A plaintiff employer who files a lawsuit to enforce a noncompete often will seek a “preliminary injunction.” This is an order from the court at the outset of the case stating that the defendant employee cannot work for the competing employer while the litigation is pending. A typical reason a plaintiff asks for a preliminary injunction is that the employee’s presence at the competitor will cause “irreparable” harm to the plaintiff: the employee will disclose the plaintiff’s confidential information to the competitor. If the court grants the plaintiff’s request and enters the order, oftentimes the parties will settle the case quickly because the plaintiff got what it wanted: the employee is no longer working for the competitor.
In some cases, though, a plaintiff will file a lawsuit and simply seek damages for the breach of the noncompete from the employee and/or the competitor. This sometimes happens when the plaintiff takes a long time before deciding to sue, which undercuts an argument that the plaintiff needs an “emergency” injunction to prevent irreparable harm. In this situation, the case is more likely to proceed to a trial. In fact, last Friday a jury returned a verdict for the plaintiff in a Texas noncompete case, reported here. So there is more than one option when it comes to noncompetes. A preliminary injunction, even though it is the most common way to enforce a noncompete, is not the only way.