ABC seeks to force Wolf off of the air for breach of a good faith negotiation provision of a now expired broadcasting contract with ABC.

Injunctive relief (“negative enforcement”) is often provided for services that are unique and for which irreparable harm will befall the employer should the employee be permitted to work for a competitor (when a non-compete clause is in existence).  When the personal services contract is expired, however, the equitable relief against the employee diminishes.  Where there is no existing contract, to force Wolf off the air would be against the public policy of free competition and exchange of goods and services.

Dissent: The 90-day restriction was inconsequential and simply to cope with the assault on ratings ABC would experience once Wolf was gone.

•    Expectation damages would be too speculative in this case.  A liquidated damages provision would have been appropriate (lawful when it represents a reasonable effort to ascertain damages when it is otherwise difficult to estimate damages – cannot be high/penalty).  But ABC wants injunction to keep him off the air.  The money would not mean anything to them.
•    Specific performance does not usually work in the employment context because forced servitude is unconstitutional.
•    Injunctions are only for unique or extraordinary circumstances AND when there is a signed non-compete clause (which is in existence).
•    By the time this case was decided, the injunction was useless.  Perhaps get a TRO, for which ABC must show likelihood of success, but courts are often reluctant to restrict employees ability to compete.
•    If CBS had induced the breach, it would have constituted tortuous interference with a contract.
•    Non-compete covenants are to protect employee services, trade secrets, customer lists, etc.  There are generally disfavored in the law, so they must be:
1.    Reasonable – cannot involve a greater restraint than necessary to protect a legitimate interest.
2.    Within a Reasonable Geographic Area for A Reasonable Time and Covering Reasonable Types of Activities.