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Solar Lease Negotiations from the Landowner's Perspective
In examining the evolution of oil and gas leases and related energy industry agreements in the recorded public records, it is interesting to observe when certain clauses begin to appear and how they develop with the passage of time as additional agreements are drafted. These modifications almost always emerge to address concerns that were not apparent to the parties during the early days of the particular industry, but eventually became problematic as basic forms were applied in practice. In this context, necessity remains the mother of invention. In the same manner, it is anticipated that solar lease drafting practices will evolve to address lessons learned by landowners and lessees as a result of the first wave of widespread solar development in Texas. In the meantime, attorneys that represent landowners must anticipate potential problems by employing a creative approach that considers various hypothetical scenarios and outcomes for each unique client and tract of land. This requires a high degree of situational awareness and attention to detail, in addition to a base knowledge of how solar power is generated, stored, transported and marketed.
Covenants to Not to Compete and Injunctive Relief
Almost every case involving non-competes and trade secrets deals in some fashion with injunctive relief. In fact, these cases are typically won or lost at the temporary injunction stage. For example, from the employee’s perspective, a former employer seeking injunctive relief will inevitably claim that damages are impossible to calculate in an effort to buttress its claim of irreparable harm—a necessary component of obtaining injunctive relief. If the injunction is denied, however, the former employer is left with the herculean task of quantifying these otherwise “impossible to calculate” damages. Thus, if an employee can successfully rebuff efforts by his or her former employer to either enforce a non-compete covenant or obtain the substantive equivalent through a temporary injunction preventing him from working for a competitor, that employee has essentially gutted his former employer’s ability to get any relief at all. Similarly, if an employer can obtain injunctive relief, an ultimate ruling on the non-compete may be unnecessary given the amount of time it takes to get to trial. Understanding both the substantive and procedural requirements for obtaining a TRO/TI—as well as their practical application—is, therefore, critical in either obtaining or defeating an injunction.
Covenants to Not to Compete and Injunctive Relief
Almost every case involving non-competes and trade secrets deals in some fashion with injunctive relief. In fact, these cases are typically won or lost at the temporary injunction stage. For example, from the employee’s perspective, a former employer seeking injunctive relief will inevitably claim that damages are impossible to calculate in an effort to buttress its claim of irreparable harm—a necessary component of obtaining injunctive relief. If the injunction is denied, however, the former employer is left with the herculean task of quantifying these otherwise “impossible to calculate” damages. Thus, if an employee can successfully rebuff efforts by his or her former employer to either enforce a non-compete covenant or obtain the substantive equivalent through a temporary injunction preventing him from working for a competitor, that employee has essentially gutted his former employer’s ability to get any relief at all. Similarly, if an employer can obtain injunctive relief, an ultimate ruling on the non-compete may be unnecessary given the amount of time it takes to get to trial. Understanding both the substantive and procedural requirements for obtaining a TRO/TI—as well as their practical application—is, therefore, critical in either obtaining or defeating an injunction.