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Litigating Non-Compete Agreements in Delaware Courts

The third factor, balancing the equities, is subjective. Courts consider whether the agreement is fair, the employee’s ability to negotiate, the skills involved, and how the restrictions affect the employee’s ability to work. Delaware courts hesitate to modify non-competes through “blue pencilling”, which involves revising overbroad agreements to make them legally compliant. Instead, they encourage employers to draft precise and reasonable agreements from the outset.

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