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When facing a filed claim that includes an injunction to prevent a person contacting certain customers, can the injunction be avoided by including a statement within an affidavit that states the person will not engage in the activities described i the injunction?

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That would not "avoid" the injunction - it would lead to it being imposed uncontested.

  • Do you really mean that undertakings are never accepted in place of injunctions, anywhere in the USA? – Tim Lymington Sep 17 '17 at 18:14
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When facing a filed claim that includes an injunction to prevent a person contacting certain customers, can the injunction be avoided by including a statement within an affidavit that states the person will not engage in the activities described i the injunction?

Probably not.

An injunction is prospective in application, so the fact that you currently don't plan on breaching its prohibitions doesn't automatically imply that you won't change your mind or accidentally violate it in the future. A mere affidavit does not provide the party seeking the injunction with the same protections in the event that the terms of the non-solicitation obligation are later breached notwithstanding the affidavit, as an injunction would.

An affidavit like this does indeed sound like a consent to the entry of an injunction, rather than a defense to one.

I am not familiar with anyplace in the U.S. where an undertaking is accepted in place of an injunction (although the U.S. is a big place and I wouldn't be stunned if somewhere that is legally a bit quirky, in general, like Louisiana or California, there was some exception in some narrow sets of circumstances).

This said, at least in federal court, it is necessary to establish that there is an actual case or controversy to be adjudicated for the federal courts to have subject matter jurisdiction over the case, which would ordinarily require some reason for party seeking the injunction to be apprehensive that the non-solicitation contract would be violated, and an affidavit to this effect, while not a complete or automatic defense to the request for an injunction on case or controversy grounds, could be part of the evidence to establish a lack of controversy.

For example, a case seeking to put in place an injunction that takes effect upon the termination of the employee's employment commenced while the employee was still employed and had not given notice or been given notice, would probably be dismissed on the grounds that the claim was not ripe.

But, the party seeking the injunction could almost surely overcome the affidavit of the party to be enjoined with other evidence showing that its concern that customers would be contacted despite a non-solicitation obligation was well founded, even though the party to be enjoined denied that the fear was well founded in an affidavit.

Concerns similar to the case or controversy requirement would apply both under the state law standard for granting an injunction and possibly also under state constitutional law, even though the case or controversy requirement for the subject matter jurisdiction of Article III federal courts does not apply in state courts.

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