Most lawsuits concerning non-competes, non-solicitations, confidentiality agreements, trade secrets or other intellectual property claims generally follow the steps set forth below. That being said, each case is unique and many of the steps listed below may not be required.
In most cases, parties involved in a dispute attempt to resolve the matter without filing a lawsuit. Often a letter is sent from one party to another, informing them of the dispute and demanding some action or compensation to resolve the disagreement short of trial. To be effective, a demand letter must be backed by a strong legal and factual basis and supported by a legitimate threat of further legal action. In addition, the action or compensation demanded must be reasonable considering the facts and legal remedies. Even a strong, reasonable demand letter may not resolve a dispute as a resolution requires the recipient to have the means to comply with the demand and to agree with the facts and threat of further action. If either party is unreasonable, further steps must be taken and a lawsuit may be required for resolution.
If parties are unable to resolve their issues, a Complaint is usually filed by the company against the employee alleging a breach of the covenants in the Agreement. The Complaint, along with a Summons, begins the lawsuit. At this point, it is highly recommended that you hire an attorney at your earliest convenience to avoid losing your case due to procedural issues.
If you have received a Summons and Complaint, you need to contact an attorney immediately. Failure to respond in the time allowed can result in the case being decided in favor of the other party without any defense being asserted.
While most cases do not require an injunction, it is important to be aware of rulings that can occur shortly into a lawsuit which may seriously impact the positions of the parties involved. An injunction is an equitable remedy that a Court may order that requires a party to do, or refrain from doing, specific acts.
At an injunction hearing, the moving party must prove 1.) a likelihood of success on the merits of the claim, and 2.) the likelihood the party will sustain irreparable loss unless the injunction is issued or that the injunction is necessary for the protection of the party’s rights during litigation.
Likelihood of success on the merits is lower than the standard required to prevail on the merits of the case, but it does mean that the parties may have to prepare evidence and legal arguments in detail as if preparing for a trial. An injunction can be an expensive undertaking due to the legal work that may be required.
Due to the length of time in litigation, the outcome of the preliminary injunction hearing is often critical to the outcome of the case. Since the preliminary injunction could last until the conclusion of the trial, the prevailing party may have a great deal of leverage going forward in the case.
The discovery period is when parties gather the information required to prove their case. This can include written interrogatories, requests for documents or other items of evidence, information subpoenaed from third parties, and depositions. While some discovery may occur prior to the injunction hearing, typically it occurs between the injunctive hearings and the trial. The discovery process can be lengthy and expensive depending on the complexity of the lawsuit, the evidence required, whether expert witnesses are necessary and the compliance of the parties from which you have requested evidence.
Depending on which court system you are in, there is usually a mandatory dispute resolution process. In North Carolina, the primary processes are Mediation or Arbitration.
Mediation is a process where a Mediator meets with the parties and tries to get them to agree to a resolution. No judgment is rendered so resolution is completely up to the parties willingness to resolve the matter.
Arbitration is like a trial in that an Arbitrator renders a ruling. Depending on the rules governing the arbitration, the parties may appeal the Arbitrator’s ruling and proceed to trial in front of a Judge if they are unhappy with the resolution.
At anytime during a lawsuit, motions can be brought before the Court to resolve disputes between the parties. Motions can be brought to resolve issues ranging from extension of deadlines to a full and final resolution of a case. A case can have many motions filed depending on the complexity of the matter, the willingness of parties to cooperate and the procedures of the Court in which the case is pending.
Very few cases make it all the way to trial as many are settled, resolved on motions or dismissed for other reasons. Statistics on North Carolina cases can be found here.
Trial is the ultimate opportunity to prove your case. Each party involved is given an opportunity to present their case to a Judge or Jury and a final ruling is rendered, resolving the dispute. Rules of evidence should be strictly adhered to at trial, which can limit the information you present to a Judge or Jury. The Judgment rendered at trial must be appealed or it becomes the final resolution of the matter.
The trial concludes with a ruling in the form of a Judgment that determines a party’s entitlement to certain relief. If the losing party does not voluntarily comply with the Judgment, the prevailing party must continue legal proceedings in hopes of enforcing the Judgment. These proceedings allow the prevailing party to continue the discovery process in hopes of finding assets to execute against to satisfy the judgment.