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Fighting your non-compete clause

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  • Fighting your non-compete clause

    I was wondering if anyone here was able to fight their non-compete clause in the contract? Any tips for success?
    I have a non-compete, but I'm stuck in the city for family reasons. I work for a large academic center and there's no way they will amicably let me go.

  • #2
    You don’t have to fight your non-compete if you don’t sign one in the first place.

    Are you in a state like California where non-compete clauses typically are illegal? Did your employer materially breach the contract in such a way that a judge and jury clearly would find it unconscionable to hold you to the non-compete? How much are you willing to spend on litigation to find out?

    You signed something you shouldn’t have. If push comes to shove, your unwillingness to move elsewhere severely limits your bargaining power. You might have to move or do locums for a couple years to get around your non-compete. Otherwise you’ll have to fight it or perhaps try to buy it out.

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    • #3
      You need a lawyer in your area that is specialized and/or handles non-competes. He/she can look at your contract and give you an opinion on the odds of whether you can beat the non-compete. They may know if your current institution has pursued other docs over non-competes and whether they won/lost.

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      • #4
        A lot may depend on your specialty, role, and to what degree the university department has established your reputation in the community. If you are the star skull base surgeon that the university has spent a lot of time with developing your practice and reputation, do not expect them to casually observe you walk away with your referral base to establish a practice across town while they struggle to recruit your replacement. If you are an ER doc or anesthesiologist, they may not even notice, let alone care. It also depends, of course, on how the language is written and the specific laws in your state. Seek legal advice, as noted above.

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        • #5
          Nothing more to add than what Hank and Vagabond stated. Without any details it is unclear who is taking advantage of whom and who has to lose more.

          But one thing is certain - the academic center has more legal power and money to fight even a losing case than you will have. Either move for a couple of years or do locums if you are not 100% certain you will win.

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          • #6
            Depends on the circumstances that you are leaving. N of 1...My friend is an anesthesiologist and he wanted to move to a new asc to run their anesthesia dept across town. His group told him that they would fight against him 100%.

            Soooo... He talked with a lawyer and took a job in the city over outside his non-compete. After 1 yr of his 2 yr non compete, he back to the new asc. His old group didn't bother fighting at that point.

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            • #7
              “But one thing is certain - the academic center has more legal power and money to fight even a losing case than you will have.”

              Do not expect the academic center to “play fair”.
              https://www.chron.com/business/amp/H...n-11037414.php
              They have a business interest beyond your individual contract. Whatever path you choose, burn as few bridges as possible.

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              • #8
                I live in a state where it is enforceable, and had a lawyer review the non-compete clause for me. He found it to meet the requirements of the law, and said that while I could technically fight it on the grounds that it is too broad, it would involve a lot of time and expense. I decided to not fight it and changed to a different job. The employers have the power here. I was a hospital-based pathologist who wouldn't, in any sense, be taking any business or patients with me when I left. The in-house lawyer for the equity-owned group was quite threatening. They offered to let me buy out my non-compete for a few millions dollars . . .

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                • #9
                  I know people who were asked to sign noncompetes in states in which they were banned. The folks I know pointed out that they were unenforceable but the groups wanted them to sign anyway. The docs went elsewhere but I have always wondered about the game plan for those groups. Trying to intimidate someone into ignoring their rights when they wanted to move on? Looking only for people who were stuck in the area and would sign anything? Not a good look for a group or an academic practice.

                  If you can, get away. If you cannot escape, then at least your place has less competition than it would otherwise.

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                  • #10
                    There are often times a lot of posturing on both sides with these types of things. Would you going to another hospital actually cause financial harm/loss of patients to your current employer? Was the relationship rocky to the point they'd fight just because?

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                    • #11

                      If you switch to the VA in your city, I don’t think the non-compete will be enforceable

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                      • #12
                        My friend tried to move to a new anesthesia job 30 miles from the old job. The new job violated the non-compete that was written in the contract. The attorney that was consulted said the non-compete could be overturned in court because it was unreasonably broad. But the deep pockets employer said they would go to the mat to fight the departure of this doc. The cost to overturn the non-compete was too steep in terms of time and money. The doc ended up selling his house at great expense, and he and his physician spouse uprooted their family, leaving friends and relatives behind. Not a good outcome, but that is what can happen when you sign an onerous non-compete.

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                        • #13
                          As others said: Details matter in this case -- get a good qualified lawyer to take a close look at your situation and make an informed decision.

                          Since family involved would be best that you play the long game for the win.

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                          • #14
                            I spoke with a lawyer about my non-compete clause when I was looking at getting out of my group. The problem isn't whether or not it's enforceable or not, the problem is that you have one and your new employer probably will not want to hire you for that reason. You are going to have to disclose the non-compete clause when you sign your new contract and unless your new employer is desperate, they probably are not going to want to risk getting you credentialled, pay for malpractice, etc only to find out you can't do any work for them, even if it's only temporary while your case goes through court. You can be in a state where non-compete clauses are routinely nullified, but that process takes time and will be associated with substantial risk for the new employer. I could see maybe another small private practice desperate for a provider be willing to take that risk, but I think most large employers with their legal teams be unwilling to deal with it.

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                            • #15
                              Originally posted by White.Beard.Doc View Post
                              My friend tried to move to a new anesthesia job 30 miles from the old job. The new job violated the non-compete that was written in the contract. The attorney that was consulted said the non-compete could be overturned in court because it was unreasonably broad. But the deep pockets employer said they would go to the mat to fight the departure of this doc. The cost to overturn the non-compete was too steep in terms of time and money. The doc ended up selling his house at great expense, and he and his physician spouse uprooted their family, leaving friends and relatives behind. Not a good outcome, but that is what can happen when you sign an onerous non-compete.
                              That seems ridiculous since your friend likely won’t have patients that follow him unless he does some office work like pain or something. I’m in a specialty where patients hardly ever seek out a particular physician but I consider anesthesiologists mostly in that same category, too.

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