1E9Ct5D

ecoverable for the breach of a valid noncompete agreement. Because damages areoften uncertain (or difficult to prove) in this context, liquidated damages clauses areoften used and are typically enforceable, provided that the number is reasonably relatedto the harm to be suffered, reflects a tie to compensation or the value the formeremployee could or would obtain from competing, or be based on suspected oranticipated losses. 45Finally, attorneys’ fees may be appropriate in restrictive covenant cases, and can goeither way. By way of example, Colorado allows for an award of attorneys’ fees andcosts to the prevailing party even where the actual damages award is minimal. 46Florida allows its courts the discretion to award fees and costs to prevailing party evenwhere the parties did not specifically authorize such an award in the underlyingagreement. 47And in Texas, the courts are allowed to award fees and costs toemployees where the employee establishes the employer knew at the time of executionthat the noncompete was not reasonable, that the restrictions were greater thannecessary to protect legitimate business interests, and the employer attempted toenforce the agreement to a greater extent than necessary. 4845 See, e.g., Calhoun v. WHA Med. Clinic, P.L.L.C., 632 S.E.2d 563, 567-573 (N.C. Ct. App. 2006) ($1.5million liquidated damages provision was reasonable estimate of anticipated losses, and thus not voidagainst public policy as a restrain on the ability to perform one’s profession); Amex Distrib. Co, v.Mascari, 724 P.2d 596, 599 (Ariz. Ct. Appl. 1986) (liquidated damages clause of “75% of [employee’s]billing of [employer’s customers] during the first year, 60% the second year, and 50% the third year”);Restatement (Second) of Contracts § 356, comment (b) (1981) (liquidated damages provision isreasonable if it “approximates the loss anticipated at the time of the making of the contract, even thoughit may not approximate the actual loss.”); Checkers Eight Limited Partnership v. Hawkins, 241 F.3d 558,561-562 (7 th Cir. 2001) (liquidated damages clause unenforceable if it constitutes a penalty).46 See, Saturn Sys., Inc. v. Militare, 252 P.3d 516, 529-530 (Colo. App. 2011) (granting attorneys’ feeswhere damages award totaled $525).47 FLA. STAT. § 542.335(1)(k) (2012).48 TEX. BUS. & COM. CODE ANN. § 15.51(c) (West 2011).3082723.3