Not all noncompete agreements in Virginia are subject to the
restrictive rules governing noncompete agreements formed between employers and
employees. Noncompete agreements entered into between two sophisticated parties
outside of the employment context may be governed by the less-restrictive
standards that govern ordinary contracts. A federal court in Virginia recently
denied a motion to dismiss a breach-of-contract
claim on this basis, rejecting the argument that the noncompete agreement was
unenforceable as a matter of law.
In McClain v. Carucci, a construction and engineering company
sued a former employee for allegedly violating a noncompete agreement by
forming a competitive company. The noncompete agreement was not entered into as
part of the employment relationship, but was part of a larger settlement
agreement the parties signed to resolve the company's allegations that the
former employee had embezzled nearly $286,000 of the company's funds.
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