COURT OF CHANCERY

OF THE

STATE OF DELAWARE

MORGAN T. ZURN

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

August 31, 2023

Todd C. Schiltz, Esquire 

Faegre Drinker Biddle & Reath LLP

222 Delaware Avenue, Suite 1410

Wilmington, DE 19801

Andrea S. Brooks, Esquire

Wilks Law, LLC

4250 Lancaster Pike, Suite 200

Wilmington, DE 19805

RE: Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

Dear Counsel:

I write to address those aspects of defendant Eric Wilensky’s motion to 

dismiss that I did not resolve at oral argument on July 19, 2023.1 We have had 

occasion to speak several times over the past few months, and this letter is cabined 

to the enforceability of the restrictive covenants plaintiff Centurion Service Group, 

LLC (“Centurion”) asserts Wilensky breached. I therefore rely on the parties’ 

familiarity with the underlying dispute and the Employment Agreement. Wilensky

moved to dismiss Centurion’s single count for breach of Section 5(a) of the 

Employment Agreement, asserting that the provision is unenforceable and so 

Centurion failed to state a claim. For the reasons that follow, his motion is 

granted.

1 Docket Item (“D.I.”) 62. The motion to dismiss and briefing can be found at D.I. 33, 

D.I. 41, D.I. 42, D.I. 70, and D.I. 71. 
Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

August 31, 2023

Page 2 of 12

I begin with the prefatory issue of choice of law. As I explained from the 

bench on July 19, the Employment Agreement’s Delaware choice of law provision

is not necessarily binding.

2

 Following the Restatement (Second) of Conflict of 

Laws, Delaware courts do not enforce choice of law provisions when doing so 

would circumvent the public policy of another state that has a greater interest in the 

matter.3 Where a different state’s law would govern in the absence of a choice of 

law provision, where that state has a fundamental public policy regarding

restrictive covenants, and where that state has a materially greater interest in the 

matter, this Court will defer to that state’s law even in the face of a Delaware 

choice of law provision.4 Again, as explained from the bench, Illinois is the 

default state here: Illinois law would govern absent the governing agreements’ 

choice of law provisions.5If enforcement of the restrictive covenants would 

2 D.I. 73 at 6–8.

3 Cabela’s LLC v. Wellman, 2018 WL 5309954, at *7–10 (Del. Ch. Oct. 17, 2018); 

Ascension Ins. Hldgs., LLC v. Underwood, 2015 WL 356002, at *2–3 (Del. Ch. Jan. 27, 

2015).

4 HighTower Hldg., LLC v. Gibson, 2023 WL 1856651, at *5 (Del. Ch. Feb. 9, 2023); FP 

UC Hldgs., LLC v. Hamilton, 2020 WL 1492783, at *8 (Del. Ch. Mar. 27, 2020); 

Cabela’s, 2018 WL 5309954, at *7–10; Ascension, 2015 WL 356002, at *2–5.

5 D.I. 73 at 7 (“Centurion is an Illinois LLC with a principal place of business in Illinois, 

Wilensky is an Illinois resident, and the employment agreement was executed in Illinois. 

The alleged breaches appear to be centered in Illinois as well. Victori Group is 

headquartered in Illinois. TAB is an Illinois LLC, and Wilensky’s auction license is from 

the State of Illinois.”).
Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

August 31, 2023

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conflict with a fundamental policy of Illinois law and if Illinois has a materially 

greater interest in the issues here than Delaware, Illinois law governs.

6

 

Having reviewed the Illinois law the parties submitted in supplemental

briefing, it seems Illinois common law and Delaware common law are mostly in 

step as to the enforceability of restrictive covenants.

7

Illinois law has an additional 

statutory restriction on the application of restrictive covenants to low wage 

workers, but this restriction does not apply to Wilensky.

8 While Illinois enacted 

additional restrictions in 2022, these do not apply to Wilensky’s agreement.9 I see 

no basis to disturb the Employment Agreement’s choice of Delaware law. I thank 

the parties for their supplemental briefing on Illinois law.

6 HighTower Hldg., 2023 WL 1856651, at *5; Focus Fin. Partners, LLC v. Holsopple, 

241 A.3d 784, 820 (Del. Ch. 2020) (“The court must consider whether applying the 

choice-of-law provision would displace the default state’s law on a substantive issue 

where the default state has a materially greater interest than the chosen state.”).

7 Wilensky conceded that the outcome under Illinois and Delaware law is the same. D.I. 

33 at Br. 4 n.1. 

8 See 820 Ill. Comp. Stat. Ann. 90/5, 10 (2017) (prohibiting employers from entering 

covenants not to compete with any low-wage employee and defining “low-wage 

employee” as an employee who earns either the hourly rate required by federal, State or 

local minimum wage law or $13.00 per hour).

9 See 820 Ill. Comp. Stat. Ann. 90/5 (2022) (defining “covenant not to compete” and 

“covenant not to solicit” as agreements entered into after January 1, 2022, the effective 

date of the act).
Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

August 31, 2023

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Delaware courts do not mechanically enforce noncompetition or 

nonsolicitation agreements.10 “[A]greements not to compete must be closely 

scrutinized as restrictive of trade.”11 Delaware courts “carefully review” 

noncompete and nonsolicit provisions to ensure that they “(1) [are] reasonable in 

geographic scope and temporal duration, (2) advance a legitimate economic

interest of the party seeking its enforcement, and (3) survive a balancing of the 

equities.”12 “Delaware courts have favored the public interest of competition in 

their review of noncompetition agreements.”13 Where noncompete or nonsolicit 

covenants are unreasonable in part, Delaware courts are hesitant to “blue pencil” 

such agreements to make them reasonable.14

Section 5(a) states:

Non-competition. The Executive agrees, in consideration for the 

obligations of the Company hereunder, including, without limitation, 

any payments and benefits to be given to the Executive, that during 

the Restricted Time he will not (other than as a director, officer, 

10 Kodiak Building P’rs, LLC v. Adams, 2022 WL 5240507, at *4 (Del. Ch. Oct. 6, 2022).

11 Faw, Casson & Co. v. Cranston, 375 A.2d 463, 466 (Del. Ch. 1977).

12 FP UC Hldgs., 2020 WL 1492783, at *6 (internal quotation marks omitted) (quoting 

Lyons Ins. Agency, Inc. v. Wilson, 2018 WL 4677606, at *5 (Del. Ch. Sept. 28, 2018)).

13 Elite Cleaning Co., Inc. v. Capel, 2006 WL 1565161, at *4 (Del. Ch. June 2, 2005) 

(citing Tristate Courier & Carriage, Inc. v. Berryman, 2004 WL 835886, at *15 (Del. 

Ch. Apr. 15, 2004)).

14 Kodiak Building P’rs, 2022 WL 5240507, at *4 n.49 (collecting cases and explaining 

the basis for this Court’s hesitancy to blue pencil).
Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

August 31, 2023

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employee, agent or consultant of the Company), directly or indirectly 

own any interest in, manage, control, participate in (whether as an 

officer, member, manager, director, employee, consultant, advisor, 

partner, agent, representative or otherwise), consult with, render 

services for, or in any other manner engage in any business engaged 

directly or indirectly in a Competitive Activity in the Restricted Area, 

including, without limitation, the provision of any other services 

which the Company was designing, developing, selling or providing, 

or planning to design, develop, sell or provide, in either case, at any 

time while the Executive was employed by the Company, nor assist or

encourage anyone in doing the same, unless the Executive shall have 

obtained the prior written consent of the Board, provided, however, 

that the foregoing restrictions shall not be construed to prohibit 

ownership by the Executive of not more than five percent (5%) of any 

class of equity securities of any corporation having a class of equity 

securities registered pursuant to the Securities Exchange Act of 1934, 

as amended, which are publicly owned and regularly traded on any 

national securities exchange or over the-counter market if such 

ownership represents a personal investment and neither the Executive 

nor any group of persons including the Executive either directly or 

indirectly in any way manages or exercises control of any such 

corporation, guarantees any of its financial obligations or otherwise 

takes part in its business other than exercising his right as an equity 

holder or seeks to do any of the foregoing.15

Section 1 supplies the following definitions: 

(c) “Business” shall mean (i) the buying and selling of medical 

equipment via auctions and private sales, (ii) providing medical 

surplus management for healthcare facilities including certified 

appraisals, trade-in value verification, asset and facility inventories, 

relocations and closures for such facilities, and (iii) any other business 

15 D.I. 1 Ex. 1 § 5(a) [hereinafter “Agr.”]. 
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Civil Action No. 2023-0422-MTZ

August 31, 2023

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activities in which the Company, at any time during the Term, is 

engaged or is actively planning to engage in.

(e) “Competitive Activity” shall mean an activity that constitutes 

being engaged in the Business or engaged in any business that is 

competitive with the Business in the Restricted Area.

(i) “Restricted Area” shall mean any area within the United States of 

America, and any other countries within the world where the 

Company is then actively soliciting and engaging in (or actively 

planning to solicit and engage in) the Business.

(j) “Restricted Time” shall be the Term and the two (2) year period 

immediately following the Termination Date.

(l) “Term” shall mean the period beginning on the Effective Date and 

ending upon the first to occur of the Expiration Date or the 

Termination Date.16

In so many words, Section 5(a) prevents Wilensky from engaging in any business 

in turn directly or indirectly engaged in i) Centurion’s business, ii) any business 

competitive with Centurion’s business, iii) any business Centurion planned to 

engage in at any time during Wilensky’s Term, or (iv) any business competitive 

with any business Centurion planned to engage in at any time during Wilensky’s 

Term, for two years after the Termination Date, anywhere in the United States and 

any other countries where Centurion is “actively soliciting and engaging in” its 

actual or planned business. 

16 Id. § 1.
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August 31, 2023

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Wilensky asserts that Section 5(a) is overbroad in its geography and 

duration, that it fails to advance a legitimate business interest, and that it is vague. 

I begin with geography and duration.

When evaluating the reasonableness of a restrictive covenant, a court 

must consider how the temporal and geographic restrictions operate 

together. The two dimensions necessarily interact. To be barred for 

five years from working in a single county leaves open opportunities 

for the former employee in surrounding areas. To be barred from an 

entire state for a shorter period, such as a year or less, leaves open the 

possibility that the former employee could live off savings, take a long 

vacation, or enjoy some garden leave. All else equal, a longer 

restrictive covenant will be more reasonable if geographically 

tempered, and a restrictive covenant covering a broader area will be 

more reasonable if temporally tailored. A restrictive covenant that is 

maximally broad across both dimensions requires exceptional 

justification. To examine each dimension individually overlooks the 

interaction and enables employers to justify restrictions that are 

unreasonably onerous in combination.17

Here, before analyzing the geographic and temporal scopes together, I must 

first resolve the parties’ interpretive difference over the geographic scope of the 

Restricted Area. Wilensky asserts the geographic scope encompasses conduct 

anywhere in the United States, plus in foreign countries where Centurion is 

actively soliciting and engaging in its business or planning to do so. Centurion 

parses the definition of Restricted Area as limited to any area, either in the United 

17 Del. Elevator, Inc. v. Williams, 2011 WL 1005181, at *8 (Del. Ch. Mar. 16, 2011).
Centurion Service Group, LLC v. Eric Wilensky,

Civil Action No. 2023-0422-MTZ

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States or abroad, in which Centurion is actively soliciting and engaging in its 

business or planning to do so. Centurion’s reading gives meaning to “any area 

within” the United States, but Wilensky’s does not; Centurion’s is the proper 

reading.18 Still, even Centurion’s reading results in a nationwide ban: as 

Centurion alleged, “Centurion engages in business nationwide, works with 

customers selling equipment in over 40 states, and markets to potential customers 

and buyers throughout the United States.”19

“Area(s)” where Centurion does business are the core of Section 5(a)’s 

geographic scope, but not the entirety. “Area” is “amorphous and ill-defined.”20 

And the “Restricted Area” mentioned in Section 5(a) encompasses not only areas 

where Centurion actually engages in or solicits business, but also where Centurion 

“is then actively planning to solicit and engage in” business.21 And the term 

“Business” includes “any other business activities in which the Company, at any 

time during the Term, is engaged or is actively planning to engage in.”

22

 So, 

18 Kuhn Constr., Inc. v. Diamond State Port Corp., 990 A.2d 393, 396–97 (Del. 2010) 

(requiring Delaware courts to “give each provision and term effect, so as not to render 

any part of the contract mere surplusage”).

19 D.I. 1 at Compl. ¶ 11 [hereinafter “Compl.”].

20 See Del. Elevator, 2011 WL 1005181, at *9.

21 Agr. § 1(i).

22 Agr. § 1(c).
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Section 5(a)’s geographic scope includes not only “areas” where Centurion does 

business, but also any “area” where Centurion actively planned to solicit and 

engage in any business activities in which it was engaged or actively planning to 

engage at any time during Wilensky’s Term.

“Whether the duration of a restrictive covenant is reasonable turns on the 

specific facts before the Court . . . .”

23 Section 5(a) bans Wilensky for two years

from competing nationwide, and in any additional “area” in which Centurion 

conducts, solicits, or plans to conduct or solicit any actual activity or activity

planned at any time during Wilensky’s seventeen-year employment.

24

 Under a 

holistic assessment, this geographic and temporal scope is not reasonable.25 The 

“area” contemplated in Section 5(a) casts a limitless net over Wilensky in both

scope of geography and scope of conduct. Wilensky is prohibited from working 

23 Ainslie v. Cantor Fitzgerald, L.P., 2023 WL 106924, at *19 (Del. Ch. Jan. 4, 2023).

24 D.I. 33 at Br. 1.
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not just in “areas” where Centurion conducts its core business of medical 

equipment sales and surplus management, but also “areas” Centurion might have 

thought about entering, and where Centurion does or thought about doing any other 

activity. Wilensky is similarly prohibited from working in not just Centurion’s 

actual field, but also any field Centurion planned to enter. Like in FP UC 

Holdings, “in light of the [Employment] Agreement’s failure to define precisely 

what [Centurion]’s ‘business’ is, one could argue that [Wilensky] would be in 

breach of the non-compete if he were employed [in the medical sale and surplus] 

field anywhere in the country” or abroad.26 “Given the vast geographic scope of 

the non-compete, [Centurion] must demonstrate it is protecting a particularly 

25 Centurion relies on cases from 2007 and earlier for the proposition that a two-year 

covenant is reasonable. See Weichert Co. of Pa. v. Young, 2007 WL 4372823, at *4 (Del. 

Ch. Dec. 7, 2007); Tristate Courier & Carriage, Inc. v. Berryman, 2004 WL 835886, at 

*11 (Del. Ch. Apr. 15, 2004); Copi of Del., Inc. v. Kelly, 1996 WL 633302, at *5 (Del. 

Ch. Oct. 25, 1996). These cases predate Delaware Elevator’s prescription to consider the 

time period and geography together, and considered them separately. Del. Elevator, 2011 

WL 1005181, at *9; see Weichert Co. of Pa., 2007 WL 4372823, at *3; Tristate Courier 

& Carriage, 2004 WL 835886, at *11; Copi of Del., 1996 WL 633302, at *5; see also All 

Pro Maids, Inc. v. Layton, 2004 WL 1878784, at *5 n.23 (Del. Ch. Aug. 9, 2004)

(offering dicta on two-year restrictions “covering limited areas” given the one-year 

period in that case was conceded to be reasonable).

26 2020 WL 1492783 at *7. 
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August 31, 2023

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strong economic interest to persuade the Court that the non-compete is 

enforceable.”

27

 “A greater scope must be supported by a greater interest.”

28

Centurion has failed to demonstrate any interest worth protecting with

Section 5(a). “[T]his Court has enforced non-competes with a nationwide scope, 

but only in instances where the competing party agrees, in connection with the sale 

of a business, to stand down from competing in the relevant industry . . . anywhere

. . . for a stated period of time after the sale.”29 This is not such an instance:

Wilensky entered into the Employment Agreement in 2018,

30 when he was already 

employed by Centurion.

31 Centurion’s Complaint gives lip service to Wilensky’s

“finding deals” and “foster[ing] relationships,” and to his access to Centurion’s 

confidential information including lists of buyers, sellers, and vendors.32 These 

vague and everyday concerns do not demonstrate Section 5(a) is warranted by a

particularly strong economic interest. Centurion offers no facts to support that 

27 Id. 

28 Ainslie, 2023 WL 106924, at *16.

29 FP UC Hldgs., 2020 WL 1492783, at *7. 

30 Compl. ¶ 2.

31 See D.I. 33 at Br. 1 (indicating Wilensky began working for Centurion in 2005 and was 

terminated in 2022); see also Kodiak Building P’rs, 2022 WL 5240507, at *7 (“Delaware 

law also contemplates denying injunctive enforcement of an overbroad restrictive 

covenant because of the power dynamic between an employer and employee at the time 

of signing.”).
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August 31, 2023

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Section 5(a) is needed to protect any “particularly strong economic interest” from 

otherwise lawful competition by Wilensky. And the acknowledgements Wilensky 

assented to in Section 5(g) of the Employment Agreement cannot carry 

Centurion’s burden to demonstrate Section 5(a) is necessary.33

I conclude Section 5(a) is unenforceable. I decline to blue pencil it.34 

Wilensky’s motion to dismiss is GRANTED.

Sincerely,

/s/ Morgan T. Zurn 

Vice Chancellor

MTZ/ms

cc: All Counsel of Record, via File & ServeXpress

 

32 Compl. ¶¶ 17, 26, 27, 28.

33 See Kodiak Building P’rs, 2022 WL 5240507, at *5–7 (concluding a “mechanical 

submission to an employee’s promise not to challenge a restrictive covenant would fly in 

the face of the public policy that compels review of that covenant”).

34 Id. at *4 n.49.