When Underwood ended its employment relationship with Ascension, the duration of the five-year competition under the asset purchase contract expired. However, the separate non-compete regime in Underwood`s employment contract offered a two-year tail at the end of employment, which Ascension had explicitly envisioned in the negotiations to resume Underwood`s activities. Agreements may be considered unenforceable when a court considers them inappropriate in terms of duration, geographic scope and nature of employment or activity. If a court finds an agreement inappropriate, it can amend the agreement so that it does not unduly violate the former employee`s ability to work. At Cabela`s LLC v. Highby, 362 F. Supp.3d 208 (D. Del. 2019), the court had to rule on the validity of a Delaware law choice in which the worker lived and worked in Nebraska.

Nebraska non-competitors are more restrictive than Delaware law. The court ruled that Nebraska non-competitions “may restrict competition by inappropriate and unfair methods, but should not restrict normal competition,” while in Delaware, “an agreement prohibiting customary competition is enforced as long as it is not oppressive for a worker.” Id. to 217-18 (quotes omitted). The Tribunal found that the non-competition clause at issue involved normal competition and was therefore unenforceable under Nebraska law, but would be applicable under Delaware law. The court therefore found that “the application of Delaware law would be contrary to a fundamental Nebraska policy” and refused to apply Delaware`s choice clause. Id. to 219. Delaware courts have ruled that restrictive agreements apply where conditions are appropriate and necessary to protect certain business interests of the employer, such as customer relations or trade secrets. Factors taken into account in determining adequacy include the harshness that an agreement imposes on the former worker, its impact on the community, and the time, territorial and activity constraints of the former worker.

In early February 2020, the Alabama court issued a partial summary judgment in Hamilton`s favor and found that the non-compete prohibitions on the employment contract in Alabama were unenforceable. The Alabama court refused to reach an agreement on the grant agreement because of Delaware`s choice provision. In late February, Fast Pace filed an injunction in Delaware to argue Hamilton`s ownership or administration of Thrive or a similar business in Alabama and within 60 miles of any Fast Pace site.