Tip 1: Choose your choice of law wisely and FIRST.

• The law you choose to apply to a restrictive covenant is regularly outcome determinative in enforcement proceedings (e.g. Illinois’ rule on at-will employment as consideration, North Carolina’s rule on blue-penciling, Louisiana’s law on geographic scope, Florida’s statute on presumptive validity, etc.) 
• And there are sometimes three or four states from which to pick:
  • where the employer or seller is located (state of incorporation or principal place of business)
  • where the employee or purchaser is located
  • where the place of performance is located.  
• So take the opportunity to pick the law that is most likely to do what your client already presumes will be done: your restrictive covenants will be enforced.
• Relatively speaking, Delaware –often the default state of incorporation– is a solid and defensible choice.

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