CopyCited 28 times | Published | Supreme Court of Georgia | May 6, 2013 | 742 S.E.2d 702, 2013 Fulton County D. Rep. 1454, 107 U.S.P.Q. 2d (BNA) 2065, 37 I.E.R. Cas. (BNA) 390
...The 2011 act revising the law related to restrictive covenants in contracts does not apply to contracts entered into before May 11, 2011. See Ga. L. 2011, p. 399, § 5. Therefore, the act’s provision on judicial modification of restrictive covenants does not apply here. See OCGA §
13-8-54 (b).
CopyCited 7 times | Published | Supreme Court of Georgia | Sep 6, 2023 | 317 Ga. 206
...The
court then cited the GRCA’s directive that “a court shall not enforce
a restrictive covenant unless it is in compliance with [the Act],”
under which restrictive covenants must be “reasonable in time,
geographic area, and scope of prohibited activities.” Id. at 191 (1)
(quoting OCGA §§
13-8-53 (a),
13-8-54 (b))....
...restrictive covenants’” (citation omitted)). For example, the GRCA
tells courts to construe restrictive covenants “in favor of providing
reasonable protection to all legitimate business interests
established by the person seeking enforcement.” OCGA §
13-8-54 (a).
And, as now authorized by the 2010 constitutional amendment, it
21
expressly allows blue-penciling: if a court concludes that a
restrictive covenant violates the GRCA as written, the court “may
modify the restraint provision and grant only the relief reasonably
necessary” to protect the proponent’s legitimate business interests
and to “achieve the original intent of the contracting parties.” OCGA
§
13-8-54 (b)....
...22
i.e., those which do not comply with the GRCA—are against public
policy. Under the GRCA, such restrictive covenants are not only
“unlawful” but “void and unenforceable.” OCGA §
13-8-53 (d). See
also OCGA §
13-8-54 (b) (“In any action concerning enforcement of a
restrictive covenant, a court shall not enforce a restrictive covenant
unless it is in compliance with the provisions of Code Section 13-8-
53.”)....
...covenant through blue-penciling—“modify[ing]” the covenant and
“grant[ing] only the relief reasonably necessary” to protect
legitimate business interests and achieve the parties’ intent “to the
25
extent possible.” OCGA §
13-8-54 (b); see also OCGA §
13-8-53 (d).6
Our conclusion that Georgia courts may not apply foreign law
to enforce a restrictive covenant that would be deemed unreasonable
under Georgia law largely tracks our courts’ approach before the
GRCA and the corresponding constitutional amendment were in
force....
...trictive covenant
without reason. See Burbach,
363 Ga. App. at 192 (1) n.8 (“Although Georgia
courts may apply the ‘blue pencil’ doctrine and modify unreasonable restrictive
covenants, Georgia courts are not required to do so.”) (citing OCGA §
13-8-54
(b) (“[T]he court may modify the restraint provision.” (emphasis added by the
Court of Appeals)))....
...sonable protection to all legitimate
business interests established by the person seeking enforcement.” OCGA § 13-
8-54 (a). And the blue-penciling provision empowers a court to modify a
restrictive covenant for precisely those purposes. See OCGA §
13-8-54 (b).
Given this language, it is not obvious to us that a trial court’s discretion to
blue-pencil or not is wholly unbounded....
...restrictive covenants, but as we have shown above, the legislature
retained the consistent and longstanding view that unreasonable
restrictive covenants are against public policy and may not be
enforced by Georgia courts. See OCGA §§
13-8-53 (a), (d);
13-8-54
(b)....
