It was noted in Part 1 of this series that Courts prefer the use of non-solicitation clauses to the use of non-competition clauses. As stated, Courts will engage in the following three-part analysis when tasked with determining the enforceability of non-competition clauses in associate agreements:

• Whether there is a proprietary interest worthy of protection;
• Whether the spatial (geographical) and temporal (time) aspects of the clause are reasonable; and
• Whether, in contrast, a non-solicitation clause would adequately protect the principal’s interests. As was noted, in most cases, this is the factor that defeats the enforceability of an otherwise reasonably drafted non-competition clause.

What is a non-solicitation clause? Continue reading →