IS MY NON-COMPETE VALID IF THE TERMS ARE UNREASONABLE?

Very smart people call our office all the time and say:

“I read your blog. My contract is just like the one in that other case where the court held it to be unreasonable and invalid. So, is my contract invalid?”

Short answer, no.

Your contract is not unreasonable, invalid or not binding until a judge says it is.

Client, often confused, says “but it’s the same contract. So, wouldn’t the judge say mine is also invalid?”

My usual response is, “yes, lets home he/she will uphold their previous ruling. But do you want to spend the next 1-2 years in litigation asking for that decision?”

Friends. Your contract is binding until a judge says otherwise.
Your employer can sue you and prove you breached it – or, just sue you and hope to stop you from breaching it with the threat of litigation.
Your employer can even sue you, knowing that past judges have held similar contracts to be invalid.
Could they get sanctioned by the court for trying to uphold a contract that has already been held invalid? Yes. conceivably – but it hasn’t happened to my knowledge yet.

So, the long and short is this: You have to start from scratch on each and every non-compete case. The court will balance the facts and law as to each case individually. There is no code or statute as to what makes a valid non-compete.

Only a judge can do that. And getting to a judge is not easy, quick or inexpensive if you hire a lawyer.

Lauren Ellerman
Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.