MIAMI NON-COMPETE AGREEMENT: CONTRACTUAL AND STATUTORY HARM PRESUMPTIONS

Irreparable harm is a mandatory component to obtaining an injunction. Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) (“A showing of irreparable injury is ‘the sine qua non of injunctive relief.’”). The existence of irreparable harm can be presumed in restrictive covenant non-compete cases. 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.”). In addition, many restrictive covenants contain wording that presumes the existence of irreparable harm when the covenant is violated. For example, a contract containing a restrictive covenant might state:

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.