You found out a former employee is working for a competitor, and you think the non-compete you had them sign covers exactly this. What happens now, and how fast?
The answer depends on how much damage is being done and how quickly you move. A cease-and-desist letter may resolve it in weeks. A temporary restraining order can put a stop to the conduct in days. A case that goes the distance can run two years.
Here is what the timeline usually looks like, step by step.
Responding to a Non-Compete Violation
When an employer discovers a potential non-compete violation, they generally react within one to four weeks, though this can be shorter if the violation poses an immediate competitive threat.
Depending on the severity of the non-compete violation and the damage being done, employers have options:
- Send a cease-and-desist letter to both the former employee and their new employer. This letter typically demands immediate compliance with the non-compete agreement and requests a response within five to 10 business days. After sending a cease-and-desist letter, a negotiation period often ensues.
- In urgent cases involving clear violations and immediate harm, your attorney can file a lawsuit and petition the court for a temporary restraining order (TRO). A TRO can be granted without notice to the opposing party and sets the matter for a temporary injunction (TI) hearing within 14 days.
Employers: Act Quickly If You Suspect a Non-Compete Violation
If you believe a current or former employee is competing against you in violation of a non-compete agreement, act quickly to defend your rights. A delay could be interpreted by the courts as a lack of urgency or immediate harm caused by the non-compete violation, potentially weakening your case.
Quick action also helps prevent irreparable damage to your business. When former employees violate non-competes, they often take customer relationships, trade secrets, or proprietary information with them. Each day of delay allows them to further establish competing business relationships, eroding your position in the market. Customer relationships, once transferred, can be particularly difficult to recover.
Concerned about a non-compete violation? Call (713) 783-3110 or contact us online to schedule a consultation with one of our experienced non-compete attorneys. Hendershot Cowart P.C. has represented Texas businesses since 1987 – nearly 40 years.
Sending A Cease-And-Desist Letter To Stop Non-Compete Violations
A cease-and-desist letter can be an effective first step in stopping non-compete violations in Texas. The letter is typically sent to the former employee and their new employer, and it serves to:
- Outline the specific prohibited activities
- Set clear deadlines for compliance
- Propose acceptable remedial actions
- Often prompt the new employer to take protective actions
- Invite negotiation before costly litigation becomes necessary
While a cease-and-desist letter can be an effective deterrent, it has no “teeth.” The letter is not a court order and cannot compel the employee to stop competing. During the time spent waiting for a response or attempting negotiations, the former employee can continue violating the agreement, potentially causing lasting damage to the business through lost customers, leaked confidential information, or eroded market position.
For employers facing significant competitive threats who cannot risk extended periods of unfair competition, immediate court intervention may be the better course of action.
Enforcing A Non-Compete Agreement In Texas Courts: Litigation and Temporary Restraining Orders
If negotiations prompted by a cease-and-desist letter fail – or if the harm being done by the non-compete violation is severe – the next step is litigation. The employer may file a lawsuit in a Texas state court seeking injunctive relief and financial damages.
In urgent cases involving clear violations and immediate harm, employers might file for a TRO simultaneously with the lawsuit.
What Is a TRO?
A TRO, or temporary restraining order, is an emergency court order that provides immediate, short-term relief in non-compete cases.
A TRO prevents the former employee from continuing potentially harmful competitive activities until a full hearing can be held – usually within 14 days. It's designed to maintain the status quo and prevent immediate harm while the court considers more detailed evidence.
The Role Of Discovery In Non-Compete Litigation
During the litigation process, discovery typically takes four to six months, including document exchanges, depositions, and expert witness reports. When a TRO is requested, however, that process is often expedited. The employer’s attorney will generally request expedited discovery at the same time as the TRO.
In non-compete cases, expedited discovery enables employers to rapidly gather evidence of violations and potential harm while information is fresh and before further damage occurs, usually within three to five days of the order.
Expedited discovery in a non-compete case:
- Allows immediate access to the former employee's work devices and email accounts
- Enables quick forensic analysis of data transfers or deletions
- Facilitates rapid depositions of key witnesses
- Helps document customer communications or solicitations
- Preserves electronic evidence before it can be altered or deleted
- Supports the "irreparable harm" requirement for obtaining a temporary injunction
Temporary Injunction Process
After the initial TRO period, a temporary injunction hearing is scheduled, usually within 10 to 14 days. This hearing involves more detailed evidence presentation (usually collected through expedited discovery) and can last several hours or even days.
If granted, the temporary injunction remains in effect until the conclusion of trial, which typically occurs 18 to 24 months after the initial filing, depending on the court's docket and case complexity.
Negotiating or Mediating an End to a Non-Compete Dispute
Texas courts – especially in larger metropolitan areas – often mandate mediation around the three- to four-month mark, providing another opportunity for settlement before going to trial.
Negotiations may also take place after a cease-and-desist letter is sent, typically lasting two to six weeks, and as a precursor – or a way to avoid – litigation. During this time, your attorney will exchange information with the opposing party and try to reach an acceptable resolution that meets both sides’ reasonable objectives.
Whether during informal negotiations following a cease-and-desist letter – or as part of court-mandated mediation – the following are some common compromises both sides may consider.
For Employees: What to Propose
As a former employee, you and your attorney may propose:
- Limiting your work to specific counties or regions that don't directly compete with your former employer's core market. For example, if the original agreement covers all of Texas, you might negotiate to work only in El Paso if your former employer's primary operations are in Houston and Dallas.
- Modifications to your new role to comply with the agreement (e.g., working in product development but not sales while the agreement is in effect)
- Restrictions on soliciting specific customers (rather than prohibiting all competition) in exchange for some revenue sharing
For Employers: What to Consider
As an employer, you might consider these potential compromises to resolve a non-compete dispute:
- Reducing a statewide restriction to specific metropolitan areas where you have significant market presence
- A graduated restriction where the employee can begin competing in certain markets after six months, with full competition permitted after 12 months
- Reduce an 18-month restriction to 12 months in exchange for revenue-sharing agreements for specific accounts
This negotiation phase works best when both parties recognize that it is in everyone’s interest to avoid or minimize the time spent on costly litigation. Negotiations can also be effective if the non-compete agreement may be too restrictive or broad in scope to be enforceable in Texas.
Final Resolution and Appeals
A final resolution, whether through settlement or trial, typically occurs within 12 to 24 months from the initial alleged violation. However, appeals can extend this timeline by an additional seven to 14 months.
If a court deems the agreement broader than necessary to protect the interests of the business, the court can reform or nullify the agreement. Your attorney can review the non-compete agreement and advise on its enforceability under Texas law.
The court may also award monetary damages to compensate the employer for lost earnings and, in some cases, to compensate for attorney’s fees and court costs.
Ready To Get Help With A Texas Non-Compete Agreement?
Every non-compete matter depends on the specific language of the agreement, the interest the business is protecting, and how quickly the employer acts. A timeline built from your facts will look different from the general one above.
We draft non-compete agreements for Texas businesses, and we enforce them when former employees walk out the door with customers or confidential information. We will explain your position in plain English and lay out what the first step costs before you commit to anything.
Call (713) 783-3110 or contact us online to discuss your non-compete matter with our Houston-based litigation team.