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Settlement Demand - Security Guard Non-Compete Case

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The public has a right to know about corporate non-compete abuse. The public has a right to know what is happening in our courts.

Critical Intervention Services, a private security company, is suing a former security guard named Michael Kenny for breach of a non-compete agreement. Michael is military veteran and single father who worked for the company for less than two weeks. Michael was working the night shift and asked if they could switch him to day shift because he was having trouble finding childcare. They told him either work your shift or find another job. So he found another job, working as a security guard at a bank. When CIS found out, they sent Michael's new employer (Securitas) a cease & desist letter threatening to sue them and Michael for the non-compete. As most companies do, Securitas panicked & fired Michael.

We took Michael's case for free & filed a lawsuit against CIS seeking a declaration that the non-compete is unenforceable. CIS countersued seeking more than $50,000+ in liquidated damages. CIS's lawyer Gabriel Pinilla out of Tampa insists the case is a pure breach of contract, the non-compete is enforceable, & that CIS has previously succeeded in enforcing its non-competes.

We disagree. The attached settlement demand should educate the public, corporate actors and members of the legal community and shine a light on this type of absurd, bad faith, abusive non-compete litigation.

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Settlement Demand - Security Guard Non-Compete Case

  1. 1. Friday, August 24, 2018 at 7:27:50 AM Eastern Daylight Time Page 1 of 3 Subject: Kenny v. CIS Date: Friday, August 24, 2018 at 7:25:51 AM Eastern Daylight Time From: Jonathan Pollard To: Kasie E. Gonzalez, Alexander Gil, Christopher Prater CC: Gabriel Pinilla, Shana Dees, David Yaffe, Alex Brams AHachments: image001.png Good Morning Counsel: I understand that at yesterday’s deposiQon, you made an offer to seRle this maRer for $5,000. I am sending you this correspondence to advise you of our posiQon. From the papers that you have filed in this case, your line of quesQoning at yesterday’s deposiQon, and your repeated references to the fact that you have enforced CIS’s non-compete agreements before, it is abundantly clear to me that you do not understand the relevant legal framework. The Florida Legislature, Florida Supreme Court, and Florida District Courts of Appeal have repeatedly mandated that non-compete agreements are illegal restraints of trade unless they are necessary to protect a legiQmate business interest. See, e.g., White v. Mederi Caretenders Visi4ng Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017) (staQng that Florida’s non-compete law does not protect covenants “whose sole purpose is to prevent compeQQon per se”). In the instant case, you have no such interest. Generic, boilerplate references to confidenQal informaQon, customers and training do not saQsfy this test. You need, e.g., valuable confidenQal informaQon that is only available to CIS, that Kenny had access to, that he could not obtain at a compeQtor, and that he could use to engage in unfair compeQQon. If you compare your papers and your case to that standard, you will see that your claims fail miserably. The same can be said for any other claimed interests, including customers (which must be substanQal relaQonships) and training (which must be extraordinary). For instance, you seem to suggest that teaching someone how to use a baton consQtutes extraordinary training. It does not. The reality is that you and your client CIS have pursued this case in the utmost bad faith. CIS’s threats against Mr. Kenny and Securitas cost him his job. So we filed suit to declare the non-compete agreement unenforceable. Rather than take the high road, you and your client doubled down and filed an absurd countersuit. You are seeking $50,000+ in liquidated damages for breach of an (unenforceable) non-compete agreement where the employee worked less than two weeks as a security guard. Given my personal faith and moral convicQons, I would never prosecute such a case. I would consider it morally repugnant. That’s certainly not why I went to law school. But some of us have different values. As for your history of successfully enforcing CIS security guard non-compete agreements: Florida state trial courts rouQnely misapply non-compete law and get reversed on appeal. A state trial court non- compete decision is irrelevant and has no precedenQal weight. If you can point me to either state court appellate decisions, or, federal court decisions from non-compete cases that you have liQgated, I would be happy to take a look at them. Since we’re talking about our respecQve track records in this arena, I’ll offer the following: Salazar v. Hometeam 230 So. 3d 619 (2nd DCA 2017) (reversing injuncQon and remanding for
  2. 2. Page 2 of 3 consideraQon of illegality affirmaQve defense). Lucky Cousins Trucking v. QC Energy, 223 F. Supp. 3d 1221 (M.D. Fla. 2016) (denying preliminary injuncQon in trucking industry non-compete dispute and finding no legiQmate business interest). IDMWorks v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016) (denying preliminary injuncQon in sojware non-compete dispute and finding no legiQmate business interest). Evans v. Generic SoluQons, 178 So. 3d 114 (Fla. 5th DCA 2015) (vacaQng injuncQon in non- compete and trade secret dispute related to Tony Robbins' companies). Sofia v. Fross et. al., Case No. 01-16-0002-6358 (AAA 2017) (awarding $1 million and declaratory judgment holding non-compete agreement unenforceable to wrongfully expelled LLC member). Silva v. NighQngale Nurses, LLC, Case No. 4D17-0032 (Fla. 4th DCA 2017) (granQng stay of injuncQon and contempt orders pending appeal in dispute between rival nurse staffing agencies). Moon v. Med. Tech. Associates, Inc., 577 F. App'x 934 (11th Cir. 2014) (vacaQng injuncQon in non-compete dispute involving rival medical gas companies). If you read the cases cited supra, it should become readily apparent that CIS has no legiQmate business interest in this situaQon (or perhaps ever) and that the relevant non-compete agreement is therefore unenforceable. And in this specific situaQon, parQcularly given Mr. Kenny’s short Qme at the company and the uRer lack of any plausibly legiQmate interest, CIS’s cease and desist leRer to Securitas was torQous conduct. As I am sure you are aware, we will be seeking leave to amend to add a claim for puniQve damages. We can do this for another year. That’s fine by me. At the end of the day, we are going to obtain an order declaring Mr. Kenny’s non-compete agreement unenforceable. Whether we obtain such an order in the trial court or on appeal, that will be the ulQmate resoluQon of this case based on the overwhelming weight of legal authority. You brought up seRlement. We did not. If you would like to resolve this maRer, here are our terms: 1. You agree to entry of judgment in favor of Michael Kenny holding that based on the specific facts of the case, the non-compete agreement is unenforceable. You may balk at this. But consider the following: An agreed judgment of that nature is likely far beRer for your client than a published appellate decision holding CIS has no legiQmate business interest in enforcing any of its non-compete agreements against security guards. 2. You dismiss your claims against Mr. Kenny with prejudice. 3. Your client provides Mr. Kenny a wriRen apology. 4. You pay Mr. Kenny $25,000 in damages to resolve the torQous interference claim. 5. You pay $132,500 in aRorneys’ fees and costs to our firm. This resolves your client’s aRorneys’ fee exposure under Florida Statutes 542.335. Considering that we once received north of $450,000 in fees in a case where we prosecuted a declaratory judgment and defended against a bogus non-compete claim, the fee amount here is rather reasonable. 6. None of the foregoing will be confidenQal. It will all be spelled out in the agreed judgment. And with that, we would consider the maRer resolved. Now, I understand what you’re thinking. You’re thinking that either this is posturing or that I am simply a crazy person. Rest assured, this is not my first rodeo. I have been in this exact same situaQon dozens of Qmes. In a case with an experienced Florida lawyer, such as yourself, on the other side. A lawyer who insists that the non-compete agreement is enforceable as a pure maRer of contract law. A lawyer with no knowledge or understanding of anQtrust law and legiQmate business interest analysis. That lawyer’s client, like yours, a company that
  3. 3. Page 3 of 3 sends its own cease and desist leRers full of bluster and bravado but no actual legal substance. A company that fancies itself the big bully on the block. You see, I’ve done this before. Inevitably, the person playing your role comes to the table asking about seRlement, but proposing some de minimis dollar amount--- as if this was a joke. That’s when I have to send this sort of email, where I explain how things work. The offer that I have made you above is the best offer that I will ever make you. You will never exit this liQgaQon on any beRer terms. Because we will imminently be taking several deposiQons, moving for leave to amend and add puniQve damages, and briefing a moQon for summary judgment. And once we do that, our fees will easily be more than $200,000. The beauQful thing here is that if the trial court grants your moQon for summary judgment, we take an appeal. Once the appellate court sees this, they stay any judgment or execuQon against my client. We brief the appeal. Do oral argument. We win. We get a fantasQc published decision holding CIS non-compete agreements unenforceable. You owe $350,000 in fees at that point. Then we try the case to a jury. We bring the media in and videotape the trial for all the world to see. Florida courts are open to the public and trials can be recorded. I would wager that a jury is going to back a single father and military veteran who is just trying to earn a living rather than a rogue private security company that pretends they’re the police and abuses non- compete agreements. Please take this offer to your client. This offer is non-negoQable. Take it or leave it. Pay now or pay more later. I really don’t care. Cordially, Jonathan Pollard Jonathan E. Pollard 401 E. Las Olas Blvd. #1400 Fort Lauderdale, FL 33301 Office: 954-332-2380 Fax: 866- 594-5731 www.pollardllc.com

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