Florida Non-Compete Agreements – Sale of a Business

Fort Lauderdale, Florida non-compete attorney Jonathan Pollard discusses non-compete agreements connected to the sale of a business. Florida courts routinely and aggressively enforce non-compete agreements, but nowhere is that more evident than in the sale of a business context.  Specific topics covered include differences in temporal limitations between employee vs. sale of a business non-compete agreements and legitimate business interests that can be used to support and enforce a non-compete agreement in the sale context.  Particular attention is paid to the importance of goodwill in litigating sale of a business non-compete agreements.

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives, high level employees who are switching companies, or, who have started their own ventures and individuals who have sold businesses.  Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases.

Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts.

He is licensed in all Florida state courts, United States District Courts for the Southern District of Florida, Middle District of Florida and Northern District of Florida and the Eleventh Circuit Court of Appeals.  He 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.

 

 

Florida Non-Compete Agreements: Responding to Cease & Desist Letters

Fort Lauderdale, Florida non-compete and trade secrets lawyer Jonathan Pollard discusses responding to cease and desist letters.  In many non-compete and trade secrets cases, a cease and desist letter often represents the first stage of the dispute.

The classic scenarios involve (1) an employee who left a company and is now working for a competitor (2) an employee who left a company and started his own venture (3) a business owner who sold her company and is now seeking to get back into the industry.  In all of these instances, there will likely be a non-compete and/or trade secret dispute.  The plaintiff in these cases most often begins the process by sending a cease and desist letter.  These letters rarely evaluate the actual enforceability of the non-compete agreement at issue.  Instead, they tend to contain boilerplate allegations:  You signed a non-compete agreement.  Now you are competing against us in violation of that agreement.  We will sue you.

When faced with a cease and desist letter in a non-compete context, there are three basic options:  (1) do nothing (2) send a response or (3) sue first.  This video discusses all of those options in greater detail.


Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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.

Florida Non-Compete Agreements: Playing Offense

Fort Lauderdale, Florida non-compete and trade secret attorney Jonathan Pollard discusses how to defend non-compete and trade secret claims aggressively by playing offense.  Specific topics discussed include:

  • Differences between litigating non-compete claims in federal vs. state court
  • Importance of suing first where the forum may be of paramount importance
  • Importance of an aggressive, comprehensive defense strategy
  • Importance of affirmative claims for relief including declaratory judgment claim

The bottom line:  This is a particularly complex area of law.  That complexity creates significant risk for lawyers who lack the experience and the ability and their clients.  On the flip side, the complexity allows good lawyers with the right experience to do what they do best:  Come up with creative solutions.  In this area of law, there is tremendous room for strategy and creativity, particularly before the litigation ever begins.  The best strategy for defending non-compete and trade secret claims is to aggressively play offense.  This often involves suing for a declaratory judgment or crafting other affirmative claims for relief, particularly where necessary to get the case into federal court.

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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. For more information, visit http://www.pollardllc.com.

Non-Compete Appeals: A Recent Eleventh Circuit Decision

This is my case, so I won’t be opining on it at length.  The Middle District of Florida entered a sweeping preliminary injunction barring my clients from doing business throughout the country.  We appealed.  We won.  Non-compete appeals are tough, particularly where you don’t win a stay of the injunction.  The Eleventh Circuit’s decision is below.

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 14-11155
ALFRED MOON, ALFRED MOON, JR., CHERYL MOON, MEGAN WHITE, Plaintiffs – Counter Defendants – Appellants,

versus

MEDICAL TECHNOLOGY ASSOCIATES, INC., Defendant – Counter Claimant – Appellee

Before TJOFLAT, JORDAN and COX, Circuit Judges. PER CURIAM:

This case considers whether the district court erred by granting a preliminary injunction which enjoined the Plaintiffs—Alfred Moon, Alfred Moon, Jr., Cheryl Moon, and Megan White—from violating restrictive covenants in their employment agreements with Medical Technology Associates, Inc. (“MTA”). Because the district court made findings of fact without allowing an evidentiary hearing, we vacate the district court’s preliminary injunction and remand for further proceedings.

I. Facts and Procedural History

The Plaintiffs in this suit each signed employment agreements when they began working for MTA. While the terms of the agreements varied, each contained restrictive covenants preventing the disclosure of confidential information, solicitation of MTA’s customers, and restricting competition with MTA.

Over a three year period, each of the Plaintiffs left employment with MTA and began working for a similar company called Advanced Compliance Solutions. Following their departure, MTA sent the Plaintiffs “cease and desist” letters claiming they were violating the terms of the restrictive covenants and threatening legal action.

In response, the Plaintiffs filed this suit seeking a declaratory judgment that they were not violating the restrictive covenants or that the restrictive covenants were invalid. MTA responded by filing a counter-claim for an injunction and moved for a preliminary injunction enjoining the Plaintiffs from violating the restrictive covenants. The parties submitted various conflicting affidavits related to the motion for a preliminary injunction. The Plaintiffs moved for an evidentiary hearing on the motion. The district court denied the motion, but held a non-evidentiary oral argument on the motion. After the oral argument, the court issued an order granting the preliminary injunction. The Moons appeal.

II. Issues on Appeal

On appeal, the Plaintiffs contend that the district court erred by issuing the preliminary injunction. Specifically, they contend that the district court erred by not holding an evidentiary hearing, erred by holding that MTA was likely to succeed on the merits, and erred by holding that MTA would be irreparably harmed absent a preliminary injunction.

III. Standard of Review

We review the decision to grant a preliminary injunction for abuse of discretion. “In so doing, we review the findings of fact of the district court for clear error and legal conclusions de novo. This scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion that is clearly unreasonable or incorrect.” Forsyth Cnty. v. U.S. Army Corps of Engineers, 633 F.3d 1032, 1039 (11th Cir. 2011).

IV. Discussion

A. The district court should have conducted an evidentiary hearing.

The Plaintiffs contend that the district court erred by denying their motion for an evidentiary hearing and deciding the preliminary injunction motion without an evidentiary hearing. An evidentiary hearing is not always required before the issuance of a preliminary injunction. All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1538 (11th Cir. 1989). But, “[w]here the injunction turns on the resolution of bitterly disputed facts, however, an evidentiary hearing is normally required to decide credibility issues.” Id.

To reach its conclusion in this case, the district court made extensive factual findings. In fact, the district court’s order—which MTA drafted—includes almost five pages of factual findings. However, many of these facts are disputed by the parties’ conflicting affidavits. For example, the Plaintiffs dispute whether they competed in the restricted area (R. 18-3 at 4–5), whether they solicited MTA’s customers (18-8 at 2), and whether MTA’s customer relationships were substantial (R. 18-3 at 5, R. 18-6 at 5, R. 18-7 at 3). Additionally, the district court’s order states that the Plaintiffs “admittedly used confidential information to steer business away from MTA.” (R. 35 at 5.) But the Plaintiffs never made this admission and in fact stated they did not use confidential information. (R. 18-3 at 5–6, R. 18-5 at 2.) Despite these conflicts, the district court’s order neither references the Plaintiffs’ affidavits, nor explains why the Plaintiffs’ affidavits are not credible.

In this case, “where much depends upon the accurate presentation of numerous facts, the trial court erred in not holding an evidentiary hearing to resolve these hotly contested issues.” Id. In the face of two plausible affidavits “submitted to demonstrate a contested issue, the district court is not at liberty to accept one construction of the evidence and reject the other without the benefit of an evidentiary hearing.” CBS Broadcasting Inc. v. EchoStar Communications Corp., 265 F.3d 1193, 1207 (11th Cir. 2001). On remand, the district court should conduct an evidentiary hearing. And, the movant—in this case MTA—must clearly satisfy the burden of persuasion as to each element of the preliminary injunction. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000).

B. We cannot decide the merits of the preliminary injunction at this time.

The Plaintiffs also contend that the district erred by failing to apply Florida law and by applying an incomplete irreparable injury standard. However, because the propriety of the injunction turns on factual findings, we cannot decide the merits of the preliminary injunction.

On remand the district court should consider the application of Shields v. Paving Stone Co., Inc., 796 So. 2d 1267, 1269 (Fla. 4th DCA 2001), because a federal court sitting in diversity is bound to apply the law of the forum state. See Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir. 2009) (“[W]e are ‘bound’ to follow an intermediate state appellate court ‘unless there is persuasive evidence that the highest state court would rule otherwise.’”). Additionally, the district court should apply the preliminary injunction standard we dictated en banc in Siegel, 234 F.3d at 1176. In this Circuit, “a preliminary injunction is an extraordinary and drastic remedy.” Id. (quoting McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998)). To show irreparable injury, MTA bears the burden of clearly establishing it will be harmed in the future by an actual and imminent injury for which adequate compensatory or other corrective relief will not be available. See Sampson v. Murray, 415 U.S. 61, 90, 94 S. Ct. 937, 953 (1974); Siegel, 234 at 1176.

V. Conclusion

The district court erred by failing to hold an evidentiary hearing. Accordingly, we vacate the court’s injunction and remand with instructions to hold an evidentiary hearing and further proceedings.
PRELIMINARY INJUNCTION VACATED, CASE REMANDED WITH INSTRUCTION.

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC and The Tampa Bay Times. 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 .  For more information, please visit For more information, visit http://www.pollardllc.com.

Discovery, Trade Secrets & Reasonable Necessity

A new case out of Florida’s First District Court of Appeals reaffirms the protection of a non-party’s trade secrets during the discovery process.

Defendant Robert William Greer, Jr. requested that non-party, Laser Spine Institute, LLC (LSI), produce billing and collection documents to prove the reasonableness of charges for the medical services LSI provided to Clara Doucette, one of the plaintiffs. However, it was undisputed that the documents in question contained trade secrets. The trial court ordered LSI to produce the documents subject to a confidentiality agreement to be signed by Mr. Greer and LSI.

LSI challenged the finding, arguing that the trial court strayed from the key requirements of evidence law by ordering the production of the documents without making any findings to demonstrate that Mr. Greer’s “reasonable necessity” for the documents outweighed LSI’s interest in keeping its trade secrets confidential.

The First District Court of Appeals agreed with LSI, and reversed the trial court’s decision. Citing Virginia Electronics & Lighting Corp. v. Koester[1] and Cooper Tire & Rubber Co. v. Cabrera[2], the First District Court of Appeals concluded that despite the prerequisite of a confidentiality agreement between LSI and Mr. Greer, the trial court had failed to adhere to the fundamental requirements of evidence law. Essentially, the trial court erred by failing to make a specific finding that the requesting party had demonstrated a reasonable necessity for the document’s production that offset the disclosing party’s interest in maintaining the confidentiality of its trade secrets.

This case is Laser Spin Institute, LLC v. Greer, 1D14–1134, 2014 WL 3865840 (Fla. 1st DCA 2014).

[1] Virginia Electronics & Lighting Corp. v. Koester, 714 So.2d. 1164, 1165 (Fla. 1st DCA 1998)

[2] Cooper Tire & Rubber Co. v. Cabrera, 112 So.3d 731, 733 (Fla. 3d DCA 2013)

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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.  For more information, visit http://www.pollardllc.com.

 

Florida Non-Compete Agreements: Common Misperceptions

Fort Lauderdale, Florida non-compete and trade secrets attorney Jonathan Pollard discusses common misperceptions about Florida non-compete agreements.  Topics discussed include:

  • Florida’s Right to Work law
  • Florida’s general pro-non-compete stance
  • Enforcement of non-compete agreements against doctors
  • Being forced to sign a non-compete agreement
  • Consideration necessary to support a non-compete agreement
  • Impact of an employer’s prior breach

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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. For more information, visit http://www.pollardllc.com.

Florida Non-Compete Agreements & Franchise Agreements – A Recent Decision

A recent case out of the United States District Court for the Southern District of Florida illustrates the parameters of non-compete provisions in the context of franchise agreements.

Winmark Corporation operated a chain of retail sporting goods stores known as Play it Again Sports pursuant to franchising agreements. Brenoby Sports, Inc. and Marlin Geimer began operating a Play it Again Sports store in Hollywood, Florida in 1994. In 2004, they renewed the franchise agreement and relocated their store to Pembroke Pines, Florida.

Pursuant to the franchise agreement, Mr. Geimer and Brenoby Sports were required to pay 4% of all gross sales to Winmark in exchange for the right to operate the only Play it Again Sports store in an eight-mile radius. The franchise agreement also contained non-compete clauses prohibiting Mr. Geimer and Brenoby from competing with any Play it Again Sports store during the franchise agreement and for one year after its termination.

By 2013, Winmark began to suspect that Mr. Geimer had failed to pay out 4% of its gross sales. Likewise, Winmark learned that Mr. Geimer or his son had begun to operate Amazon.com and Ebay.com stores under different names that were competing with Play it Again Sports. Winmark sent a cease and desist letter to Mr. Geimer, demanding that he terminate his unlawful competitive activities and submit to an audit of his store’s finances pursuant to the franchise agreement. When Mr. Geimer refused to comply with the audit, Winmark sent another letter terminating the franchise agreement.

After the termination of the franchise agreement, Winmark’s field manager visited Mr. Geimer’s former Play it Again Sports store at the franchised location. The store continued to operate as a sporting goods retailer, but under the name Play or Trade Sport. The field manager testified that Mr. Geimer’s store was still using Winmark’s proprietary inventory software as part of its operations, as evidenced by the numbers on the price tag and receipt for a product he purchased at the store.

Mr. Geimer, although no longer working at Play or Trade Sport, had allegedly sold the store to a third party, Jorge Bocca. Pursuant to a written agreement with Mr. Bocca, Mr. Geimer would receive $55,000 plus an additional percentage of future sales of Play or Trade Sport. Mr. Geimer’s son, Jesse, continued to work as a co-manager at the store.

Winmark then brought a Motion for a Preliminary Injunction, seeking to enjoin Mr. Geimer, Brenoby Sports, and “all persons acting in concert or participation with them” from engaging in the sporting goods business. Winmark also sought a mandatory injunction requiring Mr. Geimer to submit to an audit.

The District Court began its analysis by referring to the preliminary injunction standard. The Court agreed that Winmark was likely to succeed on the merits of the case, as it had shown that Mr. Geimer continued to associate with the new sporting goods store at the franchised location, that Play or Trade Sport continued to use Winmark’s software, and that Mr. Geimer had refused to participate in the audit.

The Court went on to analyze the enforceability of the non-compete agreement. Under Florida Statute § 542.335, which governs the validity of restrictive covenants, the Court found that the franchise agreement’s one-year and eight-mile radius restrictions were reasonable in time and scope. Likewise, the Court held that the covenant was necessary to protect Winmark’s legitimate business interests. The Court also found that Mr. Geimer’s continued personal and financial interest in the business was a violation of the non-compete agreement, as he still expected to receive an undisclosed percentage of the store’s sales. Similarly, the Court held that Winmark was likely to succeed on its claim that Mr. Geimer had violated the franchise agreement by failing to return the inventory software.

However, the Court refused to issue a preliminary injunction against the non-parties involved in the case, such as Mr. Geimer’s son or Mr. Bocca. Florida law allows a court to enjoin non-parties to non-compete agreements, such as family members of the signator or alter ego corporations, but the non-party must be under the signator’s contol or is otherwise being used to aid or abet the signator in violating the non-compete clause. Here, the Court found that the evidence did not support a finding that the non-parties were aiding and abetting Mr. Geimer in violating the non-compete agreement. Moreover, Winmark had failed to provide notice to the non-parties of its request for an injunction, and those non-parties did not have an opportunity to appear before the Court.

Addressing the “irreparable harm” standard for a preliminary injunction, the Court found that Winmark suffered and would continue to suffer irreparable harm due to Mr. Geimer’s ongoing violation of the non-compete agreement. For instance, Winmark had spent significant time and money generating goodwill and brand recognition for Play it Again Sports, yet Mr. Geimer’s had established an internet website for Play or Trade Sport that resulted in brand confusion.

The Court then turned to Winmark’s request for a mandatory injunction requiring Mr. Geimer to submit to an audit. The Court found that Winmark had failed to establish that it would suffer irreparable harm if the Court did not order an audit. Under the definition of “irreparable harm,” when an injury can be compensation with money damages, it is not irreparable.

Overall, the District Court granted Winmark’s preliminary injunction in part, and denied it in part. Mr. Geimer was enjoined for a period of one year from participating in any sporting goods business at the franchise location or within an eight-mile radius thereof. Mr. Geimer was also enjoined from receiving ongoing payments as a percentage of the store’s sales, although he was still allowed to receive the sale price of the store. However, the Court denied Winmark’s request for a mandatory injunction requiring Mr. Geimer to submit to an audit. The Court also refused to enjoin any non-parties to the case.

This case is Winmark v. Brenoby, 13-62697 2014 WL 3400564 (S.D. Fla. July 10, 2014).

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC, the National Federation of Independent Business and The Tampa Bay Times. In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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.  For more information, visit http://www.pollardllc.com.

Florida Non-Compete Agreements, Trade Secrets & Preliminary Injunctions

In non-compete and trade secret litigation, the preliminary injunction is often the most critical part of the case.  Remember:  In most non-compete and trade secret cases, the plaintiff is not seeking just monetary damages.  Instead, they are usually seeking injunctive relief.  An individual or company beings sued for violations of a non-compete agreement, employee poaching and raiding or theft of trade secrets can be hit with a preliminary injunction.  That injunction can bar the individual or company from doing business with certain customers or clients, operating in certain markets or engaging in business period.  It follows that in many cases, the outcome of the preliminary injunction hearing can be dispositive:  When the plaintiff wins a preliminary injunction, it may suggest they have a strong case on the merits.  It can also deal a crippling blow to the defendant’s finances— particularly where the injunction bars the company or the individual from competing wholesale.  This it is so important to prepare for the preliminary injunction evidentiary hearing.

This video discusses the importance of preliminary injunctions in non-compete and trade secret litigation and focuses on some critical distinctions between litigating such cases in federal vs. state court.  As noted in the video, we recently won a significant decision in the United States Court of Appeals for the Eleventh Circuit related to some of these issues (specifically, the defendant’s right to an evidentiary hearing).  That opinion is here.

For national non-compete and trade secret coverage, please see our non-compete blog.

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC and The Tampa Bay Times.  In addition to his background in non-compete and trade secrets work, Jonathan has broad experience as a competition lawyer, generally, and has litigated numerous cases under both the Sherman and Lanham Acts. 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 .   For more information, visit http://www.pollardllc.com.

Physician Non-Compete Agreements Under Florida Law

This is a video discussion of physician non-compete agreements under Florida law.  It touches upon issues of geographic scope, patient relationships and referral relationships.

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC and The Tampa Bay Times. 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.  For more information, please visit For more information, visit http://www.pollardllc.com.

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Florida Non-Compete Agreements: Common Misconceptions

Let me put it bluntly:  People are confused about non-compete agreements and non-compete law.  By people, I mean almost everybody.  I’m not just about the average Joe.  I’m talking about business owners.  I’m talking about doctors.  And yes, I’m talking about other lawyers.  Two years ago, I left a prominent New York litigation firm and launched my own litigation practice.  I immediately began focusing on non-compete and trade secret litigation.  Over the past two years, I have received hundreds of phone calls and emails about non-compete cases.  I have represented dozens of clients in resolving non-compete disputes either through litigation or out of court.  Most of these cases have involved Florida law.  But, due to choice of law provisions, I have also been involved in non-compete disputes that were governed by the law of other states, including New York, Illinois, Indiana, Mississippi, North Carolina, and Pennsylvania.  Given my experience, I have reached a number of conclusions about the general landscape— about the intersection of business and non-compete law.  One of those conclusions:  People are confused about non-compete agreements.

Every week, I receive at least a few phone calls from people who have absolutely no understanding of the legal landscape.  Most of the time, these people are calling to ask for my advice about a non-compete situation, but they preface their story by saying something like, “The non-compete won’t hold up in court, right?”  Quite often, that is wrong.  Quite often, the non-compete will hold up in court, especially under Florida law.  So, here are some of the most common misconceptions about non-compete agreements.  This is based on Florida law, but may also have some applicability to other jurisdictions:

(1) The Non-Compete Won’t Hold Up in Court:  I usually hear this basic assertion – with nothing behind it – from people who are lower-level employees.  Sometimes, I hear it from sales executives.  People in Group 1 believe that non-compete agreements are generally unenforceable, or, that a non-compete agreement could not be enforced against them because they were a low level employee.  At least under Florida law, this sort of logic is bogus.  An interesting side note:  These people are almost always men.  I have never had a woman call me about a non-compete situation and come out of the gate with, “It won’t hold up in court, right?”

(2) But Florida is a Right to Work State:  People in Group 2 are similar to the people in Group 1.  But people in Group 2 don’t just claim that they non-compete agreement will not “hold up in court.”  They go a step further:  They offer a justification for why the non-compete will not be enforced.  That justification:  Florida is a Right to Work state.   For all the people in Group 2, let me quickly disabuse you of that notion:  Right to Work laws have to do with unions, not with non-compete agreements.  For a more detailed discussion of this issue, please visit my main website.

(3) They Forced Me to Sign It:  People in Group 3 take the following angle:  My company forced me to sign a non-compete agreement or lose my job, so it should be unenforceable.  This is irrelevant.

(4) I Signed the Non-Compete After I Worked There for a Year:  Group 4 people argue that they accepted a job, worked at a company for months or years, and then were forced to sign a non-compete agreement.  Their angle:  They didn’t get a raise, they didn’t get a bonus, they didn’t get anything.  In legal terms, this is the non-compete / no new consideration argument.  This is a viable defense to enforcement of a non-compete agreement in some states, but not in Florida.  Under Florida law, continued employment is considered sufficient consideration in exchange for a covenant not to compete.

(5) But They Can’t Have a Nationwide Non-Compete:  Group 5 people understand that their non-compete agreement may be enforceable to some extent, but they think that a nationwide non-compete automatically is unenforceable.  Wrong.  If a sales executive has a national territory, a national non-compete in that same industry could be enforceable.

(6) But I’m a Doctor! : I see it all the time.  Doctors assume that non-compete agreements cannot be used to prevent them from keeping their existing patients.  Although I firmly believe that enforcing physician non-compete agreements is bad public policy (see these articles from the non-compete blog), Florida law currently allows enforcement of such agreements.

 

Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC and The Tampa Bay Times. 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.  For more information, please visit For more information, visit http://www.pollardllc.com.

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