FORT LAUDERDALE NON-COMPETE AGREEMENTS: SOLICITATION REQUIRES PROACTIVE ACT

Restrictive covenants, such a non-compete and non-solicitation agreements, are important tools for businesses to protect their business interests. Restrictive covenants are enforceable if they are reasonable in time, geographic area, line of business, and supported by a “legitimate business interest.” Fla. Stat. § 542.335. Legitimate business interests can include protection of substantial relationships with specific prospective and existing customers, patients, or clients, and customer or client goodwill. Id. Businesses often require employees who interact with clients to sign non-compete and non-solicitation agreements to protect the business’ relationships with its clients. However, many non-solicitation agreements do not explicitly define what constitutes prohibited solicitation.  The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Many times the act of solicitation is straightforward. When a former employee initiates communication with a business’ client and explicitly requests business from that client, that communication would likely qualify as solicitation. Other cases are more nebulous because communication between a former employee and a client does not automatically qualify as solicitation.

Defining the term “solicit” in a contract involves legal principles of contract interpretation. When a contract is unambiguous, “contract language must be given its plain meaning.” Grove at Harbor Hills Homeowners v. Harbor Hills Development, L.P., 158 So. 3d 611 (Fla. 5th DCA 2013). In determining the plain meaning of a contract, courts “may consult references commonly relied upon to supply the accepted meaning of words.” This includes the dictionary. Black’s Law Dictionary defines “solicitation,” in relevant part, as “[t]he act or an instance of requesting or seeking to obtain something; a request or petition,” and “[a]n attempt or effort to gain business.” Solicitation, Black’s Law Dictionary (12th ed. 2024). Similarly, Mirriam-Webster defines “solicit,” in relevant part, as “to approach (someone) with a request or plea,” “to make petition to,” and “to try to obtain (something) by usually urgent requests or pleas.” Solicit, Mirriam-Webster, at https://www.merriam-webster.com/dictionary/solicit.

The dictionary definitions of “solicit” and “solicitation” suggest solicitation requires a proactive effort to acquire business from another person. These definitions are consistent with Florida case law. Florida courts have likewise held the definition of  “solicit” requires that a person make a proactive effort to acquire business from another person. For example, the court in Massey Serv. Inc. v. Sanders, 312 So. 3d 209 (Fla. 5th DCA 2021), ruled that “solicitation” of employees requires a proactive effort in enticing the employees to leave their employer. The former employee in Massey posted a notice on an office board stating he was “moving on.” Another employee contacted the former employee to inquire about the employee’s new employer. The former employee provided the other employee with his telephone number and the contact information of the new employer. The court determined the posting was not a proactive effort to entice the other employee to leave.

Similarly, in Scarbrough v. Liberty Nat’l Life Ins. Co., 872 So. 2d 283 (Fla. 1st DCA 2004), the court determined that the term “solicit” in a restrictive covenant prohibits an employee from “being proactive in efforts” to entice a customer away. Scarbrough also held that solicitation does not require a former employee to initiate contact with a business’ customer, only that the former employee was proactive in attempting to acquire business from the customer.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.