Patterson and Friedman Pen Texas Lawyer Article on Competing Noncompete Statutes

“Anti-SLAPP Statute and Noncompete Agreements,” an article by Akin Gump labor and employment partner Brian Patterson and associate Scott Friedman, has been published by Texas Lawyer. The article discusses the intersection of Texas’s anti-SLAPP and noncompete statutes, which, Patterson and Freidman say, could “dramatically alter the Texas noncompete landscape by significantly increasing both the difficulty and risk associated with enforcing noncompete agreements.”

The article begins with a look at how employers can enforce a noncompete agreement. Typically, the authors write, employers “could file suit for breach of the noncompete and quickly obtain injunctive relief against a former employee.” While litigation is often held “over the reasonableness of the noncompete agreement’s restrictions …, they are seldom fatal to an employer’s ability to obtain injunctive relief and ultimately enforce the noncompete agreement (at least to a limited degree),” due to the fact that the Texas Covenant Not to Compete Act (CNCA) “requires courts to reform restrictive covenants that they find to be overly broad.”

The Texas Citizens Participation Act (TCPA), however, turns the CNCA “on its head,” with broad language, Patterson and Friedman write, that makes it easy “for defendants to establish the application of the TCPA to a wide range of claims.” As a result, employers would be required “to present clear and specific evidence” that their restrictions are reasonable.

Courts in Texas, the article concludes, continue to grapple with this issue and whether the CNCA preempts the TCPA. Until it is resolved, employers should “be wary of the risks posed by the TCPA when seeking to enforce noncompete agreements with potentially overly broad restrictions.”

To read the full article, please click here.