Drafting Enforceable Non-solicitation Agreements

Significant time, money and resources often goes into developing client relationships. To protect these relationships, more companies are requiring managers and other employees who have significant contact with clients to sign non-solicitation agreements.

However, requiring an employee to sign a non-solicitation agreement and being able to enforce that agreement are two completely different matters. Customer non-solicitation agreements, like traditional non-compete agreements, are considered restraints on trade, and thus most courts, including those in Delaware, will enforce them only if they are “reasonable.”

Courts will traditionally assess the reasonableness of a non-solicitation agreement by evaluating the scope of the restriction as it relates to three factors: 1) the employer’s interest in protecting its business; 2) the employee’s right to work and earn a living; and 3) the public’s interest in free trade and competition. What follows are four points to consider when drafting a non-solicitation agreement under Delaware law.

Be Clear About What You Are Trying to Protect

The most widely recognized protectable interest is the goodwill a business has cultivated with its customers. Delaware courts recognize that a company has an interest in protecting its client relationships against misappropriation by departing employees. This is particularly true where the employee had significant personal contact with the clients.

But employers often overlook a second interest that merits protection. Courts have recognized that companies have a right to protect their confidential information by prohibiting former employees from soliciting clients. In these instances, courts may restrict a former employee from soliciting business from customers even if that employee had no direct contact, so long as the employee gained significant knowledge or understanding of those customers during his or her employment.

An important consideration for this rule is that the information must be of such confidential nature it would give the former employee (and his new employer) and unfair competitive advantage. As a general rule, confidential information would not include general knowledge or skills the employee acquired during his employment or information that is available to the public through other sources.

Set a Reasonable Time Period

In order to be enforced, non-solicitation agreements must have a reasonable time limit. This is often interpreted to be a period no longer than that which is needed for the company to rebuild its customer relationships. The determination of whether a time period is reasonable is fact specific and must be examined on a case-by-case basis.

In some instances, it may be that a period of several months is reasonable for a company to put a new employee on the job and demonstrate his/her effectiveness to the customers. If the selling or servicing of the relationship is relatively complex, a longer period may be justified.

Courts in Delaware have in general presumed that restrictions of two years or less are reasonable, unless circumstances demonstrate otherwise. Longer periods may be necessary to protect the business, particularly if the former employee had access to confidential information which could provide a competitor with an unfair competitive advantage for many years following the employee’s departure.

Avoid the “I Didn’t Solicit Them; They Called Me” Defense

A common defense invoked by former employees accused of violating a non-solicitation agreement is that they did not “solicit” the customer. In many cases, an agreement will prohibit employees from “soliciting” customers without defining the term “solicit.” In such instances, courts typically defer to the common meaning of the term “solicit” as defined in dictionaries, and will take into account public policy considerations.

Employers can avoid the potential for uncertainty by defining the term “solicit” or by specifying in the agreement that a former employee may not accept business from the employer’s customers. Many jurisdictions, but not all, will enforce non-solicitation agreements that prohibit the former employee from “accepting business” from certain clients.

Consider a Liquidated Damages Provision

Finally, institutions should consider including a remedy of liquidated damages against former employees who improperly solicit customers. It is usually easier to sue a former employee for money than obtain injunctive relief from a court, and the potential for a significant award of damages may make the employee think twice about poaching clients. A liquidated damages provision also can make it easier to calculate monetary losses, which are often difficult to quantify at trial.

In order for a liquidated damages provision to be enforceable, it must set forth a reasonable estimate of the monetary loss likely to be suffered, yet relate to an injury incapable of accurate estimate. Reasonable estimates of damages might include the fees or payments made by the solicited customer to the former employer during a certain time frame.

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