Often clients will wonder out loud, over email to my office, or over the phone:
“Can the court re-write the non-compete if they find it to be overly harsh or over broad?”
My answer as of late has sounded something like this:
“Thank God No Virginia Court will or has blue-pencil your agreement…. yet!”
What I mean by blue penciling is that the Court will not come and take an invalid over broad agreement, and create a reasonable one.
Why? Because the Court’s job is not to write binding contracts between parties who don’t want to be bound by them.
The Court’s job is to say whether the already binding contracts are reasonable. Period.
Virginia is not alone in refusing to blue pencil or re-write employment contracts. Today I ran across a very interesting article written by an Illinois Non-Compete Lawyer, Kenneth Vanko, about an Arkansas case regarding blue penciling.
Mr. Vanko opines in his article that in “states that do not blue-pencil, any technically over broad aspect of the non-compete can render the entire agreement invalid.”
He is right. One bad definition, clause etc., and you throw the baby out with the bath water which is really good news for employees in Virginia who may have agreed to terms that are over broad.
So why does all this matter to you anyway?
If your agreement is held to be over broad by the Court, you are free to compete (within the legal limits of trade secrets. etc). The Court will not re-write your agreement, at least, no Virginia court has done it to date. Should this trend change, we will certainly be upset and will let you know.