MIAMI NON-COMPETE AGREEMENTS: EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER

Federal courts in Florida allow a part to obtain a temporary restraining order, commonly referred to as a “TRO,” by proving the following elements set forth by the United States Court of Appeals for the Eleventh Circuit in Schiavo ex. rel Schindler v. Schiavo, 403 F.3d 1223 (11^th Cir. 2005): “(1) [there is] a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that the entry of the relief would serve the public interest.” Peter Mavrick is a Miami non-compete attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm also represents businesses and their owners in business litigation (including claims of breach of contract and related claims of fraud and other business torts), trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state trial courts, appeals, and in arbitration.

When a motion for a TRO is sought without ntice to the adverse party (which courts refer to as “ex parte”), the Judge may issue the TRO only if the following requirements of Federal Rule of Civil Procedure 65(1)(b)(1) are proven: “(A) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant certifies in writing any efforts made to give notice and the reasons why it should not be required.” Federal courts have explained that because of extraordinary nature of such orders, ex parte temporary restraining orders “should be restricted to serving their underlying purposes of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing and no longer.” Gucci Am., Inc. v. BGAADB, Case No. 18-cv-62227-UU, 2018 WL 6261548 (S.D. Fla. September 20, 2018).

For example, in WhiteSource Software, Inc. v. Coscina, 2021 WL 1259215 (S.D. Fla. April 2, 2021), WhiteSource Software, Inc. (Whitesource) sought an ex parte TRO against its former employee who remained in possession of, and intended to access, his company-issued laptop after his employment was terminated. Additionally, during his employment, he exceeded his authorization when he made copies of WhiteSource’s confidential and trade secret information for non-employment related purposes. WhiteSource alleged that as a result of these actions, it incurred losses in excess of $5,000.

In the WhiteSource decision, the federal court cited Florida Statutes section 542.33(2)(a) for the proposition that there is a “presumption of irreparable harm in cases involving alleged violations of employment agreement provisions regarding confidentiality and trade secrets, as well as alleging interference with business customers.” Specifically, the court referred to the following statutory wording in section 542.33(2)(a): “use of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined.” WhiteSource showed its former employee is in possession of the company-issued laptop containing confidential and trade secret information and also “posted confidential information on the internet and social media.” The Judge added, “[i]f that is not enough, … [the former employee] even tagged certain posts “@WhiteSource” to further the dissemination of his posts … Allowing Coscina to continue to reveal WhiteSource’s confidential and trade secret information is the very definition of irreparable harm, because once such information is on the internet, it is nearly impossible to remove.”

Federal courts use a balancing test to weigh whether the threatened injury outweighs the harm the TRO would inflict on the non-moving party. WhiteSource explained that “w]hile the revelation of … [the company’s] confidential information and trade secrets would significantly harm … [the company], all the recommended TRO would do is require Coscina to temporarily abide by the provisions he already agreed to in his employment agreement … and to return any of [his former employer’s] … property.”

Finally, the court explained that entry of the TRO would further the public interest. The court relied on federal court precedent in Int’l Hair & Beauty Sys., LLC v. Simply Organic, Inc., 2011 WL 5359264 (M.D. Fla. Sept. 26, 2011), that the public interest is served “by preserving faith in the contractual agreements that businesses routinely make with their employees, by upholding the terms of enforceable contracts, and by rightfully protecting trade secrets from unlawful use and disclosure.”

Peter Mavrick is a Miami non-compete lawyer, and represents clients in Fort Lauderale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.