How We (Still) Defend Bogus Non-Compete Cases

At this point in my career, I have defended between 150 and 200 non-compete cases. And I probably have more noteworthy published court decisions in Florida non-compete cases than any other attorney in recent memory. These include federal appellate decisions (11th Circuit). State appellate decisions. Federal district court decisions. These cover everything from defining protectable customer relationships, to the defense of illegality, to pleading and evidentiary burdens, to the right to a hearing, and more. And we once got a $1 million judgment on behalf of a non-compete defendant who countersued.

For ten years, we did all non-compete defense, all the time. Virtually all of our cases were non-compete and/or trade secret defense. We defended CEOs and CFOs. We defended executives and entrepreneurs. We defended massive, bet the farm cases where many millions of dollars were at issue. But we also defended poor and working people for free. We defended security guards, secretaries, factory workers, teachers, and more. And that whole time, we operated on the following financial model: People who could pay had to pay. Poor people and working people, we would represent for free — and get our money from the company on the other side, if at all.

Nobody does this. Seriously: A prominent lawyer / law firm defending non-compete cases on a contingency fee is unheard of. That’s just not commercially reasonable. But that’s exactly what we did for poor and working people. Why? Because I always had an obsession with justice and fairness. Just because somebody cannot afford a good lawyer shouldn’t mean that they’re completely screwed in the American legal system.

About two years ago, we transitioned from mostly defending non-compete and trade secret cases to mostly prosecuting (filing) plaintiff-side employment cases (i.e. discrimination, retaliation, sexual harassment, etc). Lots of people ask if we still defend non-compete / trade secret cases. So I’ll answer that question: Yes, absolutely. But on a very selective basis. I’ll explain:

We do 3 different categories or buckets of non-compete / trade secret / unfair competition defense. I’ll walk through each of these:

  1. High stakes / high dollar / complex. These cases frequently involve high-level officers or executives changing companies, entrepreneurs starting their own businesses, or partnership breakups. There are many millions of dollars at issue. We litigate these cases on a flat fee for each phase of the case (case initiation, injunction, discovery, summary judgment, pre-trial, trial). That fee is based on the complexity of the situation, possible risks, dollars at stake, upside, business-side goals, and more.
  2. People with some resources. I call this the mid-tier of cases. This is the tough one. Look, I hate non-compete abuse and have been fighting the good fight for 10+ years. I’m notorious for the work I do and for my advocacy in this space. I would love to help every single person who reaches out to my office and who needs my help. But that’s literally hundreds of people every week. I’m not a charity. I am not a saint. I’m just one lawyer in Florida with a small law firm. I would take everybody’s case for free if I could. But I can’t. So I try to fashion some sort of sliding scale fee based on the complexity of the case and the client’s income, resources, and circumstances. We do creative fee structures on mid-tier cases, sometimes involving both a reduced flat fee and either court-awarded attorneys’ fees or a percentage of any recovery on counterclaims. So these fee structures vary depending on the specific client and the specific case.
  3. People who simply cannot afford to pay / hire a lawyer. Think janitors, security guards, factory workers, etc. If these folks have a non-compete agreement and get sued or jammed up over it in the State of Florida, I do my best to represent them for free if I reasonably can do that — because I doubt anyone else will. Naturally, people are ridiculous. So this will result in 100+ calls where people demand that I represent them in their non-compete case for free. Doesn’t work like that. I get to choose.

So we take a mixture of buckets 1, 2, and 3. We only get involved where we like the case and we like the client. Bucket 1 is blue chip and self explanatory. In Bucket 2, we only take the case if there’s a reasonable way to structure the economics. In Bucket 3, poor people non-compete cases, I tend to avoid what I regard as the most corrupt and dysfunctional parts of the State, stick to our backyard, pick cases where the non-compete is clearly unenforceable, and the other side is collectable for attorneys’ fees or counterclaims.

That’s how it works.


Jonathan Pollard is an employment lawyer and the founder of Pollard PLLC. Pollard and his colleagues have litigated, arbitrated, or mediated hundreds of employment cases. The firm routinely represents clients in discrimination, retaliation, sexual harassment, and sexual assault cases. Pollard and his colleagues have been honored by Super Lawyers and ranked by Chambers & Partners. Pollard has appeared in or on The New York Tines, Wall Street Journal, PBS, NPR, The Guardian, Inc. Magazine and more. The firm has offices in Fort Lauderdale, Miami, and St. Louis. The firm’s main office can be reached at 954-371-2603.