back as far as 1910, New York State’s highest court, the Court of Appeals, established what has become known as the Mohawk Doctrine with its 1981 decision in Mohawk Maintenance Co. v. Kessler, 52 N.Y.2d 276, 419 N.E.2d 324, 437 N.Y.S.2d 646 (1981).

In Mohawk, the Court set forth two rules:

1.            The seller of a business impliedly promises (or, in legalese, “covenants”) not to solicit his former clients, i.e., the “good will” of the business that he just sold, because the purchaser has paid for “the right to expect that the firm's established customers will continue to patronize the business.“ and,

2.            Absent a different agreement, the ban on the seller actively soliciting his former clients lasts …. FOREVER.

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