Preliminary Injunction

In non-competition/trade secret litigation, the preliminary injunction phase is usually the most important part of the process. A preliminary injunction, also called a temporary injunction in some states, is granted only after a full evidentiary hearing before a judge. Preliminary injunction hearings are held at the convenience of the court, usually within 30-60 days after a case is filed. Both sides are present with counsel, and both sides have the opportunity to present evidence. Preliminary injunctions remain in place until a full trial on the merits, or until further order of the court. A full trial on the merits generally happens 1-2 years after a case is filed. Like TROs, a bond must be usually posted prior to issuance of a preliminary injunction.

At this phase of the proceeding, your attorneys will request that the judge temporarily prohibit your former employee from engaging in certain competitive acts prohibited by the agreement, statute, or common law. While it is only a temporary order in place until the trial, generally the same judge will preside at the trial, and it is rare for a judge to reverse his/her own decision as to the propriety of an injunction. In other words, if the judge issues a preliminary injunction after the hearing, he/she is likely to enter a permanent injunction at the full trial. In some jurisdictions, the court will combine the preliminary and permanent injunction requests into one hearing. In other words, the parties would only be afforded one opportunity to argue issues concerning injunctive relief.

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