I. Introduction

If you have been following the news, you might be confused about the state of non-compete provisions in the United States. This is understandable as federal and state governments have been reexamining the fairness and enforceability of non-compete provisions for the past few years and 2024 has been particularly active. This article discusses the current state of non-competes provisions and explains what steps employers can take to ensure they are protecting their business interests while adhering to the most recent laws and regulations.

II. The 2024 FTC Ban on Non-Compete Provisions

On April 23, 2024, the Federal Trade Commission (“FTC”) sent shockwaves through the business world when it promulgated a rule which broadly banned the use of non-compete provisions, with only narrow exceptions for (i) existing agreements with senior executives; (ii) non-compete provisions entered into as part of a bona fide sale of a business; and (iii) non-compete provisions enforced in which the cause of action occurred prior to the rule’s effective date.[1] This rule was supposed to go into effect on September 4, 2024.[2]

However, on August 20, 2024, the United States District Court for the Northern District of Texas in Ryan LLC v. Federal Trade Commission[3] ruled that the FTC exceeded its rulemaking authority and ordered that the rule not be enforced or otherwise go into effect.[4]

Despite this decision, the matter has not been resolved. On October 18, 2024, the FTC filed a notice of appeal to challenge the Ryan ruling. [5] The non-compete provision ban remains enjoined, and will now be considered by the Fifth Circuit and may eventually go to the Supreme Court. [6] While the outcome is uncertain, the general consensus among legal scholars is that the FTC’s rule will not go into effect.[7]

Even if the FTC’s ban doesn’t survive, the FTC may still accomplish its goal of restricting the use of non-compete provisions. Prior to the FTC’s action, states were already passing legislation to ban or restrict the use of non-compete provisions, but now the public is more aware of the issue thanks to the buzz generated by the FTC’s rule. As a result, states are under more pressure to review their non-compete policies and it appears this trend will continue.

III. State Non-Compete Laws

Employment laws are often applied based on where an employee resides, not where the employer is based. Because a ban on non-compete provisions is not likely to happen at the federal level (for now anyway), and their legalization is inconsistent, employers now must review the laws of every state in which its employees reside. Navigating the requirements of each state and drafting compliant employment documents can be a quagmire, which gives some indication as to why the FTC decided to act in the first place.

While there are many issues to consider, this section of the article provides a summary of non-compete laws in the three states in which we service our clients the most: California, Delaware and New York.[8]

A. California

California has consistently taken the position that non-compete provisions are void and unenforceable. But this ban was not fully codified until California passed S.B. 699[9] and A.B. 1076[10], which both became effective on January 1, 2024.

A.B. 1076 voids all non-compete provisions in an employment context and non-compete provisions within employment contracts, except in cases of a dissolution of or disassociation from a partnership/LLC or a sale of a business or an ownership interest in a business. Additionally, under A.B. 1076, all employers with employees in California were required to send current and former employees who were employed after January 1, 2022, written notice of the invalidity of any non-compete provisions which existed in such an employee’s agreement but were invalidated by A.B. 1076. This written notice had to be sent out by February 14, 2024, so many businesses (and law firms like ours) were busy circulating these notices earlier this year![11]

S.B. 699 makes it a civil violation for an employer to enter into or attempt to enforce a contract that is void under California law (such as non-compete provisions), and provides current, former and prospective employees with a private right of action for damages, injunctive relief, and attorney’s fees and costs.[12]

S.B. 699 also provides that an employer or former employer is prohibited from attempting to enforce a contract that is void under California law “regardless of whether the contract was signed and the employment was maintained outside of California.”[13]

This latter provision continues to cause a great deal of confusion around the country since it is not clear when California law can void a non-compete provision or similar restrictive covenant that was signed in another state.

The first case that discusses this issue was recently decided in the First Circuit Court of Appeals. In DraftKings Inc. v. Hermalyn[14], Michael Hermalyn, a senior executive of DraftKings (a company headquartered in Massachusetts), lived and worked in New Jersey, but signed a non-compete agreement that was governed by Massachusetts law. Hermalyn resigned from DraftKings to work for a California based competitor, claimed residency in California, and sued DraftKings in California with the hopes that the California court would invalidate his non-compete agreement. The California court restricted Hermalyn’s use of DraftKings’ confidential information and customer lists but punted on the non-compete enforceability issue. DraftKings later countersued in Massachusetts federal court to enforce the non-compete agreement entirely. The Massachusetts court, and later the First Circuit on appeal, held that the non-compete agreement was enforceable because California’s public policy did not eclipse the parties’ clear and unambiguous intent to apply Massachusetts law (which does not ban non-compete provisions).[15]  While the ruling provides some reassurance that former employees can’t run off to California competitors to strike down a non-compete provision, it’s not clear how other courts will respond or if this court would have come to the same holding if the facts were different.

Because S.B. 699 is sure to conflict with the policies of other states, constitutional and other legal challenges are expected.[16]  For now, the general rule of thumb in California is that employers of any state will violate California law if they ask a California-based employee to sign a non-compete provision and California employers will violate the law if they ask their employees to sign non-compete provisions from their home in any state.

B. Delaware

Delaware has a “business friendly” reputation, but it is no strict enforcer of non-compete provisions. Delaware courts do not mechanically enforce non-competition or non-solicitation agreements and use a reasonableness test to determine if a non-compete provision should be upheld.[17] Specifically, Delaware courts will uphold a non-compete provision if it: (1) is reasonable in geographic scope and temporal duration; (2) advances a legitimate economic interest of the party seeking enforcement; and (3) survives a balancing of the equities. When analyzing “reasonableness,” Delaware courts focus on whether the provision is essential for the protection of the employer’s economic interests.[18] But where non-compete provisions are “unreasonable in part”, Delaware courts are hesitant to “blue-pencil” or merely strike the offending clauses of such agreements to make them reasonable under the law. [19]

Over the past two years, the Delaware Chancery Court has paid particular attention to this “unreasonable in part” issue and has made it clear that it will not blue-pencil non-compete provisions to make them reasonable.

For example, in Centurion Service Group, LLC v. Eric Wilensky[20], the Delaware court refused to enforce or blue-pencil, a non-compete provision which banned Eric Wilensky, a former employee, for a period of two years from engaging in any business directly or indirectly engaged in (i) the business of the former employer, Centurion, (ii) any business competitive with Centurion’s business, (iii) any business Centurion planned to engage in at any time during the term of Wilensky’s employment, or (iv) any business competitive with any business Centurion planned to engage in anywhere in the United States and any other countries where Centurion was actively soliciting and engaging in its actual or planned business. Centurion operated across the United States, nonetheless, the court refused to enforce this provision because the geographic and temporal scope would effectively prohibit Wilensky from working anywhere. The court also found the non-compete provision to be unreasonable because it prevented Wilensky from working in areas Centurion was considering doing business, but was not actually core to the business. If (i) Centurion’s economic interest was great enough to support the geographic scope of the non-compete provision, or (ii) the geographic scope was being enforced in connection with the sale of a business, the court explained that the non-compete provision at issue could have been enforceable.

What about situations involving the sale of a business? Generally, non-compete provisions in the context of a business sale are subject to a “less searching” inquiry than if the covenant had been contained in an employment contract.[21] However, Delaware courts are still hesitant to blue-pencil such agreements to make them reasonable when the initial drafting is unreasonable.

This was demonstrated in Kodiak Building Partners, LLC v. Philip D. Adams,[22] in which Kodiak entered into a stock purchase agreement to purchase stock of Northwest, a truss manufacturer. One of Northwest’s stockholders was a senior executive named Philip Adams who sold his stock for close to $1 million. Kodiak entered into a non-compete agreement with Adams in which he agreed that he would not compete with Kodiak and its subsidiaries and affiliates (which were defined as the “Company Group”). Specifically, the non-compete provision barred Adams for a period of 30 months from competing anywhere in the states of Idaho and Washington and within a 100-mile radius of any other location in which Northwest or any member of the Company Group sold products 12 months prior to the closing. A year after the closing, Adams left Northwest and started working for a rival company located 24 miles from Northwest. Kodiak sued in Delaware to enforce the non-compete provision of the stock purchase agreement, but surprisingly, the court refused to enforce or even blue-pencil the non-compete language.[23] Even though Adams was engaging in barred competitive activity in close proximity to the acquired company, the inclusion of the “Company Group” in the non-compete provision made the entire clause unenforceable. The court explained that restrictive covenants in connection with the sale of a business protected only the purchased asset’s goodwill and competitive space that its employees developed or maintained.[24] Kodiak’s valid concerns about monetizing its purchase did not support restricting Adams from competing with the entire Company Group, which were unrelated to Kodiak’s direct interests.[25]

The Kodiak decision shows that Delaware courts will not save an overly broad non-compete provision even in the case of a business sale and even in cases where the defendant is engaging in obvious competitive activity that is at odds with the general intent of the non-compete provision at issue.

But while Delaware courts appear to be holding non-compete provisions to a higher standard, businesses should note that Delaware courts treat forfeiture-for-competition arrangements differently. Under such arrangements, an employee can choose to either: (i) not compete with a former employer in exchange for some monetary reward, or (ii) compete with a former employer and forfeit such monetary reward.

Cantor Fitzgerald, L.P. v. Ainslie[26] is a recent case that shows how Delaware courts treat forfeiture-for-competition arrangements. In the case, six Cantor Fitzgerald partners executed a limited partnership agreement, which stated that if the partners voluntarily left the partnership, they could: (i) choose to compete against the partnership but give up their rights in certain compensation for engaging in such competitive activity, or (ii) not compete with the partnership for one year and receive financial benefits. The partners eventually left the company and worked for a competitor but argued they should still be paid compensation because their non-compete provisions were against public policy and failed Delaware’s “reasonableness” test as explained above. The Chancery Court originally agreed with the departing partners, but this decision was reversed by the Delaware Supreme Court on appeal. The Supreme Court explained that non-compete provisions required a reasonableness review because the former employee is effectively deprived of their livelihood and, correspondingly, exposed to the risk of serious financial hardship. By contrast, forfeiture-for-competition provisions, do not prohibit employees from competing and remaining in their chosen profession, and do not deprive the public of the employee’s services. Because of this difference, the court reasoned that it should be guided by the employee-choice doctrine, which “assumes that an employee who elects to leave a company makes an informed choice between forfeiting a certain benefit or retaining the benefit by avoiding competitive employment”.[27] The forfeiture-for-competition was upheld as the parties had freedom to contract.

It is not clear if the Delaware Supreme Court’s holding in Cantor Fitzgerald only applies in the partnership context, but the decision shows how Delaware applies a reasonableness test in the case of non-compete provisions and the more lenient employee choice doctrine in the case of forfeiture-for-competition arrangements.

Because of these decisions, businesses should be mindful of the following principles when contemplating non-compete language in Delaware:

• Because Delaware has demonstrated that it is unwilling to blue-pencil non-compete provisions, the safer approach is to draft narrowly tailored provisions. Drafting a broad non-compete provision may cause the entire provision to be void and jeopardize a company’s business interests.
• If a business wants to take the safest approach, it should consider entering into a forfeiture-for-competition arrangement with an employee rather than using a non-compete provision.
• Delaware law is no longer a safe bet for non-compete provisions. Other state laws may be better choices, but whichever state is chosen must have a nexus to the arrangement.
• A non-compete provision should not ban a former employee from providing non-competitive services to a competitor. For example, if a former employer is an engineer, the provision should be limited to engineering services, not all services, such that the former employee couldn’t work as a cashier or janitor for the competitor. This is known as the “Janitor Rule”.[28]

C. New York

In 2023, the New York legislature proposed a bill that would have imposed a ban on non-compete provisions, even in the context of business sales. [29] But this bill never became law as it was vetoed by Governor Kathy Hochul on December 23, 2023.[30] In a memo, Governor Hochul said the bill was too broad, offering a “one-size-fits-all-approach” for all non-compete provisions regardless of the wage of the worker. The Governor went on to say she would support a more narrowly-tailored bill which would allow non-compete provisions only for employees who earn more than $250,000 per year.[31]

The New York City Council is also trying to ban non-compete provisions. On February 28, 2024, it introduced  Int. 0140-2024[32], which, if passed, will prohibit businesses in New York City from entering into, or maintaining, non-compete provisions with any of their workers. Because of the bill’s extremely broad language and lack of carveouts, the bill is not expected to pass.[33]

Despite these legislative attempts, non-compete provisions are still alive in New York, though they are generally disfavored.[34] To determine if a non-compete provision is enforceable, New York courts use a reasonableness test similar to Delaware, in which a non-compete provision will be upheld if it: (i) is necessary to protect the employer’s legitimate interests (e.g. trade secrets or special skills acquired during employment), (ii) does not impose an undue hardship on the employee, (iii) does not harm the public, and (iv) is reasonable in time period and geographic scope.[35]

Similar to Delaware, New York courts may also blue-pencil a non-compete provision, but they are increasingly refusing to do so.[36] And like Delaware, New York recognizes the employee choice doctrine where a departing employee has a choice between: (i) adhering to a non-compete provision in exchange for post-employment compensation from the former employer or (ii) working for a competitor and forfeiting such compensation.[37] As a result, forfeiture-for-competition arrangements are more likely to be upheld in New York compared to non-compete provisions which must meet the reasonableness standard.

IV. Choice of Law

A common issue that comes up in the non-compete context is choice of law. Because certain states disapprove of non-compete provisions, many businesses attempt to skirt such restrictions by inserting choice of law provisions which require the non-compete provision to be governed by a more business-friendly state.

For example, in order to use Delaware law instead of the laws of a more restrictive state, businesses commonly use a strategy in which they insert non-compete provisions in equity grant documents instead of, or in addition to, stand-alone non-compete agreements, offer letters, or employment agreements. The equity grant document will contain Delaware choice of law provisions under the theory that because most companies are incorporated or organized in Delaware, Delaware law will apply to the grant of company equity and will reasonably extend to a non-compete provision as well.[38]

This strategy used to have some success, but this is changing.[39] First, as described above, Delaware is not as non-compete friendly as it used to be. And second, under a recent trend of cases, if an employee’s connection to Delaware is sparse and a company’s only connection to Delaware is that it was incorporated in the state, Delaware courts are unlikely to uphold the Delaware choice of law provision in any employee document, even an equity grant document.[40]

This trend is demonstrated in HighTower Holding, LLC v. Gibson[41]. In Hightower, John Gibson and several of his other partners sold their majority interest in Twickenham Wealth Advisors, a financial firm located in Alabama, to HighTower, a Delaware LLC. In connection with the sale, Gibson entered into a non-compete agreement with a Delaware choice of law provision which barred Gibson from joining a firm that competed with HighTower. HighTower formed a new entity in Delaware in order to operate the acquired business (“HTT Newco”), but even so, the Delaware Chancery Court refused to enforce the Delaware choice of law provision. The Court held that Alabama law applied to the non-compete provision, and that, under Alabama law, the non-compete provision at issue was void. The court explained that Delaware follows the Restatement (Second) of Conflicts of Laws, which provides that a contractual choice of law will generally control, unless “enforcement of the covenant would conflict with a ‘fundamental policy’ of the default state’s law, and the default state has a materially greater interest in the issues than Delaware.[42] The court held that Alabama was the “default state” because the relevant agreements were negotiated and executed in Alabama, Twickehnam was located in Alabama, the issue arose because Gibson began to work for Alabama-based competitors, Gibson was registered as an investment advisor representative in Alabama, and Gibson resided in Alabama.[43]  Even though Hightower and HTT Newco were Delaware entities, the Delaware ties were limited compared to those in Alabama. [44] The court noted that it may have come to a different conclusion if the performances by the parties were split among multiple states, rather than the single state of Alabama.[45]

Because of HighTower and similar cases, businesses should not rely on Delaware choice of law provisions when drafting non-compete provisions, especially if the ties to Delaware are only related to corporate organization.

This does not mean choice of law does not ever matter: the DraftKings case, which was described in the California section of this article, shows that some courts look to choice of law even if another state’s public policy calls for the ban of non-compete provisions. Until the courts provide more clarity, a combination of strategy and caution should be used when selecting the choice of law for a non-compete provision.

V. Other Considerations

a. Non-Solicitation Clauses

States are not only banning non-compete provisions, several are also starting to ban non-solicitation provisions. In California, non-solicitation provisions in employment agreements are generally considered unenforceable, which means employees can lawfully solicit their employer’s clients or customers without fear of breaching a contract.[46] However, non-solicitation provisions which are intended to protect an employer’s trade secrets or are related to the sale of a business are generally excepted from any non-solicitation agreement ban. North Dakota has a similar ban, while many other states allow employers to use non-solicitation agreements only in cases when the employee meets a certain salary threshold.[47]

Even if a state does not ban non-solicitation provisions, a provision may still be considered void if it looks too much like an unenforceable non-compete provision. Further, states like New York have their own tests to determine if a non-solicitation provision is enforceable. Non-solicitation agreements in New York must: (i) protect legitimate business interests; (ii) not impose an undue hardship on the employee; and (iii) not harm the public. New York courts tend to enforce agreements targeting employee non-solicitation, as they view these as less burdensome than customer restrictions.[48] But non-solicitation provisions will still be held unenforceable if they prohibit at-will employees, who have yet to accept an offer of new employment, from ‘inducing’ or even ‘encouraging’ their coworkers to leave their present employer.[49]Such non-solicitation provisions are more likely to be upheld if they specifically identify what skillset of coworkers may not be solicited.[50] A non-solicitation provision in New York will also be unenforceable as overly broad if it (a) seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment, (b) extends to personal clients recruited through the employee’s independent efforts, or (c) extends to “potential” clients.[51]

Because of these restrictions, businesses should carefully draft non-solicitation provisions in addition to any non-compete provisions.

B. Wages

An increasing number of states now prohibit non-compete provisions unless the employee is exempt or earns more than a statutory minimum salary. States (and cities) with these restrictions currently include Colorado, Illinois, Maine, Maryland, Massachusetts, Nevada, New Hampshire, Oregon, Rhode Island, Washington, Virginia, and Washington D.C.

Some of these statutory minimum salaries can be quite high. For example, employees who make over approximately $154,750 can be subject to a one-year non-compete provision in Washington D.C.[52], and the non-compete threshold in Colorado is $123,750[53].

Because of these restrictions, a good rule of thumb is to avoid putting non-compete provisions in the employment agreements of low wage employees.

C. Notice requirements

In addition to wage requirements, some states have notice requirements under which employers must disclose the terms of any non-compete provision to employees or prospective employees in specific ways; these states (and cities) include: Washington, Oregon, Colorado, Illinois, Virginia, Washington D.C., Massachusetts, New Hampshire, and Maine.

Some examples include:

• Oregon requires that, at least two weeks before an employee’s first day of employment, the employer provide a copy of the non-compete provision with an offer letter which states that the non-compete provision is a condition of the employee’s employment. The non-compete provision will be void unless the employer provides a signed, written copy of the agreement containing the non-compete provision to the employee within 30 days after the employee’s termination.[54]
• Virginia requires that notice of Virginia Code § 40.1-28.7:8 be posted at the workplace. Such code memorializes Virginia’s non-compete provision ban for low wage employees.[55]
• Colorado requires that an employer provide notice of the non-compete provision to a new employee before they accept their offer and such notice must be provided on a separate document from other portions of the employment agreement, stated in clear and conspicuous terms and signed by the employee separate from the employment agreement itself.[56] The notice requirement is only satisfied when: (i) a copy of the agreement with the non-compete provision is provided, (ii) it identifies the agreement by name, (iii) it highlights the inclusion of a non-compete provision that could restrict an employee’s options for subsequent employment, and (iv) it directs the employee to the specific sections and paragraphs of the agreement that contain the provisions governing competition.[57]

Because more states are requiring that notice be provided in order to enforce a non-compete provision, employers with national workforces may want to provide notice of the non-compete provision to all potential new hires at the offer stage.

D. Financial Penalties

In the past, there were no repercussions for employers if they inserted non-compete provisions into offer letters or similar agreements; the worst that could happen is the non-compete provision would be held unenforceable. The consequences for imposing prohibited non-compete provisions on employees now goes beyond mere unenforceability and in many states civil and even criminal penalties may apply.[58]

The states (and cities) that impose such penalties are California, Colorado, Illinois, Maine, Nevada, Oregon, Virginia, Washington, Wisconsin, and Washington, D.C.[59]

For example, in California, employers who violate the state’s non-compete provision ban may be found guilty of a misdemeanor and either fined up to $1,000, imprisoned up to six months, or both.[60] While in Colorado, if a business uses a non-compete provision as a way to force, threaten, or intimidate an employee, the persons operating the business may be found guilty of a Class 2 misdemeanor and the employer may also be liable for actual damages and a $5,000 penalty per harmed employee or prospective employee.[61]

VI. Exceptions

While some states like California ban non-compete provisions pretty much outright, this does not mean that employees may compete with their employer while they are still employed. Indeed, California has codified that employees owe a duty of loyalty to their employer, which prevents them competing with their employer while they are employed.[62] Accordingly, employment agreements may still contain non-compete provisions if they are tailored to the employment term only.

For the time being, non-compete provisions are also permitted in connection with company sales. As described above, New York has attempted to ban non-compete provisions even when a company is sold, but such legislation was vetoed, and no other state has enacted such a far-reaching ban. As outlined in this article, non-compete provisions related to company sales will only be enforceable if they adhere to the applicable state’s laws and balance of interests.

VII. Ways to Protect Information

While it appears that non-compete provisions may not have a long lifespan ahead of them, employers can and should still protect their business interests by ensuring their employees are bound by solid confidentiality obligations and will return or destroy all company-related documents upon their departure.

Businesses should also ensure that they have trade secret practices in place. While California is leading the pack when it comes to non-compete provision bans, it is also leading the country in trade secret litigation.[63] So while California law does not prevent former employees from working for a competitor, it can prevent former employees from sharing trade secrets and other valuable confidential information with future employers. More states appear to be following California’s lead, so employers should know what their trade secrets are and limit who has access to them in order to maintain their protectability and value.

VIII. Conclusion

For now, employers can rest assured that the FTC’s ban on non-compete provisions will not go into effect. However, public pressure is on state and federal governments to thread the needle and enact laws to protect employers while not limiting the livelihood of employees in today’s dynamic employee environment. For employers, it is important to pay attention to local laws both in the states and cities in which you operate offices and in the places in which your employees reside and follow any notice or other requirements. Employees today work an average of three to four years at each job. It is imperative that employers assume their workforce will migrate to a competitor and protect their valuable assets through other means.

If you have any questions or need help thinking about a non-compete laws, whether as an employer, employee, acquirer or seller, please contact us at [email protected].

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[1] ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf

[2] ftc.gov/system/files/ftc_gov/pdf/noncompete-rule.pdf

[3] Ryan LLC v. Federal Trade Commission, Civ. Action No. 3:24-CV-00986 (N.D. Tex. Aug. 20, 2024)

[4] Ryan LLC v. Federal Trade Commission, Civ. Action No. 3:24-CV-00986 (N.D. Tex. Aug. 20, 2024)

[5] FTC Appeals Texas District Court Ruling That Blocked Noncompete Ban to Fifth Circuit – Ogletree

[6] FTC Appeals Texas District Court Ruling That Blocked Noncompete Ban to Fifth Circuit – Ogletree

[7] FTC Appeals Texas District Court Ruling That Blocked Noncompete Ban to Fifth Circuit – Ogletree

[8] For a full list of all state non-competes, this external source appears reliable. Please note that it is not endorsed by Heilbut LLP nor has its content been vetted. https://www.sixfifty.com/resource-library/non-compete-agreement-by-state/

[9] Bill Text – SB-699 Contracts in restraint of trade. (ca.gov)

[10] Bill Text – AB-1076 Contracts in restraint of trade: noncompete agreements. (ca.gov)

[11] Immediate Obligations for Employers With Noncompete, Customer Nonsolicitation Provisions for California Employees // Cooley // Global Law Firm

[12] Senate Bill 699 Bolsters California… | Kelley Drye & Warren LLP

[13] Senate Bill 699 Bolsters California… | Kelley Drye & Warren LLP

[14] DraftKings Inc. v. Hermalyn, 2024 U.S. App. LEXIS 24472

[15] DraftKings Inc. v. Hermalyn, 2024 U.S. App. LEXIS 24472, *11

[16] Employer Prevails in First Test of California’s Newest Noncompete Law | Jones Day – JDSupra

[17] Centurion Serv. Grp., LLC v. Wilensky, 2023 Del. Ch. LEXIS 354

[18] Centurion Serv. Grp., LLC v. Wilensky, 2023 Del. Ch. LEXIS 354

[19] Centurion Serv. Grp., LLC v. Wilensky, 2023 Del. Ch. LEXIS 354

[20] Centurion Serv. Grp., LLC v. Wilensky, 2023 Del. Ch. LEXIS 354

[21] Kodiak Bldg. Partners, LLC v. Adams, 2022 Del. Ch. LEXIS 288, *8

[22] Kodiak Bldg. Partners, LLC v. Adams, 2022 Del. Ch. LEXIS 288

[23] A Changing Landscape in Delaware on M&A Non-Compete Enforcement (mosessinger.com)

[24] Kodiak Bldg. Partners, LLC v. Adams, 2022 Del. Ch. LEXIS 288, *18
Trio of Delaware Cases Signal Stricter Review of Sale-of-Business Non-Competes | Morrison Foerster (mofo.com)

[25] Kodiak Bldg. Partners, LLC v. Adams, 2022 Del. Ch. LEXIS 288, *18

[26] Cantor Fitzgerald, L.P. v. Ainslie, 312 A.3d 674, 677

[27] Cantor Fitzgerald, L.P. v. Ainslie, 312 A.3d 674, 690

[28] Kodiak Two Years Later: Is Delaware’s Blue Pencil Turning Red for Non-Competes? | Morrison Foerster (mofo.com)

[29] New York Non-Compete Agreements Are Safe—for Now (pillsburylaw.com)

[30] New York Non-Compete Agreements Are Safe—for Now (pillsburylaw.com)

[31] New York City Introduces Bill to Ban Non-Competes | Husch Blackwell

[32] The New York City Council – File #: Int 0140-2024 (nyc.gov)

[33] Duane Morris LLP – It’s No Competition: New York City Legislature Proposes Sweeping Non-Compete Bills

[34] Employers Should Revisit Their Non-Compete Agreements for 2023 | Foley Hoag

[35] Permanens Capital L.P. v. Bruce, 2022 U.S. Dist. LEXIS 131926, *23

[36] Employers Should Revisit Their Non-Compete Agreements for 2023 | Foley Hoag

[37] Forfeiture-for-Competition: Exploring the Employee Choice Doctrine | Carter Ledyard & Milburn LLP (clm.com)

[38] Delaware Is Increasingly No Longer a Safe Bet for Restrictive Covenants and Default Choice of Law Provisions | Publications | Insights | Faegre Drinker Biddle & Reath LLP

[39] Delaware Is Increasingly No Longer a Safe Bet for Restrictive Covenants and Default Choice of Law Provisions | Publications | Insights | Faegre Drinker Biddle & Reath LLP

[40] Delaware Is Increasingly No Longer a Safe Bet for Restrictive Covenants and Default Choice of Law Provisions | Publications | Insights | Faegre Drinker Biddle & Reath LLP

[41] Delaware Is Increasingly No Longer a Safe Bet for Restrictive Covenants and Default Choice of Law Provisions | Publications | Insights | Faegre Drinker Biddle & Reath LLP

[42] Hightower Holding, LLC v. Gibson, 2023 Del. Ch. LEXIS 39, *9

[43] Hightower Holding, LLC v. Gibson, 2023 Del. Ch. LEXIS 39, *9

[44] Hightower Holding, LLC v. Gibson, 2023 Del. Ch. LEXIS 39, *9

[45] A Changing Landscape in Delaware on M&A Non-Compete Enforcement (mosessinger.com)

Hightower Holding, LLC v. Gibson, 2023 Del. Ch. LEXIS 39, N. 55

[46]Are Non-Solicitation Agreements Enforceable in California? | Holt Law (djholtlaw.com) and Future Not Looking Bright For California Employee Nonsolicits – Insights – Proskauer Rose LLP

[47] As States Nationwide Limit Employee Restrictive Covenants, California Court Ruling Further Complicates Matters | Loeb & Loeb LLP

[48] New York Non-Solicitation Agreement Lawyers | The Ultimate Guide

[49] Permanens Capital L.P. v. Bruce, 2022 U.S. Dist. LEXIS 131926, *24

[50] Permanens Capital L.P. v. Bruce, 2022 U.S. Dist. LEXIS 131926, *25

[51] Permanens Capital L.P. v. Bruce, 2022 U.S. Dist. LEXIS 131926, *24

[52] Worker Alert: Noncompete Provisions Are Now Illegal for Many DC Workers | Attorney General Brian Schwalb

[53] Non-Compete Salary Thresholds Increase Jan. 1, 2024 (fortislawpartners.com)

[54] BOLI : Noncompetition Agreements : For Employers : State of Oregon

[55] New 2024 “Low Wage” Salary Level for Virginia Non-Compete Agreements – Gentry Locke Attorneys

[56] A Warning for Companies with Colorado Employees Seeking to Enforce Restrictive Covenants and Non-Competition Agreements | Insights | Greenberg Traurig LLP

[57] A Warning for Companies with Colorado Employees Seeking to Enforce Restrictive Covenants and Non-Competition Agreements | Insights | Greenberg Traurig LLP (gtlaw.com)

[58] States with Penalties for Non-Compete Law Violations | Foley & Lardner LLP

[59] States with Penalties for Non-Compete Law Violations | Foley & Lardner LLP

[60] Cal. Lab. Code § 23 and Cal. Lab. Code § 433

[61] States with Penalties for Non-Compete Law Violations | Foley & Lardner LLP

[62] Noncompetition agreements are unenforceable, but employers can still protect their company information | California Employment Law Report

[63] California Court Home to Highest Trade Secret Caseload in the Nation, Says New Report, The Recorder – News (morganlewis.com)