Challenging Florida Non-Compete Agreements: Lack Of Competition

Often an employer seeks to enforce a non-compete agreement against a former employee, arguing that the employee is competing with the employer in violation of a non-compete agreement. Similar arguments are made by the purchaser of a business against a prior owner. Invoking Fla. Stat. 542.335, the employer often argues that the employee's actions harm one of the statute's enumerated legitimate business interests (i.e. customer relationships, trade secrets, etc.). One issue that should never be overlooked in non-compete litigation, however, is whether the employee is actually competing with the employer. This issue – whether a party to a non-compete agreement engaged in competition – was before the court in D'Agostino v. Lethal Performance, Inc., 958 So. 2d 605 (Fla. 4th DCA 2007).