Facing the Fallout: Understanding Damages for Breach of Non-Compete Agreements

Facing a breached non-compete agreement can be daunting. What are the repercussions and how can you respond? In this article, we dive straight into the heart of the matter, unpacking the different forms of damages for breach of non-compete—actual, liquidated, and punitive—alongside the likelihood of court-granted injunctions. With a no-nonsense approach, we aim to equip you with the knowledge you need to navigate the tough terrain of non-compete disputes.

Key Takeaways

  • Non-compete agreement breaches can result in various types of damages such as actual, liquidated, punitive, and injunctions, each with specific legal implications and requirements for proof.
  • Non-compete agreements must adhere to legal requirements including protecting legitimate business interests, providing valid consideration, and being reasonable in scope and duration to be enforceable.
  • When faced with a non-compete breach, steps include assessing the situation, engaging legal counsel, and documenting the violation, with resolution possibly achieved through negotiation and an understanding of state-specific laws.

Damages for Breach of Non-Compete Agreements: Types and Consequences

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When non-compete agreements are violated, the legal consequences can be severe, including non-compete violations. The damages for breaching these agreements come in different forms, each serving a specific purpose and carrying its own set of implications for the violating party. These damages include:

  • Actual damages
  • Liquidated damages
  • Punitive damages
  • Injunctions

We will explore each type to grasp the financial and non-financial implications that may result from a breach of non-compete provisions.

Actual Damages

Actual damages, also known as compensatory damages, refer to the financial losses suffered by the employer as a direct result of the breach. This means that the employer must be able to demonstrate a clear link between the employee’s breach of the non-compete agreement and the financial losses incurred.

For instance, these losses could include profits that the employer would have made had the employer’s breach not occurred or clients who switched to the employee’s new competing business. To prove these losses, employers often rely on recognized methods such as the yardstick test and the before-and-after theory, particularly in states like Florida.

Liquidated Damages

Unlike actual damages, which are based on the actual losses incurred, liquidated damages are predetermined financial penalties that are specified in the non-compete agreement. These are designed to establish a set amount of compensation for a breach, reducing the need for the employer to prove actual losses in court.

However, bear in mind that courts will only enforce a liquidated damages provision if it accurately estimate the harm caused by the breach. If the provision is deemed excessively punitive, it may not be enforceable.

Punitive Damages

Punitive damages go beyond compensating the employer for their losses. These damages are intended to punish the employee for their malicious conduct and deter similar behavior in the future.

To be awarded punitive damages, the employer must present clear and convincing evidence that the breach was intentional and harmful. This means demonstrating that the employee acted with ill intent or engaged in harmful conduct.


While actual, liquidated, and punitive damages involve monetary penalties, injunctions provide a different form of relief. Injunctions serve as a legal remedy that prevents the former employee from continuing to violate the non-compete agreement.

Specifically, a court may grant a preliminary injunction when the employer demonstrates a likelihood of success in the lawsuit and proves that a valid company interest, such as trade secrets or client relationships, is at risk. In some cases, courts may opt for an injunction when actual damages are difficult to calculate, providing relief for a reasonable period to protect the employer’s interests.

Legal Requirements for Enforceable Non-Compete Agreements

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While non-compete agreements can significantly safeguard a company’s interests, they must adhere to specific legal requirements to be considered an enforceable agreement. A well-drafted non-compete clause should not exceed what is necessary to protect the employer’s legitimate business interests, and it must be reasonable in terms of its scope and duration. In this context, non-compete contracts serve as a valuable tool for businesses to protect their interests.

Further, for a non-compete agreement to be enforceable, it must meet certain requirements:

  1. The agreement must serve a legitimate business interest, such as protecting trade secrets or preserving customer relations.
  2. The employee should receive valid consideration, something of value, in return for agreeing to the non-compete restrictions.
  3. The employee must clearly understand the non-compete restrictions before or at the time they agree to ensure its enforceability.

Defenses Against Non-Compete Agreement Breaches

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When faced with allegations of breaching a non-compete agreement, several defenses can be raised. Courts require non-compete clauses to be reasonable in time, area, and line of business, and they will consider all relevant defenses before enforcement. If the agreement violates legislation or is deemed unreasonable, it may not be enforceable. Similarly, if the employer has breached any terms of the agreement, such as non-payment of wages or changing the employee’s role substantially, their ability to enforce the non-compete may be weakened.

Legal counsel can be instrumental in determining if a non-compete agreement within an employment contract is legally binding, excessively restrictive, or if the employer’s illicit conduct influences enforceability.

The Role of Legal Counsel in Non-Compete Disputes

Legal counsel is key to efficiently navigating non-compete disputes. Lawyers with expertise in non-compete agreements can provide invaluable advice and representation, whether you’re an employer seeking to enforce an agreement or an employee accused of breaching one.

These professionals can assist in:

  • Assessing the implications of a non-compete agreement before signing
  • Representing parties in post-employment litigation or disputes
  • Guiding clients through the available legal remedies
  • Developing legal strategies that protect employees’ rights to work in their chosen careers
  • Tackling tactics from opposing counsel

Steps to Take When a Non-Compete Agreement Is Breached

When a non-compete agreement is breached, there are several steps you can take to address the situation. These include:

  1. Assessing the situation to confirm that a violation has occurred
  2. Engaging legal counsel to guide you through the process
  3. Documenting the violation to support your case

Assess the Situation

The first step when suspecting a breach of a non-compete agreement is to assess the situation. This involves reviewing the specific restrictions detailed in the agreement, such as the timeframe, geographic scope, and nature of the prohibited work, to determine if a breach has occurred.

Key considerations during this stage include whether the activities conducted by the former employee are in direct competition with your business and the circumstances under which the employee left the company. Any actions taken by the employee that contravene the agreement should be scrutinized for evidence of a breach.

Engage Legal Counsel

After confirming a breach, the subsequent step involves seeking legal counsel to pursue legal action. Consulting with an attorney who has experience in non-compete disputes is crucial for obtaining proper guidance and ensuring legal compliance.

When choosing an attorney, consider their understanding of relevant state laws and experience in similar cases. This will ensure strong representation and increase your chances of a favorable outcome.

Document the Violation

Documenting the violation forms a vital part of addressing a non-compete breach. This involves gathering and organizing evidence to support your case against the former employee. Evidence can include:

  • Recording dates, locations, and descriptions of competitive activities
  • Communications discussing new roles or customer solicitation
  • Digital records that illustrate the former employee’s activities that contravene the agreement

Witness statements can also bolster the evidence by providing attestations to the former employee’s violation of the non-compete terms with their former employer.

Negotiating a Resolution to Non-Compete Breaches

In some cases, a non-compete dispute can be resolved through negotiation. This process involves understanding the interests of both parties and seeking mutually beneficial solutions.

Employees, for instance, can negotiate the terms of their non-compete agreements, focusing on potential changes such as the reduction in duration or geographic scope. They can potentially secure better terms in other areas of their employment or severance, such as a higher salary or larger severance package, using the non-compete agreement as a negotiation leverage point.

State-Specific Laws and Regulations

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Non-compete agreements are governed by state-specific laws and regulations, and these can vary significantly across different states. Many states have their standards for non-compete agreements, often limiting the duration and geographical scope to prevent overly restricting an employee’s ability to find new employment.

Some states, like California, North Dakota, and Oklahoma, have even banned most non-compete agreements. Other states, such as:

  • Illinois
  • Maine
  • Maryland
  • New Hampshire
  • Washington

Many states have introduced employment laws to protect lower-wage workers from potentially unfair limitations. Being aware of these state-specific laws is necessary when drafting, signing, or enforcing non-compete agreements.


Navigating the complex world of non-compete agreements can be challenging, but with the right understanding and guidance, both employers and employees can protect their rights and interests. From recognizing the various types of damages for breaches and the legal requirements for enforceable agreements to understanding the defenses against breaches and the role of legal counsel, we’ve covered a comprehensive range of topics related to non-compete agreements.

However, it’s important to remember that every situation is unique, and the information provided in this blog post is not a substitute for professional legal advice. If you’re facing a non-compete dispute, it’s crucial to engage legal counsel who can provide personalized guidance based on your specific circumstances and state laws.

Frequently Asked Questions

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What happens if you breach a non-compete clause?

If you breach a non-compete clause, your former employer can sue you for actual losses, typically proving the loss of profits resulting from your competition with their business. Be aware of this potential consequence.

What is the remedy for a non-compete agreement?

The most common remedy for a breach of a non-compete agreement is to seek an injunction to prevent further violation of the agreement’s terms. This is the favored approach in cases of breach in many jurisdictions.

What are the remedies for breach of solicitation?

The remedies for breach of non-solicit may include injunctive relief and monetary damages, as specified in the non-solicitation agreement. It is important to clearly outline the potential consequences and remedies in the agreement.

What are liquidated damages for non-compete?

Liquidated damages for a non-compete clause serve to establish in advance the damages in case of a breach, especially when the damages are hard to measure. This type of provision helps both parties understand the consequences of a breach.

What is injunctive relief for a breach of non-compete?

In the case of a breach of a non-compete agreement, injunctive relief can be sought by the employer to prevent further harm and maintain the current situation. An injunction is the most common form of relief granted in such cases. For help with Business Litigation Contact: J Muir and Associates.

Author Bio

Jane Muir

Jane Muir is a Shareholder and Managing Partner of J. Muir & Associates, a Miami business law firm she founded in 2018. With more than 13 years of experience in business, she is dedicated to representing clients in a wide range of legal areas, including business litigation, contracts, corporate formation, insolvency, nonprofits, partnership disputes, and other business law matters.

Jane received her Juris Doctor from the University of Miami School of Law and is a member of the Dade County Bar Association and Coral Gables Bar Association. She has received numerous accolades for her work, including being named among the “20 Under 40” in 2016 by Brickell Magazine. Super Lawyers named her a Rising Star from 2014–2019 and selected her for the Super Lawyers status.

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