Inadequate affidavit causes Motion for TRO to fail
American Family's efforts to obtain a temporary restraining order against a former employee recently were rebuffed when Judge Krieger from the federal district court ruled that American Family had failed to sustain its burden.
In American Family v. Gustafson, 2008 WL 5377969, American Family alleged that a former agent had retained customer lists and other information after he had resigned. And that the agent had used that information to solicit American Family's customers to cancel their policies and purchase new policies from another company. Claims were alleged under the Computer Fraud and Abuse Act, the Colorado Trade Secret Act and the Colorado Consumer Protection Act.
In support of its motion for a temporary restraining order, American Family submitted a single affidavit. Judge Krieger concluded, however, that the affidavit was insufficient for a number of reasons.
Most importantly, she ruled that the affidavit failed to demonstrate that American Family would suffer immediate injury absent an injunction. According to American Family's own affidavit, nearly six months had passed since the agent had engaged in the allegedly wrongful conduct. Judge Krieger also concluded that American Family had not demonstrated why the motion needed to be heard before the agent could be heard in opposition.
There are a number of obvious lessons in this decision. In non-compete, computer fraud and trade secret cases, plaintiffs often believe that they must move immediately for a temporary restraining order. Courts may be skeptical, however, of granting that relief, however, if a substantial amount of time has passed since the defendant initially engaged in the wrongful conduct. Temporary restraining orders, by definition, are limited to a brief period of time. There may be no reason to grant this relief if the plaintiff has sat on his rights.
It is also noteworthy that Judge Krieger was generally skeptical about the affidavit. She questioned, for example, whether the assertions in the affidavit were truly based on the personal knowledge of the company representative who signed the affidavit.
