Injunction: Often Sought, Not Often Granted
Injunction is a great word.
It is quite popular these days, for attorneys to draft language into an employment agreement that says something like the following:
EMPLOYEE agrees that should he or she leave the employ of COMPANY and violate any of the covenants outlined above (namely Non-competition / non-solicitation
provisions) that COMPANY will suffer irreparable harm, and that COMPANY should be entitled to seek and receive an injunction from a court of law.
Now, that language is essentially saying that you Employee, agree that your actions are bad, you are in breach and you agree to allow a judge to stop you.
Who would ever agree to such a thing? And is it binding?
I have seen many a commercial litigation attorney use this type of clause in a deposition. For Example:
Q: Employee, you read this Agreement before you signed it, didn’t
A: Yes, sort of.
Q: And you are smart person, right? You wouldn’t sign something
you didn’t understand, or agree with, would you?
A: Well, no.
Q: So, you agreed that if you were to go work for this
COMPETITOR, that COMPANY could sue you and get an injunction, right?
A: Well, ummm. I didn’t know it meant that.
I have not however, seen these provisions successfully used by a Judge as a reason to actually grant an injunction. The good news, is that a judge still has to do his or her job regardless of what you agreed to in a Contract. And in Virginia, that means he or she has to evaluate whether an injunction would be proper. And that is a detailed and truthfully, intense evaluation as to (a) whether or not the actions are likely to cause irreparable harm, that cannot be undone and (b) whether it is likely the COMPANY will succeed on the merits of their case later on.
So when someone threatens and injunction – take it seriously. When they file a motion for one, pay attention. But wait and see if they actually schedule a Hearing on the injunction. After all, if they really want your Money – an injunction won’t help. If they really want you to stop working, and can prove you are in breach of your contractual obligations and causing them harm, than a Virginia judge just may grant an injunction.