Pollard PLLC Wins Another Appeal of a Non-Compete Preliminary Injunction

Fort Lauderdale, FL — Pollard PLLC has won another appeal of a preliminary injunction in a non-compete matter. According to Pollard, “It’s another David vs. Goliath case. Another $1 billion company that thinks it can push around the little guy. We’ll see about that.”

The plaintiff Hometeam Pest Defense is a pest control company and a wholly owned subsidiary of the pest control industry giant Rollins. The defendant Mr. Salazar worked for Hometeam from approximately 2009 until 2014, when he left to form his own company.  Salazar never solicited any Hometeam’s active clients. Instead, he relied on general advertising and word-of-mouth referrals. When Salazar was approached by Hometeam clients, he advised them that he couldn’t interfere with any current Hometeam contracts. He only signed on former Hometeam clients. Likewise, Salazar’s new business used entirely different systems and technologies. He neither used nor misappropriated any of Hometeam’s purportedly confidential information.

In spite of this, Hometeam and their lawyers couldn’t let Salazar alone. When they learned about his competing business, they sent him a cease & desist letter. Pollard responded on his behalf. Somewhat inexplicably, Hometeam and its lawyers then waited nearly seven months before filing a lawsuit and demanding a preliminary injunction. In spite of this lengthy and inexplicable delay, and in spite of extensive case law holding that such a delay precludes injunctive relief, the trial court entered an order enjoining Salazar from competing in a restricted territory. The trial court’s order essentially adopted a proposed order written by plaintiff’s counsel. Pollard filed an appeal.

On November 17, 2017, Florida Second District Court of Appeal issued an order vacating the trial court’s ruling in its entirety. The 2nd DCA’s holding, in relevant part: First, the trial court’s order did not contain any findings of fact whatsoever. Under Florida law (Rule 1.610) every preliminary injunction must contain findings of fact and specify reasons for its entry. Because the order was deficient, it had to be vacated. Second, the trial court’s order failed to address Salazar’s affirmative defenses. Those defenses included illegality and laches (delay). This is an incredibly important holding. Essentially, Florida’s 2nd DCA has ruled that illegality is potentially a valid defense to a non-compete agreement. In the non-compete context, the defense of illegality contends that the non-compete agreement is not supported by a legitimate business interest and is, therefore, an illegal restraint of trade. By ordering the trial court to address that affirmative defense, a Florida appellate court is holding that non-compete agreements can be illegal restraints of trade. Next, consistent with a vast body of case law, the 2nd DCA held that laches, or unreasonable delay, could also defeat non-compete enforcement. In the end, the appellate court sent the matter back down for the trial court to do it again.

Pollard considers it a small but important victory and says, “The case keeps going. We’re basically doing this one pro bono. But we’re committed to seeing the case through to the end. We are committed to vindicating Mr. Salazar, proving that he has not engaged in any unfair competition and proving that the non-compete at issue is unenforceable. This is about a young guy who is trying to start his own business and feed his family. And to me, that’s worth fighting for. And on a broader level, we’ve already won a huge victory. We have an appellate decision that will help restore non-compete law to what the legislature intended.”

The appellate case is Salazar v. Hometeam Pest Defense, Case No. 2d16-4123 (November 17, 2017). The trial court case is pending in Lee County, Florida.

Pollard PLLC is a litigation boutique based in Fort Lauderdale, Florida and focused on competition law. The firm and its attorneys have extensive experience litigating and arbitrating complex non-compete, trade secret, trademark, antitrust and other competition claims. For more information, please call their office at 954-332-2380.

 

 

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