MIAMI NON-COMPETE AGREEMENT: PRESUMPTION OF IRREPARABLE HARM

Courts can enforce the breach of a restrictive covenant like a non-compete agreement by enjoining the defendant from taking additional actions that violate the non-compete agreement. Fla. Stat. § 542.335 (“A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions.”). Courts can likewise prevent a party from continuing to misappropriate another’s trade secrets by enjoining the missapropriator’s misappropriation conduct. Fla. Stat. § 688.003 (“Actual or threatened misappropriation may be enjoined.”). In both cases, the party seeking an injunction must demonstrate the existence of irreparable harm among other factors. Hernandez v. Stingray Grp. Inc., 2025 WL 2263629 (S.D. Fla. Mar. 10, 2025) (“To obtain a preliminary injunction , a movant must demonstrate the following: “(1) a substantial likelihood of success on the merits of the underlying case; (2) the movant will suffer irreparable harm in the absence of an injunction; (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest.”). Irreparable harm is an important element to obtaining an injunction because it has been called the “sine qua non of injunctive relief.” Merrill Lynch, Pierce Fenner, & Smith, Inc. v. Kurgis, 2008 WL  4710919 (M.D. Fla. 2008). 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.

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.