Florida's Statutory History for Non-Compete Agreements

posted by David Goldman  |  Jul 21, 2009 08:03 AM [EST]  |  applies to Florida

Non-Compete agreements have gone through three major variations since.
  1. Prior to 1953
  2. 1953 - 1996
  3. 1996 - Present
The enforceability of a covenant not to compete under Florida law is governed by the law in effect at the time the agreement was entered into. (Bradley v. Health Coalition, Inc., 687 So. 2d 329, 331 (Fla. 3d DCA 1997).

Most cases today are evaluated under the 1996 - Present statutes and deal with the following factors.
  • Courts should construe restrictive covenants in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement.
  • Violation of a restricted covenant that is enforceable creates a rebuttable presumption of an irreparable injury.
Required Elements of an enforceable noncompete agreement in Florida;
  1. A written agreement signed by the party whom enforcement is sought against;
  2. the existence of one or more legitimate business interests justifying the restrictive covenant, and that the contractually specified restraint is reasonably necessary to protect the established interest of the employer
    1. Trade Secrets;
    2. valuable confidential business or professional information that does not qualify as a trade secret;
    3. substantial relationships with specific prospective or existing customers, patients, or clients;
    4. customer, patient, or client goodwill associated with an ongoing business, a specific geographic location, or a specific marketing or trade area; and
    5. extraordinary or specialized training.
  3. The agreeements are enforceable to the extent that they are reasonable in Time, Geographic Area, and Scope of Business.

While Professionals, doctors, accountants business owners, franchisers, sales people, managers, marketing executives, and others have been found to have been restricted by valid non-compete agreements, attorneys are prohibited from participating in offering or participating in agreements that restrict an attorney's right to practice.

Often agreements attempt to define information that is not a trade secret as a Trade Secret.  Florida statute 688.02 defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process that:

a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

General information about a company is not a trade secret just because they call it a Trade Secret.  Also information that is commonly known in the industry and not unique to the injured party claiming injury is not confidential and not entitled to protection.

Care should be taken when drafting a Florida Non-Compete agreement so that there is a higher likelihood of enforceability.  We often see these agreements which are adapted from other states or trade organizations and do not comply with the Florida Statute.  It is important to have a Florida Non-Compete Lawyer review your agreement to determine the Enforceable of your Florida Non-Compete Agreement before signing it or taking actions that might be interpreted as violating the agreement to avoid the costs and expenses of defending claims.

David Goldman 
Apple Law Firm PLLC, 331 East Monroe Street, Jacksonville, FL 32202

Tel  (904) 685-1200   Fax (904) 212-0678


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