One of the most critical points in the enforcement of a noncompete is when a company first learns that a former employee may be engaging in unfair competition. Indeed, the steps taken by the company in the first few days can often determine whether it will be successful in limiting the amount of harm done.
In many case, the company will act quickly and seek emergency injunctive relief to stop imminent irreparable harm to its business. In other cases, the company may try to resolve the dispute with the competitor by engaging in settlement discussions at the outset. The benefit of the latter strategy, of course, is that a business resolution is often preferable to the expense and uncertainty of litigation.
But companies that chose the settlement route need to be aware that the passage of time can compromise their ability to get relief from a court should discussions break down, particularly if it needs an emergency injunction. In a recent Chancery Court hearing on an application for a temporary restraining order, the court was quick to point out plaintiff’s apparent four month delay after learning of the defendants activities before seeking the TRO. The plaintiff responded that the delay was due in part to its efforts to work out a standstill agreement with the defendants. As noted in the transcript excerpt below, the court was not sympathetic to this argument:
You can't have a problem in November and come running in here [in March], you know, two days after you file your papers, and say all of a sudden you need a TRO. We don't operate like that.
And the fact that you tried to … negotiate a standstill, that's great, but if you think that your rights are really being harmed to the extent that you say they are, you have to go on a parallel path to get some judicial relief. You haven't moved fast enough, and I'm not giving you a TRO.
Prompt action is the keystone for any company needing to enforce a noncompete agreement. Even if those efforts involve an attempt to settle the matter, the company is well advised not to delay seeking emergency judicial relief that may be necessary to prevent ongoing irreparable harm. By dual tracking enforcement efforts with settlement talks, companies can not only avoid prejudicing their legal rights, but can use the specter of an impending injunction hearing to foster an even quicker resolution of the dispute.