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The Mavrick Law Firm regularly represents entrepreneurs who open businesses in industries in which they were formerly employees. As such, often times we are confronted with covenants not to compete signed by the entrepreneur when he or she was employed with his or her former employer. The restrictive covenants will usually restrict the entrepreneur from competing with the former employer for a certain time period and within a specific geographic area. The Mavrick Law Firm has, on several occasions, successfully defended entrepreneurs from lawsuits seeking to enforce such covenants. One way we have successfully defended against these claims is by asserting that the plaintiff has committed some sort of wrongdoing or has engaged in improper conduct that prevents the plaintiff from enforcing the covenant not to compete at issue, otherwise known as the “unclean hands” doctrine.

The unclean hands doctrine is an equitable defense that precludes a plaintiff from recovering in equity due to some sort of wrongdoing or improper conduct on the part of the plaintiff. Peter Mavrick is a Miami non-compete lawyer who has won non-compete litigation in Miami-Dade Circuit Court through the unclean hands affirmative defense. Although “unclean hands” is a defense exclusive to claims seeking equitable relief, it has proven to be very useful in the employment context, particularly in cases where an employer is seeking to enforce a covenant not to compete. Under Florida law, if a former employer engaged in wrongdoing that caused the entrepreneur’s separation from employment, then the employer will be precluded from enforcing a covenant not to compete against the former employee. Such was the case in Bradley v. Health Coal., Inc., 687 So. 2d 329 (Fla. 3d DCA 1997).

In Bradley, the defendant was employed as a salesperson for the plaintiff’s blood plasma products and signed a covenant not to compete contained within his employment contract. After the defendant’s employment with plaintiff ended, plaintiff sought to enforce the covenant not to compete once it discovered that the defendant had subsequently gone to work for a competitor. The trial court enforced the covenant not to compete and entered an injunction against the defendant. However, in entering the injunction, the trial court declined to consider the defendant’s defense that there should be no injunction because defendant was forced to resign from his employment with plaintiff after he refused the plaintiff’s instructions to engage in improper business practices. Specifically, defendant contended he refused to resell certain plasma products that had been returned by a customer because he felt they were unsafe for medical use due to the handling during shipping. Furthermore, defendant asserted that he refused to obey an instruction to alter certain invoices to charge higher prices than the customers had agreed to.

On appeal, the Florida Third District Court of Appeal held that the trial court’s failure to consider the defenses asserted by the defendant regarding his forced resignation was error and remanded the case for a hearing on same. As stated by the Third DCA:

In our view, if the employer ordered the employee to sell unfit products, or to alter invoices so as to defraud customers, and the employee was forced to resign for refusing to do so, then the employer would have unclean hands and would not be entitled to an injunction.

The Bradley decision provides a useful avenue to pursue in cases where an employer seeks to prevent a former employee from opening a competing business. If the employee proves that his or her former employer engaged in improper conduct leading to the employee’s separation of employment, then the former employer will likely be precluded from enforcing a non-compete agreement. However, the facts of each case will be determinative of whether this defense is available. If you are an entrepreneur currently bound by a covenant not to compete with a former employer preventing you from opening your business, or if you simply would like more information regarding covenants not to compete in general, the Mavrick Law Firm is available to help.

The Mavrick Law Firm has successfully represented many businesses in Florida non-competition covenant litigation in the Miami-Dade, Broward, and Palm Beach County areas encompassed by the Third and Fourth District Courts of Appeal, as well as Hillsborough, Sarasota, and other counties encompassed by the Second Circuit Court of Appeal. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website:; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.

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