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From non-competes to NDAs: Are restrictive covenants legally enforceable?



Siegel also brings attention to non-solicitation and non-disparagement provisions, adding that non-solicitation provisions, which may restrict you from soliciting employees or clients from your previous employer for a period, are similar to non-competes and must be time-limited.

“On the other hand, non-disparagement clauses, unlike non-competes and non-solicits, are almost always of infinite duration,” he adds. “They could apply to a wide range of individuals related to the company, such as officers, directors, employees, shareholders, and even customers and suppliers. This makes non-disparagement clause severance agreements particularly tricky to navigate.”

In some cases, these non-disparagement clauses might even be deemed illegal.

“Non-disparagement provisions go a step further than defamation laws,” says Seigel. “They essentially state, ‘You can’t say bad things about me’, irrespective of the truth of these statements. This raises questions about the legality of such clauses, leading some to label the non-disparagement clause illegal in certain contexts.”

People don’t really think about it, but non-disparagement clauses are almost never subject to subject matter limits, he says.

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