In handling non-competes for many good people over the years, we have been fortunate to have had a lot of successful results along the way. We have never had one similar to what occurred this week utilizing an aggressive approach that has consistently worked well. In situations where our client is threatened with the enforcement of a non-compete, particularly when the threat comes from another state, we sometimes advise our clients that it is good practice to file a proactive lawsuit against the former employer seeking a Declaratory Judgment. The filing of a Declaratory Judgment lawsuit accomplishes two things. First, when there is uncertainty as to where a suit on the non-compete properly lies, the filing in Texas will guarantee that a Texas judge has the first look at it. This does not guarantee that the case wills stay in Texas but it does assure that a Texas judge will make that decision. Second, it puts the other side on notice that we are seeking a judicial declaration that the non-compete is unenforceable which is something that an employer trying to enforce non-competes does not want to happen. We did that recently in a publicly reported case entitled Donald Calhoun v. Jack Doheny Companies, Inc., Civil Action No. 4:19-CV-03171, In the United States District Court for the Southern District of Texas, Houston Division. In this case, our client’s former employer not only gave up the fight against our aggressive pursuit of his rights, after a failed attempt to have an injunction issued against him, but gave up in a fashion under the federal rules of procedure where they actually consented that judgment be taken against them and the non-compete they were trying so hard to enforce, was deemed unenforceable.
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