FLORIDA NON-COMPETE AGREEMENTS: ADVERTISING BIOGRAPHICAL INFORMATION MAY NOT VIOLATE A NON-COMPETE AGREEMENT

Florida’s Non-Competition Covenant Statute, § 542.335, permits agreements that restrain competition so long as the agreement meets certain statutory requirements. One of the statutory requirements is that the party seeking to enforce the non-compete agreement must “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” § 542.335(1)(b), Florida Statutes. One example of a legitimate business interest that could justify a restrictive covenant, is “extraordinary or specialized training.” A restrictive covenant can bar a former employee’s advertising that extraordinary or specialized training; however, it does not necessarily bar the former employee from listing that training as biographical information. Peter Mavrick is a non-compete lawyer who frequently handles cases where enforcement of a non-compete agreement depends on whether there was “extraordinary” or “specialized” training.

A recent judicial decision issued in the First District Court of Appeal of the State of Florida demonstrates an instance where providing biological information listing that specialized training did not constitute a violation of a non-compete agreement. In Tarantola v. Henghold, 254 So.3d 1110 (Fla. 1st DCA 2018), Dr. Christina Tarantola (“Tarantola”), a dermatologist, entered into a non-compete agreement as part of her employment with the Henghold Practice (“Henghold”). The non-compete agreement restricted Tarantola’s performance of Mohs surgery within a specified geographical area for a two-year period after the termination of her employment. Dr. Tarantola resigned from Henghold in March 2015. Henghold filed a lawsuit alleging that Tarantola breached the non-compete agreement. Henghold also obtained a temporary injunction against Tarantola.

The two-year non-compete period required by the injunction was tolled from October 2015 through September 2016, because Tarantola violated the agreement by performing Mohs surgery in the restricted area. More than three years from the date of Tarantola’s resignation, Tarantola moved to terminate the temporary injunction because even with the “tolling period” extension, the two-year non-compete period had ended. Henghold opposed the motion contending that the non-compete period should be extended another five months, because of an additional violation resulting from improper advertising through Tarantola’s website that was in existence since May 2015. Tarantola’s website provided biographical information including that she was “Mohs surgery and fellowship trained.” The trial court determined the website constituted “advertising or marketing activity” of a restricted activity prohibited by the non-compete agreement and extended the injunction 134 days from the date of the order denying Dr. Tarantola’s motion.

Tarantola immediately appealed. The appellate court reversed the ruling. Tarantola v. Henghold held that the website did not constitute improper advertising or marketing in violation of the non-compete agreement. The appellate court held that it was not improper for Tarantola to provide biographical information on the website of her new medical practice, provided that additional advertising was not included. Tarantola’s website described herself as “Mohs surgery and fellowship trained,” but did not advertise availability and performance of Mohs-related services in the restricted area. The appellate court reasoned that the website provided information about Tarantola which would be expected of any resume or biographical summary.

Tarantola v. Henghold further held that the trial court abused its discretion in considering and relying upon screenshots of the website as proof that the website was in existence in May 2015. The appellate court found that screenshots did not demonstrate that the website existed in May 2015, but in fact the date stamp on the screenshots was October 14, 2015. The appellate court held that the record lacked evidence establishing the website’s existence in May 2015, and any such finding is based on mere speculation. The appellate court concluded that the trial court abused its discretion in its determination that the website existed in May 2015.

The appellate court ultimately found that the two-year non-compete period expired thirty days after February 10, 2018 and was therefore concluded. The appellate court reversed the ruling with instructions to vacate the order on appeal.

Peter Mavrick practices non-compete litigation, business litigation, and employment litigation in Broward, Miami-Dade, and Palm Beach Counties, Florida. This article does not serve as a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.