You have a business dispute. Either the seller of the business you bought is directly competing against you after the closing or an ex-employee has gone to work for the competition taking trade secrets with him. First, hopefully you have a signed a Non-Compete Agreement. Now you have to evaluate certain risks in asking for a preliminary injunction as part of your commercial litigation action.
Commercial Litigation, Unlike Any Other Litigation
One of the first things I am asked as part of bringing a commercial litigation suit in such situations is how fast I can get an emergency injunction. A preliminary injunction is a court order which, in this case, prohibits the competition against you that is breaching the Non-Compete Agreement before the business litigation is complete.
But you’ll also be suing for business damages. And that is where you have to be careful. The arguments for your damages claim and for your injunction typically will not be that different. As a result, if you lose your emergency motion for temporary injunction, you may be giving the other side a victory if the court finds the likelihood of you prevailing is not high enough to grant you the injunction.
So the down side is that since you are also suing for damages, you have to really think about whether a court order on an injunction will help your commercial litigation in the long run. If the acts the defendant is engaging in don’t really extend the harm significantly or threaten to put you out of business, then the risk of an adverse temporary injunction hearing may not be worth it.
Careful what you ask for. You might get it.
Even worse, this scenario may occur after you win a temporary injunction. If the defendant thinks the injunction order is unfair, the defendant can take it up on appeal and if successful, you have the same problem and the possibility of paying for their legal fees after your own fees spent on the appeal. Just as a Non-Compete Agreement can’t be overbroad (such as being for an unreasonable number of years or a geographic region that is too large), so too can a trial court’s order be overbroad.
Appellate courts have reversed entry of temporary injunctions in commercial litigation where they are vague and overbroad. A business was sued that provided orthopedic physicians and their practices with administrative support for worker’s compensation prescription claims receivables.
The temporary injunction was reversed since it had no time restriction and prohibited “soliciting any