When I wrote about how to enforce a noncompete agreement against a departed employee a couple of years ago, I made it sound pretty easy: write an enforceable noncompete agreement, then move for a preliminary injunction to prevent the employee from doing further damage to your business. It should be noted, however, that injunctive relief is considered an “extraordinary” remedy in Virginia and is by no means automatic, even if an employee is in clear violation of an enforceable noncompete agreement. A recent decision from Fairfax County showcases what can happen if the employer is unable to prove irreparable harm.
To obtain a preliminary injunction against a former employee, the employer needs to convince the court that all of the following are true: (1) the employer will suffer irreparable harm if a preliminary injunction is not granted; (2) the employee will not be harmed if the preliminary injunction is granted (or would suffer less than the employer would suffer if the injunction is denied; in other words, the “balance of equities” tips in the employer’s favor); (3) the employer will likely succeed on the merits (i.e., win the case) when it ultimately goes to trial; and (4) the public interest would be served (or at least not harmed) by granting the preliminary injunction. (See Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342 (4th Cir. 2009); Wings v. Capitol Leather, LLC, 88 Va. Cir. 83 (Fairfax 2014)).