DAMAGES in NON-COMPETE CASES

Let us discuss the following:

If you are driving, the car in front of you slams on its brakes, and you have to slam on yours to avoid hitting them… You do avoid hitting them, do you think they can sue you for “almost causing property damage?

The answer is: SURE they can sue you, but it won’t get very far. In fact, I am confident a Virginia judge would throw that case right out the window..

BECAUSE under Virginia law, the following must exist in a negligence action:

1. DUTY

2. BREACH

3. CAUSATION

4. DAMAGES

Non-Compete cases operate the same in theory, but not the same in practice.

To claim an employee breached his non-compete, an employer has to prove:

1. CONTRACT

2. BREACH

3. DAMAGES

The difference is, in non-compete or business tort litigation, the employer has months to dig into your business before he has to prove actual damages..

So what I am seeing, too often for my taste, are employers who file suit alleging non-compete breach, and I know in my heart of hearts they can’t prove damages.

“So,” clients often ask me, “isn’t that unethical to file a case when you can’t prove damages.”

My answer is “well, it is unethical if you know you can’t prove damages.. but most folks think if they dig and dig, they will find something.”

Also, the reason they file suit is really to threaten and scare you into submission hoping you will quit what you are doing, or pay them money to go away rather than take the case to a jury.

So. Think about the almost car accident case. Shouldn’t that apply to business torts?

I think so – but the law and the practical application of it in our current legal climate allows these cases to continue for months before the damages issue becomes dispostive.

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.