Foundever Operating Corporation v. Hahn
ORDERED: Plaintiff Foundever Operating Corporation's Motion for Preliminary Injunction 14 is GRANTED-IN-PART and DENIED-IN-PART. See Order for details. A preliminary injunction will be entered by separate order. Signed by Judge Charlene Edwards Honeywell on 11/13/2023. (MMS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 8:23-cv-1495-CEH-UAM
This cause comes before the Court on Plaintiff Foundever Operating
Corporation’s (“Foundever”) Motion for Preliminary Injunction (Doc. 14).
Defendant Hilary Hahn has responded in opposition (Doc. 22), and Foundever has
replied (Doc. 31). An evidentiary hearing was held on October 24, 2023.
Upon review and consideration, and being duly advised in the premises, the
Court will grant-in-part and deny-in-part the motion for preliminary injunction.
A. Factual Background
Plaintiff Foundever Operating Corporation (“Foundever”) is a customer service
solutions company that maintains call centers throughout the world. Doc. 1-1 ¶ 15.
Foundever alleges that its success in the industry depends on its trade secrets and
proprietary and confidential information, such as its prospective client lists, proposals,
project information, sales and marketing strategies, pricing information, etc. Id. ¶¶ 16-
It protects its confidential information by entering into restrictive covenant
agreements with its employees, requiring employees to maintain confidentiality, and
requiring log-in authentication for its business software applications. Id. ¶ 20.
Foundever was previously known as Sitel Operating Corporation (“Sitel”). 1 Id. ¶ 11.
Defendant Hilary Hahn began working for a company called Sykes Enterprises
as the vice president of business development on June 1, 2017. Doc. 1-1 ¶ 8. She signed
an Employment Agreement with Sykes on the same date. Doc. 14-1. The Agreement
acknowledged, inter alia, that Hahn would acquire confidential information as part of
her employment, and she agreed to maintain its confidentiality during and after her
employment. Id. at § 4(a). All “memoranda, notes, records, papers or other documents
and all copies thereof” that related to Sykes’ operations of business, even if Hahn
prepared them, would be Sykes’ property, and Hahn was prohibited from copying or
removing them for any reason other than Sykes’ benefit. Id. § 4(b). Hahn also agreed
to “deliver all of the aforementioned documents and objects, if any, that may be in
[her] possession to [Sykes] upon termination” of her employment. Id.
The Agreement also contained a non-competition provision. Id. § 5. Hahn
agreed not to be directly or indirectly engaged in business with any company that does
business substantially similar to Sykes for a period of six months following her
separation from the company. Id. § 5(c)(1)-(2); id. at 20 (Ex. A). The provision also
This Order uses the term “Foundever” to refer to Foundever Operating Corporation, its
former named company Sitel Operating Corporation, and its predecessor company Sykes
stated that the duration of the non-compete “shall be extended in an amount which
equals the time period during which [Hahn] is or has been in violation” of it. Id. § 5(d).
In addition, the Agreement stated the following:
This Agreement shall be binding upon and inure to the benefit of
[Sykes], its respective successors and assigns, and [Hahn and her]
heirs, executors, administrators, and legal representatives. Except
as expressly set forth herein, no party shall assign any of its or its
rights under this Agreement without the prior written consent of
the other party and any attempted assignment without such prior
written consent shall be null and without legal effect.
Id. § 9 (emphasis added).
Sitel acquired Sykes Enterprises on August 27, 2021, but at first Sykes retained
its name and operated as a wholly owned subsidiary of Sitel. Doc. 1-1 ¶ 9. In
December 2022, Sykes changed its name and Sykes employees became Sitel
Hahn’s employment with Sitel terminated as of February 1, 2023. Id. ¶¶ 10, 59.
Her termination resulted from her decision not to sign Sitel onboarding documents,
including a new non-compete, which Foundever alleges was required for all former
Sykes employees. Doc. 14-1 ¶¶ 10-14; Doc. 22-1 ¶¶ 31-34, 44-46.
At some point in the spring of 2024, Hahn became employed by WebHelp,
Foundever’s direct competitor. Doc. 1-1 ¶¶ 60-61. Foundever learned of Hahn’s new
employment on approximately April 25, 2023, from a press release dated April 20,
2023. Doc. 14-1 ¶ 15. Upon hearing about Hahn’s new employment, Foundever began
an internal investigation. Id. ¶ 16. Foundever learned that Hahn began searching for
new employment in the fall of 2022, and first met with WebHelp about a role there in
late November. Doc. 1-1 ¶¶ 47-50. Foundever also learned that Hahn emailed to her
personal email account a client’s billing information and a strategy presentation on
January 10 and 12, 2023. Id. ¶¶ 52-53. She also copied the contents of her work-issued
laptop to a personal storage device via Time Machine backup. Id. ¶¶ 55-56. On her
last day of employment, Hahn accessed at least 19 additional Foundever files. Id. ¶ 57.
Foundever contacted Hahn on April 25, 2023, to assert that she was in violation
of the non-competition provision in her Employment Agreement. Id. ¶ 65. Hahn
disputed that she was bound by the Agreement, because Sykes no longer exists. Id. ¶
B. Procedural History and the Instant Motion
Foundever initiated the instant action in the Circuit Court of the Thirteenth
Judicial Circuit in and for Hillsborough County, Florida, on May 10, 2023. Doc. 1-1.
Count I alleges that Hahn violated the Florida Uniform Trade Secrets Act (“FUTSA”)
by using or disclosing Foundever’s trade secret information. Id. ¶¶ 68-81. Count II
alleges a breach of contract for the alleged breach of the Employment Agreement’s
non-competition provision by working for a direct competitor within six months of her
termination. Id. ¶¶ 82-95. Count III alleges that she breached her fiduciary duty to
Foundever by transferring and disclosing confidential information and seeking
employment with a direct competitor. Id. ¶¶ 96-105.
Hahn removed the action to this Court on July 5, 2023. Doc. 1. On August 4,
2023, Foundever moved for a preliminary injunction. Doc. 14. In addition to the
allegations in the complaint, Foundever stated that a subsequent forensic investigation
revealed that Hahn had uploaded a variety of Foundever documents to a
Dropbox.com account registered to her personal email on January 31 and February 1,
2023. Doc. 14-2. Hahn also deleted local files from her work-issued computer and
uninstalled the Dropbox application. Id.
The motion for preliminary injunction seeks an order enjoining Hahn and
anyone acting in concert with her from: 1) providing customer experience services for
any competing business for six months; 2) disclosing or utilizing any of Foundever’s
confidential information; 3) inducing or attempting to induce any of Foundever’s
employees to terminate their employment; and 4) inducing or attempting to induce
any of Foundever’s customers or prospective customers with whom Hahn had contact
during her employment to terminate or reduce their business with Foundever. Doc.
Because the Court determined that material disputes of fact existed in the
parties’ submissions, it ordered an evidentiary hearing. The sole witness called at the
hearing was Erin Wallace, Foundever’s senior Human Resources director, whom
Foundever described as its corporate representative. The parties otherwise relied on
the documentary evidence and declarations.
Before considering the merits of the motion for preliminary injunction, several
evidentiary issues must be addressed as a threshold matter. First, Hahn objected to
any reliance on declarations at the evidentiary hearing, arguing that it deprived the
opposing party of the opportunity to cross-examine the declarant. However, in Levi
Strauss & Co. v. Sunrise Intern. Trading Inc., the Eleventh Circuit upheld a preliminary
injunction that was based on an evidentiary hearing as well as sworn witness
statements, stating that a district court considering a preliminary injunction “may rely
on affidavits and hearsay materials which would not be admissible evidence for a
permanent injunction, if the evidence is appropriate given the character and objectives
of the injunctive proceedings.” 51 F.3d 982, 985-86 (11th Cir. 1995) (quotation
omitted); see also Melendez v. Sec’y, Fla. Dep’t of Corr., No. 22-10306, 2022 WL 1124753,
*14 (11th Cir. April 15, 2022) (same). Pursuant to this authority, the Court finds that
the consideration of such evidence is appropriate at the preliminary injunction stage.
However, the Court observes that it can consider only evidence that was
submitted on the docket with the complaint or motion materials, or any documents
that were admitted into evidence at the evidentiary hearing.
At the hearing,
Foundever provided an exhibit list consisting of 24 documents. Doc. 42. Hahn
stipulated to the admission of 13 of them, and those 13 were admitted into evidence.
Id. With respect to the remaining 11 proposed exhibits, however, Foundever did not
move to admit them into evidence. All but one of these documents had already been
filed on the docket. The only document that was not already filed was Foundever’s
proposed exhibit 18, Hahn’s responses to Plaintiff’s first set of interrogatories. Because
this document was not admitted into evidence, the Court cannot consider its contents
with respect to the instant motion.
Hahn raised a second evidentiary objection at the end of the hearing. She stated
that several of the declarations on which Foundever relies were submitted with its
reply, rather than its original motion. Hahn pointed out that Local Rule 6.02(a)(2),
Middle District of Florida, provides that a motion for preliminary injunction must
include as an attachment “each paper on which the movant relies.” In addition, the
Court’s Order directing Foundever to reply did not grant it permission to submit
additional evidence. Hahn therefore argued that the Court should not consider the
The Court’s Order directing Foundever to reply was silent as to whether
Foundever could include any additional evidence. Doc. 25. The Order directed
Foundever to “address the legal arguments Defendant raised in her response in
opposition to the motion for preliminary injunction.” Id. After Foundever moved for
leave to file excess pages, the Court issued an Order stating that the reply “shall not
exceed ten (10) pages, inclusive of all parts.” Doc. 30. Foundever’s motion for excess
pages did not request permission to file additional evidence or otherwise address the
submission of exhibits. Doc. 29.
Hahn is correct that Local Rule 6.02(a)(c) directs a moving party to include each
document on which it relies with its motion for preliminary injunction. At least one
court has prohibited a party from submitting additional evidence with a reply pursuant
to this rule. See Furmanite Am., Inc. v. T.D. Williamson, Inc., No. 6:06-cv-641, 2006 WL
8439589, *3 (M.D. Fla. Aug. 17, 2006) (denying a motion for leave to reply, because
the proposed reply relied on “untimely declarations and evidence that did not
accompany its complaint or motion for a preliminary injunction.”). Further, while the
Court’s Orders did not explicitly prohibit Foundever from submitting additional
evidence with its reply, neither did they grant permission. And although Foundever
could have moved to admit the additional declarations into evidence at the hearing, it
failed to do so.
On the other hand, Hahn did not raise the issue until the hearing had concluded.
In the six weeks between the filing of the reply and the hearing, she did not file a
motion to strike or otherwise object to the submission of additional evidence. Her
failure to timely object has arguably waived the issue; at the very least, it deprived
Foundever of the opportunity to respond, seek permission from the Court, or ensure
that it moved to admit the declarations into evidence at the hearing.
Upon consideration, the Court need not resolve this issue. Even if it does not
consider the evidence attached to Foundever’s reply, the result of the motion for
preliminary injunction is the same as if it considered all the evidence. In either
scenario, the Court would grant-in-part and deny-in-part the motion for preliminary
injunction, for the same reasons and in the same manner. Accordingly, the remainder
of this Order will not rely on the additional declarations submitted with Foundever’s
reply in support of its motion for preliminary injunction (Doc. 31).
A party seeking entry of a preliminary injunction must establish: (1) a
substantial likelihood of success on the merits; (2) a substantial threat of irreparable
injury if the injunction is not granted; (3) the threatened injury to the moving party
outweighs whatever damage the proposed injunction may cause the opposing party;
and (4) if issued, the injunction would not be adverse to the public interest. Forsyth Cty.
v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (quotations omitted).
“A preliminary injunction is an extraordinary and drastic remedy not to be granted
unless the movant clearly establishes the burden of persuasion as to the four
requisites.” Am. C.L. Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198
(11th Cir. 2009) (citation omitted). The entry of a preliminary injunction is “the
exception rather than the rule, and plaintiff must clearly carry the burden of
persuasion.” Siegel v. LePore, 234 F.3d 1163, 1179 (11th Cir. 2000), quoting Texas v.
Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir. 1975).
“Where material facts are not in dispute, or where facts in dispute are not
material to the preliminary injunction sought, district courts generally need not hold
an evidentiary hearing.” Transcontinental Gas Pipe Line Co., LLC v. 6.04 Acres, More or
Less, 910 F.3d 1130, 1169 (11th Cir. 2018), quoting McDonald’s Corp. v. Robertson, 147
F.3d 1301, 1313 (11th Cir. 1998). On the other hand, an evidentiary hearing is
required where “conflicting factual information places in serious dispute issues central
to a party’s claims and much depends upon the accurate presentation of numerous
facts.” Four Seasons Hotels and Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1211
(11th Cir. 2003), quoting Robertson, 147 F.3d at 1312 (modifications omitted).
A. Likelihood of Success on the Merits
The first prerequisite for a preliminary injunction, a substantial likelihood of
success on the merits, is “generally the most important.” Schiavo ex rel. Schindler v.
Schiavo, 357 F.Supp.2d 1378, 1381 (M.D. Fla. 2005), aff’d, 403 F.3d 1223 (11th Cir.
2005). A plaintiff need only show “likely or probable, rather than certain, success.”
1. Breach of Contract
In Count II, Foundever primarily asserts that Hahn breached the Employment
Agreement by working for its direct competitor within six months of her termination.
Hahn contends that she is not bound by the Agreement’s non-competition provision
for two reasons. First, she did not consent to an assignment from Sykes to Sitel and
Foundever. Doc. 22 at 12-13. Second, she argues that Foundever has failed to prove
the enforceability of the restrictive covenant considering Florida law, which requires
an employer to prove that the contractual restraint is reasonably necessary to protect
a legitimate business interest justifying the restriction. Id. at 13-15. Hahn does not
appear to dispute that she would be in violation of the non-compete if it is enforceable.
Foundever responds that it may enforce the Agreement because it is Sykes’s
successor, without the need for an assignment. Doc. 31 at 7-8. With respect to the
non-compete’s enforceability, Foundever contends that the provision is reasonable in
scope and necessary to protect its legitimate business interests, which include trade
secrets and other confidential business information and relationships with prospective
or existing customers.
a. Foundever likely may enforce the Agreement as Sykes’ successor.
First, it is probable that Foundever may enforce the Agreement because it is
Sykes’ successor by operation of law. Florida law provides that the Court “shall not
refuse enforcement of a restrictive covenant on the ground that the person seeking
enforcement is…an assignee or successor to a party to such contract, provided…the
restrictive covenant expressly authorized enforcement by a party’s assignee or
successor.” Fla. Stat. § 542.335(1)(f)(1). Here, the Employment Agreement states that
it shall be binding upon and inure to the benefit of Sykes’s “successors and assigns.”
Doc. 14-1 § 9. Although it provides that Hahn’s consent is required to assign Sykes’s
rights, id., no similar requirement exists for Sykes’s successors.
Successors and assigns are not synonymous. Black’s Law Dictionary defines a
“successor” as one “who succeeds to the office, rights, responsibilities or place of
another [or] who replaces or follows a predecessor.” Black’s Law Dictionary (11th ed.
In the alternative, it is “[a] corporation that, through amalgamation,
consolidation, or other assumption of interests, is vested with the rights and duties of
an earlier corporation.” Id. An assign is “someone to whom property rights or powers
are transferred by another.” Id. (defining “assignee,” “also termed assign”).
The Florida Supreme Court differentiated between the two terms in a related
context in Corporate Express Office Products, Inc. v. Phillips, 847 So.2d 406 (Fla. 2003).
The court held that a non-compete provision may be enforced by a successor
corporation, without the need for an assignment, in three scenarios:
(1) a 100 percent stock purchase in which the corporate entity is
unchanged except for a change in management; (2) a corporate
merger in which two corporations unite into a single corporation
and the surviving corporation assumes the rights and liabilities of
the merging corporation; or (3) where a corporation merely
undergoes a name change[.]
Johnson Controls, Inc. v. Rumore, No. 8:07-cv-1808, 2008 WL 203575, *7 (M.D. Fla.
Jan. 23, 2008), citing Corporate Express, 847 So.2d at 411-414. 2 In contrast, the
purchaser of a corporation’s assets, rather than stock, requires an assignment. Corporate
Express, 847 So.2d at 413; Sun Group Enterprises, Inc. v. DeWitte, 890 So.2d 410, 411
(Fla. 5th DCA 2004). Further, a subsidiary is a separate legal entity rather than a
successor of the parent corporation, and will not assume a parent company’s liabilities
without an assignment. Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1075
(11th Cir. 2003); Verbal v. TIVA Healthcare, Inc., 628 F.Supp.3d 1222, 1228 (S.D. Fla.
Foundever alleges in its Verified Complaint that Sitel “acquired” Sykes on
August 27, 2021, without stating what type of acquisition occurred. Doc. 1-1 ¶ 6.
Foundever further alleges that, at first, Sykes “operate[d] as a wholly owned subsidiary
of Sitel[,]” but then it changed its name to Sitel and its employees became Sitel
employees in December 2022. Id. ¶ 9. Sitel later changed its name to Foundever. Id. ¶
5. If the acquisition was a stock purchase, which is likely, Foundever became the
successor of Sykes as a matter of law as of December 2022. Pursuant to Corporate
Express and Fla. Stat. § 542.335(1)(f), there is a substantial likelihood that an
assignment was not necessary for Foundever to enforce the Employment Agreement.
The Corporate Express court was interpreting the predecessor statute to Fla. Stat. § 542.335,
which did not expressly provide for the enforcement of restrictive covenants by successors or
assigns. See 847 So.2d at 410 n.3.
At the hearing, Hahn also argued that Foundever had not proven that it could
enforce the Agreement because the Agreement was not signed by the CEO of Sitel.
Hahn pointed to a provision of the Sitel Associate Handbook, dated August 2019,
I understand and agree that employment at Sitel is at-will and may
be terminated with or without cause or notice. Similarly, no Sitel
official has the authority to enter into an oral employment
contract, and any contract guaranteeing employment must be in
writing and signed by a Chief Executive Officer and Global Chief
Doc. 43-2 at 59. Hahn argued that the Employment Agreement was a “contract
guaranteeing employment” as contemplated in the handbook provision, and that its
lack of signature by the Sitel CEO rendered it invalid.
Foundever’s Human Resources director, Erin Wallace, testified that Hahn was
an at-will employee, as demonstrated by Section 2 of her Employment Agreement, but
that changes to the Agreement affecting at-will employment would need to be
approved by the CEO. Foundever argued that the Sitel handbook provision referred
only to non-at-will employees.
The Court is not persuaded that the Sitel Associate Handbook renders Hahn’s
Employment Agreement invalid.
The handbook states that it “supersedes any
previously published handbooks,” but not that it supersedes or modifies employment
agreements. Doc. 43-2 at 59. It further states that “nothing in [it] creates an expressed
or implied contract of employment between Sitel and me, but rather is intended to
foster a better working environment,” and that the company has the right “to change
any of its guidelines, policies, practices, working conditions or benefits at any time,
with or without notice.” Id. In contrast, the Employment Agreement is a contract
between the parties that sets forth the terms of Hahn’s at-will employment. See Doc.
14-1 at 10-19. It states that no provision “may be modified or waived unless such
modification or waiver is agreed to in writing signed by the parties hereto,” and the
Agreement supersedes any prior agreement relating to Hahn’s employment with the
company. Id. at 18, § 9. Unlike the handbook, the Agreement will “be binding upon
and insure to the benefit of [Sykes], its respective successors and assigns, and [Hahn
and her heirs and legal representatives].” Id. It is therefore unlikely that the Sitel
handbook could be found to substantively modify the Agreement.
Moreover, the Court agrees with Foundever that the Employment Agreement
is, by its terms, not a “contract guaranteeing employment” because it provides for atwill employment, rather than a guaranteed term. Id. at 11, § 2. Even if the Associate
Handbook could alter the Agreement, then, it would not render Hahn’s Agreement
invalid. There is therefore a substantial likelihood that Foundever may enforce the
b. The non-competition provision is likely enforceable.
Hahn next argues that the non-competition provision of the Agreement is
unenforceable even if Foundever is able to enforce the Agreement. Hahn disputes that
Foundever has offered sufficient proof that the provision is justified by legitimate
Florida law permits the enforcement of non-competition restrictive covenants
that are “reasonable in time, area, and line of business.” An employment non-compete
is presumed reasonable in time if it is six months or less in duration. Id. at §
542.335(1)(d)(1). In addition, the non-competition provision must be justified by the
existence of “one or more legitimate business interests,” which include: trade secrets;
valuable confidential business or professional information that otherwise does not
qualify as trade secrets; substantial relationships with specific prospective or existing
customers; customer goodwill associated with an ongoing business practice or specific
location or trade area; or extraordinary or specialized training. Id. § 542.335(1)(b).
Proof of only one legitimate business interest is required to justify a non-compete
covenant. Proudfoot Consulting Corp. v. Gordon, 576 F.3d 1223, 1233 (11th Cir. 2009).
The party seeking enforcement must further prove that the restraint “is reasonably
necessary to protect the legitimate business interests” that justify it. Fla. Stat. §
The protection of valuable confidential information is a legitimate business
interest justifying a restrictive covenant, whether or not the information rises to the
level of a trade secret. Fla. Stat. 542.335(1)(b); see Proudfoot Consulting, 576 F.3d at
1234-35 (district court did not err in concluding that exposure by senior employee to
confidential information and subsequent employment with competitor justified
enforcement of non-compete). On the other hand, information that is commonly
known, not unique to the injured party, or readily accessible from other sources is not
confidential or protected. See Autonation v. O’Brien, 347 F.Supp.2d 1299, 1304 (S.D.
Fla. 2004) (citations omitted); Thyssenkrupp Elevator Corp. v. Hubbard, No. 2:13-cv-202JES-CM, 2013 WL 5929132, *5 (M.D. Fla. Nov. 4, 2013). An employer who fails to
establish evidence of particular information that is confidential or that, if obtained by
a competitor, would enable unfair competition will not carry its burden of
demonstrating that confidential information justifies a non-competition agreement.
Armor Corr. Health Servs., Inc. v. Teal, No. 19-cv-24656, 2021 WL 5834245, *10 (S.D.
Fla. Dec. 8, 2021).
Non-competition agreements will be upheld, however, if they are justified by
the protection of “business information which is not otherwise readily available to the
public, or has been acquired or compiled through the industry of a party.” Veterinary
Orthopedic Implants, Inc. v. Haas, No. 3:20-cv-868-MMH-MCR, 2020 WL 5369087, *10
(M.D. Fla. Sept. 8, 2020) (collecting cases). In Veterinary Orthopedic, for example, the
court found that the plaintiff had established, despite disputes of fact, a substantial
likelihood that it could justify a non-compete to protect certain categories of
information the court determined constituted protectible confidential business
information to which the defendant had access during his employment. Id. at *10-12;
see also Autonation v. O’Brien, 347 F.Supp.2d at 1305-06 (despite disputes of fact,
employer sufficiently demonstrated defendant, a senior employee, was exposed in the
course of his employment to confidential information that was not shared outside the
Here, the non-competition provision prohibits Hahn, for a period of six months,
from being directly or indirectly engaged in business with any company that does
business substantially similar to Sykes. Doc. 14-1 § 5, p. 20. Hahn does not argue that
any aspect of it is unreasonable, and its duration of six months is presumptively
reasonable. Fla. Stat. § 542.335(1)(d)(1).
Foundever asserts that the non-competition provision is justified by legitimate
business interests because Hahn, as a former executive, is “intimately knowledgeable
of [Foundever’s] trade secrets, customers, the confidential information related to
servicing [its] customers, and the training, experience and compensation of the
employees who service [its] customers”; as a result, it argues she possesses “an unfair
competitive advantage in the marketplace.” Doc. 14 at 14-15. Hahn responds that
Foundever has not met its burden of establishing that the information is confidential,
which she disputes.
Wallace’s declaration states only that Hahn “had access to [Foundever’s]
competitively sensitive information,” Doc. 14-1 ¶ 8. This conclusory allegation cannot
be given much weight.
At the hearing, however, Wallace elaborated that
competitively sensitive information included customer lists, pricing information,
proposals for customers, strategy presentations, request for proposal responses, and
services contracts. She further explained that the customer lists were competitively
sensitive because they included information collected over a period of time about
customers or prospective customers that would help Foundever present its business to
them, such as specific qualities those companies might be looking for in an outsourcing
company. If the lists fell into competitors’ hands, the lists would give competitors the
chance to unfairly compete against Foundever.
Hahn’s declaration alleges that “[t]he identity of customers, pricing
information, and business strategy are all commonly known in the call center
industry,” as are “recruitment, training, employee engagement, and operational
strategies” and “the cost per agent per month in a variety of countries that are utilized
for call centers.” Doc. 22-1 ¶¶ 10-11. Buyers commonly share the pricing they expect
to receive from bidders. Id. ¶ 12. WebHelp executive Paul Danter also declared that
“at least some of the information Foundever appears to claim is confidential is
commercially available through a paid subscription with a third-party… [or] is
generally known in the industry.” Doc. 22-2 ¶ 12. However, neither declaration refers
to information about the preferences of Foundever’s customers and prospects.
Wallace’s testimony on this point is therefore undisputed.
A customer list that includes information about customer preferences and that
was compiled over time by company employees is likely to be found to be confidential.
In the trade secrets context, courts have differentiated between customer lists that
merely compile information commonly available to the public, and those that are
“acquired or compiled through the industry of the owner.” See, e.g., Hurry Family
Revocable Trust v. Frankel, No. 8:18-cv-2869-CEH-CPT, 2023 WL 23805, *10-13 (M.D.
Fla. Jan. 3, 2023) (Honeywell, J.) (citations omitted). This standard is similar to that
employed by courts in the context of justifying non-competition provisions. See
Veterinary Orthopedic, 2020 WL 5369087 at *10 (business information is considered
confidential if it is “not otherwise readily available to the public, or has been acquired
or compiled through the industry of a party.”). Information that includes notes about
customer preferences is often found to be trade secret. Freedom Medical, Inc. v.
Sewpersaud, No. 6:20-cv-771-RBD-GJK, 2020 WL 8370952, *2 (M.D. Fla. May 6,
2020) (finding a likelihood of success on trade secrets claim where customer list
contained customers’ preferences and patient demographics); G.W. Henssler & Assocs.,
Ltd. v. Marietta Wealth Mgmt., LLC, No. 1:17-cv-2188, 2017 WL 6996372, *4 (N.D. Ga.
Oct. 232017) (lists with notes on clients’ “needs or preferences” was highly valuable
business information that provided a competitive advantage).
While Foundever has not established that much of the information it asserts is
confidential actually is confidential, Wallace’s testimony is sufficient to create a
substantial likelihood that the information contained in its customer lists is
confidential business information to which Hahn had access in her employment with
Foundever. The existence of this information constitutes a legitimate business reason
that justifies a non-competition agreement.
Accordingly, there is a substantial
likelihood that the non-competition provision is enforceable.
c. Foundever has a substantial likelihood of success on the merits of its breach of contract
Hahn does not dispute that WebHelp is a direct competitor of Foundever, and
that her employment there would violate the non-competition provision if it is found
to be valid and enforceable. Because the Court has found that it is, Foundever has
established that it has a substantial likelihood of success on its breach of contract claim
based on this provision.
Foundever has also offered evidence of other breaches. The Verified Complaint
alleges that Hahn also breached the Employment Agreement by soliciting Foundever’s
clients, Doc. 1-1 ¶ 91, and by copying, retaining, and using Foundever’s confidential
information and trade secrets. Id. ¶ 90. The Employment Agreement prohibited Hahn
from duplicating or retaining any “memoranda, notes, records, papers or other
documents…relating to [Sykes’] operations or business,” including “documents and
objects concerning any customer lists, contracts, price lists, manuals, mailing lists,
advertising materials, and all other materials and records of any kind that may be in
[Hahn’s] possession or…control.” Doc. 14-1 at 12, ¶ 4(b). There is no requirement
that the information be confidential to fall under this provision. Hahn does not dispute
that she copied and retained Foundever’s information. See Doc. 22-1.
The Agreement also contains a non-solicitation clause, which prohibits Hahn
from doing the following:
Provide or attempt to provide, or solicit the opportunity to provide
or advise others of the opportunity to provide, any services of the
type [Hahn] performed for [Sykes or its] Clients… to or for the
benefit of any Client…to which [Hahn] has been introduced to or
about which [Hahn] has received information through [Sykes].
Doc. 14-1 at 14, § 5(c)(3).
There is evidence that Hahn attempted to provide services to a Foundever
prospect after her employment ended. An email exchange occurred on March 2, 2023,
between Hahn and Lance Lipkus, whom Hahn explains was a prospective customer
to whom she had made a pitch for new business while working at Sitel. Doc. 22-1 ¶
73; Doc. 14-1 at 35. Lipkus contacted Hahn’s personal and Foundever email addresses
to announce that the “outsourcing project” would “start again” and he believed he
would be able to persuade his company to select Sitel. Id. Hahn replied-all to the email,
which allowed Foundever to access the exchange through her Foundever email
account. Hahn responded that she no longer worked for Sykes/Sitel and would start
work with a new, undisclosed company in April, with whom she was “[a]lready in
touch and working on a few programs that cannot wait.” Id. After asking a question
about Lipkus’s finder’s fee, she stated that she would “run it up the pole to establish
interest[.]” Id. Hahn closed the email by thanking Lipkus “for letting me know that
this may get reinstated.” Id.
Hahn explains in her declaration that Lipkus subsequently informed her his
company had hired Sitel, and asked her to perform additional work that he did not
intend to give to Sitel, which she refused. Doc. 22-1 ¶ 75. She also avers that she was
not actually working on any projects for WebHelp at the time of the email, contrary
to her statement to Lipkus. Id. ¶ 74. But Hahn does not explain her statement that she
would “run [the proposal] up the pole.” Significantly, she does not state that she was
referring to Foundever and intended to refer Lipkus’s business there. Nor does she
deny that she was referring to WebHelp. And the most reasonable interpretation of
the email—in the context that she had already accepted a job at WebHelp, which she
told Lipkus about—is that she intended to refer Lipkus’s prospective business to
WebHelp. This email exchange therefore constitutes some evidence that Hahn also
violated the non-solicitation component of the Employment Agreement.
Accordingly, there is ample evidence that Hahn has breached the Employment
Agreement, which establishes a substantial likelihood of success on the merits as to
2. FUTSA 3
Count I alleges that Hahn violated FUTSA by misappropriating Foundever’s
trade secrets. Doc. 1-1 ¶¶ 68-81. Specifically, Foundever alleges that she has either
used, disclosed, is a threat to use, or intends to use Foundever’s confidential and
proprietary information to Foundever’s detriment. Id. ¶¶ 72, 74-75. Foundever relies
on the undisputed fact that Hahn copied Foundever files to personal devices and
accounts before leaving the company to work for its direct competitor, with whom she
was communicating in her final months of employment at Foundever. See Doc. 14 et
Hahn first argues that Foundever has not established that its information is trade
secret or that it has taken reasonable steps to protect the information’s secrecy. Doc.
Hahn argues, briefly, that Florida law may not govern the claim because any alleged
misappropriation occurred in New York, Hahn’s place of residence. Doc. 22 at 8-9.
Foundever points out in response that the Employment Agreement states Florida law will
govern any breach. Doc. 31 at 8. Because the FUTSA claim is distinct from the breach of
contract claim, it is unclear that the forum selection clause governs the FUTSA claim as well.
See Doc. 14-1 at 15, ¶ 5(d) (“These Covenant Not-to-Compete and No Solicitation provisions are
construed and enforced under the laws of the State of Florida.”) (emphasis added). Rather,
the dispute calls for an application of the conflict-of-law rules of the forum state, Florida. See
Grupo Televisa, S.A. v. Telemundo Comm. Grp., Inc., 485 F.3d 1233, 1240 (11th Cir. 2007).
Neither party has briefed this issue, which requires a detailed analysis of the principles laid
out in the Restatement (Second) of Conflict of Laws, sections 145 and 6. See id. At this stage,
absent briefing from the parties or a formal motion to dismiss by Hahn, the Court declines to
undertake such an analysis on its own. It will assume, for the purpose of this motion, that the
FUTSA claim is properly before it.
22 at 9-10. In her declaration, Hahn asserts that pricing information and business
strategy are commonly known in the call center industry. Doc. 22-1 ¶¶ 9-13. In
addition, she states she was not required to segregate her business and personal
information on her devices, accounts, or programs, and that she had been directed to
use a Dropbox account by Sykes’s predecessor, Frontier Communications. Id. ¶¶ 2130. Nor was she given any instructions related to electronic information upon her
termination besides the return of her laptop, even when she asked if there were “any
other meetings or necessary requirements.” Id. ¶¶ 47-48.
Hahn further argues that Foundever cannot show a likelihood of success on the
merits of the FUTSA claim because it has not shown any actual improper use of a
trade secret. Doc. 22 at 11. In her declaration, she offers innocent explanations for
emailing herself and copying files in the weeks prior to her departure. Doc. 22-1 ¶¶ 3940, 64-72. She denies using or intending to use any of Foundever’s information. Id. ¶¶
39-40, 52, 61, 68, 69.
Foundever contends that even threatened misappropriation is sufficient to
warrant an injunction. Doc. 31 at 11. It also argues that Hahn’s promise that she has
not and will not use the information cannot be credited. Id. at 5-6. Both the Verified
Complaint and Wallace’s declaration assert that Foundever takes reasonable steps to
protect its information by means of log-in authentication for its Sharepoint database
and other software, access limits based on level and business need, requiring the return
of any information upon separation of employment, and using restrictive covenants
for non-competition and confidentiality. Doc. 14-1 ¶ 19; Doc. 1-1 ¶¶ 19-20.
To prove a claim under FUTSA, the plaintiff must demonstrate that (1) it
possessed a trade secret, and (2) the secret was misappropriated. Compulife Software Inc.
v. Newman, 959 F.3d 1288, 1310 (11th Cir. 2020) (citations omitted).
a. At least some of Foundever’s information is likely trade secret.
A trade secret is information that “derives independent economic value from
not being generally known” or “readily ascertainable by proper means” by others who
can derive value from it, and that is the subject of reasonable efforts to maintain its
secrecy. Fla. Stat. § 688.002(4).
Foundever alleges that the following information is trade secret: customer lists
and prospective customer information, business methodology, promotional materials,
and pricing information. Doc. 14 at 10; Doc. 1-1 ¶ 17. It has produced evidence that
Hahn uploaded to her Dropbox account customer lists, customer strategy
presentations, customer pricing information, and statements of work, and that she sent
to her personal email a detailed customer billing estimate, two PowerPoint
presentations marketing services to potential customers, a partnership proposal for a
potential customer, and information about a prospective customer. Doc. 14 at 5-7.
Hahn contends that much of this information is generally known in the call
center industry. As discussed in Section IV(A)(1)(b), supra, however, Foundever has
provided unrefuted testimony that at least some of the information—its annotated
customer lists—is confidential and proprietary, likely qualifying as a trade secret.
In addition, Foundever has adequately shown that it has taken reasonable
efforts to maintain the information’s secrecy. Foundever relies on its use of password24
protection and confidentiality agreements, which courts have found constitute
reasonable efforts to maintain secrecy. See, e.g., Castellano Cosmetic Surgery Center, P.A.
v. Rashae Doyle, P.A., No. 8:21-cv-1088-KKM-CPT, 2021 WL 3188432, *6 (M.D. Fla.
July 28, 2021); Se. Mech. Servs., Inc. v. Brody, No. 8:08–CV– 1151–JSM-EAJ, 2008 WL
4613046, at *12 (M.D. Fla. Oct. 15, 2008). Hahn does not dispute that these measures
were used. Although she states in her declaration that she was not affirmatively asked
to return Foundever’s information when she was terminated, the Court finds that the
Employment Agreement provision directing employees to return documents is
sufficient to demonstrate that Foundever’s policy required the return of information.
Nor does Hahn indicate that Foundever, Sitel, or Sykes advocated or were even aware
of her use of personal accounts like Dropbox. At this stage, Foundever has provided
sufficient evidence to establish a substantial likelihood that at least some of the
information Hahn copied or retained is trade secret.
b. Without evidence of use, Foundever has not shown it has a likelihood of success on its
However, Foundever has not established that it has a likelihood of success on
its FUTSA claim, because it has not provided evidence that Hahn has actually used
Misappropriation by use or disclosure occurs if a person discloses or uses a trade
secret without consent and, inter alia, used improper means to acquire knowledge of it,
or knew or had reason to know that the knowledge of it was acquired under
circumstances giving rise to a duty to maintain its secrecy or limit its use. Fla. Stat. §
688.002(2)(b). “Improper means” includes the “breach of a duty to maintain secrecy.”
Id. § 688.002(1). Moreover, “any exploitation of the trade secret that is likely to result
in injury to the trade secret owner or enrichment to the defendant is a ‘use.’” Penalty
Kick Mgmt. Ltd. v. Coca Cola Co., 318 F.3d 1284, 1292 (11th Cir. 2003). “[U]se of any
substantial portion of the secret is enough to subject the actor to liability.” Id. at 1293.
A threat or intent to misappropriate trade secrets does not violate FUTSA, but
either “actual or threatened misappropriation may be enjoined.” Fla. Stat. §
688.003(a). Nonetheless, when determining whether a plaintiff has established a
substantial likelihood of success on the merits of a FUTSA claim for the purpose of a
preliminary injunction, courts have considered whether there is evidence of actual use
of the trade secret. See, e.g., My Energy Monster, Inc. v. Gawrych, No. 8:20-cv-02548MSS-AEP, 2020 WL 8224616, *7-8 (M.D. Fla. Dec. 18, 2020) (denying preliminary
injunction where there was insufficient evidence to demonstrate defendant actually
used the alleged trade secret information), report and recommendation adopted by 2021
WL 199280 (Jan. 11, 2021); Viable Resources, Inc. v. Belyea, No. 8:16-cv-2669-JSM-JSS,
2016 WL 7334285, *5 (M.D. Fla. Dec. 1, 2016) (denying preliminary injunction
because evidence did not establish actual use or disclosure of trade secret, where new
employer testified defendant did not disclose or use in her new role the category of
information plaintiff alleged was trade secret, and it was unlikely to be of benefit to
new employer in any event), report and recommendation adopted, 2016 WL 7335485
(Dec. 16, 2016); A.W. Ind. Inc. v. Electronic Connector Service Inc., No. 97-6452-CV, 1997
WL 873869, *10 (S.D. Fla. Nov. 24, 1997) (no likelihood of success on
misappropriation count where there was no evidence plaintiff actually used
confidential information in his possession, compared to defendant’s testimony that he
In contrast, courts have found that there is a strong likelihood of success on a
misappropriation claim when there is not only evidence of retention but also
indications of use. See Corp. Ins. Advisors, LLC v. Addeo, No. 21-cv-616769, 2021 WL
66222154, *10 (S.D. Fla. Dec. 8, 2021) (strong likelihood of success on
misappropriation claim where defendant forwarded client renewal lists to her personal
email address shortly before leaving to work for a competitor, to whom various clients
included on those lists then transferred their business); Regions Bank v. Raymond James
& Associates, Inc., No. 6:20-cv-658-PGB-EJK, 2020 WL 7419650, *2 (M.D. Fla. April
20, 2020) (same, where customers transferred their accounts to competitor after former
employees began working there, and other customers reported former employees
solicited them to transfer); SMS Audio, LLC v. Belson, No. 9:16-cv-81308, 2016 WL
8739764, *3 (S.D. Fla. Aug. 16, 2016) (same, where evidence showed defendants took
confidential documents and emailed them to other individuals).
Here, it is undisputed that Hahn improperly retained Foundever’s information
by transferring it to personal accounts and devices before her termination. However,
Foundever has offered no evidence that she has used it. Even though she is working
for a direct competitor, Foundever has produced no indication that, for example, she
shared the information with her new employer or anyone else, or that any of
Foundever’s customers have transferred their business to WebHelp. Significantly,
Hahn has now been employed by WebHelp for more than six months and no such use
has come to Foundever’s attention. Although the lack of evidence of use does not
preclude an injunction under FUTSA, it weighs against a finding that Foundever has
a substantial chance of success on its FUTSA claim.
At the hearing, Foundever characterized Hahn’s actions as “use” but failed to
offer evidence to support the claim. Although counsel relied heavily on information
in Hahn’s responses to its interrogatories, that document is not before the Court. See
Section II, supra. Nor does the Lance Lipkus email exchange constitute evidence that
Hahn has used any of the documents she retained. Accordingly, Foundever has not
met its burden of proving a likelihood of success on the FUTSA claim.
3. Breach of Fiduciary Duty
In Count III, Foundever alleges a breach of fiduciary duty based on four types
of conduct while Hahn was still working for Foundever: (1) misappropriating
Foundever’s trade secrets and confidential information; (2) actively seeking
employment with Foundever’s competitor; (3) violating Foundever’s policies by
transferring confidential information and trade secrets onto an unsecured device; and
(4) using, disclosing, or attempting to use or disclose Foundever’s confidential
information to benefit Foundever’s competitor. Doc. 1-1 ¶¶ 99-102.
Hahn argues that Foundever cannot succeed on this claim because it is
preempted by FUTSA, which displaces conflicting tort laws for misappropriation of
trade secrets. Doc. 22 at 15-16. She also argues that Foundever cannot succeed
because there is no evidence she used the confidential information in a way that was
adverse to Foundever’s interests. Id. at 17.
In reply, Foundever contends that a tort claim is not preempted as long as it
encompasses allegations that are distinct from a FUTSA misappropriation claim,
which is the case for Count III. Doc. 31 at 9. Specifically, the allegations that Hahn
met with and assisted WebHelp—likely by disclosing Foundever’s confidential
information, in Foundever’s view—during her employment with Foundever are
distinct from a FUTSA claim. Id. at 9-10. Proof of the use of information is not
required to show her disloyalty. Id. In addition, Foundever argues that allegations
about confidential information that is not trade secret are not preempted by FUTSA,
which only protects trade secrets. Id. at 10.
FUTSA provides that it will “displace conflicting tort, restitutory, and other
law[s] of this state providing civil remedies for misappropriation of a trade secret,”
except that it will not affect “contractual remedies, whether or not based upon
misappropriation of a trade secret” or “other civil remedies that are not based upon
misappropriation of a trade secret.” Fla. Stat. § 688.008. Accordingly, courts have
held that “other torts involving the same underlying factual allegations as a claim for
trade secret misappropriation will be preempted by FUTSA.” New Lenox Industries, Inc.
v. Fenton, 510 F.Supp.2d 893, 908 (M.D. Fla. 2007). State law claims that are not
“separate and distinct” from the FUTSA claim will therefore be dismissed.
Developmental Tech., LLC v. Valmont Industries, Inc., No. 8:14-cv-2796-MSS-JSS, 2016
WL 7320908, *4 (M.D. Fla. July 18, 2016) (Scriven, J.) (citations omitted).
On the other hand, torts will not be preempted where there are “material
distinctions between the allegations comprising the additional torts and the allegations
supporting the FUTSA claim.” Id. (quotation omitted). Thus, courts must compare
the allegations in each claim to see if they are separate and distinct. Id. If “the
allegations of trade secret misappropriation alone comprise the underlying wrong,”
only the FUTSA claim will survive. Ryder Truck Rental, Inc. v. Logistics Resource
Solutions, Inc., No. 21-21573-CIV, 2021 WL 9037641, *5 (S.D. Fla. Nov. 23, 2021)
(quotation omitted) (emphasis in original).
In Developmental Tech., the court found that the allegations underlying tort
claims of misappropriation of ideas and the violation of Florida’s Deceptive and
Unfair Trade Practices Act (“FDUTPA”), both of which involved the misuse of
confidential information, were not materially distinct from a FUTSA claim alleging
the misappropriation of trade secrets. 2016 WL 7320908 at *5-6. As a result, the tort
claims were preempted. Id. Similarly, in Measured Wealth Priv. Client Grp., LLC v. Foster,
No. 20-CV-80148, 2020 WL 3963716, *6 (S.D. Fla. July 13, 2020), the court found
that tortious interference and FDUTPA claims were preempted by FUTSA because
there were “insufficient additional factual allegations that distinguish[ed them] from
the trade-secret counts.” Allegations that the defendants used deceptive and covert
means to take confidential information from the plaintiff were “merely reframed
allegations from the claims for misappropriation of trade secrets.” Id. at *7.
In contrast, the Measured Wealth court found that counts of breach of fiduciary
duty were not preempted because they were “sufficiently distinct from the FUTSA
counts.” Id. at *6. The breach of fiduciary duty allegations “provide[d] for additional
bases of liability other than liability based on trade secrets,” such as using the plaintiff’s
confidential information to poach clients and induce them to terminate their
relationship with the plaintiff. Id.; see also 777 Partners LLC v. Pagnanelli, No. 20-20172CIV, 2022 WL 4597804, *10 (S.D. Fla. March 16, 2022) (tortious interference claim
was not preempted where it was based on defendant’s alleged use of the trade secrets
to interfere with plaintiffs’ business relationships); Am. Honda Motor Co., Inc. v.
Motorcycle Info. Network, Inc., 390 F.Supp.2d 1170, 1181 (M.D. Fla. 2005) (FDUTPA,
fraud, and negligent misrepresentation claims alleging that the plaintiffs made false
representations that induced defendants to divulge confidential information to their
detriment, while “related to the misappropriation of trade secrets,” contained material
distinctions and were not preempted). Likewise, in Advice Interactive Grp., LLC v.
Web.com Grp., Inc., No. 3:17-cv-801-BJD-MCR, 2017 WL 6554409, *11 (M.D. Fla.
Oct. 20, 2017), the court found that a FDUTPA claim was not preempted where it
also contained allegations that the defendant induced the plaintiff to disclose its trade
secrets, which it intended to use in violation of non-disclosure agreements, and that it
signed the non-disclosure agreements while developing another product to compete
with the plaintiff.
Here, one allegation underlying the breach of fiduciary duty claim is materially
indistinguishable from the allegations on which the FUTSA claim is based: that Hahn
misappropriated Foundever’s trade secrets and confidential information. Doc. 1-1 ¶
99. Thus, to the extent that Count III is based on this allegation alone, it is preempted
by FUTSA. 4 However, the remaining bases for the breach of fiduciary duty claim are
sufficiently distinct from the FUTSA claim. Count III alleges that Hahn breached her
duty of loyalty by actively seeking employment with and sharing confidential
information with a competitor. Id. ¶¶ 100, 102. It further alleges that Hahn violated
Foundever’s IT and corporate policies by copying confidential information onto an
unsecured device. Id. ¶ 101.
Although these allegations are related to the
misappropriation of trade secrets, they are materially distinct from the FUTSA claim
and are therefore not preempted.
Having concluded that most of Count III is not preempted by FUTSA, the
Court will evaluate whether there is a substantial likelihood of success on the merits.
The elements of a claim for breach of the fiduciary duty of loyalty are: (1) the existence
of a duty of loyalty, (2) a breach of that duty, and (3) damages proximately caused by
the breach. Martin v. Partsbase, Inc., No. 20-80235-CIV, 2020 WL 7495536, *2 (S.D.
Fla. Dec. 4, 2020) (citations omitted). Employees owe a duty of loyalty to their
employer not to engage in disloyal acts in anticipation of future competition, such as
using confidential information acquired during their employment. Id., quoting Nat’l
Foundever’s argument that the claim is not preempted because it includes confidential
information that is not trade secret is unavailing. Courts in this District have found that
FUTSA “preempts all non-contract claims based on the misappropriation of confidential
and/or commercially valuable information even if the information does not constitute a trade
secret under the FUTSA.” PB Legacy, Inc v. Am. Mariculture, Inc., No. 2:17-CV-9-FTM-29CM,
2018 WL 6325315, *4 (M.D. Fla. Dec. 4, 2018), quoting Am. Registry, LLC v. Hanaw, No.
2:13-CV-352-JES-CM, 2014 WL 12606501, *6 (M.D. Fla. July 16, 2014); see also ISO Claims
Svcs., Inc., ACI Division v. Bradford Tech., Inc., No. 3:09-cv-976-MMH-JK, 2011 WL 13176422,
*5-6 (M.D. Fla. Sept. 29, 2011) (same).
Ins. Consulting Grp., LLC v. Kandel, No. 19-cv-22373, 2020 WL 13389742, *3 (S.D. Fla.
Jan. 15, 2020); see also Classic Soft Trim, Inc. v. Albert, No. 6:18-cv-1237-WWB-DAB,
2021 WL 720414, *4 (M.D. Fla. Feb. 9, 2021) (differentiating between an actual
breach of the duty of loyalty and “mere preparation” of competition).
As noted, there is no evidence that Hahn actually used the Foundever
information in her possession to compete with Foundever. Such evidence would be
relevant to a finding that Foundever was injured by Hahn’s conduct or that her
conduct went beyond mere preparation of competition. Nonetheless, Foundever has
introduced evidence that Hahn met with WebHelp, Foundever’s direct competitor in
the same market, while she was employed at Foundever, in order to discuss
WebHelp’s processes and pricing “to ensure [its] success in North America.” With or
without the disclosure of confidential information during this conversation, the Court
agrees with Foundever that this conduct would constitute a breach of the duty of
loyalty that was likely to injure Foundever. See OPS Int’l, Inc. v. Ekeanyanwu, --F.Supp.3d ---, No. 6:21-cv-1947-PGB-EJK, 2023 WL 4350419, *7 (M.D. Fla. May 11,
2023) (granting summary judgment to plaintiff for breach of fiduciary duty where
defendant, inter alia, consulted for plaintiff’s competitor, “thus undermining
[plaintiff’s] standing in the market”). Accordingly, there is a substantial likelihood of
success on the merits for this aspect of Count III.
B. Irreparable Harm
“A showing of irreparable injury is the sine qua non of injunctive relief.” Siegel
v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (quotation omitted). To merit a
preliminary injunction, the plaintiff must show that it will suffer, or faces a substantial
likelihood of suffering, irreparable injury if the injunction is not granted. Id. at 1176
n.9. The asserted injury “must be neither remote nor speculative, but actual and
imminent.” Id. (quotation omitted). An injury is irreparable if there is no adequate
remedy at law to recover damages for the harm suffered. Georgia v. President of the United
States, 46 F.4th 1283, 1302 (11th Cir. 2022) (citation omitted). Economic harm alone
is generally not considered irreparable unless the monetary loss is unrecoverable. Id.
The loss of customers and goodwill is an irreparable injury. Jysk Bed’N Linen v. DuttaRoy, 810 F.3d 767, 780 (11th Cir. 2015) (quotation omitted).
Foundever contends that it is entitled to a presumption of irreparable injury
because the case involves the violation of a non-competition agreement. Doc. 14 at 1920. In response, Hahn disputes that the Florida statute providing a presumption of
irreparable harm in the event of a violation of a restrictive covenant applies in federal
court. Doc. 22 at 5-6. Hahn further argues that Foundever has not established any
actual injury, and that its delay in seeking an injunction undercuts its claim of
irreparable harm. Id. at 6-8. In reply, Foundever asserts that any delay is attributable
to Hahn. Doc. 31 at 3-5.
There is a split in the caselaw regarding whether Florida federal courts should
apply a presumption of irreparable harm to a violation of a restrictive covenant. Fla.
Stat. § 542.335(j) states that “[t]he violation of an enforceable restrictive covenant
creates a presumption of irreparable injury to the person seeking enforcement of the
restrictive covenant.” Some federal courts have applied this presumption, while others
have found that it should not apply because federal law governs equitable procedures
such as injunctions. See Vital Pharmaceuticals, Inc. v. Alfieri, 23 F.4th 1282, 1292 (11th
Cir. 2022) (describing the issue as a “knotty choice-of-law question” but declining to
resolve it); id. at 1293-99 (Prior, J., concurring) (detailing the conflict and
recommending use of the federal standard rather than the state presumption). There
is no binding authority that resolves the conflict. 5
Even if the Court does not apply the presumption, 6 however, Foundever has
presented evidence that demonstrates it is under threat of irreparable harm. It is
undisputed that Hahn is now working for Foundever’s direct competitor, and that she
continues to have access to not only any confidential information she learned in her
senior role at Foundever that remains in her knowledge, but also all of her Foundever
Hahn argued at the hearing that binding authority was provided by Ferrero v. Associated
Materials Inc., 923 F.2d 1441, 1448 (11th Cir. 1991), which held that traditional federal equity
practice constitutes “federal procedure,” such that federal rules apply in diversity cases to
determine whether a preliminary injunction should issue. Yet, despite Ferrero, the Vital court
described the question as unresolved, 23 F.4th at 1292, a description that is verified by the
conflicting conclusions reached by myriad Florida district courts and even some unreported
decisions of the Eleventh Circuit. See, e.g., TransUnion Risk and Alternative Data Solutions, Inc.
v. MacLachlan, 625 F. App’x 403, 406 (11th Cir. 2015) (concluding Florida presumption of
irreparable harm works in tandem with federal preliminary injunction rule); National Staffing
Solutions, Inc. v. Sanchez, 626 F.Supp.3d 1247, 1254 (M.D. Fla. 2022) (applying presumption);
GPS Industries, LLC v. Lewis, 691 F.Supp.2d 1327, 1337 (M.D. Fla. 2010) (citing presumption
that would apply if there had been an enforceable restrictive covenant). This Court finds, as
the Vital court recognized, that the question remains unresolved.
The Court is also not persuaded by Foundever’s argument that Hahn cannot rebut any
presumption of irreparable injury because of her acknowledgment in the Agreement that any
breach would cause irreparable harm to her employer. Doc. 14 at 20, citing Doc. 14-1 at 13,
§ 5(a)(8), 15, § 5(d). A plaintiff must clearly establish all four elements of a preliminary
injunction in order to merit injunctive relief, and courts have found that “the requirement of
a showing of irreparable injury cannot be stipulated away by an employee.” Regions Bank v.
Raymond James & Associates, Inc., No. 6:20-cv-658-PGB-EJK, 2020 WL 6870815, * 5 n.10
(M.D. Fla. May 15, 2020).
files, which the Court has found include at least some confidential and proprietary
Further, Hahn’s actions in declining to sign a new non-compete
agreement with Sitel while actively interviewing with a direct competitor, in addition
to her stated belief that the 2017 Agreement and its non-compete agreement was no
longer in effect, strongly suggest that she intended to compete with Sitel/Foundever
at the time she copied the files to her personal accounts and devices.
circumstances are enough to demonstrate that irreparable harm is likely, even if it has
not yet occurred. In All Star Recruiting Locums, LLC v. Ivy Staffing Solutions, LLC, No.
21-cv-62221, 2022 WL 2340997, *17 (S.D. Fla. April 8, 2022), for example, the court
declined to apply the presumption, but found that the plaintiff established that it faced
a threat of irreparable harm if the defendants were allowed to compete with it with the
benefit of its protected information. The court emphasized that the defendants’
retention and use of plaintiff’s confidential information, in violation of a
confidentiality agreement, presented a risk of irreparable harm because it would allow
them to compete unfairly against the plaintiff. Id.; see also Lincare v. Markovic, No. 8:22cv-918-MSS-TGW, 2022 WL 18927111, *9 (M.D. Fla. Nov. 17, 2022) (in addition to
the presumption of irreparable harm, plaintiff proved threat of irreparable harm with
evidence that defendant, as a senior employee, had access to confidential information
before departing company to work for a direct competitor as executive vice president
of strategy and business development) report and recommendation adopted, 2023 WL
2329207 (Jan. 11, 2023); Osborne Associates, Inc. v. Cangemi, No. 3:17-cv-1135-MMHMCR, 2017 WL 5443146, *15 (M.D. Fla. Nov. 14, 2017) (“Permitting [defendants] to
operate their business in direct competition with [plaintiff], and in direct violation of
the covenants-not-to-compete they signed, presents a harm that is irreparable.”).
Hahn argues that her declaration creates a dispute of fact that precludes a
finding in Foundever’s favor, as Foundever carries the burden of proof.
declaration asserts that she has not used and will not use any of Foundever’s
information in her new job, and that she and WebHelp agreed that she would not
“solicit or participate in any current Sitel client activities[.]” Doc. 22-1 ¶¶ 59-61. She
also states that she has “started to build expertise in a new vertical that I did not have
experience in at my prior employers.” Id. ¶ 59. She does not provide any other
information about the nature of her new role in comparison to her former role and
knowledge. A declaration of a senior WebHelp employee attests the same with respect
to her agreement not to use Foundever’s information or solicit its clients, but is silent
as to the nature of her new role and whether Foundever’s information would be helpful
to it. Doc. 22-2 ¶¶ 3-5, 7-8, 10-12.
Based on the declarations, Hahn urges the Court to follow TransUnion Risk and
Alternative Data Solutions, Inc. v. Challa, 676 F. App’x 822, 825-26 (11th Cir. 2017), in
which the Eleventh Circuit held that the district court did not err in finding that the
defendant overcame a presumption of irreparable injury. After making credibility
findings at an evidentiary hearing, the district court credited the defendant’s and new
employer’s testimony that the defendant would not use any of the plaintiff’s
proprietary information in his new position because of the nature of the role, despite
the close relationship between the companies. Id.
Challa is inapposite. Here, Hahn’s decision not to testify at the evidentiary
hearing precludes the Court from making a credibility determination. In addition, the
declarations she submitted simply state that she will not use Foundever’s information
or solicit its clients, without giving any reason that it would not be beneficial to do so.
The statement that she is gaining expertise in a new vertical is not the same as stating
that she is exclusively working in a different vertical than her former job. Absent an
express allegation or explanation that she would not have use for Foundever’s
confidential information in her new role, or details about any distinctions between the
two roles that would allow the Court to reach the same conclusion, Hahn’s statements
stand in contrast to the testimony in Challa. Despite Hahn’s bare denial of the
allegations, the evidence is sufficient to find a likelihood that Foundever will suffer
irreparable injury without an injunction.
Lastly, Hahn argues that Foundever’s claim of irreparable harm is undercut by
its delay in seeking injunctive relief. “A delay in seeking a preliminary injunction of
even only a few months—though not necessarily fatal—militates against a finding of
irreparable harm” because “[a] preliminary injunction requires showing ‘imminent’
irreparable harm.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir.
2016); see also Blue-Grace Logistics LLC v. Fahey, 340 F.R.D. 460, 467-69 (M.D. Fla.
2022) (collecting cases in which courts found delays of between two and six months to
conflict with a claim of irreparable harm). On the other hand, a relatively short delay
that is attributable to a reasonable attempt to mediate the issues does not negate a
finding of irreparable harm. See, e.g., Boggs Contracting, Inc. v. Freismuth, No. 6:21-cv2088-CEM-EJK, 2021 WL 6755466, *4 (M.D. Fla. Dec. 27, 2021).
Foundever was aware in late April 2023 that Hahn was working for its direct
competitor in violation of the non-compete provision. In addition, it was aware by
May 10, 2023, the date it filed the state court complaint, that Hahn had improperly
retained or copied at least some Foundever documents. See Doc. 1-1. Foundever did
not move for a preliminary injunction until August 4, 2023. Doc. 14. It argues that
this delay is attributable to extensions that were given to Hahn as well as its attempts
to negotiate a settlement. Doc. 31 at 3-4.
The record does not establish that any delay attributable to Hahn prevented
Foundever from seeking injunctive relief. Neither her alleged delay in responding to
the complaint nor her subsequent removal of the action to this Court had any effect on
Foundever’s ability to move for an injunction to prevent the harm it alleges is
imminent. 7 On the other hand, the parties have represented to the Court that they
were attempting to informally resolve the dispute, at least with respect to Hahn’s
retention of Foundever’s information. There is no indication that any proposed
resolution would have addressed Hahn’s continued employment at WebHelp. When
asked at the hearing why Foundever did not seek injunctive relief with respect to her
Nor, contrary to Foundever’s contention at the hearing, was Hahn late in responding to the
motion for preliminary injunction. Middle District of Florida Local Rule 6.02(c) provides
that the opposing party must respond “within seven days after notice of the motion or seven
days before the hearing, whichever is later.” (emphasis added). A hearing was first scheduled
for September 7, 2023. Doc. 19. Accordingly, the Court gave Hahn a response deadline of
August 31, 2023: seven days before the hearing. See Docs. 18, 22.
employment sooner, counsel explained that it did not want to move for injunctive
relief in a piecemeal fashion.
Given that settlement discussions related to the return of Foundever’s
information were ongoing, the Court finds that its delay in moving for this type of
injunctive relief does not negate a finding of irreparable harm. But Foundever has not
adequately explained why it did not seek injunctive relief to prevent Hahn’s continued
breach of the non-competition agreement as early as late April, when Hahn informed
it that she did not believe she was in breach. Absent any indication that the parties’
settlement discussions were likely to resolve the issue of Hahn’s employment,
Foundever’s failure to move for injunctive relief in the intervening months
demonstrates a lack of urgency and imminency. Under these circumstances, the Court
is hard-pressed to find that irreparable injury is likely because of Hahn’s continued
employment at WebHelp. Plaintiff has not established this factor with respect to its
request for an injunction that prohibits her employment.
C. Balance of Harms
Next, the Court must consider whether a balance of the relative harms between
Foundever and Hahn weighs in favor of issuing an injunction. Foundever argues that
it will face irreparable and immediate harm absent an injunction, in the form of
“substantial losses in the marketplace…the loss of irreplaceable trade secrets and
confidential information, and irreparable loss of customer relationships and good
will.” Doc. 14 at 21. Any harm to Hahn will be minimal because she will simply need
to comply with the law and the terms of her Employment Agreement. Id. 8
Hahn does not assert that she would be damaged by an injunction against using
or disclosing Foundever’s information or soliciting its customers or employees. Doc.
22 at 18. Indeed, such an argument would conflict with her claim that she has no
intention to do so in her new role. Counsel instead argued at the hearing that this type
of injunction is unnecessary. Thus, the balance of equities supports the issuance of
such injunctive relief.
But Hahn does argue that she would be greatly harmed by an injunction that
prohibits her from working for WebHelp for a period of six months, which she says is
“significantly farther into the future than the six months the parties contemplated in
the agreement.” Id.
The Court has found that Hahn’s continued employment at WebHelp presents
a risk of injury to Foundever, but that Foundever’s lack of urgency in seeking
injunctive relief to rectify it weighs against a finding of irreparable harm. Balanced
against this is the certain harm to Hahn that would result from the loss of her
Foundever does not argue that the Court should apply Fla. Stat. § 542.335(g)(1), which states
that, in determining the enforceability of a restrictive covenant, a court “[s]hall not consider
any individualized economic or other hardship that might be caused to the person against
whom enforcement is sought.” In TransUnion Risk and Alternative Data Solutions, Inc. v.
MacLachlan, 625 F. App’x 403, 407 (11th Cir. 2015), the Eleventh Circuit held that the district
court erred when it applied § 542.335(g)(1) to the preliminary injunction analysis, because the
section applies only to the enforceability of a restrictive covenant, rather than its enforcement.
Although MacLachlan is not a binding decision, the Court finds its reasoning persuasive and
will therefore not apply § 542.335(g)(1) to its balancing of harms analysis.
employment. See, e.g., Delivery.com Franchising, LLC v. Moore, 20-20766-CIV, 2020 WL
3410347, *13 (S.D. Fla. June 19, 2020) (plaintiff’s threatened non-monetary injuries
were speculative, while the harm to defendant from injunctive relief would be
substantial); MicroLumen, Inc. v. Allegrati, No. 8:07-cv-350-EAK-TBM, 2007 WL
9757950, *13 (M.D. Fla. Aug. 31, 2007) (proffered evidence demonstrated little actual
harm to plaintiff or actual competition by defendant to date, while injunctive relief
would likely bankrupt defendant).
In addition, “[t]he purpose of the preliminary injunction is to preserve the
positions of the parties as best we can until a trial on the merits may be held.” Bloedorn
v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011), citing Univ. of Texas v. Camenisch, 451
U.S. 390, 395 (1981). At this point, Hahn’s employment by WebHelp is the status
quo, and has been for the last six months. See Liberty Am. Ins. Grp., Inc. v. WestPoint
Underwriters, LLC, 199 F.Supp.2d 1271, 1305 (M.D. Fla. 2001) (hardship to plaintiff
did not outweigh hardship to defendants if defendants were prohibited from
continuing with their current employment, which would “alter the status quo and
award Liberty American nearly all the relief it would be entitled to at a trial on the
merits if it prevailed.”). A preliminary injunction would not preserve the status quo in
On the other hand, the loss of Hahn’s employment would be, arguably, a selfinflicted injury caused by her breach of the non-compete. See 7-Eleven, Inc. v. Kapoor
Bros. Inc., 977 F.Supp.2d 1211, 1227 (M.D. Fla. 2013) (holding that balance of harms
weighed in plaintiff’s favor despite harm to defendant; observing that, in cases where
a franchisee breached the terms of its franchise agreement, “courts regularly find that
a franchisee cannot then be heard to complain of harm from an injunction preventing
further use of the franchisor’s trademark”); Dunkin Donuts Franchised Restaurants LLC
v. EMST Donuts, LLC, No. 2:07-cv-422-MMH-DF, 2007 WL 9718746, *12 (M.D. Fla.
Sept. 17, 2007) (same). This Court has previously noted that “[a] defendant who
voluntarily enters a covenant not to compete and receives substantial benefits from his
employment cannot now claim that the harm from enforcing the covenant he agreed
to would be too great a hardship on him.” Edwards Moving & Rigging, Inc. v. Jenkins,
No. 8:19-cv-1004-CEH-SPF, 2020 WL 7707025, *19 (M.D. Fla. Dec. 29, 2020)
(Honeywell, J.) (quotation omitted); see also Cady Studios, LLC v. Clift, No. 1:18-cv4670, 2018 WL 11420537, *13 (N.D. Ga. Nov. 13, 2018) (balance of harm weighed in
favor of plaintiff even where it would preclude defendant’s upcoming employment
with plaintiff’s direct competitor). Moreover, the Employment Agreement specifically
contemplates the extension of the non-compete period for the time the employee is in
breach. Doc. 14-1 at 20, § 5(d). Hahn’s argument that the injunction period would be
longer than what the parties agreed to in the non-compete is therefore unavailing. 9
In all, the Court finds that this factor does not weigh in favor of either party with
respect to an injunction that prohibits Hahn from continued employment with a
However, Foundever has not proven that Hahn was in breach of the non-competition
provision for a period of six months, because it has not refuted her contention that she did not
begin working at WebHelp until April 10, 2023, more than two months after her employment
at Sitel/Foundever ceased.
competitor. Foundever therefore has not clearly established that the balance of harms
supports this type of injunctive relief.
D. The Public Interest
The final factor is whether the public interest will be served by granting a
preliminary injunction. Foundever contends that the public interest will be served by
enforcing a valid contract that promotes legitimate business interests. Id. at 21-22.
Hahn responds that eliminating competition disserves the public interest, apparently
implying that even a valid restrictive covenant should not be enforced. Doc. 22 at 1718.
Hahn’s position that non-competition provisions, as a whole, do not serve the
public interest is unsupported, and is also in conflict with the caselaw and Florida
public policy. See Fla. Stat. § 542.335(1) (“enforcement of contracts that restrict or
prohibit competition…is not prohibited” as long as they are reasonable in time, area,
and line of business); id. § 542.335(1)(i) (“No court may refuse enforcement of an
otherwise enforceable restrictive covenant on the ground that the contract violates
public policy unless…such public policy requirements substantially outweigh the need
to protect the legitimate business interests or interests established by the person seeking
enforcement”). As a result, courts have found that preliminary injunctions enforcing
valid restrictive covenants serve the public interest. See, e.g., Nat’l Staffing Solutions, Inc.
v. Sanchez, 626 F.Supp.3d 1247, 1255 (M.D. Fla. 2022); Freedom Med. Inc. v.
Sewpersaud, 469 F.Supp.3d 1269, 1279 (M.D. Fla. 2020); 7-Eleven, Inc. v. Kapoor Bros.
Inc., 977 F.Supp.2d 1211, 1230 (M.D. Fla. 2013). Foundever has established that
enforcement of the valid restrictive covenants Hahn entered into serves the public
Foundever has clearly established that all four factors support the issuance of a
preliminary injunction that prohibits Hahn from using or disclosing Foundever’s
information, or from attempting to solicit Foundever employees, customers, or
prospective customers. However, Foundever has not adequately demonstrated that it
will experience irreparable injury absent an injunction that prohibits Hahn from
providing customer services for any competing business, nor that the balance of harms
weighs in its favor with respect to this type of injunctive relief. The motion for
preliminary injunction is therefore due to be granted-in-part and denied-in-part.
With respect to a bond, the Court finds that a nominal bond of $5,000 is
appropriate considering the limited injunctive relief it is ordering. Hahn argued that a
much larger bond would be required to compensate her for the loss of employment
and income that would result from an injunction enforcing the non-competition
provision. She did not identify any harm that would result from an injunction
prohibiting her from using or disclosing Foundever’s information or soliciting or
attempting to solicit Foundever customers. A nominal bond of $5,000 is therefore
sufficient to cover any such costs and damages as may be incurred or suffered should
it later be determined that Hahn was wrongfully enjoined or restrained. See Quality
Labor Mgmt., LLC v. Galvan, No. 6:21-cv-588-PGB-DAB, 2021 WL 4935745, *5 (M.D.
Fla. July 12, 2021); Fed. R. Civ. P. 65(c).
Accordingly, it is ORDERED:
1. Plaintiff Foundever Operating Corporation’s Motion for Preliminary
Injunction (Doc. 14) is GRANTED-IN-PART and DENIED-IN-PART.
2. A preliminary injunction will be entered by separate order.
preliminary injunction, Defendant Hilary Hahn and any other person or
entity acting in concert or participation with her will be enjoined from:
a. Disclosing, reproducing, transferring, or otherwise utilizing any
confidential information or trade secrets of Foundever;
b. Inducing or attempting to induce any person who during the term of
this injunction is an employee, consultant, sales agent, representative,
or contractor of Foundever to terminate his or her employment or
other relationship with Foundever; and
c. Inducing or attempting to induce any customer or prospective
customer with whom Hahn had contact during her employment with
Foundever to terminate any written or oral agreement or other
relationship with Foundever or reduce the amount of business it
conducts with Foundever.
The preliminary injunction will order Foundever to maintain in place
a nominal bond in the amount of $5000.00 with the Clerk of Court.
DONE and ORDERED in Tampa, Florida on November 13, 2023.
Copies furnished to:
Counsel of Record
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