Here are some other local and major national cases involving non-compete agreements:
• In June, a day after a longtime Naples pizza franchisee ended its agreement with Chicago-based Aurelio’s Is Pizza, the franchisor asked a federal judge to prevent it from operating a pizzeria for two years within five miles of its former downtown location. In August, Aurelio’s and Sweet Home Chicago Pub & Grub settled and many of the Naples restaurant’s menu items were cut as part of several restrictions, including a prohibition on square pizza slices, that will be lifted in June 2014.
• In June, Kurt Shearer of Naples filed a lawsuit that alleged his ex-wife, Ann Darcy Wagner, violated a 2009 divorce settlement in which he agreed to pay her nearly $259,000 for her interest in their company, Outdoor Lighting Perspectives. He says their employee, Brent Bixby, set up Holiday Lights and Landscape Lighting Unlimited in Naples in 2008, then hired Wagner. Bixby filed a motion to dismiss, saying he isn’t part of a non-compete agreement.
• This month, the U.S. Department of Justice and state of California sued eBay, alleging it violated antitrust laws when it entered a secret agreement with Intuit not to recruit or hire each other’s employees. The justice department argued that eliminated competition for workers, depriving them of better job opportunities and salaries.
• In June, two top BankUnited executives agreed to pay $20 million to settle a lawsuit alleging they violated a non-compete agreement with their former employer, Capital One Financial, after a Virginia judge rejected their attempts to void their noncompete agreement, deeming it fully enforceable. They agreed to hold off opening branches in New York, New Jersey and Connecticut and not to hire any Capital One employees or solicit customers until Jan. 31.
_ Aisling Swift
NAPLES — When the owners of a Bonita Springs meal delivery service returned from vacation, they discovered that a trusted employee had entered their computer system, tapped into the customer list and set up a competing company in Naples.
A company built up a cadre of caddies over more than a decade at a North Naples golf club, but when the company's contract expired, the club kept many of the caddies by hiring them through a competitor.
A Pittsburgh couple moved here to set up a cupcake store for a Naples company, but the couple sued after the company opened a nearby outlet that undercut their prices.
About a dozen lawsuits involving non-compete agreements were filed in Collier Circuit Court this year.
"When you're in tough economic times, if there are contracts out there, people are more likely to enforce them if they feel damaged by violations," said Joseph Little, professor emeritus at University of Florida's Levin College of Law.
Florida, Louisiana, Alabama, Oregon and Michigan have some of the most restrictive laws against non-compete agreements, but California law is the strictest, prohibiting them unless they involve trade secrets, the dissolution of a partnership or the sale of a business' goodwill.
Florida law says if a non-compete agreement doesn't protect a "legitimate business interest," it's unlawful and unenforceable. Employers must prove it's necessary to protect a trade secret, valuable confidential business information, relationships with prospective or existing customers, a business' goodwill, a geographic area and specialized training.
Under Florida law, if a non-compete agreement is reasonable in time, geographic area and type of business, it can be enforced, depending on the business. Six months to two years may be considered reasonable, legal analysts say, but if it involves trade secrets, lengthier agreements may be enforced.
"If you're talking about a popsicle company selling popsicles, then 100 miles is ridiculous," Little said. "It's unreasonable."
Courts traditionally frown upon covenants not to compete, which date back to a ruling in English courts in the 1400s.
However, non-compete agreements are common in technology and science industries that rely on trade secrets and with law firms, real estate companies and banks. They're now showing up in the sales and services industries; last year, a Massachusetts appeals court barred a fired hairdresser from competing with his former salon in a seven-town area or contacting salon customers for a year.
"Prohibiting competition is not allowed," business attorney Jeffrey Fridkin of Fort Myers said of Florida's law, adding, however, "You can have in many, many contracts a valid restraint that says you are not allowed to solicit a customer or client.
"Soliciting means soliciting," he added. "If someone calls you, that's not soliciting."
Many cases don't end up in court after the former employee or competing business receives a cease-and-desist letter. Employers can be threatened with tortious interference, intentionally meddling with the prior employer's contractual relationship.
"The reality of it is the large percentage of non-compete agreements involve employees who don't have the money to put up a defense," said Jason Gunter, a Fort Myers labor and employment attorney. "Employers do.
"The employer can put pressure on the prospective employer to terminate the employee and quite frankly, that often works," he said of cease-and-desist letters, adding, "In high-end industries, such as with physicians and banks, the prospective employer often will step up and work it out."
Court records show Health Management Associates was involved in the case of a one-of-a-kind Southwest Florida neurosurgeon known for his specialized skill treating ruptured brain aneurysms. Dr. Eric Eskioglu resigned from Lee Memorial Hospital in March 2011 to work for HMA-owned Physicians Regional hospitals in Collier.
A non-compete clause prevented him from practicing within 50 miles of Lee Memorial for three years, so he sued a month before his resignation, asking a Lee circuit judge to rule that it wasn't enforceable because it was contrary to public policy due to a shortage of specialists in his field.
He was able to begin work in April 2011, but the case lingered — leaving the possibility he might have to resign.
"If that is the case, I have to leave the area and a lot of lives will be lost," Eskioglu said last year.
Last week, the lawsuit was dropped as part of a confidential settlement.
Non-compete agreements such as Eskioglu's may have consequences in specialized fields. An MIT study released this year found that more than a third of 1,029 engineers who signed non-compete agreements ended up leaving the profession when they changed jobs. Many held a PhD, but stopped using the skills they'd developed and took a pay cut.
Even if an employee doesn't have a non-compete agreement, an employer still may be able to sue under the Florida Uniform Trade Secrets Act.
In the case of Naples Express Meals, a Bonita Springs company that delivers restaurant meals to customers, a Collier circuit judge granted its preliminary injunction against Dine Home Delivery of East Naples and its former employee, ordering them to turn over customer records, destroy proprietary information and to stop soliciting and interfering with Express Meals' customers. In October, the judge made her decision against Dine Home final.
In the case of Anthony Cifelli and Leah Palmieri of Pittsburgh, who paid thousands to operate Simply Cupcakes in Naples, they shut down and returned to Pennsylvania after suing Joanne and Kenneth Glasgow. The lawsuit alleged the Glasgows reneged on pricing, badmouthed them on Facebook, ran Craiglist ads to sell the shop out from under them and undercut their prices by violating the noncompete agreement and opening a Naples outlet. The Glasgows countersued and the court actions are pending.
Last month, as 25 caddies waited to testify, Caddie Services Inc. urged a judge to prevent a golf club from using CSI's caddies until the non-compete agreement ends in September. CSI argued it spent millions recruiting and training them, but the club and a competing caddie firm, 4C Limited, contended the caddies never signed an agreement, would face unemployment and questioned the harm to CSI.
"The ramifications to CSI, they would be catastrophic," argued attorney John Clough of Naples, but after a hearing that continued for hours, testimony hadn't finished and the judge urged the parties to consider arbitration.
Gunter advises employees not to automatically sign a non-compete agreement, but to ask an attorney to review it and offer advice about its scope.
"Even if you're a person of moderate means, find an employment lawyer and negotiate going in," he said, adding that it's worth a small fee. "You're going to save a lot of money and heartache."