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Ohio Non-compete Distance Measured as The “Crow Flies”

A recent case out of Ohio offers an instructive lesson for those looking to probe the geographical limits of a non-compete agreement.  A dentist sold his dental practice and also continued to work as an employee there.  As part of the sale, he agreed not to compete for five years and was prohibited from working “within 30 miles” of the practice.  The relationship between the parties deteriorated and the dentist went to work for a competing firm.  The purchaser dentist filed suit claiming a breach of the non-compete.

The trial court ruled against the seller, noting that although the new practice was more than 30 miles away from the old one when driving, it was less than 30 miles measured by a straight line.  An Ohio appellate court affirmed the trial court’s decision on how to track miles.  The appellate court held that despite the assertion that “within 30 miles” is subject to differing interpretations, Ohio courts have consistently measured the geographical limits as straight lines or “as the crow flies.”  (Ginn v. Stonecreek Dental Care, Ohio Ct. App., CA2015-01-001, 10/26/15).

The prevailing party was awarded $125,000 in damages, plus interest, by a jury.  Additionally, the breaching party had to pay nearly $100,000 in legal fees as a result of the loss.  As is the case in many jurisdictions, in Ohio, damages are typically calculated by measuring lost profits.  This figure can be assessed using historical business data, as it was here, and an expert is not necessary to prove damages for all cases.  In this case, the fact that the seller had worked as an employee for six months prior to breach gave fairly reliable data as to the damage caused as a result of moving to a competitor.

For someone looking to craft a non-compete agreement that uses mileage as a measurement of distance, one should be aware of the way different state courts interpret such language.  It is also worthwhile considering the practical effects of a mileage condition on a non-compete, such that when a practice is sold, a customer is unlikely to leave with the seller.

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About this Author

David J. Clark Attorney, Epstein Becker Green, Labor and Employment Law Attorney
Member of The Firm

David J. Clark is a Member of the Firm in the Litigation and Employment, Labor & Workforce Management practices in Epstein Becker Green’s New York office. His practice concentrates on litigating complex commercial and employment-related disputes before state and federal courts and arbitration tribunals. Mr. Clark represents clients in a wide range of industries, including financial services, advertising and media, accounting, banking, insurance, managed care, and retail brands.

212-351-3772
Matthew Savage Aibel, Epstein Becker Green, Trade Secrets Attorney, Breach of Non-Compete Agreements Lawyer
Associate

MATTHEW SAVAGE AIBEL is an Associate in the Litigation and Employment, Labor & Workforce Management practices, in the New York office of Epstein Becker Green.

Mr. Aibel:

  • Assists in the representation of clients in complex commercial litigation, business disputes, and breach-of-contract matters

  • Provides assistance with litigation matters involving the breach of non-competition and non-solicitation agreements, the misappropriation of trade secrets, and unfair competition

  • Assists in the representation of employers in federal and state court and in mediation and arbitration proceedings on labor and employment matters involving discrimination, harassment, retaliation, whistleblowing, and wage and hour disputes

  • Aids health care companies in litigation arising under ERISA and other related disputes

  • Advises employers about issues and policies related to social media and the online conduct of employees

Prior to joining Epstein Becker Green, Mr. Aibel served as a Legal Intern at the largest labor union representing officers of the New York City Police Department. In this role, he helped with state and federal litigation, collective bargaining issues, employee handbooks, and city administrative board hearings.

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