Litigation over noncompetes, nonsolicits and other post-employment competitive restrictions (collectively, restrictive covenants) typically involves an intensely fact-driven analysis. In addition to insisting upon reasonable scope and durational limits, courts have also traditionally required that restrictive covenants be limited geographically. But does requiring geographical limitations make sense in the modern world, especially post-pandemic, when so many employees are working remotely? The answer, we submit, is rarely. There are, however, particular situations where the lack or extent of a restrictive covenant’s geographical limitations can and should factor into a reasonableness analysis.

Historical Importance of the Geographical Limitation

Examining the origins of the geographic limitations concept illuminates why they made sense pre-internet but are increasingly unrealistic today. Laws and customs restricting the trade of craft skills derive from ancient Babylonian, Egyptian, Hindu and Roman civilizations. The English apprenticeship system emerged during the Middle Ages and medieval craft guilds, similar to their Roman predecessors, controlled the number of apprentices each master could accept, operated guild courts to ensure apprentices were treated properly, and even held examinations to test the apprentice’s work and the master’s teaching. As a result of these carefully cultivated relationships, when apprentices were sent out on their own, typically after seven years, they were expected not to poach the customers of their masters.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]