VULCAN STEEL STRUCTURES, INC. Et Al. v. McCARTY Et Al., 329 Ga. App. 220

Gary John McCarty worked for Vulcan Steel Structures from 1996 until May 9, 2013 and in 2008 signed an employee agreement with confidentiality, noncompete, and nonsolicitation covenants.
The nonsolicitation clause barred McCarty, during employment and for two years after, from communicating with any Vulcan customer or prospect (with whom he had "material contact") with the intent to provide competitive engineered steel products.
After leaving Vulcan McCarty took a job with Hornet Steel Buildings; Vulcan sued McCarty and Hornet alleging breaches of the agreement.
Defendants sought a declaratory judgment that the agreement was unenforceable; the trial court granted that relief and dismissed claims dependent on the agreement.
On appeal, the Court of Appeals reviewed de novo under former Georgia law (restrictive covenants ancillary to employment receive strict scrutiny and are not blue-penciled).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the nonsolicitation clause validly prohibits communications that result in accepting unsolicited business from former customers	The clause is lawful and comparable to language upheld in W.R. Grace; it validly restricts communications with former customers	The clause improperly prohibits acceptance of unsolicited business because it bars communications regardless of who initiated contact	The clause is unreasonable and unenforceable because it prohibits acceptance of unsolicited business from former customers
Whether the agreement can be blue-penciled or partially enforced when one covenant is invalid	Vulcan: the clause can be reformed/partial enforcement should be allowed	Defendants: under former law strict scrutiny prevents blue-penciling; an invalid covenant renders the whole agreement unenforceable	Under former Georgia law, covenants ancillary to employment are not subject to blue-penciling; because the nonsolicitation covenant is unenforceable, the entire agreement is unenforceable

Orkin Exterminating Co. v. Walker, 251 Ga. 536 (1983) (restrictive covenant cannot prevent a former employee from accepting overtures from former customers)
W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (1992) (upheld a no-solicitation clause on grounds focused on geographic limitation)
Waldeck v. Curtis 1000, 261 Ga. App. 590 (2003) (nonsolicitation that bars acceptance of unsolicited clients is unenforceable)
Murphree v. Yancey Brothers Co., 311 Ga. App. 744 (2011) (restrictive covenants ancillary to employment receive strict scrutiny and are not blue-penciled)
Paragon Technologies v. InfoSmart Technologies, 312 Ga. App. 465 (2011) (prohibition on accepting unsolicited work from former clients is unenforceable)
Covington v. D. L. Pimper Group, 248 Ga. App. 265 (2001) (earlier case upholding similar language, limited by later analysis)
Palmer & Cay of Georgia v. Lockton Cos., 280 Ga. 479 (2006) (cautions about overbroad application of W.R. Grace beyond its holding)
Holton v. Physician Oncology Svcs., 292 Ga. 864 (2013) (revised restrictive covenant law postdates the 2008 agreement)
Cox v. Altus Healthcare & Hospice, 308 Ga. App. 28 (2011) (if one covenant subject to strict scrutiny is unenforceable, all are unenforceable)