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Even after the Marsh USA case, some noncompete agreements are still unenforceable in Texas. In a recent opinion by the Texarkana Court of Appeals, the noncompete agreement stated as follows: I agree not to seek employment on a temporary, contract or permanent basis at any company where introduced by Hiring Partners, Inc. for a period of ninety (90) days....
Continue ReadingNoncompete agreements in the context of a sale of a business have long held to be more enforceable than restrictive covenants in an employer/employee context. This was recently reaffirmed in a case handed down by the Fort Worth Court of Appeals. There, the owners of Company A sold their shares to Company B. As part of the sale, Company...
Continue ReadingIt has long been believed by some Texas lawyers that attorneys’ fees are not recoverable under a claim for breach of a noncompete agreement. This assumption has been based upon the language of the Texas noncompete statute, which states that the remedies provided by the statute “are exclusive and preempt any other criteria for enforceability of the covenant not...
Continue ReadingThe Houston Court of Appeals recently decided a case in which a former employee lost his company stock because he competed with his former employer. In the case, the employee had been awarded several thousand shares of restricted stock. The stock award document stated that the company could recover the stock if the employee engaged in "detrimental activity," which...
Continue ReadingFrequently in cases involving noncompete agreements, the issue arises as to whether an overly broad covenant not to compete will be held to be completely unenforceable, or whether it will be modified to make it enforceable. In some states, if a noncompetition agreement is overly broad, the entire agreement will be unenforceable. In other states, in response to an...
Continue ReadingIn his excellent concurrence in the Marsh USA case, Texas Supreme Court Justice Don Willett observed something that practitioners and trial court judges often forget or gloss over, namely, the adverse effect that unfair noncompete agreements can have on society at large. Justice Willett noted: “Restrictive covenants are not costless, and even a mutually acceptable noncompete can impose...
Continue ReadingJustice Don Willett’s concurrence in the Marsh USA contains a lot of economic theory and literary allusions that one typically does not see in a court opinion. For example, Justice Willett has this advice for trial court judges who handle disputes involving restrictive covenants in Texas: “Restrictions on employee mobility that exist only to squelch competition are per se...
Continue ReadingI re-read (again) the Marsh USA case this morning, including the concurring and dissenting opinions. The concurring opinion by Justice Willett is one of the most articulate and thoughtful opinions I have read in a long time. He tries to strike a balance between the pro-enforcement majority opinion and the dissenting opinion which fears that the majority has gone...
Continue ReadingTexas cases dealing with the enforceability of noncompete agreements have long held that “industry-wide” restrictions are overly broad. In a recent case from the Waco Court of Appeals, the court applied that rule to a concrete situation. The covenant not to compete applied to the “pet supply manufacturing and distribution industry.” The employee contended that this restriction was so...
Continue ReadingThe Marsh USA case was perhaps the most important non-compete case coming out of the Texas Supreme Court since the Light case in 1994. And that’s saying a lot, given the Sheshunoff (2006) and Mann Frankfort (2009) opinions which made non-competes more enforceable in Texas. After Marsh USA, Texas restrictive covenant attorneys will have to monitor decisions coming from...
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