The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MCGRIFF INSURANCE SERVICES,
INC., f/k/a BB&T Insurance
Services, Inc.,
Plaintiff,
v. Case No: 2:21-cv-480-JES-NPM
EUGENE LITTLESTONE, CALEB
LITTLESTONE, DAWN DISCH,
DOUGLAS FIELDS, MICHAEL
FIELDS, and ALLIANT
INSURANCE SERVICES, INC.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion for
Temporary Restraining Order (Doc. #17) filed on July 12, 2021 and
construed as a motion for preliminary injunction. (Doc. #19.)
Defendants Eugene Littlestone (E. Littlestone), Caleb Littlestone
(C. Littlestone), Dawn Disch (Disch)1, Douglas Fields (D. Fields),
Michael Fields (M. Fields)2 and Alliant Insurance Services, Inc.
1 Defendant Disch’s Motion to Dismiss was granted to the
extent that the Amended Complaint was dismissed without prejudice
to filing a Second Amended Complaint. (Doc. #51.) A Second
Motion to Dismiss Plaintiff’s Claims Against Defendant Dawn Disch
(Doc. #64) was filed on September 14, 2021.
2 Defendant M. Fields’ Motion to Sever and Transfer was denied
on August 17, 2021. (Doc. #52.) A Motion for Partial Dismissal
Pursuant to Rule 12(b)(6) (Doc. #65) was filed on September 14,
2021, by the Littlestones, the Fields, and Alliant.
(Alliant) filed a Response to Motion for Temporary Restraining
Order/Preliminary Injunction (Doc. #27) on July 19, 2021. With
leave of Court, plaintiff filed a Reply in Support (Doc. #37) and
defendants filed a Sur-Reply in Opposition (Doc. #40).
I.
“The purpose of the preliminary injunction is to preserve the
positions of the parties as best we can until a trial on the merits
may be held.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir.
2011) (citation omitted). “A preliminary injunction is an
extraordinary and drastic remedy not to be granted unless the
movant clearly establishes ‘the burden of persuasion’ as to each
of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176
(11th Cir. 2000) (en banc) (quoting All Care Nursing Serv., Inc.
v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.
1989)) (citations omitted).
“A preliminary injunction is appropriate if the movant
demonstrates all of these elements: (1) a substantial likelihood
of success on the merits; (2) that the preliminary injunction is
necessary to prevent irreparable injury; (3) that the threatened
injury outweighs the harm the preliminary injunction would cause
the other litigant; and (4) that the preliminary injunction would
not be averse to the public interest. Chavez v. Fla. SP Warden,
742 F.3d 1267, 1271 (11th Cir. 2014) (citing Parker v. State Bd.
of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001)).
A. Substantial Likelihood of Success
“The standard for a preliminary injunction is essentially the
same as for a permanent injunction with the exception that the
plaintiff must show a likelihood of success on the merits rather
than actual success.” Amoco Prod. Co. v. Vill. of Gambell, AK,
480 U.S. 531, 546 n.12 (1987).
1. Second Amended Complaint
In the Second Amended Complaint, plaintiff describes the suit
as a case for damages arising from the Defendants’ blatant
solicitation of employees and customers in violation of several
employment agreements, breach of fiduciary duties owed to
Plaintiff while employed, and theft of Plaintiff’s trade secret
information through which it provides insurance and benefits
services to clients in Florida and elsewhere.” (Doc. #53, ¶ 1.)
The alleges facts are as follows: In November 2009, E.
Littlestone began his employment with McGriff, and he entered into
an Employee Agreement on November 2, 2009. McGriff changed its
name in 2018 to BB&T Insurance Services. During his 11-year
tenure, E. Littlestone worked as an insurance agent. The
Employment Agreement was amended on January 1, 2011 and January 8,
2018, but the confidentiality and non-solicitation provisions
remained intact. (Id., ¶¶ 18-20.)
On April 21, 2008, Disch began her employment with Oswald,
Trippe and Company, Inc. and on July 6, 2008, she executed an
Employment Agreement. (Id., ¶ 23.) On November 2, 2009, the
company was acquired, via merger, by OTCI Acquisition, LLC, which
merged into BB&T Insurance Services, Inc. on that same day.
Disch’s Employment Agreement also contained restrictive covenants.
Both E. Littlestone and Disch started working with Alliant, a
direct competitor. (Id., ¶¶ 24-25, 27.)
Alliant also solicited C. Littlestone, the son of E.
Littlestone. The son does not have a written employment agreement
with McGriff, and therefore E. Littlestone and Disch used him to
indirectly solicit and take customers and employees from McGriff
to Alliant. (Id., ¶ 30.) In June 2021, McGriff came into
possession of information confirming that its clients were
solicited by E. Littlestone and Disch. Plaintiff alleges that the
solicitation is ongoing. (Id., ¶ 31.)
In November 2009, D. Fields began his employment, and he
signed an Employee Agreement on November 2, 2009. For most of his
employment, McGriff was known as BB&T Insurance Services until the
name change in 2018. During his 11-year tenure, D. Fields worked
as an insurance agent. (Id., ¶¶ 32-33.) On January 10, 2018, the
D. Fields Agreement was amended but the confidentiality or non-
solicitation provisions remained intact. (Id., ¶ 34.) M. Fields
began with McGriff, also known as BB&T Insurance Services, in May
2012, at which time he entered into an Employee Agreement. (Id.,
¶¶ 37, 38.) On January 11, 2018, the Employment Agreement was
amended but not as to confidentiality or non-solicitation
provisions. 39.) After departing McGriff, D. Fields and M.
Fields began working for Alliant, and in June 2021, McGriff came
into information confirming that its clients were solicited by D.
Fields and M. Fields. (Id., ¶¶ 43, 46.) In June 2021, McGriff
came into possession of information that D. Fields texted an
employee to solicit them to leave McGriff and join Alliant, and
that D. Fields and M. Fields disclosed their departure to McGriff’s
customers and clients weeks before informing McGriff to take their
business to Alliant. (Id., ¶¶ 47, 48.)
Count I alleges tortious interference with a breached
contract against Alliant and Count V alleges tortious interference
with an advantageous business relationship against E. Littlestone,
C. Littlestone, Disch, D. Fields, M. Fields, and Alliant. Count
VI and Count VII allege a breach of fiduciary duty against E.
Littlestone (Count VI) and D. Fields (Count VII). Count III
alleges a misappropriation of trade secrets in violation of 18
U.S.C. § 1836 and Count IV alleges a misappropriation of trade
secrets under Florida law. Count XII seeks a declaratory judgment
and Count XIII seeks injunctive relief.
Plaintiff focuses on the breach by defendants subject to
restrictive covenants in their Employment Agreements as the basis
for the injunction. As relevant to the preliminary injunction,
Count II alleges a breach of confidentiality provision in each of
the employment agreements of E. Littlestone, Disch, D. Fields, and
M. Fields. Count VIII alleges a breach of the non-solicitation
provision of E. Littlestone, Count IX alleges a breach of the non-
solicitation provision of Disch, Count X alleges the breach of the
non-solicitation provision of D. Fields, and Count XI alleges the
breach of a non-solicitation provision of M. Fields’ employment
agreement.
2. Employment Agreements
As each of the Employment Agreements are different, the Court
will identify the relevant clauses as to each applicable defendant.
Florida law governs all the Employment Agreements. (Doc. #17-2,
pp. 12, 41, 57, 83.) Only E. Littlestone, Disch, D. Fields, and
M. Fields entered into agreements.
E. Littlestone Employment Agreement
At play are the non-solicitation and confidentiality
provisions:
8. Nonsolicitation; Defined Terms.
(a) Nonsolicitation. Employee agrees that,
unless specifically authorized by BB&T
Insurance in writing, Employee will not,
during Employee's employment and for a period
of two years following the date of termination
of Employee's employment with BB&T Insurance
(whatever the reason for the end of the
employment relationship), directly or
indirectly:
(i) Solicit, recruit, encourage or support any
employee of BB&T Insurance who had performed
work for BB&T Insurance within the last year
of Employee's employment with BB&T Insurance,
to leave the employment of BB&T Insurance;
(ii) Solicit, contact, encourage or support,
on Employee's own behalf or on behalf of any
business in competition with BB&T Insurance,
any provider of insurance products to BB&T
Insurance with which Employee has had material
contact within the last year of Employee's
employment whether with BB&T Insurance or the
Agency to discontinue doing or to reduce the
amount of business with BB&T Insurance; or
(iii) Solicit, contact, divert, or call upon
with the intent of doing business with, any
"BB&T Insurance Customer" (as defined below)
on Employee's own behalf or on behalf of any
Competitive Business (as defined below), if
the purpose of the activity is to solicit the
BB&T Insurance Customer for a Competitive
Business (including but not limited to any
Competitive Business started by Employee).
(b) Defined Terms. The following capitalized
terms shall have the following meanings:
(i) "Competitive Business" means an enterprise
that is in the business
of selling, trading, or servicing business
insurance products that are competitive with
those offered by BB&T Insurance during the
term of Employee's employment with BB&T
Insurance.
(ii) "BB&T Insurance Customer" means any
company or individual customer of BB&T
Insurance or the Agency with whom, within the
two-year period ending with the termination of
Employee's employment, Employee had material
contact or who was otherwise contacted or
served by Employee regarding (A) the sale,
trade or service or the attempted sale, trade
or service of business insurance products or
(B) any other business activities of BB&T
Insurance or the Agency.
10. BB&T Insurance Information. Employee
acknowledges and agrees that all sales files,
customer records, customer lists, and reports
used, prepared or collected by Employee are
the property of BB&T Insurance and agrees
that, in the event of the termination of his
employment with BB&T Insurance for any reason,
he will return and make available to BB&T
Insurance prior to the last day of his
employment all sales files, customer records,
customer lists, reports and all other BB&T
Insurance property and materials in his
possession.
11. Confidentiality. For and in consideration
of the terms of this Agreement, Employee
agrees to the following for the protection of
BB&T Insurance and its affiliates:
(a) During the term of Employee's employment
with BB&T Insurance and for a period of three
years following the date of the voluntary or
involuntary termination of Employee's
employment with BB&T Insurance, for whatever
reason, Employee will not, without prior
written approval by BB&T Insurance: (i)
misappropriate; (ii) use for the purpose of
competing with BB&T Insurance, either directly
or indirectly; (iii) disclose to any third
party, either directly or indirectly; or (iv)
aid anyone else in disclosing to any third
party, either directly or indirectly, all or
any part of any "Confidential Information" (as
defined below) to the extent that such
Confidential Information does not rise to the
level of a trade secret under applicable law.
To the extent that said Confidential
Information does rise to the level of a trade
secret under applicable law, then, during the
term of Employee's employment with BB&T
Insurance and thereafter for as long as said
Confidential Information remains a trade
secret under applicable law (or for the
maximum duration provided under such law),
Employee will act in accordance with the terms
of applicable law governing trade secrets.
(b) "Confidential Information" means: (i)
confidential information described in the BB&T
Corporation Code of Ethics and BB&T Insurance
Code of Conduct as may be amended from time-
to-time; (ii) any confidential, proprietary
BB&T Insurance information regarding a
customer of BB&T Insurance, including but not
limited to customer lists, contracts,
information, requirements, billing histories,
marketing methods, needs and products or
services provided by BB&T Insurance to such
customers; (iii) all confidential financial
information concerning BB&T Insurance or its
affiliates, including but not limited to,
financial statements, balance sheets, profit
and loss statements, earnings, commissions and
salaries paid to employees, sales data and
projections, cost analyses and similar
information; (iv) all confidential sources and
methods of supply to BB&T Insurance or its
affiliates, including but not limited to
contracts and similar information; (v) all
confidential plans and projections for
business opportunities for new or developing
business of BB&T Insurance or its affiliates;
and (vi) all confidential information relating
to BB&T Insurance's prices, costs, research
and development activities, service
performance, financial data and operating
results, employee lists, personnel matters and
other confidential or proprietary
information, designs, patents, ideas and trade
secrets.
"Confidential Information" shall not,
however, include any information or materials
to the extent that the same (i) is now in, or
later enters, the public domain through no
fault of Employee; (ii) was known to Employee
prior to the disclosure by BB&T Insurance and
such knowledge can be supported by written
documentation supplied by Employee; or (iii)
was rightfully obtained by Employee after
termination of Employee's employment from a
third party in rightful possession of such
information.
(Doc. #17-2, pp. 7-8, 9.)
Disch Employment Agreement
The relevant provisions are very different from the
Littlestone Agreement:
14. Non-Disclosure of Information Concerning
Practice and Profession.
14.1 Employee recognizes and acknowledges that
Employee will have access to certain
confidential information of the Employer,
including Client lists, as well as to
Employer’s Clients or active prospects of the
Employer and that such information and access
constitutes valuable, special, and unique
property of the Employer. Employee will not at
any time during or after the Employment Term
(regardless of the reason for termination), in
any fashion; form or manner, either directly
or indirectly, utilize, divulge, disclose or
communicate to any person, firm or corporation
any information of any kind, nature, or
description concerning any matters affecting
or relating to Employer’s Business or the
Employer's Clients including, without
limitation, the names of any of its Clients or
active prospects, the names and nature of
referring businesses and Clients, the fees or
commissions earned for Employer's services, or
any other information concerning the
Employer's Business without regard to whether
any or all of the foregoing matters otherwise
would be deemed confidential, material, or
important. The parties hereby stipulate that,
as between them, the foregoing matters are
important, material, and confidential and
gravely affect the effective and successful
conduct of the Employer's Business and the
Employers goodwill and that any breach of the
terms of this Section is a material breach of
this Agreement. Employee acknowledges that the
restrictions contained in this Section are a
reasonable and necessary protection of the
legitimate business interests of Employer,
that any violation of these restrictions would
cause substantial and irreparable injury to
Employer, and that Employer would not have
entered into this Agreement with Employee
without receiving ·the additional
consideration offered by Employee in binding
Employee to these restrictions. Employee
further acknowledges that irreparable injury
would result if Employee were to breach the
restrictions of this Section by virtue of the
limited number of referral relationships
available, which the Employer has developed at
great effort and expense and will by virtue of
this employment make available to Employee.
In the event of any violation of these
restrictions. Employer shall be entitled to
preliminary and permanent injunctive relief.
As used herein an “active prospect” shall mean
any prospective Client who was solicited or
marketed by Employee or Employer (or any
Affiliate of the Employer) at any time within
one (1) year prior to the effective date of
Employee's termination of employment under
this Agreement, for whatever reason.
14.2 Employee acknowledges that all files,
Client records, lists, books, records,
literature, products, and other materials
owned by Employer or used by it in connection
with the conduct of Employer's Business shall
at all times remain the property of Employer
and that, upon termination of employment
hereunder, irrespective of the time, manner or
cause of such termination, Employee will
surrender to Employer all such files, Client
records, lists, books, records, literature,
products, and other materials. ·
15. Restrictive Covenants.
15.1 · Employee agrees that Employee will,
during the term of this Agreement, render
services only for Employer. Employee
recognizes and agrees that:
15.1.1 Employee is being employed in a
position where Employee will gain specialized
knowledge and experience and will establish
personal relationships with the Employer's
Clients and other employees of Employer; ·
15.1.2 If Employee were to terminate
Employee's employment with Employer or if the
Employer were to terminate the employment of
Employee and Employee then commenced servicing
Clients for their insurance needs, either as
a sole proprietor, partner, stockholder or
employee of another person, partnership or
corporation engaged in business competitive
with the Employer's Business, the indirect or
direct competition of Employee with Employer
for the Employers Clients and active prospects
would be extremely detrimental and result in
irreparable injury to Employer; and
15.1.3 The detriment and irreparable injury to
the Employer’s Business as a result of
competition from Employee for the Employer’s
Clients will result, in addition to other
applicable reasons, because, while working for
Employer, Employee will be in a capacity to
know and have access to all of the Employer's
Client information, Employer's referral
patterns, and the Employer's Clients' and
active· prospects names and addresses.
15.1.4 Employee acknowledges that discussions
with Employer regarding employment have
included as a pre-condition the explicit
agreement that a restrictive covenant is a
reasonable and necessary provision of the
employment relationship due to the referral
nature of Employer’s Business and its valuable
relationship patterns with its Clients.
Employee also recognizes, acknowledges, and
agrees that the value of introductions to
Clients and active prospects of Employer as
well as the stature and professional standing
conferred by virtue of being an employee of
Employer is of great value and would not be
available to Employee through a means other
than this relationship. Employee also
acknowledges and agrees that to compete with
Employer for the Employer's Clients would
result in irreparable injury to Employer’s
Business.
15.2 Employee, as an inducement to Employer to
employ Employee upon the considerations set
forth in this Agreement, hereby promises and
agrees that in the event of termination of
this Agreement for any reason, or in the event
Employee, should leave the employ of Employer
for any reason whatsoever, including, but not
limited to, Employee's disability, or
termination by Employer, with or without
cause, it is agreed that Employee shall not
within two (2) years of the termination of
Employee's employment hereunder, directly or
indirectly, for Employee or in connection with
another person, firm or corporation, either as
an individual, employee, agent, stockholder,
partner or otherwise, with or without
compensation, solicit, service, market,
divert, accept, underwrite or handle any
insurance business for the Employer's Clients
then carried on the books of Employer or any
Affiliate of Employer.
15.3 For a period of two (2) years after the
termination of Employee’s employment with
Employer for any reason, Employee shall not,
directly or indirectly, either on Employee's
own account or as a partner or joint venturer
or as an employee, broker, agent, producer,
consultant, or salesperson for any other
person, firm of corporation or otherwise, with
or without compensation solicit, service,
market, divert, accept, underwrite· or handle
any insurance business for active prospects of
Employer or any Affiliate of Employer.
15.4 For a period of two (2) years after the
termination of Employee's employment with
Employer for any reason, Employee shall not
induce any person employed by Employer or any
Affiliate of the Employer to leave employment
with the Employer or any Affiliate of
Employer.
15.5 If Employee violates this restrictive
covenant and Employer brings legal action for
injunctive or other relief, Employer shall
not, as a result of the time involved in
obtaining the relief, be deprived of the
benefit of the full period of the restrictive
covenant. Accordingly, the restrictive
covenant shall be deemed to have the duration
specified herein, computed from the date the
relief is granted but reduced by the time
between the period when the restriction began
to run and the date of the first violation of
the covenant by Employee.
15.6 If it shall be determined that the
duration or any restriction contained in this
Section is unenforceable, it is the intention
of the parties that the restrictive covenant
set forth herein shall be deemed amended to
the extent required to render it valid and
enforceable to the fullest extent permitted by
law, such amendment to apply only with respect
to the operation of this Section.
15.7 As an employee of Employer, Employee may,
with Employers approval, have access to
referral lists, Client lists, Client records,
Client files, files of active prospects, trade
secrets, and other confidential information of
Employer. Moreover, Employee’s continued
employment will be instrumental to the
continuity and development of Employer's
Business. Therefore, Employee acknowledges
that notwithstanding the fact that this
Agreement is terminable at will upon notice,
the restrictions contained herein are a
reasonable and necessary protection of the
legitimate business interests of Employer,
that any violation of these restrictions would
cause irreparable injury to Employer, and that
Employer would not have entered into this
Agreement with Employee without receiving the
additional consideration offered by Employee
in binding Employee to these restrictions. In
the event of any violation of these
restrictions. Employer shall be entitled to
preliminary and permanent injunctive relief,
in addition to any other remedy, including
attorney's fees to Employer in any litigation
to enforce this Section.
(Doc. #17-2, pp. 37-40.)
D. Fields Employment Agreement
The Douglas Fields Employment Agreement is more like the
Littlestone Agreement with some additional language:
8. Nonsolicitation; Defined Terms.
(a) Nonsolicitation. Employee agrees that,
unless specifically authorized by BB&T
Insurance in writing, Employee will not,
during Employee's employment and for a period
of two years following the date of termination
of Employee's employment with BB&T Insurance
(whatever the reason for the end of the
employment relationship), directly or
indirectly:
(i) Solicit, recruit, encourage or support any
employee of BB&T Insurance who had performed·
work for BB&T Insurance within the last year
of Employee's employment with BB&T Insurance
to leave the employment of BB&T Insurance;
(ii) Solicit, contact, encourage or support,
on Employee's own behalf or on behalf of any
business in competition with BB&T Insurance,
any provider of insurance products to BB&T
Insurance with which Employee has had material
contact within the last year of Employee's
employment whether with BB&T Insurance or the
Agency to discontinue doing or to reduce the
amount of business with BB&T Insurance; or
(iii) Solicit, contact, divert, or call upon
with the intent of doing business with, any
"BB&T Insurance Customer" (as defined below)
on Employee's own behalf or on behalf of any
Competitive Business (as defined below), if
the purpose of the activity is to solicit the
BB&T Insurance Customer for a Competitive
Business (including but not limited to any
Competitive Business started by Employee).
(b) Defined Terms. The following capitalized
terms shall have the following meanings:
(i) "Competitive Activity" means the sale,
trade or service or attempted sale, trade or
service of business insurance products, which
services and activities Employee acknowledges
are identical or substantially similar to
those services and activities performed by
Employee on behalf of BB&T Insurance.
(ii) "Competitive Business" means an
enterprise that is in the business of selling,
trading, or servicing business insurance
products that are competitive with those
offered by BB&T Insurance during the term of
Employee's employment with BB&T Insurance.
(iii) "BB&T Insurance Customer" means any
company or individual customer of BB&T
Insurance or the Agency with whom, within the
two-year period ending with the termination of
Employee's employment, Employee had material
contact or who was otherwise contacted or
served by Employee regarding (A) the sale,
trade or service or the attempted sale, trade
or service of business insurance products or
(B) any other business activities of BB&T
Insurance or the Agency.
(iv) "Restricted Territory" means [counties3
in which Employee worked and wrote business,]
County, FL. and all contiguous counties
thereto. Employee acknowledges that the
Restricted Territory encompasses that area in
which BB&T Insurance-Oswald Trippe and
Company, the Agency and Employee operated BB&T
Insurance-Oswald Trippe and Company's and the
Agency's business and provided services.
9. Noncompetition. In connection with the
employment of Employee by BB&T Insurance, the
3 Broward is hand-written above this line.
payment of compensation to Employee, the Term
and any Renewal Period of this Agreement, the
Separation Compensation, and the acquisition
of the Agency's business by BB&T Insurance,
Employee agrees that, unless specifically
authorized by BB&T Insurance in writing,
Employee will not, for a period of two years
following the date of termination of
Employee's employment with BB&T Insurance
(whatever the reason for the end of the
employment relationship), directly or
indirectly, engage in any "Competitive
Activity" (as defined above) within the
"Restricted Territory" (as defined above) in
a capacity identical or similar to that in
which Employee worked for BB&T Insurance,
provided, however, that the provisions of the
Section 9 shall terminate and cease to be of
any effect on November 1, 2014.
. . . .
12. Confidentiality. For and in consideration
of the terms of this Agreement, Employee
agrees to the following for the protection of
BB&T Insurance and its affiliates:
(a) During the term of Employee's employment
with BB&T Insurance and for a period of three
years following the date of the voluntary or
involuntary termination of Employee's
employment with BB&T Insurance, for whatever
reason, Employee will not, without prior
written approval by BB&T Insurance: (i)
misappropriate; (ii) use for the purpose of
competing with BB&T Insurance, either directly
or indirectly; (iii) disclose to any third
party, either directly or indirectly; or (iv)
aid anyone else in disclosing to any third
party, either directly or indirectly, all or
any part of any "Confidential Information" (as
defined below) to the extent that such
Confidential Information does not rise to the
level of a trade secret under applicable law.
To the extent that said Confidential
Information does rise to the level of a trade
secret under applicable law, then, during the
term of Employee's employment with BB&T
Insurance and thereafter for as long as said
Confidential Information remains a trade
secret under applicable law (or for the
maximum duration provided under such law),
Employee will act in accordance with the terms
of applicable law governing trade secrets.
(b) "Confidential Information" means: (i)
confidential information described in the BB&T
Corporation Code of Ethics and BB&T Insurance
Code of Conduct as may be amended from time-
to-time; (ii) any confidential, proprietary
BB&T Insurance information regarding a
customer of BB&T Insurance, including but not
limited to customer lists, contracts,
information, requirements, billing histories,
marketing methods, needs and products or
services provided by BB&T Insurance to such
customers; (iii) all confidential financial
information concerning BB&T Insurance or its
affiliates, including but not limited to,
financial statements, balance sheets, profit
and loss statements, earnings, commissions and
salaries paid to employees, sales data and
projections, cost analyses and similar
information; (iv) all confidential sources and
methods of supply to BB&T Insurance or its
affiliates, including but not limited to
contracts and similar information; (v) all
confidential plans and projections for
business opportunities for new or developing
business of BB&T Insurance or its affiliates;
and (vi) all confidential information relating
to BB&T Insurance's prices, costs, research
and development activities, service
performance, financial data and operating
results, employee lists, personnel matters and
other confidential or proprietary
information, designs, patents, ideas and trade
secrets.
"Confidential Information" shall not,
however, include any information or materials
to the extent that the same (i) is now in, or
later enters, the public domain through no
fault of Employee; (ii) was known to Employee
prior to the disclosure by BB&T Insurance and
such knowledge can be supported by written
documentation supplied by Employee; or (iii)
was rightfully obtained by Employee after
termination of Employee's employment from a
third party in rightful possession of such
information.
(Doc. #17-2, pp. 52-53, 54-55.)
M. Fields Employment Agreement
Again, the terms are very similar to the Agreements for D.
Fields and Littestone, but not identical.
8. Nonsolicitation; Defined Terms.
(a) Nonsolicitation. Employee agrees that,
unless specifically authorized by BB&T
Insurance in writing, Employee will not,
during Employee's employment and for a period
of two years following the date of termination
of Employee's employment with BB&T Insurance
(whatever the reason for the end of the
employment relationship), directly or
indirectly:
(i) Solicit, recruit, encourage or support any
employee of BB&T Insurance who had performed
work for BB&T Insurance within the last year
of Employee's employment with BB&T Insurance
to leave the employment of BB&T Insurance;
(ii) Solicit, contact, encourage or support,
on Employee's own behalf or on behalf of any
business in competition with BB&T Insurance,
any provider of insurance products to BB&T
Insurance with which Employee has had material
contact within the last year of Employee's
employment with BB&T Insurance to discontinue
doing or to reduce the amount of business with
BB&T Insurance;
(iii) Solicit, contact, divert, or call upon
with the intent of doing business with, any
"BB&T Insurance Customer" (as defined below)
on Employee's own behalf or on behalf of any
Competitive Business (as defined below), if
the purpose of the activity is to solicit the
BB&T Insurance Customer for a Competitive
Business (including but not limited to any
Competitive Business started by Employee); or
(iv) Accept, on Employee's own behalf or on
behalf of any "Competitive Business" (as
defined below), an offer/opportunity from any
"BB&T Insurance Customer" (as defined below)
to sell, trade or service business insurance
products that are competitive with those
offered by BB&T Insurance during the term of
Employee's employment with BB&T Insurance.
(b) Defined Terms. The following capitalized
terms shall have the following meanings:
(i) "Competitive Business" means an enterprise
that is in the business of selling, trading,
or servicing business insurance products that
are competitive with those offered by BB&T
Insurance during the term of Employee's
employment with BB&T Insurance.
(ii) "BB&T Insurance Customer" means any
company or individual customer of BB&T
Insurance with whom, within the two-year
period ending with the termination of
Employee's employment, Employee had material
contact or who was otherwise contacted or
served by Employee regarding (A) the sale,
trade or service or the attempted sale, trade
or service of business insurance products or
(B) any other business activities of BB&T
Insurance.
9. Employee Acknowledgments.
(a) Employee agrees that during the term of
his employment with BB&T Insurance, Employee
will not engage in the sale, trade or
servicing or attempted sale, trade or
servicing of business insurance individually
or with any company or individual other than
BB&T Insurance.
(b) Employee acknowledges that the
restrictions placed upon Employee by Sections
8 and 9 (a) of this Agreement are reasonable
given the nature of Employee's position with
BB&T Insurance, the area in which BB&T
Insurance markets its products and services,
and the consideration provided by BB&T
Insurance to Employee. Specifically, Employee
acknowledges that the length of the
restrictive covenants given above is
reasonable and that the definitions of "BB&T
Insurance Customer," and "Competitive
Business" are reasonable. Employee
acknowledges that these restrictions will not
cause an unfair burden on Employee.
(c) Employee acknowledges that all of the
provisions of Sections 8, 9 (a), and 11 of
this Agreement are fair and necessary to
protect the interests of BB&T Insurance and to
prevent Employee from unfairly taking
advantage of contacts established during
employment. Accordingly, Employee agrees not
to contest the validity or enforceability of
such sections of this Agreement and agrees
that if any court should hold any provision of
such sections or this Agreement to be
unenforceable, the remaining provisions will
be enforceable. Further, if any provision or
subsection is held to be over broad as
written, Employee agrees that a court should
modify said provision or subsection in order
to make it enforceable and view the above
provisions and subsections as separable and
uphold those separable provisions and
subsections deemed to be reasonable. Sections
8 and 11 shall survive the termination of this
Agreement.
10. BB&T Insurance Information. Employee
acknowledges and agrees that all sales files,
customer records, customer lists, and reports
used, prepared or collected by Employee are
the property of BB&T Insurance and agrees
that, in the event of the termination of his
employment with BB&T Insurance for any reason,
he will return and make available to BB&T
Insurance prior to the last day of his
employment all sales files, customer records,
customer lists, reports and all other BB&T
Insurance property and materials in his
possession.
11. Confidentiality. For and in consideration
of the terms of this Agreement, Employee
agrees to the following for the protection of
BB&T Insurance and its affiliates:
(a) During the term of Employee's employment
with BB&T Insurance and for a period of three
years following the date of the voluntary or
involuntary termination of Employee's
employment with BB&T Insurance, for whatever
reason, Employee will not, without prior
written approval by BB&T Insurance: (i)
misappropriate; (ii) use for the purpose of
competing with BB&T Insurance, either directly
or indirectly; (iii) disclose to any third
party, either directly or indirectly; or (iv)
aid anyone else in disclosing to any third
party, either directly or indirectly, all or
any part of any "Confidential Information" (as
defined below) to the extent that such
Confidential Information does not rise to the
level of a trade secret under applicable law.
To the extent that said Confidential
Information does rise to the level of a trade
secret under applicable law, then, during the
term of Employee's employment with BB&T
Insurance and thereafter for as long as said
Confidential Information remains a trade
secret under applicable law (or for the
maximum duration provided under such law),
Employee will act in accordance with the terms
of applicable law governing trade secrets.
(b) "Confidential Information" means: (i)
confidential information described in the BB&T
Corporation Code of Ethics and BB&T Insurance
Code of Conduct as may be amended from time-
to-time; (ii) any confidential, proprietary
BB&T Insurance information regarding a
customer of BB&T Insurance, including but not
limited to customer lists, contracts,
information, requirements, billing histories,
marketing methods, needs and products or
services provided by BB&T Insurance to such
customers; (iii) all confidential financial
information concerning BB&T Insurance or its
affiliates, including but not limited to,
financial statements, balance sheets, profit
and loss statements, earnings, commissions and
salaries paid to employees, sales data and
projections, cost analyses and similar
information; (iv) all confidential sources and
methods of supply to BB&T Insurance or its
affiliates, including but not limited to
contracts and similar information; (v) all
confidential plans and projections for
business opportunities for new or developing
business of BB&T Insurance or its affiliates,
including information pertaining to potential
customers or prospects; and (vi) all
confidential information relating to BB&T
Insurance's prices, costs, research and
development activities, service performance,
financial data and operating results, employee
lists, personnel matters and other
confidential or proprietary information,
designs, patents, ideas and trade secrets.
"Confidential Information" shall not,
however, include any information or materials
to the extent that the same (i) is now in, or
later enters, the public domain through no
fault of Employee; (ii) was known to Employee
prior to the disclosure by BB&T Insurance and
such knowledge can be supported by written
documentation supplied by Employee; or (iii)
was rightfully obtained by Employee after
termination of Employee's employment from a
third party in rightful possession of such
information.
(Doc. #17-2, pp. 78-80.)
3. Breach
“For a breach of contract claim, Florida law requires the
plaintiff to plead and establish: (1) the existence of a contract;
(2) a material breach of that contract; and (3) damages resulting
from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272
(11th Cir. 2009). To enforce restrictive covenants, plaintiff
must demonstrate that the restrictive covenants are enforceable,
and defeat each affirmative defense. Lucky Cousins Trucking, Inc.
v. QC Energy Res. Texas, LLC, 223 F. Supp. 3d 1221, 1225 (M.D.
Fla. 2016) (citations omitted). “[E]nforcement of contracts that
restrict or prohibit competition during or after the term of
restrictive covenants, so long as such contracts are reasonable in
time, area, and line of business, is not prohibited.” Fla. Stat.
§ 542.335(1). “A violation of an enforceable restrictive covenant
creates a presumption of irreparable injury.” Env't Servs., Inc.
v. Carter, 9 So. 3d 1258, 1262 (Fla. 5th DCA 2009) (citation
omitted).
4. Plaintiff’s Declarations
In support of the request for an injunction, Gray G. Davis,
Senior Vice President at McGriff since November 2009, filed a
Declaration (Doc. #17-1) stating that on June 1, 2021 and June 14,
2021, several top insurance agents voluntarily resigned from
McGriff with no prior notice and joined Alliant, a direct
competitor. The employees who left on June 1, 2021, are E.
Littlestone, C. Littlestone, and Disch, and D. Fields, and his son
M. Fields left on June 14, 2021. When E. Littlestone resigned,
Gray Davis called him and during the call “he shared with [Davis]
that he had been in negotiations with Alliant for 8 months and
made his decision to leave McGriff 6 months prior to his
resignation.” (Id., ¶ 3.) Since their resignations, the 4
employees with Agreements containing restrictive covenants have
recruited 16 other employees who resigned without notice for
employment at Alliant. (Id., ¶ 20.) Also, as of the date of the
Declaration, 130 clients of McGriff who were serviced by
Littlestone, Disch, D. Fields and/or M. Fields have signed Agent
of Record letters indicating that they have agreed to have Alliant
serve as their insurance broker. Mr. Davis infers solicitation
because of the compressed time period and states that McGriff
continue to receive more letters. (Id., ¶ 21.)
The Declaration of Jackie Diaz, a current Account Executive
at McGriff since 2016, states that D. Fields was trying to recruit
her even before he resigned and that he had “already negotiated
[her] salary and bonus with Alliant.” (Doc. #17-3, ¶ 3.) D.
Fields kept up the calls and Diaz stopped answering his calls.
(Id.) The week of June 14, 2021, when D. Fields resigned, Diaz
received a card, flowers, and some computer equipment from Alliant,
and thereafter a call about onboarding. (Id., ¶ 4.)
The Declaration of Kelly Matacena, a Business Insurance Agent
at McGriff since 2017 was assigned some of M. Fields’ former
clients. One of the clients is a luxury vacation resort who stated
that the company had signed a letter sent to them from M. Fields
indicating they wanted Alliant to serve as the new insurance
broker. The client was under the impression that it was another
name change. Matacena clarified that it was not, and that M.
Fields had joined another company. (Doc. #17-4, ¶ 3.) The client
rescinded the letter to stay with McGriff. (Id., ¶ 4.)
The Declaration of Bill Fairnington III, a Family Risk Manager
and Assistant Vice President at McGriff since November 2009,
provides that he was assigned some of D. Fields’ former clients.
One of the clients is an individual. On June 26, 2021, the client
forwarded an email to D. Fields at his old McGriff email address
asking, “What’s this?” about a Broker of Record form and DocuSign
request that he received from Alliant. (Doc. #17-5, ¶ 3.)
Fairnington had access to the email account and reached out to the
client. The client stated that he had no plans to leave McGriff
and he was directed to delete the email. (Id., ¶ 4.) Since his
resignation, D. Fields has called several times telling
Fairnington that he is going to take all his former clients “and
will stop at nothing to take them back.” (Id., ¶ 5.)
The Declaration of Eric Woodling, a Regional Sales Director
at McGriff since June 2020, provides that he drove from the Coral
Gables office to meet with E. Littlestone and C. Littlestone in
the Fort Myers office on June 1, 2021, the date they resigned. E.
Littlestone was reminded about the terms of his Employment
Agreement, and he responded that it was not his intention to
violate the terms. (Doc. #17-7, ¶ 3.) Within a few days, several
Account Managers and Client Service Agents that supported E.
Littlestone resigned, and by the end of the following week, his
entire team led by Disch all resigned. (Id., ¶ 4.) Two weeks
alter D. Fields and M. Fields resigned and several of their support
staff resigned to work for Alliant. (Id., ¶ 5.) While monitoring
the E. Littlestone McGriff email account, Woodling learned that
both Littlestones were soliciting McGriff clients. It is inferred
that E. Littlestone and Disch were indirectly soliciting and taking
customers and employees through C. Littlestone who does not have
an employment agreement. (Id., ¶ 7.) According to McGriff’s
agents who were assigned clients of D. Fields, D. Fields was
calling McGriff’s clients up to two weeks before he resigned to
let them know he was leaving to join Alliant. (Id., ¶ 9.)
5. Defendant’s Declarations
A Declaration is provided from E. Littlestone stating that he
did not recruit, solicit, or encourage any members of his former
team at McGriff to join Alliant. (Doc. #27-1, ¶ 5.) E.
Littlestone also denied taking any of the identified confidential
information. E. Littlestone does have the telephone numbers of
certain customer representatives considered to be close friends on
his personal phone. (Id., ¶ 6.) E. Littlestone denies that he
told Mr. Davis that he decided to joint Alliant 6 months before
his resignation, and further that it is not untrue. (Id., ¶ 7.)
Since leaving McGriff, multiple property managers and association
board members he worked with reached out to him asking how to
continue working with him without initial contact from him. (Id.,
¶ 9.) The property managers and association board members have
expressed concerns regarding McGriff’s ability to handle their
clients’ insurance coverage needs. E. Littlestone states that he
receives as many as 5 calls each day from McGriff clients who used
to work with him because the clients can’t get McGriff to return
their calls or emails or send them their certificates of insurance.
(Id., ¶ 10.)
In his Declaration, D. Fields states that he did not retain
any documents or information from McGriff, including confidential
documents or information. (Doc. #27-2, ¶ 10.) On June 22, 2021,
a former customer reached out to D. Fields regarding a premium
payment that was set to be withdrawn from his account. D. Fields
forwarded the email to a current McGriff employee so she could
service the account. Despite this attempt to assist, McGriff’s
attorney demanded that he refrain from contacting its employees.
(Id., ¶ 11.) On July 13, 2021, D. Fields received another email
from a client informing him that Fairnington III called him to
state D. Fields was subject to a non-compete agreement. (Id., ¶
12.) D. Fields denies telling Fairnington that he would take all
his clients back. (Id., ¶ 15.) D. Fields denies that he ever
told Diaz that he had negotiated a salary on her behalf with
Alliant, or that he had been recruiting her. (Id., ¶¶ 19-20.)
The Declaration of Catherine Pipitone, the Senior Vice
President and Senior Manager of Operations for Alliant discusses
a June 16, 2021 email from Alliant Recruitment Team Lead Pam Tabert
informing her that Diaz had applied for a position. (Doc. #27-3,
¶ 4.) The next day, Diaz returned an executed offer letter
agreeing to start on June 21, 2021, so “as is customary with new
hires for Alliant”, Diaz was sent a welcome package including a
laptop, docking station, 2 monitors, a keyboard and mouse, and an
iPhone. (Id., ¶¶ 6-7.) After accepting a position, Diaz stopped
communicating with Alliant and returned all the onboarding
equipment Alliant had sent and it became “apparent” she would not
be joining Alliant. (Id., ¶ 8.) Pipitone states that D. Fields
had no role in negotiating Diaz’s salary and benefits. (Id., ¶
10.)
The Declaration of M. Fields responds to the Declaration of
Kelly Matacena, a McGriff insurance agent. (Doc. #27-4, ¶ 4.) M.
Fields states that the former luxury vacation resort customer
contacted him about work he was doing, and when M. Fields stated
he was no longer working for McGriff, it was the client who asked
if they could continue doing business. (Id., ¶ 5.) M. Fields
told the customer he could not solicit his business, and the
customer understood that he now worked for a different company.
The customer ended up staying with McGriff. (Id., ¶¶ 6-7.) M.
Fields provided a copy of the Matacena Declaration to a customer
representative who stated it was not accurate. (Id., ¶¶ 9-10.)
The Declaration of Robert Soriana, the President of the Board
for a condominium association in Punta Gorda, Florida, is written
as a longtime friend and client of E. Littlestone. (Doc. #27-5,
¶ 3.) Soriana learned that E. Littlestone was no longer employed
by McGriff so he called E. Littlestone who informed him that he
was subject to a non-solicitation agreement and could not solicit
Soriana’s business. Soriana made it clear that he trusted E.
Littlestone and wished to continue with him regardless of the
employer. (Id., ¶¶ 5-6.) Soriana disputes the statements by
Woodling and denies sending the emails in response to a
solicitation but that he sent them so that he could continue with
the Littlestones. (Id., ¶ 7.)
The Declaration of Donald Roedding is also on behalf of E.
Littlestone as he has worked with him for over 20 years. (Doc.
#27-6, ¶ 4.) Roedding handles insurance needs for the
associations he manages as the association manager for a management
company that provides services to over 215 condominium and
homeowners associations. (Id., ¶ 2.) After an employee of
McGriff emailed Roedding to inform him that E. Littlestone had
left the company, Roedding called E. Littlestone directly to ask
what happened. E. Littlestone informed Roedding that he had left
McGriff and was bound by a non-solicitation agreement and could
not solicit business. (Id., ¶ 5.) Roedding states that E.
Littlestone did not ask him to solicit business on his behalf, or
on behalf of Alliant, for any of the associations he worked with
on behalf of McGriff. (Id., ¶ 6.) When Roedding would meet
boards with policies up for renewal, “without any direction or
encouragement from Mr. Littlestone,” he advised them they could
continue with McGriff or start doing business with Alliant where
the Littlestones now work. Each board chose Alliant, and when
they did so Roedding provided the contact information. (Id., ¶
8.) Roedding is not aware of E. Littlestone asking any of the
associations to stop doing business with McGriff. (Id., ¶ 9.)
Several short and nearly identical Declarations are attached
from Kayla Caride, Kristin Coke, Isabel Cuadrado, Myra Irizarry,
Kate Gilbert, Alisa Josephs, Lesvia Paz, Rebecca Rodriguez, Jodee
Ransom, Wanda Webb, Deaven Hogue, and Bianca Palomo who all left
employment with McGriff to work for Alliant. Declarants state
that neither E. Littlestone, nor D. Fields, nor M. Fields recruited
or solicited them to join Alliant and that the decision was made
on their own. (Docs. #27-7-#27-18, ¶ 3.) Ransom also denies that
C. Littlestone recruited or solicited her. (Doc. #27-15, ¶ 3.)
6. Plaintiff’s Reply Declarations
In reply, plaintiff filed Second Declarations to respond to
defendants’ declarations. The Second Declaration of Jackie Diaz
responds to the Declaration of D. Fields and denies his denials as
false. Diaz includes screen shots of calls made reflecting calls
received after D. Fields resigned. Diaz felt pressure to leave
too and followed D. Fields to Alliant. Diaz, in response to the
Declaration of Pipitone, states that she did complete an
application but realized her mistake and decided to stay at McGriff
and resign. (Doc. #37-1.)
The Second Declaration of Gray G. Davis states that
defendants’ position that they did not proactively reach out or
solicit any McGriff clients is false. Davis states that there
have been at least 8 clients that have been signed letters to
switch to Alliant, but they later rescinded. Davis infers that
for the clients to have signed the letter, it would have been
received from Alliant and “[t]his necessarily means that Alliant
had the contact information for these clients, which they obtained
from the Fields or Littlestones.” (Doc. #37-3.)
The Declaration of Scott Gregory, an Agent and the Vice
President of McGriff, states that he received an email that
attached a voicemail received from Ransom at Alliant for a renewal
that stated “I’m not sure if you have been in contact with Mr.
Littlestone as of yet, but I was just calling to collect some
information so we could quote up a proposal for you. . . .” An
email address at Alliant was provided. (Doc. #37-4.)
7. Defendant’s Surreply Declarations
Not to be outdone, defendants filed a Second Declaration of
Douglas Fields in response to the second declaration of Diaz
regarding the calls made in the last few months before he left.
D. Fields states that the calls were in the ordinary course of
business on behalf of McGriff because most McGriff employees were
working from home and exclusively using cell phones. After his
resignation, D. Fields learned that Diaz applied to Alliant and
that she would be assigned to his team. D. Fields called several
times to discuss her starting work at Alliant, but he did not
solicit or recruit Diaz in any of the phone calls. D. Fields
learned on July 20, 2021, that McGriff is still using his name and
likeness to market products after his resignation. (Doc. #40-1.)
The Second Declaration of Jodee Ransom responds that she has
no agreement with McGriff that would prevent her from competing
against or soliciting from McGriff. Ransom states that she did
not take any confidential information when she left. In response
to the declaration of Gregory, Ransom states that she starts
working on insurance renewals for condominium associations
approximately 90 days prior to renewal being due, and she recalled
the association was due from experience. “Without any direction
from or involvement of Eugene Littlestone,” Ransom looked up the
public information for the client to contact them. (Doc. #40-2.)
The Second Declaration of Eugene Littlestone states that may
property managers contact him about continuing coverage, but that
he did not solicit the customers. E. Littlestone states that
McGriff is interfering by refusing to release clients contrary to
their wishes. “Only after the property manager threatened to
report McGriff to the Office of Insurance Regulation did McGriff
finally release the association to change its broker of record to
Alliant prior to the renewal.” E. Littlestone notes that the 8
customers who executed broker of record letters have not been
identified by McGriff but that some stayed with McGriff due to the
timing of a renewal deadline. (Doc. #40-3.)
8. Conclusion
“[W]here material facts are not in dispute, or where facts in
dispute are not material to the preliminary injunction sought,
district courts generally need not hold an evidentiary hearing.”
McDonald's Corp. v. Robertson, 147 F.3d 1301, 1313 (11th Cir.
1998).
“[W]here facts are bitterly contested and
credibility determinations must be made to
decide whether injunctive relief should
issue,” district courts must hold an
evidentiary hearing on the propriety of
injunctive relief. McDonald's Corp. v.
Robertson, 147 F.3d 1301, 1312 (11th Cir.
1998) (citing All Care Nursing Serv. , Inc. v.
Bethesda Mem’l Hosp., Inc., 887 F.2d 1535,
1538 (11th Cir. 1989)] (further citation
omitted). At that hearing, the Court sits as
both factfinder and assessor of credibility.
See Four Seasons Hotels and Resorts, B.V. v.
Consorcio Barr, S.A., 320 F.3d 1205, 1211
(11th Cir. 2003).
Fla. Atl. Univ. Bd. of Trustees v. Parsont, 465 F. Supp. 3d 1279,
1288–89 (S.D. Fla. 2020). The Court finds that while this is a
case of ‘bitterly contested’ facts, an evidentiary hearing is not
required because substantial likelihood of success has not been
shown.
For example, D. Fields forwarded an email from a former client
to a current McGriff employee so she could service the account.
Further, Kayla Caride, Kristin Coke, Isabel Cuadrado, Myra
Irizarry, Kate Gilbert, Alisa Josephs, Lesvia Paz, Rebecca
Rodriguez, Jodee Ransom, Wanda Webb, Deaven Hogue, and Bianca
Palomo all filed declarations stating that they left McGriff for
employment at Alliant without solicitation. Robert Soriana, the
President of the Board for a condominium association in Punta
Gorda, Florida, called E. Littlestone who informed him that he was
subject to a non-solicitation agreement and could not solicit
Soriana’s business. The fact that Soriana actively chose to
proceed with Alliant cannot be attributed to E. Littlestone as
solicitation. Donald Roedding, an association manager for a
management company that provides services to over 215 condominium
and homeowners associations, called E. Littlestone directly to ask
what happened and E. Littlestone informed Roedding that he had
left McGriff and was bound by a non-solicitation agreement and
could not solicit business. Roedding actively encouraged the
associations under his management on his own and without
solicitation for them to consider staying with E. Littlestone at
Alliant.
The Court finds that plaintiff has failed to meet the
extraordinary burden to show that defendants, subject to an
employment agreement, likely solicited former clients or that they
took client information when they resigned.
B. Irreparable Injury
“Injunctive relief is an extraordinary remedy that may only
be awarded upon a clear showing that the plaintiff is entitled to
such relief,” and not just the possibility of irreparable harm.
Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “[T]he
asserted irreparable injury must be neither remote nor
speculative, but actual and imminent.” Siegel v. LePore, 234 F.3d
1163, 1176 (11th Cir. 2000) (citations omitted).
One of the reasons why injunctions are a favored remedy for
breaches of restrictive covenants is that it is “inherently
difficult” to determine “what damage actually is caused by the
employee's breach of [of a restrictive covenant].” Proudfoot
Consulting Co. v. Gordon, 576 F.3d 1223, 1243 (11th Cir. 2009)
(quoting Capraro v. Lanier Bus. Prods., Inc., 466 So. 2d 212, 213
(Fla. 1985) (citation omitted)). The Court finds that plaintiff
have failed to clearly show even the possibility of irreparable
injury attributable to defendants. Many of the customers clearly
went of their own volition or at the solicitation of Donald
Roedding, but not by the conduct of those subject to a restrictive
covenant.
C. Balancing Harm to Other Litigant
The balancing of harms, based on the facts provided, favors
denial of injunctive relief. Plaintiff infers solicitation by
defendants based on the timeline of departures, but no declarations
have been provided of any clients who were unquestionably contacted
and solicited.
D. Public Interest
While the Court has an interest in enforcing non-solicitation
and confidentiality agreements, the Court also finds a public
interest in the right of employees to seek employment elsewhere
when unhappy with the conditions of employment as expressed by
defendants.
Accordingly, it is hereby
ORDERED:
Plaintiff's Motion for Temporary Restraining Order (Doc.
#17), construed as a motion for preliminary injunction, is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this 21st day
of September 2021.
kbob
JGHE E. STEELE
SHEIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record