Obtaining Injunctive Relief Based On A Texas Non-compete Agreement (Part I)

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

To obtain a temporary injunction in

    state

court, an applicant must plead and prove: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834, 837 (Tex. App.–Houston [14th Dist.] 2005, no pet.). To show a probable right of recovery, an applicant need not establish that it will finally prevail in the litigation, but it must, at the very least, present some evidence that, under the applicable rules of law, tends to support its cause of action. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961).

Texas Rule of Civil Procedure 682 provides that “[n]o writ of injunction shall be granted unless the applicant therefor shall present his petition to the judge verified by his affidavit and containing a plain and intelligible statement of the grounds for such relief.” However, a verified petition for injunctive relief is not required to obtain an injunction when a full evidentiary hearing on evidence has been held. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 298 (Tex. App.–Houston [14th Dist.] 2002, no pet.).

To obtain a preliminary injunction in

    federal

court, an applicant must prove four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that plaintiffs will suffer irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest. Johnson Serv. Group, Inc. v. France, 763 F. Supp. 2d 819, 825 (N.D. Tex. 2011); Nichols v. Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008). Compare Inter/National Rental Ins. Services, Inc. v. Albrecht, NO. 4:11-CV-00853, 2012 WL 4506140, at *5 (E.D. Tex. Mar. 14, 2012) (granting injunction based on non-compete agreement where plaintiff was given access to proprietary information) and Courtroom Sciences, Inc. v. Andrews, NO. CIV. A. 3:09-CV-251-O, 2009 WL 1313274 (N.D. Tex. May 11, 2009) (granting injunction based on non-compete agreement where substantial evidence showed bad acts by ex-employee, including misappropriation of employer’s critical information) with M-I, L.L.C. v. Stelly, 2009 WL 2355498, at *6 (assuming non-competition agreements were enforceable and still refusing to enter injunction where there was no such evidence).

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