Opinion

CHGYM LLC v. UNIFY ATHLETICS, LLC

Court
District Court, M.D. North Carolina
Filed
Jan 12, 2022
Cited by
0 cases
Authority
More cited than 24.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CHGYM LLC, )

)

Plaintiff, )

)

v. ) 1:21CV911

)

UNIFY ATHLETICS, LLC and VAHID )

KAVOUS MOAVENZADEH, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is Plaintiff CHGYM LLC’s

(“Plaintiff” or “CHG”) Motion for Temporary Restraining Order

and Preliminary Injunction with Request for Oral Argument, (Doc.

5), against Defendants Unify Athletics, LLC and Vahid Kavous

Moavenzadeh (separately “Unify” and “Moavenzadeh,” together

“Defendants”). This court held a hearing on the temporary

restraining order (“TRO”) portion of the motion, (Minute Entry

12/16/2021), and subsequently issued a TRO, (Doc. 21). This

court then held a hearing on the preliminary injunction portion

of the motion. (Minute Entry 01/05/2022).

Because Plaintiff has demonstrated a likelihood of success

on the merits as to its North Carolina computer trespass claim

and met the other requirements for a preliminary injunction, a

preliminary injunction will be granted.

I. PROCEDURAL HISTORY

Plaintiff filed its Complaint on November 24, 2021. (Compl.

(Doc. 1).) That same day Plaintiff filed a Motion for Temporary

Restraining Order and Preliminary Injunction with Request for

Oral Argument. (Doc. 5.) Plaintiff also filed a Memorandum in

support of its motion. (Pl. Mem. in Supp. of Mot. for

TRO/Prelim. Inj. (“Pl.’s Br.”) (Doc. 6).) Attached to that

memorandum was a Declaration of Amanda Maness, (Decl. of Amanda

Maness in Supp. of Pl.’s Mot. for TRO/Prelim. Inj. (“Maness

Decl.”) (Doc. 6-1), along with multiple exhibits, (Docs. 6-2 —

6-6). Defendants filed a Brief in Opposition to the TRO portion

of Plaintiff’s motion, (Defs.’ Br. in Opp’n to Mot. for TRO

(“Defs.’ TRO Br.”) (Doc. 15)), accompanied by two exhibits,

(Docs. 16-1, 16-2), and numerous affidavits, (Docs. 16-3 — 16-

37), including one from Defendant Moavenzadeh, (Aff. of Vahid

Moavenzadeh (“Moavenzadeh Aff.”) (Doc. 16-3)). This court held a

hearing as to the TRO portion of Plaintiff’s motion, (Minute

Entry 12/16/2021), and on December 22, 2021, issued a TRO, (TRO

(Doc. 21)). Plaintiff then filed a Reply in Support of Motion

for Preliminary Injunction. (Pl. Reply in Supp. of Mot. for

Prelim. Inj. (“Pl.’s Reply”) (Doc. 25).) Attached to the reply

were two exhibits, (Ex. F (“ICP Log”) (Doc. 25-2); Doc. 25-3),

and a Supplement Declaration of Amanda Maness, (Suppl. Decl. of

Amanda Maness (“Maness Suppl. Decl.”) (Doc. 25-1)). Defendants

subsquently filed a Brief in Opposition to Motion for

Preliminary Injunction, (Defs.’ Br. in Opp’n to Mot. for Prelim.

Inj. (“Defs.’ Prelim. Inj. Br.”) (Doc. 28)), along with a

Supplemental Declaration of Moavenzadeh, (Suppl. Dec. of Vahid

Kavous Moavenzadeh (“Moavenzadeh Suppl. Decl.”) (Doc. 28-1)).

This court then held a hearing as to the preliminary injunction

portion of Plaintiff’s motion. (Minute Entry 01/05/2022.)

At the hearing, this court extended the TRO for seven days

to allow for the preparation of a written memorandum opinion and

order making specific findings of fact and conclusions of law in

support of a preliminary injunction. (Id.) Having reviewed the

motion, the supporting documents, all matters of record, and the

briefing, this court’s findings of fact and conclusions of law

are contained herein. Infra Parts II—III. These findings and

conclusions are supplemental to, and incorporate by reference,

those announced at the close of the hearing. Additionally, these

findings and conclusions are only made for the purpose of

issuing a preliminary injunction.

II. FINDINGS OF FACT

1. Plaintiff is a youth gymnastics facility. (Maness Decl.

(Doc. 6-1) ¶ 2.) It opened in 2011, (id.), and its current

majority owner is Amanda Maness, (Maness Suppl. Decl. (Doc. 25-

1) ¶ 1). Plaintiff’s clients are parents who enroll their

children in gymnastics classes. (Maness Decl. (Doc. 6-1) ¶ 8.)

2. In June 2013, Plaintiff hired Defendant Moavenzadeh as a

coach. (Id. ¶ 11; Moavenzadeh Aff. (Doc. 16-3) ¶ 3.) In 2018, he

was promoted to Team Director. (Maness Decl. (Doc. 6-1) ¶ 13;

Moavenzadeh Aff. (Doc. 16-3) ¶ 5.) In this new role,

Moavenzadeh’s responsibilities included team management

activities, (Maness Decl. (Doc. 6-1) ¶ 14; Moavenzadeh Aff.

(Doc. 16-3) ¶ 5), but he was not authorized to manage

Plaintiff’s business generally, nor was he involved in CHG’s

specific financial affairs, (Maness Decl. (Doc. 6-1) ¶ 14).

3. Plaintiff uses class management software called iClass

Pro (“ICP”) to assist in ownership, management, operations, and

accounting-related tasks. (Maness Decl. (Doc. 6-1) ¶ 22.) ICP

enables Plaintiff to send bulk emails and also contains

databases that store proprietary and confidential information

regarding Plaintiff’s clients, students, coaches, and staff.

(Id. ¶ 23.) This information includes—but is not limited to—

names, contact information, students’ class history, Plaintiff’s

class history, current class enrollments, what classes

Plaintiff’s coaches have taught, client credit card information,

client billing information, and client payment history. (Id.)

The accumulation of information in ICP’s databases for over a

decade is one of Plaintiff’s most valuable assets. (Id. ¶ 25.)

4. Access to ICP is provided to Plaintiff’s staff on a

need-to-use basis. (Id. ¶ 26.) Staff members with access are

provided their own login credentials and are informed that ICP

contains proprietary and confidential information. (Id. ¶¶ 26,

27.) Additionally, their ICP authorization is limited to what is

necessary to perform their respective CHG tasks and duties.

(Id. ¶ 24.) Plaintiff’s staff are also informed that the

proprietary and confidential information contained in ICP should

not be shared with staff and third parties who do not

independently have access to such information. (Id. ¶ 27.)

5. Sometime before 2019, Moavenzadeh was granted ICP

access. (Id. ¶ 29.) His ICP authorization was limited to using

the software for routine class-attendance matters and

communication with clients regarding team-related activities.

(Id.) Moavenzadeh used ICP frequently for these tasks. (See

generally ICP Log (Doc. 25-2).) At some point, Moavenzadeh was

given full access to ICP. (See Moavenzadeh Aff. (Doc. 16-3)

¶¶ 9, 10; cf. ICP Log (Doc. 25-2) at 3 (removing Moavenzadeh’s

full access rights after his resignation).) However, he was

never granted unlimited authorization. (See Maness Decl.

(Doc. 6-1) ¶¶ 24, 29.)

6. In August 2020, Moavenzadeh created Instagram accounts

to promote and chronicle the accomplishments of Plaintiff’s

athletes. (Maness Decl. (Doc. 6-1) ¶ 15; Moavenzadeh Aff.

(Doc. 16-3) ¶ 8.) The Instagram accounts were named CHG.XCEL and

CHG.MENS to represent Plaintiff’s female and male teams,

respectively. (Maness Decl. (Doc. 6-1) ¶ 16.)

7. When CHG reopened for in-person training after

temporarily closing its facilities due to COVID-19, Plaintiff

added the role of Operations Manager to Moavenzadeh’s

responsibilities. (Moavenzadeh Aff. (Doc. 16-3) ¶¶ 7, 9.) As

part of this additional role (Moavenzadeh continued to hold the

position of Team Director), he assumed a broader portfolio of

tasks. (Id. ¶ 9.)

8. On February 27, 2021, unbeknownst to Plaintiff,

Moavenzadeh used ICP to generate a report of Plaintiff’s

recurring billings. (Maness Decl. (Doc. 6-1) ¶ 31; Doc. 6-4; ICP

Log (Doc. 25-2) at 20.1) Less than a minute after creating the

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

report, Moavenzadeh utilized the “Background Task Cancelled”

function,2 but ICP nevertheless automatically generated and

maintained a log that recorded these actions. (Maness Decl.

(Doc. 6-1) ¶ 31; Doc. 6-4; ICP Log (Doc. 25-2) at 20.) That log

lists Moavenzadeh as having an “unknown” IP address when he

generated the report.3 (Doc. 6-4; ICP Log (Doc. 25-2) at 20.) ICP

has no record of him ever generating such a recurring billing

report before. (See ICP Log (Doc. 25-2).) These types of reports

generally contain information such as the name of the student,

contact information, credit card information, and payment

history. (Maness Decl. (Doc. 6-1) ¶ 31.) Because Moavenzadeh

utilized the “Background Task Cancelled” function, Plaintiff

does not know the exact extent or amount of information

contained in the report. (Id. ¶ 32.)

9. In June 2021, Moavenzadeh approached at least one of

Plaintiff’s owners and asked whether the owners were interested

2 Other than the June 11, 2021 reports and July 14, 2021

mass departure email, discussed infra ¶¶ 10—11, the 109-page log

listing all of Moavenzadeh’s ICP activities, which dates to

November 2019, contains only one other entry where he utilized

the “Background Task Cancelled” function. (ICP Log (Doc. 25-2)

at 79.)

3 Other than the June 11, 2021 reports, discussed infra

¶ 10, the log listing all of Moavenzadeh’s ICP activities

features only one other entry with an “unknown” IP address. (ICP

Log (Doc. 25-2) at 61.)

in selling CHGYM to him. (Maness Suppl. Decl. (Doc. 25-1) ¶ 7;

Moavenzadeh Suppl. Decl. (Doc. 28-1) ¶ 17.)

10. On June 11, 2021, unbeknownst to Plaintiff, Moavenzadeh

used ICP to generate reports of Plaintiff’s “Family List,”

“Family Email List,” and “Roll Sheets.” (Maness Decl. (Doc. 6-1)

¶ 33; Doc. 6-5; ICP Log (Doc. 25-2) at 6—7.) The ICP log lists

Moavenzadeh’s IP address as “unknown” for each report generation

request. (Doc. 6-5; ICP Log (Doc. 25-2) at 6—7.) Within minutes

of generating the reports, Moavenzadeh utilized the “Background

Task Cancelled” function as to each, (Maness Decl. (Doc. 6-1)

¶ 33; Doc. 6-5; ICP Log (Doc. 25-2) at 6—7), except for the

final “Roll Sheets” report he had generated—he had created that

report three times, (Doc. 6-5; ICP Log (Doc. 25-2) at 6—7.) ICP

has no record of him ever generating these types of reports

before.4 (See ICP Log (Doc. 25-2).) Because Moavenzadeh utilized

the “Background Task Cancelled” function,” Plaintiff does not

know the exact extent or amount of information contained in the

“Family List,” “Family Email List,” and first two “Roll Sheets”

reports. (Maness Decl. (Doc. 6-1) ¶ 34.)

11. On July 14, 2021, Moavenzadeh resigned. (Maness Decl.

(Doc. 6-1) ¶ 35; Moavenzadeh Aff. (Doc. 16-3) ¶ 23.) That same

4 This court does note that in late June 2020, Moavenzadeh

generated a report titled “Families: Policy Report.” (ICP Log

(Doc. 25-2) at 61.)

day, he used ICP to send an email to seventeen classes of

Plaintiff’s clients notifying them of his departure. (Maness

Decl. (Doc. 6-1) ¶ 35; Moavenzadeh Aff. (Doc. 16-3) ¶ 23;

Doc. 6-6; ICP Log (Doc. 25-2) at 3.) The email expressed

Moavenzadeh’s hope to stay in touch and provided his personal

email address. (Maness Decl. (Doc. 6-1) ¶ 36; Moavenzadeh Aff.

(Doc. 16-3) ¶ 23.) Less than a minute after sending the mass

email, Moavenzadeh utilized the “Background Task Cancelled”

function. (Maness Decl. (Doc. 6-1) ¶ 35; Doc. 6-6; ICP Log

(Doc. 25-2) at 3.)

12. On September 13, 2021, Moavenzadeh created the

competing gymnastics entity named Unify Athletics, LLC. N.C.

Sec’y of State, Annual Report: Unify Athletics, LLC, https://www

.sosnc.gov/online_services/business_registration/flow_annual_rep

ort/18083935 (last visited Jan. 12, 2022)5; (Maness Decl.

(Doc. 6-1) ¶ 37; Moavenzadeh Aff. (Doc. 16-3) ¶ 28.) Numerous

clients have left CHGYM and joined Unify. (Maness Decl. (Doc. 6-

1) ¶ 41; Moavenzadeh Aff. (Doc. 16-3) ¶ 29; see also e.g., Docs.

16-5, 16-7, 16-8, 16-10, 16-11, 16-13, 16-15, 16-16, 16-17, 16-

18, 16-19, 16-22, 16-23, 16-24, 16-25, 16-27, 16-28, 16-29, 16-

33, 16-35, 16-36, 16-37.)

5 This court takes judicial notice of this public record

pursuant to Federal Rule of Evidence 201.

13. Moavenzadeh also changed the names of the Instagram

accounts he had created in August 2020. (Maness Decl. (Doc. 6-1)

¶¶ 39, 40; Moavenzadeh Aff. (Doc. 16-3) ¶ 31; Doc. 6-2; Doc. 6-

3.) He changed the name of “CHG.XCEL” to “UNIFY.GYM” and changed

“CHG.MENS” to “UNIFYGYM.MENS.” (Maness Decl. (Doc. 6-1) ¶ 40;

Moavenzadeh Aff. (Doc. 16-3) ¶ 31; Doc. 6-2; Doc. 6-3.)

III. CONCLUSIONS OF LAW

“A plaintiff seeking a preliminary injunction must

establish” four prongs: “that [1] he is likely to succeed on the

merits, that [2] he is likely to suffer irreparable harm in the

absence of preliminary relief, that [3] the balance of equities

tips in his favor, and that [4] an injunction is in the public

interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20 (2008). Such an injunction “is an extraordinary remedy

intended to protect the status quo and prevent irreparable harm

during the pendency of a lawsuit.” Di Biase v. SPX Corp., 872

F.3d 224, 230 (4th Cir. 2017) (citation omitted).

Here, Plaintiff has established all four prongs, and

therefore this court will issue a preliminary injunction in its

favor. This preliminary injunction will preserve the status quo

until this case is adjudicated on a more fulsome and developed

record. Each prong is addressed in turn.

A. Likelihood of Success on the Merits

While Plaintiff has asserted nine claims against

Defendants, (Compl. (Doc. 1) ¶¶ 51—107), its preliminary

injunction motion was only made pursuant to four of those

claims, (Pl.’s Br. (Doc. 6) at 9). Those four claims are

(1) misappropriation of trade secrets under federal law,

(2) misappropriation of trade secrets under North Carolina law,

(3) computer trespass under North Carolina law, and (4) false

association under federal law. (Id.)

Through briefing and oral argument, the North Carolina

computer trespass claim emerged as the sole claim for which

preliminary injunctive relief should issue.6 Indeed, this court’s

TRO found that “Plaintiff has a substantial likelihood of

succeeding on the merits of its North Carolina computer trespass

claim[.]” (TRO (Doc. 21) at 3.) Therefore, at least insofar as

the first preliminary injunction prong, this court will focus on

the North Carolina computer trespass claim. To demonstrate a

6 This court declined to grant preliminary injunctive relief

as to Plaintiff’s misappropriation and false association claims.

Defendants presented evidence through the affidavits of former

CHG clients. (Docs. 16-4 — 16-37.) The allegations in those

affidavits suggest there are a number of reasons why clients may

have left CHG and moved to Unify. (Defs.’ Prelim. Inj. Br.

(Doc. 28) at 8—9.) Consequently, as to its claims for

misappropriation and false association, Plaintiff did not

sufficiently establish a likelihood of success on the merits to

support injunctive relief separate and apart from its computer

trespass claim.

likelihood of success on that claim, “plaintiff need not

establish a ‘certainty of success,’ but must make a clear

showing that [it] is likely to succeed at trial.” Di Biase, 872

F.3d at 230 (citation omitted).

North Carolina’s computer trespass statute makes it

(a) unlawful for any person to use a computer or

computer network without authority and with the

intent to do any of the following:

. . . .

(3) Alter or erase any computer data, computer

programs, or computer software.

. . . .

(5) Make or cause to be made an unauthorized

copy, in any form, including, but not limited to,

any printed or electronic form of computer data,

computer programs, or computer software residing

in, communicated by, or produced by a computer or

computer network.

. . . .

[A] person is “without authority” when . . . the

person has no right or permission of the owner to use

a computer, or the person uses a computer in a manner

exceeding the right or permission[.]7

N.C. Gen. Stat. § 14-458(a) (emphasis added). To synthesize, the

statute has two elements: (1) a person must “use a computer or

7 “The statute provides for a private right of action by

‘[a]ny person whose property or person is injured by reason of a

violation of this section. . . .’” Spirax Sarco, Inc. v. SSI

Eng’g, Inc., 122 F. Supp. 3d 408, 417 (E.D.N.C. 2015)

(alterations in original) (quoting N.C. Gen. Stat. § 14–458(c)).

computer network without authority,” with (2) the intent to

engage in one of the enumerated prohibited actions. Each element

is analyzed as follows.

1. Element 1: Without Authority

Plaintiff maintains Moavenzadeh was without authority when

he generated the February 27 and June 11, 2021 reports because

he did so for “personal use,” as his work “duties and

responsibilities had no relation to needing this information.”

(Pl.’s Br.’s (Doc. 6) at 16.) Defendants disagree and advance

two reasons why Moavenzadeh had authority to generate the

reports. First, “CHG gave [Moavenzadeh] ‘full access’ to iClass

Pro, electing not to place any restrictions on his use of the

software,” (Defs.’ TRO Br. (Doc. 15) at 16), thus “expressly

authoriz[ing] him to access class enrollment information,

contact information, and billing information,” (Defs.’ Prelim.

Inj. Br. (Doc. 28) at 14). Second, Defendants argue that any

reports Moavenzadeh may have generated were within his authority

because he “was required to regularly access CHG’s client lists,

class rolls, and customer contact information as part of his

responsibilities.” (Defs.’ TRO Br. (Doc. 15) at 16.)

The North Carolina computer trespass statute provides that

“a person is ‘without authority’ when . . . the person uses a

computer in a manner exceeding the[ir] right or permission[.]”

N.C. Gen. Stat. § 14-458(a). When the reports were generated,

Moavenzadeh had full access to Plaintiff’s ICP databases. Supra

¶ 5. However, just because Moavenzadeh had unlimited access did

not mean he had unlimited authorization. While he could access

all of ICP, he was only authorized to use that access to the

extent it was necessary to perform his CHGYM tasks and duties.

Supra ¶¶ 4—5. Any greater utilization of that access would

exceed his “right or permission,” thus qualifying as “without

authority” for purposes of the North Carolina computer trespass

statute. N.C. Gen. Stat. § 14-458(a).

Despite Defendants’ arguments to the contrary, there is

sufficient circumstantial evidence to conclude that the reports

Moavenzadeh generated on February 27 and June 11, 2021 were not

necessary to perform his CHG tasks and duties. The best evidence

of this is that the 109-page log containing all of Moavenzadeh’s

ICP activities since November 2019 shows that he never generated

any reports like the ones at issue. Supra ¶¶ 8, 10.

Additionally, Moavenzadeh never offers a credible explanation

for why he cancelled the background task for all but one of

these reports. See supra ¶¶ 8, 10. To the contrary,

Moavenzadeh’s shifting8 and conflicting9 explanations of his

computer activity cause this court, at this stage of the

proceedings, to reject his purportedly innocent explanations for

the activity, (see Moavenzadeh Aff. (Doc. 16-3) ¶ 12;

Moavenzadeh Suppl. Decl. (Doc. 28-1) ¶¶ 6—7), which otherwise

support a finding of unauthorized access. Moreover, the reports’

contents would likely aid Moavenzadeh in establishing his own

8 Compare Moavenzadeh Aff. (Doc. 16-3) ¶ 12 (“I recall that

in February 2021, I was using iClass Pro and inadvertently

downloaded reports from iClass Pro.”) (emphasis added), with

Moavenzadeh Suppl. Decl. (Doc. 28-1) ¶ 6 (“In my December 15,

2021, affidavit, I used the colloquial term ‘downloaded’ to

describe what I did with respect to the report. By ‘downloaded,’

I meant that I had iClass Pro ‘download’ the report to my

‘background tasks’ folder in iClass Pro. To the best of my

knowledge, I did not take the additional step of having iClass

Pro ‘download’ the report to any personal computer or other

device.”).

9 Compare Moavenzadeh Aff. (Doc. 16-3) ¶ 12 (“I recall that

in February 2021, I was using iClass Pro and inadvertently

downloaded reports from iClass Pro. . . I have no recollection

of what . . . information was included in the reports.”)

(emphasis added), with Moavenzadeh Suppl. Decl. (Doc. 28-1) ¶ 6

(“I recall that in February 2021 . . . I inadvertently created a

report in iClass Pro that included billing information for

certain CHG customers.”) (emphasis added).

gymnastics business, which he did in fact later establish.10 See

supra ¶ 12.

Defendants argue that the facts of Moavenzadeh’s departure,

and the recruitment of Moavenzadeh by the parents rather than

vice versa, diminishes the reasonableness of any inference of

wrongful conduct by Moavenzadeh. (See e.g., (Defs.’ Prelim. Inj.

Br. (Doc. 28) at 1.) This court disagrees. The information that

Moavenzadeh accessed without authorization is clearly of

business value to Moavenzadeh, a gymnastics coach. No evidence

has been presented to suggest that at the time he accessed that

information he knew parents would contact him to start a new

gym. Perhaps a trial may establish different or new facts that

weaken any reasonable inference to be drawn from an unauthorized

access of business information followed by the establishment of

a competing business. However, the facts presently before this

court establish a strong inference that Moavenzadeh accessed

computer information without authorization because he did so for

an unauthorized purpose, that is, for the benefit of third

10 This court notes that North Carolina computer trespass

actions often feature employees leaving for competing

businesses. Spirax Sarco, 122 F. Supp. 3d 408; Glover Constr.

Co., Inc. v. Sequoia Servs., LLC, No. 18 CVS 1900, 2020 WL

3393065 (N.C. Super. Bus. Ct. June 18, 2020); Constr. Managers,

Inc. of Goldsboro v. Amory, No. 18 CVS 1359, 2019 WL 2167311

(N.C. Super. Bus. Ct. May 17, 2019).

parties—namely, himself in a personal capacity and a competing

gymnastics business, ultimately established as Unify.

In the aggregate, this circumstantial evidence leads this

court to the conclusion that when Moavenzadeh generated the

reports he was not doing so as part of his CHG responsibilities.

That he was not acting in furtherance of his CHG tasks and

duties when he generated the reports means he was “without

authority” as defined by the North Carolina computer trespass

statute. See N.C. Gen. Stat. § 14-458(a). Therefore, Plaintiff

has shown a likelihood of success in establishing the first

element of a North Carolina computer trespass claim.

2. Element 2: Intent to Engage in Prohibited Action

Implicating subsection (a)(5) of the North Carolina

computer trespass statute, Plaintiff argues that “Moavenzadeh

violated the Computer Trespass law by making an unauthorized

copy of CHG’s confidential and proprietary customer lists,

customer contact information, roll sheets, and billing records

of customers.” (Pl.’s Br. (Doc. 6) at 16 (emphasis added).)

Additionally, Plaintiff implicates subsection (a)(3) of the

statute by alleging that Moavenzadeh “altered or erased computer

data in order to hide” his generation of the reports. (Compl.

(Doc. 1) ¶ 81 (emphasis added).)

Defendants do not directly address Plaintiff’s computer

data alteration and erasure allegation. As to Plaintiff’s

unauthorized copy allegation, Defendants insist that there are

two reasons why any report Moavenzadeh may have—or may have

received—does not constitute an unauthorized copy. First,

Defendants argue that because making “copies of class rolls or

contact information [w]as part of his daily responsibilities,”

those copies cannot be considered unauthorized (Defs.’ TRO Br.

(Doc. 15) at 16.) And second, Defendants contend that the

reports cannot qualify as unauthorized copies because “in the

course of forming and operating Unify, [Moavenzadeh] has never

used any of the information that [he] may have downloaded,

intentionally or accidentally, in the course and scope of his

employment with CHG.” (Id.)

This court is not convinced by either of these arguments.

As to the first, the ICP log refutes Defendants’ claim that

generating these types of reports was a part of Moavenzadeh’s

“daily responsibilities.” As to the second, it is irrelevant for

purposes of a computer trespass claim whether Moavenzadeh ever

actually used the information contained in the reports. All that

matters, insofar as the claim’s second element, is that the

reports constitute “unauthorized cop[ies].” N.C. Gen. Stat.

§ 14-458(a)(5). This court concludes that Plaintiff has shown a

likelihood that they do. Furthermore, this court concludes that

Moavenzadeh’s utilization of the “Background Task Cancelled”

function—which has prevented Plaintiff from uncovering the

extent of information contained in the reports—likely qualifies

as an “alter[ation] or eras[ure]” of computer data. Id. § 14-

458(a)(3).

Therefore, Plaintiff has shown a likelihood of success in

establishing the second element of a North Carolina computer

trespass claim. Because Plaintiff has done so for both elements,

this court concludes that Plaintiff has shown a likelihood of

success on the merits of the claim and has thus made “a clear

showing that [it] is likely to succeed at trial,” Di Biase, 872

F.3d at 230 (citation omitted).

B. Risk of Irreparable Harm

In addition to a likelihood of success on the merits, a

plaintiff seeking a preliminary injunction must also make a

“clear showing that it is likely to be irreparably harmed absent

preliminary relief.” Real Truth About Obama, Inc. v. Fed.

Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009) (citation

omitted), vacated on other grounds 559 U.S. 1089. “[W]hen the

failure to grant preliminary relief creates the possibility of

permanent loss of customers to a competitor . . . the

irreparable injury prong is satisfied.” Multi–Channel TV Cable

Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546,

552 (4th Cir. 1994) (citation omitted), abrogated on other

grounds, Winter, 555 U.S. 7. “Loss of proprietary or

confidential information may also constitute irreparable harm.”

Creative Snacks, Co., LLC v. Hello Delicious Brands LLC, No.

1:17CV50, 2018 WL 1626522, at *7 (M.D.N.C. Mar. 30, 2018)

(citing Zahodnick v. Int’l Bus. Machs. Corp., 135 F.3d 911, 915

(4th Cir. 1997)).

Plaintiff argues that Moavenzadeh’s “computer trespass

. . . [is] causing, and will continue to cause, irreparable

injury[.]” (Pl.’s Br. (Doc. 6) at 20.) Specifically, Plaintiff

maintains that “CHG has lost a substantial number of clients

already due to Moavenzadeh’s” misconduct and absent a

“preliminary injunction, CHG has no ability to prevent the

continued damage to its business.” (Id. at 21.)

Defendants advance two arguments why “the principal purpose

served by entering the requested [preliminary injunction]” would

not be to prevent irreparable harm but rather to “allay[] CHG’s

fears.” (Defs.’ Prelim. Inj. Br. (Doc. 28) at 18.). First,

Defendants argue that Plaintiff would suffer no irreparable harm

because Moavenzadeh “has averred that he has not, and will not,

use any of the . . . information that he appears to have

downloaded from iClass Pro[,] in the course and scope of his

employment with CHG[,] as part of the formation or operations of

Unify.” (Defs.’ TRO Br. (Doc. 15) at 18.)

This court finds this first argument wanting. While

Defendant Moavenzadeh does aver that he will not use any

information downloaded from ICP as part of his work with Unify,

(Moavenzadeh Aff. (Doc. 16-3) ¶ 30), this court has reasonable

doubts about the general credibility of Moavenzadeh’s averments.

In the less than two months since this case was initiated,

Moavenzadeh has already submitted to this court shifting and

contradictory sworn statements. See supra notes 8-9. These

inconsistences are significant; they concern matters within the

heartland of the case—namely, what Moavenzadeh did with the ICP

reports and what information was contained therein. See supra

notes 8—9. Such inconsistencies undermine this court’s

confidence in the credibility of Defendant Moavenzadeh’s

averments, including his averment that he will not use any of

Plaintiff’s proprietary ICP data. Therefore, this court rejects

Defendants’ argument that because Moavenzadeh has sworn he will

not use any of Plaintiff’s proprietary ICP data, an injunction

is unnecessary.

This court is also unconvinced by Defendants’ second

argument. That argument insists that Plaintiff would not suffer

irreparable harm in the absence of a preliminary injunction

because “numerous parents have made clear that they will not

allow their children to attend any gymnastics facility operated

by the Maness family, including CHG[.]” (Defs.’ TRO Br.

(Doc. 15) at 19.) Even assuming that to be true, the evidence

established for purposes of this motion shows that a current

competitor to Plaintiff had (and may still have) Plaintiff’s

confidential business information without Plaintiff’s

authorization. The failure to grant an injunction could very

well permit Defendants to wrongfully retain and use that

information without limitation while Defendants operate a

competing business. That circumstance creates an improper

competitive advantage for Defendants.

Relatedly, that some former clients may not return to

Plaintiff under its current ownership in no way forecloses “the

threat of a permanent loss of [other] customers[.]” Multi–

Channel TV Cable, 22 F.3d at 552 (citation omitted). For

example, current clients who have thus far remained with

Plaintiff could be lured to Unify through the use of information

contained in the ICP reports that Moavenzadeh generated. See

Philips Elecs. N. Am. Corp. v. Hope, 631 F. Supp. 2d 705, 711

(M.D.N.C.2009) (finding irreparable harm where the absence of an

injunction “could result in the further loss of customer

relationships” (emphasis added)). If that were to occur, the

harm suffered by Plaintiff would “be longstanding and near

impossible to remedy retroactively.” (TRO (Doc. 21) at 3). In

other words, the harm would be “irreparable” because neither

party contends that the parents who submitted affidavits,

(Docs. 16-4 — 16-37), constitute all of the individuals whose

information was accessed by Moavenzadeh without authorization.

Therefore, this court concludes that “the failure to grant

preliminary relief” to Plaintiff “creates the possibility of

permanent loss of customers to a competitor,” namely Unify.

Multi–Channel TV Cable, 22 F.3d at 552 (citation omitted). That

possibility constitutes a “clear showing” that Plaintiff “is

likely to be irreparably harmed absent” a preliminary

injunction, Real Truth About Obama, 575 F.3d at 347 (citation

omitted), and accordingly “the irreparable injury prong is

satisfied.” Multi–Channel TV Cable, 22 F.3d at 552 (citation

omitted).

C. Balance of Equities

The third preliminary injunction prong requires that this

court determine whether “the balance of equities tips in

[Plaintiff’s] favor.” Winter, 555 U.S. at 20 (citations

omitted). This requires assessment of “the harm Defendants will

suffer if Plaintiff’s motion is granted.” Int’l Lab. Mgmt. Corp.

v. Perez, No. 1:14CV231, 2014 WL 1668131, at *14 (M.D.N.C. Apr.

25, 2014).

Defendants argue that the “balance of equities tips heavily

in the favor of [Moavenzadeh] and Unify” because “any

discontinuation or interruption in Unify’s operations will

simply serve to undermine the establishment of an entity . . .

created by a coalition of parents who pledged both their time

and money to create a space where their children can engage in

the sport they love in a supporting, healthy, and safe

environment.” (Defs.’ TRO Br. (Doc. 15) at 19.) Defendants

express particular concern about the issuance of “an injunction

that curtails or in any way impacts [Moavenzadeh]’s ability to

contact and communicate with families with which he has a

longstanding personal relationship.” (Defs.’ Prelim. Inj. Br.

(Doc. 28) at 18.)

Plaintiff counters that “[n]othing in the terms of CHG’s

proposed injunction prevents either Movaenzadeh from opening a

gym or parents from joining the gym. It merely prevents

Defendants from misusing confidential information[.]”11 (Pl.’s

11 This court notes that at the preliminary injunction

hearing, Plaintiff’s Counsel began his remarks by emphasizing

that the requested injunction would not prevent Defendant

Moavenzadeh from opening a gym or coaching, nor would it prevent

parents from contacting him and enrolling their children at the

facility of their choosing.

Reply (Doc. 25) at 10—11.) Plaintiff stresses that “[t]o the

extent that [] prohibition interferes with Moavenzadeh’s

operation of a gym, that is a problem he created for himself, it

does not tip the balance of equities in his favor.” (Id. at 11.)

This court agrees with Plaintiff. The preliminary

injunction that Plaintiff has requested, and that this court

will issue, does not require Unify to cease its operations.

Thus, Defendants’ concerns about parents losing “a space where

their children can engage in the sport they love in a

supporting, healthy, and safe environment[,]” (Defs.’ TRO Br.

(Doc. 15) at 19; Defs.’ Prelim. Inj. Br. (Doc. 28) at 18), are

unfounded at this early stage in the case.

As to Defendants’ concern that the preliminary injunction

will impact Moavenzadeh’s “ability to contact and communicate

with families with which he has a longstanding personal

relationship,” (Defs.’ Prelim. Inj. Br. (Doc. 28) at 18), this

court likewise agrees with Plaintiff. The preliminary injunction

that this court will issue will not prevent Moavenzadeh from

having any contact with former CHG clients. It merely bars him

from using Plaintiff’s confidential business data, such as

client email lists, to make such contact. If Moavenzadeh’s sworn

statement is taken at its word, this prohibition will not impact

his communications with former CHG clients with whom he has

longstanding relationships because he avers that he has not and

will not use Plaintiff’s confidential business data.

(Moavenzadeh Aff. (Doc. 16-3) ¶ 30.) “Therefore, in accordance

with Defendant Moavenzadeh’s own sworn statement, the entry of

this [preliminary injunction] will be minimally invasive. It

will prevent Defendants from using information that they aver

they have no intention of using.” (TRO (Doc. 21) at 4.)

Accordingly, this court concludes that the balance of equities

tips decisively in Plaintiff’s favor.

D. Public Interest

The final prong that Plaintiff must establish is that “an

injunction is in the public interest.” Winter, 555 U.S. at 20

(citations omitted). Plaintiff emphasizes that the public

interest is served by “preventing unethical business behavior,”

which it argues “is exactly the circumstance that CHG is facing

here as a result of Moavenzadeh’s . . . computer trespass[.]”

(Pl.’s Br. (Doc. 6) at 22 (internal quotation marks omitted)

(quoting Philips Elecs. N. Am., 631 F. Supp. 2d at 724).)

Defendants disagree that the public interest would be

served by the issuance of a preliminary injunction, arguing that

“[t]here is no public interest served by using this Court’s

equitable power to save a business that has failed in the

marketplace, that has been alleged to place its customers in

danger, and that has been rejected by the clients it seeks to

serve.” (Defs.’ TRO Br. (Doc. 15) at 20.) Defendants also allege

that Plaintiff’s motive for initiating this case, and seeking a

preliminary injunction, is to retaliate against Moavenzadeh for

cooperating in a separate investigation into Plaintiff’s former

owner. (Defs.’ Prelim Inj. Br. (Doc. 28) at 19.) Consequently,

“[t]he public interest is not served by allowing CHG to co-opt

this Court’s equitable powers to advance CHG’s potentially

improper objective of” retaliation. (Id.)

This court rejects Defendants’ arguments. If Plaintiff has

truly been “rejected by the clients it seeks to serve” this

fairly narrow preliminary injunction will in no way “save” its

business. (Defs.’ TRO Br. (Doc. 15) at 20.) And as to

Plaintiff’s “potentially” retaliatory motive, this court finds

such allegations to be only speculation at this juncture. What

is not speculation, but rather firmly grounded in a persuasive

recognition by another court in this district, is that the

requested preliminary injunction will serve the public interest

by ensuring that a company can “develop[] its customer

relationships and . . . share [that] confidential and

proprietary information with its employees without fear it will

end up in the hands of a competitor.” Philips Elecs. N. Am., 631

F. Supp. 2d at 724 (citing Travenol Lab’ys, Inc. v. Turner, 30

N.C. App. 686, 691, 228 S.E.2d 478, 483 (1976)). Therefore, this

court concludes that the issuance of a preliminary injunction is

rooted in the public interest.

Lastly, Defendants maintain that if a preliminary

injunction is issued, then it should expressly state that it

does not apply to Moavenzadeh’s clients developed independently

of any alleged wrongful conduct. (Defs.’ Prelim Inj. Br.

(Doc. 28) at 19—20.) This court declines to include that

limitation in the preliminary injunction. While there are parent

affiants who contend they convinced Moavenzadeh to open a gym,

(see e.g., Doc. 16-16 ¶ 6; Doc. 16-33 ¶ 7), Moavenzadeh has not

persuaded this court that he did not use the information

contained in the ICP reports in some fashion. As a result, this

court declines to make an affirmative finding that suggests some

or all of Unify’s clientele was developed independent of

Plaintiff’s proprietary ICP data.

IV. CONCLUSION

For the foregoing reasons, this court concludes that

Plaintiff has shown a likelihood of success on the merits of its

North Carolina computer trespass claim, that Plaintiff will

suffer irreparable harm in the absence of a preliminary

injunction, and that the balance of equities and public interest

favor a preliminary injunction.

Pursuant to Federal Rule of Civil Procedure 65, IT IS

THEREFORE ORDERED that Plaintiff’s motion for a preliminary

injunction as requested in Plaintiff’s Motion for Temporary

Restraining Order and Preliminary Injunction with Request for

Oral Argument, (Doc. 5), is GRANTED IN PART as follows:

IT IS ORDERED that, Defendants, and all those acting in

concert or participation with them, are hereby PROHIBITED AND

ENJOINED from disclosing, using, or relying upon Plaintiff’s

trade secrets, proprietary or confidential information, including

customer lists, customer contact information, class or program

enrollment information, and billing information, which were

accessed by Defendant Moavenzadeh without authorization as

described herein; and

IT IS FURTHER ORDERED that, Defendants SHALL preserve all

data currently stored on computers over which they have

possession, custody, or control, including personal digital

assistants or mobile telephones, including any information stored

on backup media, which currently stores, or which has stored,

Plaintiff’s confidential information, proprietary information, or

trade secrets; and

IT IS FURTHER ORDERED that Defendants SHALL preserve all

emails on any computer under their control, including internet

mail servers, personal digital assistants, and other hardware,

that was at any time related to the solicitation or contact of

Plaintiff’s current or former clients; and

IT IS FURTHER ORDERED that Defendants are hereby PROHIBITED

AND ENJOINED from using the Instagram accounts previously named

“CHG.XCEL” and “CHG.MENS,” now named “UNIFY.GYM” and

“UNIFYGYM.MENS,” (see supra 7 13); and

IT IS FURTHER ORDERED that security in the amount of

$1,000.00, which has already been posted by Plaintiff, (Doc. 23),

shall serve as the bond contemplated by Federal Rule of Civil

Procedure 65(c); and

IT IS FURTHER ORDERED that Defendants SHALL each file with

this court, within three (3) days of this Memorandum Opinion and

Order, a statement under oath certifying their ongoing compliance

with this Order.

IT IS SO ORDERED.

This the 12th day of January, 2022.

LS Wi rn L. abun. □

“United States District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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