No, a judge can fix it instead of throwing it out. The court decided that the goal of a non-compete is to be fair, not to punish people. The part of the contract that said the ex-employees couldn't contact *any* Whelan customer in the whole country was too much. So, the court changed it to say they just couldn't contact the specific customers they had personally worked with. The court said the rule against hiring other employees was mostly okay. However, it sent the case back to the first court to look more closely at some of the details to decide if the ex-employees actually broke the newly-fixed rules.

Yes, the lower court made a mistake when it said the rules were completely unfair. While some parts of the rules were too strict, we can fix them instead of throwing them out entirely. I think we should change the rules so that Kennebrew and Morgan can't take customers they worked with at Whelan, but they can take other customers. They also shouldn't be stopped from taking potential customers Whelan was trying to get.

For the rule about not hiring Whelan's employees, Morgan's one-year rule is okay as it is. For Kennebrew's two-year rule, we need more information to decide if it's fair.

The rule stopping Kennebrew from working for competitors within 50 miles for two years is fair and should be followed.

Because we need more information about some parts of the rules and how they were followed, the first judge shouldn't have made a final decision yet. We're sending the case back to the lower court to look at these things more closely.

Yes, the lower court made a mistake when it said the rules were completely unfair. While some parts of the rules were too strict, we can fix them instead of throwing them out entirely. The rules should be changed so that Kennebrew and Morgan can't take customers they worked with at Whelan, but they can take other customers. They also shouldn't be stopped from taking potential customers Whelan was trying to get.

For the rule about not hiring Whelan's employees, Morgan's one-year rule is okay as it is. For Kennebrew's two-year rule, we need more information to decide if it's fair.

The rule stopping Kennebrew from working for competitors within 50 miles for two years is fair and should be followed.

Because we need more information about some parts of the rules and how they were followed, the first judge shouldn't have made a final decision yet. We're sending the case back to the lower court to look at these things more closely.

No, a court may modify the terms of an unreasonably broad non-compete agreement to make it reasonable and then enforce the modified version. The general purpose of such agreements is to protect an employer from unfair competition, and courts can give effect to this purpose by modifying or refusing to enforce only the unreasonable terms rather than voiding the entire contract. The court found the customer non-solicitation clause, which prohibited contact with any of Whelan's customers or prospective customers nationwide, was unreasonably overbroad because it was not tailored to the employees' actual customer contacts. Therefore, the court modified this clause to prohibit solicitation of only those specific customers with whom the employees personally dealt. The court found the employee non-solicitation clause in Morgan's contract was per se reasonable due to its one-year duration under state statute, while the reasonableness of Kennebrew's two-year clause depended on unresolved factual issues regarding its purpose, requiring remand. Finally, the court found Kennebrew's two-year, 50-mile non-competition clause to be facially reasonable based on precedent, but remanded to determine the factual question of whether he had violated it.

Yes, the trial court erred in concluding that the non-competition and non-solicitation clauses were entirely invalid. While the customer non-solicitation clauses were overbroad as written, they can be modified to be reasonable and enforceable. I hold that the customer non-solicitation clauses should be modified to eliminate the provision prohibiting Kennebrew and Morgan from soliciting existing Whelan customers, except those customers with whom they dealt during their employment. The prohibition against soliciting Whelan's prospective customers should also be eliminated. This modification is necessary because the original clauses were unreasonably broad, prohibiting contact with any Whelan customer nationwide, regardless of whether Kennebrew and Morgan knew it was Whelan's customer or had previously dealt with that customer.

Regarding the employee non-solicitation clauses, I find that Morgan's one-year covenant is per se reasonable under section 431.202.2 and is enforceable. For Kennebrew's two-year covenant, there is a genuine factual issue as to its purpose under section 431.202(3) that must be determined by the trier of fact.

As for the non-competition clause in Kennebrew's contract, which prohibits him from working for a competing business within 50 miles of any location where he provided services for Whelan for two years, I find it enforceable based on considerable precedent in Missouri supporting the reasonableness of such agreements for operations managers.

Because there remain genuine issues of fact to be resolved - namely, whether the employee non-solicitation clause in Kennebrew's contract was motivated by a valid purpose under section 403.202(3) and whether Kennebrew's actions violated his covenant not to compete - summary judgment was improper. Therefore, I reverse the trial court's judgment and remand the case for further proceedings.

Yes, the trial court erred in concluding that the non-competition and non-solicitation clauses were entirely invalid. While the customer non-solicitation clauses were overbroad as written, they can be modified to be reasonable and enforceable. The customer non-solicitation clauses should be modified to eliminate the provision prohibiting Kennebrew and Morgan from soliciting existing Whelan customers, except those customers with whom they dealt during their employment. The prohibition against soliciting Whelan's prospective customers should also be eliminated. This modification is necessary because the original clauses were unreasonably broad, prohibiting contact with any Whelan customer nationwide, regardless of whether Kennebrew and Morgan knew it was Whelan's customer or had previously dealt with that customer.

Regarding the employee non-solicitation clauses, Morgan's one-year covenant is per se reasonable under section 431.202.2 and is enforceable. For Kennebrew's two-year covenant, there is a genuine factual issue as to its purpose under section 431.202(3) that must be determined by the trier of fact.

As for the non-competition clause in Kennebrew's contract, which prohibits him from working for a competing business within 50 miles of any location where he provided services for Whelan for two years, it is enforceable based on considerable precedent in Missouri supporting the reasonableness of such agreements for operations managers.

Because there remain genuine issues of fact to be resolved—namely, whether the employee non-solicitation clause in Kennebrew's contract was motivated by a valid purpose under section 403.202(3) and whether Kennebrew's actions violated his covenant not to compete—summary judgment was improper. Therefore, the trial court's judgment is reversed and the case is remanded for further proceedings.

Whelan Security Co. v. Kennebrew

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