Pollard PLLC represents 7 real estate brokers and their new company KD Premier Realty against their former employer, Properties of the Villages. In the attached document, the Magistrate Judge has recommended that Plaintiff's Motion for Preliminary Injunction be denied. The case is pending in the United States District Court for the Middle District of Florida. The Firm can be reached at 954-332-2380.
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
In 2009, I presented to Professor Forgues’ Business Law Class at Plymouth State University addressing the high cost of business litigation and using Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs. 642 F. Supp. 2d 58 (D. Mass. 2009) as a case study.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Seminar material that covered topics that as commercial general liability insurance coverage issues, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
Complaint for breach of contract, constructive fraud, constructive trust and unfair business practices against Joshua Macciello, self-pronounced bidder for the Dodgers and alleged film producer. Anyone with knowledge of Mr. Macciello's whereabouts, or who "invested" or "lent" money to Mr. Macciello, please contact CharismaticScam@gmail.com
Contrary to respondents’ argument, CAFA’s “100 or more persons” phrase does not encompass unnamed persons who are real parties in interest to claims brought by named plaintiffs. Congress knew how to draft language to that effect when it intended such a meaning, see, e.g., §§1332(d)(5)(B), 1332(d)(1)(D). That it did not do so in the mass action provision indicates that Congress did not want the provision’s numerosity requirement to be satisfied by counting unnamed individuals who possess an interest in the suit
SC Judgement - Appointment Of Third ArbitratorFlame Of Truth
The SC judgement by Justice S S Nijjar in the matter between Reliance Industries Ltd and others versus Union of India, arbitration petition filed by Reliance for appointment of the third and the presiding arbitrator.
The Cost of Litigation: A Case Study, Business Law, Plymouth State University...Kevin O'Shea
In 2009, I presented to Professor Forgues’ Business Law Class at Plymouth State University addressing the high cost of business litigation and using Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info. Servs. 642 F. Supp. 2d 58 (D. Mass. 2009) as a case study.
Arbitration law update, Darren-Chaker, written by leading law firm, citing case law, statute and other legal resources about recent arbitration developments.
Seminar material that covered topics that as commercial general liability insurance coverage issues, duties of defense, indemnity, insurance debates, surety bonds, wrap insurance options and class action suits.
Complaint for breach of contract, constructive fraud, constructive trust and unfair business practices against Joshua Macciello, self-pronounced bidder for the Dodgers and alleged film producer. Anyone with knowledge of Mr. Macciello's whereabouts, or who "invested" or "lent" money to Mr. Macciello, please contact CharismaticScam@gmail.com
Contrary to respondents’ argument, CAFA’s “100 or more persons” phrase does not encompass unnamed persons who are real parties in interest to claims brought by named plaintiffs. Congress knew how to draft language to that effect when it intended such a meaning, see, e.g., §§1332(d)(5)(B), 1332(d)(1)(D). That it did not do so in the mass action provision indicates that Congress did not want the provision’s numerosity requirement to be satisfied by counting unnamed individuals who possess an interest in the suit
Bankruptcy Adversary Proceeding in Eleventh Circuit Court, Florida. Defendant's Closing Argument Brief for Dischargeability under Section 523(a)(4) and 523(a)(6) of the Bankruptcy Code. Defendant is a Pro Se Litigant. Defending against allegations made from an ex-boyfriend who was using his business to escape liability. Tax avoidance, collusion, conflict of interest, abuse of power.
SDFL - Order Dismissing Various Claims - Jurisdiction - Trade SecretsPollard PLLC
The Plaintiff filed a 20 count lawsuit alleging, among other counts, theft of trade secrets, unjust enrichment, breach of fiduciary duty, trademark infringement, violations of the Computer Fraud Abuse Act and more.
This is the classic shock and awe, everything and the kitchen sink approach to litigation.
In this instance, that approach backfired spectacularly. The Court dismissed 17 of the counts on jurisdictional grounds -- holding they cannot be refiled in federal court but must be pursued, if at all, in state court.
The court also dismissed one count with prejudice. Denied the motion to dismiss with respect to one count. And granted leave to amend on one count--- but warned plaintiff and its counsel to mind Rule 11 if they decide to amend.
Think twice before you file a 20 count complaint in federal court where you are literally throwing everything at the wall and hoping something sticks.
In the cae below identify the subject matter of the controversy, whe.pdfwailesalekzydelore94
In the cae below identify the subject matter of the controversy, whether the common law or the
UCC (Artlce 2) would cover the contractual issues, and explain the reasons for your conclusions.
Also, discuss when, in general, the UCC (Article 2) governs contracts and when the common law
governs.
Kurt N. Aslakson, et al., Appellants, v. Home Savings Association, Respondent, Upper
Northwest Payment Plans Co., Respondent
No. C6-87-1497
Court of Appeals of Minnesota
416 N.W.2d 786; 1987 Minn. App. LEXIS 5110; 6 U.C.C. Rep. Serv. 2d (Callaghan) 35
December 3, 1987, Decided December 15, 1987, Filed
PRIOR HISTORY: [**1] Appeal from Hennepin County, District Court, Hon. Ann
Montgomery, Judge.
DISPOSITION: Affirmed. CASE SUMMARY:
PROCEDURAL POSTURE: Appellant homeowners sought review of the decision from the
Hennepin County, District Court (Minnesota), which granted summary judgment in favor of
respondents, savings association and payment plan, on the homeowners\' claim of tortious
interference with contract.
OVERVIEW: The homeowners entered into a conditional sales contract to purchase a mobile
home. Subsequently the contract was assigned to the savings associationThe homeowners argued
that thetrial court erred in determining, as a matter of law, that their claims of wrongful
interference with contracts were invalid. The court determined that the trial court had correctly
determined that a contract between the homeowners and a subsequent buyer could not arise
absent performance of a condition precedent, which was the approval of the subsequent buyer\'s
assumption of the loan. Even if this court were to determine that valid contracts existed between
the homeowners and prospective buyers, the issue of justification would have to be addressed
and the savings association and payment plan would have prevailed. Credit checks and equity
interests were commercially reasonable assurances and could not be met by the prospective
buyers. The savings association and payment plan were within their right to refuse the
assignment.
OUTCOME: The court affirmed the decision from the trial court.
CORE TERMS: mobile home, materially, prospective buyer, breach of contract, assignee,
buyer\'s, purchase agreement, assignor, summary judgment, down payment, substantial interest,
conditional, assurances, assigned, inducing, delegate, condition precedent, contractual,
contingent, delegation, tortious interference, credit check, right to refuse, wrongful interference,
contractual duties, equity interest, delegating, purchaser, happening, default
LexisNexis(R) Headnotes
1 of 7 4/4/12 5:11 PM
http://www.lexisnexis.com/lnacui2api/delivery/PrintDoc.do?jo...
Torts > Business Torts > Commercial Interference > Contracts > General Overview
[HN1] \"Interference with contract\" is somewhat broader than \"inducing breach of contract\" in
that the former includes any act injuring or destroying persons or property which retards, makes
more difficult, or prevents performance, or makes performan.
Chapter Ten The Law of Contracts and Sales—IIIn our discussion of .docxmccormicknadine86
Chapter Ten The Law of Contracts and Sales—II
In our discussion of the law of contracts in Chapter 9, we were concerned that agreements be enforceable. We noted that without enforceability of contract law by a court, there would be no predictability for enterprises that produce and sell goods. Without this there would be no security and financial stability for a firm. We would see the risk of loss increase and entrepreneurship decline if contracts were not enforceable at all levels of the manufacturing, marketing, and distribution of services and goods.
In this chapter we carefully examine the methods by which a contract can be discharged (particularly through performance), as well as the remedies that are possible for firms and individuals who are injured by a breach of contract for the sale of goods (Articles 2 and 2A of the Uniform Commercial Code [UCC]). E-contracts are highlighted and the concepts underlying them are distinguished from traditional contract principles. This chapter also addresses the international dimensions of contracts and sales agreements.Critical Thinking About The Law
In Chapter 9, we emphasized the importance of predictability and stability for those who enter into contracts. Nevertheless, we do not want parties to jump immediately to the conclusion that they have a contract every time they talk about an exchange. Instead, we want to make it possible for people to talk about an exchange without having actually made a commitment to the exchange. Why?
To aid your critical thinking about issues surrounding contract formation and performance, let’s look at a fact pattern involving concert tickets.
Jennifer and Juan were recently involved in a breach-of-contract case. Juan had two extra tickets to a Garth Brooks concert, and he agreed to sell these tickets to Jennifer. After they had agreed on the price, Juan promised to give the tickets to Jennifer the next day. The next day, however, Jennifer did not want the tickets. Jennifer had discovered that it was an outdoor afternoon concert. Jennifer argued that she should not have to buy the tickets because she is allergic to sunlight and unable to spend any extended period of time outside. The judge ruled in favor of Jennifer.
1. What ethical norms seem to dominate the judge’s thinking (see Chapter 1)?
Clue: We have said that security is one reason for enforcing contracts. Review your list of ethical norms. Which norms seem to conflict with security in this case?
2. What missing information might be helpful in this case?
Clue: To help you think about missing information, ask yourself the following question: Would the fact that Juan knew that Jennifer was allergic to sunlight affect your thinking about this case?
3. What ambiguous words might be troublesome in this case?
Clue: Examine the reasoning that Jennifer uses to argue that she should be released from the contract.
Methods of Discharging a Contract
When a contract is terminated, it is said to be discharged. A contract m ...
BOOK BUSINESS LAW TEXT&EXERCISES 8TH EDITIONChapter 153. .docxsimonlbentley59018
BOOK "BUSINESS LAW TEXT&EXERCISES 8TH EDITION
Chapter 15
3.
Promises made in conspirator of marriage.
After twenty-nine years of marriage, Robert and Mary Lou Tuttle were divorced. They admitted in court that before they were married, they had signed a prenuptial agreement and had agreed on its general term that each would keep his or her own property and anything derived from that property. But a copy of the prenuptial agreement could not be found. Can the court enforce the agreement without a writing? Why or why not? (see the statues of frauds- writing requirements).
5.
The parol evidence rule.
Evangel Temple Assembly of God leased a facility from Wood Care Centers, Inc., to house evacuees who had lost their home in a hurricane. The lease agreement stated that Evangel could end the least at any time by giving notice and paying 10 percent of the rent that would otherwise have been paid over the rest of the term. The lease agreement also stated that if the facility did not retain its tax exemption which was granted to it on Evangel’s behalf as
a church Evangel could end the lease without making the 10 present payment. Is parol evidence admissible to interpret this lease? Why or why not? ( see the parol evidence rule).
Chapter 16
3.
Third Party beneficiary.
David and Sandra Dess contracted with Sirva Relocation, LLC, to assist in selling their home. In the contract, the Desses agreed to disclose all information about the property on which Sirva “and other prospective buyers may rely in deciding whether and on what terms to purchase the Property.” The Kincaids contracted with Sirva to buy the house. After closing, they discovered dampness in the walls, defective and rotten windows, mold, and other undisclosed problems. Can the Kincaids bring action against the Desses for breach of their contract with Sirva? Why or why not? ( see third party beneficiaries)
5.
Duties that cannot be delegated.
Bruce Albea Contracting, Inc., the contractor on a highway project, subcontracted the asphalt work to APAC-Southeast, Inc. the contract prohibited delegation without Albea’s consent. In mid-project, APAC delegated its duties to Matthews Contracting Co. Albea allowed Matthews to finish the work. But Alea did not pay APAC for its work on the projects, arguing that APAC had violated the anti-delegation clause, rendering their contract void. Is Albea correct? Explain. (see assignments and delegations).
Chapter 17
3.
Specific performance.
Russ Wyant owned Humble Ranch in South Dakota. Edward Humble was Wyant’s uncle and held a two-year option to buy a ranch from Wyant. The option included specific conditions. Once it was exercised, for instance, the parties had thirty days to enter into a purchase agreement and the seller could become the buyer’s lender by matching the terms of the proposed financing. After the option was exercised, Wyant and Humble engaged in a lengthy negotiations. Humble, however, did not respond to Wyant’s proposed purchase .
Chapter Ten The Law of Contracts and Sales—IIIn our discussion of .docxbissacr
Chapter Ten The Law of Contracts and Sales—II
In our discussion of the law of contracts in Chapter 9, we were concerned that agreements be enforceable. We noted that without enforceability of contract law by a court, there would be no predictability for enterprises that produce and sell goods. Without this there would be no security and financial stability for a firm. We would see the risk of loss increase and entrepreneurship decline if contracts were not enforceable at all levels of the manufacturing, marketing, and distribution of services and goods.
In this chapter we carefully examine the methods by which a contract can be discharged (particularly through performance), as well as the remedies that are possible for firms and individuals who are injured by a breach of contract for the sale of goods (Articles 2 and 2A of the Uniform Commercial Code [UCC]). E-contracts are highlighted and the concepts underlying them are distinguished from traditional contract principles. This chapter also addresses the international dimensions of contracts and sales agreements.Critical Thinking About The Law
In Chapter 9, we emphasized the importance of predictability and stability for those who enter into contracts. Nevertheless, we do not want parties to jump immediately to the conclusion that they have a contract every time they talk about an exchange. Instead, we want to make it possible for people to talk about an exchange without having actually made a commitment to the exchange. Why?
To aid your critical thinking about issues surrounding contract formation and performance, let’s look at a fact pattern involving concert tickets.
Jennifer and Juan were recently involved in a breach-of-contract case. Juan had two extra tickets to a Garth Brooks concert, and he agreed to sell these tickets to Jennifer. After they had agreed on the price, Juan promised to give the tickets to Jennifer the next day. The next day, however, Jennifer did not want the tickets. Jennifer had discovered that it was an outdoor afternoon concert. Jennifer argued that she should not have to buy the tickets because she is allergic to sunlight and unable to spend any extended period of time outside. The judge ruled in favor of Jennifer.
1. What ethical norms seem to dominate the judge’s thinking (see Chapter 1)?
Clue: We have said that security is one reason for enforcing contracts. Review your list of ethical norms. Which norms seem to conflict with security in this case?
2. What missing information might be helpful in this case?
Clue: To help you think about missing information, ask yourself the following question: Would the fact that Juan knew that Jennifer was allergic to sunlight affect your thinking about this case?
3. What ambiguous words might be troublesome in this case?
Clue: Examine the reasoning that Jennifer uses to argue that she should be released from the contract.
Methods of Discharging a Contract
When a contract is terminated, it is said to be discharged. A contract m.
Similar to Report & Recommendation Denying Preliminary Injunction - MDFL (20)
Pollard PLLC lawsuit seeking (a) declaratory judgment holding a non-compete agreement unenforceable and damages for (b) unpaid wages under the Fair Labor Standards Act (c) defamation per se and (d) tortious interference.
Complaint - Bartender Non-Compete Case - Tampa Federal CourtPollard PLLC
This Complaint arises out of a hospitality and staffing company's assertion that several bartenders are subject to non-compete restrictions. The at issue non-compete agreements were never signed.
Pollard PLLC has initiated a lawsuit against the company WTS International, Inc. for tortious interference, defamation, and a declaratory judgment holding that no such non-compete agreements exist, or, that such restrictions are not enforceable.
The plaintiff in this case runs a janitorial service that primarily cleans restaurants. They have sued a former employee, Altman, for breach of a non-compete agreement and theft of trade secrets.
To state the obvious: The identity and contact information of the Cheesecake Factory is not a trade secret. Knowing how to clean a restaurant is not a trade secret. Quoting a price for cleaning services is not a trade secret.
Pollard PLLC represents Altman and has countersued for the following:
1. Declaratory judgment holding the non-compete agreement unenforceable.
2. False advertising under the Lanham Act.
3. Defamation. The Plaintiff has gone to multiple customers and told them that Altman stole their trade secrets and even stole equipment. Altman maintains that these allegations are total fabrications.
4. Tortious interference.
5. Breach of contract for failure to pay certain commissions.
Altman, now the Defendant/Counter-Plaintiff is seeking at least $10 million in damages in addition to corrective advertising to clear her name.
Complaint - Woodbridge Liquidation Trustee vs. Woodbridge's LawyersPollard PLLC
The trustee of the Woodbridge Liquidation Trust has brought a $500 million+ lawsuit against the lawyers and law firms that it alleges helped facilitate the Woodbridge Ponzi scheme.
Representatives Nunes Sues CNN for Defamation & $435 Million in DamagesPollard PLLC
Representative Devin Nunes has sued CNN for defamation and is seeking $435 million in damages. Per the Complaint: Nunes alleges that CNN knowingly published numerous false statements about his alleged involvement in Ukraine.
Per the Complaint: Nunes was not in Ukraine - as alleged - digging up dirt of the Bidens. This was a false narrative invented by Parnas to obtain leverage and cut a deal.
Let's unpack this:
The Complaint is full of theatrics but probably survives a motion to dismiss. Plaintiff has alleged that the statements at issue were false. The truth or falsity of those statements is a factual dispute. As for the defamatory nature of the statements: The statements could be defamatory, but probably don't rise to the level of defamation per se.
The Washington DC Attorney General's Office has filed a lawsuit against DoorDash. The Complaint alleges that DoorDash engaged in false and deceptive practices regarding its tipping policies. Basically, DoorDash used "tips" to subsidize worker pay---- while representing to the consuming public that the tip was exactly that--- a tip that went to the driver.
The reason why lawsuits by state AG's are so important here: Most people - whether workers or consumers - probably can't sue DoorDash because of arbitration provisions and class action waivers. But those things are no obstacle to a state AG.
Motion to Dismiss Claims for Misappropriation of Trade Secrets and Tortious Interference under Florida law. Tampa, Florida. Hillsborough County Circuit Court - Complex Business Litigation Division.
Pollard PLLC
P. 954-332-2380
Appellate Brief - Appeal of Preliminary Injunction - United States Court of A...Pollard PLLC
On brief with my former colleagues from Boies Schiller. This is a major appeal of a preliminary injunction from the United States District Court for the Middle District of Florida to the United States Court of Appeals for the Eleventh Circuit.
Critical issues addressed herein:
1. Enforceability of restrictive covenants under CT law.
2. Application of CT's multi-factor test for reasonableness of restrictive covenants and/or non-compete agreement.
3. The public interest inquiry under FRCP 65.
4. The defense of prior breach under CT law.
5. The concept of irreparable under FRCP 65.
6. Whether protracted delay precludes a finding of irreparable harm and forecloses preliminary injunctive relief.
7. Whether the existence of settlement discussions/negotiations can justify a party's protracted delay in seeking injunctive relief.
Jonathan Pollard
Pollard PLLC
P: 954-332-2380
Middle District of Florida - Recent Decision Denying Trade Secret InjunctionPollard PLLC
This is a great example of how courts should evaluate a request for a preliminary injunction in a misappropriation of trade secrets case.
Courts and judges should never credit boilerplate, generic allegations about trade secrets and misappropriation. All such allegations should be put to the test. The key questions:
What is the trade secret? Has it been identified? Has it been boiled down to something concrete and tangible? Is the same thing publicly available? Does it have economic value? Has it been misappropriated? Were there reasonable efforts to keep it secret?
Even when the plaintiff has good answers to all of these questions, they still have to prove irreparable harm.
The 11th Circuit repeatedly has made this clear: Preliminary injunctions are supposed to be extraordinary and drastic remedies. They should be issued only in dire circumstances where there is a clear, imminent threat of irreparable.
Great read.
Jonathan Pollard
Pollard PLLC
Non-Compete & Trade Secret Lawyers
954-332-2380
Order Denying Motion to Dismiss False Advertising & Defamation ClaimsPollard PLLC
Order denying Motion to Dismiss claims for false advertising under the Lanham Act and defamation. Southern District of Florida 2019. Pollard PLLC. Jonathan Pollard.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
MDFL - Order Denying Motion to Dismiss Trade Secret & Fraud ClaimsPollard PLLC
In this order, the United States District Court for the Middle District of Florida, Tampa Division, denies the defendants' motions to dismiss claims for breach of contract, theft of trade secrets in violation of the Defend Trade Secrets Act, 18 USC 1836 et. seq., fraud and aiding and abetting fraud.
In relevant part, the Court rejects the defendants' efforts to impose a summary judgment like burden at the pleading stage. Notable holdings include: (1) The question of whether information constitutes a trade secret is a question of fact normally resolved by a jury after full presentation of evidence. (2) A claim for misappropriation may exist not only where the defendant itself is alleged to have stolen trade secrets, but where the defendant is alleged to have obtained the trade secrets while knowing that they were acquired by improper means. (3) The allegation that a defendant induced a plaintiff to enter an NDA with no intention of honoring it states a claim for fraud in the inducement that is not barred by the independent tort doctrine.
The plaintiff is represented by Fort Lauderdale, Florida based Pollard PLLC. The firm has extensive experience litigating complex non-compete, trade secret, trademark and unfair competition claims. Their office can be reached at 954-332-2380.
Complaint for legal malpractice, fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, aiding and abetting fraud, and civil conspiracy. Pollard PLLC, Fort Lauderdale, FL 33301.
Complaint against Magellan Health, Inc. for $1 Million Unpaid Bonus CompensationPollard PLLC
Complaint and Demand for Jury Trial against Magellan Health, Inc. alleging that Magellan failed to pay an employee more than $1 million+ in earned bonus compensation. United States District Court, Middle District of Florida, 2018. Pollard PLLC.
Order Denying Motion to Dismiss False Advertising & Defamation ClaimsPollard PLLC
Order of the United States District Court for the Southern District of Florida denying Defendant's Motion to Dismiss various claims, including claims for false advertising and defamation per se.
The at issue advertisements and statements consisted of the following: A company allegedly advised numerous customers and vendors in the industry that the plaintiff had stolen its trade secrets and engaged in illegal conduct.
Fort Lauderdale, Florida competition lawyer Jonathan Pollard presents on Non-Compete Agreements, Antitrust & the Rule of Reason. This presentation covers (1) the antitrust underpinnings of non-compete law (2) the classic antitrust rule of reason framework, which is the basis for all non-compete legitimate business interest tests and (3) antitrust risks in connection with non-compete agreements. This presentation is particularly timely given the Department of Justice's recent statement that it intends to pursue criminal prosecutions of firms engaged in no-poaching agreements.
To reach Pollard PLLC, please call their office at 954-332-2380.
Federal False Advertising & Trade Libel LawsuitPollard PLLC
This is an example of a recent case filed by Pollard PLLC, a litigation firm based in Fort Lauderdale, Florida that focuses on competition law.
This case involves a dispute between former business colleagues. The Plaintiff left the Defendant's company to start his own business. There was no non-compete, non-solicitation or confidentiality agreement. Fearing fair competition by the Plaintiff, the Defendant set out on a campaign to destroy Plaintiff's reputation in the industry.
For more information, visit https://www.pollardllc.com or call 954-332-2380.
Answer, Counterclaims & Third Party Claims - Non-Compete & Tortious InterferencePollard PLLC
This is one of our cases in Volusia County, Florida. Our clients - all of the defendants in the case - were sued for breach of a non-compete agreement, breach of fiduciary duty and tortious interference.
We responded with counterclaims for a declaratory judgment holding the non-compete agreement(s) unenforceable, third party claims for breach of fiduciary duty and breach of contract and a demand for indemnification.
This is a good example of our level of work. We have extensive experience litigating non-compete and tortious interference cases on both sides. We prosecute and defend these types of cases.
In every case, we have a process: First, we master the facts. Many lawyer and law firms get involved in a case and immediately focus on law. In our view, that is the wrong approach. All cases are driven by facts. Any legal strategy must be tailored to the specific facts of a specific case.
We do not take anything for granted. We do not default to the same tired boilerplate pleadings. In every new case, we fashion a specific strategy for that case.
If you have a non-compete or tortious interference case, just give us a call at 9543-32-2380. That's what we're here for.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
ALL EYES ON RAFAH BUT WHY Explain more.pdf46adnanshahzad
All eyes on Rafah: But why?. The Rafah border crossing, a crucial point between Egypt and the Gaza Strip, often finds itself at the center of global attention. As we explore the significance of Rafah, we’ll uncover why all eyes are on Rafah and the complexities surrounding this pivotal region.
INTRODUCTION
What makes Rafah so significant that it captures global attention? The phrase ‘All eyes are on Rafah’ resonates not just with those in the region but with people worldwide who recognize its strategic, humanitarian, and political importance. In this guide, we will delve into the factors that make Rafah a focal point for international interest, examining its historical context, humanitarian challenges, and political dimensions.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
1. UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
PROPERTIES OF THE VILLAGES,
INC., a Florida Corporation
Plaintiff,
v. Case No: 5:19-cv-647-Oc-30PRL
JASON KRANZ, CHRISTOPHER DAY,
ANGELA KRANZ, CYNTHIA
HUGHES, NANETTE ELLIOTT,
ANGIE TAYLOR, KELLY SHIPES, and
KD PREMIER REALTY, LLC,
Defendants.
REPORT AND RECOMMENDATION1
Plaintiff, Properties of The Villages, Inc. (“POV”), has filed a motion for preliminary
injunction against the remaining individual defendants in this breach of contract case. (Doc. 52).
The defendants filed their response on July 30, 2020. (Doc. 61). The Court held a hearing on
August 6, 2020, and heard argument from both sides. For the reasons discussed below, I
recommend that the motion be denied.
I. BACKGROUND2
1
Within 14 days after being served with a copy of the recommended disposition, a party may file
written objections to the Report and Recommendation’s factual findings and legal conclusions. See Fed.
R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B); Local Rule 6.02. A party’s
failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual
finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir.
R. 3-1.
2
The evidence submitted by the parties consists of over 1500 pages of exhibits, including
Defendants’ depositions and the declaration of POV’s corporate representative, Sundeep “Bobby” Gulati.
(Doc. 52).
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POV is a Florida based corporation that sells real estate and residential housing located in
the community known as The Villages (which encompasses parts of Lake, Sumter, and Marion
Counties, Florida). (Doc. 41, ¶ 3). Individual defendants Christopher Day, Jason Kranz, Angela
Kranz, Cynthia Hughes, Nanette Elliott, Angie Taylor, and Kelly Shipes are former salespersons
of POV and licensed in Florida as real estate associates. 3
They had each entered into an
independent contractor agreement with POV to perform the customary activities of real estate
associates. (Docs. 52-2, 52-3 Exs. A-H).
Each agreement contained a covenant not to compete; a non-solicitation clause as to POV
“customers;” a non-solicitation clause as to POV employees; and a non-disclosure provision.
Specifically, the ICAs provided that during the term of the agreement and then for a term of 24
months following its termination, the individual defendant:
Shall not directly or indirectly engage in and shall have no interest
in any business or entity, whether as an owner, shareholder,
member, employee, agent, consultant, contractor, or other affiliate
of any kind, that is in any way involved with the sale, marketing,
leasing, management, or the closing of sales transactions, of real
estate situated within the geographic area known as The Villages®
community as it exists at the time of termination of this Agreement
(the “Restricted Area”).
(Docs. 52-2, 52-3, Exs. A-J).
The ICAs also included a provision stating that during the term of the agreement and for a
period of 24 months following its termination, the individual Defendants will not directly or
indirectly solicit for employment any employee, agent, or independent contractor of POV or
directly or indirectly solicit or accept real estate business from any current or former customer of
POV or any potential customer being solicited for business at the time the applicable agreement is
3
POV has resolved its dispute with the other individual defendants, Jan Hickerson, Toni
McChesney, and Kathleen Roth. (Doc. 62).
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terminated. (Docs. 52-2, 52-3, Exs. A-J). And the ICAs stated that the individual defendants would
keep confidential and not divulge any confidential or proprietary information of POV and to return
all such information to POV upon termination of the agreement. (Docs. 52-2, 52-3, Exs. A-J).
On December 9, 2019, Day and Mr. Kranz formed a limited liability company known as
KD Premier Realty, LLC (“KD Realty”), located in Sorrento, Lake County, Florida. (Doc. 52-3,
Ex. P). On December 16, 2019, Day announced that it was his last day working for POV. (Doc.
52-3, Ex. K). That same day, Ms. Kranz asked POV to release her real estate license to the state
of Florida and said she would make sure to turn her keys in. (Doc. 52-3, Ex. L). Mr. Kranz also
announced that it would be his last day as a representative of POV. (Doc. 52-3 Ex. M). On
December 19, 2020, Day sent an email to his previous customers with POV announcing his
resignation and his new real estate brokerage with Mr. Kranz. (Doc. 52-3, Ex. U).
One day prior to leaving POV, Mr. and Mrs. Kranz obtained an electronic spreadsheet
containing customer data for residents of The Villages. (Doc. 52-3, Ex. Y). Mr. Kranz also
obtained a template Florida Residential Lease Agreement and a Homeowner’s Shopping Guide.
(Doc. 52-3, Ex. Y). On December 20, 2019, Elliott’s personal assistant at POV sent an electronic
spreadsheet containing information about POV customers to a personal email. (Doc. 52-3, Ex. Z).
According to POV, Day and Mr. Kranz contacted current POV salespersons directly and
through social media to solicit them to leave POV and join their company, Defendant KD Premier
Realty. (Doc. 52-2 ¶ 35). Day posted on Facebook that he started his own brokerage and he and
Mr. Kranz would be selling in The Villages. (Doc. 52-3, Ex. T). Day responded to multiple
Facebook users on his account regarding his new brokerage in the Villages, including that he
“wanted to butter up all of [his] customers before [he] departed.” (Doc. 52-3, Ex. T). Day and Mr.
Kranz used a marketing picture on Facebook from POV and replaced the POV trademark with
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new logos after creating KD Realty. (Doc. 52-3, Ex. W). Day stated in a response to a Facebook
friend, “I am actually in the process of calling all 600+ of my customers.” (Doc. 52-3 Ex. V).
Although at his deposition, Day said that he only called “one hundred, 150” of his customers.
(Doc. 52-4, 228:15-18). Mr. Kranz, on the other hand (who’s list POV references in its motion),
says he didn’t call anyone, or send an email, and that he and Day didn’t share contacts. (Doc. 52-
5, 207-208).
On January 3, 2020, Hughes notified POV that she would no longer be performing services
on its behalf and asked that her real estate licensed be released and moved to the State of Florida.
(Doc. 52-3, Ex. N). On January 4, 2020, Elliott notified POV that she would no longer be
performing services on its behalf and asked that her license be released and moved to the State of
Florida. (Doc 52-3, Ex. O). On January 5, 2020, Taylor transferred her real estate license from
POV. (Doc. 52-3 p. 8). On January 10, 2020, Shipes asked POV to release her real estate license
and to move it to the state of Florida. (Doc. 52-3 ¶ 32). Currently, Day, Mr. and Ms. Kranz, Hughes,
Elliott, and Taylor, all have their real estate licenses assigned to KD Realty. (Doc. 52-3, Ex. Q).
Now, POV has filed a motion for preliminary injunction to enjoin the individual defendants
from 1) competing with POV in violation of their respective non-compete covenants; 2) soliciting
POV’s customers covered by their respective non-solicitation covenants; 3) soliciting POV’s
current employees or contractors; and 4) using or divulging all of POV’s confidential, proprietary,
and trade secret information and to return this information to POV.
II. LEGAL STANDARDS
A district court may grant injunctive relief only if the moving party shows that (1) it has a
substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed
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injunction may cause the opposing party, and (4) if issued, the injunction would not be adverse to
the public interest. United States v. Stinson, 661 F. App’x 945, 950 (11th Cir. 2016). A preliminary
injunction is an equitable remedy, and the court has “significant discretion to tailor relief so as to
best serve the interests of the parties and the public.” Uber Promotions, Inc. v. Uber Tech., Inc.,
162 F. Supp. 3d 1253, 1262 (N.D. Fla. 2016).
III. DISCUSSION
A. Likelihood of Success on the Merits
In reviewing the preliminary injunction claim, the court considers the likelihood of success
on the merits. That analysis requires the court to consider the merits of a plaintiff’s claim under
the appropriate legal standard for a breach of contract as it relates here to restrictive covenants.
Specifically, POV’s claim for injunctive relief is based on its breach of contract claims under Fla.
Stat. § 542.335(1). POV’s contracts at issue are restrictive covenants, and it must first prove that
the restrictive covenants are enforceable under Florida law. Fla. Stat. § 542.335(1); Lucky Cousins
Trucking, Inc. v. QC Energy Res. Texas, LLC, 223 F. Supp. 3d 1221, 1225 (M.D. Fla. 2016).
To establish the restrictive covenant is enforceable, POV must “plead and prove the
existence of one or more legitimate business interests justifying the restrictive covenant” and “that
the contractually specified restraint is reasonably necessary to protect the legitimate business
interest or interests justifying the restriction.” Fla. Stat. § 542.335(1)(b)-(c). Legitimate business
interests include trade secrets, valuable confidential business or professional information,
substantial relationships with specific prospective or existing customers, customer goodwill, and
extraordinary or specialized training. Fla. Stat. § 542.335(1)(b). Where there is no legitimate
business interest established to be protected such that a restraint on trade is simply being used to
restrain ordinary competition, as opposed to prevent an unfair advantage from being gained, no
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preliminary injunction can issue. See, e.g., Delivery.com Franchising, LLC v. Moore, No. 20-
20766-CIV, 2020 WL 3410347, at *11 (S.D. Fla. June 19, 2020), report and recommendation
adopted, No. 20-20766-CIV, 2020 WL 4464674 (S.D. Fla. July 14, 2020) (denying preliminary
injunction where “Delivery.com seeks to restrain PTO’s ordinary competition and presents no
special facts that show that PTO would gain an unfair advantage against Delivery.com.”).
1. Substantial relationships with specific prospective or existing customers
First, POV claims that it has a legitimate business interest in the relationships it developed
with its customers. To support this claim, POV must prove that the restrictive covenant protects
“substantial relationships with specific prospective or existing customers.” Fla. Stat. §
542.335(1)(b). In Florida, an employers’ right to prevent the solicitation of its customers is a
legitimate business interest. North American Products Corp. v. Moore, 196 F. Supp. 2d 1217, 1228
(M.D. Fla. Apr. 2, 2002). “Where an employee . . . gains substantial knowledge of his former
employer’s customers, their purchasing history, and their needs and specifications it follows that
the employer has a legitimate business interest under the statute.” Id. The plaintiff bears the burden
to demonstrate its substantial relationship with specific customers. Accuform Mfg., Inc. v. Nat'l
Marker Co., No. 8:19-CV-2220-T-33AEP, 2020 WL 1674577, at *6 (M.D. Fla. Jan. 13,
2020), report and recommendation adopted, No. 8:19-CV-2220-T-33AEP, 2020 WL 634416
(M.D. Fla. Feb. 11, 2020).
POV claims that Defendants had the opportunity to participate in certain “shifts meeting
potential customers at one of The Villages’ sales centers or ones who called in over the telephone,
as well as at ‘showcases’ for newly built houses.” POV said that salespersons
develop relationships with the persons they met in these shifts in an
effort to get those persons to tour with and ultimately buy homes
from them in The Villages®. These shifts are designed to assist the
salespersons in building up a customer base for sales of newly-built
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and pre-owned homes. The people that salespersons meet through
these shifts may become buyers of homes, and they subsequently
may become repeat customers when they later sell their homes, as
well as referral sources for other customers.
(Doc. 52-2, ¶ 42).
Day claimed that five years into his employment with POV, he gave up the POV-generated
opportunities to connect with customers and to focus on resale only. (Doc. 52-4, 39:13-18). Early
on in his career he would participate in these “shifts,” but toward the end of his time with POV (he
was generally being asked about his last three years with POV), his business was “90 percent resale
and maybe 10 percent new.” (Doc. 52-4, 37:21-38:3). He stated that “all the substantial
relationships were my own that I built, and I may have loaded them in [POV’s] system.” (52-4,
175:1-9). Day also disagreed with the statement: “The relationships you had with customers at The
Villages was because you were a salesperson for The Villages.” (52-4, 174:21-25).
Indeed, with respect to POV’s database (the AS/400, which POV wanted salespersons to
use and enter information about customers), Day testified that for the last few years he hardly
entered data into it, and instead kept customer contact information in his cell phone or a program
called constant contact. (Doc. 52-4, 33-36). Further, the information about likes and dislikes that
POV wanted entered in its database, for example, Day testified that he was too busy to record that
type of information even in his own records. (Id.)
POV has included copies of emails showing that Mr. and Ms. Kranz took an electronic
spreadsheet containing customer information (Doc. 52-3, Ex. Y) and that Elliott’s personal
assistant sent her a spreadsheet containing customer information.4
(Doc. 52-3, Ex. Z). However,
POV has not claimed that Defendants have solicited any customers on these spreadsheets. In fact,
4
POV also submitted evidence that former Defendant Hickerson obtained two electronic
spreadsheets with customer information. (Doc. 52-3, Ex. AA).
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at his deposition, Mr. Kranz stated that neither he nor his mother contacted anyone on the
spreadsheets. (Doc. 52-5, 207:10-21). Elliot testified that her assistant sent her the spreadsheets so
she could contact “the people that were left on the list that had not responded that they were aware
[a party] had been cancelled.” (Doc. 52-8, 135:3-136:2).
Additionally, POV has not alleged that the individual defendants who did not take any
customer information (Day, Hughes, Taylor, and Shipes) have access to the spreadsheets. Day
admitted that he called “one hundred, 150” of his customers, but it seems that these customers
were from his personal database. (Doc. 52-4, 36:18-23; 164:13-16; 228:15-18).
Aside from POV’s general allegations regarding the spreadsheets, nowhere does POV
discuss which specific prospective or existing customer relationships the restrictive covenant was
designed to protect. Litig. Sols., L.L.C. v. McGonigal, No. 09-14374-CIV, 2010 WL 111822, at *3
(S.D. Fla. Jan. 11, 2010) (denying a preliminary injunction for failing to discuss which particular
customer relationships a restrictive covenant was designed to protect).
In the context of real estate, there appears to be three categories of customers: (1) those
inquiring about buying a property; (2) those who have not closed on a property but are currently
under contract; and (3) those who have closed on a property. POV broadly claims that the
protection of all of its customers is a legitimate business interest. At the hearing on this matter, the
defendants conceded that protecting the first two categories of customers could be considered a
legitimate business interest. However, POV never established that the relationships with those
categories of customers were at risk, or that the customers on the spreadsheets obtained by some
of the defendants were in those categories.
Elliot testified that she has sold houses for former customers of hers from POV. (52-8,
108:13-18). Her listings included a “referral from a friend of a previous customer” and a customer
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she had previously sold to. (52-8, 108:21-25). Elliot also sold a home to a customer that she knew
from working at POV that texted her after she joined KD realty. (52-8, 139:12-140:17).
Hughes testified that after leaving POV, she sold the home of a previous customer who
called her to list his home. (Doc. 52-7, 84:10-23). Hughes also sold a home to a customer that she
knew from POV but had never purchased a home from her. (Doc. 52-7, 86:4-18). Hughes emailed
customers that she previously sold homes announcing her departure and said, “I am here to serve
all of your preowned real estate needs, whether selling or buying.” (Doc. 52-7, 115:6-19).
Taylor testified that she mailed her new business card to approximately 100 customers
announcing that she moved to KD Realty. (Doc. 52-13; 151:20-152:13). Shipes testified that since
joining KD Realty, she has represented three previous customers from her time with POV. (Doc.
52-12, 132:9-22). Shipes also contacted her customers to notify them that she was now with KD
Realty. (Doc. 52-12, 133:1-6). Even with this testimony, POV has not established that defendants
have interfered with any relationships that POV had in the first two categories of customers.
Indeed, a review of Day’s business within the few months after leaving POV reveals that he had
no previous relationship with many of the individuals he interacted with, and that none of the ones
he was asked about were people who had been in the midst of selling or buying with him while at
POV. (See, e.g. Doc. 52-4, 149-160).
Some of the defendants did acknowledge selling homes to “previous” or “former”
customers that they knew from their time at POV.5
At the hearing, POV pointed to defendants’
5
At Defendants’ depositions, they were read a section of the ICA that explicitly prohibited the
solicitation of “former customers”:
During the term of this Agreement, and for a period of twenty-four (24)
months following the termination of this Agreement, Salesperson agrees
that Salesperson will not engage directly or indirectly in competition
with VILLAGES by directly or indirectly soliciting or accepting real
estate business from any customer of VILLAGES, former customer of
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deposition testimony in an attempt to prove the existence of substantial relationships with
customers in the third category.6
Substantial relationships are more likely to exist, however, where
there is “active, ongoing business being conducted; exclusivity; a customer who cannot be easily
identified by other competitors in the industry; and an expectation of continued business.”
IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335, 1340–41 (S.D. Fla. 2016).
Day testified that he maintained relationships with customers after they purchased homes.
(Doc. 52-4, 35:23-36:1). Day would “sen[d] out a monthly newsletter just letting people know
what was going on in [his] life, what was going on in The Villages, a couple of pictures; [he] would
touch base with them on their birthdays; [he] would send out a Christmas cards; and [he] would
do an annual customer appreciation party.” (Doc. 52-4, 36:4-9).
Based on this testimony, POV classifies the third category of customers as “existing
customers.” POV claims that it has active, ongoing relationships with these customers and an
expectation of more business from them in the future. It is undeniable that real estate agents have
a unique relationship with these customers, however, this category of customers is best categorized
as “former customers.” The protection of former customers does not qualify as a legitimate
business interest where no identifiable agreement exists establishing that they would return with
future work. Envtl. Servs., Inc. v. Carter, 9 So. 3d 1258, 1265 (Fla. 5th DCA 2009). In fact, as Day
discussed with respect to one former customer who came back to list with him, “I did not get every
sale in between.” (Doc. 52-4, 156).
VILLAGES or any potential· customer of VILLAGES being solicited for
business by VILLAGES at the time of the termination of this Agreement,
regardless of the location of such specific customer, and regardless of the
place of work of Salesperson.
(Docs. 52-2, 52-3, Exs. A-J). Defendants were then asked if their actions at KD Realty violated the
provision, and Defendants repeatedly conceded that they did. (Docs. 52-4, 209:6-8; 52-5, 185:3-5; 52-6,
156:8-22; 52-7, 112:13-15; 52-8, 130:15-20).
6
POV did not cite to Defendants’ deposition testimony in support of this argument in its motion.
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To the extent that POV classifies these customers as “prospective,” there is no evidence
that the customers considered buying or selling property with POV again. Defendants’ testimony
alludes to a mere hope that these customers will buy or sell with them again, but never mention an
identifiable agreement or even understanding establishing that they will return. These
“prospective” customers are always free to list or buy with an agent of their choosing. POV’s
contention, along with what it has presented, does not sufficiently establish at this time the
existence of a substantial relationship. See, e.g., IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d
1335, 1340 (S.D. Fla. 2016) (“Plaintiff here cannot read the word “substantial” out of the statute
and gain the benefit of an injunction based upon a relationship with EY that was non-exclusive. .
.”); Evans v. Generic Sol. Eng'g, LLC, 178 So. 3d 114, 117 (Fla. 5th DCA 2015) (holding that no
substantial relationship existed where plaintiff did not have an exclusive contract with the customer
or a reasonable expectation that it would continue to provide services to the customer after its
contract expired).
In the end, the protection against ordinary competition is not a legitimate business interest.
Lucky Cousins Trucking, 223 F. Supp. 3d at 1225. POV has not presented enough evidence to
establish a legitimate business interest in the customer relationships it references, and thus cannot
use it to obtain a preliminary injunction as to the restrictive covenants it seeks to enforce now.
2. Confidential information
Next, POV claims that the defendants were privy to confidential and proprietary
information concerning POV’s business. In Florida, “information that is commonly known in the
industry and not unique to the allegedly injured party is not confidential and is not entitled to
protection.” Thyssenkrupp Elevator Corp. v. Hubbard, No. 2:13-CV-202-FTM-29, 2013 WL
5929132, at *4 (M.D. Fla. Nov. 4, 2013). However, “when an employee has access to confidential
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business information crucial to the success of an employer’s business, that employer has a strong
interest in enforcing a covenant not to compete.” Proudfoot Consulting Co. v. Gordon, 576 F.3d
1223, 1234 (11th Cir. 2009). To succeed, POV must specify why its confidential information is a
legitimate business interest. Accuform Mfg., Inc. v. Nat'l Marker Co., No. 8:19-CV-2220-T-
33AEP, 2020 WL 1674577, at *8 (M.D. Fla. Jan. 13, 2020), report and recommendation
adopted, No. 8:19-CV-2220-T-33AEP, 2020 WL 634416 (M.D. Fla. Feb. 11, 2020).
POV alleges that Defendants had access to:
existing and prospective client data (including names, addresses and
phone numbers); information concerning substantial relationships
with prospective or existing clients; contracts, transactions, plans,
designs, policies, reports, histories and other information relating to
POV’s and The Villages’ inventory, sales, transactions or business
practices; access to POV’s exclusive VLS listing system; client
leads and techniques, policies, methods and procedures for
generating or procuring sales or leads; information concerning
prices, pricing, and marketing; suppliers’ names and addresses, and
supplier and supply lists; sales reports, business reports, financial
reports, and operating statements; information relating to
employees, agents, subagents, and independent contractors
(including names, addresses, phone numbers, commissions, sales
history and productivity); and computer programs, computer
software, databases, and other electronic data.
(Doc. 52-2, ¶ 7).
However, the depositions POV filed with its motion seem to contradict its claim that this
information was confidential. Defendant Day explicitly stated that he “never” received information
while working at The Villages that he understood he was not to share with people outside of The
Villages. (Doc. 52-4, 169:20-23). Day specifically stated, “I was never given any confidential
information, so there would be nothing to return to POV.” (Doc. 52-4, 172:18-19).
POV has also not established that its customer information was actually confidential.
Defendants claim – and testified in deposition – that POV’s database was not commonly used by
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the agents, and instead they kept the customer information on their personal devices. Indeed, Day
and Kranz discussed their limited use of POVs database and that they (and others) used their own
cellphones or databases – such as Constant Contacts and Top Producer – to maintain the
information they needed about customers. Day testified that everything in the database (client data
including names, numbers, and addresses) was programmed into his phone as soon as he met with
customers. (Doc. 52-4, 34:9-15; 164:13-16). Day is friends with many of his customers on
Facebook, and he uploaded his personal customer spreadsheet to his Facebook business page in
order to market to those customers. (Doc. 52-5, 229:2-10). Day didn’t recall suffering any
consequences from POV for not using its database. (Doc. 52-4, 35:16-22). Mr. Kranz claimed that
he asked his assistant to send him a spreadsheet although he already had the information in his
own database because “email was easier than to copy and paste.” (Doc. 52-5, 207:1-9). Mr. Kranz
also stopped using POV’s customer database and was never questioned by POV about it. (Doc.
52-5, 92:13-93:6).
The day that Mr. Kranz left POV, he emailed himself a template Florida Residential Lease
Agreement and a Homeowner’s Shopping Guide. (Doc. 52-3, Ex. Y). POV has not provided any
other information about these documents. Mr. Kranz stated that the Florida Lease Agreement “was
something you could easily manipulate. . . it was something found online, and [Mr. Kranz] just
sent it to [himself] to have in case [Mr. Kranz] came across anyone.” (Doc. 52-5, 210:11-19).
POV has not established how these documents are unique or proprietary, or explained how
Defendants could unfairly use that information to compete against it. See Lucky Cousins Trucking,
223 F. Supp. 3d at 1226 (finding no legitimate interest in confidential information where counter-
plaintiff alleged a list of information it claimed was confidential, but did not explain how it was
unique or how counter-defendants could use that market against it); Thyssenkrupp Elevator Corp.,
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2013 WL 5929132, at *5 (finding no legitimate business interest in confidential information when
a plaintiff failed to present any evidence showing that the defendant was privy to information
unique to its business or crucial to its success).
At this time, POV has not established a legitimate business interest in its claimed
confidential information; thus, it has not established a substantial likelihood of success on the
merits as to the restrictive covenants it seeks to enforce.
3. Customer goodwill
Third, POV generally claims it has a legitimate business interest in customer goodwill
associated with The Villages. Customer goodwill associated with a specific geographic location is
recognized as a legitimate business interest. Fla. Stat. § 542.335(1)(b)(4). POV presented argument
about The Villages trademark being widely recognized. However, POV has not shown that
customer goodwill is in need of protection. See, e.g., Technomedia Sols., LLC, 2013 WL 6571558,
at *12 (finding a legitimate business interest in customer goodwill where plaintiff had established
it “spent much time and money fostering and maintaining substantial relationships with the entities
it has accused [defendant] of soliciting” and “spent significant amounts of time and money creating
commercial goodwill and cultivating prospective business relationships with potential clients, and
it identifies seventeen of those clients.”).
It is not enough to merely assert the concept of goodwill. In fact, what the deposition
testimony can be said to reveal is that if customers returned to salespersons who worked for POV
they may have only done so because of their experience with that person – that is, if anything can
be gleaned from their testimony about goodwill it is the individual defendants’ efforts to foster
real relationships, not anything in particular that POV represented. At least, for purposes of the
current motion, POV hasn’t established what its goodwill is that it’s seeking to protect.
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POV’s “[g]eneric allegations do not establish a legitimate business interest.” Lucky Cousins
Trucking, 223 F. Supp. 3d at 1226. Therefore, it does not appear substantially likely at this time
that POV will be able to establish a legitimate business interest in customer goodwill.
4. Training
Finally, POV has not presented enough evidence to support a legitimate business interest
in training. Training constitutes a legitimate business interest protectable by an injunction only
when the training rises to the level of being specialized or extraordinary. Fla. Stat. §
542.335(1)(b)(5). To be protected, training must go beyond that typically offered in any given
industry. IDMWORKS, 192 F. Supp. 3d at 1342. POV claims that the focus of the training was to
“provide an in-depth education into the unique community that is The Villages® so that
salespersons would be able to more effectively sell there.” (Doc. 52-2, ¶ 41). POV has not
established that this training exceeded what is typical in the industry. IDMWORKS, 192 F. Supp.
3d at 1342 (finding no protectable interest in training when the defendant received training no
different from training he would receive at other companies in the industry). The deposition
testimony of the defendants doesn’t establish that they individually received any unique training
or information that is so unique that it can be used by them to unfairly compete with POV. Lucky
Cousins Trucking, 223 F. Supp. 3d at 1226.
Again, POV has not presented enough evidence to establish that the restrictive covenants
are enforceable. Accordingly, POV has not established a substantial likelihood of success on the
merits such that a preliminary injunction should issue as to the restrictions it seeks to enforce.
B. Irreparable Harm
Under Florida law, “[t]he violation of an enforceable restrictive covenant creates a
presumption of irreparable injury to the person seeking enforcement.” Fla. Stat. § 542.335(1)(j);
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Technomedia Sols., LLC v. Scopetto, No. 6:13-CV-1061-ORL-36, 2013 WL 6571558, at *16
(M.D. Fla. Dec. 13, 2013). At this point, POV has not presented enough evidence to establish that
the restrictive covenant is enforceable.
Even so, if there is harm in the defendants continuing to practice real estate in The Villages,
this harm could be compensable through money damages. Lucky Cousins Trucking, 223 F. Supp.
3d at 1226 (finding that counter-plaintiff did not demonstrate anything other than calculable money
damages, rendering injunctive relief unnecessary). “If an injury can be undone with an award of
monetary remedies, then the injury is not irreparable.” Delivery.com Franchising, LLC v. Moore,
No. 20-20766-CIV, 2020 WL 3410347, at *12 (S.D. Fla. June 19, 2020), report and
recommendation adopted, No. 20-20766-CIV, 2020 WL 4464674 (S.D. Fla. July 14, 2020).
C. Balance of the Harms
The Court must also consider the effects that a preliminary injunction will have on the
defendants. Defendants claim that should a preliminary injunction issue, their careers will be
derailed and the time and monetary investments in Defendant KD Realty will be lost. POV asserts
that it risks losing current and potential customers and employees if the defendants continue to
breach the restrictive covenant. Here the harm to the defendants from a preliminary injunction
outweighs the alleged threatened injury to POV.
D. Public Interest
Under Florida law, the public has an interest in the enforcement of restrictive covenants.
Technomedia Sols, 2013 WL 6571558, at *17. POV, however, has not established that the
restrictive covenants are enforceable. Therefore, the injunctive relief sought would not serve the
public interest.
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IV. RECOMMENDATION
Based on the reasons stated above, it is respectfully RECOMMENDED that POV’s
motion for preliminary injunction (Doc. 52) be DENIED.
Recommended in Ocala, Florida on August 14, 2020.
Copies furnished to:
Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy
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