Last week, we were fortunate to secure a TRO from a New York County trial judge against a former employee who was (allegedly) soliciting clients and prospects of my client. To be sure, the process itself was highly unusual - especially when compared to the standard procedure for seeking a temporary restraining order from a New York court.

The Good ... And the Not So Good

Instead of appearing in court, and walking in a copy of our papers and waiting to see if the Court would sign off on the papers pending a longer hearing on whether a longer injunction, in the form of a preliminary injunction should be issued, in deference to COVID-19, the Court dispensed with the in-person appearance, and asked both sides to appear via a pre-arranged Skype meeting to argue their respective positions.

To be sure, this process presented some enormous benefits to both parties, as compared to the standard in-person procedure: by allowing for the appearance to be conducted virtually and a specific time (as opposed to the attorneys being forced to wait their turn behind several other cases in court), both sides were able to conserve a significant amount of money and attorney travel time.

On the other hand, I would be remiss if I failed to mention some of the difficulties we encountered along the way, including that due to the backlog of cases that could not be filed for roughly two months (only emergent applications were permitted), we were unable to secure an index number for our newly filed action for approximately one full week, which, as a practical matter, meant that we were also prevented from even filing our order to show cause seeking the TRO for a week as well.

Winning Battles Shouldn't Be Taken for Granted

Against the background of the pandemic, I strongly advised my client not to be overly aggressive in what they sought in terms of injunctive relief, which, in practical terms, meant not seeking to prevent the defendant from earning a living in her field - even if by the strict terms of the agreement, my client was entitled to do so. 

Here's why:

In my view, given the extraordinary unemployment numbers worldwide right now, the courts are very unlikely to compel someone to forfeit a job that enables them to put food on their table. On the other hand, I believe a court may well be sympathetic to a request that simply asks the Court to prevent that former employee from wrongfully piggybacking on her former employer's work product to poach her employer's client and prospect roster, and thereby take food of their table.

And that's precisely what we did.

And we succeeded - at least for now.


Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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