This case is before this court as a certified question from the United States Court of Appeals for the Eleventh Circuit, pursuant to OCGA § 15-2-9 and Rule 37 of the Rules of the Supreme Court of Georgia. See W. R. Grace & Co., Dearborn Div. — Conn. v. Mouyal, 959 F2d 219 (11th Cir. 1992). The question centers on the enforceability of a no-solicitation clause contained in an employment agreement between the parties. The clause reads as follows:
Employee agrees that during the period of eighteen months immediately following cessation of Employee’s employment with Dearborn, Employee shall not, on Employee’s own behalf or on behalf of any person, firm, partnership, association, corporation or business organization, entity or enterprise, solicit, contact, call upon, communicate with or attempt to communicate with any customer or prospect of Dearborn, or any representative of any customer or prospect of Dearborn, with a view to sale or providing of any product, equipment or service competitive or potentially competitive with any product, equipment or service sold or provided or under development by Dearborn during the period of two years immediately preceding cessation of Employee’s employment with Dearborn, provided that the restrictions set forth in this section shall apply only to customers or prospects of Dearborn, or representative of customers or prospects of Dearborn, with which Employee had contact during such two-year period. . . . The actions prohibited by this section shall not be engaged in by Employee directly or indirectly, whether as manager, salesman, agent, sales or service representative, engineer, technician or otherwise.
Upon termination of his employment with Dearborn, appellee became an officer and director of a competitor of Dearborn and, within the 18-month period, allegedly solicited a Dearborn customer with which appellee had visited during the last two years of his tenure with Dear-born. Dearborn filed suit to enforce the restrictive covenant and the district court concluded that the absence of an express territorial limitation in the covenant not to solicit rendered the covenant unenforceable. After Dearborn appealed to the Eleventh Circuit, that court certified the following question to this court:
Whether, as a matter of law, a no-solicitation clause in an employment contract that prohibits the solicitation of the *465 employer’s clients that the employee actually contacted while serving the employer, such as the no-solicitation clause involved in this case, is enforceable in Georgia notwithstanding the absence of an explicit geographical limitation. 1
1. While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. Ill, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld
if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public.
Rakestraw v. Lanier,
2. The focus of this case is the absence of an express geographic description of the territorial restriction contained in the no-solicitation clause of the employment contract. A territorial limitation is necessary to give the employee notice of what constitutes a violation of the restrictive covenant
(Fuller v. Kolb,
Various precepts have evolved from the judicial balancing of the interests involved. It is an unreasonable and overbroad protection of the employer’s interest to restrict a former employee from post-employment solicitation in a geographic area where the employer had no business interest.
Thomas v. Coastal Indus. Svcs.,
As the group which the employer wishes to protect from solicitation by former employees becomes more narrowly defined, the need for a territorial restriction expressed in geographic terms becomes less important. See 6A Corbin on Contracts, § 1394, p. 38 (1992 Supp.). We so held in
Kirschbaum v. Jones,
Certified question answered in the affirmative.
Notes
We note that the certified question is limited to the solicitation by a former employee of those clients of his former employer that the employee actually contacted while serving his employer. The restrictive covenant executed hy these parties, however, differs from the question posed: it is broader than the question in that it covers customers and prospects of Dear-born that appellee contacted, and it is more narrow than the certified question as it is applicable only to those clients and prospects contacted by appellee during the last two years of his employment with Dearborn.
The requirement in Guffey v. Shelnut & Assoc., supra, that a restrictive covenant specify the territory in which the employee is to be foreclosed is not a holding that an express geographic description of the forbidden territory is required. The restrictive covenant in Guffey prohibited Guffey from soliciting any entity doing business with the employer on the day Guffey terminated his employment, without regard to whether Guffey had serviced the entity during his employment with Shelnut. The covenant contained no description of the territory in which the former employee was prohibited from soliciting any of his former employer’s customers. Wiley v. Royal Cup, supra. In essence, the court held that a prohibition against doing business with any of an employer’s customers, whether or not a relationship existed between the customer and the former employee, is overbroad. The court later specifically so held in Orkin Exterminating Co. v. Walker, supra.
The disapproval of the Kirschbaum holding in Fuller v. Kolb, supra, should be limited to the facts of Fuller, a restrictive covenant prohibiting a former employee from rendering services to any client of the employer must contain a territorial restriction expressed in geographic terms because that restriction, which does not take into account whether the employee had a business relationship with that client or whether it was the client who solicited the former employee, is otherwise unreasonable and overbroad in its attempt to protect the employer’s legitimate interest in keeping the employee from taking advantage of the goodwill generated during his employment with the employer to lure employer customers away. The Kirschbaum holding is applicable to restrictive covenants limited to employer clients serviced by the former employee during his tenure with the employer.
In Uni-Worth Enterprises v. Wilson, supra, this court noted that a restrictive covenant prohibiting a former employee from calling on any customer of the employer solicited or contacted by the employee was not too indefinite to be enforced because it merely prohibited the employee from calling upon or taking away customers or accounts of the employer solicited or contacted by the employer during his term of employment. We construe “contact” to mean interaction between the employee and the customer/client/account which takes place in an effort to further the business relationship.