How do I Defend Myself Against a Non-Compete?

*This is a transcript of the Facebook Live video from 3-16-18  Click here to watch the video.

Well, I think you can take a lot of lessons from the enforcement side. The first thing is is to hold the enforcing company to the letter of the law and make sure that everybody understands what this compelling business interest is. Frequently I have found you can really investigate whether there’s competition or not. In today’s economy, even operating within the same industry, frequently you’re not really competing against the other company because you may be going to work for somebody has different services entirely than company A. And what I always ask clients is, “Well, can people do business with company B and company A at the same time? And does it make financial sense to do so?”

So the first thing you want to look at is am I really competing against company A or not? And then, as we go through this, you don’t want to go down this road unless it makes monetary sense to spend the time and the money to fight it. And sometimes you’re just better off trying to make a deal without incurring expenses. I have found that frequently both sides, at some point, come to the realization that continued litigation does not make financial sense for either one. And that’s when everybody sits down at a table in a mediation or in some sort of settlement conference, either in person or over the phone, and tries to work something out. Because oftentimes, I would say almost 99% of the time, there’s a business solution to these issues that’s best arrived at among the parties rather than forcing a judge to decide. Because frequently a judges decision, when you apply the law to specific situation, oftentimes neither side is really all that happy about it.

I can tell you that I’ve had a lot of experience. My law firm has had a lot of experience with these kinds of cases. I’ve literally litigated these cases all over the country. I’ve had non-compete cases in Oregon, in Ohio, in Oklahoma, in Memphis, Mississippi, Arkansas, Florida, Alabama. And the issues are always very, very similar and almost always it comes down to these business decisions that the clients have to make about the cost of continuing to go forward versus the benefit of getting their way, whichever one it is.

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