Delaware courts continue to take a strong contractarian approach to noncompete agreements.
McCarter partner Travis Ferguson spoke with AmLaw Litigation Daily and said Delaware balances a public policy that’s in favor of competition with a legal system that’s in favor of enforcing contractual rights, and recent litigation has been all about balancing those two factors.
“They really are taking a hard look to make sure that restrictive covenants they’re presented with are reasonable as a matter of law,” he said.
Travis also noted that he’s seeing more of those who entered into restrictive covenants with a company who are willing to take on litigation risk and seeking to affirmatively have those provisions declared unenforceable, an increase in disputes that may be in part due to the current deal market stemming the flow of money.