Today’s podcast discussion from Florida competition lawyer Jonathan Pollard: Defending against preliminary injunctions in non-compete, trade secret, trademark, and unfair competition cases. This one is primarily for lawyers who practice in this space. Specific topics addressed include:
1. Fake emergencies and emergency hearings. In a non-compete/trade secret/unfair competition case, the standard corporate plaintiff playbook involves seeking an “emergency” injunction. The vast majority of these so-called emergencies are nothing of the sort. They are routine, e.g., non-compete or trade secret cases that can be heard in the ordinary course. But if crying “emergency” will get the plaintiff’s case heard sooner, they will do it. Don’t get railroaded into an emergency preliminary injunction hearing before you have had an opportunity to prepare.
2. Time allocation for injunction hearings. This is just as important as point 1. If the court schedules a preliminary injunction hearing for two hours, that’s a problem. There is no way to conduct a meaningful evidentiary hearing in this type of case in only two hours. Think about it. If it’s a trade secret case, the plaintiff has to establish the existence of the claimed trade secret, reasonable measures to protect secrecy, irreparable harm, damages, etc. And the defendant needs to attack all of that. At the bare minimum, there will be two witnesses. Two witnesses or direct and cross examination? No way that gets done in two hours. Being more realistic, there will probably be at least 3 or 4 witnesses. That will take a full day or more.
3. Packing the record with favorable evidence to set the record for appeal. If it’s not accepted into evidence at the preliminary injunction hearing, it is not part of the record. Even if you cite to, e.g., deposition transcripts in your motions/responses, that does not matter if those transcripts never become actual evidence. If there’s deposition testimony that is favorable to your client’s case, make sure the court accepts those transcripts into evidence.
4. Injunction bonds and wrongful injunctions. Remember: If your client gets wrongfully enjoined in federal court, the only remedy they have is to bring a claim against the injunction bond. Under Rule 65, federal courts are supposed to require that any preliminary injunction be conditioned upon a bond. The purpose of that injunction bond is to compensate the defendant if it ultimately is established that he/she/it was wrongfully enjoined. The meaning of “wrongfully enjoined” is a topic for another conversation and varies depending on the circuit. Bottom line: You need to get a bond. You must address this in your response in opposition to the movant’s motion for preliminary injunction. Be prepared at the injunction hearing to put on evidence in support of the bond (e.g. evidence of the business losses that your client will suffer as a result of the preliminary injunction).
The full discussion is available at the link below:
Jonathan Pollard is a competition lawyer based in Fort Lauderdale, Florida. He has extensive experience litigating non-compete, trade secret, and unfair competition cases. His office can be reached at 954-332-2380.