Blown Call: The Thing Texas Courts Get Wrong About Non-Competes

Blown Call: The Thing Texas Courts Get Wrong About Non-Competes

Is the reasonableness of a Texas non-compete a question of law or a question of fact?

I was once defending a Texas non-compete lawsuit and taking the deposition of the business owner who was trying to enforce the non-compete. I asked if he had any view of what a reasonable length of time for the non-compete would be. His answer: “when hell freezes over.”

That’s why I love litigation.

Recalling that answer got me thinking about an important issue in non-compete law: Is the reasonableness of a non-compete a question of law or a question of fact? If you’ve read a few Texas non-compete cases, you may already know the answer. There are dozens of cases reciting that the reasonableness of a non-compete is a question of law.

And all of those cases are wrong.

Or at least they are only partially correct. Why?

Before we can answer that question, we need to tackle a deeper jurisprudential question, the kind that law professors love: what is the difference between a question of law and a question of fact?

Deep thoughts on questions of law and fact

Let’s start with the easy part. A pure question of law is a legal issue that can be stated entirely in the abstract, without any reference to the particular facts of a case. Let’s say you’re in a car crash and the question is “what is the statute of limitations for a negligence claim?” That’s a pure question of law.

That doesn’t necessarily mean the question has a simple answer. It just means you can answer the question without knowing anything about any facts. For example, the general rule in Texas would be that you have to file a negligence lawsuit within two years of the car accident.

A pure question of fact, on the other hand, has nothing to do with law. “Did the defendant run a red light?” is a pure question of fact. (There are also “mixed” questions of law and fact, the classic example being whether a defendant was negligent, but let’s put that aside for the moment.)

It gets more complicated when the question applies an abstract legal principle to a particular scenario. Let’s take the question “does the statute of limitations start running at the time of the accident, or when the plaintiff discovered the extent of his injuries?” That sounds more factual, but it’s still a question of law, because it simply applies an abstract principle to a given factual situation.

Now let’s make it harder. My lawyer readers will know the “discovery rule.” The discovery rule is an exception that keeps the limitations clock from starting until the plaintiff discovered, or reasonably should have discovered, the injury. Is applying the discovery rule in a particular case a question of law or a question of fact?

This is where judges tend to go wrong. Perhaps nothing provides a better opportunity for superficial judicial analysis than whether an issue is a question of law or fact.

For example, if the judge thinks it’s a question of fact, she will typically write “the discovery rule is a question of fact for the jury,” cite some cases that said it was a question of fact, and be done with it. Similarly, if the judge thinks it’s a question of law, the judge will write “the discovery rule is a question of law,” cite some cases that said that, and move on.

This is superficial, and wrong. If judges would only remember what their law school professors said, they would say the answer is “it depends.”

It depends. Of course, it depends! It depends on what the evidence is. For example, if the undisputed evidence shows that the plaintiff discovered his injury more than two years before filing suit, then it’s a question of law. You’re just applying a legal principle to an undisputed set of facts. But if there is conflicting evidence about when the plaintiff discovered his injury (or should have discovered it), it’s a question of fact.

Pretty simple, right? But trust me, courts mess this up all the time. Sometimes it may just be intellectual laziness. But often it’s more than that.

Does it matter whether it’s a question of law or fact?

You may be wondering why it matters. What difference does it make whether we call an issue a question of law or a question of fact? Isn’t this just philosophical musing?

No. It matters whether an issue is a question of law or fact because that determines who gets to decide the issue. If it’s a question of law, the judge decides. But if it’s a question of fact, that means the factfinder gets to answer the question. Depending on the type of proceeding, the factfinder could be the judge, the jury, or an arbitrator.

Now, I know a lot of my Fivers are stone-cold realists. You may question whether there is any principled distinction between a question of law and a question of fact. You might say that asking “is it a question of law or fact?” is nothing more than asking “does the judge or the jury get to decide the question?”

That would be going too far. The distinction between a question of law and a question of fact is real, even if it is sometimes difficult to draw that line. But it is important to understand that the practical effect of the answer is to determine whether the judge or the jury gets to decide.

Whether the issue is a question of law or question of fact also determines who gets to decide the issue on appeal. Generally, the appellate court will defer to the factfinder on questions of fact but will decide questions of law de novo. “De novo” is a Latin phrase that means “I don’t care what a lowly trial court judge thinks.”[1]

Is the picture coming into focus now? If I’m the judge and I have a certain view of what a fair outcome would be, might that have some effect on whether I characterize an issue as a question of law or question of fact?

Let’s take our statute of limitations example. If I think the case should go to trial, I might be inclined to simply proclaim that the discovery rule is a question of fact for the jury and leave it at that. Conversely, if I think the case has no merit, I might be inclined to say it’s a question of law and grant summary judgment for the defendant.

I’m not necessarily suggesting there is anything sinister about this. Even the most impartial judges will tend to characterize the issue in a way that favors an outcome they sincerely believe is fair and just. That’s true even before you add external forces to the mix—say, campaign contributions from “tort reform” groups or plaintiff’s lawyers.

But there is a better way: it depends. It depends on the evidence. If the relevant evidence is undisputed, it’s a question of law. If the relevant evidence is conflicting, it’s a question of fact.

This proposition, though often ignored, shouldn’t be controversial. If you think it’s wrong, please tell me why.

Let’s apply what we’ve learned 

Now let’s apply this not-so-controversial principle to a typical Texas non-compete.

Texas, like most states, requires a non-compete to be reasonable in time period, geographic area, and scope of activity restrained. So, is the reasonableness of a Texas non-compete a question of law or a question of fact?

You already know where this is headed, but let’s break it down.

What do we mean by “reasonable,” as applied to a non-compete? Fortunately, the Texas non-compete statute gives us a clue. It says the non-compete must have “limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.”[2] For the typical Texas non-compete, which is tied to a confidentiality agreement, reasonableness comes down to whether the limitations are no greater than necessary to protect the company’s goodwill and confidential information.

So how about a three-year time period? Is that reasonably necessary to protect the employer’s goodwill and confidential information? And what about a geographic area of the State of Texas? Is that reasonable?

You’re probably having trouble answering these questions in the abstract. That’s because you don’t know anything about the facts of the case. It would make a difference whether it takes three months or three years for the confidential information to become outdated and useless. It matters whether the company sells products to customers throughout the State of Texas or in just one city.

If you don’t know the answers to these questions, there is no way you can know if the time period and geographic area are reasonable. You simply cannot determine the reasonableness of the non-compete in the abstract.

And yet, many Texas cases recite that the reasonableness of the non-compete is a question of law. As I said earlier, that is either wrong or only partially correct. Reasonableness could only be a question of law if the facts concerning reasonableness are not in dispute. If there is conflicting evidence material to reasonableness, it’s a question of fact.

And I can prove it. My witness is the Texas legislature, and my Exhibit 1 is Section 15.51 of the Texas Business and Commerce Code. It says:

If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code. . . . For the purposes of this subsection, the “burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence

Let me translate. This means that for a non-compete in a typical employment agreement, the employer has the burden of proving the non-compete is reasonable.

This proves my point that the reasonableness of a non-compete can be a question of fact, provided there is conflicting evidence. How else could there be a burden of proof on the issue? Questions of law don’t have a burden of proof.

Why this matters in non-compete litigation

This explains why I was asking that deposition question about a reasonable time period for the non-compete. I knew it was the employer’s burden to prove that the time period in the contract was reasonable. I wanted to nail down whether the employer had any evidence to offer that the time period was reasonable. He didn’t.

Wait a minute, you say. Even if you’re technically correct, isn’t this just a case of sloppy language? Opinions that say it’s a question of law may still be getting the result right, if the undisputed facts of the case establish that the non-compete was either reasonable or unreasonable.

True. But the issue is not academic. For one thing, treating reasonableness of a non-compete as a question of law tends to favor enforcement of the non-compete. In theory, the judge could just as easily find a non-compete unenforceable as a matter of law. But in practice, the vast majority of cases that say reasonableness is a question of law also say the non-compete was reasonable, and therefore enforceable. So, the outcome of this philosophical issue can make a real practical difference.

Now that I’ve cleared this up, when can we expect Texas appellate courts to stop proclaiming without qualification that the reasonableness of a non-compete is a question of law for the court?

I’d say probably when hell freezes over.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Appellate lawyers call this the “standard of review.” Standard of review is one of those issues that is really, really exciting for appellate lawyers and boring for just about everyone else.

[2] Tex. Bus. & Com. Code § 15.50(a).

Nothing But Net: Fifth Circuit Reverses Gross Profits Award

Nothing But Net: Fifth Circuit Reverses Gross Profits Award

There’s a joke about a CEO who gets a quarterly profit and loss statement showing his company is losing money. “That’s impossible,” he says to the CFO, “all five divisions reported they were profitable this quarter.”

CPA humor. There’s nothing like it.

How could all five divisions make a profit while the company shows a loss? In a word: overhead. Each division is probably calculating its profits without deducting an appropriate share of the company’s overhead expenses.

This is not just a problem for accountants and CEOs. Litigators have to deal with this issue when there is a claim for lost profits damages. Any time a plaintiff tries to calculate lost profits—with or without help from an expert—there is the thorny issue of overhead.

A recent decision from the Fifth Circuit Court of Appeals shows how important this issue can be.  In Motion Medical Technologies v. Thermotek, the Fifth Circuit reversed a jury’s award of over $1.5 million in fraud damages because the award was based on evidence of gross profits, not net profits.[1]

Why? Gross profits don’t account for the company’s overhead, while net profits do. The plaintiff had only offered evidence of gross profits, and Texas law requires evidence of net profits.

Simple in theory, but not so simple in practice. Let’s take a closer look.

An accounting lesson from a litigator

To illustrate, let’s take my favorite hypothetical company, Paula Payne Windows. Paula Payne buys windows from manufacturers and sells them to its customers.

*WARNING* I have no background in accounting, other than litigating cases with accounting issues, so you could say I know just enough accounting to be dangerous. But here we go.

Paula Payne’s revenue is what the customer pays Paula Payne for the windows. Paula Payne’s cost of goods sold (COGS) is what it pays the manufacturer plus the cost of shipping. Revenue minus COGS is gross margin, or gross profit. Gross profit minus overhead is net profit.

So, Paula Payne’s oversimplified P&L for a big window sale looks like this:

Screen Shot 2017-11-18 at 9.34.00 PM

Yeah, I know, there’s also stuff like interest, taxes, depreciation, etc. That’s why I say oversimplified.

Plus, there’s usually some wiggle room in each line. For example, it’s clear that the money Paula Payne pays the trucking company to deliver the windows is part of COGS, but what about the lady in the office who talks to the trucking companies on the phone all day? Is her salary part of overhead or COGS?

Then there is the question of allocation. What share of Paula Payne’s total overhead should it allocate to one particular sale, or group of sales?

You may be thinking that’s what an accounting expert is for. We’ll just ask a CPA how to allocate overhead based on Generally Accepted Accounting Principles (GAAP), right?

The problem, I’ve learned, is that GAAP doesn’t really care how you allocate expenses for any particular transaction. GAAP deals with “financial accounting,” which is how you get to the P&L statement the company provides to the outside world. GAAP wants to make sure that all expenses are deducted before you get to the bottom line. It doesn’t really care how the company slices and dices those expenses internally.

That’s “management accounting,” which is not governed by GAAP. If a company wants to figure out internally how much net profit it makes on a particular transaction, it can use pretty much any reasonable method it wants.

*Update: Some accountants tell me the right way to allocate overhead expenses is to distinguish between variable and fixed. To determine net profit, you deduct the variable expenses, i.e. the ones that rise and fall with changes in sales volume, not the fixed ones. You can look historically at the company’s P&Ls to see which are variable vs. fixed.

But my accountant readers (I have at least two) are probably cringing at my explanation by now, so let’s get to something I know better: litigation.

How not to calculate lost profits in litigation

In Motion Medical, ThermoTek sold a medical device called the “VascuTherm” system. Orthoflex, a rival company, allegedly misappropriated information about Thermotek’s device and started selling its own knockoff device. ThermoTek sued Orthoflex for unfair competition and fraud.

The unfair competition claim was preempted by federal copyright and patent law.[2] That’s an important issue in its own right, but I’ll leave it to a smarter IP lawyer to blog about that. Let’s focus on the damages for the fraud claim.

ThermoTek’s expert witness testified that he used ThermoTek’s gross profit margin, meaning gross sales minus cost of goods sold, to calculate lost profits. He determined total lost profits for lost sales of the VascuTherm system by multiplying average monthly sales by unit sales price and relevant time period, and then deducting cost of goods sold.

“But that is the very definition of gross profits,” the Fifth Circuit scolded. “Indeed,” the court said, “the expert himself conceded on cross-examination that his numbers reflected ‘gross profits rather than net profits.'” The expert also acknowledged “his margins were high because they did not account for ThermoTek’s other business expenses.”[3]

The problem for the plaintiff was that Texas law requires the plaintiff to prove net profits, measured by the plaintiff’s total receipts minus all expenses incurred in carrying on the business. So, in the words of Willie Wonka, “You get nothing! You lose! Good day, sir!”

But surely it wasn’t that simple, right?

Well, it turns out there are some exceptions. First, for certain intellectual property claims, the plaintiff can seek an “accounting” of lost profits, where the plaintiff only has to offer evidence of its gross profits, and the burden is on the defendant to prove any costs that should be deducted to get to net profits. But ThermoTek’s common-law fraud claim was not such a claim.

Second, the court acknowledged that a plaintiff’s failure to include overhead expenses in the calculation of lost profits is “not fatal” if, for example, there is evidence the plaintiff was already profitable when the damages began and could have made the lost sales using only its existing resources.[4] But that argument, Judge Higginson wrote for the court, was not made by ThermoTek or supported by the trial record.

Perhaps this part of the opinion points to a solution for plaintiffs. Imagine ThermoTek’s expert had simply testified, “I didn’t deduct any overhead because ThermoTek was already profitable when the lost sales started, and my investigation satisfied me that ThermoTek could have made those additional sales without any increase in its overhead.” Would the gross profits award then be affirmed?

Lessons for litigators from Motion Medical

That last question points to some lessons litigators—and their hired experts—can learn about lost profits damages from Motion Medical.

If you represent the plaintiff, work with your damages expert early on to decide whether to calculate lost profits based on gross profits or net profits. The safer course, of course, is to go with net profits. In that case, the tricky part is figuring out what percentage of the plaintiff’s overhead to allocate to the lost sales. But as long as the expert uses some reasonable method of allocation, you should be ok.

On the other hand, safer isn’t always better. Net profits may undercompensate your client. If the plaintiff company was already profitable, and if you can make a credible argument that the company would have made the additional sales without any increase in its overhead, you may want to be more aggressive and go for gross profits, relying on the second exception cited in Motion Medical. But be careful. Make sure you offer evidence to support those assumptions, and prepare your expert to explain why overhead was not deducted.

If you represent the defendant, you have some strategic choices to make if the plaintiff presents a damage theory based on gross profits.

First, for the defense there is always the dilemma of whether to designate a damages expert at all. You worry that presenting an expert to calculate the plaintiff’s damages implies that your client did something wrong and that the plaintiff was, in fact, damaged. Often you would rather just attack flaws in the plaintiff’s calculation.

On the other hand, if the plaintiff’s expert offers an inflated lost profits calculation, and you offer nothing, you may get stuck with the plaintiff’s number.

The second decision is when to attack a calculation of gross profits that you think is defective. If you’re working hard to settle the case, you may want to press the issue earlier, e.g. hammering on it at mediation.

But generally I prefer to wait until trial, when it is too usually late for the plaintiff to fix a defective damage calculation. If I represent the defendant, it’s not my job to tell the plaintiff how to do a proper lost profits calculation.

Or is it?

Is it unprofessional to wait until trial to attack a gross profits calculation?

On at least two occasions I waited until trial to argue that the plaintiff’s damage calculation was defective because it didn’t deduct all the necessary expenses. It did not make me popular with opposing counsel.

In one case, I sent interrogatories to the plaintiff asking about its calculation of damages. The plaintiff responded with a calculation that was obviously based on lost revenues, not lost profits. I sat back and waited.

Then, less than 30 days before trial, plaintiff’s lawyers realized they had a problem and tried to cure it with a new calculation that included expenses. I objected. Strenuously. The judge said sorry plaintiff, you don’t get to offer any evidence of damages. Opposing counsel was livid.

In another case, the plaintiff offered evidence of the profits my client made from its alleged wrongdoing, without deducting any overhead. When the president of my client took the stand, I asked “what is your monthly overhead?” You’d think I had kicked an anthill. The defense lawyers practically jumped up and down complaining “he didn’t produce any documents showing overhead!”

My response: “you didn’t ask for them.” Objection overruled.

In both cases, the plaintiff’s lawyers kind of took it personally. They were pretty angry with me. Now, when someone gets really angry with you, there’s a part of you that instinctively feels a little guilty, like maybe you did something wrong (unless you are a sociopath).

So it made me wonder, was it unprofessional of me not to warn them that I was going to attack their defective damage theories? In the first case, should I have relented and said, “ok, it’s no big deal, you can offer your revised calculation”? In the second case, should I have provided information on my client’s overhead in advance?

Tell me what you think.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Most of his accounting knowledge comes from watching “Shark Tank” with his son. 

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Motion Med. Tech., LLC v. Thermotek, Inc., No. 16-11381, 2017 WL 5396406 (5th Cir. Nov. 14, 2017). The jury’s award of $6 million for unfair competition was reversed on other grounds.

[2] Id. at *8-10.

[3] Id. at *10-11.

[4] Id. at * 11 (citing ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 879 (Tex. 2010)).

First Western: A Court of Appeals Decision on the Defend Trade Secrets Act

First Western: A Court of Appeals Decision on the Defend Trade Secrets Act

TexasBarToday_TopTen_Badge_VectorGraphicAh, the fall season, it’s finally here. When the Astros win the World Series, the Cowboys win as many games as they can while Ezekiel Elliott can still play, and the sweet smell of pumpkin pie and indictments wafts through the nation’s capital. The only thing that could make fall better would be a real Court of Appeals decision applying the relatively new Defend Trade Secrets Act.

And then it appeared like the Great Pumpkin, the day before Halloween.

In one of the first Court of Appeals decisions applying the federal Defend Trade Secrets Act, the Tenth Circuit Court of Appeals recently held in First Western Capital Management Co. v. Malamed that a plaintiff must prove irreparable harm to get a preliminary injunction under the Act.

If you know anything about injunctions, that probably doesn’t surprise you. “Irreparable harm” is one of the traditional requirements for obtaining an injunction.

But it wasn’t that simple. The plaintiff made the plausible argument that, because the statute authorizes an injunction and does not expressly require proof of irreparable harm, then evidence of irreparable harm is not required. In other words, there is a presumption of irreparable harm when the plaintiff proves the statute was violated.

The Tenth Circuit rejected this argument. The Court of Appeals reconciled its prior decisions by drawing a distinction between a statute that mandates injunctive relief and a statute that merely authorizes injunctive relief. When a statute only authorizes an injunction—as the DTSA does—then the plaintiff still has to prove the “traditional” requirements for an injunction, including irreparable harm.

The district court had already found that the plaintiff did not prove irreparable harm, so the Court of Appeals reversed the preliminary injunction. (You can read more about the district court opinion here.)

So what does this case from Colorado mean for lawyers who handle trade secrets litigation in my home state of Texas?

Lessons from First Western: Plaintiffs should offer evidence of irreparable injury

As I said here, if you represent a plaintiff asking for a preliminary injunction in a Defend Trade Secrets Act case, you should offer evidence of irreparable harm. Then you can make two arguments. First, we’ve proven irreparable harm. Second, even if we haven’t proven irreparable harm, we don’t have to.

Unless and until the Fifth Circuit Court of Appeals holds that the Tenth Circuit got it wrong in First Western, you don’t want the second argument to be your only argument; you want it to be your fallback position. So come prepared with evidence of irreparable harm.

But what evidence is that?

There is no single way to show irreparable harm, but here are a few typical arguments that damages would be inadequate to compensate your client for the defendant’s use of your client’s trade secrets:

  • It will be difficult to quantify the amount of damages.
  • Loss of the trade secrets at issue will be irreversible.
  • It’s unlikely the defendant has sufficient assets to satisfy a judgment for damages.

These arguments don’t always hold up to scrutiny, but you want to have something to argue. The judge will feel more comfortable granting an injunction if you at least offer some evidence to try to show irreparable harm.

Of course, if you represent the plaintiff you can still argue that proving a violation of the statute is sufficient. There is some authority in the Fifth Circuit for the proposition that “where a statute expressly provides for injunctive relief, irreparable harm is presumed and need not be established.”[1]

You can also cite pre-DTSA case law holding that the threatened disclosure of trade secrets is presumed to cause irreparable injury.[2]

But you don’t want to put all your eggs in one basket.

Should the First Western principle apply to Texas statutes?

If you represent the defendant in a Texas trade secrets lawsuit, First Western can help you in two ways. First, and more obvious, you can cite First Western for the argument that the plaintiff still has to prove irreparable harm to get an injunction under the Defend Trade Secrets Act.

First Western isn’t binding in the Fifth Circuit, you can concede, but its reasoning is sound. When Congress passed the DTSA, it was well aware (in theory) of the long-established principle that courts require proof of irreparable injury to get an injunction. If Congress had wanted to excuse plaintiffs from that requirement, it could have expressly said so.

Second, and perhaps less obvious, defendants can argue that the principle applied in First Western should also apply to the Texas trade secrets statute and the Texas non-compete statute.

Like the Defend Trade Secrets Act, these statutes expressly authorize but do not require injunctions.

Just as the DTSA says a court “may grant” an injunction, the Texas non-compete statute says that a court “may award” injunctive relief.[3] Similarly, the Texas Uniform Trade Secrets Act says that actual or threatened misappropriation of trade secrets “may be enjoined.”[4]

The fact that these statutes do not mandate an injunction for violating the statute means that the plaintiff still has to prove the traditional equitable requirements for obtaining an injunction—including irreparable harm.

At least that’s the argument, applying the distinction from First Western.

Just keep in mind there have been some Texas cases going the other way, suggesting that proof of irreparable injury is not required because the non-compete statute preempts other law and expressly authorizes injunctions.[5]

Personally, I think that’s wrong, but until the Texas Supreme Court definitively decides the issue, if I represent the plaintiff I may at least make the argument that proof of irreparable injury isn’t required.

Now if only I could convince the Second Circuit to let Zeke play.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] See, e.g., U.S. v. McMillan, 946 F. Supp. 1254, 1266 (S.D. Miss. 1995) (citing  EEOC v. Cosmair, Inc., 821 F.2d 1085, 1090 (5th Cir. 1987), and U.S. v. Hayes Int’l Corp., 415 F.2d 1038, 1045 (5th Cir. 1969)).

[2] See Heil Trailer Int’l Co. v. Kula, 542 Fed. Appx. 329, 335 (5th Cir. 2013) (citing Texas cases). Courts are a little imprecise about this. You could read the cases to say that the disclosure of trade secrets is irreparable injury, or that disclosure of trade secrets excuses the plaintiff from proving irreparable injury, but the distinction may be academic.

[3] Tex. Bus. & Com. Code § 15.51(a).

[4] Tex. Civ. Prac. & Rem. Code § 134A.003(a).

[5] Compare Sanders v. Future Com, Ltd., No. 02-15-00077-CV, 2017 WL 2180706, at *10 (Tex. App.—Fort Worth May 18, 2017, no pet.) (mem. op.) (plaintiff that proves violation of non-compete statute is entitled to permanent injunction without showing of traditional injunction elements), with Argo Group US, Inc. v. Levinson, 468 S.W.3d 698, 701-2 (Tex. App.—San Antonio 2015, no pet.) (joining courts holding that a plaintiff seeking a temporary injunction for violation of the non-compete statute still must show irreparable injury).

Texas Court Finds Indentured Servitude Contract Illegal

Texas Court Finds Indentured Servitude Contract Illegal

TexasBarToday_TopTen_Badge_VectorGraphicDo you have a college degree in restaurant and hotel management? Have I got a deal for you.

Work as an assistant manager at Buc-ee’s, the well-known Texas highway stop with the clean restrooms, massive selection of snacks, and funny billboards. On top of a weekly salary of $862.75, you will get a monthly bonus, I mean, “retention payment,” of 1.2652% of the store’s monthly net profit.

Naturally, your employment will be at-will, meaning Buc-ee’s can fire you at any time for any reason, or for no reason. That’s ok, because you can also quit for any reason, or for no reason.

But here’s the catch. If you quit or get fired in less than four years, or if you don’t give Buc-ee’s written notice at least 6 months before quitting, you have to pay back all of the retention payments you received, plus interest and attorneys’ fees.

In other words, you can check out any time you like, but you can never leave.

That was the basic deal in Rieves v. Buc-ee’s, a case recently decided by the Houston Court of Appeals (14th District).[1] Rieves, the employee, received about $67,000 in retention payments, paying federal income taxes on them, but quit the job three years in. Buc-ee’s sued her to recover the $67,000 plus interest and attorneys’ fees.

That doesn’t sound fair, you may be thinking, but this is Texas, and a deal’s a deal, right?

Well, yes, “that’s not fair” is usually not a defense to enforcement of a contract, and “unfairness” is not an exception to the at-will employment doctrine.

But it’s not just a question of enforcing the parties’ contract. The public’s interest in free competition is also at stake. That’s why Texas has a statute that says every contract in restraint of trade or commerce is illegal. The statute has an exception for non-competes, but the non-compete has to be reasonable in scope.

So, Rieves argued that the contract’s requirement to pay back the retention payments was an unenforceable restraint of trade, and the Houston Court of Appeals agreed.

Limitations on employee mobility must meet the reasonableness requirement for non-competes

Under Texas case law, the court said, limitations on employee mobility are unenforceable unless they fall within the statutory exception for non-competes. This rule applies not only to provisions that expressly limit employee mobility, but also to damages clauses that impose a “severe economic penalty” on a departing employee. Because the contract imposed a severe economic penalty on Rieves for exercising her right to quit, the court reasoned that the contract was unlawful unless it met the reasonableness requirements for non-competes.

The problem for Buc-ee’s? The contract had no limits on the employee’s repayment obligation based on whether her new employment involved competitive activities or was located within certain areas. Not only that, the contract gave Buc-ee’s the right to enforce the repayment provision even if, for example, Buc-ee’s fired the employee without cause on the last day of the four-year period, or if the employee quit to take a noncompeting job, or no job at all.

This was just too much, even for the relatively conservative 14th Court of Appeals.

“These provisions go far beyond protecting any legitimate competitive interest of Buc-ee’s,” Justice Busby wrote for the court, “impose significant hardship on Rieves by clawing back substantial compensation already paid to her and on which she had paid taxes, and injure the public by limiting choice and mobility of skilled employees.” The court therefore rendered judgment that the repayment provision of the contract was unenforceable.

That sounds like a fairly common-sense application of Texas law, right?

What about ExxonMobil v. Drennen?

But those of you who follow Texas non-compete law may be thinking, what about Drennen?

Exxon Mobil v. Drennen was a Texas Supreme Court case decided in 2014.[2] Technically, it addressed a narrow issue only a lawyer could love: choice of law. The contract at issue in Drennen required an executive to forfeit stock options if he went to work for a competitor. New York law allows that sort of thing, and the legal issue presented was whether the Texas court should apply New York law or Texas law.

I won’t get down in the weeds of the choice of law analysis, but the key was that one step was to ask whether Texas has any “fundamental policy” against this kind of forfeiture provision.

Some of you may recall a certain statute that says something about, what was it, restraints of trade or commerce being unlawful? That kind of sounds like a “fundamental policy” to me.

But the Texas Supreme Court didn’t see it that way. It held in Drennen that there was no fundamental Texas policy that would bar the forfeiture clause, and that cleared the way for New York law to apply.

As explained here, I thought Drennen got it wrong on this point. In my view, Texas courts should take the legislature’s ban on restraints of trade more seriously. But of course I don’t get to make the rules. And while bloggers and pundits are free to criticize, the Texas Courts of Appeals have to follow what the Texas Supreme Court says.

So if Drennen said the forfeiture of employee benefits does not violate Texas public policy, why didn’t that control the outcome in the Buc-ee’s case?

The Buc-ee’s court found that Drennen did not apply. First, the type of compensation at issue was different. In Drennen, it was forfeiture of future unvested stock options, while in Buc-ee’s it was money already paid to the employee, on which she had already paid income taxes.

Second, the Buc-ee’s contract was different because, unlike the stock option provision in Drennen, it did not necessarily reward the employee for her loyalty. The contract required the employee to pay back a substantial part of her compensation even if Buc-ee’s fired her, and the longer she worked at Buc-ee’s, the larger the penalty if she decided to quit.

These sound like reasonable distinctions, but would the Texas Supreme Court agree? I wouldn’t be surprised to see Buc-ee’s petition the Texas Supreme Court to take the case, arguing that it conflicts with Drennen.

Then we may really see if the Texas prohibition of restraints of trade has any teeth.

The Bigger Picture

The Buc-ee’s decision shows that some Texas courts still take the legislature seriously when it says that restraints of trade are unlawful. It’s an important decision, because it restores some balance to the basic social contract that Texas law provides to businesses and employees.

The at-will employment doctrine and the ban on restraints of trade are two sides of this coin. What’s in it for business is they can hire and fire at will, with only some narrow exceptions (like unlawful discrimination).

The at-will employment doctrine is widely known but not fully appreciated. Everybody knows that employers can fire employees at will, yet with most people that knowledge really hasn’t sunk in. In the back of their minds, employees still seem to feel that employers can’t fire them for a bad reason.

But they can, and that’s a big deal. I would even say the at-will employment doctrine is the most serious source of injustice in the workplace in America.[3]

Think about it. At-will employment means you can slave away for the same company for twenty years and get fired because the owner wanted to make room for his son who just got out of college and needs a job. It’s just not fair!

Yet I fully support the at-will employment doctrine. While at-will employment is a source of great injustice on the “micro” level, we accept it as a necessity for its “macro” benefits, which fall into two categories.

First, there is the judicial capability problem. While judges sometimes speak of at-will employment as if it were some immutable law of nature, it isn’t. Courts could adopt a common-law rule that employers must have good cause to fire an employee. But imagine all the lawsuits that would follow. And imagine all the inconsistent and subjective rulings by judges and juries on “good cause.”

Second, we accept at-will employment for its economic benefits. The ability to hire and fire freely boosts overall economic growth and employment, benefitting everyone. If employers could only fire for good cause, think of how reluctant they would be to hire in the first place. At-will employment also encourages employee mobility, which increases competition.

But this gets to the other side of the deal: at-will employment has to be a two-way street. Just as employers can fire for any reason, or for no reason, employees have to be free to say “take this job and shove it.” Not only that, employees must be able to leave and work for a competitor (unless there is a reasonably limited non-compete). That’s the balance that makes at-will employment work.

The basic problem in Buc-ee’s was that the employer tried to upset this balance. Buc-ee’s wanted to have its beef jerky and eat it too: we can fire you any time for any reason, but we’re also going to make it cost-prohibitive for you to decide to leave.

This was just too much for the Houston Court of Appeals. You can’t always get what you want.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. As a litigator he drives around Texas a lot and loves stopping at Buc-ee’s.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

[1] Rieves v. Buc-ee’s Ltd., No. 14-15-01061-CV, 2017 WL 4557796 (Tex. App.—Houston [14th Dist.] Oct. 12, 2017).

[2] Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319 (Tex. 2014).

[3] This is not to downplay harassment and discrimination, which are certainly real problems.

Courtroom Lessons from the Marshall Movie

Courtroom Lessons from the Marshall Movie

Imagine this. It’s 1941, and the NAACP dispatches a young Thurgood Marshall to a picturesque Connecticut town to defend a black chauffer accused of repeatedly raping a prominent white socialite, binding and gagging her with strips of her own dress, and throwing her off a bridge into a lake.

The headlines are going crazy. A local white man writes a letter to the editor saying, “we should have hung all n*****s while we had the chance, and trust me it would make the world better.” Imagine what it was like trying to pick a jury in that environment.

Except that statement was not printed in a newspaper in 1941. It’s actually what a white high school student said to an African-American girl on Snapchat in 2017, in the affluent mostly-white suburb where I live and saw the movie Marshall with my wife this past weekend.

So, yeah, you could say the movie is still relevant 76 years later.

But don’t go see Marshall like it’s homework or some rite of atonement. What makes it a great movie is that it’s a classic Hollywood courtroom drama, spiced up with some odd-couple buddy-cop flavor. The fact that it also serves as a sort of origin story for the most successful civil rights lawyer of the 20th century is icing on the cake.

On the Five Minute Law Movie Scale, I give it 0.4 hours (that’s on a scale of 0.1 to 0.5 hours).

Granted, I’m a trial lawyer who loves stories from the civil rights movement, so they had me at the preview. Chadwick Boseman could have made any half-way-decent movie about the sensational Joseph Spell trial, and I would have been hooked.

But Marshall was even better than I expected, and one reason is that the courtroom scenes were relatively realistic (by Hollywood standards). In fact, I took away from it some practical lessons on how to be a better trial lawyer. Here are nine of them.

*SPOILER ALERT: These tips contain minor plot spoilers. But if you’re like my mom, who figures out every plot twist in the first 15 minutes of a movie, then I’m not really giving much away.

1. Clients don’t always tell you the whole story

I’m sure Thurgood Marshall  believed all defendants have a right to counsel, but a key part of the NAACP’s legal defense strategy was to focus on defendants they believed were actually innocent. This was important to the overall political strategy and to fundraising.

So, one of the first things Marshall (Boseman) does is interrogate his new client, Joseph Spell (Sterling K. Brown), to assure himself that the man is actually innocent. But would you believe that Spell doesn’t tell Marshall the whole story in that first interview?

More about that later.

2. Don’t rely too much on stereotypes for jury selection

On paper, she’s a terrible juror for the defense: a white woman who grew up in North Carolina and now rubs elbows with Connecticut high society. Local defense counsel Sam Friedman (Josh Gad) is ready to strike her, but Marshall says not so fast. She’s an educated woman with a mind of her own, her body language towards the “Yankee” prosecutor showed some hostility, and she likes you, Marshall tells Friedman. Plus, Marshall has a hunch this lady may know things about the victim, Eleanor Strubing (Kate Hudson).

The result: the white socialite gets on the jury. She even becomes the forewoman.

When you have no other information about a juror, you may have to fall back on demographic profiles, but jury consultants say that attitudes about case-specific issues are a better guide than stereotypes. And of course, it never hurts if a potential juror likes you.

3. Some things are better left unsaid

Mrs. Strubing strangely claims that after her chauffer threw her over a bridge into the water, he threw rocks at her. So, when Friedman cross-examines the local police captain who inspected the scene, he asks whether any rocks were found on the bridge. The captain can’t recall.

Friedman then dumps a pile of pebbles on the prosecutor’s table. Would you call these pebbles or rocks, Captain? The witness eventually admits they are pebbles, prompting chuckles from the jury.

The unsaid part: the fact that Marshall collected the pebbles at the scene. The defense never offers any witness to lay a predicate that the pebbles came from the bridge.

But they didn’t have to. In the words of Hall & Oates, Some Things Are Better Left Unsaid.

4. Save that killer impeachment point for closing argument

The examining physician testifies that skin was found under the victim’s fingernails, but there’s a problem: there’s nothing in his examination notes about that. When Friedman brings up this point on cross, the doctor is ready with an excuse. My wife took the notes, he says, and she neglected to include that fact. And then the doctor drops a bombshell. It was a black man’s skin under her fingernails.

On the next break, Marshall berates Friedman for falling into a trap.

Imagine if Friedman, instead of bringing up the point during cross examination, had waited until closing argument to point out to the jury that the doctor’s notes said nothing about skin under the victim’s fingernails. Then it would be too late for the doctor to try to explain away the glaring omission.

5. You can do it if they don’t object

In law school, I had a trial advocacy instructor (now a judge) who told a great story about defending a police officer accused of assault. He started slapping himself on the head with the alleged weapon in front of the jury, causing himself no injury. The students couldn’t believe that was allowed. The instructor’s point: it was allowed because no one objected.

The defense team in Marshall does a similar demonstration. Mrs. Strubing claims she never screamed, even when a police officer was only a few feet away, because she was gagged. In front of the jury, Marshall puts the gag in Friedman’s mouth and pulls it tight, asking Mrs. Strubing if he has it right. Friedman then belts out the loudest, longest scream you can imagine. Point made.

Can they do that? Well, no one objected.

6. Bring up your client’s baggage before the other side does

Mr. Spell is not the ideal defendant: he abandoned a wife and two kids in Louisiana, got dishonorably discharged from the Army, and got fired from his last job for stealing. So here’s what you’re going to do, Marshall says to Friedman, you bring up all those bad facts when you get Spell on the stand. Don’t give the prosecution the chance to do it first.

Friedman does exactly that, getting Spell to admit every check in his checkered history  before the prosecutor can ask a single question.

As I wrote here, if you know there are bad emails from your client, don’t try to hide or ignore them. Usually you’ll only make it worse. What was true in 1940 is true now: you look better if you freely admit your bad facts.

7. Be careful with open-ended questions on cross examination

When prosecutor Loren Willis (Dan Stevens) gets his crack at Spell on cross examination, he unloads on Spell’s history of lying. Then, after setting up Spell as a habitual liar, he goes for the jugular with his key question: if you’re innocent, then why did you lie to the police about what really happened?

But the question backfires. Marshall has prepared Spell to knock this one out of the park, and Spell does it. The prosecutor is so shaken, he does the only thing he can think to do and asks the judge to strike the answer. After a long pause, the judge gives his ruling.

Conventional wisdom says you only ask leading questions on cross. That advice is not always realistic; sometimes you just have to ask an open-ended question. But the prosecutor’s blunder in Marshall is a good reminder of why using open-ended questions on cross is dangerous.

8. Persuasion requires meeting the audience half way

When Spell answers the prosecutor’s key question, you sense that the tide is turning. But the defense still has to persuade the jury in closing argument. Over dinner, Marshall tells Friedman what to say in closing.

Throughout the movie, we’ve seen Marshall going on the offensive, so we’re bracing for an all-out assault on Mrs. Strubing’s credibility. But Marshall understands that Friedman is not going to persuade the all-white jury by portraying the white victim as a bad person. Instead, he crafts the argument to get the jury to feel sorry for her (with obvious echoes of To Kill a Mockingbird).

Sometimes persuasion requires accepting the biases of your audience and crafting an argument that appeals to their world view, not yours.

9. Get a non-lawyer’s opinion about the big picture

Boseman portrays Marshall as a supremely self-confident young lawyer who already knows what he’s doing (prompting friend Langston Hughes to quip, “I’d say you have enough confidence for all of us”).

But it’s a non-lawyer who helps Marshall discern the key to the case. Early on, the wife of the local NAACP leader asks Marshall if he really thinks Spell is innocent. “Why would a woman lie about something like that?” she asks.

It is only when Marshall reflects on that question that he realizes his client hasn’t told him the whole story. That’s when he really figures out how to defend the case effectively.

When I get a new case, I like to describe the big picture to my wife, daughter, or another family member. Hearing a non-lawyer’s take is a great way to gauge how a jury is likely to react. That’s just as true today as in 1941.

Some things haven’t changed.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

Top 5 Most Smug Areas of Law Practice

Top 5 Most Smug Areas of Law Practice

Ever notice how there are some areas of law practice you love to hate? If you’re honest with yourself, it’s just based on envy. But still, there’s something about the lawyers in that field that is just so . . . smug. Here are the top five offenders.

5. Bankruptcy

I have a little experience with litigation in bankruptcy court, “enough to be dangerous” as they say, and that’s enough to know that bankruptcy-world is its own universe. So, lawyers who know bankruptcy inside-out have a big advantage.

As if that wasn’t irritating enough, bankruptcy is the quintessential counter-cyclical practice area. When a recession hits and other billable work dries up, bankruptcy practice is booming. And the bankruptcy lawyers can barely conceal those smug little smiles.

4. High-Stakes Plaintiff’s Contingent-Fee Litigation

Not sure if this is really a “practice area,” but you know the kind of lawyer I’m talking about. Flies to depositions in a private jet. Wears cowboy boots made of some kind of exotic game. Probably owns a yacht and a Lamborghini. And if he’s really likeable, it’s that much worse.

3. Tax

In my 20 years doing a fairly broad business litigation practice, I’ve always been up for learning a new substantive area of law, but I draw the line at tax law. I’m not even going to touch it. And many of you are just like me. That means if a real tax issue comes up, we have to go to one of a handful of tax specialists for help. And they know it.

2. Appellate

No explanation required.

1. Patent Prosecution

Picking this over appellate was a close call. Yes, it’s easy to resent those appellate lawyers who were the smartest kids at their elite law schools, clerked for federal judges, and then had to agonize over which big-name law firm to join.

But think about how you feel when you see a lawyer profile like this: undergraduate degree in Engineering, Ph.D in Molecular Biology (is that a thing?), J.D. from a respected law school, handles patent prosecution for large high-tech companies. You know that lawyer is basically printing money.

Ok, yes, he probably had a lot of student loan debt, but it was paid off years ago. And while he used to work at a big firm with high overhead, now he’s a partner at a little boutique in the suburbs with cheap rent.

Smug as a bug in a rug.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation. His firm Fleckman & McGlynn, PLLC has offices in Houston, Austin, and The Woodlands. These are his opinions, not the opinions of his firm or clients. 

He actually kind of likes appellate lawyers. But not tax lawyers. Nobody likes those guys.

The Plain-Language Non-Compete

The Plain-Language Non-Compete

Even if you’re not a lawyer, you’ve probably had some occasion to read court documents and come across stock phrases like this:




And yes, they are usually in ALL CAPS.

You may have wondered if there is some legal purpose to these formalisms. The answer is no. Leaving these traditional incantations out of a court document would have zero legal effect. They are no more necessary than drafting a court document in Papyrus font.

So why do lawyers use them?

The most basic explanation is inertia. Lawyer like to use forms, forms often contain phrases like this, and lawyers don’t bother to change them.

But many attorneys include these phrases—and continue to include them—intentionally. (Associates, here’s an experiment: take these relics out of your next draft and see if the supervising partner puts them back in.)

I think insecurity is the main reason lawyers use these archaic phrases. The lawyer feels a need to “sound like a lawyer,” to show people “hey, I went to law school for three years and passed the bar.” The lawyer does not feel secure enough that the substance of his writing will accomplish this.

The irony is that when I see a lot of these empty formalisms in a court document, it has the opposite effect. It doesn’t make me think, “wow, this must be a really experienced lawyer.” Instead, I think to myself either “this guy relies too much on old forms” or even “this guy is kind of a lightweight.”

At a minimum, a document encrusted with these legal barnacles shows that the lawyer is not serious about good contemporary legal writing.

But let’s not get carried away

A couple caveats are appropriate. First, everyone has certain formal phrases they like to use in legal documents. I admit a fondness for putting “respectfully submitted” before the signature block, even though it has no legal effect and isn’t required. I see this as the equivalent of good manners, like saying “please” and “thank you” in polite conversation.

Second, there are certain ceremonial formalities that are worth observing for the sake of tradition and decorum, like saying “May it Please the Court” at the start of oral argument in an appellate court. We say things like this for the same reason that judges wear robes.

But many lawyers overdo the formalisms in legal documents, and for no good reason. If you leave out “TO THE HONORABLE JUDGE OF SAID COURT,” do you really think the judge is going to look at the document and say, “this lawyer doesn’t think I’m honorable, how dare he”?

And most authorities on contemporary legal writing agree that throat-clearing phrases like this are not only unnecessary, they are undesirable. I like what Wayne Schiess had to say about this here (and not just because he happened to be my first-year legal writing instructor at the University of Texas).

In short, if you care about good legal writing, eliminate the unnecessary ceremonial language, or keep it to a minimum.

Good legal writing and the “plain language” movement

But this gets to a more substantive question: what is it that makes good legal writing good? More pointedly, what makes bad legal writing bad?

Oh, let me count the ways. Schiess is helpful on this point as well. In this recent blog post he identifies some common flaws in weak legal writing. The main thing these flaws have in common is trying to sound more formal and “legal” than necessary.

This kind of legal writing has led to a reaction known as the “plain language” or “plain English” movement. Some judges, practitioners, and academics have advocated and practiced eliminating—or at least reducing—the “legalese” that plagues so much legal writing.

Overall, I’m on board with the plain language movement, which has several benefits and very little downside.

There are, of course, exceptions. When lawyers are writing to other lawyers, especially in their practice area, there are certain terms of art that would be awkward to translate into plain language. It would be silly to change “res judicata bars Plaintiff’s claims” to “the thing-already-decided doctrine bars Plaintiff’s claims.” Slavish devotion to “plain language” would make no more sense than blindly copying outmoded language from old forms.

And there is an even more important exception: when changing or deleting formal language would have a substantive legal effect. For example, a final judgment from a court typically ends with “All relief not expressly granted is denied.” That phrase has—or at least potentially has—a specific intended legal effect. It’s not merely an empty formalism, so you wouldn’t want to delete it just because it strikes you as unnecessary boilerplate.

The same is true of certain phrases that lawyers traditionally include in contracts. If you delete “Contractor has not relied on any representations not stated in this agreement,” thinking it’s unwarranted clutter, you just gave up something that could be significant in a later dispute.

This gets to the real test for plain language as applied to contracts: What difference does it make if a clause is written if legalese as long as it has the intended legal effect? Put another way, an “old-school” transactional lawyer might object that shifting to “plain language” is unnecessary, and even undesirable, because it places style over substance.

Point taken. But as a trial lawyer, I know that both substance and style matter. The style of a contract matters because that contract is going to be Exhibit 1 in a lawsuit, and you’re going to have to explain and defend the contract to a broader constituency: the witnesses, the judge, the jury, and even the opposing party.

Presenting the Plain-Language Non-Compete

I’ll use a non-compete agreement as an example, because it’s what I know best. I’ve seen a lot of non-competes, and most read like they were written with no regard for how they will be viewed in a subsequent lawsuit. Show me a lawyer who drafts a non-compete in impenetrable legalese, and I’ll show you a lawyer who never had to pin down an evasive witness about that non-compete in a deposition.

Somehow lawyers started to think that a non-compete is only enforceable if it’s contained in one long sentence in a block paragraph in small print that takes up at least half a page. And every key term—like “confidential information”—is a laundry list of “including-but-not-limited to’s,” rather than a single common-sense word.

But again, what does it matter, as long as the non-compete is legally effective?

It matters because in a lawsuit a lawyer will have to persuade a judge—and maybe even a jury—that the non-compete is reasonable and should be enforced. The plainer the meaning, the easier it will be to persuade.

A non-compete written in dense legalese, on the other hand, sends a not-entirely-subliminal message: this is one-sided boilerplate the employer’s lawyer wrote to screw the employee.

Ok, plain language is better in theory, you say. But is it possible? Can an effective non-compete be written in plain language?

There’s only one way to find out. As an experiment, I give you . . . the Plain-Language Non-Compete.

***MASSIVE LEGAL DISCLAIMER*** I offer the Plain-Language Non-Compete only for the purpose of discussion. I am not advising anyone to use it. And if you’re not a lawyer, don’t even think about using the Plain-Language Non-Compete without advice from a qualified lawyer.

Some of you will think the Plain-Language Non-Compete doesn’t sound “legal” enough. If so, please tell me which provisions you think are too “plain English” to be legally effective, and why.

Some of you may go the other way. You may think I haven’t gone “plain” enough. And I admit, even the Plain-Language Non-Compete has some technical clauses only a lawyer could love. So, if there is a section you think is unnecessary or would be worded more plainly, I’m all ears.

And if you want to understand the substance of what I have included and why, a good place to start is my very first blog post: What a Litigator Looks for in the Typical Texas Non-Compete.

WHEREFORE, PREMISES CONSIDERED, Five Minute Law respectfully submits to the Honorable Readers of Said Blog: the Plain-Language Non-Compete.

Govern yourselves accordingly.

*UPDATE: I updated my form on 11/26/17. Sadly, it is now longer, but I think it is better. I’ve also followed Bryan Garner’s formatting advice by using hanging indents for numbered lists.


head-shot-photo-of-zach-wolfeZach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.