Noncompetes, Nonsolicitation & Confidentiality

What I Review in Restrictive-Covenant Agreements

Restrictive covenants should be reviewed as part of the entire agreement, not as isolated clauses. I examine both the language of the restrictions and the contractual provisions that may affect how they operate.

Depending on the documents, my review may include:

• The agreement or transaction in which the restriction appears
• The individuals, entities, affiliates, and business relationships covered
• Restricted activities, roles, industries, services, products, or lines of business
• The duration and geographic, customer-based, or activity-based scope of the restrictions
• Customer, client, vendor, employee, and referral-source nonsolicitation provisions
• No-service, no-hire, and no-recruitment provisions
• Definitions of confidential information, proprietary information, and trade secrets
• Return, deletion, and preservation requirements for company information and property
• Notice, disclosure, and certification obligations involving a prospective employer
• Tolling, forfeiture, repayment, clawback, and equity-related consequences
• Carve-outs, exceptions, and exclusions
• Injunctive-relief, damages, fee-shifting, arbitration, forum, and choice-of-law provisions
• How the restrictions interact with earlier agreements, equity documents, or a severance agreement

Reviewing the provisions together can reveal obligations that are broader, narrower, or different from what the section headings alone might suggest.

How the Restrictions May Work Together

A single employment or separation agreement may contain several distinct restrictions. Understanding the differences—and the overlap among them—is important when evaluating a new opportunity or planning a departure.

• Noncompetition provisions may limit work for certain businesses, the performance of particular services, or the operation of a competing business.
• Customer or client nonsolicitation provisions may address communications, business development, accepting work, or providing services to specified relationships.
• Employee nonsolicitation and no-hire provisions may restrict recruiting, encouraging, or hiring current or former coworkers.
• Confidentiality and trade-secret provisions may govern the use, disclosure, return, deletion, or protection of business information.
• Intellectual-property and invention-assignment provisions may address ownership of work product, inventions, developments, or other materials.

The precise wording matters. A provision labeled “confidentiality” or “nonsolicitation” may have practical effects that are not obvious from its heading, and multiple agreements may impose overlapping obligations.

When to Seek Advice About a Restrictive Covenant

Restrictive-covenant review is most useful before a client signs new terms, makes a departure decision, or commits to a new professional opportunity.

Consider seeking advice when:

• A new offer or employment agreement contains a noncompete, nonsolicitation, confidentiality, or intellectual-property provision.
• An employer requests new restrictions in connection with a promotion, retention payment, bonus, or equity award.
• You are considering resigning, joining another company, starting a business, or performing consulting work.
• The next opportunity involves a competitor, customer, client, vendor, or former coworker.
• A severance or separation agreement reaffirms, changes, or adds post-employment restrictions.
• A prospective employer asks you to disclose or certify your existing obligations.
• Your current or former employer raises questions about your planned activities or communications.
• Several agreements appear to contain different or overlapping restrictions.
• You need a practical plan for protecting confidential information and returning company property during a transition.

Early review can help clarify the available options while there is still time to address important terms and plan the transition carefully.