After the long-awaited blue penciling case was withdrawn from the Virginia Supreme Court’s docket, it may be some time before there’s another clear indicator of the official view on the practice. But a federal judge in the Eastern District of Virginia has ruled that blue penciling is not so egregious as to violate Virginia “public policy.”
It reached the issue deciding whether to enforce a non-compete agreement governed by Kentucky law. While Kentucky allows blue penciling, Virginia arguably does not. In deciding whether to enforce the agreement despite containing a blue penciling provision, the court held that the practice does not violate Virginia public policy such that a Virginia court could not enforce it.
We’ll be on the lookout for more bits and pieces of blue penciling law as they come out, but will still wait for a clear Virginia Supreme Court decision.