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Startup trying to poach my employee - is their non-compete enforceable?

Started by nothing_but_the_truth_12 · Sep 18, 2024 · 2 replies
For informational purposes only. Non-compete enforceability varies significantly by state.
NB
nothing_but_the_truth_12 OP

I run a B2B SaaS company in Texas (15 employees). Our head of sales just gave notice - she's leaving to join a direct competitor that just raised a Series A. She signed a 2-year non-compete when we hired her 18 months ago.

The non-compete says she can't work for any competing software company within the US for 2 years. She's literally going to our biggest competitor. They know she has a non-compete because she told them.

Can I actually enforce this? What are my options?

OF
officelife_3 Attorney

I'd recommend a three-step approach:

  1. Immediate: Send a cease and desist to her and the new employer, citing both the non-compete and NDA
  2. Within 7 days: If they don't back down, file for a temporary restraining order and preliminary injunction
  3. Ongoing: Conduct exit interview, collect all company property, revoke system access immediately

The NDA claim might actually be stronger than the non-compete. Focus on the confidential information she has access to.

NB
nothing_but_the_truth_12 OP

Update: Sent cease and desist on Aug 13. The competitor's lawyer responded today saying they believe the non-compete is unenforceable but they're willing to discuss a resolution. They suggested she work in a different role that doesn't involve our customer segment.

Meeting with our attorney tomorrow to discuss next steps. Thanks for all the advice - this helped me understand what we're dealing with.