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Jeffrey S. Klein, left, and Nicholas J. Pappas, right, of Weil, Gotshal & Manges. Jeffrey S. Klein and Nicholas J. Pappas

 Employers frequently face challenges in quantifying (and proving) the damages associated with enforcing violations of restrictive covenants by former employees. One strategy some employers have tried is the use of liquidated damages clauses. The advantage of using a liquidated damages clause is that employers have certitude in the damages amount they would be paid in the event of breach by the employee. Employers thus avoid the challenges of proving damages where damages may be in dispute or are inherently difficult to ascertain or quantify. Employers should, however, be aware of the consequences associated with using liquidated damages clauses.

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