Most people who call my Fort Lauderdale office about a non-compete case do so after receiving a cease and desist letter from their former employer. Usually, an initial assessment of the case goes one of two ways: (1) Litigation is inevitable or (2) The case can be resolved without litigation. Granted, there are certain instances where a lawsuit is a foregone conclusion. Somebody stole top secret files or there is a fight over landing a key client and millions of dollars are at stake. And in those instances, there is little that can be done to avoid litigation. But in many other non-compete disputes, there are compelling reasons to resolve the matter out of court.
Many companies will have their counsel or outside attorney fire off a cease and desist letter without giving it much thought. I routinely see cease and desist letters that are filled with little more than hot air. Such letters are often long on moralizing and bombast but short on specifics. They allude to trade secrets and confidential information but never get into the details. They demand the former employee return any materials in her possession, but never explicitly say that materials have been taken, let alone identify which ones. They warn against soliciting clients, but actually do not say that any such solicitation has taken place. In short, these letters are (mostly) an empty threat. In some of these instances the company has hired a generalist and their attorney does not understand the relevant law: They just assume that the non-compete is enforceable. In other instances, the company (or its attorney) thinks they can scare the former employee into quitting the new job, not soliciting clients, not talking to vendors, etc.
In these situations, it usually makes sense to hire an attorney to provide a response to the cease and desist letter. The response should lay out the facts and the case law, point out the weaknesses in their case and convince them that pursuing litigation would be inadvisable. The response can also offer an olive branch of sorts: reasonable assurances. My experience suggests that many employers would rather get reasonable assurances than pursue litigation. What does this mean? In many cases, the employer (or, more specifically, a manager, owner or CEO) is suspicious about what the former employee knows, what they’ve taken with them, and what they’re doing now. Often, the owner or CEO has a gut feeling (but no proof) that the former employee is trying to “get back at” the company and must be up to no good. This often leads to corporate counsel firing off a cease and desist letter at the boss’s insistence. Sometimes, this even leads to a hastily filed and poorly conceived lawsuit. In many instances, the best way to defuse the situation is through the former employee providing reasonable assurances. In addition to pointing out weaknesses in the case, the attorney defending the prospective non-compete case should, to the extent possible, try to set the company’s mind at ease. If the employee returned all her files, laptops and flash-drives, say so. If she has not solicited any customers, say so. If she never knew any of the details about Top Secret Project X, say so. If she just wants to move on and has no intent to interfere with her old company’s business, say so. It may sound very simple, but these types of assurances can go a long way toward resolving the non-compete dispute early and avoiding litigation.
Jonathan Pollard is a trial lawyer and litigator based in Fort Lauderdale, Florida. He focuses his practice on cases involving non-compete disputes, antitrust and business torts. He represents clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Jupiter, Fort Myers, Tampa, and Orlando.
