Non-Compete & Non-Solicit Defense
Astbury Legal is one of the only firms in Michigan that specializes in disputes involving non-competes, non-solicits, and non-disclosure agreements. Most other firms work exclusively with employers.
Astbury Legal works exclusively with Michigan employees and independent contractors—never employers. We refuse to represent companies—large or small—that weaponize non-competes to unjustly prevent new businesses from growing and former employees from working to support their families.
Our primary focus is on non-competition, non-solicitation, and non-disclosure matters in Wayne, Oakland, and Macomb County.
Astbury Legal provides three primary services to Michigan employees and independent contractors for non-competition, non-solicitation, and non-disclosure agreements:
1. Is my non-compete enforceable: We answer any questions you have about your agreement, including:
WHY HIRE ASTBURY LEGAL?
If you were having heart surgery, you wouldn’t see a podiatrist. The same is true in law; you need a specialist with a deep and comprehensive understanding of the law surrounding the enforcement of non-competition, non-solicitation, and non-disclosure agreements in Michigan. Here are a few of the firm’s attorney’s successes in the past few years in non-compete, non-solicit, and non-disclosure litigation:
Complete victory for a financial services employee sued by her former employer for allegedly violating non-competition, non-solicitation, and non-disclosure agreements. This case also allowed for the recovery of attorney’s fees paid by the client as the prevailing party.
Complete victory for an engineer employee sued by her former employer for allegedly violating non-competition and non-disclosure agreements.
Complete victory after an injunction hearing for a physician whose former employer sought to impose a non-solicitation agreement and force other former employees who came with him to his new business to resign.
At least a half-dozen cases where a former employer filed a lawsuit to enforce a non-compete and/or non-solicitation agreement only to abandon that effort after I entered my notice of appearance.
a. Whether your agreement is legally enforceable;
b. If the agreement is legally enforceable, what you can and cannot do under the agreement; and
c. Practical advice about simple modifications to your plans to avoid drawing your former employer’s attention if you plan to compete.
2. Responding to cease-and-desist letters: Getting a letter from your former employer demanding that you immediately stop working can be scary. We can help you:
a. Review the letter and agreement and advise you if it has any merit;
b. Strategize a response to the letter, including vetting potential legal claims you may have against your former employer;
c. Draft a comprehensive response that makes it clear to your former employer that you intend to fight; and
d. Negotiate and settle any dispute from a position of strength.
3. Defending employees in lawsuits seeking to enforce a non-compete, non-solicit, and/or non-disclosure agreement: Getting served with a lawsuit by your former employer is enough to knock anyone off their game. We can help you:
a. Review the complaint and agreement and advise you on the strengths and weaknesses of the lawsuit;
b. Strategize an aggressive response, including a motion to dismiss the case outright from the beginning;
c. Assert all potential counterclaims you may have against your former employer;
d. Negotiate and settle any dispute from a position of strength.
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Michigan Non-Compete & Non-Solicit FAQs
Are non-compete or non-solicitation agreements enforceable in Michigan?
Yes, but only if your former employer can prove you violated the agreement, as outlined below.
Is my non-compete or non-solicitation agreement enforceable in Michigan?
The Michigan Antitrust Reform Act governs whether a non-compete and/or non-solicit agreement is enforceable in Michigan. To enforce the agreement, your former employer must prove:
1. They have a “reasonable competitive business interest” that the non-compete and/or non-solicit protects;
2. The “type of employment” or “line of business” are the same (in other words, you are competing);
3. The “duration” and “geographic area” in the agreement are both “reasonable”; and
4. The non-compete or non-solicitation agreement is reasonably necessary to protect the former employer’s “reasonable competitive business interest.”
What are “reasonable competitive business interests” that justify a non-compete in Michigan?
Michigan courts have found all of the following to be a “reasonable competitive business interest”:
1. Customer relationships: Specifically, those developed while working for the former employer.
2. Confidential information: Examples include your former employer’s client list and contact information, pricing information, and any proprietary techniques they developed and shared with you.
3. Trade secrets: Trade secrets are defined by the Michigan Uniform Trade Secret Act as a formula, pattern, compilation, program, device, method, technique, or process that is both of the following:
a. Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.
b. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
These are three of the most common “reasonable competitive business interests,” but this list is not exhaustive.
How does Michigan decide whether or not my current employer is a competitor of my former employer in a non-compete case?
The two most important factors that Michigan courts consider are:
1. How much overlaps is there between the products and/or services offered by the two businesses?
2. How much overlaps is there between the current or prospective customer bases of the two businesses?
The more overlap, the more likely a court will conclude they are in the same “line of business.”
What is a “reasonable” time restriction for a non-compete in Michigan?
There is no bright-line rule in Michigan. Michigan courts have found restrictions for as little as 1 year to be “overlong’” and upheld restrictions of up to 3 years as reasonable under different circumstances. Generally, courts weigh the following factors:
1. The competitiveness of the field: For example, engineering is usually considered more competitive than janitorial work.
2. Your role with your former employer: Generally, the higher up you were in the company, the more likely a longer time period will be seen as reasonable.
3. The size of the geographic restriction: Courts often trade off the time and geographic scope restrictions. If the geographic restriction is wide (e.g., state-wide), then Courts often seek to limit the time restriction and vice versa.
However, time restrictions of 3+ years are often struck down absent extraordinary circumstances.
What is a “reasonable” geographic restriction for a non-compete in Michigan?
How wide is your former employer’s customer base? For international companies like the big three (GM, Ford, and Stellantis), where the employee was involved in worldwide sales, courts may find a worldwide restriction appropriate.
Courts may find a nationwide restriction appropriate for national companies, like UWM or Quicken, where the employee was involved in nationwide sales.
Courts may find a statewide restriction appropriate for primarily Michigan-based companies, like Corewell, Henry Ford, or Ascension, where the employee does business for the employer throughout the state.
Finally, if your former employer has a single location, courts will usually limit the restriction to the radius of its client base (e.g., if 90% of customers come from 10 miles or less away, a restriction beyond 10 miles may be unreasonable).
How can I defeat a non-compete or non-solicitation agreement in Michigan?
Michigan has many legal defenses against enforcing a non-compete or non-solicit agreement. To name just three:
1. No competition: Your new business or employer’s business doesn’t compete with your former employer.
2. Overbreadth: The agreement is overbroad in geographic or temporal scope.
3. Unclean hands: Unlawful or improper actions taken by your former employer that relieve you from your responsibilities under the non-competition agreement.
If I violate my Michigan non-compete or non-solicit agreement, what happens?
If your former employer discovers that you are competing or soliciting customers, the first legal step is usually to send a cease-and-desist letter. This is usually a letter from their attorney demanding that you immediately cease and desist from competing and/or soliciting customers. Typically, they will set a deadline for a response confirming that you have ceased competing/soliciting.
After a cease-and-desist letter, the next step is typically filing a lawsuit. More often than not, the legal claims asserted are:
1. Breach of Contract: Alleging you violated the agreement containing the non-compete and/or non-solicit clauses;
2. Tortious Interference with Business Relationships: Alleging you tortiously interfered with their relationships with their customers or clients.
Your current employer and/or new business may also be sued for:
1. Tortious Interference with Contract: Alleging that your current employer and/or new business knew about your non-compete and/or non-solicit and helped you violate those agreements by employing you.
If your current employer gets roped into a lawsuit, they may suspend you or terminate your employment pending resolution of the lawsuit.
What are the consequences of violating my Michigan non-compete or non-solicit agreement?
If your former employer files a lawsuit, it may seek the following:
1. A “temporary restraining order” or “injunction”: A court order prohibiting you from competing further. An injunction can be either temporary or permanent.
2. Money damages: Monetary compensation for the harm done when you competed against them (e.g., lost profits).
3. Attorney fees: If the non-compete or non-solicit agreement says they can recover all fees and costs associated with enforcement of the contract.
What is a temporary restraining order for a non-compete in Michigan?
A temporary restraining order stops a party from engaging in certain conduct—violating a non-compete and/or non-solicit agreement—for up to 14 days. This order allows your former employer to quickly stop any action that will cause immediate and irreparable harm.
Important: A temporary restraining order may be issued without notice to the opposing party, but only if certain criteria are met.
What is a preliminary injunction in Michigan?
A preliminary injunction stops a party from engaging in certain conduct—violating a non-compete and/or non-solicit agreement—until a lawsuit is fully resolved. Preliminary injunctions differ from temporary restraining orders in two critical ways:
1. Preliminary injunctions always require notice to the opposing party; and
2. After it is granted, a preliminary injunction typically remains in place until trial and/or settlement of the lawsuit.
Seeking a preliminary injunction is often your former employer's first step after filing a lawsuit. A preliminary injunction hearing is like a mini-trial that happens within a few weeks or months after the lawsuit is filed. Fighting a lawsuit seeking a preliminary injunction is often very expensive very quickly because an attorney needs to prepare for a mini-trial soon after the lawsuit is filed.
Can I get fired if I don’t sign a non-compete or non-solicitation agreement in Michigan?
Generally, yes.
Unless the employer is already contractually obligated to retain the employee (i.e., you have an employment contract for a specified and unexpired number of months or years), your employer can terminate your employment if you do not sign a non-compete or non-solicitation agreement.
If you are an at-will employee, they can terminate your employment if you do not sign the non-compete or non-solicitation agreement.
I signed my non-compete, non-solicitation, or non-disclosure agreement electronically. Are electronic signatures enforceable in Michigan?
Yes, they are enforceable.The Michigan Uniform Electronic Transactions Act (“UETA”) was enacted on October 16, 2000. The UETA states, “If a law requires a signature, an electronic signature satisfies the law.” Therefore, your electronic signature will be treated like a wet-ink signature in Michigan.
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