Solomon, writing in a Foley’s Labor & Employment Perspectives blog referenced in the article, described the recent trend of Delaware courts refusing to modify “overbroad” noncompete agreements and opting to strike them in their entirety.
“As a practical matter, this means that, in order for a noncompete to be enforceable under Delaware law (the chosen law for many business disputes for companies outside of Delaware),” explains Solomon, “they must be narrowly drafted to be reasonable in scope and designed to protect only the employer’s legitimate business interests.”
Citing the outcome of a recent case at the Delaware Supreme Court in which a noncompete was determined to be overly broad, Solomon notes that the “drafting lessons learned” from this case indicate how when creating a noncompete agreement, employers need to take scope of activities, geographic area, and time of limitation into careful consideration to ensure its enforceability.
