When asserting a cause of action, one dilemma that employers face entails striking a balance between providing the court with sufficient and credible details and not allowing the prying eyes of the public into sensitive information such as trade secrets. Accordingly, employers should ensure that (1) the complaint is drafted with discretion, (2) documents are protected, (3) filing is made under seal if applicable, and (4) the forum has been chosen wisely.
Having exhausted the discussion on those four steps, we now switch gears to hammer on how and factors to consider when seeking injunctive relief (Temporary Restraining Orders (TROs) and Preliminary Injunctions).
Tips for Seeking Injunctive Relief/Injunctions (Preliminary Injunctions)
The decision to start legal action against a former employee, current employee, and/or new employer to the former employee should be taken with the seriousness it deserves. This implies that employers should not hesitate to take steps that include requesting injunctive relief to prevent potential imminent harm or stop it altogether if they have a good-faith reason to believe or actual evidence that a former employee or current employee has engaged in the violation of common-law obligations or restrictive covenants, which could threaten any legitimate business interests, employee and client relationships, and/or confidential information such as trade secrets. For starters, we will focus on preliminary injunctions, one of the most important forms of injunctive relief that an employer should request.
Preliminary Injunctions
Generally, if an employer wishes, based on a limited evidentiary record pending a full trial, to preserve a status quo at the end of the case, they should seek a preliminary injunction. This implies that the role of a preliminary injunction is to forbid one from taking, until a full trial on the merits, a given action as long as the case is still going on. Importantly, employers should consider securing preliminary injunctions as they are significantly crucial in protecting their interests and those of their business, particularly because litigation may last months and even years. Usually, preliminary injunctions are granted via a written application to the court. As we will see when we discuss TROs (Temporary Restraining Orders), the same initial application is followed when a party wishes to seek a preliminary injunction.
For instance, in addition to an application supported by a proposed order to present to the court, one or more sworn affidavits from witnesses with knowledge of actual evidence, and motion papers (e.g., memorandum of law), an employer may include an application for a preliminary injunction when filing a complaint. Usually, when presented with such an application for a preliminary injunction, a court would issue an order denying or granting the injunctive relief and provide a date when parties should attend the preliminary injunction application hearing in court. When setting a date for the preliminary injunction hearing, it is possible for a court to provide the defendant (current or former employee) with a schedule for proffering their own evidence and filing a memorandum of law in defense and opposition to the preliminary injunction application.
However, in order to obtain the preliminary injunction successfully, an employer must convince the court that irreparable harm would be incurred if the preliminary injunction application were to be denied and that, based on its underlying claims, it will likely succeed on the merits. However, many factors are involved in seeking and succeeding in obtaining injunctive relief, such as a preliminary injunction. These factors will be hammered on in an upcoming blog. Stay tuned!
In Part XIV of this series, we shall stay on the same lane and focus on TROs as the other most important forms that an employer should request as injunctive relief in our blog post titled “Tips for Seeking Injunctive Relief (Temporary Restraining Orders).”
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, & Publisher.