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In today’s legal world, a very small number of lawsuits are litigated through trial, with less than 2% ever materializing into trial. Although for many clients that is good news (since trial can become very expensive very quickly), other clients want their day in court.  However, trial isn’t the only way to get your case heard before a judge! Introducing …. The Motion for Preliminary Injunction!

A preliminary injunction, often referred to as a temporary injunction, is a court order prohibiting an action by a party to a lawsuit until trial or until the case is dismissed for another reason. Essentially, it is a mini trial before the trial, and the court hears these motions on an expedited basis.

In the employment context, motions for temporary injunction typically arise when a non-compete agreement is at issue.  A non-compete agreement is a contract between an employee and employer where the employee agrees not to work for a competing business in a specific geographic area for a set period of time after termination of employment.

I recently was part of the legal team which defended a motion for temporary injunction filed by the Plaintiff, a former employer.  The former employer claimed our client had violated a non-compete agreement with former employer by hiring its former employee.  The former employer asked the court to enjoin the employee from working for our client until the merits of the case could be litigated. Here are some tips I learned along the way that employers should consider when  preparing to file or defend a motion for temporary injunction:

  1. In case of an emergency. The purpose of a temporary injunction is to preserve the status quo while the main case is litigated. Thus, a court likely will deny a motion to enjoin a party unless the parties can show “irreparable harm” or “imminent future harm.” Don’t wait several months to bring a motion for temporary injunction; if it is enough of an emergency to even bring the motion, bring it as soon as possible.
  2. This is a sprint, not a marathon.  These motions are typically heard within 1-3 weeks of being filed. This means that everything is on an expedited basis, including discovery requests, depositions, and ultimately the mini trial (evidentiary hearing).
  3. No Bond, No Injunction.  In Florida, those pursuing a motion for temporary injunction must be prepared to submit a bond in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.  Make sure to request discovery (prior to the evidentiary hearing) and prepare arguments on what the bond amount should be in the event a temporary injunction is granted.
  4. This won’t last forever. Florida law allows a party against whom a temporary injunction has been granted to move to dissolve or modify the injunction at any time. If a party makes that motion, the court must hear the motion within 5 days after the movant requests a hearing on the motion. Thus, a temporary injunction is just that. Temporary. Not only will it expire when the merits of the case are heard, but a party can move to dissolve it any time.

I hope these tips will be useful to those employers who find themselves pursuing or defending a motion for temporary injunction.  However, the last and best tip I’ll leave you with is to make every reasonable effort to avoid litigation.  Litigation is not cheap or fun. It is a distraction from work and depending on the ruling could be detrimental to your business operations.  In a dispute, it is better to first try to resolve the issue between the two employers fighting over an employee before seeking a temporary injunction.  Of course, many disputes could be prevented by making sure your non-compete agreements are reasonable and well drafted.