Are Non-Competition And Non-Solicitation Provisions In An Employment Agreement Enforceable Despite The Absence Of Compensable Damages?

In a recent ruling, a West Virginia federal judge held that litigation involving a former employee’s claimed violation of covenants not to compete and not to solicit the ex-employer’s workers must proceed to trial even though the ex-employer produced no evidence of monetary loss. Relying on 76-year old and 118-year old West Virginia cases neither of which concern similar covenants, the court reasoned that if the ex-employer proves a breach of contract, the company will be entitled at least to nominal damages and might be awarded attorneys’ fees and costs. The possibility that the plaintiff might recover damages was held to be a sufficient basis for denying the defendant’s motion for summary judgment. Panhandle Cleaning & Restoration, Inc. v. Vannest, Civil Ac. No. 5:11CV178 (Stamp) (N.D. W. Va., Oct. 5, 2012).

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