When an employee and his or her new employer are sued for potentially violating a noncompete agreement, they both will face immediate challenges carrying heavy costs and risks. The employee may not have told the new employer about the noncompete, perhaps because of a mistaken belief that noncompetes are unenforceable. The employer, because of tightening labor markets, may have known about the noncompete but decided to take the risk and fill an open position. Preparation for a temporary injunction in two weeks, expedited discovery, and the collection of electronically stored information require attention. Even with these urgent concerns, the employee and the new employer should plan how to limit risk and achieve their respective goals through early, cost-effective resolution.

Part One of this series reviewed noncompete litigation and resolution from the former employer’s perspective. Part Two will consider the employee’s and new employer’s perspectives.

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