I agree that any threatened or actual violation of this Agreement or any of its terms will constitute immediate and irreparable injury to the Company and the Company shall have the right to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the Company may have for a breach or threatened breach of this Agreement.

A litigant may try to use contractual and statutory presumptions of irreparable harm to avoid the burden of proving the existence of irreparable harm. However, that litigant may not be able to completely avoid their burden of presenting evidence demonstrating the existence of irreparable harm. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The statutory presumption of irreparable harm is rebuttable. Don King Prods., Inc. v. Chavez, 717 So. 2d 1094 (Fla. 4th DCA) (The “legislative history of the statutory amendment shows that the legislature did not intend to create a conclusive presumption in the statute.”). Therefore, irreparable harm is not conclusively established merely because a restrictive covenant is violated. A defendants can present evidence demonstrating the absence of irreparable harm. If successful, the party requesting the injunction must come forward with evidence demonstrating irreparable harm actually exists. A court will not issue an injunction unless the requesting party is successful in its efforts and demonstrates it was irreparably harmed by the defendants unlawful competitive conduct.

A contractual presumption of irreparable harm similarly does not absolve the party seeking an injunction from demonstrating the existence of irreparable harm. Anago Franchising, Inc. v. CHMI, Inc., 2009 WL 5176548 (S.D. Fla. Dec. 21, 2009) (A “contract provision, however, ‘is not alone dispositive of the issue of irreparable harm, and does not insulate a plaintiff seeking a preliminary injunction from the need to prove that it will suffer imminent irreparable injury as a result of the [defendant’s] conduct.'”). In fact, a contractual presumption of irreparable harm is given little, if any, weight when determining whether irreparable harm exists. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (Courts “have generally accorded [contractual irreparable harm presumptions] little to no weight, finding that such a contract provision is not dispositive of the issue of irreparable harm, does not in and of itself create a presumption of irreparable harm, nor is it binding upon the Court.”). Consequently, a court “must engage in the usual case-by-case analysis to determine whether [the movant] confronts imminent irreparable harm warranting the issuance of a preliminary injunction.”  

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Oral contracts are contracts. Koechli v. BIP Int’l, Inc., 870 So. 2d 940 (Fla. 1st DCA 2004) (“Florida law recognizes that contracts may be validly formed without an express written agreement.”). Consequently, oral contracts are subject to the same basic contract principles governing written contracts. St. Joe Corporation v. McIver, 875 So. 2d 375 (Fla. 2004). This means oral contracts arise when there are an offer, acceptance, consideration, and sufficient specification of essential terms. Riti Fin., LLC v. Patel, 386 So. 3d 1058 (Fla. 5th DCA 2024) (“Oral contracts are subject to the same “basic” formation requirements as written contracts, namely, “offer, acceptance, consideration and sufficient specification of essential terms.”). Establishing these components can be difficult because no writing memorializes all the contract’s terms. Courts can be skeptical of oral contracts as a result, so litigants should be prepared to establish their existence by a preponderance of the evidence. Solnes v. Wallis & Wallis, P.A., 15 F. Supp. 3d 1258 (S.D. Fla. 2014).

Contracts implied in fact are also enforceable. This type of contract “is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383 (Fla. 4th DCA 1997). “The only distinction between an express and implied-in-fact contract is the manner in which the parties’ assent is manifested or proven.” Baron v. Osman, 39 So. 3d 449 (Fla. 5th DCA 2010). A “contract implied in fact is not put into promissory words with sufficient clarity, so a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Commerce, 695 So. 2d at 383. For example, a contract implied in fact can arise when a person performs services at another’s request or when “services are rendered by one person for another without his expressed request, but with his knowledge, and under circumstances fairly raising the presumption that the parties understood and intended that compensation was to be paid.”

Florida’s legislature requires some contracts to be in writing even though the common law discussed above allows contracts to be oral or implied in fact. Florida’s statute of frauds requires agreements pertaining to certain subject matters including those identified below to be in a writing signed by the obligor:

• a promise to answer for the debt, default, or miscarriage of another;
• an agreement for the sale of lands, tenements, or hereditaments, or any lease of them for a period longer than one year; and
• an agreement that cannot be performed within one year from making it

Fla. Stat. § 725.01. Florida’s legislature also requires restrictive covenants like non-compete agreement, non-solicitation agreements, and non-disclosure agreements to be in writing. Fla. Stat. § 542.335.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Litigants seeking an injunction when a restrictive covenant is involved are usually better positioned to obtain that injunction because Florida’s restrictive covenant statute creates a presumption of irreparable harm when a restrictive covenant is violated. Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). By contrast, Florida’s trade secret statute does not contain a similar presumption. The trade secret statute simply states “[a]ctual or threatened misappropriation may be enjoined.” Fla. Stat. § 688.003. Therefore, it would appear litigants seeking to enjoin another from misappropriating their trade secret without the benefit of a restrictive convent need to demonstrate the existence of irreparable harm.

Some courts have deviated from the statutory wording by holding that “[i]rreparable harm is presumed where there has been misappropriation of a trade secret.” ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31 2012). However, this type of holding is generally considered bad law. Castellano Cosm. Surgery Ctr. P.A. v. Rashae Doyle, P.A. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). In fact, a close review of ACR Elecs., Inc. v. DME Corp. reveals it is predicated upon Florida restrictive covenant law and copyright law. Therefore, a litigant should be required to prove the existence of irreparable harm to obtain an injunction when a trade secret is at issue and no applicable restrictive covenant exists. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains “a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,” the DTSA does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

In Florida, “no temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610. Federal courts have a similar rule. Fed. R. Civ. P. 65 (“The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.”). Therefore, the party seeking a temporary injunction must adequately secure its request for an injunction in case the injunction is deemed improper and harms the opposing party as a result. U.S. Lawns, Inc. v. Landscape Concepts of CT, LLC, 2016 WL 9526340 (M.D. Fla. Oct. 31, 2016). (“Typically, a security bond is required when a court enters an injunction which prevents commercial, money-making activities.”).

But how do courts determine the proper bond amount? The answer is ostensibly simple. Conduct an evidentiary hearing and present evidence demonstrating the anticipated costs and damages an injunction would cause, the adverse party’s chances of overturning the temporary injunction, and other pertinent factors. Longshore Lakes Joint Venture v. Mundy, 616 So. 2d 1047 (Fla. 2d DCA 1993) (explaining the factors to consider when conducting an evidentiary hearing on the injunction bond amount). In applying these factors, some courts have actually determined the bond amount can be $0 or a relatively de minimis amount when the potential harm posed to the non-movant is slight. See Harris v. Hous. Auth. of City of Daytona Beach, 2001 WL 36404273 (M.D. Fla. Apr. 25, 2001) (not requiring a bond where the preliminary injunction would result in minimal potential harm to the defendant); Anchor Title & Escrow, LLC v. Omega Nat’l Title Agency, LLC, 2023 WL 3564942, at *2 (N.D. Fla. Apr. 14, 2023) (requiring $1,000.00 bond). Therefore, a party requesting a significant bond amount should be prepared to present evidence demonstrating the substantial destruction an injunction would cause. One could present evidence of the business’ historic revenues and profits to demonstrate the large sums the business could not generate under an injunction. A business could also present evidence demonstrating the volume and value of customers that would leave the business if an injunction were imposed. There are likely other forms of evidence that could demonstrate the harm an injunction would cause to your business and you should consult counsel to determine what they are.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The FTC shifted its restrictive covenant strategy several months after withdrawing its Ryan appeal by moving away from a sweeping national ban and, instead, focusing on a case-by-case enforcement approach. In a workshop hosted by the FTC in late January 2026, the FTC confirmed it will not pursue a national rule ban against non-competition agreements but will bring targeted enforcement actions against agreements the FTC deems overly broad or unjustified. The FTC will focus on non-competition agreements associated with lower-wage earners or non-specialized roles because it views them as anticompetitive, legally suspect, lacking clear business justification. Therefore, business owners should review their existing non-compete agreements to ensure they are narrowly tailored, reasonable in scope and duration, and based on a legitimate business interest because the FTC will focus enforcement actions on overboard agreements.

The final nail in the coffin for the FTC’s 2024 rule generally banning non-compete agreements came in February 2026 when the FTC published a rule officially removing 16 CFR Part 910 from the Code of Federal Regulation. 16 CFR Part 910 was the FTC’s rule banning most non-competition and non-solicitation agreements nationwide that went into effect September 4, 2024. Removing this rule from the Code of Federal Regulation nullifies it enforceability and prohibits litigants from using 16 CFR Part 910 to avoid restrictive covenants.

Lawsuits involving restrictive covenants will therefore turn on the types of issues previously discussed at length in this blog. Is the agreement in writing, does the enforcer possess a legitimate business justifying enforcement of the restrictive covenant, did the enforcer breach the restrictive covenant first, can the enforcee overcome the presumption of irreparable harm, and is the restriction reasonable under the circumstances? Defendants facing restrictive covenant enforcement actions will obviously have more difficulty avoiding enforcement of restrictive covenants without the FTC’s ban while business owners will have an easier time enforcing their agreements with employees and others. Whether you are the enforcer or the enforcee, it is important to consult legal counsel about your restrictive covenant agreement to determine whether it is enforceable and to what extent it can be enforced.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Irreparable harm exists when an injury is actual or imminent. Northeastern Florida Chapter v. City of Jacksonville, 896 F.2d 1283. The injury cannot be too remote. Litigants sometimes try to circumvent the requirement of proving actual or imminent injury giving rise to irreparable harm by arguing irreparable harm is presumed whenever a trade secret is misappropriated. At first blush, it appears some authority supports this argument. ACR Elecs., Inc. v. DME Corp., 2012 WL 13005955 (S.D. Fla. Oct. 31, 2012) (“Irreparable harm is presumed where there has been misappropriation of trade secrets.”). However, these authorities are likely incorrect because they rely on Florida’s restrictive covenant statue, which contains an express provision creating a presumption of irreparable harm when a restrictive covenant is breached. Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231 (S.D. Fla. 2025) (“Although Florida law contains ‘a statutory presumption of irreparable injury stemming from the violation of a valid restrictive covenant,’ the D[efend ]T[rade ]S[ecrets ]A[ct] does not contain a similar statutory presumption and the Court declines to read a non-existent presumption into a statute.”); Fla. Stat. § 542.335 (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.”). Trade secret statues do not generally contain a similar provision creating a presumption of irreparable harm when misappropriation occurs. Castellano Cosm. Surgery Ctr., P.A. v. Rashae Doyle, P.A., No. 2021 WL 3188432 (M.D. Fla. July 28, 2021) (“[N]either FUTSA nor DTSA contain… statutory presumption[s]…, and the Court may not read one into the statute where the text does not provide one.”). Therefore, authorities like ACR Elecs., Inc. v. DME Corp. should not carry weight.

Courts should engage in a case-by-case analysis to determine whether irreparable harm exists. Anago Franchising, Inc. v. CHMI, Inc., 2009 WL 5176548 (S.D. Fla. Dec. 21, 2009) (The “Court must engage in the usual case-by-case analysis to determine whether movant confronts imminent irreparable harm warranting the issuance of a preliminary injunction.”). This requires courts to construe the facts of each case to determine whether the evidence demonstrates an existence of actual or imminent harm that is not too remote.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Historically, there has been dispute concerning the elements needed to establish the existence of a unilateral mistake. One line of cases determined that litigants advancing the unilateral mistake contract defense must prove the mistake was induced by the party seeking to benefit from the mistake. See Rachid v. Perez, 26 So. 3d 70 (Fla. 3d DCA 2010) (holding that “[under Florida law, the party seeking rescission based on unilateral mistake must establish that: (1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.”). Conversely, another line of cases excluded the requirement of inducement to establish unilateral mistake. See U.S. Alliance Corp. v. Tobon, 715 So. 2d 1122 (Fla. 3d DCA 1998). The court in DePrince v. Starboard Cruise Servs., Inc., 271 So. 3d 11 (Fla. 3d DCA 2018) addressed the division in legal requirements and determined a party does not need to prove he or she was induced into making the mistake to avail themselves of the unilateral mistake defense. DePrince, 271 So. 3d 11 (“We conclude that a party seeking rescission of a contract based on a unilateral mistake does not have to prove that she was induced into making the mistake by the other party, and affirm the judgment for Starboard.”). Therefore, the elements required to establish unilateral mistake are the existence of a “mistake was not the result of an inexcusable lack of due care;… denial of release from the contract would be inequitable; and… the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.” Can Fin., LLC v. Niklewicz, 307 So. 3d 33 (Fla. 4th DCA 2020).

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Establishing a tortious interference claim may appear simple. A plaintiff need only prove the existence of a business relationship or contractual relationship between the plaintiff and a third person under which the plaintiff has legal rights, the defendant’s knowledge of the relationship or contract, the defendant’s intentional and unjustified interference with in that relationship which induces or causes the demise of the relationship, and damages resulting from the interference. Seminole Tribe of Fla. v. Times Pub. Co., 780 So. 2d 310 (Fla. 4th DCA 2001). The claim requires a plaintiff to prove the defendant “interfered with a contract by influencing, inducing or coercing one of the parties to… breach the contract, thereby causing injury to the other party.” Farah v. Canada, 740 So. 2d 560 (Fla. 5th DCA 1999). This requirement can provide a defendant with an opportunity to defeat the tortious interference claim when the third-party conducting business with the plaintiff was predisposed to breaching its agreement or relationship with the plaintiff. Simmons v. USI Ins. Servs., LLC, 2024 WL 946287 (M.D. Fla. Mar. 5, 2024) (“Under Florida law, the breaching party’s predisposition to breach defeats a claim for tortious interference, even where the defendant is aware that the breaching party intends to breach and takes actions that further the breaching party’s plan.”). This is true even when a defendant helps the third-party terminate the relationship with the plaintiff. Courts reason that predisposition precludes tortious interference because a defendant cannot be the proximate cause of the relationship’s or contract’s demise when the third-party was going to end the relationship anyway. Ingenuity, Inc. v. Linshell Innovations Ltd., 644 F. App’x 913 (11th Cir. 2016) (“Under Florida law, a party’s predisposition to breach precludes any finding that it was induced to breach by a third party.”). However, predisposition does not provide defendants with an unfettered license to tortuously interfere because the defendant’s actions cannot be the proximate cause the relationship’s termination. Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (M.D. Fla. 2019) (Predisposition to breach means “that the breach by the party to the contract rather than the persuasion by the defendant was the proximate cause of the plaintiff’s damage.” Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (M.D. Fla. 2019).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Temporary injunctions are often imposed early in a lawsuit before the parties have a complete opportunity to conduct discovery and obtain all the facts. The imposition of a temporary injunction can often signal that the Plaintiff will ultimately prevail at trial. This is because the standard for obtaining a temporary injunction requires a plaintiff to prove he or she has a substantial likelihood of success on the merits at trial. Seacoast Banking Corp. of Fla. v. Diemer, 2020 WL 3266107 (M.D. Fla. Feb. 3, 2020) (enjoining the defendant because the plaintiff “established a substantial likelihood of success on its trade secret misappropriation claims under the Defend Trade Secrets Act… and Florida Uniform Trade Secrets Act.”).

A lawsuit is not over merely because a court temporarily enjoins a defendant because the defendant can try to dissolve the injunction. Dissolution is permitted when there is a change in circumstance. Thomas v. Osler Med., Inc., 963 So. 2d 896 (Fla. 5th DCA 2007) (“When a motion to dissolve is directed to a temporary injunction entered after notice and a hearing, the moving party must establish that a change in conditions justifies the dissolution.”). A change in circumstance can occur when the trade secret at issue is no longer secret. Fla. Stat. § 688.003 (“Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist.”). A change in circumstance can also occur when the plaintiff in a non-compete lawsuit no longer maintains a relationship with a customer that the plaintiff claimed justifies enforcement of the non-compete provision. IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016) (“Plaintiff here cannot read the word ‘substantial’ out of the statute and gain the benefit of an injunction based upon a relationship with [the customer] that was non-exclusive, vague and apparently terminated by [the customer] itself because it was offended or upset by Plaintiff’s decision to stridently confront it about Defendant’s job offer.”).

A defendant can also dissolve a temporary injunction when he or she demonstrates the injunction was based on clear legal error or a misunderstanding of the relevant facts. Planned Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918 (Fla. 2017) (“[D]enial of a motion to modify or dissolve is also an abuse of discretion where a party can demonstrate clear legal error or misapprehension of facts on the part of the trial court.”).  This can occur when the temporary injunction order is based on relief that was never sought or tried by the plaintiff or based on a vague description of the enjoined activity.

Another option at a temporarily enjoined defendant’s disposal is direct appeal. Appellate courts usually permit litigants to directly appeal temporary injunction orders even though they are not considered final orders. Fla. R. App. P. 9.130. An appeal can provide an enjoined defendant with a new judge who may come to the case with a fresh perspective of the facts.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Sneaky and deceitful conduct generally qualifies as unclean hands. Courts have stated that “[e]quity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. Unscrupulous practices, overreaching, concealment, trickery or other unconscientous conduct are sufficient to bar relief.” Hensel v. Aurilio, 417 So. 2d 1035 (Fla. 4th DCA 1982). However, the mere establishment of condemnable conduct is not sufficient to prevail on the defense because additional elements must be satisfied. The party asserting the defense must also prove reliance on the conduct, relation to the litigation, and a resulting injury. McIntosh v. Hough, 601 So. 2d 1170 (Fla. 1992).

The unclean hands defense can be used to defend against the enforcement of restrictive covenants like non-compete agreements to the extent the plaintiff seeks equitable relief. However, prevailing on the defense can be difficult. In Technomedia Sols., LLC v. Scopetto, 2013 WL 6571558 (M.D. Fla. Dec. 13, 2013), the defendant argued the restrictive covenant could not be enforced against her because the defendant’s former employer tried interfering with her employment with a competitor. The former employer’s attorney sent a letter to the competitor to advise it about the former’s employer’s non-compete agreement with the defendant. The court rejected the unclean hands defense because the letter did not demonstrate interference. One example of a potential successful use of the unclean hands in a restrictive covenant lawsuit can be found in Bradley v. Health Coal., Inc., 687 So. 2d 329 (Fla. 3d DCA 1997). In Bradley, the former employee argued his former employer could not enforce the restrictive covenant because it ordered the former employee to sell unfit products and alter invoices to defraud customers. This forced the employee to resign because he refused to comply with the former employer’s directives. The appellate indicated these facts could give rise to the successful application of an unclean hands defense directed the trial court to consider the issues.

Litigants can be creative when asserting an unclean defense because defendants are not limited to matters between the plaintiff and the defendant. Privity is not an essential element of the equitable defense. Quality Roof Servs., Inc. v. Intervest Nat. Bank, 21 So. 3d 883 (Fla. 4th DCA 2009). Therefore, the defense may be asserted by a defendant claiming the plaintiff acted toward a third party with unclean hands with respect to the matter in litigation. Yost v. Rieve Enters., Inc., 461 So.2d 178 (Fla. 1st DCA 1984) (“There is no bar to applying the doctrine of unclean hands to a case in which both the plaintiff and the defendant are parties to a fraudulent transaction perpetrated on a third party.”). For example, in Quality Roof Servs., Inc. v. Intervest Nat. Bank, 21 So. 3d 883 (Fla. 4th DCA 2009), the defendant asserted an unclean hands defense based on the inaction of a third-party. The defendant alleged the plaintiff should not be granted a foreclosure because an insurance company failed to distribute insurance proceeds to the defendant, which would have allowed the defendant to pay the plaintiff and prevented the foreclosure. The Court allowed this defense to stand even though the conduct pertained to the inaction an insurer rather than the plaintiff.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Several laws seemingly prevent a litigant from enforcing a non-compete against another who did not sign the agreement. The first is Florida’s restrictive covenant statute which prohibits a court from “enforcing a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.” Fla. Stat. § 542.335. Another is the contractual privity doctrine which requires direct contractual privity between the parties engaged in the lawsuit. 4 Corbin on Contracts § 772, at 2 (1951) (explaining the term “privity” is a word of art that derives from the common law of contracts and commonly used to describe the relationship of persons who are parties to a contract).

Florida created a special cause of action to enforce non-competes and other restrictive covenants against third-parties who did not sign the contract. The cause of action is called aiding and abetting. Bauer v. DILIB, Inc., 16 So. 3d 318 (Fla. 4th DCA  2009) (“Even though section 542.335(1)(a) precludes a plaintiff from enforcing a restrictive covenant against a third party, a plaintiff still may enjoin a third party who aids and abets the violation of a restrictive covenant.”). Courts have held “[t]here is no doubt that a court can enjoin others who were not parties to the non-compete agreement [as long as they] receive notice and have an opportunity to be heard.” USI Ins. Servs. of Fla. Inc. v. Pettineo, 987 So. 2d 763 (Fla. 4th DCA 2008). This legal proposition is supported by long-standing well-established law. W. Shore Rest. Corp. v. Turk, 101 So. 2d 123 (Fla. 1958) (“[T]he rule that a stranger to a covenant may be enjoined from aiding and assisting the covenanter in violating his covenant is supported by an overwhelming weight of authority.”).

There are significant limitations to the aiding and abetting claim. The primary limitation is that the plaintiff can only obtain an injunction against the third-party. Dad’s Props., Inc. v. Lucas, 545 So. 2d 926 (Fla. 2d DCA 1989) (“Individuals and entities may be enjoined from aiding and abetting a covenantor in violating a covenant not to compete.”). It cannot obtain damages. Likewise, the plaintiff cannot recover attorney’s fees from the third-party. Bauer, 16 So. 3d 318 (“To the extent the plaintiff sought to recover its attorney’s fees under section 542.335(1)(k), no such statutory authority exists against a third party.”). Courts prevent the recovery of attorney’s fees despite the permissible wording in the restrictive covenant statute because “the power to enjoin third parties [does not] derive[ ] from section 542.335 or its predecessor, section 542.33, Florida Statutes. Instead, such power has evolved from the common law in cases.” Therefore, when Courts review the restrictive covenant statute as a whole rather than consider various subsections in isolation, the requirement that the restrictive covenant be signed by the party it is being enforced against militates against awarding attorney’s fees.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Courts sometimes refuse to enforce restrictive covenants when the covenant precludes a medical professional from treating his or her patients. Lloyd Damsey, M.D., P.A. v. Mankowitz, 339 So. 2d 282 (Fla. 3d DCA 1976) (holding that restrictive covenant was “unduly harsh and oppressive” in part because “[t]he testimony … revealed a compelling need for defendant’s services as a surgeon in the area and enforcement of the covenant would jeopardize the public health of the community”). In Bariana v. Fla. Health Scis. Ctr., Inc., 2025 WL 1416159 (Fla. Dist. Ct. App. May 16, 2025), the trial court determined that the hospital could enforce its restrictive covenant against the doctor because the hospital “expended considerable financial resources in the development of its thoracic surgery practice.” However, the trial court was reversed on appeal because the doctor demonstrated there was no other physician in the county capable of regularly performing his specialized procedures. If the doctor was enjoined from providing those procedures in the county, patient care would be significantly delayed, thereby causing accelerated poor prognoses for patients like cancer growth and metastases. To prevent these detrimental medical conditions, the court determined the public health of the county superseded enforcement of the restrictive covenants because enforcement would be jeopardized public health.

            Doctors are not immune from injunctions in restrictive covenants lawsuits. The doctor (and all other defendants) must prove the public policy they advance substantially outweighs enforcement of the restrictive covenant. In Joseph Spine, P.A. v. Moulton, 346 So. 3d 154 (Fla. 2d DCA 2022) the appellate determined that the doctor failed to meet this burden. Although the trial court determined that the doctor’s need to protect patient continuity of care substantially outweighed enforcement of the convents, the trial court’s finding was reversed because the doctor failed to demonstrate patients in his geographic area were underserved or otherwise unable to obtain the healthcare he provides.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Contractual choice of law provisions are generally enforced and presumed valid. Continental Mortgage Investors v. Sailboat Key, Inc., 395 So. 2d 507 (Fla. 1981) (demonstrating that courts uniformly enforce choice of law provision.”); Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306 (Fla. 2000) (The “choice-of-law provision is presumptively valid.”). Theprovision will only be rejected when the foreign law violates public policy of the forum jurisdiction. Delhomme Indus., Inc. v. Houston Beechcraft, Inc., 669 F.2d 1049 (5th Cir.1982) (“The party who seeks to prove [a choice of law] provision invalid because it violates public policy bears the burden of proof.”). This is a high bar of proof. Pizza U.S.A. of Pompano Inc. v. R/S Assocs. of Fla., 665 So. 2d 237 (Fla. 4th DCA 1995) (“[U]nless it is made clear to appear that there has been some great prejudice to the dominant public interest sufficient to overthrow the fundamental policy of the right to freedom of contract between parties sui juris.”). “The [mere] fact that the law of the forum state is different than the law of the foreign state does not mean that the foreign state’s law necessarily is against the public policy of the forum state.” Punzi v. Shaker Adver. Agency, Inc., 601 So. 2d 599 (Fla. 2d DCA 1992).

Parties choosing to apply Florida law to restrictive covenants will have to plead and prove the existence of at least one legitimate business interest justifying enforcement of those restrictive covenants. Florida’s legislature created a non-exhaustive list of legitimate business interests. White v. Mederi Caretenders Visiting Services of Se. Florida, LLC, 226 So. 3d 774 (Fla. 2017) (“The statute defines legitimate business interests through a non-exhaustive list.”). They include trade secrets, valuable confidential business information, substantial customer relationships, goodwill, or specialized training. Fla. Stat. § 542.335. However, parties choosing to apply Colorado law to restrictive covenants will have a more difficult time enforcing those restrictive covenants because the restrictive covenant statute in Colorado is more restrictive. Colorado limits the legitimate business interests to trade secrets, paid training, and paid scholarships. Colo. Rev. Stat. § 8-2-113. Colorado also has certain income thresholds and notification requirements that often have to be met before enforcement of the restrictive covenant is permitted. Therefore, the application of Colorado law to a restrictive covenant makes it harder to enforce than Florida law. If you are the party that would want to enforce the restrictive covenant, choosing Florida law or the laws of other states similar to Florida would provide the best chance of success. Conversely, if you are the party that would likely want to avoid enforcement of the restrictive covenant, selecting the application of Colorado law or states like Colorado would provide you the best chance of success.  

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

As an initial matter, a non-compete agreement for franchisors, licensors, and business purchasers utilizes the same mechanics as the employer/employee relationship. The franchisors, licensors, and business purchasers must ensure the agreement is in writing and that the agreement protects one or more legitimate business interests such as trade secrets, valuable confidential business information, substantial customer relationships, extraordinary training, or goodwill. Fla. Stat. § 542.335. A franchisor, licensor, or business purchaser cannot enforce a non-compete agreement without pleading and proving the existence of at least one of these legitimate business interests. Passalacqua v. Naviant, Inc., 844 So. 2d 792 (Fla. 4th DCA 2003) (“[T]here must be special facts present over and above ordinary competition” such that, absent a non-competition agreement, “the [competitor] would gain an unfair advantage in future competition.”).

Although many of the mechanics for enforcing a restrictive covenant against franchisees, licensees, and business sellers are the same as the employer/employee relationship, there are differences. One main difference is the amount of time a non-compete provision is deemed reasonable, and, therefore enforceable. Winmark Corp. v. Brenoby Sports, Inc., 32 F. Supp. 3d 1206 (S.D. Fla. 2014) (holding that the duration of a restrictive covenant enforced against a franchisee must be reasonable to be enforceable). Courts presume restrictive covenants lasting six months or less for employer/employee relationships reasonable and restrictive covenants lasting more than 2 years unreasonable. Fla. Stat. § 542.335. By contract, in the franchisor and licensor contexts, courts presume restrictive covenants are reasonable when they last for a year or less and unreasonable when they last for more then three years. The time frames increase even more for business sales. Courts presume restrictive covenants lasting three years or less reasonable, and more than seven years unreasonable.

The covenant’s geographic scope can play a prominent role for franchisors and business purchasers. Intuitively, franchisors do not want former franchisees to create a new competing business close to the franchisor’s current locations because it could reduce franchise revenues and upset other franchisors who continue paying the franchise for use of the franchise’s products, services, and trademarks, concepts. Franchisees will leave the franchise if they know they can use the franchise’s business concepts to compete without paying the franchisor fee. It is therefore paramount for franchisors to have, maintain, and enforce restrictive covenants to maintain value in the franchise. Similarly, the purchaser of a business does not want to spend significant sums to purchase a business from the seller only to find out the seller opened a new competing business close by. Business purchasers should prevent this unwanted competition by requiring the seller to refrain from competition for maximum period allowed by statute.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

A tortious interference claim can be defeated by the competition privilege. Johnson Enters. v. FPL Group, Inc., 162 F.3d 1290 (11th Cir.1998) (“Florida law recognizes the principle that actions taken to safeguard or protect one’s financial interest…”). A defendant the privilege must show the plaintiff and defendant were in competition with one another, the defendant did not employ improper means when competing, the defendant did not intend to create or continue an illegal restraint of competition, and the competitive act advances the defendant’s interest in competing against the plaintiff. Restatement (Second) of Torts § 768(1) (1977). Whether interference with a business relationship is privileged “depends upon a balancing of the importance … of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances among which the methods and means used and the relation of the parties are important.” Heavener, Ogier Servs., Inc. v. R.W. Florida Region, Inc., 418 So. 2d 1074 (Fla. 5th DCA 1982).

The competition privilege was analyzed in Royal Typewriter Co. v. Xerographic Supplies Corp., and the court’s ruling may surprise some because it shows that improper means is construed narrowly. 719 F.2d 1092 (11th Cir.1983). The defendant assured the plaintiff it would not compete against the plaintiff. The defendant subsequently sent several letters to the plaintiff’s customers, inviting them to do business with the defendant on a “straight purchase” basis and suggested it would be better to do business with the defendant directly rather than with through a local dealer such as the plaintiff. The plaintiff lost at least one customer after the letters were sent. The plaintiff filed a lawsuit alleging tortious interference and lost based on the competition privilege. Johnson Enters. therefore demonstrates a defendant may be able to misrepresent his competitive intentions to a competitor and still defeat a tortious interference claim.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Litigants seeking to avoid arbitration provisions contained within restrictive covenant agreements may file their lawsuit in a court rather than arbitration. If this happens, it is up to the opposing litigant to compel arbitration if they wish to invoke the restrictive covenant agreement’s arbitration provision. The court’s role is then limited to determining “(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). All remaining issues must be resolved by the arbitrator.  

The first step of the analysis requires the court to ensure the agreement between the parties is valid. The second step requires the court to ensure the arbitration provision is broad enough to cover the issue in dispute. For disputes regarding the enforcement of a non-compete provision or a non-solicitation provision, the arbitration provision must apply to those provisions. Any “doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Jones v. Waffle House, Inc., 866 F.3d 1257 (11th Cir. 2017).

The third step requires the court to perform an analysis to determine whether the moving party’s actions or deeds demonstrate he or she waived arbitration. “A party claiming waiver of arbitration must show:… knowledge of an existing right to arbitrate and… active participation in litigation or other acts inconsistent with the right.” Marine Env’t Partners, Inc. v. Johnson, 863 So. 2d 423 (Fla. 4th DCA 2003). Active participation in the lawsuit constitutes a waiver because it is usually presumed to be inconsistent with the intent to arbitrate. However, that is not always the case. For example, in Atl. Wealth Partners, LLC v. Brant, the court determined the party seeking to compel an arbitration provision contained within a restrictive covenant contract did not waive its right to arbitrate by filing a motion to strike the opposing party’s answer because the motion to strike was filed after the motion to compel arbitration was filed, the motion to strike was not inconsistent with the right to arbitrate, and the motion did not demonstrate an acquiescence to judicial action. 2025 WL 1943771 (Fla. 4th DCA July 16, 2025). Litigants seeking to compel arbitration must therefore pay careful attention to their actions to ensure they adequately defend themselves without taking stepping over the line and waiving their arbitration right.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Employers may try applying the CHOICE Act’s broad provisions to restrictive covenants entered with employees and independent contractors before July 1, 2025. However, employers will likely face difficulties in doing so because the Act contains certain notice requirements obligating an employer to provide employees and independent contractors certain notice before they enter the restrictive covenant. The employer must provide CHOICE Act restrictive covenants to prospective employees and independent contractors “at least 7 days before an offer of employment expires.” Employers must also provide CHOICE Act restrictive covenants to existing employees and independent contractors “at least 7 days before the date that an offer to enter into [the]… noncompete agreement expires.”

Assuming an employer complied with the CHOICE Act’s notice requirements, it may have a better chance of using the CHOICE Act to enforce restrictive covenants entered before July 1, 2025. However, application of the CHOICE Act to restrictive covenants entered before July 1, 2025 is not a certainty because the statute simply states, “[t]his act shall take effect July 1, 2025.” It is unclear from the statutory langue whether the Act only applies to restrictive covenants entered on and after July 1, 2025, or whether the Act applies to restrictive covenants entered before July 1, 2025 but beached after July 1, 2025. Henao v. Prof’l Shoe Repair, Inc., may provide some limited guidance on this matter. 929 So. 2d 723 (Fla. 5th DCA 2006). In Henao, a question arose as to whether a pre-1996 version of the restrictive covenant statute applied. The pre-1996 version had since been superseded by a new version of the statute that became effective on July 1, 1996. The court determined the pre-1996 version of the restrictive covenant statute did not apply to the lawsuit because the non-compete agreement at issue was entered sometime in 1999. A literal interpretation of this holding is that courts should look to the date the restrictive covenant is entered to determine whether the CHOICE Act applies. However, the holding in Henao may have limited applicability because it did not address restrictive covenants entered before the effective date. Court construing this particular issue may reach a different result or use a different analysis.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Blue penciling could be used to modify a restrictive covenant lasting for an indefinite period of time. Rauch, Weaver, Norfleet, Kurtz & Co., Inc. v. AJP Pine Island Warehouses, Inc., 313 So. 3d 625 (Fla. 4th DCA 2021). The court would reduce the duration of the covenant to a lesser period it determines to be reasonable. A Florida court should look to the restrictive covenant statute when determining the reasonable duration of the restrictive covenant because the statute contains certain durational presumptions based on a variety of circumstances. The court should select the correct circumstance from the statute and apply the relevant duration to the restrictive covenant.

Not all states allow or require the modification of restrictive covenants that are overbroad, overlong, or otherwise not reasonably necessary to protect a legitimate business interest. In Delaware, courts have discretion to modify noncompliant restrictive covenants. Delaware courts can exercise that discretion “under circumstances that indicate an equality of bargaining power between the parties.” Sunder Energy, LLC v. Jackson, 332 A. 3d 472 (Del. 2024). The party seeking modification must demonstrate the “language of the covenants was specifically negotiated or valuable consideration was exchanged for the restriction.” Delaware courts are reluctant to blue pencil restrictions that do not satisfy these criteria because “the threat of losing all protection gives employers an incentive to restrict themselves to reasonable clauses.” Delaware Elevator, Inc. v. Williams, 2011 WL 1005181 (Del. Ch. Mar. 16, 2011). Eliminating an “employer’s no-lose proposition helps equalize bargaining power up front” so that “a court can be more confident in the arm’s-length nature of the [restrictive covenant’s] terms. In Sunder Energy, LLC v. Jackson, 332 A. 3d 472 (Del. 2024), the court analyzed an overbroad restrictive covenant and refused to exercise its discretion to reduce the restrictive covenant’s overbreadth. As a result, the party seeking enforcement of the restrictive covenant could not do so because the covenant, as drafted, remained overbroad.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Historically, businesses hiring an employee that signed a non-compete agreement or other restrictive covenant with his or her former employer had little exposure. Those businesses could only be enjoined from continuing to work with the former employee even though the businesses did not sign the agreement. Dad’s Properties, Inc. v. Lucas, 545 So. 2d 926 (Fla. 2d DCA 1989) (“[I]ndividuals and entities may be enjoined from aiding and abetting a covenantor in violating a covenant not to compete.”). The former employer had to prove the former employee violated the non-compete agreement, the business hiring the former employee knew about the non-compete agreement, and the business hiring the former employee helped the former employee violate the non-compete agreement. Wiand v. Wells Fargo Bank, N.A., 938 F. Supp. 2d 1238 (M.D. Fla. 2013) (providing the elements for aiding and abetting). However, the business could not be liable for the former employer’s damages or attorney’s fees because contractual privity between the business and the former employer did not exist. Bauer v. DILIB, Inc., 16 So. 3d 318 (Fla. 4th DCA 2009) (“Bauer did not sign the restrictive covenant and, therefore, subsection (1)(a) precludes the plaintiff from enforcing the restrictive covenant against her. Because the plaintiff could not enforce the restrictive covenant against Bauer, the circuit court could not order her to pay the plaintiff’s attorney’s fees and costs under subsection (1)(k).”).

Florida’s Choice Act appears to expand liability for businesses electing to hire an employee that signed a “covered non-compete agreement.” The proposed legislation contains a provision specifically contemplating this type of situation and states that “a court must preliminarily enjoin a business, an entity, or an individual from engaging a covered employee during the covered employee’s noncompete period.” 2025 Florida House Bill No. 1219, Florida One Hundred Twenty-Seventh Regular Session. In addition, the proposed legislation states that the “injunctive relief provided… is not an exclusive remedy, and a prevailing covered employer is entitled to recover all available monetary damages for all available claims.” This provision suggests businesses choosing to hire an employee that had non-compete obligations with his or her former employer could be liable for the former-employer’s monetary damages. But we will have to wait and see whether the legislation is passed in its current form and how the courts interpret this provision.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

Noncompete agreements are currently governed only by Florida Statutes § 542.335. For a noncompete agreement to be valid, § 542.335 requires the agreement to be in writing, justified a legitimate business interest (such as, for example, trade secrets, valuable confidential business information, substantial relationships with customers), and reasonable in time, geographic scope, and line of business. § 542.335 sets out various presumptions regarding the reasonableness of the length of a restrictive covenant. For example, noncompete agreements involving employees are presumed reasonable if the post-employment restriction is limited to six months or less, and presumed unreasonable if the post-employment restriction exceeds two years.

The CHOICE Act significantly enhances employer protections for covered employees. Employers can prevent covered employees from competing for up to four years after the employment terminates in a specific geographic area. As a result, the CHOICE Act increases the two-year presumption period to four years. The CHOICE Act is also silent on the legitimate business interest requirement and requirement that the geographic area to be reasonable. The silence suggests employers can enforce the restrictive covenant without proving the existence of a legitimate business interests justifying enforcement of the restriction and without demonstrating the reasonableness of the geographic restriction. And the CHOICE Act seems to provide employers with an automatic right to a preliminary injunction because employers need only make an application to the court for a preliminary injunction and the court must issue that preliminary injunction. The injunction can only be dissolved if the employee proves by clear and convincing evidence that he or she will not compete with the employer, will not use the employer’s confidential information, will not use the employer’s customer relationships, will not compete in the specified geographic area, or was not paid by the employer.

The CHOICE Act also permits the use of “garden leave agreements.” These agreements are similar to noncompete agreements in that they can prevent employees from competing post-employment. In a garden leave agreement, the employer and employee agree that the employee will give a certain amount of notice (up to four years) before the employee can resign. During that period, the employee continues to receive his or her full salary but is prohibited from using the employer’s confidential business information and customer relationships. This has the same effect  as a post-employment noncompete agreement except the employee technically remains employed although he or she is not performing any work and continues to receive a salary.

The CHOICE ACT does not apply to all employees. To be covered under the Act, the employee must earn, or be reasonably expected to earn, a salary exceeding twice the annual mean wage of the county in Florida where (1) the employer has its principal place of business or (2) the employee resides if the employer’s principal place of business outside Florida.  Therefore, high earning employees are more likely to be covered by the ACT than lower wage earners.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.