Most employees sign non-competition, non-solicitation and proprietary information agreements. Before beginning competition or a new job in the same industry, it is critically important to have such agreements reviewed by counsel to make sure you understand what you signed and what the chances are that the restrictive commitments will be enforced against you.
Often, these types of agreements limit a person’s ability to work in desired areas for a considerable length of time, much to the surprise of the person who signed it years ago. Not every non-competition agreement is enforceable as drafted, however. Some are unenforceable or only partially enforceable because of lack of consideration, because they are too broad, or for other reasons. We can help you understand whether the non-competition agreement you signed is subject to defenses. That can make a huge difference when you are looking for work. Depending on your leverage, we can also help you convince third parties who want to hire you to protect you through indemnification if you are later sued by your former employer for violating such agreements.
If you are sued, we can also help you evaluate your risk and defend you against injunction and damage claims. These cases are often resolved by negotiation, but you can’t go it alone. You need someone who can help you understand both your risk and strengths.
Individuals also need to keep in mind that they may be able to obtain carve outs or limits to non-competition and proprietary information agreements from an employer at the time they are first asked to sign those agreements. We consult in those circumstances as well. In addition, individuals can enhance their position by asking for an attorney fee and cost recovery provision to be added to the agreement. Such provisions can make challenging a non-comp much more cost effective, and attempted enforcement of an unenforceable or overbroad agreement by the employer much more risky.
Former employees also have obligations to protect and not use a former employer’s trade secrets. For example, client lists and other important sales information can be a trade secret, but not if the same information is available through public sources. We provide advice and litigation assistance to help you identify and treat trade secrets appropriately. We also help defend trade secret claims when individuals have been sued.
Preparing to compete is another area where individuals can benefit from advice. Many people do not understand that they can be sued for breach of the common law duty of loyalty to their current employer if they use employer resources to prepare to compete, prepare to compete while on the clock, or begin competing before they leave. We can help you avoid these pitfalls.