It is common in employee defection and trade secret cases for the plaintiff company to rush into court screaming that a robbery is underway that must be halted by the court.  The plaintiff cries that, absent the immediate intervention of the court, it will be stripped of any effective ability to compete and may be destroyed or pushed to the very brink of destruction.  Courts often respond to such cries.  When a business claims that the entirety or a significant portion of a critical business unit has been “stolen” along with critical business information and know how, courts will often take the claims seriously.  While it is a truism that “preliminary injunctions are rarely granted,” the truth in that statement more likely lies in grants of preliminary injunction as a percentage of all civil cases filed, rather than as a percentage of preliminary injunctions granted from the population of such applications that are filed.  My sense is that most well prepared preliminary injunctions in these cases are granted.  When properly supported by declarations from computer experts, business managers, and others who can demonstrate that: (1) that the defendant’s conduct is improper; and (2) that the plaintiff company business operations will be seriously disrupted, courts are often inclined to grant the motions, at least as to a temporary restraining order.

In cases where there has been an exportation of employer information or where a large number of employees have departed one employer to join another, a temporary restraining order or preliminary injunction may not be particularly difficult to obtain.  While such applications require great energy by the moving party to prepare a compelling application, the application for such injunctive relief is sometimes the defendant’s first notice that a lawsuit has been filed, and can come as something as a surprise attack.  Defendants are almost always at an immediate disadvantage.  Within a very short time, responding counsel must promptly identify potential conflicts, organize a defense, effectively investigate the facts, and organize and articulate a response to the plaintiff’s application.

 These applications are often accompanied by a request to the court for expedited discovery.  When granted, these applications, plus the short response deadlines to respond to a preliminary injunction application, can keep the defendants on the defense and may slow, and on occasion even prevent, a defendant from timely articulating counter claims or developing a sufficient factual understanding to aggressively defend the complaint.  If it is true that “speed is the essence of attack” then it is certainly true that speed often assists an applicant for a preliminary injunction in these cases.  Nor is speed wholly tactical.  Delay can often work against a preliminary injunction application.  If weeks or months pass from the alleged misconduct, a court is less inclined to find that there is immediate irreparable injury that must be enjoined.