“The obvious intention of one who sells a business and agrees not to compete with the buyer is to sell the goodwill of that business.”
How later courts described this case
- “The obvious intention of one who sells a business and agrees not to compete with the buyer is to sell the goodwill of that business.”
Written by the judges who cited it.
The opinion
GOODMAN, P.J.,
specially concurring.
4 1 While I concur in the majority opinion, I write separately to emphasize an important point. Over the years, employers have drafted restrictive covenants seeking to protect various employment interests, including employer goodwill and trade secrets. A literal reading of § 219A(A) and (B) would eliminate all kinds of restrictive covenants, including reasonable agreements, leaving intact only those prohibiting a terminated employee from directly soliciting the sale of goods or services from the established customers of his former employer. Such a literal interpretation of § 219A could suggest abandonment of §§ 217, 218, and 219, Oklahoma's existing statutes governing restraint-of-trade agreements, and Oklahoma's existing case law interpreting these statutes.
12 I write separately to emphasize that §§ 217, 218, 219, and 219A must be read and interpreted together within the context of Oklahoma's existing case law applying to restraint of trade. Existing interpretive case law, and the present case, establishes that application of these statutes to restrictive covenants must always be tested by application of the rule of reason, as fully enunciated in the majority opinion.
3 Finally, one finds much loose language in restraint of trade cases. Loewen Group Acquisition Corp. v. Matthews, 2000 OK CIV APP 109 , 12 P.3d 977 , could be construed as just such an example. As a member of Division Four when it issued Loewen, my interpretation of that opinion has always been that it reinforces the application of the doe-trine of the rule of reason to these restrictive covenants. Any invocation of the concept of "fairness" in Loewen should not be construed as an abandonment of the rule of reason or undue emphasis on the common-law rules of fairness. Indeed, based on subsequent restraint of trade cases, the rule of reason analysis appears to me to have replaced any fairness test.