USA – IDAHO Trends and Developments Contributed by: Tyler Anderson, Carsten Peterson, Tracy Wright and Christian Moak, Hawley Troxell
is unreasonable in some respect, a court may modify the covenant to make it reasonable rather than invali - date it. However, courts will not rewrite an agreement by adding essential terms. In practice, courts are not inclined to blue-pencil an agreement. The rebuttal presumptions in Idaho statutes techni - cally only apply to non-compete agreements. No Idaho appellate court has analysed the statutes in the context of non-solicitation agreements related to employment. Still, a non-solicitation agreement must be narrowly tailored and limited in duration. An agree - ment that prohibits a former employee from solicit - ing all customers of a company, including those the employee did not know or work with, is subject to challenge and likely unenforceable. See Frieburger v J - UB Engineers , Inc , 141 Idaho 415, 111 P3d 100 (2005). In the context of other types of agreements (eg, pur - chase and sale agreements containing non-solicita - tion clauses), public policy regarding the freedom to contract may be more applicable. “Freedom of con - tract is a fundamental concept underlying the law of contracts and is an essential element of the free enter - prise system”. See Morrison v Nw Nazarene Univ , 152 Idaho 660, 661, 273 P3d 1253, 1254 (2012). The Idaho Supreme Court recently issued an opinion regarding how courts are to interpret what is – and what is not – “solicitation” for purposes of enforcing non-solicitation agreements. See Insure Idaho LLC v Horn , 572 P3d 183 (2025). Until the Horn decision came out, passively accepting business could be considered “solicitation”. In Horn , the Idaho Supreme Court held that “the plain meaning of solicitation requires some overt act initiated by one party, seeking something in return from a second party”. The Court went on to hold that “[t]o be clear, the mere accept - ance of business, without more, does not fall within the plain meaning of solicitation; nor can a court infer solicitation from the simple communication between parties alone”. Moreover, the Court held that it is unreasonable to infer solicitation from the sole fact that one accepted the business of another. The Horn case is recent enough that no clarifying authority exists regarding evidence required to prove
“solicitation” under the new standard. Yet, based on the Court’s holding in Horn , a party seeking to enforce a contractual non-solicitation clause likely would have to put forth evidence (most likely, either testimony by former clients or communications between the offend - ing party and those clients) showing, as the Court in Horn put it, “affirmative action that entreats, implores, pleads, or petitions for the business at issue” by the offending party. In the litigation context, the party seeking to enforce a contractual non-solicitation clause could subpoena communications and depose the former clients in an attempt to obtain such evi - dence (assuming it exists). Careful consideration should be given to the likelihood of obtaining evidence consistent with the Court’s hold - ing in Horn – prior to filing suit. If that evidence does not exist (or it cannot be obtained despite all efforts to do so), a court could dismiss the suit and award fees to the offending party (as happened in the Horn case). Idaho Supreme Court Attorney Fees IC Section 12-121 allows for the court, in any civil action, to “award reasonable attorney’s fees to the prevailing party or parties when the judge finds that the case was brought, pursued or defended frivolous - ly, unreasonably or without foundation”. An analysis of recent Idaho Supreme Court decisions awarding attorney’s fees shows the potentially expansive appli - cation of IC Section 12-121, which appellants should factor into their decision when considering filing an appeal. Hyde v Oxarango concerned an appeal from the district court regarding a dispute over a family farm and the district court’s order dismissing the ensuing complaint. Rochelle Oxarango, Gretchen Hyde and Dinah Reaney are sisters and owners of a family farm - ing and ranching business that is managed in a lim - ited partnership. Oxarango and her husband, Robert Oxarango, are general partners along with the sisters’ father, James Little. Hyde and Reaney are limited part - ners. Hyde and Reaney sued the Oxarangos, assert - ing derivative and direct claims relating to breach of fiduciary duty and sought expulsion of the Oxarangos as general partners. See Hyde v Oxarango , Docket No 51625, 2026 WL 478542, *1 (20 February 2026).
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