The celebration of the 30th anniversary of the Texas non-compete statute continues with this week’s unanswered question of Texas non-compete law: does the loss of sales caused by a breach of a non-compete establish “irreparable injury”?
Paper Rules vs. Real Rules
I confess this is actually an answered question. It’s just that the answer is not obvious. That’s because the court opinions aren’t necessarily going to tell you the answer, at least not explicitly.
You see, in law there are the Paper Rules, and there are the Real Rules.
The Paper Rules are the reasons courts put on paper for ruling the way they do. The Real Rules are the actual reasons the courts decide cases the way they do.
If that sounds sinister, don’t worry. The Paper Rules and the Real Rules overlap. If you drew a Venn diagram it would show two overlapping circles. And the circles constantly shift, because sometimes the courts incorporate some of the Real Rules into the Paper Rules.
That’s kind of what the smart people at the American Law Institute do when they write a “Restatement” of a certain area of law. They look at dozens of court decisions and say “here’s how courts actually decide this issue,” and then they make that principle one of the Paper Rules.
That’s why it’s the Restatement (Second) of the Law of Contracts and not the Statement (Second) of the Law of Contracts. The whole project has a certain aroma of legal realism.
Of course, you can always “out-realist” the realists. You can say, “Ha! you think judges are deciding these cases based on what they think is reasonable, I say it’s based on who contributed to their campaigns!” Or based on what will keep the proletariat in his place, or increase economic efficiency, or maintain the patriarchy, etc.
That’s a deeper part of the ocean. Here I’m focusing on the surface level of the Real Rules, the legitimate “legal” reasons courts decide cases a certain way.
If you’re a practicing litigator, you need to understand both the Paper Rules and the Real Rules. You have to be fluent in the Paper Rules to brief and argue your case. But you also need to understand the Real Rules, because then you will know what you really need to prove to win your case, and you will increase your chances of accurately predicting what’s going to happen.
This is especially true in non-compete litigation. Even if you read a lot of non-compete injunction opinions, you might miss the answer to the irreparable injury question if you only pay attention to the Paper Rules.
What the Real Rule is
The Real Rule is that loss of customers establishes “irreparable injury” if the trial court judge wants it to. Otherwise, it doesn’t. You can sum up the reason for this answer in three words: standard of review.
Let’s break it down in ten simple steps:
1. The Texas non-compete statute authorizes judges to award “injunctive relief” for the breach of a non-compete.
2. Injunctive relief includes a temporary injunction (in federal court it’s called a preliminary injunction).
3. A temporary injunction is an order from the trial court judge that says, for example, “Salesman may not do business with Former Employer’s Customers until this court renders a final judgment after trial.”
4. A temporary injunction is a common-law remedy. That means that judges, through case law, have established the requirements for a temporary injunction through decades, even centuries, of case law.
5. The common-law requirements for obtaining a temporary injunction include “irreparable injury,” or irreparable harm, and “no adequate remedy at law.” These requirements apply to non-compete cases.
6. Irreparable injury and no adequate remedy at law mean essentially the same thing: money damages would be inadequate to compensate for the lost sales.
7. If the trial court rules against you on a temporary injunction, you get an interlocutory appeal, which is an appeal taken before the trial court has rendered a final judgment.
8. The “standard of review” for an interlocutory appeal of a temporary injunction ruling is “abuse of discretion.”
9. Abuse of discretion means even if the Court of Appeals thinks the trial court judge got it wrong, it will affirm the ruling as long as there was a reasonable basis for it.
Maybe this difference can be reconciled based on the different facts of the cases. Maybe it can’t. But either way, you can see where this is headed.
Here is the practical result:
A. In a non-compete case, the trial court judge will usually decide the temporary injunction based on what the judge thinks is fair.
B. If the trial court judge grants a temporary injunction, the Court of Appeals will almost always say the judge could have reasonably found that the loss of customers established irreparable injury.
C. If the trial court judge denies a temporary injunction, the Court of Appeals will almost always say the judge could have reasonably found that the loss of customers did not establish irreparable injury, because the loss could be adequately compensated by damages.
The bottom line is that the irreparable injury requirement is effectively a variable that the trial court judge can use to justify whatever decision the judge thinks is fair. This is the Real Rule in non-compete litigation.
Mind you, it’s only a general rule. It is possible to persuade an appellate court that the trial court abused its discretion, but it is rare. And even when an appellate court reverses a trial court’s ruling on a temporary injunction, it’s usually based on some other issue, not the irreparable injury requirement.
So now you know the Paper Rules and the Real Rule on irreparable injury in non-compete cases. Mystery solved.
What the Real Rule should be
But what should the rule be? Should the loss of sales establish irreparable injury?
I say generally, no, for two main reasons. First is the almost-forgotten principle of “efficient breach.” Second is the almost-forgotten constituency in non-compete cases: the customers.
Efficient breach is a concept you learn in law school and then never hear about, unless you go into academia or clerk for the Seventh Circuit. Black’s Law Dictionary defines efficient breach as the “modern contract theory which [sic] holds that it may be economically efficient to breach a contract and pay damages.”
The idea of efficient breach reflects the amoral bent of modern contract law. 1Ls learn that contract law is about commerce and efficiency. It’s not about right and wrong. There’s nothing inherently immoral about breaking a contract. Efficient breach says it’s fine to break a deal as long as you compensate the other party for its damages and still come out ahead.
Of course, most people, including judges, don’t really think like this. Courts even refer to contractual promises as covenants. Talk about a word with some moral baggage! Truth is, there is always a tension between the moral and amoral strands of contract law.
So when the Law and Economics movement started promoting the concept of efficient breach in the 1970s, it was only partly descriptive, and retroactively so.
It was descriptive in the sense that it provided a rationale for certain timeworn principles of contract law. You might recognize one of those principles: the irreparable injury requirement.
The efficient breach theory provided an economic explanation for the irreparable injury requirement: courts will refrain from enjoining a party from breaching a contract, as long as the injured party can be made whole with damages, because that’s more economically efficient.
That’s the descriptive part. The prescriptive part is the idea that courts should refrain from granting an injunction when damages would be adequate to compensate the injured party.
This doesn’t mean you have to be a Law and Economics type to appreciate the efficient breach theory. For me, the value of the theory is that it helps us discern when we are deciding cases based on moral considerations as opposed to the amoral rules of the marketplace.
You see this a lot in non-compete cases. In most cases, when a sale person breaks a non-compete and her employer loses sales, damages are not that hard to calculate and would adequately compensate the employer.
So what explains why a judge would grant an injunction in such a case?
I think it’s the moral element. Specifically, it’s the notion of loyalty. Breaking a non-compete is not just some antiseptic breach of contract, the judge thinks, it’s a breach of loyalty. It’s a betrayal.
And I get that. But the problem, in practice, is that loyalty tends to be a one-way street in employment relationships. We expect loyalty from the employee, but where is the loyalty when the employer fires the at-will employee for an unfair reason, or for no reason?
I say non-compete litigation could use a little more of the efficient breach theory, and a little less of the moralizing. That means don’t grant an injunction to prevent the loss of sales unless the damage is truly irreparable, e.g. if the loss of sales would put the company entirely out of business.
Unless I represent the employer trying to enforce the non-compete. Then let the moralizing flow.
Who will speak for the customers?
The second reason I think it’s wrong to grant an injunction to prevent an ordinary loss of sales is that it unfairly restricts the rights of non-parties. Specifically, the customers. Or if it’s a professional service, the clients.
Yes, customers and clients. Remember them? They pay the bills.
When a judge orders a sales person to stop doing business with certain customers, that is effectively the same as ordering the customers not to do business with the sales person.
Let that sink in. A temporary injunction tells a customer you can’t get your lumber, or insurance policy, or oilfield services—or whatever it is—from the person you like. And in many cases, that’s the person you’ve bought that thing from for years.
Think about it. The customer never signed any non-compete. The customer is not a party to the lawsuit. And in most cases, the customer hasn’t done anything wrong. But a judge is going to tell the customer what to do?
Now I may be just a small-time Texas litigator, but that don’t seem right. This is just my personal opinion, but I say protecting the interests of customers is a compelling reason for strictly enforcing the irreparable injury requirement in non-compete litigation.
Don’t get me wrong. If the non-compete is reasonable and enforceable, the employer can still get damages. Specifically, the employer can recover lost profits damages, if proven with reasonable certainty.
But wait a minute, you say. What about the cost of pursuing damages in a lawsuit? The attorneys’ fees, the expert witness fees, the time and uncertainty of the litigation process. You don’t get those things back.
Ah, transaction costs. The bane of the efficient breach theory.
All I can say is, transaction costs are an inherent problem in any litigation. That’s why cases settle.
That’s another one of the Real Rules.
Zach Wolfe (email@example.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
 Tex. Bus. & Com. Code § 15.51(a).
 Some Texas courts have held that irreparable injury and the other common-law requirements do not apply to a claim for a permanent injunction to enforce a non-compete. See the discussion in Tranter, Inc. v. Liss, No. 02-13-00167-CV, 2014 WL 1257278, at *6-7 (Tex. App.—Fort Worth Mar. 27, 2014, no pet.) (mem. op.).
 Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (state court); 28 U.S.C. § 1292(a)(1) (federal court).
 See, e.g., Argo Group US, Inc. v. Levinson, 468 S.W.3d 698, 700 (Tex. App.—San Antonio 2015, no pet.) (“In this interlocutory appeal, our review is limited to determining whether the trial court abused its discretion in denying Argo’s request for a temporary injunction”); Cardoni v. Prosperity Bank, 805 F.3d 573, 579 (5th Cir. 2015) (“We review a district court’s assessment of these factors [that a party seeking an injunction must show] for abuse of discretion. Conclusions of fact that affect that analysis are left undisturbed unless clearly erroneous, whereas conclusions of law are reviewed de novo.”)
 See, e.g., Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 236 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“proof that a highly trained employee is continuing to breach a non-competition covenant gives rise to a rebuttable presumption that the applicant is suffering irreparable injury”); Tranter, 2014 WL 1257278, at *7 (“A highly trained employee’s continued breach of a noncompete agreement creates a rebuttable presumption that the employer is suffering an irreparable injury”).
 See, e.g., Argo Group US, Inc. v. Levinson, 468 S.W.3d 698, 704-5 (Tex. App.—San Antonio 2015, no pet.) (affirming trial court’s denial of temporary injunction where trial court could have reasonably found no threat of irreparable injury); Midstate Environmental Services LP v. Atkinson, No. 13-17-00190-CV, 2017 WL 6379796, at *4 (Tex. App.—Corpus Christi 2017, no pet.) (mem. op.) (affirming trial court’s denial of a temporary injunction to enforce a non-compete based on lack of irreparable injury, where damages could be calculated based on the proceeds plaintiff would have received for customers that switched to the competitor); Am. Mortgage & Equity Consultants, Inc. v. Bowersock, No. 1:19-CV-492-RP, 2019 WL 2250170, at *5 (W.D. Tex. May 24, 2019) (denying TRO for misappropriation of customer information where the court would be able to calculate damages for resulting from the “converted” customers); BMC Software, Inc. v. Int’l Business Machines Corp., No. H-17-2254, 2018 WL 4520020, at *4-5 (S.D. Tex. Sept. 21, 2018) (denying preliminary injunction where alleged loss of customer could be compensated by money damages).