The following video discusses several considerations related to Florida non-compete agreements, injunctions and appeals. If you are sued for violating a non-compete agreement in Florida state court, there is a substantial likelihood that you will be enjoined. Key point: If there is any way to litigate the case in federal court – as opposed to state court – then you must pursue that option. Sometimes that means suing the other side first to force the matter into federal court. Other times, it means removing the case to federal court immediately if there is diversity jurisdiction (or rarely but possibly some sort of preemption in play).
If you cannot get the case into federal court, then you will be forced to defend yourself in Florida state court. Florida state court is a rough place to defend a non-compete case. As written, the law in Florida – Florida Statutes 542.335 – is pro non-compete as written. But it goes far beyond that. The Florida state trial courts have become reflexively pro-non-compete. These courts do not apply the law as written. They do not engage in a proper, thoughtful analysis of the restraints at issue. Instead, they treat non-compete cases are pure matters of contract law. Of course, that is nonsense. Because non-compete agreements are restraints of trade and potentially illegal. As such, in any non-compete case, there are two lenses: The restraint of trade lens and the contract lens. If the court conducts the proper analysis, it will first determine whether or not the restraints on competition are necessary to protect a legitimate business interest. Only if the restraints pass that test does the case become a breach of contract case. Most Florida trial court judges do not understand this. They treat these cases are pure breach of contract cases. And when it comes to legitimate business interests, all they require is that the plaintiff give lip service to having confidential information or special relationships.
The bottom line: Get the case into federal court by any means necessary. If you cannot get the case into federal court, then you must prepare for the long game. A common scenario: You just got served with a summons and complaint. The plaintiff is seeking an emergency temporary injunction. They have already got a hearing on their motion scheduled. The hearing is in three days. So on three days notice, you have to hire a lawyer and that lawyer has to prepare for the injunction hearing. That injunction hearing could potentially shut down your business, cut off your revenue and basically destroy your livelihood.
I’ve handled many of these hearings. Some of them have been ugly. I’ve been there when, from the bench, judges ordered sweeping, nationwide injunctions that shut my clients out of the market. This is not for the faint hearted. An inexperienced lawyer is going to go into one of these hearings, feel like he’s getting beaten up by opposing counsel and the judge, and basically give up. That is a catastrophic mistake. In a Florida non-compete case, you have to play the long-game. Of course you want to beat the preliminary injunction. But if you are stuck in state court, realize that the odds are against you and that an injunction is likely. When you head into the preliminary injunction hearing, you must understand that the goal isn’t just to win the hearing. There’s a good chance you’ll lose, regardless of your defenses. So you must focus on establishing the strongest record possible for an appeal.
The following video discusses key considerations related to Florida non-compete injunctions and setting yourself up for success on appeal:
Jonathan Pollard is the principal of Pollard PLLC, a Fort Lauderdale litigation boutique focused on competition law. The firm has extensive experience litigating non-compete and trade secret cases and has won appeals in state and federal appellate courts. They routinely represent clients throughout the state of Florida and beyond. For more information, call 954-332-2380.