A former sales manager is calling the accounts they used to run, and your signed agreement says they shouldn’t. That’s a stressful spot for any business owner.
In short, a Florida court enforces a restrictive covenant only if it is in a signed writing, protects a legitimate business interest, and is reasonable in time, area and line of business. If a restriction goes further than needed, a court can narrow it instead of throwing it out. The sections below explain how that works and what your business can do now.
What a Breach of a Non-Compete or Non-Solicitation Agreement Looks Like
A breach happens when a former employee, partner or seller does something the signed covenant forbids. A non-compete limits working for or starting a competitor within a set time and area. A non-solicitation covenant limits contacting or taking customers, employees or vendors.
Common examples include a sales manager who calls the accounts they serviced after quitting, a departing partner who opens a competing shop nearby, and a seller who reopens in the same market after a sale.
A breach can happen without any stolen file. If the covenant bars contact with former customers, a call or message to one of them may be enough. The exact wording controls, so start by pulling the signed agreement, every amendment and the employee’s job description.
If a former employee or seller is now calling your accounts, call (305) 570-2208 or reach out through our contact page to talk through what your signed agreement says. Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
How Florida Law Tests a Restrictive Covenant
Florida courts test these agreements under Fla. Stat. § 542.335. The first test is form. A court won’t enforce a restrictive covenant unless it is in a writing signed by the person against whom enforcement is sought.
The second test is purpose. A restrictive covenant not supported by a legitimate business interest is unlawful, void and unenforceable. The party seeking enforcement must plead and prove that the restraint is reasonably necessary to protect that interest.
The statute also sets time presumptions.
Check which category your agreement falls into before you rely on any number.
Once the party seeking enforcement makes a prima facie showing, the other side must show the restraint is overbroad, overlong or otherwise not reasonably necessary. If it is, a court shall modify the restraint and grant only the relief reasonably necessary.
Legitimate Business Interests a Court Looks For
A court looks for a real business interest that the covenant protects. The statute’s terms point to things like a specific geographic location or a specific marketing or trade area.
Businesses usually show that interest with records. Useful examples include customer lists, pricing files, training materials and sales history by account. Records that show which accounts the employee handled, and what those accounts bought, tend to do more work than general statements that the employee “knew everything.”
Whether an interest is strong enough depends on the facts, including the employee’s role and what they actually had access to. A covenant that covers a wide region for a job that touched only one city invites a challenge. Keep your records together and dated.
Steps a Business Can Take Before Filing Suit
Start with the paper. Collect the signed agreement, amendments, the employee’s job description, and records of customer relationships and confidential information. These show what the covenant covers and what the business needed to protect.
Next, preserve evidence of the suspected breach. Save dated emails and texts, social media posts, invoices showing lost sales, account notes, and the names of anyone who saw the conduct. Write down what happened and when, while the details are fresh.
A written demand or cease-and-desist letter is often the next step. It identifies the covenant, describes the conduct at issue and states what you want the person to stop or do. It also puts the issue on record in plain terms.
Timing matters. Deadlines apply to these claims, and waiting can weaken your position. Once you have the facts in hand, don’t sit on them.
Remedies a Florida Court Can Order
A court can order a temporary injunction, a short-term order that stops ongoing competition or solicitation while the case moves forward. Businesses often ask for this relief first, because lost accounts are hard to win back later.
If a dispute has cut into your company’s revenue, gathering contracts, invoices, sales records and financial statements early can help you explain what happened when you speak with a lawyer. Damages depend on the evidence, so keep sales history, pricing and account records organized from the start.
A court shall modify an overbroad covenant and grant only the relief reasonably necessary to protect the legitimate business interest, rather than enforce it as written. That means the relief you ask for should track what the agreement actually protects.
Two common mistakes are asking for more than the agreement covers and failing to track losses as they happen.
Claims Against a New Employer and Related Claims
A business can sometimes bring claims against the competitor that hired its former employee, not only the employee.
A tortious interference claim requires four things, as Ozyesilpinar v. Reach PLC explains: a business relationship, the defendant’s knowledge of it, an intentional and unjustified interference, and damage to the plaintiff from the breach of the relationship.
The relationship must also be shown by an actual and identifiable understanding or agreement that in all probability would have been completed without the interference. A general hope that a customer would have stayed isn’t enough.
Disputes over customer lists or pricing data may involve other claims as well, depending on the facts of each case.
Be careful with unjust enrichment. Where an express contract covers the same subject matter, claims arising from that contract generally can’t support an unjust enrichment claim, as Williams v. Johnson explains. A single lawsuit may include more than one type of claim, depending on the facts. The right mix turns on the evidence.
Not sure what your next step is?
Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
What Happens After a Lawsuit Is Filed in Florida
Venue rules matter early. Fla. Stat. § 47.011 says actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located, but this section does not apply to actions against nonresidents. For a Tampa Bay business, the county where the conduct occurred may be Hillsborough County.
Check the agreement for an arbitration clause. Fla. Stat. § 682.02 makes a written agreement to arbitrate valid and enforceable, except on grounds that exist to revoke a contract. If that clause applies, the dispute may go to arbitration instead of court.
After filing, both sides typically exchange documents and may take depositions. No one can predict how a court will rule from general information.
Eduardo A. Maura is the responsible lawyer for this page. The firm’s only office is at 1646 W Snow Ave in Tampa, Florida. The firm serves businesses in Tampa, Hillsborough County and the Tampa Bay area.
Are non-compete agreements enforceable in Florida?
Florida enforces one that is signed, protects a legitimate business interest and is reasonable in time, area and line of business.
How long can a non-compete last in Florida?
Can a Florida court change a non-compete that is too broad?
Yes.
If a former employee or seller is now taking your accounts, the signed agreement is the place to start. Call (305) 570-2208 or use our contact page to talk through what your covenant says.
