Last week, the Fifth Court of Appeals of Texas in U.S. Risk Insurance Group, Inc. et al. v. Woods reminded us again that a non-competition agreement must be reasonable and must include a correct entity, or it will not be enforceable.
In Woods, an insurance broker signed an Employment, Confidentiality and Non-Compete Agreement (Agreement) when he began working for U.S. Risk Brokers, Inc. (USR). Although Woods was working for and soliciting insureds on behalf of USR, the Agreement was between Woods and USR’s holding company – U.S. Risk Insurance Group, Inc. (USRIG). USR was not a party to the Agreement.
The Non-Competition provision in the Agreement stated the following:
Additionally, for a period of ninety (90) days after the last day of Employee’s employment following Employee’s voluntary resignation from the Company provided that the Company elects to continue the Employee’s salary during the ninety (90) day period, Employee agrees that Employee shall not become associated with, employed by, or financially interested in any business operation which competes in the business currently engaged in by the Company or any of its subsidiaries or affiliates. The phrase “business currently engaged in by the Company” includes, but is not limited to, the types of activities in which the Company was engaged during Employee’s tenure .
When Woods resigned and went to work for a USR’s competitor, USR filed a lawsuit against him alleging the breach of the Agreement.
The Fifth Court of Appeals found that the Non-Competition provision was unenforceable against Woods because it was unreasonable as to the scope of the restrained activity. Not only did it prohibit Woods from engaging in the type of business activity that he had performed for USR, but it prohibited him from engaging in any business that USRIG, the holding company, engaged in.
The Court of Appeals also held that the non-solicitation clause in the Agreement was unenforceable by USR because the Agreement was between USRIG and Woods, and USR was not a party. Thus, because the non-solicitation clause only prohibited Woods from soliciting “insureds” of USRIG, he was free to solicit any customers of USR.
CONCLUSION: When drafting or enforcing a non-compete in Texas, remember these simple rules:
1. The limitations as to time, geographic area, ans scope of activity restrained must be reasonable.
2. When applied to personal services occupation, a restraint on client solicitation is overbroad and unreasonable if it extends to clients with whom the employee had no prior dealings during his employment.
3. An industry-wide bar is unreasonable.
4. Make sure the non-compete agreement is with the correct entity or the entity is defined broadly enough to include its affiliates who employ the covered employees.
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. His practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.