Panorama Consulting Solutions, LLC v. Armitage et al
ORDER granting in part and denying in part 33 Motion to Set Aside, 2 Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction. So Ordered by Judge Raymond P. Moore on 07/10/2017. (rmlc2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Case No. 17-cv-01400-RM
PANORAMA CONSULTING SOLUTIONS, LLC,
PATRICIA G. STEELE,
LIBERTY TECHNOLOGY ADVISORS, INC.,
These matters come before the Court with Plaintiff Panorama Consulting Solutions, LLC’s
(“plaintiff”) Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction (“the
PI motion”) (ECF No. 2), and Defendants Richard Farrell (“Farrell”), Brian Potts (“Potts”), and
Liberty Technology Advisors, Inc. (“LTA”) (collectively “the LTA defendants”) Motion to Dissolve
(“the motion to dissolve”) (ECF No. 33) the Temporary Restraining Order entered on June 9, 2017
(“the TRO”) (ECF No. 10). The LTA Defendants have also filed a response in opposition to the
PI motion (ECF No. 32), which Defendant Richard Armitage (“Armitage”) has joined. (ECF No.
46.) A hearing on the PI motion and the motion to dissolve was held on July 7, 2017 (“the
PI hearing”)—28 days after entry of the TRO.
For all the reasons stated at the PI hearing, which are substantially condensed below, the
PI motion and motion to dissolve are GRANTED IN PART and DENIED IN PART.
A request for injunctive relief requires the movant to show: (1) irreparable harm if the
injunction is not granted; (2) a substantial likelihood of success on the merits; (3) its injury
outweighs possible harm to the adverse party if the injunction is granted; and (4) the injunction
would not be contrary to the public interest. Thomas v. Carson, 30 F. App’x 770, 772 (10th Cir.
2002) (citing ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999)).
Plaintiff seeks a preliminary injunction to prevent the LTA defendants and Armitage from
using plaintiff’s confidential information and trade secrets, and to prevent Potts, Farrell, and
Armitage from breaching confidentiality, non-solicitation, and/or non-competition agreements with
plaintiff.1 (ECF No. 2 at 5.)2
Substantial Likelihood of Success on the Merits
In its Amended Complaint, plaintiff brings claims for (1) misappropriation of trade secrets
in violation of the Defend Trade Secrets Act (“DTSA”), (2) misappropriation of trade secrets in
violation of the Colorado Uniform Trade Secrets Act (“CUTSA”), (3) breach of contract, (4) tortious
interference with contractual relations and prospective business relations, (5) civil conspiracy to
Plaintiff also sought similar relief with respect to Defendant Patricia Steele, but, on July 6, 2017,
plaintiff filed a Notice of Settlement with Steele. (ECF No. 67.) As a result, evidence pertaining to Steele
was not introduced at the PI hearing, and the TRO has now expired with respect to her.
The Court uses the page numbers assigned by the CM/ECF system in the top-right hand corner of
the pertinent pleading, rather than any page numbers at the bottom of the same.
commit tortious interference, (6) conversion, (7) civil theft, (8) breach of the duty of loyalty,
(9) computer fraud in violation of 18 U.S.C. § 1030, and (10) destruction of company property.
(ECF No. 43 at 15-24.)
As explained at the PI hearing, the thrust of the evidence presented goes to the
misappropriation, breach of contract, tortious interference, and civil conspiracy claims (Claims One
through Five). Although evidence was presented of damaged property, as explained, that claim
(Claim Ten) has no bearing on the instant analysis because there is no activity to enjoin with respect
to the same. As for plaintiff’s other claims (Claims Six through Nine), there was simply no evidence
presented (or argument made) to support them. Therefore, the Court finds that there is not a
substantial likelihood of success on the merits as to Claims Six through Nine.
The totality of the evidence introduced against Potts is that he took a box or boxes that may
have contained plaintiff’s confidential information, and during the length of his employment with
plaintiff he acquired knowledge of plaintiff’s business methods and strategies, which he may use in
a new job with LTA. As explained, the highly speculative nature of (i) whether Potts has taken any
information and (ii) the chances of him using any acquired knowledge is simply far too short of
creating a substantial likelihood of success with any of the claims against Potts. There is no evidence
that Potts acquired trade secrets by improper means, that Potts had used or disclosed trade secrets,
that Potts has breached any provision of his employment agreement with plaintiff, that Potts has
induced anyone to breach an agreement with plaintiff, or that Potts engaged in a conspiracy with the
other LTA defendants to harm plaintiff.
As a result, with respect to Potts, the PI motion is DENIED, the motion to dissolve is
GRANTED, and the TRO is DISSOLVED.
No evidence was presented remotely indicating that LTA has acquired or used any of
plaintiff’s trade secrets. Instead, the evidence was focused upon Armitage’s, Farrell’s, and Potts’
purported acquisition of such information—with no indication that any of the information they may
have acquired had been supplied to LTA. Therefore, there is currently no likelihood of success on
plaintiff’s trade secret claims against LTA. There was also no evidence of LTA having engaged in
a conspiracy with Armitage, Farrell, and/or Potts to interfere with plaintiff’s business or contracts.
The Court acknowledges that the evidence shows LTA having employed or offered employment to
at least three (and likely more) employees or former employees of plaintiff. Nonetheless, whether
those events point merely to coincidence or, instead, coordination (with intent) is entirely up in the
air as things stand. Moreover, the evidence does not show that LTA sought to breach any of
plaintiff’s employment agreements—to the extent they are valid, which is mentioned in more detail
infra—or that any of plaintiff’s business or customers have been interfered with. Therefore, the
Court does not find a substantial likelihood of success on the merits of Claims Four and Five against
As a result, with respect to LTA, the PI motion is DENIED, the motion to dissolve is
GRANTED, and the TRO is DISSOLVED.
The totality of the evidence against Farrell is that in March 2017 he emailed one of plaintiff’s
documents to his personal email account, and at the start of April 2017 he did the same thing with
another of plaintiff’s documents. It is against plaintiff’s policy for an employee to email documents
to a personal email account because company documents should be available via a system called
Sharepoint and/or on the local drive of an employee’s company-issued computer. The reliability of
Sharepoint is disputed, however, and other employees may have used their personal email to share
or distribute company documents.
Whether there was a legitimate (or at least not illegitimate) reason for Farrell emailing
himself plaintiff’s documents is open to debate. Nonetheless, plaintiff has presented no evidence
that Farrell acquired those documents by improper means. Notably, the two acts of personal
emailing took place at least a couple of weeks before Farrell first interviewed with LTA, which
Farrell testified happened in the third week of April. At some point, plaintiff may be able to obtain
evidence that Farrell’s contact with LTA began at the time of his emails, but, right now, nothing
negative can be drawn from the timing of Farrell’s personal emails. That being said, the Court notes
that Farrell’s explanation for the emails has shifted, which may suggest a loose relationship with the
truth, or at least a need to be reminded of the truth. But, as things, stand, that problem casts no
shadow on the lack of evidence of an improper means in Farrell emailing plaintiff’s documents to
himself. The Court also finds that, as yet, there is no evidence that Farrell has breached any
provision of his employment agreement with plaintiff, interfered with any of plaintiff’s business
relationships, or conspired with the other LTA defendants. Therefore, the Court does not find a
substantial likelihood of success on the merits of any of plaintiff’s claims against Farrell.
As a result, with respect to Farrell, the PI motion is DENIED, the motion to dissolve is
GRANTED, and the TRO is DISSOLVED.
As explained, the evidence against Armitage is of a more substantial character. The evidence
shows that Armitage emailed himself multiple documents at the end of April 2017 and the start of
June 2017, and at least some of those documents appear to have little relationship to the work he did
for plaintiff. Further, Armitage testified that he interviewed with LTA in early April, and the
interview was preceded by telephone calls with LTA. Although there is no evidence that Armitage
has used or disclosed the emailed documents, the Court believes that the circumstantial evidence
presented at the hearing is sufficient to reach a substantial likelihood of success with respect to
Armitage acquiring plaintiff’s trade secrets (which the evidence indicates at least some of the
emailed documents contain) by improper means. It is a close question, but, as of now, having
assessed all of the evidence, including Armitage’s in-person testimony, the Court finds that the
question tips in plaintiff’s favor as to the misappropriation of trade secrets claim.
The same is not true of plaintiff’s claims for tortious interference and civil conspiracy against
Armitage. As with the LTA defendants, there is no evidence that Armitage has interfered with any
of plaintiff’s business relationships or conspired with anyone to do so. As for Armitage’s
employment agreement, there, arguably, could be a substantial likelihood of success on the merits
of this claim, given that Armitage may have misappropriated plaintiff’s trade secrets. However,
there is not a substantial likelihood that this claim will reach the merits. As explained, there are
simply too many questions going to whether the agreement itself is valid. Put another way, there is
not a substantial likelihood that plaintiff will succeed through each of those questions unscathed,
and, at this juncture, the Court is not prepared to speculate what form any surviving agreement may
take. Therefore, the Court does not find a substantial likelihood of success against Armitage with
respect to Claims Three through Five.
Remaining Factors as to Armitage
The Court finds that a monetary remedy would not be effective in remedying Armitage’s
potential misappropriation of plaintiff’s trade secrets. See Port-a-Pour, Inc. v. Peak Innovations,
Inc., 49 F. Supp. 3d 841, 872 (D. Colo. 2014) (“when a defendant possesses trade secrets and is in
position to use them, harm to the trade secret owner may be presumed.”) (quotation and internal
quotation omitted). The Court further finds that the balance of hardships weighs in plaintiff’s favor
because the Court is merely requiring Armitage to comply with the law. For similar reasons, the
Court finds that injunctive relief is not contrary to the public interest.
As a result, with respect to Armitage, the PI motion is GRANTED IN PART and DENIED
IN PART, and the motion to dissolve is GRANTED IN PART and DENIED IN PART.
The TRO is converted to a preliminary injunction against Armitage on the following
terms only: Armitage is enjoined from directly or indirectly accessing, using, disclosing, or
making available to any person or entity (other than plaintiff) any of plaintiff’s confidential,
proprietary, or trade secret information. In all other respects, the TRO is dissolved against
Armitage. The security bond will remain unchanged.
For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART the
Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction (ECF No. 2), and
GRANTS IN PART and DENIES IN PART the Motion to Dissolve Temporary Restraining Order
(ECF No. 33).
DATED this 10th day of July, 2017.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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