Enforcement of Non-Compete and Non-Solicitation Provision

Non-compete provisions are not always fair. The same can probably be said about non-solicitation provisions. Typically, these provisions (referred to as restrictive covenants) are included in an employment agreement as a condition of employment. But, if there is a legitimate business interest for these provisions, and they are limited in scope, they are enforceable and relief, including injunctive relief, can be sought. Restrictive covenants in employment-related agreements, such as a non-compete and non-solicitation provision, are governed by Florida Statute s. 542.335. A party (e.g., employer) seeking a temporary injunction against another (e.g., employee) must demonstrate four elements: “(1) the likelihood...

16 June

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Value of Severability Clause

Posted by David Adelstein

in Trial Perspectives

Severability clauses have become fairly commonplace in contracts. Cut and paste provisions. However, these clauses can provide tremendous value. A sample of a severability clause is as follows: If any provision of this Agreement, the deletion of which would not adversely affect the receipt of any material benefit by or in favor of any party or substantially increase the burden of any party to this Agreement, shall be held to be invalid or unenforceable to any extent, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. There are numerous ways to draft...

16 September

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Referral Sources can be a Protected Legitimate Business Interest

Posted by David Adelstein

in Trial Perspectives

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof. Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time. White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business...

04 June

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Restrictive Language in Employment Agreement

Posted by David Adelstein

in Trial Perspectives

Woo-hoo! I got a real good J-O-B! Great pay. Great benefits. Great location. Doing what I want to be doing with my skillset. My new employer wants me to sign an employment agreement, but I have signed such agreements in the past, so this is no big deal. Or, is it a big deal? There are many professions that want certain employees to sign an employment agreement that includes a restrictive covenant, i.e., anti-compete or anti-solicitation language. The employer does not want to train the employee, give the employee access to its trade secret information, customer lists, internal marketing material, pricing...

19 March

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Enforcing Non-Compete Agreement with Injunctive Relief

Posted by David Adelstein

in Uncategorized

There are numerous employers that want employees to sign a non-compete, non-disclosure, and non-solicitation agreement (collectively, the “non-compete agreement”). For good reason, they don’t want to train employees to learn the business’ trade secrets and business practices (e.g., marking strategies, pricing, techniques, customer lists, etc.) only to then compete with the employer and solicit its clients. The non-compete agreement will allow the employer to move for injunctive relief if a former employee violates the agreement to maintain the status quo and prevent the irreparable harm to the employer. An example is as follows. In Allied Universal Corp. v. Given, 42 Fla....

A Bad Deal does NOT Make It an Unlawful Deal

Enforcement of Non-Compete and Non-Solicitation Provision

Value of Severability Clause

Referral Sources can be a Protected Legitimate Business Interest

Restrictive Language in Employment Agreement

Enforcing Non-Compete Agreement with Injunctive Relief