Federal Court Finds Choice of Law that Permits Blue Penciling Does Not Violate Virginia Public Policy

Non-compete restrictions are creations of state law, which can sometimes vary on key aspects of contract formation and enforceability. One of those aspects is the extent to which states will reform or “blue pencil” the language of the restrictions. In many states a court will rewrite the terms of the restrictions to make them reasonable, thus fulfilling the parties’ contractual intent. Courts in other states refuse to tamper with a restriction’s language, requiring the non-competes to rise or fall on their literal terms.