Virginia Supreme Court Hears “Blue Pencil” Case

November 4th, 2011 by JBWK

The Virginia Supreme Court heard oral argument this week in the long-awaited case that will hopefully address the thorny “blue pencil” problem.

“Blue pencil” provisions–common in non-compete agreements–basically say a judge can rewrite the parties’ non-compete agreement if the judge thinks it’s too broad to be enforceable as drafted. The Virginia Supreme Court has never addressed blue pencil provisions, and only a handful of trial courts have. In the current case, BB&T Insurance Services, Inc. v. Thomas Rutherfoord, Inc., the Circuit Court in the City of Richmond struck the parties’ entire non-compete agreement simply because it included a blue pencil provision. The Supreme Court will hopefully address that aspect of the case to provide clarification on the effect of blue pencil provisions.

The decision should be released within the next several months. Stay tuned.

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