N.C. Supreme Court Reaffirms Strict Blue Pencil Doctrine for Restrictive Covenants
The North Carolina Supreme Court reaffirmed in a March 2016 decision that the
power of North Carolina courts to “blue pencil” restrictive covenants is
extremely limited, even when an agreement purports to give a court express authority
to revise and rewrite unreasonable provisions.
Co-authored with Brent F. Powell and Blair L. Byrum
North Carolina has long applied a “strict blue pencil
doctrine” under which courts cannot change or add to the language of an
agreement. Rather, courts are limited to
striking unenforceable portions while enforcing divisible and reasonable
portions.
However, in Beverage
Systems of the Carolinas, LLC v.
Associated Beverage Repair, LLC, No.
316A14 (March 18, 2016), the parties sought a contractual workaround to the
“strict blue pencil doctrine” by expressly providing in their agreement that a
court could revise the agreement’s temporal and territorial restrictions should
a court find them to be unreasonably broad.
The Court of Appeals found that the limitations of the
“strict blue pencil doctrine” did not apply where the agreement expressly
authorized a court to revise unreasonable temporal and territorial restrictions
to make them reasonable. It found that
the agreement’s territorial restriction of “the states of North Carolina or
South Carolina” was overbroad because it included areas not necessary to maintain
customer relationships, and remanded the case with instructions to the trial court
to revise the territorial restriction to make it reasonable.
The North Carolina Supreme Court reversed that decision. Rejecting an effort to broaden the doctrine,
the Supreme Court reasoned that the agreement in question could not be
“rewritten, blue-penciled, or revised.”
First, the Court held that the agreement could not be
rewritten. It held that a court may not
amend the terms of an unreasonable covenant not to compete; rather, a court
should simply not enforce it. For
example, if the parties have agreed on a territorial restriction that is
overbroad, a court cannot rewrite the agreement to include new, reasonable
subdivisions of the overbroad territory.
The covenant must be enforced “as written or not at all.”
Next, the Court held that the agreement could not be
blue-penciled, because it did not set out both reasonable and unreasonable
restricted territories. The Court agreed
that restricting competition “in the states of North Carolina or South Carolina”
was unreasonable, but noted that striking the unreasonable portions left no
territory where the covenant not to compete could be enforced. (In other words, the agreement did not list subdivisions
like counties where a court could strike some and leave others.)
Finally, the Court held that the agreement could not be
revised even though there was a contractual provision allowing a court to
modify the agreement. It reiterated that
courts may not rewrite contracts for parties, and held that “parties cannot
contract to give a court power that it does not have.” The Court also raised concerns about the
prudence asking judges to determine what the parties would have agreed to be
reasonable.
This affirmation of North Carolina’s “strict
blue pencil doctrine” is a reminder to contracting parties that relying on
courts to revise overbroad restrictive covenants is not a viable strategy in
North Carolina. If restrictive covenants
are important to your business and they are governed by North Carolina law, it
is essential to make sure that they avoid well-recognized drafting errors and
contain narrowly tailored terms.
Co-authored with Brent F. Powell and Blair L. Byrum
Labels: Blue Pencil, Modification, Non-Compete, North Carolina Supreme Court, Overbroad, Reformation
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