I must confess that having dealt with the wedding photography industry last year, I was not particularly sympathetic to the litigants in the case I am about to discuss. That is not to say there aren't wonderful businesses in this niche space, but my experience was less than satisfactory.*
The Ohio case of LCD Videography v. Finomore presents an issue that courts often confront: how should a non-compete agreement be enforced when the degree of competition between the ex-employer and the departing employee is quite small? I see this often when employees leave to start up their own business, and in many cases avoid contacting former customers altogether.
In LCD Videography, the trial court denied the employer's motion for preliminary injunction largely on the basis that no real, imminent harm would result from the defendants' continued competitive conduct. In that case, the trial court appeared persuaded by the fact that the employer conducted large-scale national and international weddings, while the ex-employees relied on a close network of friends and family to shoot smaller more intimate weddings.
The trial court noted that the employees' non-compete agreements, which prohibited competition within 75 miles of their former place of business, were reasonable and protected legitimate interests of the employer (which, though not discussed at length, appeared to be specialized training). However, the court found that, despite a likelihood of success on the merits, the employees did not pose any real threat to their former company.
There are a number of cases like LCD Videography, where courts look at the disparity between plaintiff and defendant to deny injunctive relief. For those defendants in a position similar to the ex-employees in the LCD Videography case, it is important to de-emphasize the level of competition between the parties. Particularly when the ex-employees avoid directly competing for firm clients, an employer will have a difficult time in such a case getting a non-compete enforced.
* (Yes, that picture is from my wedding. I could not think of a way to paste a clever photo for this article without violating copyright law or misappropriating someone's likeness.)
Court: Court of Appeals of Ohio, Eleventh Appellate District
Opinion Date: 12/30/10
Cite: LCD Videography, LLC v. Finomore, 2010 Ohio App. LEXIS 5420 (Ohio Ct. App. Dec. 30, 2010)