Is My Non-Compete Agreement Enforceable: Maybe. But the more important question is whether your former employer will seek to enforce your non-compete agreement.
It is our experience that most non-compete agreements are written not to be enforced against you for competing, but to scare you out of competing in the first place. We’ve written scores of non-compete agreements for our business-side clients and advise them candidly about how enforceable the agreement is. Some employers want their agreements to be “scarier” even though they know that this often makes them less enforceable. Incidentally, if you are an employer looking for assistance drafting a non-compete or similar agreement, our firm offers flat fee service for this – feel free to reach out.
If your employer seeks to enforce your non-compete against you, then even if you win that lawsuit, you have already lost. That is because defending yourself in of a non-compete lawsuit is expensive, disruptive and stressful. When our firm represents individuals accused of breaching a non-compete, our primary goal is lawsuit avoidance.
Is My Non-Compete Agreement Enforceable: Non-competes are rarely and narrowly enforced.
Courts understand that it is difficult for individuals to make a living. It's not as if you can go from working in medical device sales, or a computer programming to making your living playing professional sports. Courts understand that your vocation is how you make a living, support your family, pay taxes, and allows you to function as a contributing member of society. Therefore, non-competes are only enforced to the limited extent necessary to protect an employer’s “legitimate business interests.”
From your employer's point of view, bringing a lawsuit on a non-compete is a risky proposition. Employers know that courts only enforce non-competes narrowly, and only to protect legitimate business interests. Because your employer knows this, it also knows that every time it brings a lawsuit to seek to enforce the non-compete it puts that not-compete agreement under judicial scrutiny and risks being ruled unenforceable. And if a court were to rule that the non-compete is unenforceable, that would signal to every single person working for that company that the each of their non-competes are not enforceable. So from an employer's perspective, seeking to enforce a non-compete is risky.
Is My Non-Compete Agreement Enforceable: Non-compete lawsuits follow the money.
If your move from Company A to Company B causes Company A to lose money, there is a higher risk of a lawsuit as a result of that move. The greater the amount of money at stake, the higher the likelihood of a lawsuit. Conversely, if you go from Company A to Company B and no money moves, what is there for Company A to sue you for?
All Civil lawsuits have two phases: liability and damages. Liability determines whether or not the defendant is "guilty" for lack of a better word of what they've been accused of. In the case of a non-compete, the question of liability centers on: (1) is the non-compete agreement enforceable and, if so (2) did you breach it? If your employer prove liability, the next phase is damages. Damages is a determination of how much, in dollars, has your former employer been damaged by virtue your breach. If your employer has not suffered monetary harm, then they do not recover any money. (Note - this paragraph is a gross oversimplification for illustrative purposes).
From an employer’s perspective, when there is little to be gained, but significant risk in seeking to enforce a non-compete agreement, it rarely makes sense to bring a lawsuit.
Our firm has helped hundreds of employees navigate these stressful waters. We offer two-tiers of flat fee service when it comes to non-competes:
Tier 1: Review and analysis of your non-compete agreement, plus up to 2 hours of behind-the-scenes (i.e. we will not interface with any third parties on your behalf), follow up. Flat rate of $550.
Tier 2: Lawsuit avoidance. We do everything we can (i.e. legal analysis, conferences with your former employer, counsel, communications, etc.) to avoid a lawsuit against you. This includes everything until the matter is resolved or a lawsuit is filed. We charge a variable flat rate for this service depending on your particular circumstances (minimum fee is $2000).