EDWARD G. SMITH, District Judge.
Pending before the court is the plaintiff's amended motion for a preliminary injunction. The plaintiff contends that the defendants, a former employee and his new employer, violated contractual duties, improperly solicited clients, tortuously interfered with contractual relationships, and stole trade secrets. Accordingly, the plaintiff asks the court to enter a preliminary injunction barring the defendants from further contractual breaches, further solicitation of clients, and further use of trade secrets. Ultimately, however, the record created by the parties does not support the plaintiff's allegations.
The record reveals that the defendants likely did not breach contractual duties, likely did not improperly solicit the plaintiff's clients, likely did not tortuously interfere with the plaintiff's contractual relationships, and likely have not used or possessed trade secrets belonging to the plaintiff. Because the record does not support the plaintiff's allegations, the plaintiff fails to establish the two most critical factors necessary for the court to award preliminary injunctive relief. Consequently, the court will deny the motion.
On July 24, 2017, the plaintiff, Acosta, Inc. ("Acosta"), filed a complaint alleging (1) that the defendant, Joseph Navitsky ("Navitsky"), its former employee, breached a contractual agreement with Acosta, and (2) that the other defendant, Johnson O'Hare, Inc. ("JOH"), Navitsky's new employer, tortuously interfered with Acosta's business and contractual relationships. See Compl., Doc. No. 1. On the same day, Acosta also moved for a preliminary injunction against both defendants. See Mot. for Prelim. Inj., Doc. No. 3. Acosta sought to have the court enjoin Navitsky from soliciting Acosta clients, using Acosta's confidential information, and from otherwise breaching his contractual agreement. See id. Similarly, Acosta sought to have the court enjoin JOH from tortuously interfering with Acosta's relationships with Acosta employees and from using any of Acosta's confidential information JOH may have obtained. See id.
On August 11, 2017, Navitsky filed a motion to dismiss. Doc. No. 17. One week later, on August 18, 2017, JOH also filed a motion to dismiss. Doc. No. 19. Although Acosta filed responses to the motions to dismiss, it subsequently moved for leave to file an amended complaint on September 7, 2017. Doc. Nos. 23, 25, 28. On September 20, 2017, the court granted Acosta's motion and directed the clerk of court to docket the proposed amended complaint that was attached to the motion.
Shortly thereafter, Acosta filed an amended motion for preliminary injunctive relief. Doc. No. 37. With the exception of minor changes (the word "temporary" was removed in two places, and an additional injunction was requested against JOH), the amended motion was essentially the same as the original one. Compare Doc. No. 3, with Doc. No. 37. Navitsky renewed his motion to dismiss, and JOH filed a new motion to dismiss on October 5, 2017. Doc. Nos. 39, 40.
Navitsky filed a response in opposition to the amended motion for a preliminary injunction on October 27, 2017. Doc. No. 47. Pursuant to the court's request, the parties filed proposed findings of fact and conclusions of law on October 30, 2017. Doc. Nos. 48, 49, 50. JOH filed a response in opposition to the amended motion for a preliminary injunction on October 31, 2017. Doc. No. 51. The court then held an evidentiary hearings on the amended motion for a preliminary injunction on November 1, 2017, December 7, 2017, and December 21, 2017. Doc. Nos. 54, 59, 61. The amended motion for a preliminary injunction is now ripe for adjudication.
In accordance with Federal Rule of Civil Procedure 52(a), the court's findings of fact are as follows:
1. Acosta is a "a sales and marketing agency that services consumer product goods companies." Tr. Nov. 11, 2017 at 9 ("Tr. I"), Doc. No. 55. In other words, Acosta is a food broker. See id. at 24.
2. As a food broker, Acosta assists food and beverage manufacturers by placing their products with retailers. See id. at 9-10.
3. JOH is also in the food brokerage business; JOH and Acosta are competitors. See id. at 23.
4. Lactalis and Sartori were, at one point in time, both represented by Acosta's Fresh Foods division in the Northeastern United States. See id. at 12.
5. Fresh Foods is the portion of a grocery store that typically contains foods such as "meat, seafood, produce, deli, retail food service, specialty cheese, [and the] in store bakery." Id. at 11.
6. Both Lactalis and Sartori are specialty cheese producers. See id. at 12.
7. Lactalis offers some other dairy products. See id.
8. Acosta's Fresh Foods division no longer represents Lactalis or Sartori in the Northeastern United States: Lactalis left in May 2017, see id. at 24, and Sartori left in June 2017, see id. at 25.
9. JOH's Fresh Foods division now represents Lactalis and Sartori in the Northeastern United States. See id. at 23-25.
10. Joseph Navitsky was the director of Fresh Foods at Acosta for the Metro New York and Mid-Atlantic regions. See id. at 14.
11. Navitsky was responsible for, and worked closely with, Sartori and Lactalis when Acosta's Fresh Foods division represented them. See id. at 18-21.
12. As part of his employment with Acosta, Navitsky signed an Orientation Acknowledgement Form. See Navitsky Ex. 8.
13. The Orientation Acknowledgement Form references a Non-Solicitation Agreement. See id.
14. Navitsky did not sign the Non-Solicitation Agreement. See Navitsky Exhibit 7; Tr. I at 16.
15. Navitsky resigned from his employment at Acosta in June 2017, to work at JOH. Tr. I at 21, 23.
16. Navitsky did not solicit Lactalis or Sartori to join JOH. See id. at 106, 135, 220, 239. Furthermore, he is not soliciting Acosta clients in his role at JOH. See id. at 265-67. Rather, he now focuses on the customer servicing aspect of the business. See id.
17. In addition to losing Navitsky to JOH, Acosta recently lost other associates to JOH. See id. at 23. Of note to this motion, Barbara Brown and Robert Levine had recently left Acosta to join JOH. See id. at 67-68. Consequently, Acosta was worried that JOH was stealing Acosta's clients and associates in an effort to infringe on Acosta's Fresh Foods market space in the Northeastern United States. See id.
18. Shortly after Navitsky tendered his resignation, Acosta came to believe that he was servicing Lactalis in violation of the Non-Solicitation Agreement. See id. at 27.
19. Acosta received a calendar invitation sent to Navitsky's Acosta e-mail indicating that Navitsky was planning to meet with Lactalis to perform a business review "on behalf of Lactalis at the customer Ahold Stop and Shop." Id.
20. Acosta received similar correspondence inadvertently sent to Navitsky's Acosta e-mail indicating that Navitsky was servicing or planning to service Sartori at JOH. See id. at 27-28.
21. Upon leaving Acosta, Navitsky retained some Acosta files and documents. See, e.g., id. at 28-33. Acosta believed that this information was proprietary and confidential. See id. at 28-33, 42.
22. Navitsky informed one of his supervisors at Acosta, Deborah Columbo, and a co-worker, Lisa Podesta, that he was retaining various files. See id. at 218 ("Q. So you let them know that you had retained copies of the documents[?] A. Well yeah. . . .").
23. Navitsky retained these files to help service Acosta clients during his transition from Acosta to JOH.
24. At one point in time, Navitsky may have had Acosta documents on five devices: his MacBook Pro laptop; his external hard drive; the "162 thumb drive;" his JOH laptop computer; and the "460 thumb drive." See Tr. Dec. 7, 2017 ("Tr. II") at 5-8, 26-27, Doc. No. 69. The first four devices (all of them except for the 460 thumb drive) had been wiped or destroyed and no documents are recoverable from those devices. See id. at 5-8.
25. Navitsky Exhibit 36 "is a true, correct, and complete copy of the original file listing report" of the files on the 460 thumb drive. See id. at 6. Acosta Exhibit 206 is substantively identical to Navitsky Exhibit 36. Id.
26. The 460 thumb drive is the only device identified at the hearing that may have once contained Acosta documents that is still in Navitsky's possession. See id. at 1-30.
27. Acosta has not specifically identified any files in the listing report that they believe are Acosta documents.
28. The 460 thumb drive is Navitsky's personal thumb drive. See id. at 19 ("That's my personal or family's personal thumb drive, where we keep documents.").
29. Navitsky connected the thumb drive to his MacBook computer on August 5, 2017, and August 9, 2017, to remove and save personal files that were on the computer. See id. at 19-26.
30. Navitsky desired to retain personal files because, at Acosta's request, he was going to turn over the MacBook. See id. at 20.
31. The 460 thumb drive no longer contains any Acosta documents.
32. Navitsky no longer has any confidential or proprietary Acosta documents in his possession.
Acosta seeks injunctive relief on three grounds: (1) violation of the Non-Solicitation Agreement by Navitsky; (2) tortuous interference with contractual relationships by JOH; and (3) misappropriation of trade secrets by both JOH and Navitsky.
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Napolitano, 85 F.Supp.2d 491, 496 (E.D. Pa. 2000) (citation omitted).
The Third Circuit recently explained that these are to be weighed as factors, not applied like elements. See Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). The Third Circuit also explained that the most "critical factors" are the first two. See id. A plaintiff must first establish that he or she has a "reasonable probability of success on the merits" and that he or she will be "irreparably injured by denial of the relief." See id. at 176-79. Moreover, these first two factors are to be balanced against each other: "How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff's claim on the merits can be while still supporting some preliminary relief." Id. at 179 (quotation marks and citation omitted). Because Acosta fails to establish the first two elements, the court will not address elements three and four.
As for the first two elements, the court will address irreparable injury first. The irreparable injury analysis is similar for each claim asserted by Acosta, whereas the reasonable probability of success analysis varies significantly for each claim. Consequently, it will be more effective for the court to analyze the reasonable probability factor for each claim after already considering the irreparable injury factor.
Acosta argues that it is at risk of irreparable injury because not only has JOH already solicited Lactalis and Sartori, but "other Acosta client relationships are at risk of improper solicitation and misuse of Confidential Information, particularly those clients about whom Navitsky downloaded and stole Confidential Information." Pl.'s Mem. at 24. This assertion is not supported by the evidence in the record.
Lactalis and Sartori have already terminated their relationship with Acosta. Moreover, Navitsky did not solicit them to join JOH. See Tr. I at 106, 135, 220, 239. Regarding the "other Acosta client relationships," Navitsky is not currently soliciting any Acosta clients. See id. at 220. Navitsky now focuses on customer relations; not client relations.
Acosta also contends that under the PUTSA and the DTSA, it is entitled to an injunction to eliminate damages arising from "actual [or] threatened misappropriation" of its trade secrets. Id. Similar to Acosta's arguments surrounding client solicitation, the record does not support Acosta's contention that Navitsky stole trade secrets belonging to Acosta. In fact, as explained below, it is unlikely that Acosta has established the existence of any trade secrets in this case. Consequently, the record does not support the existence of a risk of "actual or threatened misappropriation" of trade secrets.
In sum, the court determines that the harm an injunction would prevent here is incredibly small—likely none at all. However, because Reilly advises courts to consider both of the first two factors, the court will nonetheless address the second factor as well. See 858 F.3d at 179.
A court evaluating a motion for a preliminary injunction should consider whether the movant has shown a "reasonable probability of success on the merits." Napolitano, 85 F. Supp. 2d at 496. A reasonable probability of success on the merits "requires a showing significantly better than negligible but not necessarily more likely than not." Reilly, 858 F.3d at 179. "[M]ore than a mere possibility of relief is required." Id. at 179 n. 3 (citation and quotation marks omitted). The court will address Acosta's likelihood of success on the merits on each of the three grounds Acosta asserts: (1) breach of contract, (2) tortious interference, and (3) misappropriation of trade secrets.
Acosta contends that it has a reasonable probability of success on the merits against Navitsky because Navitsky breached a binding and enforceable contract. See Pl.'s Mem. at 12, 16-18. Specifically, Acosta contends that Navitsky breached the Non-Solicitation Agreement. See id. at 12; Navitsky Ex. 7. In response, Navitsky argues that he is not bound by the terms of the Non-Solicitation Agreement because he never signed it. Def. Joseph Navitsky's Mem. of Law in Opp'n. to Pl.'s Am. Mot. for Injunctive Relief at ECF p. 17 ("Navitsky's Mem."), Doc. No. 47. Rather, he signed only the Orientation Acknowledgement form. See Navitsky Ex. 8. While the Orientation Acknowledgement references the Non-Solicitation Agreement, see id., it also states that
Id. Furthermore, the form provides that Acosta can unilaterally "change, modify, eliminate, or deviate from any policy or procedure at any time. . . ." Id.
In response, Acosta points to the provision of the form that states: "I hereby acknowledge that I have viewed/read the required items listed above, and that I agree to fully comply with each." See id. (emphasis added); Pl.'s Mem. at 17. In light of this language, Acosta argues that the form and the Non-Solicitation Agreement should be read in conjunction to form a single binding contract. See Pl.'s Mem. at 17. Under Florida law, an acknowledgement form can be read in conjunction with another document to create a single contract; however, to accomplish this, the acknowledgement form must show intent to incorporate the other document because "mere reference to another document is not sufficient to incorporate that other document into a contract . . . ." Temple Emanu-El of Greater Fort Lauderdale v. Tremarco Indus., Inc., 705 So.2d 983, 984 (Fla. 4th Dist. Ct. App. 1983).
Acosta argues that this intent is present in the Acknowledgement Form. In addition to their argument that the signee agrees to "fully comply with [the items listed above]," the Non-Solicitation Agreement and the Confidentiality Agreement are the only two items on the list that contain the word "agreement." See Navitsky Ex. 8; see also Pl.'s Mem. at 17. The other items listed in the form use terms like "policy" or "guide." See Pl.'s Mem. at 17. Acosta argues that this distinctive treatment evinces an intent that these two documents—the Non-Solicitation Agreement and Confidentiality Agreement—created contractual agreements between Acosta and Navitsky. See id.
Even in light of this distinction and the "fully comply" language, the court struggles to see how an agreement that states "the information and content contained in these items is designed to serve as a guideline for action, and is not intended to create any contract or binding agreement between Acosta Sales & Marketing and any associate" shows an intent to incorporate the Non-Solicitation Agreement into a single contract. See Tremarco, 705 So. 2d at 984. The agreement versus policy distinction, combined with the "fully comply" language, gives Acosta, at most, a possibility of success on the merits. However, "more than a mere possibility of relief is required." Reilly, 858 F.3d at 179 n. 3 (citation and quotation marks omitted). Not only has Acosta failed to show the requisite likelihood of success on the merits, the "net harm" an injunction would prevent here is incredibly minimal. Consequently, injunctive relief is not warranted on the basis of Acosta's breach of contract claim.
Acosta contends that it has a reasonable probability of success on the merits on its tortious interference claim against JOH. See Pl.'s Mem. at 18-20. Acosta claims that JOH intentionally interfered with contracts it had with Navitsky, Barbara Brown, and Robert Levine. See id. To establish a tortious interference claim in Pennsylvania, a plaintiff must establish:
Synthes (USA) v. Globus Med., Inc., No. 04-cv-1235, 2007 WL 2043184, at *8 (E.D. Pa. July 12, 2007).
On this record, the second element is glaringly absent. Acosta has provided absolutely no evidence that JOH ever acted with a "specific intent" to harm any of these alleged contractual relationships.
Acosta contends that it has a reasonable likelihood of success on the merits of its trade secrets claim. See Pl.'s Mem. at 20-23. Acosta believes that JOH and Navitsky have violated both the PUTSA and DTSA. See id. at 20. To succeed under either statute, the plaintiff must first establish the existence of a trade secret. See, e.g., FCA US LLC, v. Bullock, No. 17-CV-13972, 2018 WL 1064536, at *3 (E.D. Mich. Feb. 26, 2018) (refusing to find likelihood of success on merits because plaintiff likely would not be able to establish existence of trade secret); CentiMark Corp. v. Jacobsen, No. 11-cv-1137, 2011 WL 5977668, at *9 (W.D. Pa. Nov. 29, 2011) (noting first element of trade secrets claim is "the existence of a trade secret" (citation and quotation marks omitted)). Under the PUTSA, a trade secret is:
12 Pa. C.S. § 5302.
The DTSA defines trade secrets as follows:
18 U.S.C. § 1839(3) (alteration to original).
The court finds that it is unlikely that Acosta will be able to show that any of the documents Navitsky took included trade secrets.
Acosta frequently pointed to the "confidential" nature of these documents, but just because a document is confidential does not mean that it is a trade secret. See, e.g., Pl.'s Mem. at 21. For example, Acosta argued that the wholesale product pricing information contained in Navitsky Exhibit 16 is a trade secret because it is confidential. See Tr. I at 251-52, 261-62. Acosta contended that this information is confidential because the client, Sartori, would not want another customer (such as Ahold) to have it. See id. Sartori would not want another customer to have the document because it contains Sartori's wholesale pricing with the customer Wakefern. See Navitsky Ex. 16. However, counsel for Navitsky effectively pointed out during his examination, that the information contained in this document could easily be discovered by anyone with substantial experience in the market. See Tr. I at 263-265. The court cannot conclude that information readily available to anyone with experience in the field, such as the information contained in Exhibit 16, is a trade secret.
In sum, Acosta's chances of proving the existence of a trade secret are slim. And even if Acosta has more than a slim chance of establishing the existence of a trade secret, its chances certainly are not great enough to overcome the minimal harm an injunction would prevent. In balancing the first two factors, because the harm an injunction would prevent is minimal, the likelihood of success on the merits must be stronger. Acosta has not shown a substantial—or even anything more than a minimal—chance of success on the merits on this claim. Consequently, Acosta is not entitled to a preliminary injunction on its trade secrets claim.
In conclusion, Acosta has failed to show the two most critical factors weigh in favor of granting preliminary injunctive relief. The harm an injunction would prevent here is minimal. And Acosta has failed to show that it has a likelihood of success on its (1) breach of contract claim, (2) tortious interference claim, or (3) trade secrets claim. As a result, the court denies the amended motion for a preliminary injunction.
The court will enter a separate order.
