As many people know, we have a tremendous amount of experience successfully defending Florida non-compete cases. But we also have experience successfully enforcing non-compete agreements under Florida law.
Often, plaintiffs in non-compete cases make a fundamental mistake in hiring the wrong attorney. Let me explain: Over the past several years, I have encountered a number of attorneys who specialize in enforcing non-compete agreements. These attorneys typically work for large firms, particularly large firms that focus on labor and employment litigation. As a practical matter, many of these attorneys have very limited litigation experience and a very limited skill-set.
Think about it: Many attorneys who specialize in enforcing non-compete agreements are used to having it easy. As a starting point, Florida law supports aggressive enforcement of non-compete agreements in many instances. It is easier to enforce a non-compete agreement in Florida than it is in virtually any other state. So, right of the bat, that gives the prosecution an advantage.
Next, consider the disparity in resources between the parties: The plaintiff is typically a corporate entity, whereas the defendant is typically an individual. The plaintiff has far more resources.
Then consider the merits: In certain instances, the plaintiff has the defendant dead to rights: For example, the defendant stole a customer list. Or, the customer relationships are exclusive and highly protectable. In these instances, the plaintiff has a tremendous advantage right from the start.
Not surprisingly, many attorneys who specialize in enforcing non-compete agreements under Florida law are quite successful in doing so. They win far more often than they lose. They have an impressive track record. But if you look a bit closer, that track record is not based on their litigation abilities or knowledge and facility with the law. It’s because they’ve had it easy. It’s like the New England Patriots playing against a high school football team. It’s not even a contest.
The upshot of this: If you need to enforce a non-compete agreement in a slam dunk case against some low level employee who has no resources, then you can hire any halfway decent lawyer and you should be fine. You don’t need my help. So when do you need my help? I’ll tell you.
If you are going to enforce a non-compete agreement against a high-level employee who has resources, then you should call me. If you are going to enforce a non-compete agreement and plan on suing not only the ex-employee but also his new company (and the company will fight back), then you should call me. If you are going to enforce a non-compete agreement and it could get ugly, then you should call me.
Here’s why: Many lawyers who specialize in enforcing non-compete agreements have very limited experience. They are accustomed to filing a lawsuit and forcing a quick settlement. Either they sue and the defendant immediately comes to the table, or, they sue and get a preliminary injunction and it’s game over. For hundreds of lawyers at large firms, this represents most of their litigation experience. That is a tremendous problem.
These lawyers cannot litigate the hard cases against an opponent who has resources and will fight back. For all practical purposes, they do not have the right knowledge, experience or skill-set to address the following:
- Preparing for a difficult preliminary injunction hearing
- Losing a difficult preliminary injunction hearing
- Defending against an appeal of a preliminary injunction
- Discovery tailored toward an end game (summary judgment/trial)
- Summary judgment briefing
- Proving damages
- Pre-trial process
Here’s the bottom line: If it’s an easy case against a low-level employee who has no resources, then any halfway decent attorney should do. But if it’s a tough case or a case against a serious adversary, proceed with caution. I have a tremendous amount of experience in this arena. I have defended tough non-compete cases and made them very, very ugly. Here is a concrete example:
In Moon v. Medical Technology Associates (MDFL), we sued for a declaratory judgment holding several non-compete agreements unenforceable. We sued first to force the case into federal court.. If the attorneys on the other side were smart, they would have moved to dismiss the case based on forum selection clauses. Three of the four plaintiffs’ contracts contained mandatory forum selection clauses for Pinellas County, Florida. When a contract says Pinellas County, that means Pinellas County. There’s no way into federal court. The fourth plaintiff’s contract said Pinellas County or the Middle District of Florida – Tampa.
So we rolled the dice and filed a declaratory judgment action in the MDFL – Tampa before they could sue us and drag us into Pinellas County Circuit Court. At this point, the correct move for the Defendant would have been to move for dismissal based on the forum selection clauses. And although one contract did provide for either the MDFL or Pinellas County, that would have been dismissed as well. Consider the following: The court has to dismiss 3 of the plaintiffs for improper forum. The fourth plaintiff can litigate in either one. So there is nothing unreasonable about dismissing the fourth plaintiff as well so the entire case can be litigated in Pinellas County. Further, it was a declaratory judgment action. And federal courts have tremendous discretion to decline jurisdiction in declaratory judgment matters.
But the defendant did not make the right move. Instead, they answered and counter-sued in federal court. They then sought and won a preliminary injunction enforcing the various non-compete agreements. But from there, everything went down hill for them:
We appealed the injunction to the United States Court of Appeals for the Eleventh Circuit and won. The case came back down to the district court on remand and there was a second preliminary injunction hearing. We won that hearing and the court entered a scathing order against the other side (accusing them of filing bogus declarations at the outset of the case). We then won partial summary judgment in another order that was highly critical of the other side. We then moved into the pre-trial phase and filed a motion to exclude all of their damages evidence (if it could even be called evidence!). On the brink of trial, the case settled.
I can guarantee you that opposing counsel in that case thought it was going to be another easy non-compete case. They thought wrong. Take a look at the docket here: Electronic Case Filing | U.S. District Court – Middle District of Florida.
So it’s a cautionary tale: If you have to enforce a non-compete agreement and you anticipate that it will get ugly, hire an attorney has experience litigating ugly non-compete cases. We do. On both sides. The video below lays out my strategy for successfully enforcing Florida non-compete agreements.
Jonathan Pollard is a trial lawyer and business litigation attorney based on Fort Lauderdale, Florida. He focuses his practice on competition law and has extensive experience litigating non-compete, trade secret and antitrust claims. He is licensed in all Florida federal and state courts and routinely represents clients in Miami, Fort Lauderdale, West Palm Beach, Fort Myers, Tampa, Orlando and Jacksonville. His office can be reached at 954-332-2380.