Georgia Signals Greater Leeway In Revising Overbroad Non-Competes

In a recent decision, the Eleventh Circuit seemed to approve a more forgiving standard for reviewing restrictive covenants. Courts generally have three colors in their markup kit for restrictive covenants. The first—and most severe—is the red pencil. In those jurisdictions, if any aspect of a restrictive covenant is overbroad, the court strikes out the whole provision. The second—and most common—is the blue pencil. In blue-pencil jurisdictions, courts may strike out overbroad language but cannot add any language to make the covenant enforceable. The third—and most forgiving—is the purple pencil. These jurisdictions, also called "reformation" jurisdictions, allow a court to insert entirely new language into an overbroad restrictive covenant.