Is a worldwide ban on soliciting former clients valid in Virginia?

Many non-solicitation contracts will state, “Employee will not, directly or indirectly, solicit competitive services from the customers of Employer for a period of two (2) years.”

Read literally: the employee cannot solicit former clients anywhere throughout the world.

Is a worldwide ban on solicitation enforceable?

A worldwide ban is enforceable in certain, limited situations.

Non-solicitation provisions must be “narrowly drawn to protect the employer’s legitimate business interest,” “not unduly burdensome on the employee’s ability to earn a living,” and, “not against public policy.” Omniplex World Servs. Corp. v. US Investigations Servs., Inc., 270 Va. 246, 249 (2005). A court will consider its “function, geographic scope, and duration.” Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 415-16 (2011).

The three factors—function, geography, and duration—are considered together. Even if a non-solicit does not identify a restricted geographic scope, a court may enforce a non-solicit if the function and duration are otherwise reasonably limited.

Consider two relevant cases.

In Simmons v. Miller, a cigar distributor was banned from competing anywhere in the world for a period of three years. 261 Va. 561 (2001). The Supreme Court of Virginia struck down the three-year non-compete due to the lack of a geographical limitation. Id.

By comparison, in Foti v. Cook, 220 Va. 800 (1980), a partner-level accountant was banned from soliciting former clients anywhere in the world for a period of two years. The Court upheld the restriction, even though it lacked a geographic scope, because the limitation protected the business interests of the employer by focusing on the specific clients of the employer that the former firm partner was aware of and/or serviced. Id.

Therefore, if the duration and function is reasonably limited, a worldwide ban on soliciting former clients will be upheld under Virginia law in certain circumstances.

The bottom line: A court will enforce a worldwide ban on soliciting clients in certain circumstances. There are many ways to challenge a non-compete. An experienced non-compete lawyer can review the contract and develop a plan of action before you sign it, before you take a new job, or before you start a competing company.