Pollard PLLC has been involved in numerous non-compete disputes in some way related to construction. The latest case pits Ferreira Construction Company, a nationwide construction company based out of New Jersey against Buck Thompson, a diver and underwater construction specialist who left the Company and launched his own Thompson Contracting Group, Inc. Based on a declaration put in the record by Thompson, it appears that there are several hundred thousand dollars at issue.
Ferreira Construction sued Thompson in Martin County Circuit Court. The firm removed the case to the United States District Court for the Southern District of Florida – Fort Pierce Division based on diversity. Plaintiff alleges that Thompson breached his non-compete agreement, breached fiduciary duties and diverted business away from the company. Thompson has filed an answer and affirmative defenses alleging that Ferreira was engaged in various regulatory violations creating an unsafe work environment in an already dangerous field. Thompson further alleges that all of the work at issue is procured through open bidding.
As those who have followed any of the firm’s cases are aware by now, even under Florida’s aggressively pro-non-compete legal regime, bidding creates an exception to enforceability. Where customer information is publicly available and those customers can be won through a competitive bidding process, any non-compete agreement or restrictive covenant is likely not enforceable. The seminal case on bidding is the Shields case out of Florida’s Fourth DCA in 2001. Recently the importance of Shields was reaffirmed by the United States Court of Appeals for the Eleventh Circuit in Moon v. Medical Technology Associates, 577 F. App’x 934, 936 (11th Cir. 2014).
Moon is another of the firm’s cases and involved, generally, hospital medical gas business, construction and bidding. In Moon, the plaintiff obtained a preliminary injunction in the United States District Court for the Middle District of Florida. Pollard PLLC took an appeal to the Eleventh Circuit and had the district court’s order reversed and the injunction vacated. On remand, the court held a second injunction hearing and this time, applying the correct standard, denied the injunction. The firm moved for and obtained partial summary judgment then moved to exclude all of the plaintiff’s evidence on damages. After nearly two years of litigation, the case settled on the brink of trial.
As in Moon, it appears that bidding will be an important factor in the current litigation between Ferreira and Thompson. The case is ongoing.
Pollard PLLC is a litigation boutique focused on competition law. The firm’s principal Jonathan Pollard began his career at Boies, Schiller & Flexner and has extensive experience litigating non-compete, trade secret and antitrust cases. His office can be reached at 954-332-2380.
