It is a defense that has become perfunctory in restrictive covenant litigation ' “my former employer is barred from enforcing the restrictive covenant because it committed a prior breach of the agreement!”
'Independent Covenant' Language
Most often, a former employee will claim that the former employer breached the employment agreement . When such a defense is raised, an injunction hearing that should focus on the former employee's wrongful post-employment conduct instead often digresses into an argument about what compensation agreement existed and whether the former employer breached that agreement .
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