Inside: Factors affecting the enforceability of non-compete agreements

To be enforceable, non-compete agreements, like all contracts, require adequate consideration

Commonly, when an employer elects to enforce a non-compete agreement, an employee will defend not only on the ground that he does not pose a serious competitive risk, but that the employee should be relieved of his non-compete obligations due to offending conduct by the employer or to some technical failure of the agreement.

In some instances, the employer’s conduct may substantially influence the issue of enforceability. In the simplest example, an employer’s prior “material” breach of an employment agreement may relieve the employee of his obligations under a non-compete provision contained in the agreement.

Contributing Author

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Judith A. Lockhart

Judith Lockhart is the managing partner at Carter Ledyard & Milburn LLP. She is the chair of the firm’s Employment Law Practice Group and a...

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Contributing Author

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Lawrence F. Carnevale

Larry Carnevale is a partner at Carter Ledyard & Milburn LLP. Mr. Carnevale is the chair of the firm’s Litigation Department and Trade Secrets, Business...

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