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REFORMATTED anti-competition FINAL sm

The employer has the burden of proof to enforce a  non-competition clause or agreement.  Hence, the  first “defense” is simply showing that the employer  cannot meet its burden to prove the elements needed  to enforce the agreement or prove the elements  needed to obtain an injunction.

Failure of Consideration.
A non-compete may be unenforceable for lack of  consideration as discussed at greater length  elsewhere on this site.

Termination of Employee.
Some jurisdictions deny enforcement following a  termination. Those courts typically look to see  whether the termination was for cause. They also  focus on the text of negotiated clause.

Material Breach By Employer
In some jurisdictions, courts will not enforce a  restraint included in an employment agreement if the  employer materially breaches that agreement  in terminating the employee. In other states, courts  will refrain from enforcing restraints against  employees terminated without cause.

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