job opportunities as it typically does in non-compete disputes. Although Mary- land Rule 15-504(b) appears to allow for such ex parte relief when certain minimal actions are taken by the moving party’s counsel, I have found it to be a good practice to fax (and/or hand-deliver) all documents to the opposing party in suf- ficient time prior to the requested hearing before the court in an attempt to open lines of communication between the parties’ counsel.1
Moreover, I strongly
suggest that, regardless of whether you are able to make contact with the op- posing party or their attorney, you also should come to court armed with at least one contact number. My experience has shown that this practice exhibits a sense of good faith to the presiding judge, and may eliminate completely the concerns of your particular judge about granting the requested relief in the short timeframe in
1
Obviously, every attorney should consult the Maryland Rules of Professional Conduct when determining who is the appropriate party to contact in these types of situa- tions.
which TROs are litigated and ultimately decided.
The Proof is in the Damages Lastly, it is imperative that attorneys
come to any hearing regarding injunc- tive relief with substantial and admissible proof of damages. Although most non- compete agreements state that such proof is not necessary to entitle the employer to injunctive relief, I again have seen several circumstances where this is the only fac- tor that the presiding judge is concerned about. Indeed, I have witnessed and been directly involved in cases where the actual damages suffered by the ex-employer are extremely hard to quantify or, alterna- tively, do not exist because the enforcing party has attempted to comply with the “better to move quickly” approach described above. In almost all of these cases, the presiding judge has completely ignored what I had always thought was the relatively low threshold requirement that all that must be shown is an “immedi- ate” and “substantial” threat of irreparable harm “before a full adversary hearing.” Maryland Rule 15-504(a). Indeed, my experience has shown that evidence of ac-
tual harm (or as close thereto as possible) may be required to sustain a request for a TRO in practice. Thus, a close analysis of the existence, depth, and exigent circum- stances surrounding the damage claims should be a strong factor in deciding whether to proceed in the TRO arena, or, alternatively, choosing to file a Complaint and pursue the action through the normal course of discovery.
Conclusion In summary, as we all know, litigators
are generally trained to aggressively pursue the rights of their employer clients in the non-compete arena. This aggressiveness, however, should be tempered by a good amount of practicality and pragmatism when pursuing an ex-employee under the terms of a non-compete agreement. Oth- erwise, it is my belief that attorneys are more likely to spend their client’s money and ultimately not achieve the outcome desired by the client, which is a situation no attorney ever wants to face.
38
Trial Reporter
Winter 2007
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