If you are faced with the prospect of litigation over a non-compete, and find the entire process overwhelming, you are certainly not alone.

Chances are you don’t even know where to begin. What can you do – and what can’t you do? What is your first step? How do you defend yourself against these claims? And what is the kind of proof you will need to marshal in order to establish your defenses?

In jurisdictions like New York, that recognize and uphold many non-compete agreements, there are a number of standard - and often strong - defenses to these claims.

It is important to bear in mind, however, that non-compete cases tend to be VERY case-specific.

That said, there are still some general guidelines that you should follow in order to see whether your former employer will likely have a strong – or weak – case.

1) If the employer breached the agreement first - Perhaps the easiest way around a non-compete is if the employer breaches your agreement in a significant way – BEFORE you even embark on competing. Under those circumstances, you may be able to prove that the agreement was voided by your employer, and therefore, unenforceable.

2) The employer doesn't have an interest worthy of judicial protection - The most important thing that an employer needs to prove in order for his non-compete to be enforced is that he’s suing over something that is actually worthy of court protection, such as a customer list that isn’t readily available to the public.

3) The non-compete seeks to ban the employee from getting a better job, even though the employee isn't "unique" - If the employer is looking to keep an employee from working – even at a job that had little or nothing to do with what he did while working for his old company, a New York court is likely going to say “Are you kidding me?” You expect me to ban a guy from earning any type of living - even though he isn't unique?

4) The non-compete is unreasonably long

5) The non-compete is unreasonably wide in geographic scope - Similarly, if an employer goes too far and doesn’t limit the non-compete to a reasonable amount of time, and a reasonable geographic area, chances are that a NY court won’t enforce that agreement – at least in that form. It may choose to re-write those provisions of the non-compete, but that’s a subject for a different video.

If you would like further information on the topic of non-competes under New York law, I strongly recommend that you dowload a copy of our Free Insider's Guide to Non-Compete Claims Under New York law by clicking on this link.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer