Defending Against Suits on Non-Compete, Non-Competition and Non-Disclosure Agreements
Texas law provides that employers can prohibit or limit the future employment opportunities of their former employees. If you have been sued on a non-compete, a non-competition agreement, or non-disclosure agreement in San Antonio, Texas, we can help you.
Defenses Against Suit on Non-Competes. District court judges generally do not favor non-compete agreements, and most will look for a way to avoid enforcing them if they can. A few of the common defenses are as follows:
Agreement Must Be Ancillary to Other Agreement. The non-compete is not made “ancillary to another agreement”. This means that for the non-competition agreement to be enforceable the employer must “give something up” (the consideration). This requirement has been severely relaxed by the Texas Supreme Court. However, the employer still has to receive something that would give him a competitive advantage compared to the employer’s general competitors. For example, when the employer agrees to give the employee access to trade secrets or other confidential information, he has a legitimate interest in ensuring that information is not disclosed to a competitor. However, if all the employer gives up is information that is available from other sources, or a promise to provide a particular notice of termination, or even cash, the non-compete will likely fail this test because none of these things give the employer any competitive advantage.
Inevitable Disclosure Doctrine. Courts apply this fact specific doctrine when it can be shown by the employee that the trade secrets allegedly sued on are generally discoverable or will be generally discoverable in the employee’s new job. If a salesman in a particular sub-field, medical supplies for example, will be able to solicit customers (hospitals and doctors in a particular region) because they are generally known in the field.
Unreasonable Geographic Restriction. The geographic restriction to your non-compete is too wide; i.e. “all of Texas.”
Unreasonable Length of Time. The length of time that the non-compete is in effect is too long. Generally, longer than one year is considered too long.
You are Not Using Trade Secrets. You are capable of performing your job with your new employer without using your ex-employer’s trade secrets or confidential information.
Confidential Material Overbroad or Not Marked. Oftentimes the employer will sue the employee claiming that the employee is using material that has been defined so broadly in the agreement that courts refuse to uphold it. Also, if you have been given material that is not designated as confidential courts may be sympathetic to an employee who is using material that has not been designated as confidential.Call us!
If you have been sued on a non-compete agreement or accused of misappropriating trade secrets by your former employer please contact the attorneys of Carabin & Shaw in San Antonio today. We offer a free initial telephone consultation for non-competition agreements and offer reasonable billing rates. Our experienced San Antonio employment lawyers will know how to deal with non-competition agreements so you don’t have to.
For immediate assistance and to set up a free consultation with one of our experienced lawyers, call us toll-free at 1.800.862.1260.
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