concurring specially.
In Singer v. Habif, Arogeti & Wynne, 250 Ga. 376, 377 (1) (297 SE2d 473) (1982), only a plurality of the Court held that the covenant in the employment agreement, prohibiting the employee from accepting employment from clients of the employer without having solicited them, was unreasonable and unenforceable. That holding was, however, adopted by a majority of the Court in Orkin Exterminating Co. v. Walker, 251 Ga. 536, 539 (2b) (307 SE2d 914) (1983). It would also appear to have been adopted by a majority in W. R. Grace & Co. v. Mouyal, 262 Ga. 464 (422 SE2d 529) (1992), although it was also held in that case that the three-element test of duration, territorial coverage, and scope of activity is not a rigid test; instead, it is to be used as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.
In any event, this holding is in direct conflict with Bennett v. Ga. Indus. Catering Co., 222 Ga. 127 (1) (149 SE2d 81) (1966); Coffee System of Atlanta v. Fox, 226 Ga. 593, 596 (4) (176 SE2d 71) (1970); Marcoin, Inc. v. Waldron, 244 Ga. 169, 171 (1) (259 SE2d 433) (1979); and Hancock v. Fickling & Walker Ins. Agency, 248 Ga. 608, 610 (1) (284 SE2d 414) (1981), none of which was cited in the later decisions. The better rule in my view is the one applied in the earlier decisions, where the covenant against “acceptance” as well as “solicitation” is not unreasonable. It is no doubt difficult in practice to distinguish between the two, or to draw a line. If the former employee is not prohibited from “accepting” but can only be prohibited from “soliciting,” the determination of whether the employee merely accepted or instead solicited the former employee’s customer will require resolution of a factual dispute. In addition, would it be “accepting” the business of a customer of the former employer who responds to a general newspaper advertisement?