In the world of non-competes, trade secrets and other restrictive covenants, an injunction is one of the most potent weapons. Injunctions are often used against a breach or threatened breach of a restrictive covenant agreement or threatened or actual misappropriation of trade secrets. However, what happens when someone is violating a non-compete or stealing information during a pandemic when the courts are operating at extremely limited capacity and only handling the most exigent cases? There can be no doubt that the potential harm to a business is just as real during a pandemic as at any other time (if not more so), but some perspective is always healthy. <\/p>\n\n\n\n
Be Judicious When Seeking Injunctions During a Time of National Crisis<\/strong> This\ncase involves counterfeit unicorn drawings. The complaint includes a few\nexamples of products that allegedly infringe Plaintiff’s trademarks, which\noffer “striking designs and lifelike portrayals of fantasy subjects.”\nOne example is a puzzle of an elf-like creature embracing the head of a unicorn\non a beach. Another is a hand purse with a large purple heart, filled with the\ninterlocking heads of two amorous-looking unicorns. There are phone cases\nfeaturing elves and unicorns, and a unicorn running beneath a castle lit by a\nfull moon.<\/em><\/p>\n\n\n\n Meanwhile,\nthe world is in the midst of a global pandemic. The President has declared a\nnational emergency. The Governor has issued a state-wide health emergency. As\nthings stand, the government has forced all restaurants and bars in Chicago to\nshut their doors, and the schools are closed, too. The government has\nencouraged everyone to stay home, to keep infections to a minimum and help\ncontain the fast-developing public health emergency.<\/em><\/p>\n\n\n\n The\nUnited States District Court for the Northern District of Illinois took action\nlast week to protect the public, issuing General Order No. 20-0012\nentitled IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY <\/strong>(bold\nand all caps in original). On March 16, the Executive Committee issued an\namended Order that, among other things, holds all civil litigation in abeyance.<\/em><\/p>\n\n\n\n Last\nweek, Plaintiff filed a motion for a temporary restraining order against the\nDefendants (who are located abroad) and requested a hearing. This Court thought\nthat it was a bad time to hold a hearing on the motion. So, this Court moved\nthe hearing by a few weeks to protect the health and safety of our community,\nincluding counsel and this Court’s staff. Waiting a few weeks seemed prudent.<\/em><\/p>\n\n\n\n Plaintiff\nhas not demonstrated that it will suffer an irreparable injury from waiting a\nfew weeks. At worst, Defendants might sell a few more counterfeit products in\nthe meantime. But Plaintiff makes no showing about the anticipated loss of\nsales. One wonders if the fake fantasy products are experiencing brisk sales at\nthe moment.<\/em><\/p>\n\n\n\n On the flipside, a hearing\u2014even a telephonic one\u2014would take time and consume valuable court resources, especially given the girth of Plaintiff’s filings. And the proposed temporary restraining order would require the attention of innocent third parties, and create a cascade of obligations. Plaintiff wants to force financial institutions to lock down accounts, and require domain name registries to shut down websites, for example. Plaintiff requests an order forcing innocent third parties\u2014such as Amazon, eBay, PayPal, Alibaba, Western Union, plus social media platforms such as “Facebook, YouTube, LinkedIn, Twitter,” plus internet search engines such as “Google, Bing and Yahoo,” among others\u2014to spring into action within two or three days. Either the order would be a nullity, or it would distract people who may have bigger problems on their hands right now. <\/em><\/p>\n\n\n\n In\nresponse, Plaintiff Art Ask Agency and its counsel filed a motion for\nreconsideration. They ask this Court to re-think its scheduling order. They\nwant a hearing this week (telephonically if need be).<\/em><\/p>\n\n\n\n Plaintiff\nrecognizes that the community is in the midst of a “coronavirus\npandemic.” But Plaintiff argues that it will suffer an “irreparable\ninjury” if this Court does not hold a hearing this week and immediately\nput a stop to the infringing unicorns and the knock-off elves. To top it off,\nPlaintiff noticed the motion for a hearing on March 19, 2020, a day that has\nbeen blocked off on the Court’s calendar\u2014as revealed on its webpage\u2014for several\nweeks. <\/em>See www.ilnd.uscourts.gov <\/em>(last visited March 16, 2020) (“The\nHonorable Steven C. Seeger will not be holding court on Thursday, March\n19, 2020 \u2026.”).<\/em><\/p>\n\n\n\n Meanwhile,\nthe Clerk’s Office is operating with “limited staff.” <\/em>See <\/em>Amended General Order No. 20-0012, at \u00b6\n5. “[P]hone conferencing” is available “in emergency situations\nand where resources permit.” The Court can still hear emergency motions,\nbut resources are stretched and time is at a premium. If there’s ever a time\nwhen emergency motions should be limited to genuine emergencies, now’s the\ntime.<\/em><\/p>\n\n\n\n Thirty\nminutes ago, this Court learned that Plaintiff filed yet another emergency\nmotion. They teed it up in front of the designated emergency judge, and thus consumed\nthe attention of the Chief Judge. The filing calls to mind the sage words of\nElihu Root: “About half of the practice of a decent lawyer is telling\nwould-be clients that they are damned fools and should stop.”<\/em><\/p>\n\n\n\n The world is facing a real emergency. Plaintiff is not. The\nmotion to reconsider the scheduling order is denied.<\/em><\/p>\n\n\n\n Art Ask Agency, Inc. v.\n[Various Defendants]<\/em>, in the United States District Court for\nthe Northern District of Illinois, Case No.: 20-cv-1666.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" In the world of non-competes, trade secrets and other restrictive covenants, an injunction is one of the most potent weapons. Injunctions are often used against a breach or threatened breach of a restrictive covenant agreement or threatened or actual misappropriation of trade secrets. However, what happens when someone is violating a non-compete or stealing information […]<\/p>\n","protected":false},"author":5,"featured_media":1372,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_mo_disable_npp":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[4,3,9],"tags":[],"acf":[],"yoast_head":"\n
Below is an excerpt from an order explaining how Judge Steve C. Seeger of the Northern District of Illinois sees the issue. While the case involved trademark infringement, rather than a restrictive covenant or trade secret, and every judge may not see it the same way, litigants and their lawyers will need to be judicious when seeking injunctions during this time of national crisis. Of course, judges may be doing their part to try to maintain \u201cbusiness as usual\u201d and to keep the courts as available as possible during this crisis, so an employer that is being irreparably harmed by the conduct of a departing employee should not necessarily refrain entirely from seeking appropriate relief from a court. <\/p>\n\n\n\n