Ever wondered how you should deal with a denied Injunctive Relief application? When denied a temporary restraining order or preliminary injunction, an employer may (a) press for a preliminary injunction hearing or (b) technically push for an expedited date of trial, respectively. Accordingly, it would be critical for the employer to consider whether its chances of securing a preliminary injunction would increase following expedited prehearing discovery, as well as weigh the risks involved and costs that would be incurred in trial against the advantages of a potential positive outcome after a trial.
As a continuation of this discussion, we have shifted gears to focus on “Strategies for Countering Potential Counterclaims or Defenses” in this blog post and Part XXII of the series.
Strategies for Countering Potential Counterclaims or Defenses
The employer should expect one or more counterclaims and defenses interposed by the employee who has been named in its complaint or preliminary injunction/temporary restraining order application. Among others, the most expectable counterclaims and defenses include (1) competitors could easily access the employer’s allegedly confidential information, (2) the company breached its contractual obligations to the employee, and (3) the covenants at issue are unenforceable and overbroad.
In addition to taking proactive steps with the aim of negating them before the rise of a potential dispute, employers must be wary of such potential counterclaims and defenses from employees. As a best practice and as a way of including provisions that promote the likelihood of enforceability, employers should be aware of the laws and regulations applicable within the jurisdictions in which they operate or wish to make preliminary injunction or temporary restraining order applications and, accordingly, proactively draft enforceable restrictive covenants and agreements.
As an important strategy, an employer should employ proper safeguards, take reasonable steps, and demonstrate the same in court, to protect its information, which would be critical to negate and counter an employee’s claim that certain information is not worthy of protection since it is not confidential. In its demonstration, an employer may, for example, explain to the court that the access to such information was limited only to certain employees or even stored securely and confidentially behind a password-protected system.
Lastly, the employer should be ready to demonstrate in court that the alleged breach at issue is not a material breach through which material obligations of the employee in the agreement were negated, or how it fulfilled its obligations under the agreement, should the employee make a counterclaim that the employer breached a restrictive covenant agreement.
In our last blog post and Part XXIII of this series titled “When to Seek Non-injunctive Relief and Other Available Remedies,” we will shift gears and provide you with crucial information regarding when to consider seeking non-injunctive relief and a list of other remedies available to an employer.
In the meantime, stay tuned for more legal guidance, training, and education. In the interim, if there are any questions or comments, please let us know at the Contact Us page!
Always rising above the bar,
Isaac T.,
Legal Writer & Author.