Expertises connexes

Free competition between economic actors is a business reality. However, unfair competition is a burden that can strongly affect a business, or even entail its loss. In order to avoid this situation or to get out of it, a lawyer’s advice can be extremely helpful.

When hiring employees or executives, a proper contract of employment should include clauses concerning unfair competition. Nonetheless, the court could declare invalid a clause imposing excessive obligations or negatively affecting the re-employment of the person subject to such clause. Thereby, it is more desirable to have a moderate clause that will be enforced, than a too ambitious one that could be declared invalid and null as a result of court challenge. Furthermore, it is worth mentioning that employees and executives are bound by a duty of loyalty inherent in the employment relationship, even in the absence of an explicit clause to that effect in the contract of employment.

If you believe you are the victim of unfair competition from a former employee or executive, various possibilities are at your disposal. The negotiation of an agreement is sometimes more profitable but, in cases where it is not possible to reach a settlement, it is then necessary to resort to the court system. In that case, an injunction could force the former employee or executive to do or to stop doing something (for example to return a list of clients, to forbid any contact with the latter, etc.), regardless of the penalties found in the contract.

A special injunction may be requested in cases of trade secrets theft. It will allow to recover the confidential information and to retain evidence of their usurpation. It is therefore a hybrid injunction that allows you to seize property before judgment.
These Anton Piller injunctions are particularly relevant when property is likely to be hidden or destroyed (for example, software or computer data). On this subject, a lawyer from our firm has acted as an independent supervisor in the context of an Anton Piller injunction.

In addition to the injunction, it is possible for the beneficiary of a non-compete clause to claim damages. These are intended to rehabilitate the person whom has suffered damages as a result of non-compliance with the non-compete clauses. However, one has to be aware that lost earnings and all other damages must be proven, and that the evaluation of these can be laborious.