First Court of Appeals Vacates Temporary Injunction in Non-Compete/Trade Secrets Case Due to Lack of Specificity
Rule 683 of the Texas Rules of Civil Procedure provides that an injunction order "shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained." Notwithstanding that language, it is not unusual for parties to push the envelope when it comes to the scope of injunction orders. This can result in an injunction being deemed void.
This is precisely what happened in Lasser v. Amistco Separation Products, Inc., No. 01-13-00690-CV (Tex. App. -- Houston [1st Dist.] Feb. 6. 2014) (memorandum opinion). Lasser was a former employee of Amistco who had left to join a competing company. The employer claimed that he stole confidential information and trade secrets as he was leaving, and that he was violating his non-compete.
The trial court issued a temporary injunction in favor of the employer. The decretal portion of the order stated:
It is . . . ORDERED Defendant Robert Lasser desist and refrain from the following:
a) [Lasser] is ordered to return to AMACS, and to cease and desist from using, any of AMACS’s confidential information and trade secrets within 14 days or as otherwise agreed by counsel.
b) [Lasser] is restrained from directly or indirectly disclosing, copying or otherwise reproducing, or giving others access to any of AMACS confidential information and trade secrets.
c) [Lasser] is restrained from deleting any emails, texts, voice messages, instant messaging communications (to include without limitation, instant messages using Google Talk, AOL Instant Messenger, Yahoo Messenger, or any other instant messaging platform), or any other electronic files or communications from his personal or work computers, laptops, phones, electronic storage devices and/or any other electronic device, or from, damaging, selling or otherwise discarding his personal or work computers, laptops, phones, electronic storage devices and/or any other electronic device in [Lasser]’s possession.
d) [Lasser] is restrained from directly or indirectly soliciting any of AMACS’s customers.
Lasser appealed, raising a number of issues going to the merits. The First Court of Appeals skipped those issues, however, because the injunction did not comply with Rule 683.
For example, the court struck down items (a) and (b) in the decree because the decree did not sufficiently define the "confidential information and trade secrets" at issue:
Parts (a) and (b) of the July 25, 2013 order required Lasser “to return to AMACS, and to cease and desist from using, any of AMACS’s confidential information and trade secrets” and prohibited him “from directly or indirectly disclosing, copying or otherwise reproducing, or giving others access to any of AMACS confidential information and trade secrets. In his brief, Lasser asserts, “It is impossible for Lasser to determine from the injunction what documents or information constitutes AMACS’s confidential information and instead has been forced to guess what items if any the Court is seeking to be returned and not disclosed.”
As Lasser implies, the order neither defines nor in any manner indicates from its context the meaning of the phrase “confidential information.” Rule 683 requires that the injunction be as “definite, clear and precise as possible . . . without calling on [the enjoined party] for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” By failing to identify, define, explain, or otherwise describe what constitutes AMACS’s confidential information and trade secrets, the order compels Lasser to make “inferences or conclusions about which persons might well differ” regarding what particular information or item in his possession constituted “confidential information” subject to the injunction. As a result, these provisions are not sufficiently clear to provide Lasser with adequate notice of what acts he is compelled to complete and what conduct he is restrained from performing. In other words, he is left to speculate what conduct might satisfy or violate the order. This is impermissible.
We conclude that Parts (a) and (b), enjoining Lasser’s conduct with respect to any “confidential information,” are not sufficiently detailed or specific to meet Rule 683’s requirement that the injunction “shall be specific in terms” and “shall describe in reasonable detail . . . the act or acts sought to be restrained.” Thus, these provisions are void. (Citations omitted).
The employer argued that the nature of the confidential information at issue could be discerned from the evidence at the temporary injunction hearing, in particular an exhibit from the employer's expert. Citing the language of Rule 683, the court rejected this argument:
As mentioned, Rule 683 requires the injunction order to contain a sufficiently specific description of the enjoined conduct. See TEX. R. CIV. P. 683. The rule does not provide that the description may be merely contained in the evidence. To the contrary, the rule makes clear that even a reference in the injunctive order to a document does not satisfy the specificity requirement.
The employer also asked the court to simply reform the injunction, but the court declined to do so:
In conjunction with its assertion, AMACS also invites us to modify the temporary injunction to include the definition of “confidential information” contained in the employment contract. The definition of confidential information found in the employment contract is not the same definition as provided in the testimony of AMACS’s CEO cited by AMACS. Nor does the definition correspond with the items identified in Exhibit 7 [a document provided by the employer's expert] also cited by AMACS to define “confidential information.” On this record, we decline to modify parts (a) and (b) of the injunctive order.
The court reached similar conclusions with respect to parts (c) and (d) of the temporary injunction.
The lesson from this case is clear: Counsel for an employer in this context must avoid the urge to get greedy when writing a temporary injunction. A broadly written injunction may be void and thus utterly worthless, while a narrowly written injunction may be worth its weight in gold.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes