Part 29 of “The Restricting Covenant Series”: From Reliable to Unpredictable: Navigating Post-Employment Restrictive Covenants in Delaware

Once considered a reliable “go-to” state for enforcing noncompetes and nonsolicitation agreements, Delaware is now a minefield of unpredictability. Historically, if a noncompete’s geographic, temporal or business activity scope was too broad, Delaware courts used the “blue-pencil” doctrine to render them reasonable and enforceable. Those days are largely gone. Blue-penciling is not a reliable safety net for employers in the First State. Today, Delaware courts are more likely to strike overly broad restrictions than to rewrite them, exposing employers to competitive risks if their agreements are not precisely tailored or carefully crafted.