Johnson Controls Inc v. Guidry et al

Filing 49

MEMORANDUM RULING denying 2 Motion for Preliminary Injunction. Signed by Magistrate Judge C Michael Hill on 7/9/10. (crt,Roaix, G)

J o h n s o n Controls Inc v. Guidry et al

D o c . 49

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA J O H N S O N CONTROLS, INC. VS. L Y L E GUIDRY, ET AL. * * * C I V I L NO. 6:10-0080 MAGISTRATE JUDGE HILL B Y CONSENT OF THE PARTIES

M E M O R A N D U M RULING B e f o re the court is the Motion for Preliminary Injunction filed by plaintiff, Johnson C o n tro ls, Inc. ("JCI").1 [rec. doc. 2]. The defendants, Air Plus, LLC ("Air Plus"), Lyle G u id ry ("Guidry") and Anthony Richard ("Richard"), filed Opposition. [rec. doc. 31]. A h e a rin g on the Motion was held on April 8, 2010 and the Motion was taken under advisement p e n d in g Post-Hearing briefing in which the parties were to specifically address the following: (1 ) what each party contends constitutes, or does not constitute, a JCI trade secret, intellectual p ro p e rty and confidential information; (2) the effect, if any, of the lack of a non-compete a g re e m e n t with defendant Richard; (3) the remedy sought as to each party, specifically a d d re ss in g the relief sought against Air Plus, which is not a signatory to any agreement with J C I; (4) why, or why not, monetary damages is not an adequate remedy for the injuries alleged b y JCI; (5) the effect, if any, of the lack of a specific and defined geographical limitation in d e f en d a n t Guidry's non-compete agreement; and (6) the legal effect, if any, of the lack of e v id e n c e that either defendant Richard or Guidry directly supervised any JCI employee, who le f t JCI. [rec. doc. 42]. The parties have filed their Post-Hearing Briefs. [rec. docs. 46 and

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JCI's request for a Temporary Restraining Order has been withdrawn. [See rec. doc. 19].

Dockets.Justia.com

4 8 ] . This Ruling follows. B y the instant Motion, JCI seeks a preliminary injunction against each defendant. More s p e c if ic a lly, as set forth in JCI's Post-Hearing Brief,2 JCI seeks to enjoin Guidry from p e rf o rm in g any services for Air Plus with respect to existing or potential JCI customers he s e rv e d or solicited while a JCI employee and from soliciting JCI employees for employment w ith Air Plus through September 17, 2010; JCI seeks to enjoin Guidry and Richard from d is c lo s in g and otherwise accessing, using or relying upon JCI's confidential information and tra d e secrets, purportedly its customer list, customer maintenance information and margins th ro u g h September 17, 2011. JCI additionally seeks an order requiring Air Plus to disgorge a n y profits it has made by allegedly improperly using JCI's trade secrets and confidential in f o r m a tio n . For the following reasons, the motion for preliminary injunction is denied. F A C T U A L BACKGROUND B o th Guidry and Richard were account representatives (salespersons) for JCI. Richard b e g a n his employment with Berg Mechanical in 2001 as a field technician and was thereafter p ro m o te d to project manager in 2003. After JCI bought Berg Mechanical in 2006, through a s to c k purchase agreement, he became a salesperson. As a salesperson, he sold service c o n tra c ts (Plan Service Agreements - PSA's) mainly for HVAC repairs targeting commercial b u ild in g s as his customer base. Guidry began his employment with JCI on November 1, 2007.

To the extent that other relief may have been suggested by the original Motion, given this court's specific in s tr u c tio n s as to the content of the Post-Hearing briefs, including a discussion of the remedy sought as to each d e fe n d a n t, the court will address only those items set forth in JCI's Post-Hearing brief, which presumably conforms to the evidence JCI believes was presented at the evidentiary hearing.

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P r io r to his start date, on October 29, 2007, Guidry signed a JCI Employment Agreement (the " A g re e m e n t" ), which contained confidentiality, employee tampering and non-competition c la u s e s . The confidentiality clause provides that "for the term of [his] employment and th e re a fte r, as long as the information remains confidential or proprietary," Guidry "shall not d is c lo s e to others, copy or use, except as authorized by Johnson Controls, any confidential or p ro p rie ta ry information of Johnson Controls or its subsidiaries and affiliates . . . concerning a n y aspect of the business of Johnson Controls that [he] may acquire or originate during [his] em p loym en t." The Agreement does not define the term "confidential or proprietary in f o rm a tio n ." T h e employee anti-tampering clause provides that during, and for one year after his p e rio d of employment, Guidry will not "solicit, induce or recommend that any Johnson C o n tro ls employees, whom [he] supervised or about whom [he] received confidential in f o rm a tio n , seek employment with any company competitive with the Controls Group of J o h n s o n Controls." The term "Controls Group" is not defined in the Agreement, nor is the te rm "confidential information". The non-competition clause provides that for a period of one year following the date of G u i d ry' s termination, he "will not perform services directly or indirectly in or for a business c o m p e titiv e with Johnson Controls, with respect to: 1) existing Johnson Controls customers or p o te n tia l customers served or solicited by [him] or someone under [his] supervision while [he] w a s a Johnson Controls employee, and/or 2) potential customers who within the last 9 months 3

o f employment received or were about to receive proposals from any employee of Johnson C o n tro ls with whom I had contact." The Agreement contains no geographical boundaries whatsoever; no specific parishes (c o u n tie s ) are identified by name, or referenced in any attachments to the Agreement. Moreover, the Agreement contains no severability clause, but rather contains a clause m a n d a tin g that the Agreement "not be modified or terminated in whole or in part, except by an in s tru m e n t in writing signed by an officer or other authorized executive of Johnson Controls." T h a t same date, October 29, 2007, Guidry also signed an Employee Intellectual P r o p e rty and Confidentiality Agreement which contains a confidentiality clause which p r o v i d e s that Guidry "shall not disclose to anyone, other than may be required by [his] e m p lo ym e n t or may be authorized in writing by JCI, nor use for the benefit of [him]self or o th e rs , any item of Intellectual Property which is confidential or proprietary to JCI, and that [ h e ] may acquire or originate during [his] employment and that relates to any aspect of the b u s in e ss of JCI . . . ." "Intellectual Property" is defined in the Agreement as "inventions, whether patentable o r unpatentable, and any works or authorship including but not limited to computer programs . . . which were made or conceived by me, either solely or jointly, during the term of my e m p lo ym e n t and relating to the current and reasonably anticipated business of JCI . . . ." The A g re e m e n t further provides that "[t]he definition of Intellectual Property, as used in this A g re e m e n t, shall also include any data or information however embodied or created

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irre sp e c tiv e of whether in human or machine readable form, concerning any aspect of the b u s in e s s of JCI." R ic h a rd did not sign a JCI Employment Agreement. Thus, he is not subject the nonc o m p e titio n or employee tampering provisions. However, on June 13, 2006, Richard signed an E m p lo ye e Intellectual Property and Confidentiality Agreement which contains a confidentiality c la u s e identical to that signed by Guidry. Both Guidry and Richard resigned from JCI effective September 11, 2009; notice was g iven by email sent on September 10, 2009 after 5:00 p.m. On September 10, 2009, Richard e m a iled a document entitled "Lafayette PM Master with renewal dates Rev 04 01 08.xls" to his w if e . The document contained a customer list, which, according to Richard, was outdated as m o re than half of the companies on the list were no longer JCI customers. Richard designated th e s e former customers on the list by highlighting their names on the document. Richard testified that he emailed the document to his wife to chronicle the downfall of J C I in the event that JCI later questioned his reason for leaving. Richard also emailed another sim ilar document to his wife with a handwritten notation "Canceled document". Both d o c u m e n ts list customer preventative maintenance or PSA contract renewal dates. No evidence was presented to establish that Air Plus performed any work for any of the c u sto m e rs on either list. Moreover, Richard testified that the documents were of no use to him b e c au s e they did not contain information on the scope of work performed for the customer or th e type of equipment the customer had. At the request of JCI, Richard destroyed all copies of

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th e se documents and removed them from his computer. Prior to their destruction, Richard did n o t provide a copy of these documents to anyone other than his counsel. P r io r to their departure from JCI, on August 18, 2009, Guidry and Richard filed A rtic le s of Incorporation for Air Plus, LLC, a company owned 50% by each. Air Plus p ro v id e s air conditioning service, repair and maintenance, including HVAC work, and, as s u c h , according to Guidry, is a competitor of JCI with respect to mechanical HVAC work. Guidry testified, however, that Air Plus responds to calls; it has no long term contract c u sto m e rs as does JCI. By September 10, 2009, Air Plus had an email address, and by S e p tem b e r 25, 2009, Air Plus had its own letterhead and proposals were being sent to p ro s p e c tiv e customers, one of which was the Iberia Parish School Board. Air Plus began doing w o rk for customers in mid-November, 2009. At the time Guidry and Richard resigned, Michele Albarado was employed by JCI as a p ro je c t coordinator, on the "project side" of the company. Both Guidry and Richard were on th e "service side" of the company and neither supervised her. Albarado's duties included in v o ic in g customers, accounts payables and accounts receivable. The day that Guidry and R ic h a rd resigned, Albarado testified that, as they were packing their belongings, she was called to Richard's office, at which time they (Richard and Guidry) asked her if she would be in te re ste d in working for them; she replied that she would. Accordingly, Albarado left JCI and w e n t to work for Air Plus about a month and a half later as the office manager; in this capacity s h e does bookkeeping, invoicing, accounts payable and accounts receivable. Before she went

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to work for Air Plus, Albarado testified that she had contact with both Guidry and Richard with re g a rd to her employment. Air Plus also currently employs five former JCI technicians - Seth Melancon (who p re v io u s ly did work on behalf of JCI for Quality Assured Plating), Dennis Guidry (who p rev iou sly did work on behalf of JCI for the Iberia Parish School Board), Gary Odom, Terry H a rg ra v e , and Kevin McRae. With respect to Melancon, Richard testified that he, Melancon, a p p ro a c h ed Richard telling Richard that if he, Richard, ever left JCI, he, Melancon, would be w illin g to go to work for him. With respect to the hiring of these technicians, Richard testified th a t they called him. Thereafter, he prepared an offer letter that he emailed or gave to the p o te n tia l employee. Guidry testified that Richard handled the employment negotiations and that his sole involvement was putting together a benefit package that Air Plus could offer. In c ra f tin g the employee benefit package, Guidry did not rely on information he obtained from J C I, but, rather, he relied on his own resources, including his prior experience as vice president o f a commercial construction company and contacts with small insurance brokerage firms. Prior to their leaving JCI, Richard and Guidry had attended a meeting wherein it was d e c id e d that the service rates for the Iberia Parish School Board ("the Board") would be in c re a se d . Both were charged with the task of delivering the new rate proposal to Harry Lopez ("L o p ez "), the contact person for the Board. After Richard and Guidry resigned from JCI, L o p e z asked Air Plus to submit a proposal for services, as he was obtaining prices from m u ltip le contractors. Accordingly, after meeting with Lopez, by letter dated September 25,

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2 0 0 9 , a proposal was submitted to the Board by Air Plus. Lopez testified by affidavit that he h a d made the decision to seek pricing information from other contractors and to use a vendor o th e r than JCI prior to the September 25, 2009 meeting, and that this decision was not based on th e formation of Air Plus, or any statements or actions of Guidry or Richard. By email dated October 26, 2010, Guidry advised Lopez that Air Plus would be a c q u irin g "key members of your current service providers team" and that it was anticipated th a t these personnel could start providing services for the Board by November 16, 2009. Following a meeting between Richard, Guidry and Lopez, the labor rates were adjusted as re f le c te d in a proposal dated November 3, 2009. Lopez accepted this proposal. Lopez testified b y affidavit that neither Guidry nor Richard disclosed JCI pricing or other confidential in f o rm a tio n to him. The Board has cancelled its annual contract with JCI, from which JCI w o u ld have earned a profit of approximately $210,000.00. Air Plus also sent proposals to other JCI customers (present or former) including the f o llo w in g : Lafayette General Hospital, Wampold Companies (Bayou Shadows), Quality A s s u re d Plating, Acadia Vermillion Hospital, Abbeville General Hospital, University Medical C e n te r and Roggweiler Tannery. Air Plus also prepared a budget for the Acadia Parish Police Ju ry to obtain funding prior to acceptance of public bids. Air Plus has performed HVAC or air c o n d itio n in g related work for Lafayette General Hospital, Quality Assured Plating, Acadia V e rm illio n Hospital, and Abbeville General Hospital.

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T h e Acadia Parish Police Jury, Tolson Management Company and Quality Assured P la tin g , prior JCI PSA contract customers, have cancelled their contracts with JCI. By a f f id a v it, a representative of Acadia Parish Police Jury testified that the decision to cancel the P S A contract with JCI was not based on the formation or existence of Air Plus and that neither G u id ry nor Richard were responsible for the cancellation. A representative of Tolson M a n a g e m e n t Company likewise testified by affidavit that the decision to cancel the PSA c o n tra c t with JCI was not based on the formation or existence of Air Plus; to the contrary, he h a d not even met with Guidry or Richard prior to making the decision to cancel the contract w ith JCI. A representative of Quality Assured Plating testified by affidavit that neither Guidry n o r Richard requested or urged the company to cancel its contract with JCI, nor have either d is c lo s e d JCI pricing or other confidential information to him. L A W AND ANALYSIS T h e grant or denial of a preliminary injunction rests in the discretion of the district c o u rt, subject only to the satisfaction of four prerequisites enumerated by the Fifth Circuit for g ra n tin g such relief. Enterprise Intern., Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 7 6 2 F.2d 464, 472 (5 th Cir. 1985); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5 th Cir. 1974). In order to obtain a preliminary injunction, the plaintiff must demonstrate each o f the following pre-requisites: 1) a substantial likelihood of success on the merits; 2) a s u b s ta n tia l threat that failure to grant the injunction will result in irreparable injury; 3) the th re a te n e d injury outweighs any damage that the injunction will cause to the adverse party; and

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4 ) the injunction will not have an adverse effect on the public interest. Women's Med. Ctr. of N o rth w e st Houston v. Bell, 248 F.3d 411, 419 at fn. 15 (5 th Cir. 2001) citing Hoover v. M o r a le s, 164 F.3d 221, 224 (5 th Cir. 1998). The movant must prove all four elements and f a ilu re to prove any one of them will result in denial of the request. Enterprise Intern., Inc., 7 6 2 F.2d at 472. "The decision to grant a preliminary injunction is to be treated as the e x c ep tio n rather than the rule." Mississippi Power & Light v. United Gas Pipe Line Co., 760 F .2 d 618 (5 th Cir. 1985). " [ A ] preliminary injunction is an extraordinary and drastic remedy" which should not is s u e except upon a clear showing of irreparable injury. Enterprise Intern., Inc., 762 F.2d at 4 7 2 ; Lewis v. S.S. Baune, 534 F.2d 1115, 1121 (5 th Cir. 1976). Irreparable injury is harm that "c an n o t be undone through monetary damages," that is, harm for which money damages are in a d e q u ate or for which money damages are "especially difficult" to compute. Deerfield Med. C tr . v. City of Deerfield Beach, 661 F.2d 328, 338 (5 th Cir. 1981); Allied Marketing Group, Inc. v . CDL Marketing, Inc., 878 F.2d 806, 810 fn. 1 (5 th Cir. 1989). The "central inquiry in d e c id in g whether there is a substantial threat of irreparable harm to the plaintiff is whether the p la in tif f 's injury could be compensated by money damages." Allied Marketing Group, Inc., 8 7 8 F.2d at 810 fn. 1. Thus, there can be no irreparable injury where money damages would adequately c o m p e n s a te a plaintiff. DFW Metro Line Services v. Southwestern Bell, 901 F.2d 1267, 1269

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(5th Cir. 1990) (citations omitted).3 Simply arguing that a company is losing customers and g o o d w ill without showing that monetary damages are an inadequate remedy is insufficient to e s ta b lis h irreparable harm. Millennium Restaurants Group, Incorporated v. City of Dallas, 181 F . Supp.2d 659, 666 (N.D. Tex. 2001); Sun Water Systems, Inc. v. Vitasalus, Inc., 2007 WL 8 2 0 2 8 0 , *6 (N.D. Tex. 2007). JCI invokes this court's diversity jurisdiction. [rec. doc. 1, ¶ 1]. Accordingly, the s u b s ta n tiv e law of Louisiana applies. See Erie R.R. Co., v. Thompkins, 304 U.S. 64, 58 S.Ct. 8 1 7 , 82 L.Ed. 1188 (1938); Woodfield v. Bowman, 193 F.3d 354, 359, n.7 (5 th Cir. 1999). W ith respect to JCI's claims for preliminary injunctive relief involving Guidry's nonc o m p e titio n clause, JCI fails to satisfy the first element, that is, a substantial likelihood of s u c c es s on the merits, because the non-competition clause is unenforceable under Louisiana la w . Likewise, with respect to JCI's claims under the Louisiana Uniform Trade Secrets Act (" L U T S A " ), on the evidence presented, a preliminary injunction is not warranted. With re sp e c t to the remainder of JCI's claims for preliminary injunctive relief, JCI fails to satisfy the se c o n d element, that is, a substantial threat that failure to grant injunctive relief will result in irre p a ra b le injury; JCI has not shown that special circumstances in this case would make m o n e y damages inadequate should JCI prevail on the merits.

The Fifth Circuit has noted that "[o]ften times the concepts of `irreparable injury' and `no adequate remedy a t law' are indistinguishable." Tate v. American Tugs, Inc., 634 F.2d 869, 871 (5 th Cir. 1981) citing Lewis v. S.S. B a u n e , 534 F.2d at 1124.

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G u id r y ' s Non-Competition Clause T h e Louisiana statute governing non-competition provisions provides that "[e]very [ su c h ] contract or agreement, or provision thereof . . . except as provided in this Section, shall b e null and void." La. R.S. 23:921(A). The statute further sets forth the exceptions to this p ro v is io n , defining the limited circumstances under which a non-competition clause may be v a lid and enforceable against a former employee, providing in pertinent part as follows: "Any . . . employee may agree with his employer to refrain from carrying on or engaging in a b u s in e ss similar to that of the employer and/or from soliciting customers of the employer w ith in a specified parish or parishes, municipality or municipalities, or parts thereof, so long a s the employer carries on a like business therein, not to exceed a period of two years from te rm in a tio n of employment." La. R.S. 23:921(C) (emphasis added). Because non-competition c la u se s "are in derogation of the common right, they must be strictly construed against the p a rty seeking their enforcement." SWAT 24 Shreveport Bossier, Inc. v. Bond, 808 So.2d 294, 2 9 8 (La. 2001). Judge Drell of this Court has recently considered a non-competition clause which, like th e instant clause, failed to specifically list the parishes to which it applied. He held that the c la u se was therefore unenforceable under Louisiana law. Ferrellgas , L.P. v. McConathy, 2 0 1 0 WL 1010831 (W.D. La. 3/15/10). In making this determination, Judge Drell noted that " L o u is ia n a public policy has strongly and consistently disfavored agreements restraining trade, s u c h as non-competition and non-solicitation agreements." Id. at *3 citing SWAT 24

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S h r e v ep o r t Bossier, Inc. v. Bond, 808 So.2d 294, 298 (La. 2001) (noting "the longstanding p u b lic policy of Louisiana . . . to prohibit or severely restrict [non-competition] agreements") a n d Millet v. Crump, 687 So.2d 132, 135 (La. App. 5th Cir. 1996) ("Louisiana has a strong p u b lic policy against non-competition agreements."). Thus, valid non-competition clauses are th e exception, rather than the rule; the exception to the rule is provided for within the statute, to wit, that, in general, the non-competition clause be "strictly limited to designated parishes a n d contain a maximum term of two years." Id. citing La. R.S. 23:921(C). Judge Drell noted that the proper interpretation of the "geographical limitation" r e q u ir e m e n t in the statute has generated a longstanding controversy among Louisiana courts, w h ic h the Louisiana Supreme Court has not yet resolved. Id. at 3-4. After thoroughly re v ie w in g the Louisiana appellate court decisions, Judge Drell determined that "the bulk of L o u is ia n a courts agree, that a non-competition agreement must identify by name the parishes o r municipalities to which it applies." Id. at *4 citing L & B Transport, LLC v. Beech, 568 F .S u p p .2 d 689, 693 (M.D. La. 2008) ("Because Section 921 speaks to non-competition within a specified parish or parishes, municipality or municipalities, or parts thereof, Louisiana courts h a v e stated that non-competition agreements failing to specify the parish, municipality or parts th e re o f are unenforceable.") (internal quotation omitted). Judge Drell noted that the majority of Louisiana courts have held that even a general ref ere n ce in the agreement to those parishes in which the company conducted business or mere r e f e re n c e to the parishes to which the agreement applies, without listing the parish by name,

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d o e s not comply with the requirements of the statute. Id. (emphasis added) citing Bell, 983 S o .2 d at 933 (chronicling Louisiana cases in agreement), Action Revenue Recovery, L.L.C. v. e B u s in e s s Group, L.L.C., 17 So.3d 999, 1003 (La. App. 2d Cir. 2009) (rejecting a n o n -c o m p e titio n clause which applied "to all parishes or counties ARR/FAC covers on a like b u s in e s s in said parishes or counties"), Aon Risk Servs., Inc. v. Ryan, 807 So.2d 1058, 1060-61 (L a . App. 2d Cir. 2002) (invalidating a non-competition clause which covered ` "whatever p a ris h e s , counties and municipalities the Company or Hall'. . . conducted business"). Judge Drell rejected the contrary position of the Louisiana Third Circuit Court of A p p e a ls which has held that "the failure to identify each parish by name does not automatically n u llif y the agreement so long as the parishes covered by the provision are `identifiable.'" Id. c itin g Monumental Life Ins. Co. v. Landry, 846 So.2d 798, 801 (La. App. 3d Cir. 2003) and P e tr o le u m Helicopters. Inc. v. Untereker, 731 So.2d 965, 968 (La. App. 3rd Cir. 1999). B e c au s e the Louisiana Supreme Court has not definitively resolved this issue, Judge D re ll properly noted that "it is the duty of the federal court to determine, as best it can, what the highest court of the state would decide, while not being bound by state appellate court d e c is io n s , but, at the same time, not disregarding them "unless [the federal court is] convinced b y other persuasive data that the highest court of the state would decide otherwise." Id. citing V e rd in e v. Ensco Offshore Co., 255 F.3d 246, 252 (5th Cir. 2002) quoting Transcon, Gas Pipe L in e Corp. v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992).

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A p p lyin g this standard, Judge Drell found "no reason to conclude that the Louisiana S u p re m e Court would deviate from the approach articulated by the majority of the state a p p e lla te courts." Judge Drell recognized the directive of the Louisiana Supreme Court that n o n -c o m p e titio n clauses be strictly construed against the party seeking their enforcement, tak in g into account the strong public policy component involved, and that Louisiana courts h a v e generally required "mechanical adherence to the requirements listed in the law (especially th e geographical and time limitations)." Id. citing Swat 24, 808 So.2d at 298 and Sentilles O p tic a l Servs., Div. of Senasco, Inc. v. Phillips, 651 So.2d 395, 399 (La. App. 2d Cir. 1995). Judge Drell further noted, in support of his holding, that under the rules of statutory interpre tation "in order to give effect to the word `specified' in the statute, courts must require th a t parishes be designated, rather than enforce general phraseology which would allow the g e o g ra p h ic a l scope of non-competition agreements to be expanded and contracted ad in fin itu m ." Id. citing Aon Risk Servs., 807 So.2d at 1060-61. T h e undersigned finds Judge Drell's well reasoned opinion highly persuasive. It is clear in this case that Guidry's non-competition clause contains no geographical boundaries w h a t so e v e r . Not only does the clause fail to specifically list the parishes that it covers, it also f a ils to reference or list any other data from which its geographical scope could be determined. Therefore, the undersigned finds that the non-competition clause does not conform to the re q u ire m e n ts of La. R.S. 23:921(C), as interpreted by the majority of Louisiana appellate c o u rts . The undersigned finds that the Louisiana Supreme Court would agree. Accordingly,

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th e non-compete agreement signed by Guidry, is invalid and unenforceable. Even if the Third Circuit's interpretation of the statute were correct, the undersigned fin d s that the non-competition clause in this case does not make the parishes which it covers s u f f ic ie n tly "identifiable" so as to make the clause enforceable, even under the more forgiving s ta n d a rd s accepted by the Third Circuit. Initially, the court notes that the clause itself fails to mention any Louisiana parishes at a ll. Even if one were to overlook this glaring deficiency, the testimony failed to delineate the p a ris h e s which compromise the territory of the Lafayette branch where Guidry worked. To the c o n tra ry, Guidry testified that, although he knew he was being hired for the Lafayette branch at th e time he signed the JCI Employment Agreement, he was not told, nor was he aware of, the g e o g ra p h ic a l territory in which he would be soliciting or serving customers; he was given no in s tru c tio n on the geographical territory of the Lafayette branch until several months thereafter. Even then, the geographic territory of the Lafayette branch was not clearly defined; the western b o u n d a ry fluctuated (initially ending at Crowley and thereafter ending in Jennings) and the n o rth e rn boundary was non-existent as both the Lafayette and Shreveport branches solicited a n d competed for customers in the Alexandria area. The testimony of Larry Heyer, the service manager overseeing the Lafayette branch, c o rro b o ra te s Guidry's testimony. Although he submitted an affidavit in support of the instant M o t io n listing the parishes covered by the Lafayette branch, Heyer was unable to name those p a ris h e s while testifying in court. Moreover, Heyer admitted that he could not state whether

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L a f a ye tte branch employees were aware of the Lafayette branch geographical territory. JCI argues that the scope of the non-compete clause may be identified by the location of JC I potential and existing customers Guidry serviced or solicited. However, Guidry's u n c o n te s te d testimony was that potential customers were any commercial facility in the market. The lack of a defined territory constituting Guidry's "market" makes the geographical b o u n d a rie s of the non-compete clause far from "identifiable." Moreover, at the time he executed the Employment Agreement, Guidry could not d e te rm in e the limits of the non-competition clause or the extent of the territorial limitations w h ich would be placed on him after his employment with JCI ended. Guidry was aware only th a t he was being hired for the Lafayette branch, which covered some undefined geographic a re a ; he was not aware of the identity or geographic location of the existing customers who w o u ld be assigned to him, and he was not aware of the geographical location of potential c u sto m e rs whose business he could solicit. This uncertainty renders the geographical b o u n d a rie s of the non-compete clause not "identifiable," A s such, the non-compete clause is invalid and unenforceable even under the more le n ie n t Third Circuit standard. See Medivision Inc. v. Germer, 617 So.2d 69, 72-73 (La. App. 4 th Cir. 1993) (rejecting an argument that "the Greater New Orleans Area" was sufficiently c e rta in to apprise the employee of the territorial scope of the agreement at the time of e x e c u tio n ); Garcia v. Banfield Pet Hospital, Inc., - - So.3d - - , 2010 WL 199263 (La. App. 1 st C ir. 2010) (invalidating a non-compete agreement, in part, because the "employee could not

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d e ter m in e at the time of execution the limits of the prohibition . . . and had no way to properly d e te rm in e the limits of the non-competition agreement at the time the agreement was c o n f e c ted .); Bell v. Rimkus Consulting Group, Inc., 983 So.2d 927, (La. App. 5 th Cir. 2008) (re je c tin g an argument that the employees possessed sufficient information to determine which a re a s were prohibited by the non-competition agreement because the statute does not c o n te m p la te such an action on the employees part, but rather requires specified parishes "for the employee to know and understand the limitations upon the signing of the agreement."); A o n Risk Servs., Inc., 807 So.2d at 1062 (noting the court's belief that "the legislature intended th a t the employee know on the front end what his potential restrictions might be and exactly w h a t price he was being called upon to pay in exchange for employment."); see also L&B T r a n sp o r t, Inc. v. Beech, 568 F.Supp.2d 689, 697-698 (M.D. La. 2008) (finding an agreement p ro h ib itin g solicitation of "any customer of [the former employer] in Alabama" overly broad, am b igu o u s and unenforceable as a matter of law). In sum, the geographical limitations of the non-competition clause in Guidry's JCI E m p loym en t Agreement are not specified as required by controlling Louisiana law, but, rather, a r e amorphous at best. Given the complete lack of specific parishes to which the clause a p p lie s, the strong public policy disfavoring restraints on competition, and the mandate that L o u is ia n a courts strictly construe non-competition agreements against the employer, the u n d e rs ig n e d finds that under the particular facts presented in this case, the non-competition c la u se in Guidry's JCI Employment Agreement does not conform to the mandates of La. R.S.

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2 3 :9 2 1 (C ) or governing Louisiana law and, hence, is unenforceable.4 G u id r y ' s Employee Tampering Clause

5

W h ile the non-competition clause is unenforceable under La. R.S. 23:921, the employee ta m p e rin g clause does not fall within the prohibition of the section. Emergency Physicians A s s 'n v. Our Lady of the Lake, 635 So.2d 1148, 1150 (La. App. 1 st Cir. 1994), vacated in part o n other grounds, 642 So.2d 179 (La. 1994) citing John Jay Esthetic Salon, Inc. v. Woods, 377 S o .2 d 1363, 1366 (La. App. 4th Cir.1979) ("We hold that the agreement not to solicit the e m p lo ye e s of the employer or to engage in a business relationship with them is not within the p ro h ib itio n of R.S. 23:921."). However, JCI must nevertheless satisfy all four elements set out in Canal Authority for the issuance of a preliminary injunction. Enterprise Intern., Inc., 762 F .2 d at 472. This, JCI has not done. W h ile the evidence before the court indicates that Guidry met with Albarado regarding h e r employment with Air Plus and hence "solicit[ed]" her employment with Air Plus, there is in s u f f ic ie n t evidence to support a finding that Guidry "solicit[ed], induce[d] or re c o m m e n d [ ed ]" any of the five technicians who are currently employed by Air Plus to leave

Louisiana courts make no distinction between non-compete and customer non-solicitation clauses; both m u s t comply with the mandates of La. R.S. 23:921(C). See Vartech Systems, Inc. v. Hayden, 951 So.2d 247, 2602 6 1 (La. App. 1 st Cir. 2006); Millet v. Crump, 687 So.2d 132, 135 (La. App. 5 th Cir. 1996) citing Maestri v. D e str e h a n Veterinary Hosp., Inc. 554 So.2d 805, 810 (La. App. 5 Cir.1989), appeal after remand, 94-1030 (La. A p p . 5th Cir. 3/28/95) 653 So.2d 1241, writ denied, 95-1534 (La.9/29/95) 660 So.2d 879; Swat 24, 808 So.2d at 19 ( a p p ly in g 921(C) to a customer solicitation clause). Accordingly, to the extent that the clause at issue in this case m a y be construed as a customer non-solicitation clause, for these same reasons, the clause is invalid. M o r e o v e r , the undersigned declines any suggestion by JCI to reform the Employment Agreement to bring it into conformity with La. R.S. 23:921(C). The Agreement contains no severability or savings clause, but rather c o n ta in s a clause mandating that the Agreement "not be modified or terminated in whole or in part, except by an i n s t r u m e n t in writing signed by an officer or other authorized executive of Johnson Controls."
5

4

19

th e ir employment with JCI. Guidry candidly admitted that he "dealt directly with . . . Michelle [Albarado]". This te stim o n y is corroborated by that of Albarado, who testified that she met with both Richard and G u id ry in Richard's office, at which time "they", Richard and Guidry, asked if she would be in te re ste d in working for them. She further testified that she had contact with both Guidry and R ic h a r d with regard to her employment by Air Plus. W ith respect to the five technicians, however, the evidence does not establish that G u id ry "solicit[ed], induce[d] or recommend[ed]" any of these employees go to work for Air P lu s . To the contrary, Richard's testimony established that he was the contact person who h an d led the interviews, negotiations and ultimate hiring of these five technicians. The court f in d s this testimony credible, given that he, Richard, had previously worked with these te c h n ic ia n s, and hence, had a personal relationship with them, unlike Guidry, who had never b e e n a technician, but rather was hired by JCI solely for sales. Moreover, the undersigned cannot accept JCI's argument that Guidry breached the e m p lo ye e tampering clause on the basis that Air Plus is the "ultimate beneficiary" and that G u id ry, as an owner, "cannot accomplish through Air Plus and Richard that which he cannot d o directly." JCI cites no jurisprudence in support of its "indirect" breach theory, nor is the u n d e r s ig n e d aware of any such authority. Additionally, the argument is contrary to the express te rm s of the Employment Agreement which prohibits Guidry from engaging in specified a c tiv itie s, but does not, by its terms, apply to Richard or Air Plus. The rules of contractual

20

in te rp re ta tio n do not permit this court to rewrite the clear and unambiguous terms of the a g re e m e n t in the fashion suggested by JCI. Guidry's sole connection with the employment of the technicians was in crafting an e m p lo ye e benefit package. However, Guidry did not rely on any confidential information he o b tain ed from his employment with JCI to craft the benefit packages; to the contrary, Guidry tes tifie d that he relied on his own resources, including his prior work experience and contacts w h ic h he had established before his employment with JCI. Additionally, there is no evidence th a t Guidry supervised any of the five technicians. Thus, there is insufficient evidence that G u id ry engaged in any of the contractually prohibited activities to support a finding that G u id ry breached the employee tampering clause of his Employment Agreement. Although the court has found that Guidry "solicit[ed]" Albarado's employment with Air P lu s , a preliminary injunction cannot be issued on the basis of this claimed contractual breach. T h e re is no evidence that Guidry supervised Albarado, who worked on the "project side" of the c o m p a n y, nor is there sufficient evidence that Guidry received or possessed any confidential in f o rm a tio n about Albarado.6 Thus, on the evidence presently before this court, it does not a p p e a r that Guidry has breached the terms of his contractual agreement, which prohibits G u id ry from soliciting those JCI employees which he supervised.

To the extent that JCI suggests that Guidry breached the employee tampering clause by meeting with R i c h a rd about the formation of Air Plus, for these same reasons, that argument is unavailing. Guidry did not s u p e rv is e Richard and there is insufficient evidence that Guidry received or possessed any confidential information a b o u t Richard.

6

21

F in a lly, even if Guidry breached the employee tampering clause of his Employment A g re e m e n t, JCI has not established that special circumstances in this case would make money d a m a g e s inadequate should JCI prevail on the merits. See DFW Metro, Deerfield Med. Ctr., A llie d Marketing Group, Inc., supra. Despite her title of "project coordinator", Albarado's d u tie s demonstrate that she was, in essence, employed by JCI as a billing clerk. The evidence d o e s not establish that Albarado possessed any special knowledge or skills which made her inv alua b le to JCI. As such, JCI may be adequately compensated for the loss of Albarado's s e rv ic e s by an award of monetary damages, which may be easily calculated at trial on the m e rits . See Baker Petrolite Corp. v. Spicer, 2006 WL 1751786, *5 (S.D. Tex. 2006) (denying a p re lim in a ry injunction with respect to a non-recruitment agreement because the lack of e v id e n c e to demonstrate that the recruited employee had specialized knowledge making his loss irreparable and a remedy at law inadequate). G u idr y 's Confidentiality Clause and Guidry and Richard's Confidentiality Agreements T h e same is true with respect to the claimed breaches of Guidry's confidentiality clause a n d the Confidentiality Agreements signed by both Guidry and Richard. JCI has not e sta b lis h e d that special circumstances in this case would make money damages inadequate for a n y proven breach of the confidentiality clauses or agreements. A n agreement not to use confidential information is enforceable if the information used is , in fact, confidential. NCH Corp. v. Broyles, 749 F.2d 247, 253 (5 th Cir. 1985). Moreover, w h ile Guidry's non-competition clause is unenforceable under La. R.S. 23:921, an agreement

22

n o t to disclose confidential information may be enforceable. Millet v. Crump, 687 So.2d 132, 1 3 5 (La. App. 5 th Cir. 1996). Finally, "[e]ven in the absence of a contract not to disclose c o n f id e n tial information, an agent has a duty not to use or communicate information given to h im in confidence in competition with or to the injury of the principal . . . ." NCH Corp., 749 F .2 d at 253. This rule applies to information which is stated to be confidential, information w h ich the agent should know his principal would not care to have revealed to others or used in c o m p e titio n with him, and "to unique business methods of the employer, trade secrets, lists of n a m e s and all other matters which are peculiarly known in the employer's business." Id. JC I argues that both Guidry and Richard used confidential or proprietary information in c o n n e c tio n with their obtaining the Iberia Parish School Board work, and in connection with th e hiring of the five former JCI technicians. Accordingly, each of these contentions is d is c u s s e d below. Loss of the Iberia Parish School Board Contract J C I apparently contends that the JCI pricing (rate) information for the Iberia Parish S c h o o l Board ("the Board") is confidential or proprietary information which was disclosed or u s e d by Richard and Guidry to enable them to obtain the Board's business. The parties dispute w h e th e r the pricing (rate) information is confidential or proprietary. However, the court need n o t determine whether the pricing (rate) information is confidential or proprietary for proper re so lu tio n of the instant Motion, because even assuming that the information is confidential or p ro p rie ta ry, JCI is not entitled to injunctive relief.

23

I t is clear that both Guidry and Richard knew the JCI service rate for the Board, because b o th attended the meeting wherein the new rate proposal for the Board was determined. However, the court notes that there has been no direct evidence that either Richard or Guidry d is c lo s e d , or used, this pricing (rate) information, to obtain the Board's work. To the contrary, b o th denied that this was the case (not only with the Board but with all former JCI customers) a n d their testimony is corroborated by that of Lopez, who, by affidavit, testified that neither G u id ry nor Richard disclosed JCI pricing or other confidential information to him. Of course, s in c e both Richard and Guidry knew the pricing information, they could adjust the Air Plus p ric in g to favorably compete for the Board's business. However, JCI has failed to demonstrate th a t its injury as a result of this alleged breach could not be adequately compensated by m o n e ta ry damages. Where economic rights are involved, irreparable harm exists "when the nature of those rig h ts makes establishment of the dollar value of the loss . . . especially difficult or s p e c u la tiv e ." Allied Mktg. Group, Inc., 878 F.2d at 810; Block Corporation v. Nunez, 2008 W L 1884012, *6 (N.D. Miss. 2008). While a loss of a business' customers and damage to its g o o d w ill are widely recognized as injuries incapable of ascertainment in monetary terms and m a y thus be irreparable (see Allied Mktg. Group, affirming the district court's holding that d a m a g e to goodwill was irreparable because it might be "incapable of calculation"), in its p le a d in g s in this Court and by affidavit of John Lawrence Heyer, JCI has specifically alleged th e exact amount of profits it lost as a result of the cancellation of the Iberia Parish School

24

B o a rd contract. Thus, these damages are not incalculable or speculative. JCI also suggests that there is a possibility of negative goodwill. However, simply arg u ing that a company is losing customers and goodwill without showing that monetary d a m a g e s are inadequate is insufficient to establish irreparable harm as required for injunctive re lie f . See Millennium Restuarants Group and Sun Water Systems, Inc., supra. Thus, based on the record before this court, the court finds that JCI has not successfully s h o w n that money damages are insufficient compensation for any harm it has sustained, or that m o n e y damages are "especially difficult" to calculate. Accordingly, JCI's damage, if any, does n o t rise to the irreparable harm level necessary for the extraordinary relief of a preliminary in ju n c tio n . See Block, Corp., supra. While not strenuously argued by JCI herein, the same is true with respect to other f o r m e r JCI customers with whom Guidry and Richard have had contact on behalf of Air Plus. T h e re is simply insufficient evidence for this court to find that monetary damages would not a d e q u a tely compensate JCI for any alleged injury which JCI claims to have suffered. This is p a rtic u la rly true with respect to the alleged cancellation of contracts by Tolson Management C o m p a n y and the Acadia Parish Police Jury. Like the contract cancelled by the Board, to the e x te n t that JCI prevails on the merits of its claim, the loss of profits claimed by JCI can be e a sily calculated. The same is true with respect to any profits JCI claims, and proves, to have lo s t as a result of confidential or proprietary information allegedly used or disclosed by R ic h a rd or Guidry.

25

H ir in g of Former JCI Technicians JCI also contends that Guidry and Richard used confidential or proprietary information in connection with the hiring of the five former JCI technicians. Although unclear, it appears th a t JCI contends that its former technicians' salaries and skill sets are confidential or p r o p r ie ta r y information which were used by Richard and Guidry to enable them to hire these tec h n icia n s for Air Plus, in contravention of the contracts signed by them and their legal duty n o t to use confidential information in competition with their former employer. Whether information regarding the technicians' salaries and skill sets are encompassed b y the definition of "Intellectual Property" contained in the Employee and Intellectual Property a n d Confidentiality Agreements signed by Richard and Guidry, and whether such information is confidential or proprietary within the meaning of these Agreements and Guidry's E m p lo ym e n t Agreement is disputed by the parties. However, again, for resolution of the in s ta n t Motion, the court need not resolve this dispute. T h e court notes that JCI has provided this court with no authority that expressly holds th a t knowledge of an employee's salary or skills is confidential or proprietary information. The evidence, however, suggests just the opposite. Initially, the court notes that there is no e v id e n c e suggesting that either Guidry or Richard had knowledge of the benefit package p rov ided by JCI to any of the technicians; in fact, each denied having any such knowledge. It is undisputed that the former JCI technicians were union employees, while both Guidry and R ic h a rd were not. Thus, the technicians' benefits differed from the benefits package enjoyed

26

b y Guidry and Richard. Hence, the court finds Guidry's and Richard's testimony on this point is credible. Furthermore, as noted by both Guidry and Richard, because the technicians were union e m p lo ye e s, their salary scales could be obtained by anyone utilizing the internet. As such, in R ic h a rd 's words, their salaries were "pretty common" or "street knowledge." While former e m p lo ye e s have a duty not to use confidential information in competition with their former e m p lo ye r, that duty does not extend to information which is a matter of general knowledge. See N C H Corp., 749 F.2d at 254 ("an agent has a duty not to use . . . information given to him in c o n f id e n c e in competition with or to the injury of the principle unless the information is a m a tte r of general knowledge.") (emphasis added). On the other hand, the evidence establishes that both Guidry and Richard had k n o w ledg e of the skill sets of the technicians which have been hired by Air Plus. In particular, ea ch admitted having knowledge that Dennis Guidry had been assigned by JCI to perform w o rk for the Iberia Parish School Board. Indeed, by email dated October 26, 2010, Guidry a d v is e d Lopez that Air Plus would be acquiring "key members of your current service p ro v id e rs team . . . ", which members presumably included Dennis Guidry. Assuming, without deciding, that this information constitutes "Intellectual Property" or c o n f id e n tia l or proprietary information protected under the terms of the Agreements signed by R ic h a r d and Guidry, or is prohibited from use in competition under common law principles, J C I has not established that its alleged injury cannot be remedied by an award of damages. As

27

w a s the case with the loss of the Iberia Parish School Board contract, in the event JCI prevails o n the merits, any loss shown to be associated with the departure of the former JCI technicians m a y likewise be calculated based on the profits lost from contracts and customers previously s e rv ic e d by each technician. Moreover, while JCI apparently contends that the loss of these technicians also n e g a tiv e ly impacted its goodwill, there was insufficient evidence presented at the hearing to su p p o rt that contention. Furthermore, given the size of JCI, any claim that the loss of air c o n d itio n in g technicians could affect the company's ability to secure new customers or m aintain the customers they currently have is suspect. This is particularly true given Guidry's u n c o n tra d ic te d testimony that, with respect to the School Board, Lopez expressly said that he w o u ld not change service providers based on any employee, but, rather, the change to another s e rv ic e provider would be based on the price for the services. Guidry explained that rationale, te stif yin g that it would be a mistake for a company to change service providers based on any e m p lo ye e because any such employee could die or quit the newly contracted company. On the p re s e n t record, the court finds no basis to disregard that testimony. Based on the above, JCI has not made the threshold showing necessary for the issuance o f a preliminary injunction in this case for any claimed breach of the confidentiality clauses or a g re e m e n ts ; JCI has not established that special circumstances in this case would make money d a m a g e s inadequate.

28

C u sto m e r Lists/LUTSA Claim B ro a d ly, the LUTSA proscribes the misappropriation of information that constitutes " tra d e secrets." See La. R.S. 51:1431. A plaintiff may obtain injunctive relief for either " [ a]c tu a l or threatened misappropriation." La. R.S. 51:1432.7 However, an injunction may be is s u e d "only upon a showing of irreparable loss or injury without an adequate remedy at law." Tubular Threading, Inc. v. Scandaliato, 443 So.2d 712, 715 (La. App. 5 th Cir. 1983). The a p p lic a n t "must also show that the threat is immediate and that there is a clear and present need f o r it." Id. "In order to show that the trade secrets have been misappropriated, [the employer] w o u ld have to prove that (1) a trade secret existed, and (2) that they were misappropriated by th e [employee]." Ferrellgas, 2010 WL 1010831, at *7 citing Advance Prods. & Svs., Inc. v. S im o n , 944 So.2d 788, 793 (La. App. 3 rd Cir. 2006). T h e term "misappropriation" is defined as "disclosure or use of a trade secret of another w ith o u t express or implied consent by a person who . . . at the time of disclosure or use, knew o r had reason to know that his knowledge of the trade secret was . . . acquired under c irc u m s ta n c e s giving rise to a duty to maintain its secrecy or limit its use." La. R.S. 51:1431(2). The LUTSA provides a specific definition of the term "trade secret": "`Trade secret' m e a n s information, including a formula, pattern, compilation, program, device, method,

The statute also contains provisions allowing claimants to recover damages for actual losses and unjust e n r ic h m e n t. See La. R.S. 51:1433.

7

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te c h n iq u e , or process, that . . . derives independent economic value, actual or potential, from n o t being generally known to and not being readily ascertainable by proper means by other p e rs o n s who can obtain economic value from its disclosure or use, and . . . is the subject of e f fo rts that are reasonable under the circumstances to maintain its secrecy." La. R.S. 5 1 :1 4 3 1 (4 ). Determining whether information qualifies as trade secrets is a question of fact. Ferrellgas, 2010 WL 1010831, at *7 citing Corrosion Specialties and Supply, Inc. v. Dicharry, 6 3 1 So.2d 1389, 1391 (La. App. 5 th Cir. 1994). In itia lly, the court notes that, unlike the case of Richard, there has been no evidence p re se n te d to this court that upon leaving JCI, Guidry took any documents which could be c o n sid e re d confidential or proprietary. Moreover, there is no evidence before this court that R ic h a rd provided Guidry with copies of the documents he emailed to his wife on September 1 0 , 2009. To the contrary, Richard testified that he did not give the documents to anyone, and G u id ry testified that he did not even know these documents were in Richard's possession, as R ic h a rd had never told him anything about them. Indeed, Guidry testified that he had not seen o n e of the documents until January 2010, when he sought counsel in connection with the in s ta n t suit; he had not seen the other document until the day of the hearing. It is, however, undisputed that in conjunction with his resignation, Richard emailed two J C I customer lists to his wife on September 10, 2009. JCI therefore argues that the in f o rm a tio n contained in the customer lists constituted "trade secrets" which were used by R ic h a rd in violation of the LUTSA, thereby entitling JCI to a preliminary injunction under the

30

A c t. However, on the record before this court, the grant of a preliminary injunction at this time is not warranted. "The threshold inquiry in every trade secrecy case is whether a legally protectable trade s e c re t exists in fact." Core v. Martin, 543 So.2d 619, 621 (La. App. 2 n d Cir. 1989). Louisiana co u rts have held that "[a] customer list or special pricing list may be a trade secret if efforts are m a d e to maintain its secrecy." Ferrellgas, 2010 WL 1010831 at *7 citing Pontchartrain Med. L a b s . Inc. v. Roche Biomedical Labs., Inc., 677 So.2d 1086, 1090 (La. App. 1 st Cir. 1996), W y a tt v. PO2, Inc., 651 So.2d 359 (La. App. 2 n d Cir. 1995) and Core, 543 So.2d at 621. T h e court need not determine if the customer lists may constitute "trade secrets" at this tim e because, even if the lists are trade secrets, there is insufficient evidence that Richard used, o r is using, any information contained in the customer lists in violation of the LUTSA, and to th e extent that such use may be presumed, there has been an insufficient showing that there is a n immediate threat or that there is a clear and present need for the issuance of an injunction. While JCI has expressed suspicion that Richard may have used confidential information c o n ta in e d in the customer lists to solicit JCI customers, no evidence to corroborate that s u g g e stio n has been presented to the Court. Richard testified, without contradiction, that, not o n ly did he not use any of the information contained on the lists, he also testified that the lists w ere of no value to him because they lacked detailed information on the scope of work p e rf o rm e d for the customer or the type equipment the customer has. Additionally, a p p ro x im a te ly half of the customers on the list were no longer JCI customers and no evidence

31

w a s presented to establish that Air Plus has performed any work for any of the customers on e ith e r list, whether they remained JCI customers or not. Finally, while it is clear that although Richard possessed the lists after his resignation, th e undisputed testimony is that Richard no longer possesses any physical customer list. Richard testified, without contradiction, that he has destroyed all copies of the lists and has re m o v e d them from his computer system. Moreover, Richard testified, without contradiction, th a t he never provided copies of either of the documents to anyone, other than his counsel in th is lawsuit. To the extent that JCI could demonstrate "use" of the information contained on the c u sto m e r lists for purposes of establishing an "actual misappropriation"or that such use may be p re su m e d , in general, past infractions, in the absence of a continuing violation or the likelihood o f a future violation are not redressable through injunctive relief. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109, 118 S.Ct. 1003, 1020, 140 L.Ed.2d 210 (1998) (addressing stan d ing for injunctive relief); James v. City of Dallas, 254 F.3d 551, 564-565 (5 th Cir. 2001) (sam e). Furthermore, under the present circumstances, JCI has not shown, nor can the court f in d , that there is a "clear and present need" for the issuance of a preliminary injunction. See T u b u la r Threading, Inc., 443 So.2d at 715. A t this time, Richard's knowledge of JCI customers and contract information is limited to that which he may remember from his past frequent interactions with JCI customers while in JC I's employ. However, Richard's memory as to the value and operations of certain

32

c u sto m e rs does not constitute "trade secrets." Ferrellgas, 2010 WL 1010831 at *8 citing M ille t, 687 So.2d at 136 (holding that information that an insurance agent "could recall . . . a b o u t renewals on some of her former clients because of the long-term relationship with them th ro u g h her business as well as socially" did not constitute trade secrets); see also L & B T r a n sp o r t, LLC v. Busby, 2008 WL 4845103, at *5 (M.D. La. 2008) citing Weighing & C o n tr o l Servs., Inc. v. Bert Williams,1989 WL 6011 (E.D. La. 1989) ("a former employee is a llo w e d to rely on his memory and on the general information he acquired while working for h is former employer in soliciting customers . . . mental knowledge, from years of employment . . . of the names and addresses of the plaintiff's customers are not trade secrets . . . . "). Considering all of these circumstances, the issuance of a preliminary injunction in this ca se under the LUTSA is not warranted. The evidence does not reflect that Richard or Guidry a re currently in possession of any information beyond the identities, and perhaps the general o p e ra tio n s , of certain JCI customers. Their knowledge and skill was acquired through e x p e rie n c e and, at the present time, has been retained only in their memory. There is in su f f icie n t evidence before the Court to indicate that Richard or Guidry used any of this in f o rm a tio n to solicit JCI customers, and to extent that such use may be presumed, there has b e e n an insufficient showing that there is an immediate threat or that there is a clear and p rese n t need for the issuance of an injunction. Therefore, JCI's motion for preliminary in ju n c tio n will be denied as to JCI's LUTSA claim.

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C la im against Air Plus J C I requests that this court require Air Plus to disgorge any profits it has made by alleg ed ly improperly using JCI's trade secrets and confidential information. While this court m a y ultimately exercise its equitable powers to order such relief,8 in the context of the instant M o tio n for preliminary injunctive relief, the court declines to do so. The purpose of a p re lim in a ry injunction is to prevent irreparable injury so as to preserve the court's ability to r e n d e r a meaningful decision on the merits. Mississippi Power & Light Co. v. United Gas P ip e lin e Co., 760 F.2d 618, 627 (5 th Cir. 1985). Under the circumstances of this case, this p u rp o s e will not be served by granting JCI the requested relief at this time. If proper to do so, th e Court can grant that relief after trial on the merits. M o re o v e r, given the above analysis, and further given that JCI has alleged a specific s u m ($210,000.00) which it claims represents the profits JCI lost when the Iberia Parish School B o a rd cancelled its contract to purportedly award the contract to Air Plus, it appears that an a w a rd of monetary damages can adequately compensate JCI for the harm alleged herein and th a t such damages may be easily computed. Thus, JCI has not made the threshold showing n e c e s s a ry for the issuance of a preliminary injunction against Air Plus.

8

See S.E.C. v. Blatt, 583 F.2d 1325, 1335 (5 th Cir. 1978) (noting that ordering disgorgement of profits is

w i th in the court's equitable powers).

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F o r the above reasons, the Motion for Preliminary Injunction filed by plaintiff, Johnson C o n tr o ls , Inc. [rec. doc. 2] is DENIED. S ig n e d this 9 th day of July, 2010, at Lafayette, Louisiana.

35