Enforcing Non-Compete and Non-Solicitation Provisions in Virginia: Three Recent Takeaways From a Virginia Trial Court

The restrictive period for the employee non-solicitation provision is 24 months following the termination of the Agreement; the restrictive period for the non-compete is the term of the Agreements. The applicable task order ran for one year and was not renewed; the Agreements were never terminated.

After the conclusion of the Metis task order, the contractors provided services to the US Army under the same BPA – only this time for Preting.

The lawsuit filed by Metis asserts breach of contract claims against the contractors for violating the restrictive covenants; and tortious interference of contract claims against Preting for interfering with the restrictive covenants. In response, defendants filed a plea in bar attacking the enforceability of the restrictive covenants. Metis did not seek a TRO or Preliminary Injunction. The Court granted the plea in bar and dismissed all claims, due to its determination that the covenants were unenforceable as a matter of law.

Takeaway 1 – Litigating the Enforceability of Restrictive Covenants at the Early Stage

Two mechanisms exist in Virginia state courts for the dismissal of claims at the outset of a case[4] – demurrer, and plea in bar.  A demurrer is the functional equivalent of a motion to dismiss in federal court and other state court jurisdictions. It permits the dismissal of a claim as a matter of law where even if the facts plead are presumed to be true they are insufficient to support a claim.  For breach of contract cases, a demurrer is appropriate for instance where the party bringing the action fails to allege a valid, or enforceable, contract. A plea in bar permits dismissal of a claim if the party defending against the action asserts that a single issue if proven, bars recovery. Pleas in bar, for instance, are often used to prove that a claim is outside the statute of limitations. Demurrers are decided on the face of the complaint, and there can be no consideration of facts that were not asserted in the complaint; in contrast, pleas in bar permit evidentiary hearings on the facts underlying the single issue and may even permit contested facts to be heard by a jury.

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