Just a few random thoughts on Non-Compete/Non-Solicit TROs after some recent experiences:

  1. Hopefully the other side is represented by counsel – Despite popular belief the ex parte TRO is in many instances much harder to get than one where the other side is represented by counsel. It’s just easier when the other side has a lawyer and frankly it shouldn’t matter if the case merits an injunction.
  2. The Verification – Be very careful with what your client verifies.  There is no way to undo swearing to something under oath and the other side is always looking for inconsistencies in your story.
  3. The Basics – prove up the agreement at issue and meet your injunction elements (imminent harm, probable right to relief, no adequate remedy at law.)
  4. Are your damages capable of being calculated ?- if so, get ready for an argument that there is an adequate remedy at law.
  5. The pleadings are important but it’s the order that matters – what is the other side prohibited from doing?
  6. Be conservative in the relief you are requesting.
  7. Consider expedited discovery – in Texas you’ve got 14 days (with one 14 day extension) before the temporary injunction hearing.
  8. Most non-compete/non-solicit cases are won or lost the the injunction stage – most cases don’t go on past this.
  9. It’s going to be expensive.
  10. You never get a second chance at a first impression – especially with the Court.