Florida Non-Compete Defense: Playing Offense

A core principle of successful non-compete defense is that the best defense is a good offense. The embedded video below explores this topic. Some of the highlights: https://youtu.be/gGZJs48z6c8 Play Offense: Any time an employee receives a cease and desist letter for allegedly violating a non-compete agreement, or, a company receives a cease and desist letter for hiring individuals who have non-compete agreements (e.g. tortious interference), the potential defendant(s) must start thinking about offensive strategy. Element of Surprise: Filing non-compete lawsuits is big business for many corporate or management-side law firms. But many of these plaintiff-side non-compete lawyers have only one…

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New York’s Unique Services Non-Compete Law is Complete Trash

In today’s non-compete lesson, we address New York’s “unique services” non-compete exception. New York courts generally disfavor non-compete agreements, only enforcing them in limited circumstances (such as the protection of trade secrets). One massive exception: New York’s “unique services” rule. Essentially, this doctrine holds than an employer can enforce a non-compete agreement where the employee is uniquely talented and provides unique services to the employee. Once again: This is sheer madness. New York's enforcement of non-compete agreements based on an employee's unique talents is legally unprincipled and contravenes antitrust law. The fact that an individual is uniquely talented does not…

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How Florida Non-Compete Law is Really Supposed to Work

This is an introduction that I wrote earlier today for a brief in one of our non-compete cases currently pending in Tampa, Florida. The team wrote the brief, I wrote the intro.  Unfortunately, over the past twenty years or so, many judges in Florida trial courts - both state and federal - have simply gotten the law wrong. It happens.  Consider this: The entire United States District Court for the Southern District of New York got the Martin Act wrong until the venerable Judge Marrero set the record straight. There was a time when anybody challenging the doctrine of Martin…

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Trade Dress Trash: Yellowfin Yachts Loses (Again!) on Appeal to Eleventh Circuit

America is in the midst of an epidemic of frivolous trademark litigation. If you have followed the news over the past several months, there have been numerous fantastic examples: Hard Rock Hotel’s absurd case against Rock Star Hotels, which is not a hotel chain at all, but rather, a hotel booking service. FyreTV – a pornography company – suing Amazon over Amazon Fire TV. Yep, I’m sure people were accidentally signing up for Amazon Fire while looking for pornography. Today’s case provides an example of (basically) frivolous trade dress litigation (trade dress being a type of trademark claim). At issue:…

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Defamation Per Se in the Facebook Era

A recent decision out of the United States District Court for the Southern District of Florida takes a look at defamation per se in the era of Facebook and social media. The entire case revolves around a single Facebook post by an individual named Eugene Weiner: “Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic]” Apparently, Isaac Aflalo saw the post, took exception to it, and filed suit, styling his claim as one for defamation per se. Florida defines defamation – slander when spoken, libel when written – as (1) a false statement of fact, (2) published…

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Trademark Trash: Hard Rock’s Stupid Trademark Lawsuit Fails Miserably

In a turn of events that will shock nobody other than perhaps Hard Rock's lawyers, the iconic brand's trademark lawsuit against RockStar Hotels has failed miserably. As some folks might recall, when Hard Rock filed its trademark suit more than a year ago, I made the following statement: Exactly two people in the entire world think the case is a good idea: Some idiot in-house at Hard Rock and some big firm attorney who stands to generate $500,000 in fees before losing the case in spectacular fashion. Once again, my prediction has proven correct. Not because the Eye of Thundera gave…

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Franchise Non-Compete Agreements: Mostly Unenforceable as Written

Every month, I see a dozen different franchise non-compete agreements. The vast majority of them are absurd, over-broad and should be deemed unenforceable. Let’s jump right in. The Relevant Legal Framework & How We Got Here For the past several decades, courts in most jurisdictions have handed out injunctions like candy in franchise non-compete cases. Most judges incorrectly treat non-compete matters as pure breach of contract cases rather than antitrust cases. Their analysis is fixated on one fact: You signed the contract. From there, courts routinely give lip service to the applicable legitimate business interest test and preliminary injunction factors.…

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Tesla Sues Ex-Employee (Whistleblower?) for Theft of Trade Secrets

Tesla has sued a former employee in Nevada federal court alleging theft of trade secrets. That employee - in turn - claims that he's a whistleblower. Let’s take a look. Martin Tripp joined Tesla’s Nevada operation as a process technician in October 2017. And apparently, Tripp was a problem from the jump. He complained that the role wasn’t “sufficiently senior” for his level of experience and expertise. According to his managers, Tripp was disruptive and combative with his colleagues. On approximately May 17th, 2018, as a result of these personality issues, Tesla reassigned Tripp to a different role. But that…

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The $20 Million Asset Purchase Agreement Non-Compete Problem (AKA the Death Star Non-Compete)

Today’s topic: The APA Death Star Non-Compete Agreement. You sell your company to venture capitalists for $20 million. You get some money immediately, some money in deferred compensation and some (restricted) shares in the new company. And you already know what else: You get the most hyper-aggressive, insane, worldwide, 5-year non-compete restriction. In the 5 years post sale, you cannot engage in any business that competes with the Company’s current business, past business or contemplated business. Contemplated business! You know what’s wild? I’ve seen so many of these exact situations that all of this is old news to me. I’ve…

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