When an individual or business initiates a lawsuit, that person is likely seeking one of two types of relief: monetary relief or injunctive relief. Monetary relief means that the litigant seeks financial compensation to offset damages or injuries. Injunctive relief means that the litigant requests that the court take a specific action against the defendant. Therefore, an injunction is a court order that either restrains a party from doing something or compels a party to take a particular course of action.
A preliminary injunction is issued by a court when there is reason to believe that an immediate injunction is necessary to prevent harm to the plaintiff. This preliminary injunction is temporary, of course, but may become permanent depending on the outcome of the hearing on the underlying matter. If the underlying matter is defeated by the defendant, then the preliminary injunction will be removed altogether.
Non-Compete Preliminary Injunctions
In some cases, courts will issue a “non-compete preliminary injunction” in order to protect the interests of an employer against a former employee. Employees often sign non-compete agreements to ensure that trade secrets and proprietary information is kept safe, and to prevent employees from defecting to competitors in the marketplace. If an employer has reason to believe that a former employee or business is violating the terms of a non-compete, then the employer can attempt to enjoin the former employee or business to prevent harm. If, for instance, an employer believes that an former employee is using proprietary information to solicit customers, then that employer may be able to temporarily stop this behavior (via preliminary injunction) while pursuing a permanent case against the former employee.
A non-compete preliminary injunction will have the core characteristics described above: the employer will need to provide some basis on which to request the injunction, which means some reason to suspect that harm will follow unless the preliminary injunction is granted. If the preliminary injunction is granted, then notice will be delivered to the former employee or business, and a hearing on the matter will be scheduled.
Defenses to Non-Compete Preliminary Injunctions
How can a business defend against a preliminary injunction? How can an employer defend against a preliminary injunction filed by an ex-employee? In order for a preliminary injunction to be granted, two things actually need to be demonstrated by the person seeking relief: (1) they are very likely to win on the merits of the case that the non-compete has been violated, and (2) the preliminary injunction is absolutely necessary to prevent immediate injury.
Defending against an injunction requires challenging either or both of these two pillars. It needs to be shown, with good evidence, that the underlying non-compete is actually unenforceable, or is not being violated if it is enforceable; or, you need to demonstrate that the plaintiff isn’t likely to suffer immediate harm, and that the preliminary injunction is therefore not necessary. As with any type of defense, the more compelling your evidence, the more likely your case will be successful. This means that using evidence which involves objective numbers, previous case law, and other tangible things will tend to produce a better outcome.