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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 XIV of our ongoing series on “Trade Secret Misappropriation & Restrictive Covenant Claims.” In Part XIII, we hammered on “Tips for Seeking Injunctive Relief (Preliminary Injunctions)” and mentioned that if an employer would wish, 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. At this point, we now switch gears to hammer on how and factors to consider when seeking a temporary restraining order (TRO).
Tips for Seeking Injunctive Relief (Temporary Restraining Orders (TROs))
As mentioned in the previous blog and Part III of this series, a TRO is another important form of requested injunctive relief. This is the matter of discussion in this blog.
Temporary Restraining Orders (TROs)
Generally, the primary goal of applying a TRO is to seek a short-term temporary relief until a court gets a chance when a fuller opposition and an evidentiary record of the opposing party have been considered. Ideally, an employer should, as soon as it becomes practicable, seek a TRO if they have a good-faith reason to believe or hard evidence regarding an employee’s engagement in conduct that could lead to loss of key clients, imminent risk of confidential information/trade secret(s) misappropriation, or jeopardize the interests of the business.
Usually filed along a complaint, a TRO generally requires a proposed order to demonstrate cause outlining a supporting memorandum of law, a sworn emergency affidavit from an individual with evidence or knowledge of the facts, and the injunctive relief sought. Through the sworn emergency affidavit, the employers should provide an explanation in court why and how they face an imminent risk of harm so that the court would issue an order advising the person involved with the misconduct not to engage in certain conduct until such a time when a fuller preliminary injunction has been held. For instance, an employer may have hard evidence or a good-faith reason to believe that the former employee took with them or downloaded sensitive business files prior to their resignation.
However, it is crucial for employers to understand that when it comes to employment disputes, TRO applications are technically not made ex parte. Legally, “ex parte” implies improper contact with a judge or another individual, which implies that the opposition must generally be provided with reasonable notice regarding the employer’s (as the movant) intention of making a TRO application.
In the next blog and Part XV of this series, we shall move the discussion forward by hammering on what an employer should consider before seeking a TRO or preliminary injunction in our blog titled “Legal Considerations for Seeking an Injunctive Relief.”
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,
Legal Writer & Author.