Blue-Penciling

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A little-noticed decision from earlier this year rendered by the Supreme Court of New York, Westchester County, demonstrates how enforcement of post-employment restrictive covenants will often boil down to a single question: does the restriction protect a legitimate business interest of the employer?

In Cindy Hoffman, D.O., P.C. v. Raftopol, plaintiff applied for a preliminary injunction against its former employee, a physician’s assistant, who began working for a competitor in technical violation of her past employment non-compete restriction which barred her for two years from working for competitors located within fifteen miles of any of the plaintiff-employer’s several offices. …
Continue Reading Legitimate Business Interests: The Touchstone of Non-Competes

Nevada employers be advised: on June 3, 2017, Governor Brian Sandoval signed into law Assembly Bill 276, which amends Chapter 613 of the Nevada Revised Statutes and sets forth a new framework in which noncompetes are evaluated. The amended law includes the following four changes:

  1. A noncompete is void and unenforceable unless the noncompete:
    1. Is supported by valuable consideration;
    2. Does not impose any restraint that is greater than is required for the protection of the employer for whose benefit the restraint is imposed;
    3. Does not impose any undue hardship on the employee; and
    4. Imposes restrictions that are appropriate in

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Continue Reading New Changes to Nevada’s Noncompete Law

Restrictive covenant agreements are traditionally governed by state law and thus subject to various jurisdictions’ rules regarding enforceability. They stand on a different footing than most other contracts, in that their enforcement is typically susceptible to a court’s equitable powers, and may not always be enforced as written, if at all. States differ on whether their courts will deny enforcement of a restrictive covenant deemed overbroad as written by the parties or instead modify it to meet the particular state’s standards of enforceability. In those states where such modification is authorized, a court may strike out (or “blue pencil”) certain…
Continue Reading Are Courts Still Willing to “Blue Pencil” Overbroad Restrictive Covenants to Make Them Enforceable?