Sexual MD Solutions, LLC v. Wolff et al

Filing 125

ORDER granting in part and denying in part #62 Motion for Preliminary Injunction. Signed by Ch. Magistrate Judge John J. O'Sullivan on 5/6/2020. See attached document for full details. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-20824-CIV- O’SULLIVAN
[CONSENT]
SEXUAL MD SOLUTIONS, LLC,
Plaintiff,
v.
DUSTIN WOLFF, STEPHANIE WOLFF,
WOLFF MARKETING ENTERPRISES, LLC,
NOVUS ANTI-AGING CENTER, INC.,
and MOON POOL LLC,
Defendants.
________________________________/
ORDER
THIS MATTER is before the Court on the Motion for Preliminary Injunction (DE#
62, 4/6/20) filed by the plaintiff.
BACKGROUND
On March 18, 2020, Sexual MD Solutions, LLC (hereinafter “SMDS” or “plaintiff”)
filed its Amended Complaint (DE# 43, 3/18/20). The Amended Complaint alleged the
following causes of action against Dustin Wolff, Stephanie Wolff, Wolff Marketing
Enterprises, LLC, Novus Anti-Aging Center, Inc. and Moon Pool LLC (hereinafter
collectively, “defendants”): breach of contract against Dustin Wolff, Stephanie Wolff and
Novus Anti-Aging Center, Inc. only (Count I); misappropriation of trade secrets (Count
II); unfair competition (Count III) and unjust enrichment (Count IV). Id.
On April 6, 2020, the plaintiff filed its Motion for Preliminary Injunction (DE# 62,
4/6/20) (hereinafter “Motion”).1 On April 17, 2020, the defendants filed their response to

1

The plaintiff initially sought injunctive relief in state court. See Notice of Removal (DE#
1, 2/26/20). At the undersigned’s direction, the plaintiff re-filed the motion for injunctive

the Motion. See Defendants Dustin Wolff et al.’s Response in Opposition to Plaintiff’s
Motion for Temporary Injunction (DE# 69, 4/17/20) (hereinafter “Response”). The
plaintiff filed its reply on April 21, 2020. See Plaintiff’s Reply in Support of Its
Motion for Preliminary Injunction (DE# 87, 4/21/20). The parties filed numerous
supporting documents including declarations and exhibits.
On April 24, 2020, the undersigned held an evidentiary hearing on the instant
motion. The undersigned admitted into evidence the Plaintiff’s Exhibits 1 through 42 and
the Defendants’ Exhibits 1 through 92. At the evidentiary hearing, the plaintiff presented
the testimony of Mark White, Dustin Wolff and Jon Hoffman. The defendants presented
the testimony of Dustin Wolff.
This matter is ripe for adjudication.
FACTUAL FINDINGS
I.

SMDS
The plaintiff, SMDS, is a Florida Limited Liability Company, with its principal

place of business in Aventura, Florida. Amended Complaint (DE# 43 at ¶1, 3/18/20).
In 2016, Mark White founded SMDS “after learning about extracorporeal
shockwave therapy (‘ESWT’), a method of treatment for . . . erectile dysfunction that
applies high-frequency, low-intensity shock waves to the body.” Motion at 3; see also
Declaration of Mark White (DE# 63-1 at ¶¶4, 6, 9, 4/7/20). At the time, doctors in the
United States had not “caught on” to the use of ESWT as a treatment for erectile

relief as a separate entry on the docket, Motion for Temporary Injunction (DE# 13,
3/2/20). On April 1, 2020, the Court denied as moot the Motion for Temporary Injunction
(DE# 13, 3/2/20) when the plaintiff advised the Court that it would be filing the instant
Motion. See Order (DE# 61, 4/1/20).
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dysfunction (hereinafter “ED”). Id. at ¶7.2
A.

Development of the GAINSWave Program

Mark White “devoted nine full months of [business] planning . . . and spent
millions of dollars” developing the GAINSWave program. Declaration of Mark White
(DE# 63-1 at ¶10, 4/7/20). The purpose of the GAINSWave program was to “market
high-frequency, low intensity shock wave therapy as a safe, non-invasive technology to
increase the blood flow to the penis and thereby optimize erections, sensitivity, and
sexual performance.” Id. at ¶13
B.

SMDS’ Business Model

SMDS is a marketing company. It does “not make, sell or lease any medical
devices.” Defendant’s Exhibit 7 at NOVUS000169 (DE# 77, 4/19/20).3 SMDS’ target
market is medical providers. Declaration of Mark White (DE# 63-1 at ¶12, 4/7/20)
(explaining that “for purposes of safety and quality control, trained physicians -- many of
whom already had patients interested in ED treatments, and who were in a position to
better explain and administer the treatment -- became the target market for SMDS.”). In
fact, SMDS has rejected non-medical providers who have expressed interest in
becoming GAINSWave providers. Id. at ¶26.
SMDS developed “training courses for physicians and physicians' assistant

2

Dustin Wolff attested that there was at least one clinic in Boston providing ESWT
treatments since 2014. Declaration of Dustin Wolff (DE# 75 at ¶16, 4/17/20). However,
according to the plaintiff, the clinic in Boston did not “launch[ ] their brand” until October
2018. Reply Declaration of Mark White (DE# 87-1 at ¶36, 4/21/20).
3

The Court will cite to the “Bates stamp” page number in instances where the page
numbers automatically assigned by the Court’s CM/ECF system are illegible.
3

groups to provide training - not only in the treatment - but far more importantly in the
sales, marketing and operational aspects of selling the treatment.” Declaration of Mark
White (DE# 63-1 at ¶12, 4/7/20). Some of the “trade secrets and confidential
information” developed by SMDS include “opportunity analyses, . . . marketing
techniques, sales strategies, comparison data, pipelines, . . . ‘lead-generation’
strategies, customer/client lists and data, business plans and training videos.” Id. at ¶11.
“The key part of SMDS's business has been creating awareness of the
[GAINSWave] treatment, and its benefits and effectiveness.” Declaration of Mark White
(DE# 63-1 at ¶15, 4/7/20). To accomplish this objective, “SMDS hired certain key
‘influencers’ who could talk about the [GAINSWave] treatment in a positive way[ ] and
b[ought] certain key words that would put the advertisements front and center for certain
internet searches.” Id. at ¶16. “[T]his brand awareness drives potential clients to the
GAINSWave website, whereby the consumer can find a local [GAINSWave] provider
that offers the treatment.” Id. at ¶17. “Providers who pay SMDS a monthly subscription”
are “listed on [the GAINSWave] website. The more traffic the GAINSWave website
receives, the more valuable the SMDS subscription becomes.” Id. at 18.
C.

Protective Measures and Membership Agreement

To protect its “business interests and trade secrets,” SMDS has undertaken the

4

following measures:
a. restricting use of the information with a . . . restrictive covenant,
b. licensing [the information] only to properly licensed medical
practitioners,
c. avoiding licensing [the information] to competing business entities, and
d. limiting access to a password protected marketing “portal” that contains
many materials related to SMDS’s proprietary information and techniques
(hereinafter, the “Portal”).
Declaration of Mark White (DE# 63-1 at ¶22, 4/7/20).
Physicians or physician’s assistants who wish to have access to SMDS’
proprietary information must sign the GAINSWave™ Membership Agreement.
Declaration of Mark White (DE# 63-1 at ¶23, 4/7/20). The GAINSWave™ Membership
Agreement states, in part, that:
NON-CIRCUMVENT & CONFIDENTIALITY. Physician acknowledges and
agrees that: (a) SMDS Invested substantially to develop and create this
opportunity, to establish the Intellectual Property and related goodwill and
business relationships, and to protect the Confidential Information
(collectively, “Business Information”); (b) Physician intends to benefit from
the Business Information under this Agreement; (c) the benefit to
Physician is substantial and the Business Information unique; and (d) the
Business Information would be difficult and costly for Physician to learn,
develop, and use independently, and (e) has substantial competitive
value. For these and other reasons, Physician agrees SMDS has a
legitimate business Interest in protecting the Business Information.
Physician therefore agrees that during the Term of this Agreement
and for two (2) years after this Agreement ends (the “Restrictive
Period”), Physician will not create any new or different intellectual
property use[d] to market, or participate in any group or collective
marketing program that markets, the treatment of sexual wellness or
related medical conditions using ESWT or similar technologies.
GAINSWave™ Membership Agreement (DE# 76-1 at ¶6, 4/19/20) (emphasis added). In
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the past, SMDS has rejected “individuals [who] tried to modify or eliminate the
noncompete provision found in the [GAINSWave™] Membership Agreement or
otherwise negotiate a less restrictive covenant.” Declaration of Mark White (DE# 63-1 at
¶¶ 27-28, 4/7/20).
D.

The Portal

SMDS’ Portal contains “all materials related to SMDS's proprietary methods, the
turnkey business strategies and the contents of the business.” Motion at 5. The Portal is
accessible only through the GAINSWave website. See Declaration of Mark White (DE#
63-1 at ¶¶30-31, 4/7/20) (explaining that “[a]ny person wishing to access the trade
secrets must first obtain . . . log-in information from SMDS; without it, access to the
Portal would be impossible.”).
A medical provider who has signed the GAINSWave™ Membership Agreement
and pays a monthly fee may access the Portal by entering their “unique user credentials
and a password.” Motion at 5; see also Declaration of Mark White (DE# 63-1 at ¶¶ 23,
25, 29, 4/7/20) (stating that “[t]raining and access to the Portal is limited only to medical
practices, physicians and physician assistants who agree to the restrictive covenant and
agree to pay a set monthly fee based on the level of access requested.”).
E.

The GAINSWave Program’s Growth

“[S]ince 2016, more than 400 physicians [in 44 different states] have signed
SMDS Membership Agreements and have paid approximately $900 per month for the
training and the access to the Portal.” Declaration of Mark White (DE# 63-1 at ¶¶34-35,
4/7/20). These medical providers have “used the GAINSWave treatment to treat more
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than 50,000 patients in … the last three years.” Id. at 35.
F.

Other Companies Offering In-Home Treatments

Aside from the defendants, SMDS is aware of another company that “has
created an in-home device that delivers the same shock wave therapy.” Declaration of
Mark White (DE# 63-1 at ¶37, 4/7/20). However, that company has not had access to
SMDS’ training and proprietary information and “SMDS has not received a single
complaint from any of its physicians or influencers or anyone else about [that
company]’s in-home device.” Id. at ¶¶ 39. Other companies that have “offer[ed] in-home
devices” and have not had access SMDS’ training and proprietary information have
failed. Id. at ¶40.
G.

The ’127 Patent Lawsuit

In July or August 2018, an individual “claiming that he had a methodology patent
on shock wave therapy for ED,” U.S. Patent No. 7,601,127 (“the ’127 Patent”), sued the
plaintiff and three GAINSWave providers in Georgia. Evidentiary Hearing Transcript
(DE# 121 at 69, 4/28/20). This same individual threatened to sue every GAINSWave
provider in the country for infringing on the ’127 Patent. Id. The plaintiff reached a
settlement agreement wherein this individual would not sue GAINSWave providers but
would sue other medical providers. Id. As part of the settlement, the plaintiff agreed to
provide this individual with the names of medical providers who were providing shock
wave therapy. Id. After approximately three months, the plaintiff stopped providing
names to that individual. Id. at 70.

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II.

The Defendants
A.

Novus Anti-Aging Center, Inc.

In 2017, Dustin Wolff and Stephanie Wolff founded Novus Anti-Aging Center, Inc.
in Los Angeles, California. Declaration of Dustin Wolff (DE# 75 at ¶9, 4/17/20).
Stephanie Wolff is the chief executive officer of Novus Anti-Aging Center, Inc. and
Dustin Wolff is its president. Declaration of Stephanie Wolff (DE# 69-3 at ¶9, 4/17/20);
Declaration of Dustin Wolff (DE# 75 at ¶10, 4/17/20).
Stephanie Wolff is a Board-Certified Physician’s Assistant. Declaration of
Stephanie Wolff (DE# 69-3 at ¶11, 4/17/20). Dustin Wolff has “two decades of
experience in sales and marketing, including internet marketing, in the field of male antiaging and sexual wellness products.” Declaration of Dustin Wolff (DE# 75 at ¶15,
4/17/20).
Novus Anti-Aging Center, Inc. “provides holistic healthcare and wellness services
for the older population, which include sexual wellness therapies for both men and
women, hormone-based therapies, chronic-pain management, and aesthetics.”
Stephanie Wolff (DE# 69-3 at ¶10, 4/17/20).
Prior to signing up with SMDS, Novus Anti-Aging Center, Inc. “researched the
field extensively including protocols, marketing tactics, and different vendors who
supported clinicians offering ESWT in their clinics.” Declaration of Dustin Wolff (DE# 75
at ¶17, 4/17/20).
On October 5, 2017, Dustin Wolff signed a GAINSWave™ Membership
Agreement on behalf of Novus Anti-Aging Center, Inc. See GAINSWave™ Membership
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Agreement (DE# 76-1, 4/19/20). 4
The Membership Agreement contained the following restrictive covenant:
NON-CIRCUMVENT & CONFIDENTIALITY. Physician acknowledges and
agrees that: (a) SMDS Invested substantially to develop and create this
opportunity, to establish the Intellectual Property and related goodwill and
business relationships, and to protect the Confidential Information
(collectively, “Business Information”); (b) Physician intends to benefit from
the Business Information under this Agreement; (c) the benefit to
Physician is substantial and the Business Information unique; and (d) the
Business Information would be difficult and costly for Physician to learn,
develop, and use independently, and (e) has substantial competitive
value. For these and other reasons, Physician agrees SMDS has a
legitimate business Interest in protecting the Business Information.
Physician therefore agrees that during the Term of this Agreement
and for two (2) years after this Agreement ends (the “Restrictive
Period”), Physician will not create any new or different intellectual
property use[d] to market, or participate in any group or collective
marketing program that markets, the treatment of sexual wellness or
related medical conditions using ESWT or similar technologies.
GAINSWave™ Membership Agreement (DE# 76-1 at ¶6, 4/19/20) (emphasis added).
The GAINSWave™ Membership Agreement also contained a termination
provision and a forum selection clause:
TERM & TERMINATION. The initial term of this Agreement is one (1) year
from the Effective Date. This Agreement renews automatically for one (1)
year renewal terms. Together, the initial term and any renewal terms are
the “Term.” This Agreement may be terminated: (a) by mutual
agreement of the parties; (b) by Physician for cause if SMDS does not
4

For purposes of ruling on the instant Motion, the Court finds that, at the very least,
defendant Novus Anti-Aging Center, Inc. was a signatory to the GAINSWave™
Membership Agreement (DE# 76-1, 4/19/20). At this juncture, the Court does not need
to determine whether defendants Dustin Wolff and Stephanie Wolff, in their individual
capacities, were also signatories to the GAINSWave™ Membership Agreement (DE#
76-1, 4/19/20) because, as explained in further detail herein, the Court may issue an
injunction against all parties and non-parties who are “officers, agents, servants,
employees, and attorneys” of Novus Anti-Aging Center, Inc. and “other persons who are
in active concert or participation with [those individuals]” Fed. R. Civ. P. 65(d)(2)(B)-(C).
9

cure within thirty (30) days after notice; (c) by SMDS for non-payment
that is not cured within five (5) days after notice; (d) by SMDS for other
cause if Physician does not cure within thirty (30) days after notice; or (e)
by SMDS immediately if SMDS reasonably determines Physician risks the
value or reputation of the Intellectual Property or SMDS. When this
Agreement ends, Physician shall immediately: (a) cease using the
Intellectual Property (including protocols) and any derivatives; (b)
return all Intellectual Property, including the Marketing Tool Kit, and
all other [sic].
***
MISCELLANEOUS. This Agreement will be governed by and construed in
accordance with the laws of the State of Florida, without regard for
conflicts of laws principles. The mandatory and exclusive venue and
jurisdiction for any proceeding to enforce this Agreement are courts
located in Miami-Dade County, Florida. Each party waives any
objection or defense based on venue, personal jurisdiction, or that
the forum is not convenient. . . .
Id. at ¶¶5,8 (emphasis added).
After signing the GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20)
and paying the set-up fee, Novus Anti-Aging Center, Inc. gained access to the Portal.
Declaration of Dustin Wolff (DE# 75 at ¶¶21-22, 4/17/20).
SMDS provided training to its GAINSWave providers. The training consisted of
“[three] hours of ‘Business, operations, marketing and sales’ and [four] hours of
‘Medical, didactic and clinical training.’” Declaration of Dustin Wolff (DE# 75 at ¶23,
4/17/20). SMDS also provided materials to its providers, including marketing materials,
but “did not mark any materials as confidential, proprietary or trade secrets.” Id. at ¶¶3138.
On November 5, 2017, Dustin Wolff and Stephanie Wolff attended an SMDS
training session in Tucson, Arizona. Declaration of Dustin Wolff (DE# 75 at ¶25,
4/17/20). Due to a scheduling conflict, the training in Arizona “was cut short to about half
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the expected seven hours.” Id. at ¶27. To make up for this training, “SMDS offered
compensatory training in Florida for a single day in February 2018.” Id. at ¶28.
In addition to the materials in the Portal and the in-person training sessions,
Dustin Wolff and Stephanie Wolff received extra marketing assistance from the plaintiff.
See Reply Declaration of Mark White (DE# 87-1 at ¶¶13-14, 4/21/20) (noting that “on
November 7, 2017, SMDS set up a media analysis call for the Wolffs and SMDS’s
media expert, Ms. Stephanie Ruiz, to discuss various topics, including what kind of
radio stations [Dustin Wolff] should target to run advertisements” and that on November
14, 2017, Dustin Wolf participated in an almost hour long “sales training call with [the
plaintiff’s] sales trainer” where “details of [the plaintiff]’s marketing operations [were
discussed] during that call, and to a significant degree.”).
On December 14, 2017, Dustin Wolff attended a conference in Las Vegas,
Nevada. Reply Declaration of Mark White (DE# 87-1 at ¶15, 4/21/20). At that
conference, Mark White “introduced Mr. Wolff to many doctors and influencers, both in
and outside [the plaintiff’s] network . . . .” Id. Mr. Wolff agreed to do a short, promotional
video for GAINSWave. Declaration of Dustin Wolff (DE# 75 at ¶41, 4/17/20). In that
video, Mr. Wolff states that after "joining GAINSWave one month ago, we've paid off the
investment that we put in . . . GAINSWave has already generated over $22,000 in
revenue . . . lt’s amazing!” Plaintiff’s Exhibit 17 (DE# 98-1 at 113, 4/23/20).5
On January 4, 2018, Dustin Wolff sought and obtained assistance from the

5

Dustin Wolff maintains that the video “is misleading and does not provide a complete
picture.” Declaration of Dustin Wolff (DE# 75 at ¶41, 4/17/20).
11

plaintiff in developing a website for an additional cost of $500.00. Reply Declaration of
Mark White (DE# 87-1 at ¶19, 4/21/20).
In February 2018, Dustin Wolff and Stephanie Wolff traveled to Florida to attend
SMDS’ make-up training session. Declaration of Dustin Wolff (DE# 75 at ¶28, 4/17/20).
“The training lasted half a day and comprised the same materials as the Tucson
session.” Id. During this training session, “Mr. Wolff asked if he could spend extra time
with SMDS’s marketing team.” Reply Declaration of Mark White (DE# 87-1 at ¶20,
4/21/20).
In April 2018, Dustin Wolff returned to Florida to attend an anti-aging conference.
Evidentiary Hearing Transcript (DE# 121 at 90, 4/28/20). “[Dustin] Wolff . . . observe[d]
how [SMDS] ‘pitch[ed]’ [its] services to doctors” and “spent time at SMDS’s offices and
spent hours more with the SMDS marketing team, learning . . . SMDS’s business.”
Reply Declaration of Mark White (DE# 87-1 at ¶21, 4/21/20). Dustin Wolff also went on
a boat with Mark White and had dinner with Mr. White, SMDS employees and
prospective GAINSWave providers. Evidentiary Hearing Transcript (DE# 121 at 90-91,
4/28/20). During this trip, Dustin Wolff discussed with Mr. White “developing a hand-held
advice [sic] that consumers could use in their own home.” Reply Declaration of Mark
White (DE# 87-1 at ¶23, 4/21/20). Mr. White “responded that [he] had considered such
a product, but felt it could harm the GAINSWave physician members unless it was
marketed through [the GAINSWave] physician customer base.” Id.
Dustin Wolff expressed interest in helping SMDS recruit new GAINSWave
doctors in exchange for payment. Evidentiary Hearing Transcript (DE# 121 at 65,
12

4/28/20). On April 16, 2018, Dustin Wolff asked Mr. White for doctor leads and sought
marketing advice related to pay-per-click (“PPC”) keywords for Novus Anti-Aging
Center, Inc. Reply Declaration of Mark White (DE# 87-1 at ¶24, 4/21/20). Pay-per-click
or PPC keywords “are terms . . . [purchased] from Google to direct traffic to [a specific
web]site.” Id. at ¶56. Dustin Wolff also told Mr. White that Novus Anti-Aging Center, Inc.
was making $150,000 per month. Id. at ¶24.6
The parties dispute whether Dustin Wolff attended a third training session in Los
Angeles, California on June 16, 2018. Mr. Wolff testified that he merely helped Mr.
White obtain a venue and secure a caterer. Evidentiary Hearing Transcript (DE# 121 at
155, 4/28/20).
At times, Dustin Wolff complained to Mr. White that SMDS was oversaturating
the market with GAINSWave providers. Declaration of Dustin Wolff (DE# 75 at ¶¶42-43,
4/17/20). Shortly after Novus Anti-Aging Center, Inc. became a GAINSWave provider it
was receiving 15 leads per month. Id. at 44.7 However, by July 2018, the number of
leads it was receiving had dropped to three leads per month. Id.
In September 2018, Mr. Wolff asked Mr. White if he could market Novus Anti-

6

The parties dispute whether the $150,000 included all of Novus Anti-Aging Center,
Inc.’s monthly revenue or just the revenue attributable to GAINSWave treatments.
7

“GAINSWave leads were generated when an individual clicked on a listing for an
individual clinic on the GAINSWave directory. Although GAINSWave provided basic
contact information for the user, it was the member’s responsibility to convert the lead
into a paying customer. GAINSWave licensees determined their own price to charge a
customer, and often offered discounts to attract customers over competitors, particularly
where GAINSWave had saturated the market, leading customers to shop for the lowestpriced clinic.” Declaration of Dustin Wolff (DE# 75 at ¶69, 4/17/20).
13

Aging Center, Inc.’s treatments under the name “Novowave” because Mr. Wolff was
doing radio advertising and did not want to drive business to other GAINSWave
providers. Reply Declaration of Mark White (DE# 87-1 at ¶33, 4/21/20). Mr. White
agreed to this arrangement. Id.
The parties dispute whether the GAINSWave™ Membership Agreement (DE#
76-1, 4/19/20) is still in effect. Dustin Wolff asserts that he informed Mr. White in
November 2018, “that Novus wished to discontinue the GAINSWave relationship.”
Declaration of Dustin Wolff (DE# 75 at ¶45, 4/17/20).
According to Mr. White, Dustin Wolff did not terminate the GAINSWave™
Membership Agreement (DE# 76-1, 4/19/20), but merely “requested that he downgrade
his membership to ‘Silver.’” Reply Declaration of Mark White (DE# 87-1 at ¶34, 4/21/20).
Providers with a Silver membership “have access to [the plaintiff’s] password protected
Portal and confidential information, but . . . [are] not . . . listed on [the plaintiff’s]
directory.” Id. “Many providers ha[ve] chosen to downgrade their membership because
they no longer require the ongoing sales support and account management.” Id.
Novus Anti-Aging Center, Inc. continues to pay the plaintiff a reduced monthly
fee of $500. The parties dispute the reason for this monthly fee. Dustin Wolff asserts
that this is a licensing fee because Mr. White claimed to be “the exclusive licensee of
[the’127 Patent] and [that] he was entitled to licensing fees from anyone using ESWT in
the treatment of erectile dysfunction.” Declaration of Dustin Wolff (DE# 75 at ¶¶46-47,
4/17/20). Mr. White maintains that this fee is for access to the Portal. Declaration of
Mark White (DE# 63-1 at ¶97, 4/7/20).
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As of November 2018, Novus Anti-Aging Center, Inc. “provides treatment for
erectile dysfunction with ESWT under the Novowave™ brand-name. Declaration of
Dustin Wolff (DE# 75 at ¶15, 4/17/20).
As of January 2019, Novus Anti-Aging Center, Inc. is not listed as a GAINSWave
provider on the plaintiff’s website. Id.
B.

The Rocket

In March 2018, Dustin Wolff met Jon Hoffman during a medical visit by Mr.
Hoffman to the Novus clinic. See Evidentiary Hearing Transcript (DE# 121 at 87,
4/28/20). Dustin Wolff and Mr. Hoffman engaged in a conversation concerning the types
of services offered by the Novus clinic. Id. During this conversation, Dustin Wolff
mentioned to Mr. Hoffman that “if somebody could . . . develop a low[-]cost home-use
device[,] it would serve the 99 percent of the population that could never afford or get
over the shame and embarrassment of coming into an actual clinic.” Id. Three to four
weeks later, Mr. Hoffman returned to the clinic with a prototype of the Rocket. Id. at 88.
Dustin Wolff and Mr. Hoffman discussed “the type of value [the Rocket] would provide
directly to consumers, . . . if it was efficacious and if it was safe” and “develop[ed] a
[business] relationship from there.” Id.
Mr. Hoffman is the sole inventor of the Rocket and “hold[s] the assignment to the
allowed patent and patent applications that cover the technology underlying the
Rocket.” Declaration of Jon Hoffman (DE# 69-2 at ¶¶25-26, 4/17/20). At the time Mr.
Hoffman developed the Rocket he “was not aware of GAINSWave or any of its
marketing and sales information.” Id. at ¶40.
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C.

Moon Pool, LLC

Moon Pool, LLC is a California limited liability company which does business as
Launch Medical. Declaration of Jon Hoffman (DE# 69-2 at ¶¶3-4, 4/17/20). Dustin Wolff
and Jon Hoffman are non-member managers of Moon Pool LLC. Declaration of Dustin
Wolff (DE# 75 at ¶15, 4/17/20). Mr. Hoffman “oversee[s] the product development,
marketing, sales, and day[-]to[-]day management of Moon Pool.” Declaration of Jon
Hoffman (DE# 69-2 at ¶10, 4/17/20).
Moon Pool, LLC “was created to bring the Rocket to market.” Declaration of Jon
Hoffman (DE# 69-2 at ¶36, 4/17/20). Moon Pool, LLC “launch[ed] a crowdfunding
campaign [for the Rocket] on an established web-based crowd funding platform.” Id. at
¶37.
The day after the launch of the crowdfunding campaign, Mr. White “contacted
Dustin Wolff by text to state he had seen the Rocket and wanted to discuss” it.
Declaration of Jon Hoffman (DE# 69-2 at ¶41, 4/17/20). Mr. White “expressed great
excitement about the potential for commercialization of a home-use acoustic wave
device” and “referenced [entering into] a partnership or joint venture.” Id.
At Mr. White’s request, Jon Hoffman and others 8 on behalf of Moon Pool, LLC
flew to Miami for an in-person meeting where Mr. White was shown the Rocket
prototype. Declaration of Jon Hoffman (DE# 69-2 at ¶42, 4/17/20). The plaintiff and
Moon Pool, LLC continued their negotiations and on September 26, 2019, the plaintiff

8

In his declaration, Jon Hoffman uses the word “we.” Declaration of Jon Hoffman (DE#
69-2 at ¶42, 4/17/20). It is unclear from the declaration who else traveled to Miami on
behalf of Moon Pool, LLC.
16

presented Moon Pool, LLC with a letter of interest (“LOI”). Id. at ¶50. The plaintiff and
Moon Pool, LLC exchange several drafts of the LOI and were ultimately unable to reach
an agreement. Id. at ¶¶51-53. “The last draft of a letter of intent was sent by [Dustin]
Wolff on November 23, 2019.” Reply Declaration of Mark White (DE# 87-1 at ¶45,
4/21/20). The parties continued to engage in discussions in an attempt to reach a
“commercial resolution” even after the plaintiff filed suit. Id. at ¶50.
According to the plaintiff, at some point, Jon Hoffman told Mr. White, “‘we know
the Rocket [will] hurt your business.’” Declaration of Mark White (DE# 63-1 at ¶81,
4/7/20). Mr. Hoffman states that what he told Mr. White was that, “this [could] be the
best day of your life or the worst day of your life.” Declaration of Jon Hoffman (DE# 69-2
at ¶57, 4/17/20). According to Mr. Hoffman, this was not a threat, but rather an
expression of Mr. Hoffman’s belief that the Rocket was a “disruptive innovation.” Id.
“Dustin Wolff designed . . . a direct-to-consumer presale marketing campaign” for
the Rocket which was very successful. Declaration of Jon Hoffman (DE# 69-2 at ¶53,
4/17/20).9 At the same time, Mr. Hoffman attests that “[t]he Rocket’s marketing and
sales program was developed independently through an independent marketing
company Arcadia Marketing, Inc.” Id. at ¶80.
Moon Pool, LLC used well-known influencers to market the Rocket. Declaration
of Jon Hoffman (DE# 69-2 at ¶53, 4/17/20). These influencers do not have an
exclusivity contract with any company. Id.

9

The plaintiff maintains that Dustin Wolff used the plaintiff’s trade secrets and
confidential business information in marketing the Rocket.
17

The term “Say Goodbye to Erectile Dysfunction …” found on GAINSWave’s
website is a common phrase in the ED industry and “[a] Google search of the phrase
returns over 30,000 hits.” Declaration of Jon Hoffman (DE# 69-2 at ¶82, 4/17/20).
In January 2020, Moon Pool, LLC also began buying pay-per-click or PPC
keywords to market the Rocket. Reply Declaration of Mark White (DE# 87-1 at ¶55,
4/21/20). According to the plaintiff, the plaintiff’s “marketing people [taught Dustin] Wolff
exactly how to do this, disclosing to Mr. Wolff what [the plaintiff’s] key words, or PPC
terms were.” Id. At the evidentiary hearing, Mr. Wolff testified that he “ha[d] been doing
PPC for over ten years.” Evidentiary Hearing Transcript (DE# 121 at 16, 4/28/20).
Initially, Mr. White claimed that the defendants could not purchase “GAINSWave”
as a pay-per-click or PPC keyword without the plaintiff’s permission because it was a
trademark. Evidentiary Hearing Transcript (DE# 121 at 55, 4/28/20). Mr. White later
clarified that anyone who had not signed a GAINSWave™ Membership Agreement
(DE# 76-1, 4/19/20) and who was not using the term “GAINSWave” in their advertising
could purchase “GAINSWave” as a PPC keyword without the plaintiff’s permission.10

10

At the evidentiary hearing, Mr. White testified as follows:
Q. … So for any rational party purchasing Google ad words at this point for
the treatment of erectile dysfunction, they are going to buy terms like Viagra,
Cialis and GAINSWave. Correct?
A. If they are a GAINSWave member -- first of all, GAINSWave is a
trademark term, so typically they can't use the name GAINSWave, but
all GAINSWave members need . . . permission to use the word
GAINSWave in advertising. That's what makes our brand valuable.
***
Q. So let's get some clarity. Where the party has not used the term
18

To date, Moon Pool, LLC has received approximately 4,500 pre-orders for the
Rocket. Evidentiary Hearing Transcript (DE# 121 at 89, 4/28/20). Moon Pool, LLC
expects to receive thousands of orders per month. Id.
If an injunction is not issued, Moon Pool, LLC will ship the Rocket to consumers.
Declaration of Jon Hoffman (DE# 69-2 at ¶84, 4/17/20). If an injunction is issued, Moon
Pool, LLC will incur significant costs. Id.
STANDARD OF REVIEW
A preliminary injunction may be granted only if the moving party establishes four
factors: (1) a substantial likelihood of success on the merits; (2) an immediate and
irreparable injury absent injunctive relief; (3) a threatened harm to the plaintiff that
outweighs any injury the injunction would cause to the nonmovant and (4) the injunction
will not disserve the public interest. Carillon Imps. v. Frank Pesce Int’l Grp. Ltd., 112
F.3d 1125, 1126 (11th Cir. 1997) (citation omitted).

GAINSWave in their advertising, they are allowed to purchase the term
GAINSWave from Google ad words. Correct?
A. Correct.
Q. All right. So, by effect, any other competitors or marketers in the
erectile dysfunction space who is not using your trademark term in
their ads can purchase GAINSWave as a key word to increase the
visibility of their ads or website.
Correct?
A. If they are not [GAINSWave] members, that's correct.
Evidentiary Hearing Transcript (DE# 121 at 55-56, 4/28/20) (emphasis added).
19

A preliminary injunction is “an extraordinary and drastic remedy not to be granted
unless the movant clearly establishe[s] the ‘burden of persuasion’ as to the four
requisites.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)
(citing All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537
(11th Cir. 1989)).
ANALYSIS
The plaintiff seeks a preliminary injunction to prohibit the defendants and others
from “offering, marketing, promoting, or introducing the Rocket . . . for sale” or any other
device which “utilizes ESWT for any form of treatment, including erectile dysfunction
and other related ailments” and from “utilizing in any way Plaintiff’s proprietary trade
secrets,” “contacting any influencers, customers, or GAINSWave affiliates” and using
PPC keywords “associated with GAINSWave, SMDS, or any affiliates.” Motion at 19-20.
I.

Injunctive Relief
As noted above, in order to obtain a preliminary injunction, the movant must

demonstrate: “(1) [that there is] a substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury
outweighs the harm the relief would inflict on the non-movant; and (4) that the entry of
the relief would serve the public interest.” Schiavo ex. rel Schindler v. Schiavo, 403 F.3d
1223, 1225-26 (11th Cir. 2005). The undersigned will address each of these factors
below.
A.

Substantial Likelihood of Success on the Merits

The first factor, the substantial likelihood of success on the merits, requires an
analysis of the plaintiff’s ability to make a showing of each of the required elements of
20

the claims asserted. See Seiko Kabushiki Kaisha v. Swiss Watch Int’l, Inc., 188 F.
Supp. 2d 1350, 1353-55 (S.D. Fla. 2002). In the instant case, the plaintiff seeks a
preliminary injunction as to its breach of contract claim (Count I against Dustin Wolff,
Stephanie Wolff and Novus Anti-Aging Center, Inc.) and its misappropriation of trade
secrets claim (Count II against all defendants). Motion at 10.
The defendants have attacked both the merits of these claims and the Court’s
personal jurisdiction over the defendants. Response at 4, 12-17. The Court will address
the jurisdictional argument first.
i.

Personal Jurisdiction

To determine whether the Court has personal jurisdiction over a defendant, the
Court must undertake a two-part analysis. Sculptchair v. Century Arts, Ltd., 94 F.3d
623, 626 (11th Cir. 1996). The Court must:
[f]irst, . . . determine whether the Florida long-arm statute provides a basis
for personal jurisdiction. If so, then [the Court] must determine whether
sufficient minimum contacts exist between the defendant[ ] and [Florida]
so as to satisfy “traditional notions of fair play and substantial justice”
under the Due Process Clause of the Fourteenth Amendment.
Sculptchair, 94 F.3d at 626 (citing Robinson v. Giamarco & Bill, P.C., 74 F.3d 253, 256
(11th Cir. 1996)). Both prongs must be satisfied for personal jurisdiction to exist. Madara
v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
The defendants argue that the Court has no personal jurisdiction over the
defendants because none of the defendants are Florida residents or are subject to
personal jurisdiction in the state. Response at 1 n. 1.
For purposes of the instant Motion, the Court does not need to address whether
it has personal jurisdiction over all of the defendants because, as stated in more detail
21

herein, so long as the Court has personal jurisdiction over one of the defendants, the
Court may enjoin the conduct of that defendant’s “officers, agents, servants, employees,
and attorneys” and “other persons who are in active concert or participation with [those
individuals].” Fed. R. Civ. P. 65(d)(2)(B)-(C). For the reasons stated below, the Court
finds that it has personal jurisdiction over at least, Novus Anti-Aging Center, Inc.
(a.)

Florida Long-Arm Statute

The plaintiff identifies three provisions of the Florida long-arm statute
which it maintains provide jurisdiction over the defendants. The Florida long-arm
statute subjects a non-resident to jurisdiction in Florida for “[c]ommitting a tortious
act within this state.” Fla. Stat. § 48.193(1)(a)(2). It also subjects a nonresident
defendant to jurisdiction in Florida for “[b]reaching a contract in this state by
failing to perform acts required by the contract to be performed in this state.” Id. §
48.193(1)(a)(7). Finally, a non-resident who “[e]nter[s] into a contract that
complies with s. 685.102” is subject to jurisdiction in Florida. Id. §
48.193(1)(a)(9). The Court will address each provision below.
(i.)

A Contract Complying with Fla. Stat. 685.102

The plaintiff argues that the Court has personal jurisdiction over at least some of
the defendants because the GAINSWave™ Membership Agreement (DE# 76-1 at ¶8,
4/19/20) contains a forum selection clause and a waiver of any objections to “venue,
personal jurisdiction or that the forum is not convenient.” Reply at 11. Subsection
(1)(a)(9) of the Florida long-arm statute provides for jurisdiction over a defendant who
“enter[s] into a contract that complies with s. 685.102.” Fla. Stat. § 48.193(1)(a)(9).
22

Section 685.102 of the Florida Statutes states, in part, that:
(1) Notwithstanding any law that limits the right of a person to maintain an
action or proceeding, any person may, to the extent permitted under the
United States Constitution, maintain in this state an action or proceeding
against any person or other entity residing or located outside this state, if
the action or proceeding arises out of or relates to any contract,
agreement, or undertaking for which a choice of the law of this state,
in whole or in part, has been made pursuant to s. 685.101 and which
contains a provision by which such person or other entity residing or
located outside this state agrees to submit to the jurisdiction of the courts
of this state.
Fla. Stat. § 685.102(1) (emphasis added). Section 685.101 states that:
The parties to any contract, agreement, or undertaking, contingent or
otherwise, in consideration of or relating to any obligation arising out
of a transaction involving in the aggregate not less than $250,000, the
equivalent thereof in any foreign currency, or services or tangible or
intangible property, or both, of equivalent value, including a transaction
otherwise covered by s. 671.105(1), may, to the extent permitted under
the United States Constitution, agree that the law of this state will govern
such contract, agreement, or undertaking, the effect thereof and their
rights and duties thereunder, in whole or in part, whether or not such
contract, agreement, or undertaking bears any relation to this state.
Fla. Stat. § 685.101(1) (emphasis added). “[E]ven if the parties to an agreement do not
exchange at least $250,000, § 685.101 may still apply if, an aggregate of more than
$250,000 arises from transactions related to the contract.” Upofloor Americas, Inc. v. S
Squared Sustainable Surfaces, LLC, No. 616CV179ORL37DCI, 2016 WL 5933422, at
*6 (M.D. Fla. Oct. 12, 2016).
The defendants maintain that the plaintiff failed to allege the $250,000 minimum
threshold in the Amended Complaint (DE# 43, 3/18/20) and otherwise cannot meet this
requirement. The plaintiff cites to Dustin Wolff’s video where he discloses earnings of
$22,000 in the first month and Dustin Wolff’s statement to Mark White in April 2018
about earning $150,000 per month. Plaintiff’s Exhibit 17 (DE# 98-1 at 113, 4/23/20);
23

Reply Declaration of Mark White (DE# 87-1 at ¶24, 4/21/20). The defendants insist that
the video was marketing puffery, that GAINSWave leads tapered off due to market
oversaturation and that the $150,000 included all of Novus Anti-Aging Center, Inc.’s
monthly revenue not just the revenue attributable to GAINSWave treatments.
For purposes of the instant motion, the Court does not need to resolve the
parties dispute over the $250,000 minimum threshold because another provision of the
Florida long-arm statute confers personal jurisdiction over Novus Anti-Aging Center, Inc.
(ii.)

Committing a Tortious Act Within Florida

The plaintiff argues that:
Defendants stole SMDS’ confidential business information and trade
secrets from trainings conducted in Florida and from computers located
[in] Florida to market a competing product to customers in Florida, and
caused injury to SMDS in Florida. Defendants thus committed ‘a tortious
act . . . within this state’ under the meaning of Florida’s long-arm statute.
Reply at 12 (quoting Fla. Stat. § 48.193(1)(a)(2)).
In the instant case, Novus Anti-Aging Center, Inc. entered into a contract with a
Florida company and remotely gained access to the plaintiff’s confidential marketing
strategies and other business information. Novus Anti-Aging Center, Inc.’s CEO
(Stephanie Wolff) and president (Dustin Wolff) traveled to Florida in February 2018 to
receive training from the plaintiff. Declaration of Dustin Wolff (DE# 75 at ¶28, 4/17/20).
Dustin Wolff again traveled to Florida in April 2018. During this trip, according to the
plaintiff, Dustin Wolff gained additional insight into the plaintiff’s trade secrets and
marketing strategies and met with Mark White for a business dinner that included
plaintiff’s employees and prospective GAINSWave providers. Reply Declaration of Mark
White (DE# 87-1 at ¶21, 4/21/20); Evidentiary Hearing Transcript (DE# 121 at 90-91,
24

4/28/20). On this trip Dustin Wolff also had a discussion with Mr. White about a handheld device for in-home use. Reply Declaration of Mark White (DE# 87-1 at ¶23,
4/21/20). Approximately a month before this trip, Dustin Wolff met Jon Hoffman and had
discussed this type of product. See Evidentiary Hearing Transcript (DE# 121 at 87,
4/28/20). These actions are sufficient to conclude that Novus Anti-Aging Center, Inc.
committed “a tortious act . . . within this state” under the meaning of section
48.193(1)(a)(2).
(iii)

Breaching a Contract to be Performed in Florida

The plaintiff also argues that the Florida long-arm statute subjects Novus AntiAging Center, Inc. to personal jurisdiction for “[b]reaching a contract in this state by
failing to perform acts required by the contract to be performed in this state.” Fla. Stat. §
48.193(1)(a)(7); Reply at 13.
In Kika M2M LLC v. Pittman, this Court determined that a non-compete provision
which did not include a geographical limitation did not meet the requirement that an act
under the contract be performed in Florida. No. 17-60283-CIV, 2017 WL 7732872, at *4
(S.D. Fla. Sept. 5, 2017). In another case, however, the court noted that “under Florida
law, where a contract is silent as to [the] place of performance, the place of
performance is presumed to be where the plaintiff resides.” Focus Mgmt. Grp. USA, Inc.
v. King, No. 8:13-CV-1696-T-35AEP, 2014 WL 12639960, at *5 (M.D. Fla. May 13,
2014). Thus, a contract with a non-competition provision could meet the performance in
Florida requirement of section 48.193(1)(a)(7) where, as here, the plaintiff is a Florida
resident. However, the defendant in King also “aver[red] that he performed duties under
25

the Employment Agreement throughout the country, including in Florida.” Id. at *6. The
court in King therefore concluded that the case “present[ed] more than a contractual
duty to tender performance to a Florida resident” and “included performing an act in
Florida.” Id. (citation and internal quotation marks omitted).
In any event, the Court does not need to determine whether the GAINSWave™
Membership Agreement required contractual performance in Florida because the Court
has already determined that section 48.193(1)(a)(2) (committing a tortious act within
Florida) applies to the instant case. “If the forum’s long-arm statute provides jurisdiction
over one claim, the district court has personal jurisdiction over the entire case so long
as the claims arose from the same jurisdiction-generating event.” Thomas v. Brown, 504
F. App’x 845, 847 (11th Cir. 2013). Here, the breach of contract claim and the
misappropriation of trade secrets claim all arise from the same events.
(b.)

Due Process

Once the plaintiff provides facts to justify long-arm jurisdiction under the statute,
the Court must consider the constitutional requirements of due process before
exercising personal jurisdiction over a defendant. International Shoe Co. v. Washington,
326 U.S.310, 316 (1945). The Eleventh Circuit has identified the following factors:
First, the defendant must have contacts related to or giving rise to the
plaintiff's cause of action. Second, the defendant must, through those
contacts, have purposefully availed itself of forum benefits. Third, the
defendant's contacts with the forum must be such that it could reasonably
anticipate being haled into court there.
Fraser v. Smith, 594 F.3d 842, 850 (11th Cir. 2010).
The exercise of personal jurisdiction over Novus Anti-Aging Center, Inc. will not
offend traditional notions of fair play and substantial justice. Francosteel Corp. v. M/V
26

Charm, 19 F.3d 624, 627 (11th Cir. 1994). Novus Anti-Aging Center, Inc. entered into a
contract with the plaintiff, a Florida company, and remotely and through in-person
trainings gained access to the plaintiff’s marketing strategies and confidential
information. Through its CEO and president, Novus Anti-Aging Center, Inc., traveled to
Florida where it received training from the plaintiff. Dustin Wolff, Novus Anti-Aging
Center, Inc.’s president, returned to Florida a second time and gained additional insight
into the plaintiff’s marketing strategies. While in Florida, Dustin Wolff engaged in a
conversation with Mark White about a hand-held device for in-home use. Reply
Declaration of Mark White (DE# 87-1 at ¶23, 4/21/20). This conversation took place
after Dustin Wolff had had a similar conversation with Jon Hoffman, the sole inventor of
the Rocket. Therefore, the plaintiff’s claims “arise out of or relate to” Novus Anti-Aging
Center, Inc.’s contacts with the forum. Fraser, 594 F.3d at 850.
Novus Anti-Aging Center, Inc. also “purposefully availed” itself of the privilege of
conducting activities within the forum state. Novus Anti-Aging Center, Inc.’s president
Dustin Wolff traveled twice to Florida where he obtained training and was provided with
the opportunity to observe the plaintiff’s marketing techniques. Dustin Wolff sought
assistance from the plaintiff, a Florida company, with generating additional business
through doctor leads and marketing advice. Reply Declaration of Mark White (DE# 87-1
at ¶24, 4/21/20). Dustin Wolff also sought and obtained assistance from the plaintiff, a
Florida company, in developing a website for an additional cost. Id. at ¶19.
Novus Anti-Aging Center, Inc.’s contacts with Florida were “such that it could
reasonably anticipate being haled into court there. Fraser, 594 F.3d at 850. The
27

Eleventh Circuit has stated that “[t]he key to any constitutional inquiry into personal
jurisdiction is foreseeability.” Sun Bank, N.A. v. E.F. Hutton & Co., 926 F.2d 1030, 1034
(11th Cir. 1991). Here, Novus Anti-Aging Center, Inc. should have foreseen that through
its actions and contacts with the forum, it would be haled into court in Florida.
Additionally, Novus Anti-Aging Center, Inc. entered into the
GAINSWave™ Membership Agreement which contained a forum selection
clause designating Miami-Dade County, Florida as the “mandatory and exclusive
venue and jurisdiction for any proceeding to enforce [the] Agreement.” See
GAINSWave™ Membership Agreement (DE# 76-1 at ¶8, 4/19/20). “Although
forum selection clauses cannot be the sole basis of personal jurisdiction, they are
a factor that weighs in favor of exercising personal jurisdiction over a nonresident defendant where other grounds exist to exercise such jurisdiction.”
Implant Innovations, Inc. v. Reeves, No. 05-81133-CIV, 2006 WL 8433714, at *5
(S.D. Fla. Mar. 29, 2006).
In sum, Novus Anti-Aging Center, Inc.’s contacts with Florida are sufficient
to subject it to Florida’s long-arm statute and the constitutional requirements of
due process are met.
Having determined that the Court has personal jurisdiction over at least one
defendant, Novus Anti-Aging Center, Inc., the Court will now address the likelihood of
the plaintiff’s success on the merits of the misappropriation of trade secrets claim
(Count II) and the breach of contract claim (Count I).

28

ii.

Misappropriation of Trade Secrets

To prevail on a claim for misappropriation of trade secrets under Florida's
Uniform Trade Secrets Act, Fla. Stat. § 688.001 et seq. (hereinafter “FUTSA”), “a
plaintiff must demonstrate that (1) it possessed a ‘trade secret’ and (2) the secret was
misappropriated.” Advantor Sys. Corp. v. DRS Tech. Servs., Inc., 678 F. App'x 839, 853
(11th Cir. 2017) (citing Fla. Stat. § 688.002). The term “‘[t]rade secret’ means any
information (including methods, techniques, or processes) that (a) derives independent
economic value from not being generally known or readily ascertainable and (b) is the
subject of reasonable efforts to maintain its secrecy” and the term “‘[m]isappropriation’
generally means that the secret was acquired by someone who knows or has reason to
know that the secret was improperly obtained or who used improper means to obtain it.”
Id. (citing Fla. Stat. § 688.002(2) and (4)).
(a.)

The Existence of Trade Secrets

The plaintiff identifies as “trade secrets and confidential information” the following
documents and information: “opportunity analyses, unique marketing techniques, sales
strategies, comparison data, pipelines, valuable ‘lead-generation’ strategies,
customer/client lists and data, business plans and training videos.” Motion at 11. The
plaintiff further states that it “developed training courses for physicians and physicians’
assistant groups to provide training – not only in the treatment – but far more
importantly in the sales, marketing and operational aspects of selling the treatment.” Id.
The plaintiff has filed with the Court under seal some of the materials it uses to
train medical providers in marketing the product. See Plaintiff’s Exhibit 28 (DE# 99,
29

4/23/20). The defendants have filed a competing exhibit which shows that much of the
information in Plaintiff’s Exhibit 28 was obtained from other, publicly available sources.
See Defendants’ Exhibit 92 (DE# 105, 4/25/20). The defendants therefore argue that
the plaintiff has failed to establish the existence of a trade secret because the plaintiff’s
marketing techniques are publicly available from other sources.
“Information that is generally known or readily accessible to third parties cannot
qualify for trade secret protection.” Am. Red Cross v. Palm Beach Blood Bank, Inc., 143
F.3d 1407, 1410 (11th Cir. 1998). However, under Florida law, a trade secret “includes
a unique combination of otherwise known components, if the combination differs
materially from other methods known in the trade.” Sun Crete of Fla., Inc. v. Sundeck
Prod., Inc., 452 So. 2d 973, 975 (Fla. 4th DCA 1984). Thus, even if the bases for the
information is publicly available from other sources, a unique compilation of that
information specifically tailored to a particular market may qualify as a trade secret.
Although the defendants have presented evidence that the techniques in the
plaintiff’s marketing documents (Plaintiff’s Exhibit 28) were based, at least in part, on
publicly available, third-party sources, the plaintiff has demonstrated that its marketing
techniques and training programs were tailored to the ED market and to a provider’s
geographic area. For instance, the plaintiff presented evidence that it trained medical
providers in California to market the product in a “sexy” manner and trained medical
providers in Oklahoma to market the product as a marriage enhancer. The plaintiff also
instructed medical providers on how to create “avatars” of their target patients in order
to market GAINSWave treatments.
30

The plaintiff has presented evidence that it expended considerable time and
money in developing its marketing plan and training program. See Declaration of Mark
White (DE# 63-1 at ¶10, 4/7/20) (attesting that Mr. White “devoted nine full months of
planning the business[ ] and spent millions of dollars” developing the GAINSWave
program). These enhancements to the marketing principles found in third-party sources
added economic value to the plaintiff’s marketing techniques and training programs as
evidenced by the early success Novus Anti-Aging Center, Inc. experienced when it
became a GAINSWave provider.11
The plaintiff has also presented evidence that other companies which market inhome ESWT products have not had access to the plaintiff’s marketing techniques and
training and thus, have experienced only limited success. The defendants argue that
this claim is speculative. Response at 15. However, the defendants have not presented
any competing evidence to refute the plaintiff’s assertion. In any event, the Court finds
that Novus Anti-Aging Center, Inc.’s own success is sufficient to support a finding that
plaintiff’s marketing techniques and training programs have economic value beyond the
basic marketing principles and techniques derived from third-party sources.

11

The defendants characterize the statement made by Dustin Wolff in a video in
December 2017 that Novus Anti-Aging Center, Inc. had generated $22,000 in revenue
from GAINSWave treatments shortly after becoming a GAINSWave provider as a
“statement . . . solicited by Plaintiff for use as marketing puffery.” Response at 14.
However, the assertion of $22,000 in revenue was a verifiable, factual statement. See
United States v. Martinelli, 454 F.3d 1300, 1317 (11th Cir. 2006) (describing puffery as
“exaggerated opinions or hyped-up sales pitches” and distinguishing it from “factual
statements that were verifiably refutable”); Thompson v. Procter & Gamble Co., No. 18CV-60107, 2018 WL 5113052, at *2 (S.D. Fla. Oct. 19, 2018) (noting that “[t]he Eleventh
Circuit has found puffery where a representation was ‘not the sort of empirically
verifiable statement that [could] be affirmatively disproven.’”).
31

(b.)

Reasonable Steps to Protect Trade Secrets

The plaintiff has also demonstrated that it took reasonable steps to maintain its
marketing strategies and techniques a secret. The plaintiff required all providers to sign
the Membership Agreement (DE# 76-1, 4/19/20) which contained a restrictive covenant.
The restrictive covenant prohibits providers from creating or marketing sexual wellness
treatments using ESWT or similar technologies:
Physician therefore agrees that during the Term of this Agreement and for
two (2) years after this Agreement ends (the “Restrictive Period”),
Physician will not create any new or different intellectual property
use[d] to market, or participate in any group or collective marketing
program that markets, the treatment of sexual wellness or related
medical conditions using ESWT or similar technologies.
Id. (emphasis added).
The plaintiff also maintained its marketing strategies and training materials in a
password-protected section of its website. See Declaration of Mark White (DE# 63-1 at
¶¶ 30-31 (explaining requirements for accessing the Portal including the requirement
that providers sign the Membership Agreement).
The defendants argue that the plaintiff failed to take reasonable steps to protect
its alleged trade secrets. Response at 13-14. The defendants note that access to the
password-protected Portal “was available to any licensee willing to pay a $2[,]000 setup fee.” Id. at 13. However, the defendants ignore that the plaintiff required every
GAINSWave provider to sign the Membership Agreement containing the restrictive
covenant before gaining access to the Portal. The defendants also note that “Plaintiff
provided Defendant Novus with both a binder and an emailed copy of its written training
materials and training slides, without any restrictions on its use or storage, and without a
32

single page designated ‘Confidential.’” Id. Again, the fact that the plaintiff distributed
documents to Novus Anti-Aging Center, Inc. does not undermine the plaintiff’s
misappropriation of trade secrets claim because Novus Anti-Aging Center, Inc., like
every GAINSWave provider, was bound by the terms of the GAINSWave™ Membership
Agreement.
The defendants further note that: “Plaintiff’s membership agreement does not
reference any trade secret information; does not require members to label any
information used from the Portal as ‘confidential’; and does not restrict the use of any of
its information by the directors, officers or employees of its members.” Response at 13.
The defendants further assert that all confidentiality protections in the restrictive
covenant expire two years after the agreement is terminated:
all confidentiality obligations under the restrictive covenant expire two
years after the termination of the Agreement. [D.E. 43-1, ¶5]. Had Novus
received the information in October 2017 and stopped paying the following
month, the Agreement would permit it to use all information by November
2019, before the filing date of the present lawsuit. Indeed, even after
Plaintiff asserted a trade secret claim against Defendant Novus, Plaintiff
continued to permit Novus access to the allegedly protected portal.
Id. at 13-14.
The defendants ignore the termination clause in the GAINSWave™ Membership
Agreement which states:
TERM & TERMINATION. The initial term of this Agreement is one (1) year
from the Effective Date. This Agreement renews automatically for one (1)
year renewal terms. Together, the initial term and any renewal terms are
the “Term.” This Agreement may be terminated: (a) by mutual agreement
of the parties; (b) by Physician for cause if SMDS does not cure within
thirty (30) days after notice; (c) by SMDS for non-payment that is not
cured within five (5) days after notice; (d) by SMDS for other cause if
Physician does not cure within thirty (30) days after notice; or (e) by
SMDS immediately if SMDS reasonably determines Physician risks the
33

value or reputation of the Intellectual Property or SMDS. When this
Agreement ends, Physician shall immediately: (a) cease using the
Intellectual Property (including protocols) and any derivatives; (b)
return all Intellectual Property, including the Marketing Tool Kit, and
all other [sic].
(DE# 76-1 at ¶5, 4/19/20) (emphasis added). Thus, the defendants are mistaken when
they argue that “[h]ad Novus received the information in October 2017 and stopped
paying the following month, the Agreement would permit it to use all information by
November 2019.” Response at 13.
The defendants also note that they filed some of the plaintiff’s alleged trade
secrets in the public record with objection from the plaintiff. Response at 14. The
defendants cite to two pages they filed as exhibits to an affidavit. The plaintiff has filed
under seal 168 pages which it claims are some, but not all, of its trade secrets. See
Plaintiff’s Exhibit 28 (DE# 99-1, 4/23/20). The unobjected-to publication of two pages by
the defendants does not lead the Court to conclude that the plaintiff has failed to take
steps to protect its trade secrets.
The Court finds that the plaintiff has taken reasonable measures to keep its
marketing strategies and training materials a secret. The plaintiff’s marketing strategies,
training materials and other documents were password protected and only accessible to
individuals who were bound by the terms of the GAINSWave™ Membership
Agreement.
(c.)

Misappropriation of Trade Secrets by the Defendants

In order to prevail on this claim, the plaintiff must also show that its trade secrets
were misappropriated by the defendants. “[FUTSA] defines ‘misappropriation’ to include
‘[a]cquisition of a trade secret of another by a person who knows or has reason to know
34

that the trade secret was acquired by improper means’” such as “‘theft, bribery,
misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or
espionage through electronic or other means.’” Ocean Commc'ns, Inc. v. The Jewelry
Channel, Inc., No. 9:19-CV-81608, 2020 WL 2042393, at *2 (S.D. Fla. Apr. 28, 2020)
(quoting Fla. Stat. § 688.002(1) and (2)(a)). Thus, under FUTSA a trade secret may be
misappropriated through a breach of a duty to maintain secrecy. Id.
The plaintiff argues that “the evidence is clear that Defendants misappropriated
[its] trade secrets” because:
[Dustin] Wolff acquired the trade secrets by agreeing to the terms of
the Membership Agreement and making monthly payments to access the
Portal; and he did so knowing that the agreement contained a restrictive
covenant aimed at protecting SMDS’s business advantages provided by
the development of the proprietary sales and marketing techniques.
[Dustin] Wolff then turned around, shared those secrets with the other
Defendants, and developed, marketed, and sold a competing product
in violation of the terms of the Membership Agreement.
Motion at 12 (emphasis added). The plaintiff argues that the defendants “used . . . [the
plaintiff’s proprietary] techniques to sell the Rocket product” including “target[ing]
SMDS’s customers, influencers and the physician network Plaintiff had developed over
the years to offer the competing Rocket product” and “purchase[d] certain derivatives of
‘GAINSWave’ keywords so that Google searches by potential customers for the product
would instead lead those individuals to the website [Dustin] Wolff had created to sell the
Rocket.” Id. at 6-7.
Mr. White’s declaration attests that “[Dustin] Wolff copied the SMDS marketing
strategy to a tee” and describes the following steps taken by the defendants to market
the Rocket: (1) “solicit[ing] many of [the] same influencers [used by the plaintiff] to
35

promote the Rocket system;” (2) causing additional business disruption and market
confusion” by “utiliz[ing] certain search keywords” such as GAINSWave “to help drive
[internet] traffic and . . . “purchas[ing] those very same keywords to drive traffic to its
business;” (3) “copying, the topline of the GAINSWave website [which] states: ‘Say
Goodbye to Erectile Dysfunction With a Safe and Proven Drug-Free Solution for Men;’"
(4) “using on their Novus website links, features, and videos pulled from the
GAINSWave website” and (5) “cop[ying] and us[ing] GAINSWave terms and conditions,
privacy policy, and treatment description.” Declaration of Mark White (DE# 63-1 at ¶¶6267, 70-72, 4/7/20).
The Court finds that although the plaintiff has shown the existence of trade
secrets and that it took steps to protect those trade secrets, based on the evidence
presented at this juncture, the plaintiff has not shown that the defendants utilized those
trade secrets in marketing the Rocket. The Court notes that none of the examples cited
by the plaintiff constitute trade secrets because they are readily ascertainable
information.
The plaintiff is not the only company to use influencers to promote a product.
Moreover, the identity of the plaintiff’s influencers is public knowledge because anyone
with a search engine can readily discern the individuals who are promoting the
GAINSWave treatment.
Similarly, the defendants’ purchase of keywords, such as “GAINSWave” to drive
internet traffic to the Rocket’s website is not a misappropriation of the plaintiff’s trade
secrets because anyone can purchase keywords. At the evidentiary hearing, Mr. White
36

acknowledged that any medical provider seeking to treat ED would purchase PPC
keywords such as “Viagra” or “Cialis.” Evidentiary Hearing Transcript (DE# 121 at 54,
4/28/20). The purchase of PPC keywords -- including the purchase of the keyword
“GAINSWave” -- is not a trade secret. It is commonly known that businesses purchase
keywords on search engines to become more visible on internet search results. Dustin
Wolff testified that he “ha[d] been doing PPC for over ten years.” Evidentiary Hearing
Transcript (DE# 121 at 16, 4/28/20). The plaintiff has not identified any PPC keywords
which the defendants would not have known, but for their relationship with the plaintiff.12
Lastly, copying a tagline – “Say Goodbye to Erectile Dysfunction With a Safe and
Proven Drug-Free Solution for Men” -- from the GAINSWave website, copying links,
videos and features obtained from the GAINSWave website and copying
“GAINSWave terms and conditions, privacy policy, and treatment description” which are
also listed on the GAINSWave website are not misappropriations of trade secrets. The
plaintiff has not shown that these portions of its website were password-protected.
Information published on the GAINSWave website and publicly available is not a trade
secret. “Information that is generally known or readily available to third parties generally
cannot qualify for trade secret protection under Florida law.” Jadael Inc. v. Elliott, No.
6:05-CV-1623-ORLDAB, 2007 WL 2480387, at *7 (M.D. Fla. Aug. 29, 2007).

12

A defendant’s use of PPC keywords may be a relevant factor in establishing a
“likelihood of confusion as to . . . claims for trademark infringement and false
designation of origin” under the Lanham Act. GhostBed, Inc. v. Casper Sleep, Inc., No.
0:15-CV-62571-WPD, 2018 WL 2213008, at *3 (S.D. Fla. May 3, 2018). However, the
plaintiff has not cited to any cases where a defendant’s use of PPC keywords commonly
known in the industry was a misappropriation of trade secrets.
37

Based on the evidence presented at this juncture in the proceedings, the Court
finds that the plaintiff has not demonstrated a substantial likelihood of success on the
merits of its misappropriation of trade secrets claim because it has not, at this time,
shown the defendants utilized the plaintiff’s trade secrets in marketing the Rocket.
The Court’s finding does not mean that the plaintiff could not, through additional
discovery or otherwise, ultimately prove that the defendants utilized the plaintiff’s trade
secrets in marketing the Rocket. However, at this time and based on the evidence
presented thus far, the Court cannot conclude that the plaintiff has shown a substantial
likelihood of success on the merits of its misappropriation of trade secrets claim.
iii.

Breach of Contract

The plaintiff also seeks a preliminary injunction based on its breach of contract
claim against defendants Dustin Wolff, Stephanie Wolff and Novus Anti-Aging Center,
Inc. Motion at 10.
The defendants argue that the plaintiff will not prevail on its breach of contract
claim because the defendants who are planning to sell the Rocket are not signatories to
the GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20). Response at 16. The
defendants further argue that the plaintiff cannot prevail on its breach of contract claim
against Novus Anti-Aging Center, Inc. because the restrictive covenant in the
GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20) is unenforceable under
Florida law. Id. at 17.
The Court will address these arguments below.

38

(a.)

Parties Subject to the GAINSWave™Membership
Agreement

The defendants argue that only Novus Anti-Aging Center, Inc. is a signatory to
the GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20) and as such, none of
the other defendants are bound by the terms of that contract. Response at 15. The
defendants thus reason that since Dustin Wolff (in his personal capacity) and Stephanie
Wolff were not signatories to the GAINSWave™ Membership Agreement (DE# 76-1,
4/19/20), then liability “does not attach to Wolff Marketing Enterprises LLC or Moon Pool
LLC vicariously through [Dustin Wolff and Stephanie Wolff’s] alleged control of the
corporate Defendants.” Id. at 17.
The plaintiff maintains that it does not matter that not all of the defendants signed
the GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20) because “Florida
courts have not hesitated to enforce noncompete agreements against both the
employee who signed the agreement as well as against the corporation through which
the ex-employee conducted business[.]” Motion at 16 (quoting N. Am. Prod. Corp. v.
Moore, 196 F. Supp. 2d 1217, 1229 (M.D. Fla. 2002) (report and recommendation)
(finding that former employee could not use a “straw man” to avoid obligations under a
non-solicitation agreement and recommending that both the former employee and his
present employer be enjoined from soliciting plaintiff’s customers).
The plaintiff also points to Rule 65(d)(2) of the Federal Rules of Civil Procedure
which allows the Court to enjoin not only the parties, but “the parties’ officers, agents,
servants, employees, . . . . attorneys[ ] and other persons who are in active concert or
participation [with those individuals].” Fed. R. Civ. P. 65(d)(2).
39

The Court finds that the GAINSWave™ Membership Agreement (DE# 76-1,
4/19/20) applies, at the very least, to defendant Novus Anti-Aging Center, Inc.
Additionally, pursuant to Fed. R. Civ. P. 65(d)(2), the Court may enjoin Novus AntiAging Center, Inc.’s agents including Dustin Wolff and Stephanie Wolff and the
companies they control -- Wolff Marketing Enterprises, LLC and Moon Pool LLC -- from
acting in such a manner as to circumvent Novus Anti-Aging Center, Inc.’s obligations
under the restrictive covenant in the GAINSWave™ Membership Agreement (DE# 76-1,
4/19/20).
(b.)

Legitimate Business Interests

To enforce a restrictive covenant, Florida law requires that:
(1) the covenant [be] “set forth in a writing signed by the person against
whom enforcement is sought”; (2) “one or more legitimate business
interests justify[ ] the restrictive covenant”; and (3) the restriction [be]
“reasonably necessary” to protect those legitimate business interests, and
the covenant [be] “reasonable in time, area, and line of business.”
Am. Restaurants Concepts, Inc. v. Beaches Wings & Grill, Inc., No. 3:12-CV-1298-J20TEM, 2013 WL 12129644, at *2 (M.D. Fla. Mar. 27, 2013) (citing Fla. Stat. §
542.335(1)(a)-(c)).
The defendants argue that although Novus Anti-Aging Center, Inc. signed the
GAINSWave™ Membership Agreement (DE# 76-1, 4/19/20), the restrictive covenant in
membership agreement is unenforceable even as to Novus Anti-Aging Center, Inc.
“because Plaintiff has neither proven the existence of a legitimate business interest nor
that enforcement of the restrictive covenant is reasonably necessary to protect any such
interest.” Response at 15.
“Under Florida law, restrictive covenants are enforceable to protect ‘legitimate
40

business interests.’” Hayes Healthcare Servs., LLC v. Meacham, No. 19-60113-CIV,
2019 WL 2637053, at *3 (S.D. Fla. Feb. 1, 2019) (quoting Fla. Stat. § 542.335(1)(b)).
“Valuable confidential and trade information, even if not a trade secret, may constitute a
legitimate business interest.” AutoNation, Inc. v. McMann, No. 17-62250-CIV, 2018 WL
2006868, at *3 (S.D. Fla. Feb. 22, 2018). Examples of legitimate business interests
include:
(i) trade secrets, as defined in Fla. Stat. § 688.002(4); (ii) valuable
confidential business or professional information that otherwise does not
qualify as trade secrets; (iii) customer, patient, or client goodwill
associated with an ongoing business or professional practice, by way of
trade name, trademark, service mark, or “trade dress”; (iv) customer,
patient, or client goodwill associated with a specific geographic location;
and (v) customer, patient, or client goodwill associated with a specific
marketing or trade area.
Am. Restaurants Concepts, 2013 WL 12129644, at *3 (citing Fla. Stat. §
542.335(1)(b)).
In Open Magnetic Imaging, Inc. v. Nieves-Garcia, for example, a Florida
appellate court found a legitimate business interest in marketing training and the
creation of a database:
[The plaintiff]’s marketing representatives, including [the defendant], were
trained to market [the plaintiff]’s services to area doctors, primarily
orthopedists and neurologists. As part of their job, marketing
representatives were expected to compile a database on these physicians
which contained the nature and idiosyncrasies of their practices, as well
as information as to their referral patterns and preferences and which
insurance they accepted. There was evidence that [the plaintiff] had
created this database system as part of its confidential strategic marketing
plan.
826 So. 2d 415, 419 (Fla. 3d DCA 2002) (reversing order denying motion for temporary
injunction).
41

The Court finds that the plaintiff provided specialized marketing training to its
GAINSWave providers and developed marketing strategies tailored to the individual
markets of these providers. As discussed above, the plaintiff spent considerable time
and money developing these marketing strategies. See Declaration of Mark White (DE#
63-1 at ¶10, 4/7/20) (attesting that Mr. White “devoted nine full months of planning the
business[ ] and spent millions of dollars” developing the GAINSWave program). The
evidence presented is sufficient to establish that the plaintiff had a legitimate business
interest which it sought to protect through the restrictive covenant in the GAINSWave™
Membership Agreement.
(c.)

Reasonableness

Restrictive covenants must also be reasonable “with regard to time, area and line
of business.” Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1231 (11th Cir. 2009)
(citing Fla. Stat. § 542.335(1)). In this case, the defendants do not raise any specific
challenges to the two-year time period or the lack of a geographic limitation.
Nonetheless, the defendants do challenge the “business scope” of the restrictive
covenant as being too broad. Response at 17 (stating that the restrictive covenant is
“unenforceable against even Novus because it does not have a clearly defined scope as
to line of business”). The defendants note that:
The Agreement seeks to prevent a licensee from marketing any “treatment
of sexual wellness or related medical conditions using ESWT or similar
technologies.” [D.E. 62, p. 4]. Plaintiff’s Answer in the 2019 Georgia
lawsuit admits that ESWT “is a very broad term that can be used to refer
to any type of Shockwave Therapy” and “is the functional equivalent of
using the term “surgery” to describe a heart transplant procedure, instead
of the more specific concept of cardiac transplant surgery.” Ex. 7, ¶9.
Here, Plaintiff seeks to expand that broad scope even further, to include
42

“similar technologies,” without defining or even offering any guidance as to
what constitutes “similar technology” in this field, much less its legitimate
business interest in extending the restrictive covenant to marketing any
such treatment.
Id.
The defendants further argue that the plaintiff and the defendants target different
markets. Response at 17 (citing letter of interest (“LOI”) drafted by the plaintiff as
evidence that the “mass consumer market and [the] professional market are two distinct
markets with different needs”).
The Court finds, based on the evidence presented by the plaintiff, that the
restrictive covenant in the GAINSWave™ Membership Agreement (DE# 76-1 at ¶6,
4/19/20) is reasonably necessary to protect the plaintiff’s legitimate business interests.
The lack of a geographical limitation does not render the restrictive covenant
unreasonable because it does not prohibit all competition. “[A] relatively narrow
restriction . . . is not invalid because it fails to contain a geographic limitation.” Envtl.
Servs., Inc. v. Carter, 9 So. 3d 1258, 1264 (Fla. 5th DCA 2009). Here, the restrictive
covenant only prohibits sexual wellness treatments using ESWT or technologies similar
to ESWT:
Physician . . . agrees that during the Term of this Agreement and for two
(2) years after this Agreement ends (the “Restrictive Period”), Physician
will not create any new or different intellectual property use[d] to market,
or participate in any group or collective marketing program that markets,
the treatment of sexual wellness or related medical conditions using
ESWT or similar technologies.
GAINSWave™ Membership Agreement (DE# 76-1 at ¶6, 4/19/20) (emphasis
added).
The defendants take issue with the phrase “similar technologies.” Response at
43

17. However, the plaintiff has introduced evidence that the Rocket uses ESWT
technology. See Declaration of Mark White (DE# 63-1 at ¶61, 4/7/20) (describing the
Rocket as “using the same or very similar ESWT technology used by GAINSWave”).
Thus, the “similar technologies” phrase is not at issue for purposes of the instant
Motion.13
The restrictive covenant is also reasonably limited in time -- two years after the
termination of the GAINSWave™ Membership Agreement. See Sentry Ins. Co. v. Dunn,
411 So.2d 336 (Fla. 5th DCA 1982) (finding two-year non-compete provision with no
geographic limitation reasonable where former employee was only prohibited from
serving plaintiff’s customers).
Having determined that the restrictive covenant in the GAINSWave™
Membership Agreement (DE# 76-1 at ¶6, 4/19/20) is enforceable under Florida law, the
Court will address the substantial likelihood of the plaintiff’s success on the merits of the
breach of contract claim as to Novus Anti-Aging Center, Inc.
“The elements of a breach of contract action are (1) a valid contract; (2) a
material breach; and (3) damages.” Beck v. Lazard Freres & Co., LLC, 175 F.3d 913,
914 (11th Cir. 1999) (citing Abruzzo v. Haller, 603 So.2d 1338, 1340 (Fla. 1st DCA
1992)). The plaintiff has shown the existence of a valid contract, the GAINSWave™

13

In any event, the remedy for an overbroad restriction (which this is not) is to narrow
the scope of the restriction, not to strike down the contractual provision in its entirety.
See Envtl. Servs., Inc., 9 So. 3d at 1262 (stating that “[i]f the restraint is overbroad or
unreasonable, the court shall modify the restraint and grant only the relief reasonably
necessary to protect such [legitimate business] interest or interests.”).
44

Membership Agreement (DE# 76-1, 4/19/20). The plaintiff has also shown that Novus
Anti-Aging Center, Inc., through its agents Dustin Wolff and Stephanie Wolff, materially
breached the restrictive covenant by marketing and selling the Rocket, a device using
ESWT technology in violation of the GAINSWave™ Membership Agreement (DE# 76-1,
4/19/20). The plaintiff has also shown damages stemming from that breach as will be
discussed in the section addressing irreparable injury.
At this juncture in the proceedings and based on the evidence presented, the
Court finds that the plaintiff has met its burden of showing a substantial likelihood of
success on the merits of its breach of contract claim at least as to Novus Anti-Aging
Center, Inc.
B.

Irreparable Injury

The Eleventh Circuit has held that merely because “a noncompetition agreement
is enforceable does not necessitate the conclusion that its breach will cause . . .
irreparable harm.” TransUnion Risk & Alternative Data Sols., Inc. v. Challa, 676 F. App’x
822, 826 (11th Cir. 2017). The plaintiff must also show irreparable injury if injunctive
relief is not granted.
To establish irreparable injury, the plaintiff must show that it will suffer an injury
for which the plaintiff cannot be adequately compensated if, at some later point in time,
it prevails on the merits. United States v. Jefferson Cnty., 720 F.2d 1511, 1520 (11th
Cir. 1983) Ne. see also Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of
Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (explaining that “[a]n injury is
‘irreparable’ only if it cannot be undone through monetary remedies.”).
45

The plaintiff notes that the GAINSWave™ Membership Agreement stipulates to
irreparable harm: “Physician agrees that its breach of this Agreement would damage
SMDS irreparably and that money damages would not be sufficient to compensate
[Plaintiff].” Motion at 8 (quoting GAINSWave™ Membership Agreement (DE# 76-1 at
¶8, 4/19/20)). 14 The plaintiff also notes that under Florida law, “a ‘violation of an
enforceable restrictive covenant creates a presumption of irreparable injury to the
person seeking enforcement of a restrictive covenant.’” Id. (citing Fla. Stat. §
542.335(1)(j)).
In addition to the contract language and the aforementioned statutory
presumption, the plaintiff argues that the marketing and sale of the Rocket has caused it
actual irreparable harm because “[t]he number of doctors signing up for SMDS’s
services has dropped precipitously since Wolff began marketing the Rocket.” Motion at
7; id. at 9 (describing how some potential leads have indicated that they would be opting
for the Rocket); id. at 10 (“[s]ince Defendants launched the Rocket, the rate at which
SMDS was signing up doctors has dropped by 50%, and the rate at which doctors are
‘dropping’ GAINSWave has increased more than 100%.”).

14

It is unclear whether a party can stipulate to irreparable harm in a contract. At least in
the context of a non-compete agreement between an employer and an employee, one
Florida appellate court found that an employer had to prove irreparable harm because
an employee could not stipulate away a statutory requirement to obtaining injunctive
relief. Spencer Pest Control Co. of Florida, Inc. v. Smith, 637 So.2d 292, 292-293 (Fla.
5th DCA 1994). In the instant case, the Court does not need to resolve this issue, and
will not rely on any presumption, because the plaintiff has presented evidence of actual,
irreparable harm.
46

The plaintiff also argues that monetary damages are inadequate because they
would not “bring back the physicians who stopped paying for access to the Portal or
who chose not to sign up for SMDS’ membership because of [Dustin] Wolff’s breaches.”
Motion at 10. Lastly, the plaintiff points out that non-party Jon Hoffman told the plaintiff,
““we know the Rocket [will] hurt your business.’” Id. at 9 (quoting Declaration of Mark
White (DE# 63-1 at ¶81, 4/7/20)).
The defendant argues that the plaintiff misapplies the law “by equating the
breach of an enforceable restrictive covenant with the presence of irreparable injury.”
Response at 12. However, the plaintiff’s assertion of irreparable injury is not based
solely on a contract provision and a statutory presumption. The defendants further
argue that the plaintiff cannot show irreparable harm because the plaintiff has failed to
show a legitimate business interest. Id. at 4-8. For the reasons discussed above, the
Court has already determined that the plaintiff has established the existence of a
legitimate business interest sufficient to support its breach of contract claim.
The defendants further insist that they are not competitors of the plaintiff:
Plaintiff is a marketing company selling physicians a marketing plan to
entice men suffering from erectile dysfunction into buying high-priced
treatment packages. Plaintiff has been prohibited from selling devices by
the federal Food and Drug Administration. By contrast, Defendant Moon
Pool sells the Rocket, an FDA registered therapeutic device to
consumers seeking a low-cost home-based system. Although the
companies’ markets are related, they are not competitors, and
Defendants’ should not be enjoined from creating a new market that
Plaintiff lacks the capacity to develop or exploit.
Response at 2 (emphasis added). The defendants cite to the letter of interest (“LOI”)
drafted by the plaintiff which states that:

47

Defendant Moon Pool “has developed a home use low intensity
shockwave treatment (LIST) known as the ‘Rocket’ intended for the mass
market consumer segment marketed directly to consumers as an
alternative to visiting a provider” and the “mass consumer market and
professional market are two distinct markets with different needs.”
Id. at 9.
Notwithstanding these statements, the plaintiff has presented evidence of
patients who consulted with a GAINSWave provider and expressed their intent to use
the Rocket instead. Motion at 7, 10. The Court finds there is sufficient evidence to
conclude that the marketing and sale of the Rocket will irreparably harm the plaintiff’s
business.
The defendants also argue that the plaintiff’s evidence of irreparable harm based
on a decline in new provider sign-ups and loss of existing providers is “completely
speculative.” Response at 10. The defendants suggest that the plaintiff’s loss of
GAINSWave providers is likely due to the plaintiff’s oversaturation of its markets. Id. at
11 (citing Novus Anti-Aging Center, Inc.’s own complaints to the plaintiff about receiving
only three leads from the plaintiff’s website in August 2018 and the deposition of Dr.
Richard Gains regarding complaints of oversaturation in California, Georgia, New
Jersey and Texas). The defendants also attribute the plaintiff’s alleged business losses
to the plaintiff’s attempts at seeking to enforce an unenforceable patent, the ‘127 Patent.
Id. Again, the plaintiff provided concrete examples of patients who consulted with a
GAINSWave provider and opted to purchase the Rocket. Motion at 7, 10.
The plaintiff has shown an irreparable injury with respect to its breach of contract
claim. Novus Anti-Aging Center, Inc. entered into a restrictive covenant which prohibited
it from “creat[ing] any new or different intellectual property use[d] to market, or
48

participate in any group or collective marketing program that markets, the treatment of
sexual wellness or related medical conditions using ESWT or similar technologies.”
GAINSWave™ Membership Agreement (DE# 76-1 at ¶6, 4/19/20). The plaintiff has
presented evidence that the Rocket uses ESWT technology. See Declaration of Mark
White (DE# 63-1 at ¶61, 4/7/20) (describing the Rocket as “using the same or very
similar ESWT technology used by GAINSWave”). The plaintiff has also presented
evidence that some of its GAINSWave providers have lost patients because of the
Rocket. Motion at 9 (describing how some potential leads have indicated that they
would be opting for the Rocket). The Court further finds that the plaintiff will continue to
lose providers and prospective providers because the defendants have indicated that,
absent an injunction, they intend to continue to market and sell the Rocket.
The defendants claim that any injury to the plaintiff is not irreparable because
that injury can be addressed through money damages. Response at 11. The defendants
argue that the plaintiff’s damages are quantifiable because a decline in new provider
sign-ups or loss of existing providers equals a drop in the plaintiff’s revenue. However,
the damages identified by the plaintiff are not easily quantifiable such that a monetary
judgment would redress the damage to the plaintiff’s business. See Osmose, Inc. v.
Viance, LLC, 612 F.3d 1298, 1320 (11th Cir. 2010) (recognizing loss of goodwill and
market position as irreparable harm).
The defendants also argue that the plaintiff’s claim of irreparable injury “is belied
by [the plaintiff’s] failure to timely assert its breach of contract and trade secret claims.”
Response at 8. Specifically, the defendants note that the plaintiff “delayed filing its claim
49

for breach of contract by almost five months and its claim for misappropriation of trade
secrets by almost seven months.” Id. (emphasis in original). The defendants also note
that on March 5, 2020, “Plaintiff’s CEO Mark White, while negotiating a resolution
and seeking to pressure Defendant’s [sic] into going into business with Plaintiff on the
Rocket, told Defendant Dustin Wolff not to worry about the repeated delays in
communication because Plaintiff’s attorney had assured him, “we have enough time and
we could always push the case back if we need to.” Id. at 9 (emphasis added).
Generally, “a party’s failure to act with speed or urgency in moving for a
preliminary injunction . . . undermines a finding of irreparable harm.” Wreal, LLC v.
Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016). In the instant case, at least
part of the delay in filing the lawsuit (and seeking injunctive relief) is attributable to the
parties’ discussions of “a possible joint venture.” Reply at 8. In any event, the Court
does not find the, at most, seven-month delay to be unreasonable. See BellSouth
Advert. & Publ'g Corp. v. Real Color Pages, Inc., 792 F. Supp. 775, 785 (M.D. Fla.
1991) (finding that “Plaintiff’s delay of seven to eight months [was] not an unreasonable
amount of delay, and [did] not necessitate the preclusion of a finding of irreparable
injury.”).
In sum, the plaintiff has shown actual, irreparable harm with respect to its breach
of contract claim.
C.

Balancing of Harms

The plaintiff argues that the balancing of harms favors the issuance of an
injunction because “the loss of SMDS’s very business and ability to operate in the
50

future” is at stake and any injury to the defendant is “self-inflicted.” Motion at 17. The
defendants maintain that they have not caused any harm to the plaintiff. Response at 18
(stating that “Plaintiff’s injuries were caused by Plaintiff’s own greed, in oversaturating
each of its markets, and its malfeasance, in participating in a scheme to defraud
[GAINSWave providers] by charging for a license to a patent that Plaintiff admits is
unenforceable.”). The defendants further state that “[t]he imposition of a preliminary
injunction in this case will deny millions of patients who could not otherwise afford
therapeutic treatment for erectile dysfunction” and would further the plaintiff’s improper
goal of ‘“completely shut[ting] down’ the Defendants’ businesses.” Id.
The plaintiff has shown that it will continue to experience a decline in new
GAINSWave providers and a loss of existing GAINSWave providers if an injunction is
not issued. On the other hand, the defendants will experience significant business
disruptions if an injunction is issued. However, disruptions to the defendants’ business
stem from Novus Anti-Aging Center, Inc.’s breach of the restrictive covenant. Therefore,
the balancing of harms weighs in favor of an injunction. See JTH Tax, Inc. v. Abikarram,
No. 19-CV-60328, 2019 WL 2254816, at *4 (S.D. Fla. Mar. 22, 2019) (finding that the
balancing of harms favored the issuance of an injunction, in part, because “it [was] likely
that Defendants’ harms [were] self-inflicted, and stem[med] from the operation of an
illegitimate business.”).
D.

Public Interest

The Court should also consider whether an injunction, if issued, will disserve the
public interest. The plaintiff argues that the “public interest favors the enforcement of the
51

restrictive covenant contained within the Membership Agreement because such
enforcement encourages parties to adhere to contractual obligations.” Motion at 19. The
defendants maintain that the issuance of an injunction in the instant case would not
serve the public interest because “there are no trade secrets to protect and the asserted
restrictive covenant is unenforceable.” Response at 18.
This prong weighs in favor of the issuance of an injunction. It is well-settled that
public policy favors the enforcement of reasonable restrictive covenants. See Fla. Stat.
§ 542.335; AutoNation, Inc. v. O’Brien, 347 F. Supp. 2d 1299, 1308 (S.D. Fla. 2004).
Having found the restrictive covenant in the GAINSWave™ Membership Agreement
(DE# 76-1 at ¶6, 4/19/20) to be reasonable and given that public policy favors the
enforcement of reasonable restrictive covenants, the Court concludes that the issuance
of a preliminary injunction will not harm the public interest. See Office Depot, Inc. v.
Babb, No. 20-CV-80407, 2020 WL 1306984, at *4 (S.D. Fla. Mar. 19, 2020) (noting that
“[w]hen freely bargained for, agreed to, and executed, covenants not to compete are in
the public interest and necessary to encourage business expansion and growth.”).
II.

Scope of the Injunction
Having determined that the plaintiff is entitled to the issuance of a preliminary

injunction on its breach of contract claim against Novus Anti-Aging Center, Inc., the
Court must define the scope of the injunction. The plaintiff seeks an injunction which
prohibits:
Defendants Dustin and Stephanie Wolff, Wolff Marketing Enterprises,
LLC, Novus Anti-Aging Center, Inc., and Moon Pool LLC, in addition to
each of their respective agents, brokers, intermediaries, servants,
employees, representatives, contractors, principles, members, affiliates,
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successors-in-interest, or anyone acting on each of their behalves, at their
direction, or in concert with any of them, from the following:
a.) offering, marketing, promoting, or introducing the Rocket
product for sale;
b.) offering any product that utilizes ESWT for any form of
treatment, including erectile dysfunction and other related ailments;
c.) utilizing in any way Plaintiff’s proprietary trade secrets, as
discussed herein;
d.) contacting any influencers, customers, or GAINSWave affiliates;
and
e.) using “keywords” associated with GAINSWave, SMDS, or any
affiliates.
Motion at 20-19.
The Court finds that some of the injunctive relief sought by the plaintiff is
too broad. The Court will enjoin Novus Anti-Aging Center, Inc. and -- consistent
with Fed. R. Civ. P. 65(d) -- Novus Anti-Aging Center, Inc.’s “officers, agents,
servants, employees” and “other persons who are in active concert or
participation with [those individuals ]” from: (a.) offering, marketing, promoting, or
introducing the Rocket for sale; (b.) participating in any marketing program that
markets any product that utilizes ESWT for the treatment of sexual wellness or
related medical conditions and/or (c.) utilizing in any way the plaintiff’s proprietary
trade secrets and confidential marketing information. These individuals and entities
will also be enjoined from fulfilling any pre-orders or orders for the Rocket. The

Court’s injunction applies to Novus Anti-Aging Center, Inc. and all of the named
defendants, DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING
ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC., MOON POOL LLC
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d/b/a Launch Medical and/or their agents, because they are individuals or entities
described in Fed. R. Civ. P. 65(d)(2)(B) or (C).15
The Court is also cognizant of the two-year limitation in the GAINSWave™
Membership Agreement (DE# 76-1 at ¶6, 4/19/20). In the instant case, there is a
dispute over whether Dustin Wolff terminated the GAINSWave™ Membership
Agreement (DE# 76-1, 4/19/20) in November 2018. Declaration of Dustin Wolff
(DE# 75 at ¶45, 4/17/20). Therefore, if the preliminary injunction is still in place,
at that time the defendants may move to lift the injunction provided they can
establish record evidence of the November 2018 termination.
III.

Posting of a Bond
Having determined that the issuance of a preliminary injunction is warranted in

the instant case, the Court must next address whether the plaintiff should be required to
post a bond.
The defendants state that if the Court issues an injunction, a bond of at least
$945,000 is necessary given Moon Pool LLC’s various financial obligations including
“non-refundable contracts.” Response at 19. The plaintiff argues that no bond is
required because “[t]he financial numbers provided in Defendants’ Response all flow
from [Dustin] Wolff’s breach of the contract and his misappropriation of Plaintiff’s trade

15 The injunction will not prohibit non-party Jon Hoffman from independently marketing and

selling the Rocket under a different name with no involvement from the named defendants
DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING ENTERPRISES, LLC,
NOVUS ANTI-AGING CENTER, INC., MOON POOL LLC d/b/a Launch Medical and/or their
agents and without reliance on any marketing strategies or other marketing information
learned from DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING
ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC. and MOON POOL LLC d/b/a
Launch Medical and/or their agents.
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secrets” and the “posting of a large bond – such as the $945,000 Defendants request –
would effectively allow those Defendants to recoup ‘losses’ they were never entitled to
in the first place.” Reply at 10.
Rule 65(c) of the Federal Rules of Civil Procedure provides that:
(c) Security. The court may issue a preliminary injunction or a temporary
restraining order only if the movant gives security in an amount that the
court considers proper to pay the costs and damages sustained by any
party found to have been wrongfully enjoined or restrained. The United
States, its officers, and its agencies are not required to give security.
Fed. R. Civ. P. 65(c). “[I]t is well-established that the amount of security required by
[Rule 65(c)] is a matter within the discretion of the trial court . . . [, and] the court may
elect to require no security at all.” BellSouth Telecommunications, Inc. v. MCIMetro
Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005) (internal
quotations omitted; some alterations in original)).
Jon Hoffman’s declaration lists $400,000 for the salaries of nine employees and
$50,000 in costs associated with “workers compensation, disability insurance,
unemployment insurance, and providing assistance in seeking new employment when
terminating the services of these employees.” Declaration of Jon Hoffman (DE# 69-2 at
¶84a, 4/17/20). The bond does not need to include both employee salaries and the cost
of assisting those employees in obtaining new jobs. The bond need only include the
$50,000 in costs. Mr. Hoffman also states that Moon Pool LLC incurred “$200,000 in
tooling, manufacturing and building the supply chain for the [Rocket]” and “has
committed an additional $485,000 in nonrefundable contracts to further develop the
manufacturing and supply chain for different components of the device for 2020.” Id. at
¶84b. The bond should only include the $485,000 for future expenditures because
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Moon Pool LLC has already incurred the $200,000 in building its supply chain and will
presumably be able to reap the benefits of that investment if the injunction is lifted.
Moon Pool LLC also anticipates “at least $100,000 in investment at the end of the
injunction to restore its place in the marketplace” and $60,000 in insurance premiums
which have already been paid. Id. at ¶84(c)-(d). Mr. Hoffman does not specify what the
insurance premiums are for (for instance, liability insurance would still have value
irrespective of an injunction) or that Moon Pool LLC could not terminate those insurance
policies and receive a refund for any unearned premium.
“[T]he purpose of the bond is to compensate the costs and damages sustained
by any party found to be wrongfully restrained by the temporary restraining order or
preliminary injunction.” HPC US FUND 1, L.P. v. Wood, No. 13-61825-CIV, 2014 WL
12496559, at *2 (S.D. Fla. May 9, 2014). The Court finds that a bond in the amount of
$635,000.00 ($50,000 for employee assistance plus $485,000 for future supply chain
costs and $100,000 in post-injunction investments) is appropriate.
CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED as follows:
1.

The Motion for Preliminary Injunction (DE# 62, 4/6/20) is GRANTED in part

and DENIED in part.
2.

Defendants DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING

ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC. and MOON POOL LLC d/b/a
Launch Medical, in addition to each of their respective agents, brokers, intermediaries,
servants, employees, representatives, contractors, principles, members, affiliates,

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successors-in-interest, or anyone acting on each of their behalves, at their direction, or in
concert with any of them, are enjoined from:
a.) offering, marketing, promoting, or introducing the Rocket for sale;
b.) participating in any marketing program that markets any product that
utilizes ESWT for the treatment of sexual wellness or related medical conditions
and/or
c.) utilizing in any way the plaintiff’s proprietary trade secrets and confidential
marketing information.
3.

Defendants DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING

ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC. and MOON POOL LLC d/b/a
Launch Medical and/or their agents are enjoined from fulfilling any pre-orders or orders for
the Rocket.
4.

This injunction does not prohibit non-party Jon Hoffman from independently

marketing and selling the Rocket under a different name with no involvement from the
named defendants DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF MARKETING
ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC., MOON POOL LLC d/b/a
Launch Medical and/or their agents and without reliance on any marketing strategies or
other marketing information learned from DUSTIN WOLFF, STEPHANIE WOLFF, WOLFF
MARKETING ENTERPRISES, LLC, NOVUS ANTI-AGING CENTER, INC. and MOON
POOL LLC d/b/a Launch Medical and/or their agents. It is further

ORDERED AND ADJUDGED that any of the defendants may move this Court to
lift the injunction if it is still in effect on November 1, 2020. Any motion shall be

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supported by record evidence that the GAINSWave™ Membership Agreement (DE# 761, 4/19/20) was terminated in November 2018.
DONE AND ORDERED in Chambers at Miami, Florida this 6th day of May,
2020.
JOHN J. O’SULLIVAN
CHIEF UNITED STATES MAGISTRATE JUDGE

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