It's Not Too Late To Avoid Early

Georgia appellate courts have regularly struck down restrictive covenants for years. The Georgia Court of Appeals did so again in Early v. MiMedx Grp., Inc., 330 Ga. App. 652 (2015). That in itself is not remarkable. The Early case, however, serves as a reminder of the importance of considering whether to have key employees (or franchisees, licensees, physicians, etc.) execute new restrictive covenants to take advantage of the protections of Georgia's revised restrictive covenant law.

The new law applies to restrictive covenants entered into after May 2011 – it does not apply retroactively; the Early case involved a February 2011 restrictive covenant and accordingly fell within the old law. The new law not only provides greater clarity as to what renders a restrictive covenant enforceable, it also allows for so-called blue penciling that can save a restrictive covenant from failing based on a single overbroad aspect.