# Identify Issues In Non Compete Agreement > Guides counsel in producing a prioritized enforceability memorandum that identifies legal, consideration, and drafting defects in a non-compete agreement, organized by issue priority for use in advising an executive client. - Skill: `finchipaiorg/identify-issues-in-non-compete-agreement` (Agent Skill) - Install (CLI): `npx skillmds@latest add finchipaiorg/identify-issues-in-non-compete-agreement` - Raw SKILL.md: https://api.skillmd.com/api/skills/finchipaiorg/identify-issues-in-non-compete-agreement/raw - Safety review: pending - Works with: Claude Code, Claude.ai, OpenAI Codex - Category: Coding & Dev Tools - Author: FinchipAIOrg (https://skillmd.com/u/finchipaiorg) - Updated: 2026-09-22 - Page: https://skillmd.com/skills/finchipaiorg/identify-issues-in-non-compete-agreement --- # Skill: Identify Enforceability Issues in Non-Compete Agreement ## 1. Subject-matter triage - Confirm the governing jurisdiction before analyzing enforceability; non-compete rules are highly state-specific and may turn on statute, common law, or recent legislative change. - Identify whether the executive is subject to one governing regime or multiple potentially relevant regimes. If more than one jurisdiction is plausibly implicated, enumerate them first and analyze each separately. - Identify the employment status and chronology: start date, execution date, promotion or role change, termination timing, and any later amendments or acknowledgments. - Check whether the task is evaluating a single covenant or multiple restrictive covenants in the same package; analyze each restriction separately if they differ in scope, duration, or consideration. ## 2. Failure modes the skill is correcting - Analyst reviews duration or geography in the abstract without applying the governing jurisdiction’s actual enforceability standard, including whether the covenant is presumptively void, reasonableness-based, or conditioned on statutory requirements. - Analyst misses the threshold question of consideration when the covenant was signed after employment began, or after a material promotion or role change. - Analyst treats a confidentiality clause as routine without testing whether its breadth effectively prevents the executive from working in the industry at all. - Analyst identifies the governing law but does not test whether the forum allows blue-penciling, reformation, or total invalidation, which changes the challenge posture. - Analyst ignores any tolling, forfeiture, repayment, or non-solicit linkage that can extend the practical burden of the covenant. - Analyst states conclusions without tying them to the controlling authority that supports the proposition. ## 3. Legal frameworks / domain conventions that apply - Governing law controls the analysis; cite the controlling statute, regulation, or leading case for enforceability, consideration, and judicial modification rules. - Many jurisdictions require specific statutory prerequisites for employee non-competes, including earnings thresholds, notice requirements, or limitations tied to legitimate business interests. - Mid-employment restraints often require new and independent consideration; continued employment alone may be insufficient in some jurisdictions. - A post-promotion covenant may need fresh execution if the new role materially changes duties, compensation, or access to confidential information. - Reasonableness review typically focuses on legitimate business interest, duration, geographic scope, and activity scope; overbreadth in any one dimension can defeat enforceability. - A confidentiality provision can function as a de facto non-compete if it sweeps in general skills, publicly available information, or ordinary industry knowledge without standard carve-outs. - Some jurisdictions permit judicial narrowing; others invalidate the overbroad restraint or the entire agreement. The remedy rule is part of the enforceability analysis, not an afterthought. - Tolling or extension language may convert an otherwise facially limited restriction into a materially longer restraint in practice. - Ancillary clauses may alter risk: non-solicit provisions, garden-leave language, clawback or repayment obligations, and remedies provisions can affect how the covenant is challenged and negotiated. ## 4. Analytical scaffolds - Start with an overall enforceability assessment that states, in one sentence, whether the agreement appears likely enforceable, vulnerable, or likely unenforceable under the governing law. - Issue-by-issue analysis: - Quote or paraphrase the operative restriction language in neutral terms. - State the controlling legal standard with authority. - Apply the facts to the standard. - Identify the defect or enforcement risk. - State the practical consequence for the executive. - Assign an ordinal severity label from a consistent scale used throughout the memo. - Consideration analysis: - Determine when the agreement was signed relative to hire date, promotion date, or any material change in employment. - Assess whether the source documents show new consideration, continued employment, bonus, equity, promotion, or another legally relevant exchange. - Flag any mismatch between the covenant’s execution date and the executive’s actual role or compensation at the time. - Duration and scope analysis: - Test the restriction period, covered territory, and prohibited activities against the governing jurisdiction’s limits. - Evaluate whether the restriction reaches beyond the employer’s legitimate business interests or effectively blocks ordinary employment. - Confidentiality de facto non-compete analysis: - Examine the definition of confidential information, carve-outs, exceptions, and use restrictions. - Flag provisions that prohibit use of broadly acquired know-how, industry skills, or public information. - Remedy and modification analysis: - State whether the jurisdiction permits blue-pencil, reformation, or no modification. - Explain how that rule affects leverage, litigation posture, and settlement strategy. - Downstream consequence analysis: - For each issue, tie the defect to a real-world consequence such as injunction risk, employment mobility limits, negotiation leverage, or litigation exposure. - Authority discipline: - Do not state a legal proposition without naming the controlling authority supporting it. ## 5. Vertical / structural / temporal relationships - Treat timing as a core part of the analysis: execution date, start date, promotion date, amendment date, and termination date can each change enforceability. - If the materials include multiple restrictive covenants, analyze how they interact vertically: non-compete, non-solicit, confidentiality, invention assignment, clawback, and repayment terms may reinforce or undermine one another. - If the agreement incorporates other documents by reference, check those documents for definitions, exceptions, or remedies that affect the covenant’s reach. - If the covenant applies during employment and after employment, separate those obligations; in-employment loyalty restrictions are not analyzed the same way as post-employment restraints. - If one provision extends another’s practical duration, make that relationship explicit. ## 6. Output structure conventions - Write an enforceability memorandum, not a generic list. Begin with a short overall assessment. - Use a clear ordinal severity scale defined once at the top of the memo and apply it uniformly to every issue. - Organize the body by prioritized issues, with each issue presented in the same order: - Issue title and severity - Restriction language or clause summary - Governing authority - Analysis - Practical consequence - Recommended next step - When multiple jurisdictions, time periods, or covenants are in scope, separate them into distinct numbered issues rather than blending them. - Conclude with a concise Recommended Actions block that assigns an action, a responsible role, and a timing anchor tied to the current negotiation or litigation posture. - Keep the memo concise but complete; prioritize the defects most likely to affect enforceability, leverage, or remediation strategy.