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VIRGINIA SUPREME COURT WILL EXAMINE
NON-COMPETE
CASE IN 2011


Currently, non-compete cases in the Commonwealth are considered on a case by case basis. 


 When clients come to our office and wonder whether their agreement is reasonable and therefore enforceable, we do our best to evaluate their contract. 

 

However, we always tell our clients that the Court will provide its own analysis using the facts of their specific case and Agreement.

 

Importantly, the Supreme Court of Virginia has agreed to hear an appeal from Fairfax County, Paramount Home Pest v. Schaeffer.  The Court will be asked to decide whether the Circuit Court erred in holding the agreement to be unreasonable and therefore unenforceable.


We will of course, keep you posted as the case develops and as the law evolves on non-compete agreements in the Commonwealth.


 


 

HOW WE REVIEW A NON-COMPETE

1. We require a prepayment of fees - around 2-3 hours worth of time.
  
2. Open a file.
  
3. Get copies of all Agreements, contracts, etc. that could be binding (including shareholder agreements, confidentiality, etc.)
  
4. Ask our clients for a description of their job in writing.
  
5. Review state corporation records to ensure the company is in good standing, etc.
  
6. Review State and Federal court decisions to learn if the same employer  was involved in past non-compete litigation and what the outcome was for the employee.
  
7. Review client's online profiles - Linkedin / Facebook etc. (in case we need to advise them to change).
  
8. Review the Contract.
  
9. Schedule an inperson meeting or phone conference with the client - ask that everyone has a copy of the relevant agreements during conference.
  
10. Discuss possible problems with Agreement, enforceability under Virginia law, etc.
  
11. Discuss other duties not spelled out in Agreement such as Trade Secret Act,  fiduciary duty, tortious interference, etc.
  
12. Communicate opinions, concerns, etc. in writing to client if requested.
  
13. Provide advice to avoid litigation.
  
14. Aid in employment transition without litigation.
  
15. Close file or...
  
16. Represent the employee's interest and position in Court.   


 

 
book cover
 

Years ago we expanded our practice to  represent employees who were asked to sign non-competition agreements with their employers.

  

Over a third of our current practice is spent representing 

employees who need advice  understanding their rights and restrictions related to contracts they have already signed, and those they have been asked to sign by their employers.

 

Although each Agreement is different, all Virginia employees are bound by certain laws that effect their actions, including, fiduciary duty, Virginia Trade Secret Act., etc. We have found that many Virginians were unaware of their obligations under the law and surprised to learn they had any duties not spelled out in their employment Agreements.

 

To this end, we wrote a book - HOW TO BEAT YOUR VIRGINIA NON-COMPETE and have been sending hundreds of free copies to employees across Virginia. We have even sent many copies to Corporate counsel and HR managers at large companies when requested.

 

This part of our practice has expanded a great deal. We are able to advise and represent clients all over Virginia from Arlington to Abingdon, and able to assist many in the Western part of the State with their employment litigation needs.

 

In 2010, we successfully defended employees in State and Federal Virginia Courts who were sued for the following:

  • Breach of Contract (non-competition / non-solicitation / confidentiality)
  • Virginia Trade Secret Violation
  • Tortious Interference of Contract
  • Tortious Interference of Business Expectancy
  • Breach of Fiduciary Duty
  • Business Conspiracy

We helped people re-negotiate contracts, get out of agreements and develop strategies for future employment such that they will not be in breach of their existing contracts.

 

We have also served as co-counsel to larger firms who were asked to represent both a company and a new employee who were being sued for violation of Virginia law.

 

As our non-compete practice has grown, we felt there was a need to write a second edition of the book. In this edition, we have included chapters that specifically address the use of non-competes in Physician contracts, as well as the use of non-compete agreements for those in the financial services industry.

 

We would be happy to send you a Free Copy of the book, HOW TO BEAT YOUR VIRGINIA NON-COMPETE, Second Edition. To request a copy by phone, call Mary Ann at 1-866-985-0098. To request by email, send your mailing address to: mspencer@frithlawfirm.com.

 

We are grateful to serve our clients in this capacity, and hope the new book will serve as a resource to many.      

 

PS - The book is also available online at Amazon.com                                                  

 

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SUCCESSFUL NON-COMPETE CASES  
This was an interesting year for our non-compete clients and cases in Virginia.

Although we successfully resolved non-compete litigation for numerous employees, none of our cases made it to the judge or jury for ultimate decision. They all settled.


Why?

 

Our personal feeling is that non-compete litigation is often like an endurance race. A battle of wills where the winner is the party who could
can outlast the other.

 

In litigation, the following issues often control the case:

  • Who is more willing to go the distance on attorneys fees?
  • The employee who needs to feed his family, or the employer who must account for huge legal bills in a down economy?
  •  What will be gained if the employer gets a verdict?
  •  Often times, the employee will be unable to pay and forced into bankruptcy.
  • Does anyone want to pay for attorneys fees to find there is nothing at the end of the rainbow?

 

While we believe the economy may have lead more employers to the Court house steps to file suit, "make an example," and "protect their interests," but few were willing and or able to go the distance.

We will see if the trend continues in 2011. Until then, we will evaluate each contract as it comes in and do our best to avoid litigation. For those clients who are able or willing to risk litigation, we will do our best to seek a favorable resolution that allows the employee to support his or her family and continue in their profession or trade.