the taking of an employer’s confidential and trade secret information by a former employee upon termination, which would result in ongoing harm if the confidential information were disclosed to competitors, and “merely offering to return confidential information or trade secrets does not remove a threat of irreparable harm” ( Hayes Healthcare Serv., LLC v.the dissemination of confidential information by a former employee to the employer’s competitors the employer’s reputation for maintaining its clients’ confidentiality would be tarnished and its competitors could underbid it ( VAS Aero Services, LLC v.Some examples in which Florida courts have found the existence of irreparable harm include: In other words, if money would make the injured party whole, no irreparable harm exists under the law and injunctive relief is not appropriate. For an injury to be irreparable, it cannot be undone through monetary remedies. The “irreparable harm” factor is the crux of injunctive relief. An injury must be actual and imminent, not remote or speculative. The only difference in the elements needed for the granting of a permanent, as opposed to a preliminary, injunction under Florida is the need to show actual success on the merits, not merely a likelihood of success. To obtain a preliminary injunction under Florida law, a plaintiff must prove: 1) irreparable harm 2) a substantial likelihood of success on the merits 3) a balancing of competing claims of injury to the parties and 4) consideration of the public interest. A preliminary injunction is permitted under the rules of civil procedure, and allows a litigant to request that the Court intervene and enter an injunction on a temporary/preliminary basis to maintain the status quo while the case continues to conclusion or trial. In simple terms, an injunction prevents (or enjoins) a person or company from engaging in certain behavior. Fortunately, the statute specifically allows for the entry of temporary and permanent injunctions against whom enforcement of the covenant is sought. Section 542.335(1)(j) provides that a court shall enforce a restrictive covenant by any “appropriate and effective remedy.” Well, what constitutes an “appropriate and effective remedy?” Most business owners simply want the former employee or contractor to be prohibited by court order from violating (or continuing to violate) the restrictive covenant. Once an employer has overcome the hurdle of demonstrating that its restrictive covenant is enforceable, the next issue is determining how to enforce it. These valuable protections depend, however, on the enforceability of the restrictive covenant under Florida law. Noncompetition, nonsolicitation and non-disclosure agreements can significantly reduce the risks that often come with the separation of an employee, such as the exposure of confidential information, proprietary methods and trade secrets, along with the potential loss of referral sources or goodwill in the marketplace. Restrictive covenants are widely used in competitive industries to protect the business interests of employers. In Florida, restrictive covenants regarding non-competition, non-solicitation and non-disclosure/confidentiality are governed by Section 542.335 of the Florida Statutes.
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