Here at the Law Office of Vincent Miletti, Esq. and the home of the #UnusuallyMotivated movement, we take pride as a resilient and dependable legal services firm, providing such services in both a traditional and online, web-based environment. With mastered specialization in areas such as Employment and Labor Law, Intellectual Property (IP) (trademark, copyright, patent), Entertainment Law, and e-Commerce (Supply Chain, Distribution, Fulfillment, Standard Legal & Regulatory), we provide a range of legal services including, but not limited to traditional legal representation (litigation, mediation, arbitration, opinion letters, and advisory), non-litigated business legal representation and legal counsel, and unique, online legal services such as smart forms, mobile training, legal marketing, and development.

Still, here at Miletti Law®, we feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, to achieve this goal, we have committed ourselves to create authoritative, trustworthy, & distinctive content. Usually, this content is featured as videos posted on our YouTube Channel https://www.youtube.com/channel/UCtvUryqkkMAJLwrLu2BBt6w and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seemed right to introduce one of the many upcoming series in which we introduce a variety of topics that looks to educate and deliver in a manner that only Miletti Law® can. In this regard, this blog is Part XXII of our ongoing series on “Trade Secret Misappropriation & Restrictive Covenant Claims.” In Part XXI, we shifted gears and looked into how to “How to Deal with a Denied Injunctive Relief Application.”Regarding this, we mentioned that when denied a temporary restraining order or preliminary injunction, an employer may (a) press for a preliminary injunction hearing or (b) the employer should technically push for an expedited date of trial, respectively. However, we added that 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 our discussion, we have shifted gears to focus on “Strategies for Countering Potential Counterclaims or Defenses” in this blog 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 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 and 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 only limited to certain employees or even stored sensitive and confidential 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 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.