I am a frequent critic of the American legal system and the litigation process. I regard that system and process as largely dysfunctional. For the past decade, I have dedicated my career to addressing a single aspect of that dysfunction: The overuse and abuse of extremely broad and unreasonable non-compete agreements which are – as a result of that unreasonableness – illegal and unenforceable. Certain folks who are not familiar with my work see my commentary and criticism of the current state of non-compete law and assume that this must be sour grapes. That I am simply ranting and raving against the system because I cannot win. In light of that, I would merely like to note the following.
When I started my own law firm in 2012, I observed that non-compete law was a mess, particularly in Florida. In my opinion, many courts were misapplying the law, contrary to the plain language of Florida’s non-compete statute and the underlying principles of antitrust. When I mentioned the word antitrust, some folks (especially opposing counsel) would look at me like I was crazy. Ironically enough, the aforementioned non-compete statute is part of the Florida Antitrust Act. That shows just how crazy I am (or how right I am; and how wrong the law has been for decades).
I also observed that many lawyers defending non-compete cases were not making what I considered the best, most powerful argument against enforcement. That argument: That any non-compete agreement that is not necessary to protect a legitimate business interest is illegal. That corporate plaintiffs in non-compete cases have to prove the existence of that legitimate business interest. That giving lip service to things like confidential information and customer relationships was not enough for an injunction. I made it my mission to invest ten years of my career in establishing a new body of Florida non-compete case law and, thereby, changing the law and bringing it back to how it was intended to be applied. To those folks who ask how I know what the drafters of the statute intended, I offer the following: Read the language of the statute. And read a very popular law review article by one of the drafters of the operative statute, who argues that the courts have misapplied the law.
So in 2012, when I started my own law firm, I set to work on my mission. More than eight years into that decade-long mission, I can refer people to the following cases:
- Properties of Villages, Inc. v. Kranz, 2020 WL 5939942 (M.D. Fla. Oct. 7, 2020). Denying a preliminary injunction and holding that plaintiff had failed to establish a legitimate business interest to justify non-compete enforcement. Defendants were several real estate brokers who started their own competing venture. The case cites to my prior cases Evans, Lucky Cousins, and IDMWorks.
- Salazar v. Hometeam Pest Def., Inc., 230 So. 3d 619 (Fla. 2d DCA 2017). Appellate court vacating a preliminary injunction, holding that the trial court must consider all of the defendant’s affirmative defenses before issuing a non-compete injunction, and finally holding that illegality can be a viable defense to non-compete enforcement.
- Lucky Cousins Trucking v. QC Energy, 223 F. Supp. 3d 1221, (M.D. Fla. 2016). Denying a preliminary injunction and holding that movant had not established a legitimate business interest to justify non-compete enforcement. Holding that generic allegations about confidential and proprietary information are not sufficient to establish a legitimate business interest.
- IDMWorks v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016). Denying a preliminary injunction and holding that movant had not established a legitimate business interest to justify non-compete enforcement. Establishing what has now become the seminal test of evaluating the existence of a “substantial” customer relationship under Florida law. This test is built on prior case law (including my own case Evans) and was never fully articulated until IDMWorks. I proposed the test to the court and the court adopted it in its order.
- Evans v. Generic Solutions, 178 So. 3d 114 (Fla. 5th DCA 2015). Appellate court vacating a preliminary injunction. Holding that former customer relationships are not protectable. Holding that relationships with customers that do business with multiple competing vendors generally are not protectable. Holding that a large dollar customer does not necessarily entail a substantial customer relationship.
- Moon v. Med. Tech. Associates, Inc., 577 F. App’x 934 (11th Cir. 2014). Appellate court vacating a preliminary injunction in a non-compete matter. Holding that – contrary to long-standing custom in the Middle District of Florida – courts generally could not issue preliminary injunctions in non-compete cases without be benefit of a full-blown evidentiary hearing.
None of these cases existed before I stepped into this space a decade ago. Now they do. These cases alone provide a robust body of case law upon which to build a non-compete defense. Not only that, but a number of these cases have become influential in this area of law.
The point of this little exercise: I will continue to advocate for reform. I will continue my efforts to change the law. But to be clear: I already have changed the law. I just haven’t changed it enough for my own satisfaction. As long as there are people in Florida – or beyond – who are subject to abusive non-compete agreements that prevent them from earning a living and providing for their families, I still have work to do.
Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida and the founder of Pollard PLLC. Pollard has appeared in or on the New York Times, Bloomberg, PBS NewHour, the Guardian, the Daily Business Review, and more. Pollard PLLC focuses on complex non-compete, trade secret, and unfair competition litigation. The Firm can be reached at 954-332-2380.