A few months back, I was fortunate to be an invited panelist at Practising Law Institute in Manhattan with some of the best in the business on the issues of trade secret and noncompete litigation cases. I was asked to weigh in on a few different topics, but in the most general sense, on the topic of Strategies for Success for Temporary Restraining Orders ("TROs") and Preliminary Injunctions, Whether You are Seeking or Defending. Following are a few video clips of me, where I discussed the following:
Topic #1: Make Sure You Are Clear on What Your Theory of the Case Is Right Out of the Gate
Candidly, this is probably one of the most challenging things facing litigators, particularly when they are the ones seeking temporary injunctive relief at the very outset of the case, because at that point in time, they really don't have a full or clear picture as to the facts; all they have is their client's one-sided, and partial rendition of the relevant facts. Naturally, that poses a danger of facts coming out in opposition that can not only ruin your chances at securing a TRO, but your entire theory of an otherwise decent case that could have been avoided with better information.
Topic #2: What Kind of Proof You Need to Have When Seeking a TRO in a Noncompete or Trade Secret Misappropriation Case
As I note in the video clip below, I've been told privately in chambers by a trial judge that she vastly prefers seeing the actual documents that prove the claims over affidavits or sworn declarations, because, after all, attorneys draft and craft the sworn statements, but the documents and correspondence that were contemporaneously created, and without an eye towards litigation are far more valuable.
So, I summarized this "rule" as "Show me, Don't Tell me."
Topic #3: Practical Strategies for Resolving Fights Over Noncompetes
One practical strategy I often use when trying to negotiate an amicable resolution to an application for a TRO that pertains to the (allegedly) improper solicitation of a former employer's clients is including a "no-go" list of clients that cannot be touched for an agreed-upon amount of time, thereby (hopefully) avoiding a lenghty - and costly - future fight over whether the solicitation of that client was "active" (which would be prohibited under New York law), or "passive," (which may be permissible under New York law).