A word of caution: Florida is the most pro-non-compete state in the entire country. This is not an exaggeration. This is the absolute truth. Consider the following: I have been involved in more than 300 non-compete disputes over the past several years. Most of these disputes have been governed by Florida law, but I have dealt with non-compete issues under the law of New York, North Carolina, Mississippi, Pennsylvania, Illinois and Indiana (just to name a few). I have reviewed and analyzed several hundred non-compete agreements. Again, most of these agreements contained a Florida choice of law provision, but dozens were governed by law of the aforementioned states. I have published numerous articles about non-compete cases. And I been quoted about non-compete issues in publications ranging from Florida newspapers (like the Tampa Bay Times and Orlando Sentinel) to national media like Bloomberg. This point is this: I know non-compete law because I work with these issues every day. I have a broad, national perspective on non-compete issues. And I am telling you in no uncertain terms that Florida is the most aggressively, ruthlessly pro non-compete state in the entire country. This is why, a few years back, a New York court refused to apply Florida non-compete law, basically saying that the non-compete jurisprudence in Florida was backwards, nonsensical and offensive to New York’s public policy.
I say this because the public at large – including educated, sophisticated people – does not understand the legal landscape regarding Florida non-compete agreements. Every week, I encounter at least a handful of people who linger under the delusion that non-compete agreements “don’t hold up in court” or are generally unenforceable. Every week, at least one person tells me that they think non-compete agreements are unenforceable because Florida is a “right to work” state. Every week, I hear from somebody who has been reading about Florida non-compete law because they’re contemplating an important career move and trying to make a decision.
And just so we are clear: The vast majority of people who reach out to my firm about non-compete issues are higher level employees. Sure, every once in a while we get a call from somebody who works in a factory or as a maid. And we have taken those cases (in some instances pro bono), just to help those people. But twenty people call our office about non-compete issues every week. I’ve been doing this for a while, focusing specifically on non-compete and trade secret litigation and advising. So my colleagues and I have taken literally thousands of calls just on non-compete issues over the past few years. Here’s whose calling:
- Doctors: I have represented dozens of doctors either in litigation, dispute resolution or non-compete consulting
- High level sales executives in every industry imaginable (they are always fighting about customers and Salesforce)
- High level tech/software engineers
- Recruiters / staffing pros
- Brokers switching firms (especially in non-Protocol situations)
The point is that these are intelligent, successful people. Many are highly educated. Many of them made their current employers millions and millions of dollars. Many have incredibly valuable knowledge, skills or expertise. But these are the very people who have a default belief that non-compete agreements are basically unenforceable. And that couldn’t be further from the truth.
In Florida, if you are subject to a non-compete agreement and you are contemplating a career change (whether switching companies or starting your own venture), you need to proceed with caution. The first step is to seek advice from an attorney who has extensive experience with non-compete matters (litigation, dispute resolution, consulting and advising). Before you do anything, before you jump ship, before you start your new company, you need actual legal advice. You need to retain a lawyer to (1) evaluate your non-compete agreement in light or the specific facts and circumstances and (2) advise you on your potential exposure and your most viable course of action. Everything turns on the specifics. In some instances, a non-compete may be unenforceable for lack of a legitimate business interest. In other instances, a non-compete may be unenforceable due to the presence of certain defenses. Sometimes you do a cost benefit analysis (weighting to potential exposure against the profitability of the new venture), and you conclude it’s worth the risk. Other times, you do a cost benefit analysis and you conclude that the risk is simply to high. There’s a lot on the line here. There’s a lot at stake. So before you make a huge decision that could make a huge impact on your life (for good or bad), you need to get serious advice.
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.