I know I do.
That's why I enjoyed this new 11th Circuit opinion that wades into the sometimes-murky waters of enforceability of noncompetes in Florida:
In 1996, Florida adopted Fla. Stat. § 542.335, which "contains a comprehensiveOoh baby, keep on singing that sweet song, I could listen to it all night long.
framework for analyzing, evaluating and enforcing restrictive covenants contained
in employment contracts." Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1262 (Fla.
Dist. Ct. App. 2009). For a restrictive covenant to be valid, "[t]he person seeking
enforcement of [the] restrictive covenant shall plead and prove the existence of
one or more legitimate business interests justifying the restrictive covenant." Fla.
Stat. § 542.335(1)(b). Section (1)(b) of the statute enumerates a non-exhaustive
list of "legitimate business interest[s]." Among these are: (1) "[v]aluable
confidential business or professional information that otherwise does not qualify
as trade secrets"; (2) "[s]ubstantial relationships with specific prospective or
existing customers, patients, or clients"; and (3) "[e]xtraordinary or specialized
training."
In addition, to be enforceable, restrictive covenants must be reasonable with
regard to time, area and line of business. Fla. Stat. § 542.335(1). Once an
employer establishes a prima facie case that the contractually specified restraint is
"reasonably necessary to protect the legitimate business interest[s] . . . justifying
the restriction," the burden of proof shifts to the employee to show that "the
contractually specified restraint is overbroad, overlong, or otherwise not
reasonably necessary to protect the established legitimate business interest[s]."
Fla. Stat. § 542.335(1)(c). If the court finds that the "contractually specified
restraint is overbroad, overlong, or otherwise not reasonably necessary to protect
the legitimate business interest[s]," the court is required to "modify the restraint
and grant only the relief reasonably necessary to protect such interest or interests."
Id.
Seriously, though, despite this very straightforward hornbook statement by the 11th, here is yet another area of Florida law needlessly messed up and complicated by years of crappy opinions and imprecise or thoughtless language by DCAs across the state.
But hey, it's Florida, that's how we roll.
Anyone know who the district judge was on this?
9 comments:
SFL, good work on the 11th Circuit coverage. Keep it up.
2nd. Shume time already. Geeze.
CALLING THE SHUMIE!
SFL, I have various opinions about non-competes. My first thought is that you can normally get out of one, if you have a few bucks and a good lawyer. My second thought is that I have often used these (or letting people out of them, I should say) as leverage to get severance agreements signed...
"...that's how we roll."
GOOD ONE!
The Constant Complainer is 100% correct. If you represent an ex employee and there is no theft or blatant malfeasance, these agreements are difficult to enforce. Judges are reluctant to enforce them for the practical reason that, absent fraud, they are used as a tool of vengeance to prevent an ex employee from making a living even when the ex employer can show no harm. Further compounding the problem is that the initial battle is for a temporary injunction where the standard is very high, a bond must be posted, and there is a right to an interlocutory appeal. Another point to keep in mind: when evaluating a case, and if you feel you can prevail, you might want to discount your fees to a client who probably does not have big bucks in hopes that if you prevail, you can get your fees and costs from the ex employer. All of these agreements have attorney fee provisions. I have found that about half of employers in South Florida do not seek legal help when they draft these agreements. They have a "form agreement" that they have a worker sign when he is hired, a time when everyone is happy. The agreement is something that was taken off the internet or typed up in 1966 by some lawyer who is now dead.
The "form agreement" is the key to the problem with these things. The statute has teeth, but employers seem to go out of their way to use the worst possible form agreement available.
Trial by consent before Magistrate Johnson, the District Judge was Judge Marra.
Actually, it looks like this was assigned to Judge Middlebrooks first, but Judge Marra is listed as the District Judge on some of the later filings. In any event, it was still tried by Magistrate Johnson.
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