Non-Compete Litigation

Jonathan Pollard – Extensive Experience Defending Non-Compete Cases

Jonathan Pollard is competition lawyer based in Fort Lauderdale, Florida and the founder of Pollard PLLC. He focuses his practice on defending complex non-compete and trade secret claims. Over the past several years, Jonathan has developed a reputation as an authority on Florida non-compete law. He has an extensive track record of defending complex, high-stakes non-compete cases. Jonathan has been involved in hundreds of non-compete matters. Pollard PLLC routinely represents C-level executives, doctors, financial advisors, sales executives, other high-level employees who are switching companies or who have started their own ventures, and franchisees. He frequently defends profitable start-up ventures that have broken away from larger enterprises. Jonathan also has extensive experience representing individuals who sold businesses and then reentered the market with a new venture while subject to various restrictive covenants. Beyond litigation, Jonathan advises employees, companies, business owners and franchisees regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, employee poaching and raiding, and the purchase or sale of business interests.

Jonathan has been quoted on non-compete agreements and related issues in or on NPR, PBS News Hour, Law360, The Wall Street Journal, Bloomberg, FundFire, the Wall Street, Digital Guardian, IP Watchdog, the Tampa Bay Times, the Orlando Sentinel, and many more. His articles have appeared in Law360 and Litigation Commentary & Review. Pollard is licensed in all Florida federal district and state courts and the United States Court of Appeals for the Eleventh Circuit. He routinely represents clients in Miami, Fort Lauderdale, West Palm Beach, Fort Myers, Tampa, Orlando, Jacksonville, throughout the state of Florida and beyond. Representative matters include:

Defending a healthcare sales executive in high stakes non-compete litigation. Preliminary injunction granted; permanent injunction denied. United States District Court for the Middle District of Florida, Orlando Division, 2020.
Representing partner against a prominent Florida-based wealth advisory. No injunction. Judgment entered for client holding non-compete unenforceable and awarding $1 million. American Arbitration Association, 2018.
Defending a C-level executive of a publicly traded insurance company against non-compete claims. Injunction denied. Broward County Circuit Court 2017.
Defending nurse staffing company and founders in non-compete and tortious interference litigation against industry rival. Emergency stay of injunction pending appeal. Case settled. Palm Beach County Circuit Court 2017.
Defending energy hauling company and founder in non-compete and trade secret litigation against industry rival. Injunction denied. United States District Court for the Middle District of Florida, Tampa Division, 2016.
Defending software engineer in non-compete litigation against former employer. Injunction denied. United States District Court for the Southern District of Florida, Miami Division, 2016.
Defending software engineers in non-compete litigation against their former company related to Tony Robbins’ companies. Injunction vacated on appeal. Florida 5th District Court of Appeal 2015.
Defending medical gas company and its founders in litigation against purchaser of their former business. Injunction vacated on appeal. United States Court of Appeals for the Eleventh Circuit 2014.
Defending media company and principals in non-disclosure and trade secret litigation. Case dismissed. Fees awarded in favor of defendants. United States District Court for the Middle District of Florida, Fort Myers Division, 2013.

In addition to broad experience involving dozens of different industries, Jonathan’s has extensive experience resolving non-compete disputes in the following sectors and deep industry knowledge regarding:

Healthcare
Medical Devices
Recruiting / Staffing (General)
Healthcare Recruiting / Staffing
Finance / Wealth Management
Trucking / Transportation
Software
Engineering
Insurance

Florida Non-Compete Agreements – The Basics

In Florida, non-compete agreements are governed by Florida Statute 542.335. This statute lays out the boundaries of an acceptable non-compete agreement. Non-compete agreements must be reasonable in terms of duration and geographic scope. Reasonableness of geographic scope will depend largely on the industry. With respect to temporal limitations, Florida courts rarely uphold employee non-compete agreements that are greater than two years in duration. Additionally, a Florida non-compete agreement can only be used to protect a legitimate business interest. In Florida, legitimate business interests generally include trade secrets, confidential information, extraordinary investment in the employee, customer relationships or corporate goodwill. Most Florida non-compete cases involve disputes over confidential information and customer relationships. If there is no legitimate business interest at issue, the non-compete agreement may be invalid under Florida Law.

As your lawyer, Jonathan Pollard will review the relevant non-compete agreement, assess the relevant facts and determine the appropriate course of action.

On the defense side, this may entail negotiating a resolution with a former employer out of court. Many non-compete disputes can be settled on terms that suit all parties prior to embarking down a path of costly litigation. In other cases, where the facts are strongly in your favor, the best course of action may be to sue first for a declaratory judgment holding that the non-compete agreement is unenforceable under Florida law. If your former employer has sent you a cease and desist letter but the facts and law are on your side, then seeking a declaratory judgment may be your best option. Finally, in some instances, it may be necessary to defend a lawsuit filed by your former employer. The best strategy for fighting your non-compete agreement will depend on the specific facts and circumstances of your case.

Legitimate Business Interests: Customer Relationships

A great deal of non-compete litigation focuses on one thing: Customers. In the non-compete context, customer relationships can constitute a legitimate business interest. In spite of the tremendous amount of litigation regarding customers, there is widespread confusion regarding when customer relationships are protectable.

Florida law protects only “substantial” customer relationships. See Florida Statutes 542.335. The non-compete statute uses that specific phrase: substantial relationships. This is important because it signifies that the law does not protect all customer relationships. Instead, only substantial customer relationships are legally protectable. Although the statute uses this language, it does define what constitutes a substantial relationship. As a result, many Florida non-compete and non-solicitation cases involve the parties fighting over the definition of substantial customer relationship.

Although there is no clear definition, the relevant case law provides the following framework: Certain factors weigh in favor of finding substantial customer relationships. Substantial customer relationships are more likely to exist where:

The customers are private individuals as opposed to large companies
The customers’ identity or contact information is not publicly available
The customer relationship is an exclusive or near exclusive relationship
There is a long term contract for goods or services or the reasonable expectation of ongoing business.

The converse is equally true. Substantial customer relationships are less likely to exist where:

The customers are large companies
The customers’ identity or contact information is publicly available
The customer relationships are not exclusive or near exclusive and
There is no long-term contract or expectation of future business

In applying this framework, no one factor alone necessarily is dispositive. Instead, parties need to apply the various factors to the facts of their case and make the strongest arguments possible.

Preliminary Injunctions – The Most Critical Phase of Non-Compete Litigation

In many instances, when a Florida non-compete dispute does go to court, the plaintiff will immediately seek a temporary restraining order or preliminary injunction. In non-compete cases, a preliminary injunction can be used to bar the defendant from soliciting clients or engaging in a competing business. In some instances, courts issue sweeping injunctions that prohibit the defendant from competing against the plaintiff in a broad geographic territory. Courts can and do issue nationwide injunctions that effectively bar defendants from working for a competing venture anywhere in the country. For this reason, it is imperative that the defendant request any injunction be conditioned on a substantial injunction bond. The injunction bond is a wrongfully enjoined defendant’s only method of recourse (i.e. collecting damages). Contrary to popular belief, the state of Florida aggressively enforces non-compete agreements and is one of the most pro-non-compete states in the country. It is imperative to hire a lawyer who has significant experience in non-compete litigation.

Learn More About Pollard PLLC – Florida Non-Compete Lawyers

If you facing the prospect of litigation related to a Florida non-compete agreement, contact our office today at 954-332-2380 and a member of our team will be happy to assist you. To learn more about Jonathan Pollard and Pollard PLLC, please visit the following links:

Follow Jonathan Pollard on LinkedIn (along with 60,000+ other followers).
Read Jonathan’s commentary on non-compete law at the non-compete blog.
Watch video discussions of non-compete and trade secret topics on Jonathan’s YouTube channel.
Watch a PBS News Hour segment on non-compete abuse.

Or Check Out Some of Jonathan’s Video Discussions of Common Non-Compete Issues