SUNBELT RENTALS, INC. v. LOVE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

SUNBELT RENTALS, INC.,

Plaintiff,

Civil No. 20-17611 (RMB/AMD)

v.

MICHAEL LOVE, OPINION

Defendant.

RENÉE MARIE BUMB, United States District Judge

This matter comes before the Court upon a motion for a

preliminary injunction, pursuant to Rule 65(a) of the Federal Rules

of Civil Procedure, brought by Plaintiff Sunbelt Rentals, Inc.

(“Sunbelt”). [Docket No. 3-1.] Sunbelt is a national rental

equipment company that employed Defendant Michael Love from

approximately August 2018 until October 2020 when Defendant

Michael Love abruptly left to work for a competitor company. As

part of their employment agreement, Sunbelt and Love agreed to two

standard non-compete clauses (the “Non-Compete Clauses” or

“Clauses”). Sunbelt argues that Love’s new employment violates the

Non-Compete Clauses and alleges a breach of contract claim.

Moreover, Sunbelt alleges that days before Love resigned, he

misappropriated highly confidential business documents of Sunbelt

and forwarded them to not only himself but his brother in violation

of the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. (the

“DTSA”), and the New Jersey Trade Secrets Act, N.J. STAT. ANN. §

56:15-1 et seq. (the “NJTSA”). Love admits to having taken such

documents and has apologized for his misconduct. In order to

prevent further irreparable harm, Sunbelt seeks to enjoin Love

from continuing his new employment on two grounds: the Non-Compete

Clauses and the DTSA/NJTSA. Because this Court finds that Sunbelt

has demonstrated that it will likely succeed in establishing that

Love breached his employment contract and violated the DTSA and

NJTSA, and because the Court finds that Sunbelt will likely suffer

irreparable injury absent a preliminary injunction, as set forth

below, the Court will grant Sunbelt’s application for a preliminary

injunction.

I. FINDINGS OF FACT

The Court conducted hearings in this case on December 16 and

17, 2020. [See Docket Nos. 27, 29.] The following constitutes the

Court’s findings of fact pursuant to Rule 52 of the Federal Rules

of Civil Procedure.

A. Sunbelt Rentals, Inc.’s General Structure1

1. Plaintiff Sunbelt Rentals, Inc. (“Sunbelt”) is a nationwide

rental equipment company with approximately 930 locations in 46

states. [Docket No. 27, at 38:22-39:9.]

2. Sunbelt’s physical store locations, which is where Sunbelt’s

revenue is generated and where customers are directly serviced,

are called “Profit Centers” (“PCs”). [Id. at 39:12-40:3.]

3. Sunbelt also has “Cost Centers” (“CCs”), which are a multi-

area or multi-regional centers that house people and other

corporate costs that are serving a broader area. [Id. at 40:4-8.]

CCs, unlike PCs, serve a broader area that encompasses smaller

markets. [Id.]

4. Each PC and CC has its own four-digit code for internal use,

including codes to identify where employees and customer accounts

are assigned. [See id. at 40:14-16; 47:5-7.]

5. Each PC and CC is subsumed into one of two territories: east

and west. [See id. at 41:12-15.]

1 This subsection is predominantly adopted from Sunbelt’s Proposed

Findings of Fact and Conclusions of Law which are not genuinely

disputed by Defendant. [See Docket No. 33, ¶¶ 1-14.]

6. PC 1092 is Sunbelt’s Paulsboro, New Jersey location. It is

part of CC 0873, which is part of the Eastern Territory. [See id.

at 47:2-3, 63:4-64:2.]

7. Fred Ransom, who testified at the hearing, was Sunbelt’s Vice

President of Special Projects as of August 2018. [Id. at 10:20-

11:8.]

8. Russ Brown, who testified at the hearing, is Sunbelt’s

Executive Vice President of the Eastern Territory, which includes

CC 0873’s approximately 450 PCs that span from “Bangor, Maine, .

. . across Philadelphia, over to . . . Indianapolis down to

Cleveland, as far south as Arkansas and then all the way down the

U.S.” [Id. at 38:8-9, 40:21-41:5.]

B. Sunbelt Acquires Interstate Aerials, Hires Love

9. Until approximately August 2018, Defendant Michael Love was

employed as the Vice President of Sales for Interstate Aerials,

LLC (“Interstate”), a regional rental equipment company. [See id.

at 16:5-9, 42:11-13.]

10. Love worked at Interstate’s Paulsboro, New Jersey location,

which was both a store and a corporate office. [See id. at 16:7-

9; Docket No. 29, at 60:3-12.]

11. As part of his contract with Interstate, Love received an

annual salary of $300,000 and an annual bonus of $50,000. [Docket

No. 27, at 16:10-15.]

12. In the event that Interstate was sold to a third party, Love

would be entitled to “2.5% of the sales price, net of any and all

costs, tax liabilities, and the like.” [Docket No. 16-1, Exhibit

B.]2

13. In August 2018, Interstate was sold to Sunbelt for

approximately $200,000,000. [See Docket No. 27, at 11:4-5, 12:8-

11, 43:21-25; see also Docket No. 20, at 3.]

14. Love received approximately $4,000,000 from the sale. [Docket

No. 27, at 44:1-5.]

15. Around the time of the Interstate acquisition, Sunbelt

entered into negotiations with Love in an effort to hire him. [See,

e.g., Docket No. 27, at 16:10-12.]

2 Some of the exhibits that were utilized and entered into evidence

during the hearings on December 16 and 17, 2020, also appear as

exhibits or attachments in filings on the Docket. For ease of

reference, the Court will cite to the Docket version of those

exhibits. Any exhibits that do not appear on the Docket will be

cited as they were identified upon being entered into evidence at

the hearings. (For example, “Hearing Exhibit P-M.”)

16. Brown was involved with the negotiations. [See id. at 105:16-

24.]

1. The Original Offer Letter and Agreement

17. Sunbelt made its first employment offer to Love on August 2,

2018, by presenting Love with an offer letter (the “Original Offer

Letter”) and a standard employment agreement (the “Original

Agreement”). [See Docket No. 20-1, Exhibits 1-A, 1-B.]

18. The Original Offer Letter listed the position of Sales

Development Director at PC 1092 in Paulsboro, New Jersey. [Id. at

Exhibit 1-A.]

19. The Original Offer Letter outlined Love’s salary and other

terms of employment and stated that his signature would indicate

his acceptance of the employment offer. [Id.]

20. The Original Offer Letter had a signature line at the bottom

for Love to sign and date, above which the words “Agreed and

Accepted” appeared. [Id.]

21. Neither Love nor a Sunbelt representative ever signed the

Original Offer Letter. [See id.; Docket No. 29, at 129:21-22.]

22. The Original Agreement contained, among other provisions,

confidentiality, non-competition, and non-solicitation clauses,

which is typical for Sunbelt’s employees who will have access to

sensitive information that could provide a competitor with an

unfair advantage. [See Docket No. 20-1, Exhibit 1-A; Docket No.

27, at 44:11-16.]

23. The Original Agreement included a line for Love to mark his

initials at the bottom right-hand corner of each of its twelve

pages. [Docket No. 20-1, Exhibit 1-B.]

24. The initial line of the Original Agreement was prefaced by

the following text: “Initial by Michael Love (PC # 1092).” [Id.]

25. The Original Agreement’s Non-Compete Clauses would have

precluded Love, for a period of one year after the date of his

termination from employment with Sunbelt, from working for a

Sunbelt competitor within a defined “Territory,” among other

things. [Id., Exhibit 1-B, ¶ 5.2.2.]

26. The Original Agreement’s Non-Compete Clauses defined

“Territory” as

the geographical area within a fifty (50) mile radius of

any of [Sunbelt’s] stores in which, or in connection

with which, Employee performed or was responsible for

performing services at any time during the twelve (12)

month period immediately preceding the termination or

expiration of this Agreement for any reason (the

“Designated Stores”).

[Id., Exhibit 1-B, at 5.]

2. Love Hires Counsel

27. After receiving the Original Offer Letter and Agreement, Love

hired attorney Frank A. Piarulli to assist him in negotiating the

terms of his employment. [Docket No. 29, at 82:14-18.]

28. Piarulli was admitted to practice law in New Jersey in

December 1988 and is an active New Jersey attorney in good

standing. [See Attorney Search Results, N.J. COURTS,

https://portalattysearch-cloud.njcourts.gov/prweb/PRServletPubli

cAuth/-amRUHgepTwWWiiBQpI9_yQNuum4oN16*/!STANDARD?AppName=Attorn

eySearch (last visited Jan. 8, 2021).] Piarulli did not testify at

the hearing.

29. During these negotiations, Love and his attorney were paying

attention to the definition of “Territory” in the Non-Compete

Clauses. [Docket No. 29, at 126:22-127:2 (“Q: So [the definition

of territory] was something that you, along with your attorney at

the time, was — were paying attention to, correct? A: Yes.”).]

3. The Final Offer Letter and Agreement

30. On August 16, 2018, Sunbelt presented Love with another offer

letter (the “Final Offer Letter”) and employment agreement (the

“Final Agreement”). [See Docket No. 20-1, Exhibits 3-A, 3-B.]

i. The Final Offer Letter

31. The Final Offer Letter was “for the position of Sales

Development Director at PC 1092 in Paulsboro, NJ.” [Compare id.,

Exhibit 1-A, with id., Exhibit 3-A.]

32. However, unlike the Original Offer Letter, the Final Offer

Letter was signed by a Sunbelt representative (Brown) and did not

have a signature line for Love to sign and date, nor any language

indicating that Love had “agreed and accepted” the offer. [Compare

id., Exhibit 1-A, with id., Exhibit 3-A.]

33. The Final Offer Letter did not provide that its provisions

were legally binding on either party. [See id., Exhibit 3-A.]

ii. Job Duties and Term (Paragraphs 2 and 4)

34. The Final Agreement states that Love “shall perform such

duties as may be reasonably required by the Board of Directors

(‘Board’), the Chief Executive Officer or their designee from time

to time.” [Compare id., Exhibit 1-B, ¶ 2, with id., Exhibit 3-B,

¶ 2.]

35. The Final Agreement provides that

it shall be automatically extended for successive one

year periods unless either party notifies the other that

it does not intend for the term to be extended, which

notice shall be given . . . at least ninety days prior

to the expiration of the then-current term of this

Agreement.

[Compare id., Exhibit 1-B, ¶ 4.1, with id., Exhibit 3-B, ¶ 4.1.]

36. Unlike the Original Agreement, the Final Agreement provides

that the initial term of the Agreement is two years, not one.

[Compare id., Exhibit 1-B, ¶ 4.1, with id., Exhibit 3-B, ¶ 4.1.]

iii. Non-Competition Clauses (Paragraphs 5.2.4 and

5.2.5) and Pertinent Definitions

37. The two non-competition clauses (Paragraphs 5.2.4 and 5.2.5)

contained in the Original and Final Agreements were identical.

[Compare id., Exhibit 1-B, ¶¶ 5.2.4, 5.2.5, with id., Exhibit 3-

B, ¶¶ 5.2.4, 5.2.5.]

38. The two Non-Compete Clauses contained in the Final Agreement

provide that, during the Agreement term and for one year after the

Agreement expired or was terminated for any reason (the

“Restrictive Period”), Love

shall not directly or indirectly:

. . . .

5.2.4 compete with the Corporation, its

successors and assigns by engaging, directly or

indirectly, in the Business as conducted at the

Designated Stores or in a business substantially similar

to the Business as conducted at the Designated Stores,

within the “Territory,” as hereinafter defined; or

5.2.5 provide information to, solicit or sell

for, organize or own any interest in . . . , or become

employed or engaged by, or act as agent for any person,

corporation, or other entity that is directly or

indirectly engaged in business in the “Territory”

. . . , which is substantially similar to the Business

as conducted at the Designated Stores or competitive

with Corporation’s Business as conducted at the

Designated Stores; provided, however, that nothing

herein shall preclude the Employee from (i) engaging in

activities or being employed in a capacity that do not

actually or potentially compete with Corporation’s

Business or (ii) holding not more than one percent (1%)

of the outstanding shares of any publicly held company

which may be so engaged in a trade or business identical

or similar to the Business of the Corporation.[3]

[Compare id., Exhibit 1-B, ¶¶ 5.2.4, 5.2.5, with id., Exhibit 3-

B, ¶¶ 5.2.4, 5.2.5 (emphases added).]

39. The Final Agreement modified the definition of “Territory” to

replace the phrase “performed or was responsible for performing

3 “Corporation” is defined as Sunbelt Rentals, Inc., in the

Agreement.

services” with the phrase “was assigned,” such that the final

language reads as follows:

As used herein, the “Territory” means: the geographical

area within a fifty (50) mile radius of any of the

Corporation’s stores in which, or in connection with

which, Employee was assigned to at any time during the

twelve (12) month period immediately preceding the

termination or expiration of this Agreement for any

reason (the “Designated Stores”).

[Id., Exhibit 3-B, at 5; compare id., Exhibit 1-B, at 5, with id.,

Exhibit 3-B, at 5.]

40. The Final Agreement does not specifically define the terms

“stores,” “assigned to,” or “in connection with.” [See id., Exhibit

3-B.]

41. The Final Agreement does not require Sunbelt to provide Love

with either verbal or written notice of changes to his job duties

or assignment. [See id.] Stated differently, the Final Agreement

does not state that Love’s role and duties were confined to PC

1092 only during the course of his employment.

42. The Final Agreement did not modify the Original Agreement’s

definition of “Business,” which is:

the business of (i) selling and renting equipment,

tools, climate control units, scaffolding, oil & gas

equipment (including, but not limited to, man lifts,

generators, light towers, trash trailers, shock subs,

test separators, shower trailers, trash pumps, 3” water

pumps, 6” water pumps, water transfer services, fuel

trailers, air compressors, water stations, RV pack

(light tower/water station combination), trailer houses,

sewer systems, etc.) and parts for use in the

manufacturing, industrial and construction industries,

(ii) the sale of new and used OCTG[4] goods, frac valve

repairs, 500BBL tanks, interior & exterior coatings,

heater trailers, burner assemblies for heater treaters;

(iii) selling and renting tools, climate control units

and homeowner repair equipment to retail consumers, . .

. (iv) the provision of related services, including, but

not limited to, the erecting and dismantling of

scaffolding, providing crane trucks, delivery of OCTG

goods, delivery of frac valves, burner installation and

repair, test separator repair, catering services and

portable restroom services . . . [and (v)] any other

lines of business in which the Corporation becomes

engaged during the term of this Agreement.

[Compare id., Exhibit 1-B, ¶ 5, with id., Exhibit 3-B, ¶ 5.]

iv. Confidentiality and Non-Solicitation Clauses

(Paragraphs 5.1, 5.2.1, and 5.2.2)

43. The Final Agreement’s confidentiality provisions and employee

non-solicitation provisions are identical to those provided for in

the Original Agreement. [Compare id., Exhibit 1-B, ¶¶ 5, 5.1,

5.2.1, with id., Exhibit 3-B, ¶¶ 5, 5.1, 5.2.1.]

44. The Final Agreement’s confidentiality provision provides as

follows:

5.1 During the term of this Agreement and after

its termination or expiration for any reason, Employee

will not, without Corporation’s prior written consent,

use, divulge, disclose, furnish, or make accessible to

4 This acronym is undefined in the Agreement.

any third person, company, or other entity any aspect of

Confidential Information, Intellectual Property, or

Proprietary Materials for any purpose, including through

an online social networking website, except on

Corporation’s behalf.

[Id., Exhibit 3-B, ¶ 5.1.]

45. The Final Agreement defines “Confidential Information”

broadly, to include

Existing and future equipment information, customer

lists, identities of distributors and distributorships,

sales methods and techniques, costs and costing methods,

pricing techniques and strategies, sales agreements with

customers, profits and product line profitability

information, unpublished present and future marketing

strategies and promotional programs, and other

information regarded by Corporation as proprietary and

confidential . . . .

[Id., Exhibit 3-B, ¶ 5; compare id., Exhibit 1-B, ¶ 5, with id.,

Exhibit 3-B, ¶ 5.]

46. The Final Agreement’s employee non-solicitation provision

prohibits Love from:

solicit[ing] on behalf of a competing business the

employment of, any person who at any time during the

twelve (12) calendar months immediately preceding the

termination or expiration of this Agreement was employed

by Corporation.

[Id., Exhibit 3-B, ¶ 5.2.1.]

47. The only provision in this section of the Final Agreement

that was modified was Paragraph 5.2.2 — the Agreement’s customer

non-solicitation provision. [Compare id., Exhibit 1-B, ¶ 5.2.2,

with id., Exhibit 3-B, ¶ 5.2.2.] Unlike the Original Agreement,

the geographic restriction for the non-solicitation provision in

the Final Agreement is limited in scope only to Love’s Territory,

and does not also include other locations where Love had “business

contact” with those customers. [Compare id., Exhibit 1-B, ¶ 5.2.2,

with id., Exhibit 3-B, ¶ 5.2.2.]

48. Omitted from Paragraph 5.2.2 of the Final Agreement was the

following language: “and to any office, store or other place of

business in which, or in connection with which, Employee has had

business contact with such persons or entities during the twelve

(12) calendar months immediately preceding the termination or

expiration of this Agreement for any reason.” [Compare id., Exhibit

1-B, ¶ 5.2.2, with id., Exhibit 3-B, ¶ 5.2.2.]

49. In all other respects, the Final Agreement’s confidentiality

and non-solicitation provisions were identical to the Original

Agreement’s. [Compare id., Exhibit 1-B, at 4-5, with id., Exhibit

3-B, at 3-5.]

v. Other Pertinent Provisions

50. The Final Agreement contains a stipulation that Love’s

breach of the restrictive covenant would cause irreparable damages

to Sunbelt. [Compare id., Exhibit 1-B, ¶ 5.3.1, with id., Exhibit

3-B, ¶ 5.3.1.]

51. The Final Agreement contains a tolling provision that

provides that the Restrictive Period would not “include any period

of time in which [Love] is in violation of the Restrictive

Covenants.” [Compare id., Exhibit 1-B, ¶ 5.3.3, with id., Exhibit

3-B, ¶ 5.3.3.]

52. The Final Agreement includes an acknowledgement of

reasonableness relative to the restrictive covenants. [Compare

id., Exhibit 1-B, ¶ 10, with id., Exhibit 3-B, ¶ 10.]

53. The Final Agreement contains an integration clause stating

that the Agreement is the entire agreement of the parties. [Compare

id., Exhibit 1-B, ¶ 15, with id., Exhibit 3-B, ¶ 15.]

54. Unlike the Original Agreement, the Final Agreement provided

that Love was entitled to receive “240 hours (6 weeks) of Paid

Time Off (PTO) each year to be used in accordance with

Corporation’s policy in effect from time to time.” [Compare id.,

Exhibit 1-B, ¶ 3.1.3, with id., Exhibit 3-B, ¶ 3.1.3.]

55. Unlike the Original Agreement, the Final Agreement provided

Love with the opportunity to terminate the contract with or without

cause during its initial term, with notice to Sunbelt. [Compare

id., Exhibit 1-B, ¶¶ 4.2-4.2.2, with id., Exhibit 3-B, ¶ 4.2.3.]

56. The Final Agreement did not integrate Love’s Final Offer

Letter as a contractual provision. [Compare id., Exhibit 1-B, with

id., Exhibit 3-B.]

57. The Final Agreement integrates a “Schedule 1,” which was

paginated with the Employment Agreement and provided that Love’s

base salary would be $300,000 for the first two years of his

employment. [Compare id., Exhibit 1-B, at 12, with id., Exhibit 3-

B, at 10.]

58. Unlike the Original Agreement, Schedule 1 of the Final

Agreement included bonus provisions, providing that Love was

entitled to a one-time bonus of $50,000 at the end of each of his

first two years of employment, and a retention bonus in the amount

of $250,000, less applicable taxes and deductions, at the end of

two years (or earlier, upon specified conditions). [Compare id.,

Exhibit 1-B, at 12, with id., Exhibit 3-B, at 10.]

59. The Final Agreement provided lines for Love to mark his

initials at the bottom right-hand corner of each agreement page.

[Compare id., Exhibit 1-B with id., Exhibit 3-B.]

60. However, unlike the Original Agreement, which included

“Initial by Michael Love (PC # 1092)” next to Love’s initial line

on each page, the Final Agreement included only “Initial by Michael

Love” next to Love’s initial line on each page with no reference

to the Paulsboro PC. [Compare id., Exhibit 1-B with id., Exhibit

3-B.]

61. The Final Agreement does not reference the Paulsboro, New

Jersey PC (1092) either by name or by number. [See id., Exhibit 3-

B.]

4. Love’s Decision to Sign the Final Agreement

62. Love certified that he was hesitant to sign the Original

Agreement because he “wanted a more prominent national role Brown

was proposing and the increased earning opportunities that would

attend such a role.” [See Docket No. 29, at 69:15-21.]

63. Love certified and testified: “Throughout my negotiations

with Brown, I made clear that because Sunbelt was not placing me

in a national role to start, I would not agree to any post-

employment restrictive covenant that restricted my ability to

compete outside the Paulsboro market.” [Docket No. 20-1, ¶ 9;

Docket No. 29, at 70:21-71:22],

64. Love testified that he would not have agreed to a contract

that restricted him nationally because “[i]t would have taken [his]

livelihood away from [him] for 12 months.” [Id. at 73:4-5.]

65. Conversely, Brown testified that “[s]trictly on the basis

from a common sense standpoint, it would make no sense to agree to

that kind of covenant when [Love’s] sole purpose for coming on

board was to grow and merge the national customers he was

responsible for.” [Docket No. 27, at 52:10-13.]

66. Brown testified that, given Love’s job responsibilities,

Brown would not have agreed to Love being restricted solely within

the 50-mile radius around Paulsboro, New Jersey. [Id. at 53:16-

21.]

67. The negotiations outlined above illustrate that, while Love

was initially concerned that his role was going to be limited to

the Paulsboro location, Sunbelt addressed those concerns to Love’s

satisfaction before he signed the Final Agreement as set forth

below. [See Docket No. 27, at 58:18-59:1.]

68. At the time that the parties agreed to the Final Agreement,

it was clear to all parties that Love’s role would be national in

nature. [Docket No. 29, at 32:20-21.]

69. There was no suggestion that Love’s role would be limited to

“working at a single location,” such as the Paulsboro location.

[See, e.g., id.; Docket No. 27, at 58:18-20.]

70. The evidence presented supports Sunbelt’s position that the

reason Love agreed to sign the amended agreement was because Brown

made clear, and Love understood, that his role would be a national

role.

71. Indeed, Love negotiated an annual salary of $300,000, an

annual bonus of $50,000, and a retention bonus of $250,000 after

two years, all of which are commensurate with an employee who held

a national role. [See Docket No. 20-1, Exhibit 3-B, at 10; Docket

No. 27, at 59:2-6, 138:13-14.]

72. Brown’s testimony that the company’s records were maintained

a certain way explains that other employees were not able to know

of Love’s high salary was credible and supported by documentary

evidence. [Docket No. 27, at 58:20-59:6.]

73. Love’s testimony — that after having been with Sunbelt for

years, part of his concern at the end of his employment was getting

a national title which he considered to be distinct from a national

role — supports the Court’s conclusion that Love understood he had

a national role from the beginning of his employment. [See, e.g.,

Docket No. 29, at 64:11-15.]

74. Brown credibly testified: “I don’t even remember the words

[sic] ‘title’ being used until these proceedings. We always talked

about a role. . . . You [referring to the lawyers] all brought in

title, not me. [Love] had a national role always from day one.”

[Id. at 32:16-21.]

75. The Court thus finds that during the negotiations and at the

time Love signed the Final Agreement, Love had only expressed a

desire to have a national role, but did not demand a national

title.

76. The parties and their respective counsel negotiated the

contract and exchanged approximately seven different versions,

until the parties reached an agreement as to the appropriate terms

on August 17, 2018. [Id. at 71:4-6; Docket No. 16-1, Exhibit A, at

8.]

77. Love signed the Final Agreement because the parties’

negotiations provided assurances that Love was going to be in a

national role, as he demanded, and that his role would not be

limited to Paulsboro. [See Docket No. 27, 58:18-59:1.]

78. Upon being hired, Love was initially internally assigned to

PC 1092 in Paulsboro. [Id. at 13:15-24, 47:10-14.] This was done,

however, merely “as a placeholder in [the] payroll system, so

[Sunbelt] could pay” Love. [Id. at 13:18-20.]

79. Additionally, Love’s supervisor was initially listed as

Taylor Romig, who was a Human Resources employee assigned to assist

Sunbelt transition and onboard Love and other Interstate hires.

[Id. at 57:23-58:11.]

80. Romig does not have any particular connection to PC 1092,

aside from onboarding employees there. [Id. at 58:9-11.]

81. Indeed, the Final Agreement contemplates “[c]hanges in or

additions to Employee’s duties or title(s) under this Agreement.”

[See Docket No. 20-1, Exhibit 3-B, ¶ 2.]

82. Love’s testimony that he believed he was confined only to the

Paulsboro store when he signed the Final Agreement is not credible.

The following findings further demonstrate the Court’s finding.

C. Love Had a National Role

83. Love was hired to transition his Interstate customers over to

Sunbelt. [See, e.g., Docket No. 27, at 138:20-23; Docket No. 29,

at 64:13-15.]

84. There is no dispute that this was a national role, given that

the Interstate customers were located all over the country. [See,

e.g., Docket No. 29, at 143:7-21.]

85. On August 20, 2018, three days after the Final Agreement was

signed, Sunbelt changed Love’s internal assignment from PC 1092 to

CC 0873 — the Eastern Territory Cost Center. [Docket No. 24-1,

Exhibit C.] This change was reflected in Workday as of August 24,

2020. [Id.]

86. Love remained assigned to CC 0873 for the rest of his time

with Sunbelt, including the twelve months prior to his resignation.

[Id.]

87. At the same time, Sunbelt changed Love’s supervisor from Romig

to Brown. [Docket No. 27, at 58:16-17.]

88. These changes were made to reflect the mutual agreement

between the parties that Love would not work at a single location,

but rather would serve a national role, which was better suited to

CC 0873 and Brown’s supervision. [Id. at 58:23-59.]

89. These changes were made on Workday, Sunbelt’s internal human

resources system. [See id. at 55:19-23.]

90. All Sunbelt employees can access their own Workday profiles,

which is where they can update career interests and request paid

time off. [Id. at 59:17-19; Docket No. 29, at 70:2-5.]

91. Therefore, via his Workday profile, Love could access and

view the changes made to his internal designation and supervisor.

[See Docket No. 27, at 55:19-23.]

92. Throughout his employment, Love did access and make changes

to his Workday profile. [Docket No. 29, at 83:8-16.]

93. Love did not, however, get any sort of affirmative notice

(for example, an email or push notification) of this change.5 [See

id. at 55:24-56:25.]

94. At no time during his employment with Sunbelt did Love report

to Jeff Labinski, the then-Manager of PC 1092. [Id. at 64:5-9.]

95. Love’s salary was roughly three times greater than

Labinski’s. [Id. at 64:12.]

96. At no time during his employment with Sunbelt did Love report

to Joshua Johnson, the District Manager of the Delaware Valley

District (which includes PC 1092). [See id. at 64:13-18, 65:11-

14.]

97. Love’s salary was roughly two times greater than Johnson’s.

[Id. At 65:19.]

98. At no time during his employment with Sunbelt did Love report

to Joel Theros, the Vice President of Region Two (which includes

PC 1092). [Id. at 65:21-23, 66:4-9.]

5 As mentioned, such notice is not required under the Final

Agreement. [See supra, ¶ 41.]

99. Love’s salary was roughly 1.5 times greater than Theros’s.

[Id. at 66:17-18.]

100. On August 21, 2018 — four days after signing the Final

Agreement — Love emailed Brown to ask for assistance in “best

understand[ing] how [Love] can help grow the national platform.”

[Docket No. 24-1, Exhibit F; Docket No. 27, at 68:15-16.]

101. On September 20, 2018, Love emailed Brown to indicate that he

was working with Rick Piper, Sunbelt’s Vice President of National

Accounts, to gain an “understanding of how the National Program

functions as a Team and the pro’s [sic] and con’s [sic] of the

process to get [things] done at the street level.” [Hearing Exhibit

P-S.]

102. In June 2019 — less than a year after starting with Sunbelt

— Love requested permission from Brown to move to California.

[Docket No. 27, at 82:13-15.] This request was granted, and Love

moved to California on June 28th, 2019. [Docket No. 29, at 90:2-

3.] As Love testified, Brown had no issue with Love moving to

California “because [Love] could work remotely like every other

national account manager.” [Id. at 77:1-10, 151:20-152:2.]

103. Unlike Love, all of the approximately 50 Sunbelt employees

specifically assigned to PC 1092 lived close enough to Paulsboro

so that they could report to that location for their regular

workdays. [Docket No. 27, at 83:2-6.]

D. Love’s Access to Confidential Documents

104. During his time at Sunbelt, Love successfully performed the

duties that were assigned to him. [Id. at 49:5-8.]

105. Love’s responsibilities expanded beyond simply transferring

the Interstate customers to Sunbelt, as he continued to work with

many of Sunbelt’s national customers after the transition was

complete. [See, e.g., Docket No. 20-1, Exhibits G, I.]

106. These national customers included: AMECO, Fluor Corporation,

Fluor Government Group, Fluor Service, Monroe Energy, PBF

Refining, PSEG Facilities, Betchel Corporation, Gemma Power

Systems, SNC Lavalin American Inc., Nooter Corporation, Burns &

McDonnell, Sentry Electric Group, IEA Renewable Energy, First

Solar Inc., and Sargent & Lundy. [Id., Exhibit G; see also Docket

No. 29, at 147:11-19, 150:20-151:6.]

107. In an email sent to Brown and others on May 11, 2020, Love

described the tasks he had accomplished since his hiring, which

included: assisting in transferring Interstate’s customer base;

assisting Sunbelt’s National Sales Team with customers that Love

had strong relationships with (including Kiewit, APi Group, Ameco,

Fluor, AECOM, Riggs, and Superior Construction); bringing “new

opportunity in through RFQ/RFP’s approvals”; assisting with

Sunbelt’s Industrial Resource Group on the West Coast while Sunbelt

sought out a Regional Manager for the area; and continuing to work

with a West Coast profit center and sales team. [Docket No. 24-1,

Exhibit I.]

108. Sunbelt allowed Love’s initial contract to automatically

renew for one year when it expired on August 17, 2020. [See Docket

No. 20-1, Exhibit 3-B, ¶ 4.1.]

109. As a result of Love’s responsibilities, he had access to

Sunbelt’s highly sensitive customer information, business

strategies, and pricing details. [Docket No. 27, at 83:7-15.]

110. Moreover, in his position Love was privy to knowledge of

situations in which customers were dissatisfied with Sunbelt or

Interstate Aerials’ current operating procedures. [Id. at 84:1-

4.]

111. On September 23, 2020, Love forwarded from his work email to

his personal email four documents, containing highly sensitive

materials of Sunbelt, entitled: (1) “Copy of PBF Bid 2019_03_Last

Chance Revision — WH,” which was a confidential document providing

information regarding Sunbelt’s pricing and the company’s ability

to perform for that customer relative to its competitors; (2) “PBF

Refinery Contracts”; (3) “Copy of Copy of Strategic National

Accounts Directory,” which contained contact information for each

of Sunbelt’s national account directors and the customers —

including some of Sunbelt’s top sellers and customers — for which

those individuals were responsible; and (4) “API Group

Responsibility,” which contains Sunbelt’s offerings and requests

between Sunbelt and the customer API Group. [See Docket No. 27, at

84:24-91:9.]

112. Sunbelt is justifiably concerned that the directory could be

used by Love and/or his new employer EquipmentShare to gain an

advantage because it provides a contact list of Sunbelt’s top

customers that a competitor such as EquipmentShare could use to

grow its national account business, which Love has admitted he

seeks to do. [See Docket No. 16-1, Exhibit E.]

113. The next day, September 24, 2020, Love forwarded two batches

of documents from his work email to his personal email. [Hearing

Exhibit P-M.]

114. The first batch contained documents relating to Sunbelt’s

projects with Kiewit, such as pricing information, restrictions,

and the geographies in which the company is operating. [Id.; Docket

No. 27, at 92:5-8.]

115. The second batch contained documents that were highly

detailed and had financial breakdowns for Sunbelt’s business with

another client, AMECO. [Hearing Exhibit P-M; Docket No. 27, at

91:15-92:1.]

116. Four days before his resignation, on September 28, 2020, Love

sent a document titled “Kiewit — Power Projects 7-22-29” to his

brother, Scott Love, of Platinum Specialty Services, a customer of

Sunbelt that provides scaffolding and insulation services

throughout the United States. [Docket No. 29, at 102:3-7; Hearing

Exhibit P-V.]

117. The document contained information regarding Sunbelt’s

projects with Kiewit, including project names, assigned equipment

managers, start dates, and notes regarding the status of each

project. [Docket No. 29, at 106:9-15.]

118. Love admits to having sent this email — the body of which

read, “Let me know you received this.” — to his brother and has no

reason to believe that his brother did not access the email and

its attachments. [Id. at 109:9-16.]

119. One week later, on October 2, 2020, Love resigned from

Sunbelt. [Id. at 31:4-5.]

120. Approximately one week after Love’s resignations, Sunbelt

learned that Love had begun working for EquipmentShare. [Docket

No. 16, ¶ 65.]

121. EquipmentShare is a direct competitor of Sunbelt’s because it

is engaged in the business of selling and renting equipment and

tools for use in construction, industrial arenas, and

manufacturing. [Id., ¶ 65.]

122. EquipmentShare is a relatively new company to the equipment

rental industry, and Love, by his own admission in a text message

to Brown, joined EquipmentShare to “compete against [Sunbelt’s]

National Team.” [Docket No. 16-1, Exhibit E.]

123. EquipmentShare competes with Sunbelt within a 50-mile radius

of Sunbelt stores encompassed by CC 0873. [See Docket No. 16, ¶

71; Docket No. 16-1, Exhibit F.]

124. Love admits that he took the aforementioned documents because

he was angry at and frustrated with Sunbelt for not, by his

estimation, providing him an adequate “opportunity to earn and

make a living that [he] was used to.”6 [Docket No. 29, at 58:15-

59:12.]

125. Love testified that the numerous emails he sent to himself

and his brother were simply a regrettable mistake, the product of

him allowing his “ego to get involved.” [Id.]

126. Love also testified that he only sent the emails in question

while he was “cleaning [his] laptop out to be transferred back to

[Sunbelt] in a brief period of time” and that he simply “cleaned

[his] entire desktop off, personal and” work documents. [Id. at

59:10-11, 99:17-100:1.]

6 This despite the fact that Sunbelt paid Love the same salary that

he had been receiving at Interstate and that, approximately a month

prior to his resignation, his contract had been renewed. [See

Docket No. 20-1, Exhibit 3-B, ¶ 4.1 & p. 10.]

127. Love even testified that he “had not a clue of what was in

the” documents that he disseminated, which, of course, flies in

the face of his email to his brother, in which he specifically

asked his brother to confirm receipt of the email.

128. Love testified that he “never opened” any of the emails that

he sent to himself and that he no longer has any of the materials

that he sent to himself. [Id. at 59:13-18.]

129. Love certified on December 14, 2020, in response to this

litigation, that he “caused the destruction of all the originals

and copies” of the emails that he sent himself. Docket No. 24-1,

Exhibit L.]

130. Love’s certification and testimony does not provide any basis

to find that Love’s brother never accessed the document(s) that

Love sent him.

131. Love’s certification and testimony does not provide any basis

to find that Love’s brother does not still have access to the

document(s) that Love sent him.

132. Love’s certification and testimony does not provide any basis

to find that Love did not further misappropriate the documents,

for instance by forwarding them to other individuals from his

personal email address. Love skirted around most questions about

these emails in his testimony, and to the extent that he did

respond to questions, his responses at times were evasive. Love’s

testimony about the emails that he sent to himself and his brother

raises further questions in this Court’s mind, and Love’s testimony

that he “never opened” the emails is unconvincing.

II. CONCLUSIONS OF LAW

Sunbelt seeks to enjoin Love from (1) working for

EquipmentShare (or any similar competitor) and (2) disclosing,

using, or otherwise misappropriating Sunbelt’s confidential

information and trade secrets.

The Court may issue a preliminary injunction pursuant to Rule

65 of the Federal Rules of Civil Procedure when the party seeking

the injunction demonstrates

(1) a likelihood of success on the merits; (2) that it

will suffer irreparable harm if the injunction is

denied; (3) that granting preliminary relief will not

result in even greater harm to the nonmoving party; and

(4) that the public interest favors such relief. The

failure to establish any element of that test renders a

preliminary injunction inappropriate.

Arrowpoint Capital Corp. v. Arrowpoint Asset Mgmt., LLC, 793 F.3d

313, 318-19 (3d Cir. 2015) (internal citations and quotations

omitted); see also, Glossip v. Gross, 576 U.S. 863, 876 (2015) (“A

plaintiff seeking a preliminary injunction must establish that he

is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.”) (quoting Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7, 20 (2008)). On an application

for a preliminary injunction, a plaintiff need only “make a showing

of reasonable probability, not the certainty, of success on the

merits.” Atlantic City Coin & Slot Serv. Co. v. IGT, 14 F. Supp.

2d 644, 657 (D.N.J. 1998).

According to the Third Circuit,

a movant for preliminary equitable relief must meet the

threshold for the first two ‘most critical’ factors: It

must demonstrate that it can win on the merits (which

requires a showing significantly better than negligible

but not necessarily more likely than not) and that it is

more likely than not to suffer irreparable harm in the

absence of preliminary relief. If these gateway factors

are met, a court then considers the remaining two factors

and determines in its sound discretion if all four

factors, taken together, balance in favor of granting

the requested preliminary relief. . . . ‘How strong a

claim on the merits is enough depends on the balance of

the harms: the more net harm an injunction can prevent,

the weaker the plaintiff’s claim on the merits can be

while still supporting some preliminary relief.’

Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017)

(quoting Hoosier Energy Rural Elec. Cooperative, Inc. v. John

Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009)).

Here, Sunbelt is pursuing a common law breach of contract

claim and claims under the Defend Trade Secrets Act, 18 U.S.C. §

1836 et seq. (the “DTSA”), and the New Jersey Trade Secrets Act,

N.J. STAT. ANN. § 56:15-1 et seq. (the “NJTSA”). [See Docket No. 1,

¶¶ 89-124.] The Court will discuss each in turn.

A. Breach of Contract Claim

The Court will first address whether Sunbelt is entitled to

the issuance of a preliminary injunction based on its breach of

contract claims. The Court’s analysis will follow the requirements

for a preliminary injunction: (1) a likelihood of success on the

merits, (2) that Sunbelt will suffer irreparable harm if the

injunction is denied, (3) that granting preliminary relief will

not result in even greater harm to Love, and (4) that the public

interest favors such relief.

1. Likelihood of Success on the Merits

In New Jersey, a breach of contract claim requires the

plaintiff to show: (1) the existence of a valid contract between

the parties; (2) the defendant materially breached the contract;

(3) the plaintiff suffered damages as a result of the defendant’s

breach; and (4) the party stating the claim satisfied its

contractual obligations. See Frederico v. Home Depot, 507 F.3d

188, 203 (3d Cir. 2007).

When interpreting contracts, courts must “examine the plain

language of the contract and the parties’ intent, as evidenced by

the contract’s purpose and surrounding circumstances.” State

Troopers Fraternal Ass’n of New Jersey, Inc. v. State, 692 A.2d

519, 523 (N.J. 1997). “Contracts should be read ‘as a whole in a

fair and commonsense manner.’” Manahawkin Convalescent v. O’Neill,

85 A.3d 947, 958 (N.J. 2014) (citation omitted) (alteration

omitted). “If the language of a contract is plain and capable of

legal construction, the language alone must determine the

agreement’s force and effect.” Id. at 958-59 (alterations

omitted). But “[e]ven in the interpretation of an unambiguous

contract, [courts] may consider ‘all of the relevant evidence that

will assist in determining [its] intent and meaning.’” Id. at 959

(quoting Conway v. 287 Corporate Ctr. Associates, 901 A.2d 341,

346 (N.J. 2006)).

Here, the principal issues involve the breadth and

enforceability of the Non-Compete Clauses (Paragraphs 5.2.4 and

5.2.5) in the Final Agreement between Love and Sunbelt. As noted

above, these Clauses stated that Love

shall not directly or indirectly:

. . . .

5.2.4 compete with the Corporation, its

successors and assigns by engaging, directly or

indirectly, in the Business as conducted at the

Designated Stores or in a business substantially similar

to the Business as conducted at the Designated Stores,

within the “Territory,” as hereinafter defined; or

5.2.5 provide information to, solicit or sell

for, organize or own any interest in . . . , or become

employed or engaged by, or act as agent for any person,

corporation, or other entity that is directly or

indirectly engaged in business in the “Territory”

. . . , which is substantially similar to the Business

as conducted at the Designated Stores or competitive

with Corporation’s Business as conducted at the

Designated Stores; provided, however, that nothing

herein shall preclude the Employee from (i) engaging in

activities or being employed in a capacity that do not

actually or potentially compete with Corporation’s

Business or (ii) holding not more than one percent (1%)

of the outstanding shares of any publicly held company

which may be so engaged in a trade or business identical

or similar to the Business of the Corporation.[7]

[Docket No. 20-1, Exhibit 3-B, ¶¶ 5.2.4, 5.2.5 (emphases added).]

Central to the present dispute is the Final Agreement’s

definition of “Territory,” which both Non-Compete Clauses invoke:

the geographical area within a fifty (50) mile radius of

any of the Corporation’s stores in which, or in

connection with which, Employee was assigned to at any

time during the twelve (12) month period immediately

preceding the termination or expiration of this

Agreement for any reason.

[Id., Exhibit 3-B, at 5.]

a. The Parties Had a Valid Contract

The first element that Sunbelt must prove for its breach of

contract claim is that it and Love had a valid contract. In this

instance, that turns on whether or not the Non-Compete Clauses are

enforceable. Therefore, the Court’s analysis of this element will

determine whether the Non-Compete Clauses are enforceable.

i. Enforceability of the Non-Compete

Clauses

New Jersey courts apply “the Solari/Whitmyer test[,] for

determining whether a noncompete agreement is unreasonable and

7 “Corporation” is defined as Sunbelt Rentals, Inc., in the

Agreement.

therefore unenforceable.” Cmty. Hosp. Grp., Inc. v. More, 869 A.2d

884, 897 (N.J. 2005) (quoting Maw v. Advanced Clinical Commc’ns,

Inc., 846 A.2d 604, 609 (N.J. 2004)). That test requires the Court

to determine three things: (1) “whether . . . the restrictive

covenant was necessary to protect the employer’s legitimate

interests in enforcement, (2) whether it would cause undue hardship

to the employee, and (3) whether it would be injurious to the

public.” Id. (citing Karlin v. Weinberg, 390 A.2d 1161, 1166 (N.J.

1978)). “Depending upon the results of that analysis, the

restrictive covenant may be disregarded or given complete or

partial enforcement to the extent reasonable under the

circumstances.” Id. (citing Whitmyer Bros., Inc. v. Doyle, 274

A.2d 577, 580-81 (N.J. 1971)). The Court will address each prong

in turn.

1. Protecting Sunbelt’s Legitimate

Interests

The first prong requires the Court to determine that the

covenants protect the legitimate business interests of the

employer. See id. Interpreting New Jersey law, the Third Circuit

recently held that no employer has a “‘legitimate business interest

in preventing competition as such’ or simply prohibiting an

employee from exercising her ‘general knowledge’ within the

industry.” ADP, LLC v. Rafferty, 923 F.3d 113, 121 (3d Cir. 2019)

(quoting Whitmyer, 274 A.2d at 580). The Third Circuit continued,

however, that “New Jersey courts have stressed that employers have

‘patently legitimate’ interests in [protecting] their trade

secrets, confidential business information, and customer

relationships.” Id. (quoting Whitmyer, 274 A.2d at 581). “As long

as the restrictive covenant reasonably protects [at least] one of

these matters, the employer has adduced a ‘strong’ business

interest.” Id. (quoting Ingersoll-Rand Co. v. Ciavatta, 542 A.2d

879, 892 (N.J. 1988)).

Here, Love does not seem to dispute that the Non-Compete

Clauses in the Final Agreement seek to protect Sunbelt’s legitimate

business interests. Love was hired to a high-ranking position and,

unlike many of his coworkers, had access to information about

Sunbelt’s customers, pricing strategies, business development

strategies, sales tactics, and project information, in addition to

other proprietary and confidential information. Indeed, Love

appreciated the value of this information, given his decision to

email much of it to himself and his brother immediately before his

resignation. The Non-Compete Clauses clearly sought to protect

those particular interests. Therefore, as a matter of well-

established New Jersey law, the Court finds that the first prong

of the Solari/Whitmyer test is satisfied.

2. Undue Hardship to Love

The second prong of the Solari/Whitmyer test calls for the

Court to “balance the employer’s need for protection and the

hardship on the employee that may result” from the non-compete

clause. Id. at 126 (quoting Ingersoll-Rand, 542 A.2d at 894). In

doing this, the Court will consider three factors: the Non-Compete

Clauses’ “duration, [their] geographical limits, and the scope of

activities [they] prohibit.” See Cmty. Hosp., 869 A.2d at 897.

Although only the second factor is contested, the Court will

address each in turn.

a. Duration

Love does not argue that the duration is unreasonable, and

for good reason: courts in New Jersey regularly uphold covenants

not to compete for up to two years, especially for high-ranking

employees. See, e.g., id. at 897-98 (finding reasonable a duration

of two years); Acteon, Inc. v. Harms, No. 20-14851, 2020 WL

6694411, at *11 (D.N.J. Nov. 6, 2020) (finding reasonable a

duration of one year); ADP, LLC v. Pittman, Civ. No. 19-16237, at

*17 (D.N.J. Oct. 18, 2019) (finding reasonable a duration of one

year). Like the employees in those cases, Love was high-ranking at

Sunbelt. In line with those cases, among others, the Court will

find that the Non-Compete Clauses’ duration of one year is

reasonable.

b. Geographical Limits

The Clauses’ geographical limits is the central dispute in

this case. Sunbelt contends that the restrictive covenant is

national in scope. Love responds that based on the plain language,

the restrictive covenant applies only within a 50-mile radius of

the Paulsboro store, PC 1092 to which Love was assigned and any

effort to expand the definition of “Territory” to a national

territory defined by job duties or customers fails as a matter of

law.

Because of the parties’ different interpretations of the

definition of “Territory,” the Court must first address the diverse

interpretations. Only when the Court has determined what, in fact,

the geographical limitations of the Non-Compete Clauses are can it

determine whether or not those limitations are reasonable.

The contract language provides:

the geographical area within a fifty (50) mile radius of

any of the Corporation’s stores in which, or in

connection with which, Employee was assigned to at any

time during the twelve (12) month period immediately

preceding the termination or expiration of this

Agreement for any reason.

[Docket No. 20-1, Exhibit 3-B, at 5.]

Three key words or phrases that constitute the basis for the

parties’ differing interpretations: “stores,” “assigned to,” and

“in connection with.” The principal issue with the definition of

“Territory” is that it uses the phrase “stores in which, or in

connection with which, Employee was assigned to,” but it does not

define “stores,” “assigned to,” or “in connection with.” [See

Docket No. 20-1, Exhibit 3-B.] As the evidence has shown, an

employee can be designated with respect to a Profit Center and/or

a Cost Center. As Brown testified, PCs and CCs are not identical

for Sunbelt’s purposes. The restrictive covenant makes no

distinction between PCs and CCs.

The phrases “assigned to” and “in connection with which” are

broad, presumably because of the way that employees do their jobs

at Sunbelt. According to testimony from Brown and Love, employees

like Love are assigned to customer accounts, who themselves are

assigned to the various PCs that they do business with.

Simultaneously, employees are internally designated to a

particular PC or CC, as Love’s HR documents indicate.

Thus, although the restrictive covenant is not the model of

clarity, “stores” refers to both PCs and CCs; “assigned to” means

the PC(s) or CC(s) that are used to designate an employee in their

HR profile; and “in connection with” refers to the PCs and CCs

that are associated with the employee’s HR-assigned PC(s) and

CC(s). No other interpretation, based on the language of the

contract, makes sense. If the word “stores” had any other

definition, it would be completely meaningless in the terms of

this contract, since Sunbelt’s stores are internally referred to

as PCs and CCs. Moreover, any insistence that, for instance,

“assigned to” would somehow include the customer accounts that

Love worked on, when those accounts are not referenced in the

definition, is unavailing. The definition of “Territory” does not

contemplate an employee’s customer accounts; it merely

contemplates the store(s) to which the employee is assigned, and

those stores in connection with that store. Finally, an overly

broad interpretation of “in connection with” to include any store

with which the employee had a connection would conflict with other,

explicit portions of the definition. It would be contradictory to

include language limiting the definition to specific stores to

which the employee is assigned, only to then include language that

effectively eliminates that limitation by including any store with

which the employee is connected. In other words, there would be no

need to specifically include that provision — the stores to which

the employee is assigned — if the definition then simply included

any store that the employee has a “connection with.” In sum, the

Court finds that “Territory” means, in plain terms: 50 miles from

any PC(s) or CC(s) to which the employee was assigned, or in

connection with the PC(s) or CC(s) to which the employee was

assigned, in the twelve months prior to the termination of the

employee’s employment.8

Having determined what the clause defining “Territory” means,

the Court next resolves (1) what store Love was assigned to and

(2) what stores can reasonably be described as “in connection with”

that store. The evidence clearly shows that, within a week of

8 Sunbelt’s overly broad construction of “Territory,” as described

herein, would render Paragraph 5.2.5 superfluous. The Court’s

construction gives purpose to both Paragraphs 5.2.4 and 5.2.5.

signing the Final Agreement, Love was assigned to Cost Center 0873.

The evidence further showed that CC 0873 encompasses approximately

450 Profit Centers. Thus, Paragraph 5.2.4 restricts Love from

performing a role in which he competes with Sunbelt anywhere within

a 50-mile radius of any of the stores located within CC 0873’s

jurisdiction. Moreover, Paragraph 5.2.5, a broader provision,

prevents Love from working for any company that is engaged in a

business “substantially similar” to Sunbelt.9

Love argues that there is no writing signed by him that

“assigned” him to a store other than PC 1092. Yet, the Agreement

requires no such writing, despite explicitly contemplating

“[c]hanges in or addition to [Love’s] duties or title(s).” [Docket

No. 20-1, Exhibit 3-B, ¶ 2.] Moreover, Love’s efforts to persuade

this Court that he was assigned only to PC 1092 throughout the

course of his employment with Sunbelt is disingenuous. Love fights

hard for such position because EquipmentShare conducts no business

within 50 miles of Paulsboro, New Jersey. Contrary to Love’s

revisionist testimony, he was not assigned exclusively to PC 1092

within the twelve months prior to his departure from Sunbelt. Love

tries to explain away this glaring obstacle by claiming that at

the time of signing the Final Agreement and throughout his

9 Although Sunbelt has primarily focused on Paragraph 5.2.4 and

not on Paragraph 5.2.5, the Court separately analyzes both

Paragraphs in light of their distinct ramifications.

employment, Love was assigned to PC 1092. True, he initially

refused to sign any non-compete provision that would have limited

him outside of Paulsboro because Sunbelt was not offering him a

national role. But that all changed when at some point in the

negotiations, it was made clear and Love understood that he would

have a national role notwithstanding the Offer Letter’s PC 1092

placeholder designation.

As the Court has already established, Love’s testimony to the

contrary is not credible. Brown, whose testimony was credible,

testified that there would have been no way that Sunbelt would

have agreed to such limited non-compete clauses (a 50-mile radius

from Paulsboro, New Jersey) since it was offering Love a national

role. Both provisions of the Non-Compete Clauses reflect this

understanding. Paragraph 5.2.4 restricts Love from working in a

role that competes with Sunbelt within 50 miles of any store

associated with CC 0873. Broader still, Paragraph 5.2.5 precludes

Love from working for any Sunbelt competitor who engages in

“substantially similar . . . Business” within 50 miles of any store

associated with CC 0873. In the end, the Defendant got what he

bargained for and he was aware of the ramifications of the contract

that he signed. He was represented by counsel, and negotiations

spanned approximately seven draft agreements over the course of

approximately two weeks.

In addition to the pre-agreement negotiations, Love’s

employment also demonstrates that Love understood the national

scope of the Non-Compete Clauses, particularly Paragraph 5.2.5. He

was among the highest paid employees at Sunbelt. He was permitted

to move to California within a year of starting with Sunbelt. He

travelled across the country for his job. He reported to Brown, as

opposed to managers in the Paulsboro store or district. And, as

Love testified, he intended to spend the rest of his career at

Sunbelt, a factor that supports the conclusion he had a significant

role in the company similar to the national role he had at

Interstate. In short, it seems obvious that despite his initial

misgivings, Love agreed to broader Non-Compete Clauses because he

succeeded in obtaining what he wanted from Sunbelt: a national

role.

Love is now attempting to sow confusion where none exists.

His testimony that he was concerned about not getting a national

role “to start” is convenient, since, in the most technical sense,

he was assigned to PC 1092 for his first week of employment. But

that convenient testimony is not credible, given the by-now

belabored point that Love knew his role was national in nature

from day one. His reliance on the Final Offer Letter, which still

contained a reference to PC 1092, is belied by the fact that all

other references to PC 1092 — including the lines where he was to

put his initials — were removed. Within a week, Sunbelt reassigned

Love to CC 0873, which the contract permitted it to do, and which

was reflected in Love’s Workday profile. And, finally, Love was

not assigned to PC 1092 in the twelve months prior to his

resignation. Rather, he was assigned to CC 0873.

In short, the evidence shows that, through negotiations, Love

demanded a national role and was given a national role. It strains

credulity that, in light of that reality, the parties would have

had a mutual understanding that his Non-Compete Clauses were

permanently limited to a 50-mile radius from Paulsboro, New Jersey.

Instead, the only reasonable conclusion is that Love knew that he

was signing broader Non-Compete Clauses in exchange for, in part,

a national role that paid him handsomely.10

Therefore, the correct interpretation of “Territory,” as it

applies to Love, is anywhere within a 50-mile radius of any store

encompassed by Cost Center 0873, which is the store to which he

was assigned for the twelve months prior to his resignation. The

10 While Love’s interpretation of the Non-Compete Clauses is

incorrectly narrow, Sunbelt’s interpretation is exceedingly broad.

Sunbelt attempts to stretch the phrase “in connection with” to

mean that any store that Love had any connection with beyond his

assignment to CC 0873 is encompassed by the Non-Compete Clauses,

and therefore he cannot work for a competitor within 50 miles of

any of those stores. But this, too, misconstrues the Non-Compete

Clauses. Although it is true that Love’s work was more tied to

customer accounts than to physical stores, that is not how Sunbelt

and Love decided to define “Territory.” Because the Court finds

Paragraph 5.2.5 enforceable for the reasons set forth herein,

Sunbelt’s impermissibly broad interpretation of Paragraph 5.2.4 is

not fatal to its case.

Court must now consider whether the restrictive covenants’

geographic limits are reasonable. Initially, they are limited to

areas in which Sunbelt actually conducts business. Cf. Automobile

Club of S.N.J. v. Zubrin, 12 A.2d 369, 370 (N.J. Super. Ct. Ch.

Div. 1940). Moreover, the geographic scope “is no broader than

necessary to protect the employer’s interests.” See Cmty. Hosp.,

869 A.2d at 897. The fact that the geographic scope will be applied

nationally given the facts of this case does not render it

unreasonable. New Jersey courts have enforced broad non-compete

clauses, for instance nationwide or even global clauses, in

circumstances similar to these. See, e.g., Acteon, 2020 WL 6694411,

at *5, *7 (finding a nationwide geographic limitation reasonable

under New Jersey law); Synthes, Inc. v. Gregoris, 228 F. Supp. 3d

421, 432 (E.D. Pa. 2017) (finding a global geographic limitation

reasonable under New Jersey law).

For instance, in Acteon v. Harms, defendant Joseph Harms was

plaintiff Acteon’s Chief Operating Officer, a “high-level

executive position” that made Harms “an integral part of Acteon’s

management, commercial development, and product research and

development.” Acteon, 2020 WL 6694411, at *7. Acteon “entrusted

[Harms] with the most coveted information for the prosperity of

the business and Acteon’s current and future business development

strategies.” Id. His role was of a national and even international

nature. Id. at *2. He agreed to a national non-compete clause and

received “ample consideration” for doing so. See id. at *6 n.10,

*12. The Court ultimately held that, in light of the facts of that

case, a national non-compete clause was enforceable and granted a

preliminary injunction in part on that basis. See id. at *12.

Looking at the facts of this case, see Nat’l Reprographics,

Inc. v. Strom, 621 F. Supp. 2d 204, 224 (D.N.J. 2009), this Court

notes substantial similarities between Love and Harms. Love was in

a national role. He negotiated broad Non-Compete Clauses and

received ample consideration for agreeing to the Final Agreement.

He had access to Sunbelt’s trade secrets, which were critical to

their nationwide business interests. Therefore, like the Court in

Acteon, this Court finds that the nationwide geographic

limitations of the Non-Compete Clauses are reasonable and

enforceable.11

11 The Court notes that, had the Court agreed with Love that his

assignment was limited to PC 1092, it is likely that he would not

have been precluded from working for EquipmentShare altogether.

First of all, the Court has not been presented with any evidence

that EquipmentShare in fact competes with Sunbelt within 50 miles

of PC 1092 in Paulsboro, New Jersey. Moreover, if Love’s role was

in fact limited to PC 1092, the Court would likely have found the

Non-Compete Clauses’ geographical limitations to be overly broad.

See Sunbelt Rentals, Inc. v. Spring, No. 3:18-cv-334, 2018 WL

11242773 (E.D. Tenn. Nov. 19, 2018). While Sunbelt Rentals, Inc.

v. Spring is not binding on this Court, its logic applies here. In

that case, the Court stated that

[t]he language “in which, or in connection with which,

Employee performed or was responsible for performing

services,” does not clearly indicate that an employee

will be deemed to have worked in connection with a store

c. Scope of Prohibited Activities

Next, the Court turns to the third and final undue hardship

factor: the scope of prohibited activities. The New Jersey Supreme

Court has established that “the likelihood of the employee finding

other work in his or her field” is an important consideration for

this factor. See Cmty. Hosp., 869 A.2d at 898. It is also important

to consider, particularly with this factor, “the reason for the

termination of the parties’ relationship.” Id. To wit, “[i]f the

employee terminates the relationship, the court is less likely to

find undue hardship as the employee put himself or herself in the

position of bringing the restriction into play.” Id.

The limitations here are relatively broad, insofar as they

restrict Love from working with a direct competitor of Sunbelt.

However, the Clauses do allow for some flexibility, such as working

for a competitor in a non-competitive role. Therefore, while Love

may not be able to perform any job that he wishes to perform, his

when he merely coordinates with another store’s sales

representatives to serve customers in a different

market, or where he assists an out-of-area customer in

his own market area.

Id. at *4. While that language is not precisely the same as the

language that appears in the Final Agreement (and is actually the

language that was included in the Original Agreement), the concern

articulated by that Court applies here. Interpreting “in

connection with” to effectuate a nationwide covenant despite a

very localized role would not be sustainable because the language

would not have “clearly indicate[d]” the parameters of the Non-

Compete Clauses, just like they failed to do in Spring.

quandary is limited by the other factors that the Court has

considered. And, it is worth noting, Love voluntarily resigned

from Sunbelt, thereby bringing any hardships upon himself. As such,

the Court finds that the scope of activities prohibited by the

Non-Compete Clauses is reasonable.

Therefore, having considered all three factors with respect

to the undue burden prong of the Solari/Whitmyer test, the Court

finds that the Non-Compete Clauses, as defined herein, do not

result in an undue burden on Love that exceeds what is necessary

to protect Sunbelt’s legitimate business interests.

3. Injurious to the Public

Finally, the Court considers whether enforcement of these

Non-Compete Clauses would be injurious to the public. The Court

finds that the enforcement of mutually agreed to Non-Compete

Clauses that protects legitimate business interests and does not

overly burden the employee, who decided to resign of his own

accord, is in the public interest. Indeed, to not enforce such a

clause would be more injurious to the public, who has an interest

in free markets and the right to contract. Moreover, the Court

finds that, unlike some professions such as doctors, the public is

not harmed in this instance by the limitations imposed on Love, on

whose services the public does not typically rely on for, as an

example, life-sustaining care.

ii. Conclusion

All that to say: the parties had an enforceable contract.

Sunbelt is therefore likely to succeed in establishing the first

element of its breach of contract claim. The Court will now turn

to the remaining elements.

b. Love Materially Breached

The second element that Sunbelt must prove is that Love

materially breached the contract. This can be proven in one of two

ways, according to the Non-Compete Clauses. First, the Court could

find that Love’s employment with EquipmentShare constitutes

compet[ing] with [Sunbelt] . . . by engaging, directly

or indirectly, in the Business as conducted at the

Designated Stores or in a business substantially similar

to the Business as conducted at the Designated Stores,

within the “Territory.”

[Docket No. 20-1, Exhibit 3-B, ¶ 5.2.4.} Second, the Court could

find that Love’s employment with EquipmentShare constitutes

becom[ing] employed or engaged by . . . any . . .

corporation[] or other entity that is directly or

indirectly engaged in business in the “Territory”

. . . , which is substantially similar to the Business

as conducted at the Designated Stores or competitive

with Corporation’s Business as conducted at the

Designated Stores.

[Id., Exhibit 3-B, ¶ 5.2.5.]

The first of the Non-Compete Clauses is less restrictive than

the second. That is because the first Clause only precludes Love

himself from competing with Sunbelt within the Territory. That is

to say that, under the first Clause, Love could theoretically work

for a Sunbelt competitor so long as his role with that competitor

did not include any work within 50 miles of any CC 0873 store.

Conversely, the second Clause precludes Love altogether from

working for a corporation that competes with Sunbelt in the

Territory. In other words, regardless of Love’s actual role, he

cannot work for any corporation or entity that competes with

Sunbelt in approximately the eastern third of the continental

United States.

Given the terms of the Clauses and the meaning of Territory

as outlined above, the Court finds that Love’s employment with

EquipmentShare constitutes a breach of contract. EquipmentShare is

indisputably a Sunbelt competitor that is engaged in

“substantially similar” business as Sunbelt within 50 miles of any

of Sunbelt’s stores associated with CC 0873. Therefore, the Court

finds that Sunbelt is likely to succeed in showing that Love

materially breached the contract.12

12 The Court notes that Paragraph 5.2.5 does carve out the following

exception: “[N]othing herein shall preclude the Employee from (i)

engaging in activities or being employed in a capacity that do not

actually or potentially compete with Corporation’s Business.”

[Docket No. 20-1, Exhibit 3-B, ¶ 5.2.5.] Nevertheless, the Court

has not been presented with any evidence to suggest that Love could

work in a role at EquipmentShare that would be non-competitive as

to Sunbelt. And, even if it were possible, it would not affect the

scope of the Court’s injunction, given that it will also be issuing

the injunction on the trade secrets grounds, as discussed below.

c. Sunbelt Suffered Damages

The New Jersey Supreme Court has held that “the general rule

is that whenever there is a breach of contract, or an invasion of

a legal right, the law ordinarily infers that damage ensued, and,

in the absence of actual damages, the law vindicates the right by

awarding nominal damages.” Nappe v. Anschelewitz, Barr, Ansell &

Bonello, 477 A.2d 1224, 1228 (N.J. 1984) (internal citation

omitted). “Similarly, the Third Circuit, following the New Jersey

Supreme Court and the Second Restatement [of Contracts], has found

that ‘in a breach of contract [claim] the injured party is entitled

to nominal damages even when its proof fails to show substantial

loss.’” Interlink Grp. Corp. USA v. Am. Trade & Fin. Corp., No.

12-6179, 2014 WL 3578748, at *7 (D.N.J. July 18, 2014) (quoting

Norwood Lumber Corp. v. McKean, 153 F.2d 753, 755 (3d Cir. 1946)).

In light of such decisions, courts in this District will allow

“breach of contract claims to proceed despite proof of actual

damages.” Id. (collecting cases).

Here, the Court finds that Sunbelt has suffered at least

nominal damages. With that being said, the Court is not finding

that Sunbelt only suffered nominal damages. However, for the

purposes of this analysis, the Court need not make any further

finding than that Sunbelt is likely to succeed on its assertion

that Love breached the contract. As a result, no finding of

substantial damages is required to prove its breach of contract

claim. Therefore, the Court finds that Sunbelt is likely to succeed

in satisfying the third prong of its breach of contract claim.

d. Sunbelt Satisfied Its Obligations

There is no dispute that Sunbelt did not satisfy its

obligations under the contract. For example, Sunbelt paid Love

according to his contract. His contract was automatically renewed

after two years, per its terms. While Love is displeased that he

never received a “national title,” the Court has already held that

the parties never negotiated such an agreement. Therefore,

Sunbelt’s “failure” to give Love a national title is not evidence

that Sunbelt failed to satisfy is contractual obligations. As such,

the Court finds that Sunbelt is likely to succeed in satisfying

the fourth and final element of a breach of contract claim.

Based on the above analysis, the Court finds that Sunbelt is

likely to succeed on the merits of its breach of contract claim —

the first requirement needed to warrant the issuance of a

preliminary injunction. The Court will now turn to the remaining

requirements.

2. Irreparable Harm to Sunbelt

Whether Sunbelt will suffer irreparable harm if no injunction

is granted is the second “most critical” factor in the preliminary

injunction analysis. Reilly, 858 F.3d at 179. “Irreparable harm”

is “such [harm] that legal remedies are rendered inadequate.”

Tilden Recreational Vehicles, Inc. v. Belair, 786 F. App’x 335,

342 (3d Cir. 2019); see also Instant Air Freight Co. v. C.F. Air

Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (“Harm is

considered ‘irreparable’ if it is not redressable by money damages

at a later date, in the ordinary course of litigation.”) The Court,

in analyzing this requirement, shall consider harm that is future,

not past; likely, not merely possible; and imminent, not simply

remote. See HR Staffing Consultants, LLC v. Butts, 627 F. App’x

168, 173 (3d Cir. 2015); Anderson v. Davila, 125 F.3d 148, 163 (3d

Cir. 1997).

As a court in this District recently wrote,

Courts in the Third Circuit and this District have had

no difficulty in finding that the loss of business

opportunities and goodwill constitutes irreparable harm.

Likewise[,] New Jersey courts recognize that “the

diversion of a company’s customers may . . . constitute

irreparable harm. . . . [T]his is so because the extent

of the injury to the business as a result of this type

of conduct cannot be readily ascertained, and as such,

does not lend itself to a straightforward calculation of

money damages.”

ADP, LLC v. Olson, No. 20-03312, 2020 WL 6305554, at *12 (D.N.J.

Oct. 28, 2020) (quoting Fluoramics, Inc. v. Trueba, No. BER-C-408-

05, 2005 WL 3455185, at *8 (N.J. Super. Ch. Div. 2005)).

Here, the failure to issue a preliminary injunction would

permit Love to continue in his role of building up the national

team for one of Sunbelt’s direct competitors. Given the access to

confidential and proprietary information that Love had during his

employment with Sunbelt — which will be discussed at some length

below, in the Court’s analysis of Sunbelt’s trade secrets claims

— there is a substantial risk that Love’s continued employment

with EquipmentShare would jeopardize Sunbelt’s business. Since

Love was in a national role at Sunbelt, he had access to Sunbelt’s

national strategies, customer lists, and other vital information

that Sunbelt built up over the course of nearly four decades. Even

if Love does not still have access to these documents — and the

Court is not convinced that this is the case — he spent two years

working in a national role for Sunbelt and is likely to have

retained vital information. He could use that information to

EquipmentShare’s advantage, while damaging or reducing Sunbelt’s

business opportunities, goodwill, and customer base.

Therefore, the Court finds that the type of harm contemplated

by Love’s continued employment with EquipmentShare is precisely

the type of irreparable harm contemplated by courts in this

Circuit, District, and state. Sunbelt has adequately shown that it

is likely to suffer irreparable harm if a preliminary injunction

is not issued.

3. Harm to Love

The third factor to consider is whether the denial of a

preliminary injunction would harm Sunbelt more than the issuance

a preliminary injunction would harm Love. See Reilly, 858 F.3d at

179. As the Third Circuit has explained,

a temporary injunction prohibiting someone from pursuing

his livelihood in the manner he chooses operates as a

severe restriction on him that a court should not impose

lightly. Nevertheless, such a temporary restriction on

his employment is warranted where . . . the facts

demonstrate that the restriction is necessary to prevent

greater irreparable harm from befalling another party.

Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 119 (3d Cir.

2010). When addressing this prong, courts should weigh “the

likelihood of the employee finding work in his field elsewhere .

. . [and] the reason for the termination of the relationship

between the parties to the employment contract.” HR Staffing

Consultants, 627 F. App’x at 172 (quoting Karlin v. Weinberg, 390

A.2d at 1169).

As the Court discussed briefly above when analyzing the

viability of the Non-Compete Clauses, Love would certainly have a

more difficult time finding employment if a preliminary injunction

were issued. But this is the bargain that Love struck. He

negotiated these terms and ultimately, he breached them. He decided

to resign from Sunbelt, knowing the limitations that faced him. It

is only fair that he is now held to those terms.

Further, the Court notes that Love was handsomely paid by

Sunbelt. As a result of the sale of Interstate, Love received

approximately $4,000,000 in 2018. He then received approximately

$650,000 in salary during his time at Sunbelt, plus $100,000 in

annual bonuses and $250,000 in a retention bonus. Love was required

to stay with Sunbelt until at least August 2020 in order to receive

approximately $300,000 of that compensation. Once he did that, he

quite promptly left Sunbelt. He received the full benefit of the

bargain.

Although not being able to work for EquipmentShare for a year

may well cause harm to Love, the Court cannot find that such harm

outweighs the harm to Sunbelt. For those reasons, the Court finds

that Sunbelt would suffer greater harm if no injunction were issued

than Love would if an injunction were issued.

4. Public Interest

Finally, the Court must consider whether issuing a

preliminary injunction in this case would serve the interest of

the public. Courts in this District have rightfully held that

“[j]udicial enforcement of non-competition provisions of

employment contracts serves the public interest by promoting

stability and certainty in business and employment relationships.”

E.g., Saturn Wireless Consulting, LLC, v. Aversa, No. 17-1637,

2017 WL 1538157, at *18 (D.N.J. Apr. 26, 2017) (quoting Wright

Med. Tech., Inc. v. Somers, 37 F. Supp. 2d 673, 684 (D.N.J. 1999)).

The public interest in enforcing such a clause is even stronger

when, as here, the terms were voluntarily entered into by

individuals who, at the time of signing the contract, were

knowledgeable businesspeople represented by competent counsel. See

Merrill Lynch, Pierce, Fenner & Smith v. Napolitano, 86 F. Supp.

2d 491, 498-99 (E.D. Pa. 2000); see also Fischer Bioservices, Inc.

v. Bilcare, Inc., No. Civ.A. 06-567, 2006 WL 1517382, at *21 (E.D.

Pa. May 31, 2006) (citing Napolitano, 86 F. Supp. 2d at 498-99).

The issuance of a preliminary injunction serves the public interest

when it will “discourage . . . the disavowal of freely contracted

obligations.” Nat’l Business Servs. v. Wright, 2 F. Supp. 2d 701,

709 (E.D. Pa. 1998) (citation omitted). While there is also a

public interest “in employers being free to hire whom they please

and in employees being free to work for whom they please,” Bimbo

Bakeries, 613 F.3d at 119, in this case, the enforcement of the

freely entered into Non-Compete Clauses “outweighs the temporary

restriction on [Love’s] choice of employment,” Tilden, 786 F. App’x

at 343 (citation omitted).

Moreover, “[a]s a practical matter, if a plaintiff

demonstrates both a likelihood of success on the merits and

irreparable injury,” as Sunbelt has done here, “it almost always

will be the case that the public interest will favor the

plaintiff.” Am. Telephone & Telegraph Co. v. Winback & Conserve

Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994).

Therefore, the Court finds that, considering the facts of

this case, the public interest factors favor the issuance of a

preliminary injunction against Love and in Sunbelt’s favor.

5. Conclusion

Based on all of the above analysis, the Court finds that

issuing a preliminary injunction here is warranted. Sunbelt has

sufficiently shown that it is likely to succeed on the merits of

its breach of contract claim, that it is likely to suffer

irreparable harm if no injunction is issued, that the harm Love

would suffer from the issuance of an injunction is outweighed by

the harm Sunbelt would suffer if no injunction were issued, and

that the issuance of an injunction is in the public interest.

Therefore, the Court will grant Sunbelt’s request for a preliminary

injunction on its breach of contract claim.13 The Court will also

rule in the alternative on Sunbelt’s trade secrets claims, as

discussed below.

B. Trade Secrets Claims

The Court turns next to Sunbelt’s trade secrets claims.

Because, “[f]or courts in this district, the analysis under the

DTSA folds into that of [the] NJTSA,” the Court will discuss those

claims collectively. See Austar Int’l Ltd. v. AustarPharma LLC,

13 The Court will not, however, toll the Non-Compete Clauses’ one-

year duration as Sunbelt requests. Although the Final Agreement

did stipulate that the Restrictive Period would not “include any

period of time in which [Love] is in violation of the Restrictive

Covenants,” [Docket No. 20-1, Exhibit 3-B, ¶ 5.3.3], the Court

finds that in this instance enforcing that provision would not be

in the interest of justice. First of all, Sunbelt did not file

this suit until nearly two full months after Love resigned and

started to work at EquipmentShare. [See Docket No. 1.] The Court

will not hold dilatoriness against Love. Moreover, a temporary

restraining order has been in place since December 5, 2020. [Docket

No. 13.] To toll the Clauses’ duration such that it effectively

lasts thirteen months rather than one year is not in the interest

of justice. Therefore, the Court will enforce the Clauses as

written: this preliminary injunction will expire on October 2,

2021 — one year after the date that Love resigned.

425 F. Supp. 3d 336, 355 (D.N.J. 2019). As with the breach of

contract discussion, the Court’s analysis will follow the

requirements for a preliminary injunction: (1) a likelihood of

success on the merits, (2) that Sunbelt will suffer irreparable

harm if the injunction is denied, (3) that granting preliminary

relief will not result in even greater harm to Love, and (4) that

the public interest favors such relief.

1. Likelihood of Success on the Merits

The Third Circuit has held that, under both the DTSA and the

NJTSA, a plaintiff must “demonstrate (1) the existence of a trade

secret, defined broadly as information with independent economic

value that the owner has taken reasonable measures to keep secret,

and (2) misappropriation of that secret, defined as the knowing

improper acquisition and use or disclosure of the secret.” Par

Pharm., Inc. v. Quva Pharma, Inc., 764 F. App’x 273, 278 (3d Cir.

2019) (citing 18 U.S.C. §§ 1836(b)(1), 1839(1); N.J. STAT. ANN. §

56:15-2).

A “trade secret” is defined by the DTSA as

all forms and types of financial, business, scientific,

technical, economic, or engineering information,

including patterns, plans, compilations, program

devices, formulas, designs, prototypes, methods,

techniques, processes, procedures, programs, or codes,

whether tangible or intangible, and whether or how

stored, compiled, or memorialized physically,

electronically, graphically, photographically, or in

writing . . . [that] the owner thereof has taken

reasonable measures to keep . . . secret; and . . .

derives independent economic value, actual or potential,

from not being generally known to, and not being readily

ascertainable through proper means by, another person

who can obtain economic value from the disclosure or use

of the information.

18 U.S.C. § 1839(3).

“Misappropriation” is defined by the DTSA in relevant

part as

(A) acquisition of a trade secret of another person by

a person who knows or has reason to know that the trade

secret was acquired by improper means; or

(B) disclosure or use of a trade secret of another

without express or implied consent by a person who

(i) used improper means to acquire knowledge of

the trade secret.

Id. § 1839(5).

“Improper means,” as defined by the DTSA, “includes theft,

bribery, misrepresentation, breach or inducement of a breach of a

duty to maintain secrecy, or espionage through electronic or other

means,” but “does not include reverse engineering, independent

derivation, or any other lawful means of acquisition.” Id. §

1839(6).

Considering the definitions of “misappropriation” and

“improper means” together, “the DTSA ‘contemplates three theories

of liability: (1) acquisition, (2) disclosure, or (3) use.” Acteon,

2020 WL 6694411, at *9 (quoting Bramshill Investments, LLC v.

Pullen, No. 19-18288, 2020 WL 4581827, at *3 (D.N.J. Aug. 10,

2020)).

Similarly, a “trade secret” is defined by the NJTSA as

information, held by one or more people, without regard

to form, including a formula, pattern, business data

compilation, program, device, method, technique, design,

diagram, drawing, invention, plan, procedure, prototype

or process, that:

(1) Derives independent economic value, actual or potential,

from not being generally known to, and not being readily

ascertainable by proper means by, other persons who can

obtain economic value from its disclosure or use; and

(2) Is the subject of efforts that are reasonable under the

circumstances to maintain its secrecy.

N.J. STAT. ANN. § 56:15-2.

“Misappropriation” is defined in relevant part by the NJTSA

as

(1) Acquisition of a trade secret of another by a person who

knows or has reason to know that the trade secret was acquired

by improper means; or

(2) Disclosure or use of a trade secret of another without

express or implied consent of the trade secret owner by a

person who:

(a) used improper means to acquire knowledge of the trade

secret.

Id.

“Improper means” is defined by the NJTSA as

the theft, bribery, misrepresentation, breach or

inducement of a breach of an express or implied duty

to maintain the secrecy of, or to limit the use or

disclosure of, a trade secret, or espionage through

electronic or other means, access that is unauthorized

or exceeds the scope of authorization, or other means

that violate a person's rights under the laws of this

State.

Id.

Synthesizing the above, the DTSA and NJTSA claims require the

existence of (1) information that derives independent economic

value, that (2) the owner has taken reasonable measures to keep

secret, and that (3) the defendant improperly acquired, disclosed,

or used.

a. The Information Derives Independent Economic

Value

Defendant Love admits that the documents the Defendant

inappropriately forwarded from his Sunbelt email address to his

personal email address and to his brother contained information

including customer lists, pricing, and other confidential

information. Sunbelt has shown how these documents are part of

Sunbelt’s business strategy in setting itself apart from other

competitors nationwide. Such information indisputably constitutes

trade secrets. See, e.g., Corp. Synergies Grp., LLC v. Andrews,

No. 18-13381, 2019 WL 3780098, at *4 (D.N.J. Aug. 12, 2019)

(“Customer lists, pricing information, and marketing techniques

constitute trade secrets under [the NJTSA] and the DTSA.”) (first

citing IDT Corp. v. Unlimited Recharge, Inc., No. 11-4992, 2012 WL

4050298, at *6 (D.N.J. Sept. 13, 2012); then citing Von Rohr Equip.

Corp. v. Modern Fasteners Inc., No 16-6675 (2017 WL 9690975, at *1

(D.N.J. May 18, 2017)). Therefore, the first requirement under the

DTSA and NJTSA is met here.

b. Sunbelt’s Efforts to Keep the Information

Secret Were Reasonable

Sunbelt has also established, as required by both the DTSA

and the NJTSA, that it took reasonable efforts to protect the

information in question by requiring employees, including Love, to

sign confidentiality agreements agreeing to never disclose, use,

or divulge any of Sunbelt’s confidential information. See, e.g.,

Par Pharm., Inc., 764 F. App’x at 278 (concluding that the employer

“took reasonable steps to protect the secrecy of its [trade

secrets] through the use of non-disclosure agreements and

appropriate facility security measures”). Love does not dispute

that he agreed to the following confidentiality agreement upon

being hired:

During the term of this Agreement and after its

termination or expiration for any reason, Employee

will not, without Corporation’s prior written

consent, use, divulge, disclose, furnish, or make

accessible to any third person, company, or other

entity any aspect of Confidential Information,

Intellectual Property, or Proprietary Materials for

any purpose, including through an online social

networking website, except on Corporation’s behalf.

[Docket No. 20-1, Exhibit 3-B, ¶ 5.1.] Therefore, the requirement

that Sunbelt took reasonable steps to protect the secret

information has been satisfied here.

c. Love Inappropriately Acquired, Disclosed, or

Used the Trade Secrets

As discussed above, the relevant acts prohibit the improper

acquisition, disclosure, and use of trade secrets. There is no

dispute that Love actually acquired and disclosed Sunbelt’s trade

secrets, as defined by the DTSA and the NJTSA. As a threshold

requirement, both of those forms of misappropriation require that

the trade secrets were acquired via “improper means.” See 18 U.S.C.

§ 1859(5); N.J. STAT. ANN. § 56:15-2.

Once that has been established, improper acquisition further

requires that the defendant “kn[ew] or ha[d] reason to know that

the trade secret was acquired by improper means.” 18 U.S.C. §

1859(5)(A); N.J. STAT. ANN. § 56:15-2. Similarly, improper

disclosure simply requires that the trade secrets were disclosed

“without express or implied consent” of the rightful owner of the

trade secrets. 18 U.S.C. § 1859(5)(B)(i); N.J. STAT. ANN. § 56:15-

2.

Here, it cannot be disputed that Love emailing himself

Sunbelt’s trade secrets without Sunbelt’s consent and in violation

of his contract with Sunbelt, immediately prior to Love’s

resignation from Sunbelt and new employment with EquipmentShare,

constitutes “improper means.” See 18 U.S.C. § 1859(6); N.J. STAT.

ANN. § 56:15-2; see also, e.g., Bimbo Bakeries, 613 F.3d at 107

(holding that an employee absconding with trade secrets

immediately prior to his resignation and new employment with a

competitor violated Pennsylvania’s trade secrets law). Therefore,

the threshold requirement that Love acquired these trade secrets

through improper means is met.

Next, Sunbelt has also shown, with respect to the improper

acquisition grounds, that Love “kn[ew] or ha[d] reason to know

that” he acquired Sunbelt’s trade secrets “by improper means.” See

18 U.S.C. § 1859(5)(A); N.J. STAT. ANN. § 56:15-2. In fact, Love

admitted as much when he testified that what he did was “wrong.”

Therefore, Sunbelt has shown that Love violated both the DTSA and

the NJTSA when he misappropriated Sunbelt’s trade secrets by

emailing them to himself.

The analysis for improper disclosure is similarly

straightforward: Love disclosed the trade secrets — which, as

discussed above, he “used improper means to acquire” — when he

emailed the document(s) to his brother and himself. See 18 U.S.C.

§ 1839(5)(B)(i), {6}; N.J. STAT. ANN. § 56:15-2. Therefore, Sunbelt

has also shown that Love violated both the DTSA and the NJTSA when

he misappropriated Sunbelt’s trade secrets by emailing them to his

brother.

i. Inevitable Disclosure

Although the evidence clearly demonstrates that Love

improperly acquired and disclosed Sunbelt’s trade secrets, Sunbelt

correctly contends that it “need not establish that its former

employee has actually used or disclosed trade secrets.” Acteon,

2020 WL 6694411, at *9 (quoting Corp. Synergies, 2019 WL 3780098,

at *7 n.10). Instead, Sunbelt may rely on the doctrine of

inevitable disclosure. Under this doctrine, an employer may meet

its burdens under the DTSA and NJTSA simply by “demonstrat[ing]

that there is a sufficient likelihood of inevitable disclosure of

its trade secrets to a competitor.” Id. (quoting Corp. Synergies,

2019 WL 3780098, at *7 n.10); see also Fluoramics, 2005 WL 3455185,

at *8.

Here, Sunbelt has met its burden. Although Love argues that

no evidence was presented as to any damage or harm to Sunbelt based

on Love’s misconduct, such argument falls short. Love clearly had

access to highly confidential information given his high-ranking

position at Sunbelt. He was privy to information that permitted

Sunbelt to become a market leader in the rental equipment industry,

growing after its acquisition of Interstate due to, in part,

efforts of Love. Love admitted that he copied whatever was on his

desktop, and he forwarded such documents to his personal email

address. Although Love avers under oath that when he sent the

emails, he “had not a clue of what was in” the documents he sent,

[Docket No. 29, at 99:18-19], and that, in the time since, he

deleted and did not retain such documents in response to this

Court’s temporary restraining order, the Court has little

confidence in such testimony absent corroboration. As the Court

has set forth above, it has not found much of Love’s testimony to

be credible.

Love abruptly left Sunbelt. Immediately thereafter, he joined

EquipmentShare to compete with Sunbelt at the national level. Love

misappropriated the confidential information of Sunbelt and

explained his misappropriation as an act of ego. That Love took

these documents “based upon feelings and emotions,” [Docket No.

29, at 58:25-59:1], while admitting to Brown that he left Sunbelt

to help build a national platform for EquipmentShare, is troubling.

The Court does not find Love’s testimony that he did not open the

emails containing Sunbelt’s trade secrets credible. At best, such

testimony was “half the truth.” Although Love admitted that he

sent the documents to his brother, the testimony regarding his

reason for doing so was evasive and defensive. Love’s efforts to

obfuscate the record and dodge questions is exemplified by this

exchange, which is but one of many like it, during his cross

examination:

Q: [Fair] to say though that Scott Love was not employed

by Sunbelt when you sent this to him?

A: It’s fair to say that he’s a customer now of Sunbelt,

because of me.

[Id. at 103:9-12.]

The above facts illustrate both improper acquisition and

improper disclosure by Love not only to a family member, but a

family member who works for a current customer of Sunbelt and a

target customer for EquipmentShare. To conclude that there is not

a substantial likelihood that Love will inevitably disclose

Sunbelt’s trade secrets to EquipmentShare would give far too much

credence to Love’s incredible testimony, and far too little

credence to the evidence and credible testimony presented against

him. The Court gives little weight to Defendant’s claim that he

has not, and presumably will not, use Sunbelt’s trade secrets,

given all of the information that has been presented to it.

Therefore, the Court finds that there is a substantial likelihood

that Love will inevitably disclose Sunbelt’s trade secrets to

EquipmentShare.

Based on the above analysis, the Court finds that Sunbelt is

likely to succeed on the merits of its claims under the DTSA and

the NJTSA. The Court now turns to the irreparable harm prong.

2. Irreparable Harm to Sunbelt

The same standard for irreparable harm that the Court outlined

in its discussion of Sunbelt’s breach of contract claim applies

here. In considering that standard, it is clear that without the

benefit of further discovery and the issuance of an injunction,

Sunbelt would have to trust the testimony of a disgruntled former

employee who has demonstrated his animus toward his former

employer. Because this Court has questions as to Love’s

credibility, it will not make Sunbelt proceed on blind trust. It

is apparent to the Court that Love wanted to “get even” with

Sunbelt — for refusing to give him a national title (as opposed to

role) and commissions, among other reasons — by attempting to

transform his new employer, EquipmentShare, into a nationwide

competitor. He admitted as much in his text message to Brown. The

Court is not satisfied that, absent further discovery, the full

extent of the risk of harm to Sunbelt can be appreciated. For

instance, forensic analysis may be required to determine whether,

and to what extent, Love disseminated Sunbelt’s trade secrets

beyond the emails that he sent to himself and to his brother. If

Love were permitted to remain at EquipmentShare while having access

to Sunbelt’s customer lists, pricing information, and the like,

there is the likelihood of irreparable harm to Sunbelt’s

relationships with its customers. For instance, if Love were to

use such information to interfere with Sunbelt’s contracts or

customer relationships, Sunbelt would be irreparably harmed.

Indeed, as an example, one of the documents, [see Exhibit P-M],

was a bid drafted by Sunbelt that contained the customer’s (PBF

Refinery) unique requirements. Such document could be used by Love

to negotiate with that customer to strike a better deal.

As outlined above, this type of damage is precisely what the

Third Circuit, the District of New Jersey, and New Jersey state

courts consider irreparable harm in the preliminary injunction

context. See Acteon, 2020 WL 6694411, at *10 (collecting cases);

see also Nat. Starch & Chem. v. Parker Chem. Corp., 530 A.2d 31,

33 (N.J. App. Div. 1987) (“[D]amages will not be an adequate remedy

when the competitor has obtained the secrets. The cat is out of

the bag and there is no way of knowing to what extent their use

has caused damage or loss.”). Were Love permitted to work at

EquipmentShare in spite of the fact that he stole Sunbelt’s trade

secrets, future irreparable harm to Sunbelt would be likely and

imminent. Defendant Love asks this Court, in essence, to absolve

him of his wrongdoing because he did make use of the documents,

turned them over to his counsel, and deleted them from his files.

Unfortunately, the Court did not find Defendant’s testimony

convincing. Therefore, the second requirement for issuing a

preliminary injunction is met.

3. Harm to Love

The same standard for considering the harm to Love that the

Court outlined in its discussion of Sunbelt’s breach of contract

claim applies here. In considering that standard, the Court finds

that the denial of a preliminary injunction would harm Sunbelt

more than the issuance of a preliminary injunction would harm Love.

The harm that Sunbelt would suffer if no preliminary injunction

were issued is discussed above. The Court does not take lightly

the fact that the issuance of a preliminary injunction would cause

hardship to Love. For instance, he would not be permitted to work

at his preferred job and may suffer a loss of income.14 However,

as the Third Circuit has recognized and as this Court discussed

above, the “injury a defendant might suffer if an injunction were

imposed may be discounted by the fact that the defendant brought

that injury upon himself.” Kos Pharms., Inc. v. Andrx Corp., 369

F.3d 700, 728 (3d Cir. 2004) (quoting Novartis Consumer Health,

Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d

579, 596 (3d Cir. 2002).

It is clear in this case that Love brought this injury upon

himself through his unlawful acts. Love has admitted to this. Until

the full extent of the damage done to Sunbelt by Love’s misconduct

can be explored through discovery, the Court is unwilling to risk

the potential of irreparable damage to Sunbelt based on the

unreliable word of Love. To allow Love to continue his employment

because he claims he may suffer some financial harm – which he has

not supported – is like “allow[ing] ‘a known infringer [that]

constructs its business around its infringement’ to avoid an

injunction by claiming it would have a ‘devastating effect’ on

that business.” Id. at 728-29 (quoting Apple Computer, Inc. v.

Franklin Computer Corp., 714 F.2d 1240, 1255 (3d Cir. 1983)). That,

as the Third Circuit has held, would constitute “a result we cannot

14 Love did not testify to the harm that he would suffer if a

preliminary injunction were issued, nor does his Proposed Findings

of Fact and Conclusions of Law address such harm. [See Docket Nos.

27, 29, 34.]

condone.” Id. (quoting Apple, 714 F.2d at 1255). Love took a risk

by misappropriating Sunbelt’s trade secrets, quitting his job with

Sunbelt, and going to work for a Sunbelt competitor for the express

purpose of competing with Sunbelt. The Court does take note of the

salary and bonuses that Love negotiated and cashed in on during

his time at Sunbelt. Those considerations would seem to reduce the

burden that the issuance of an injunction would have on Love.

Therefore, the balance of the harms in this case favors the

issuance of a preliminary injunction.

4. Public Interest

Finally, the Court must consider whether issuing a

preliminary injunction in this case would serve the interest of

the public. As a general rule, “[t]he public has an interest in

safeguarding an employer’s confidential information.” HR Staffing

Consultants v. Butts, No. 2:15-3155, 2015 WL 3492609, at *14

(D.N.J. June 2, 2015). Moreover, “there is a generalized public

interest in ‘upholding the inviolability of trade secrets and

enforceability of confidential agreements.’” Bimbo Bakeries, 613

F.3d at 119 (quoting Bimbo Bakeries USA, Inc. v. Botticella, No.

10-0194, 2010 WL 571774, at *16 (E.D.P.A. Feb. 9, 2010)).

While, as noted above, there is also a public interest “in

employers being free to hire whom they please and in employees

being free to work for whom they please,” Bimbo Bakeries, 613 F.3d

at 119, this Court finds that, in this case, the protection of

confidential information “outweighs the temporary restriction on

[Love’s] choice of employment,” Tilden, 786 F. App’x at 343

(citation omitted).

Moreover, again as noted above, “[a]s a practical matter, if

a plaintiff demonstrates both a likelihood of success on the merits

and irreparable injury,” as Sunbelt has done here, “it almost

always will be the case that the public interest will favor the

plaintiff.” Am. Telephone & Telegraph Co., 42 F.3d at 1427 n.8.

Therefore, the Court finds that, considering the facts of this

case, the public interest factors favor the issuance of a

preliminary injunction against Love and in Sunbelt’s favor.

5. Conclusion

In light of the above analysis, the Court finds that Sunbelt’s

trade secrets claims warrant the issuance of a preliminary

injunction. Sunbelt has sufficiently shown that it is likely to

succeed on the merits of its trade secrets claims, that it is

likely to suffer irreparable harm if no injunction is issued, that

the harm Love would suffer from the issuance of an injunction is

outweighed by the harm Sunbelt would suffer if no injunction were

issued, and that the issuance of an injunction here is in the

public interest. Therefore, the Court will grant Sunbelt’s request

for a preliminary injunction on its trade secrets claims.15

III. CONCLUSION

In sum, the Court finds that Sunbelt has met its burden with

respect to the issuance of a preliminary injunction on its breach

of contract claim. As a result, the Court will issue a preliminary

injunction that enjoins Love from working for Sunbelt’s

competitor, EquipmentShare.

In the alternative, the Court finds that Sunbelt has met its

burden with respect to the issuance of a preliminary injunction on

its claims under the DTSA and NJTSA. Therefore, the Court will

issue a preliminary injunction that enjoins Love from working for

EquipmentShare pending further discovery to establish that the

documents detailing trade secrets that Love misappropriated have,

in fact, been deleted from Love’s possession and from the

possession of anyone who came into possession of them as a result

of Love’s actions.

15 The Court notes that its decision to issue a preliminary

injunction on the trade secrets claims is consistent with Third

Circuit precedent. In Bimbo Bakeries USA, Inc. v. Botticella, the

Circuit affirmed the issuance of a preliminary injunction where

the defendant had copied various trade secrets from his work

computer in the days and weeks leading up to his resignation and

the start of new employment with a direct competitor of his former

employer. 613 F.3d at 107, 119. This case being substantially

similar to that, and Sunbelt having satisfied its burdens, the

issuance of a preliminary injunction on that basis is appropriate.

The preliminary injunction will expire no later than October

2, 2021. An accompanying Order shall issue.

January 11, 2021 s/Renée Marie Bumb

Date Renée Marie Bumb, U.S.D.J.