Even the best non-disclosure and non-competition agreements are not worth anything if not enforced correctly. A lot of times a company rushes to court asking the judge to stop a former employee or his new employer from using the company’s confidential information or soliciting its customers based on the agreements that the former employee had signed with the company.
However, in an attempt to obtain quick relief at the courthouse, companies often end up using formulaic and boiler-plate language that is supposed to cover every possible violation such as:
- Plaintiff asks the Court to prohibit Defendant from soliciting or conducting business with Plaintiff’s customers or
- Plaintiff asks the Court to restrain Defendant from using the company’s confidential information or trade secrets
Such requests, while appearing very reasonable at first blush, are often rejected by the courts as not being specific enough to let defendants know what they can and cannot do. For example, how is the defendant supposed to know who the company’s customers are, especially, if there are thousands of them? Or, if the order does not define trade secrets, how can the defendant know what is it that he is prohibited from using or disclosing?
Defining the restrictions on competition in a precise manner while covering all possible violations is key to a successful injunction; however, the required degree of specificity may very from court to court. For example, recently, a court of appeals in Super Starr Int’l, LLC, et al v. Fresh Tex Produce, LLC, et al., dissolved an injunction issued by the trial court and remanded (sent) the case back to the trial court instructing it to reissue the temporary injunction order that defines “soliciting” not to include mass advertising, as well as redraft restrictions by defining “customers,” “accounts,” “trade secrets” and “confidential information.”
BOTTOM LINE: When seeking a temporary injunction in a case involving unfair competition, non-compete or non-disclosure agreement breaches, shooting for the moon so you can land on the stars is not a good approach. Rather, the party seeking an injunction should aim as closely as possible at the particular star on which it wants to land.
Leiza Dolghih is the founder of Dolghih Law Group PLLC. She is board certified in labor and employment law and has 16+ years of experience in commercial and employment litigation, including trade secrets and non-compete disputes. You can contact her directly at leiza@dlg-legal.com or (214) 531-2403.
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