Interesting unpublished opinion affirming denial of preliminary injunction in West Virginia non-compete case

In McGough v. Nalco Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Michael and Motz affirmed the denial of a preliminary injunction against the former employee for violation of his non-compete agreement, where the trial court judge in balancing the hardships under the Blackwelder test found that they "approached equipoise," but the non-compete was probably unenforceable under West Virginia law.

The panel remanded the case, however, for consideration of the plaintiff's trade secret claims as the basis for injunctive relief.

This case and the Gastonia case were the only two cases decided by the Fourth Circuit this week after oral argument, the other 65 or so cases were decided on the briefs without argument.