What Factors Establish Irreparable Injury In Order To Enforce A Non-Compete Agreement?

Section (1)(j) of Florida's Non-Compete statute provides that "the violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant." See Fla. Stat. § 542.335(1)(j). This presumption of irreparable injury is important in non-compete litigation as most parties seeking to enforce a non-compete agreement seek a temporary or permanent injunction. Under Florida law, a party seeking a temporary injunction must plead and prove: "(1) the likelihood of irreparable [injury], (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest." DePuy Orthopaedics, Inc., v. Waxman, 95 So.3d 928 (Fla. 1st DCA 2012), citing Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla 5th DCA 2009); see also, Masters Freight, Inc. v. Servco, Inc., 915 So.2d 666, 666 (Fla. 2d DCA 2005). Section 542.335(1)(j) creates a rebuttable presumption of irreparable injury, which makes the road to enforcing a non-compete agreement easier for litigants.

A party seeking to enforce a non-compete agreement through injunctive relief must establish irreparable injury. As one court noted, "[i]n the absence of irreparable injury, no preliminary injunction would lie, even if the other three elements ... were found." Nutrasweet Co. v. Vit-Mar Enter. Inc, 176 F.3d 151, 153 (3d Cir. 1999). What are some of the factors, then, that a court will consider in deciding whether a party has established the existence of an irreparable injury? This issue was considered by the United States District Court for the Western District of Michigan recently in Stryker Corp., et al. v. Bruty, et al., No. 1:13-cv-288 (W.D. Mich. May 10, 2013). In Stryker, an employer sought to enforce a non-compete agreement against a former senior manager. In considering the employer's motion for preliminary injunction, the court looked at whether the employer established, among other things, the existence of irreparable injury. Stryker at *7.

The Stryker court first noted that in the Sixth Circuit "an injury is not fully compensable by money damages if the nature of the plaintiff's loss would make damages difficult to calculate." Id. at *7, citing Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992)(holding that the loss of customer goodwill or fair competition often result in an irreparable injury because the...