Express Scripts, Inc. v. Lavin et al

Filing 40

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion for a temporary restraining order (ECF Doc. No. 5) is GRANTED. The Court hereby orders as follows: See Order for details. Pursuant to Fed. R. Civ. P. 65(b)(2), this Order shall remain in effect until the next hearing on this matter, on Plaintiffs motion for a preliminary injunction, which the Court hereby sets for July 17, 2017, at 11:00 a.m., or such other appropriate time to which the parties consent and agree, in the courtroom of the undersigned. 5 ( In Court Hearing set for 7/17/2017 11:00 AM before District Judge Henry Edward Autrey.). Signed by District Judge Henry Edward Autrey on 7/7/17. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EXPRESS SCRIPTS, INC.,
Plaintiff,
v.
SAMUEL J. LAVIN, et al.,
Defendants.

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) CASE NO. 17CV01423 HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on the motion of Plaintiff Express Scripts,
Inc. (“ESI”) for a temporary restraining order (ECF Doc. No. 5). A hearing on
ESI’s motion was held on May 9, 2017, at which counsel for ESI and Defendants
Samuel J. Lavin and Ocean Drug, Inc. d/b/a MDR Pharmaceutical Care (“MDR”)
appeared. For the following reasons, the motion will be granted.
BACKGROUND
The facts summarized herein are set forth in ESI’s Verified Complaint (ECF
Doc. No. 1). ESI is a corporation engaged in the business of providing integrated
pharmacy benefit management services including specialty pharmacy services. (Id.
at ¶ 8). As pertinent here, ESI, through its Freedom Fertility business unit (which it
acquired in 2005), provides specialty pharmacy services for infertility clinics and
their patients. (Id. at ¶¶ 9-12). Like ESI, MDR nationally dispenses specialty

infertility medications to infertility clinics and their patients across the country. (Id.
at ¶ 17).
Lavin began working for Freedom Fertility on August 3, 2001. (Id. at 20).
On April 1, 2009, Lavin was promoted to the position of Director-Sales, which he
referred to as National Sales Director, in the Freedom Fertility unit of ESI. (Id. at ¶
21). As National Sales Director, Lavin’s primary function was to drive the day-today business results through oversight and management within existing client
business, strategic initiatives and other key customers. He was the leader of the
critical charge to ensure the understanding and execution of the company sales and
marketing plans through front line management including 12 account managers
that he directly supervised, implementing regional strategies, account business
plans, responding to market changes, and establishing goals and tactics at the team
and individual contributor levels. He was responsible for leading all aspects of
sales execution and development process for account and product penetration, and
other sales achievements of a cross-segment sales team.
By virtue of his role as National Sales Director, Lavin personally called
upon and interacted with actual and potential ESI customers in performing his job.
(Id. at ¶ 24). He knows the identities of ESI’s customers along with customer
feedback and opinions (positive and negative) with respect to ESI’s products and
services, as well as those customers’ contract history and status. (Id. at ¶ 26). As
2

National Sales Director, Lavin was privy to weekly, monthly and annual volume
reports, strategic planning reports, and participated in pricing committee
conference calls where strategy was discussed. (Id. at ¶ 27). Lavin’s 15+ years of
experience with ESI, the last eight years of which as National Sales Director, have
provided him unique opportunities to build relationships with key decision makers
on behalf of ESI’s customers and potential customers. Due to those relationships,
Lavin now has not only the ability to divert those clients from ESI to MDR, but he
must do so in order to perform his job for MDR. (Id. at ¶ 35).
In consideration of his employment and the benefits and opportunities
provided by ESI and in order for ESI to protect its confidential information and
trade secrets, on February 7, 2014, Lavin electronically accepted a Nondisclosure,
Nonsolicitation and Noncompetition Agreement (the “Agreement”). (Id. at ¶ 36;
ECF Doc. No. 1-3). While Lavin now contends that he did not sign the Agreement,
this Court finds, based on the evidence presented and arguments of counsel, that
Lavin did, in fact, electronically sign and accept the Agreement.
On April 11, 2017, Lavin notified his supervisor, Todd Gritton (Sr. DirectorSales), that Lavin had received a job offer from MDR, that Lavin was inclined to
accept the job offer, and that he requested ESI to provide him assurances that it
would not enforce the restrictive covenants contained in his Agreement. Mr.
Gritton told Lavin that he appreciated that Lavin notified him. (Id. at ¶ 40).
3

Because he was familiar with MDR and understood that it is a direct competitor of
ESI in the specialty pharmacy business of infertility medication, Mr. Gritton told
him that he would need a job description for the offered position, which would
then be shared with ESI’s human resources and legal department. Mr. Gritton
further advised Lavin that, since MDR was a direct competitor of ESI in the
specialty pharmacy business for infertility medication, it was unlikely that ESI’s
human resources and legal department would consent to Lavin working for MDR
due to Lavin’s obligations under the Agreement. (Id. at ¶ 41).
In response, Lavin told Mr. Gritton on April 11 that MDR was aware of the
Agreement and, as a result, had prepared a job description for Lavin’s position at
MDR, entitled Executive Director of Customer Success. (Id. at ¶ 42; ECF Doc. No.
1-4). Furthermore, Lavin told Mr. Gritton that MDR prepared the Executive
Director of Customer Success job description to be as broad, vague and general as
possible in order to circumvent any issues with respect to Lavin’s obligations
under the Agreement. (Id. at ¶ 43). In subsequent discussions between Lavin and
Mr. Gritton, on April 14, Mr. Gritton informed Lavin that ESI would not release
him from his non-compete restrictive covenant obligations contained in his
Agreement and would not approve his request to accept employment with MDR as
its Executive Director of Customer Success. (Id. at ¶ 44).

4

While ESI rejected Lavin’s request to accept employment with MDR, Mr.
Gritton offered to work with Lavin to develop an exit strategy. For example, Mr.
Gritton proposed that Lavin could work for a non-competing business, such as the
genetic testing business, pharmaceutical manufacturing business, or some other
business in the fertility field that was not in the specialty pharmacy services
business, until the temporal limitations of his Agreement expired. Mr. Gritton also
offered to write a letter of recommendation for Lavin. (Id. at ¶ 45). Lavin rejected
Mr. Gritton’s proposals. (Id. at ¶ 46).
On April 19, 2017, ESI formally notified Lavin that it believed that his role
at MDR would be in direct violation of the Agreement between Lavin and ESI. ESI
informed Lavin that he should not accept the position at MDR. (Id. at ¶ 47). On
April 24, 2017, Lavin sent an email at approximately 10:00 p.m. informing ESI
that he had resigned in order to accept the position with MDR. (Id. at ¶ 48; ECF
Doc. No. 1-6).
ESI’s Verified Complaint contends that Lavin’s actions constitute a breach
of contract, and that by hiring Lavin, MDR tortuously interfered with a contractual
relationship. In addition, ESI asserts causes of action for violation of the Defend
Trade Secrets Act, the Missouri Uniform Trade Secrets Act, and civil conspiracy.
In its motion for a TRO, ESI asks the Court to temporarily enjoin MDR
from employing Lavin or using any confidential information derived from Lavin,
5

pending a preliminary injunction hearing. ESI asks that Lavin be similarly enjoined
from working for or disclosing trade secrets or confidential information to MDR.
Finally, ESI asks the Court to order expedited discovery in this matter and to set a
hearing in this matter on ESI’s motion for a preliminary injunction.1
In response, Lavin contends he did not sign the Agreement. 2 Defendants
also note that Lavin subsequently signed an agreement with MDR, dated May 4,
2017, which purports to restrict Lavin from using or disclosing any of ESI’s
confidential information and trade secrets.
1

Despite prior requests by ESI, Lavin failed to return his company owned and
issued cellphone and tablet until May 16, 2017. Lavin has refused to provide his
password for the devices which precludes ESI from accessing and inspecting the
devices.

2

The Agreement provides that any litigation arising under or relating to it shall be
subject to the jurisdiction and venue in a Missouri court situated in the County of
St. Louis, or in this Court. (ECF Doc. No. 1-3, Exhibit 1 at ¶12). The clause further
provides that Lavin waived the right to contest the jurisdiction and venue of those
courts. (Id.). Defendants filed motions to dismiss, contending that this Court lacked
personal jurisdiction over them based on their assertion that Lavin did not sign the
Agreement. As such, Defendants argued, the clause was not applicable. At the
TRO hearing, the Court heard argument from counsel on these motions and denied
them for the reasons stated on the record. The Court further notes that “Forum
selection clauses are prima facie valid and are enforced unless they are unjust or
unreasonable or invalid for reasons such as fraud or overreaching.” Union Elec.
Co. v. Energy Ins. Mut., Ltd., 689 F.3d 968, 973 (8th Cir. 2012) (quoting M.B.
Restaurants, Inc. v. CKE Restaurants, Inc., 183 F.3d 750, 752 (8th Cir. 1999)).
Moreover, “parties to a contract may agree in advance to submit to personal
jurisdiction in a given court by means of a forum selection clause because personal
jurisdiction is an individual right capable of being waived.” Whelan Sec. Co., Inc.
v. Allen, 26 S.W.3d 592 (Mo. App. 2000). Thus, the clause is enforceable and
jurisdiction and venue are proper in this Court.
6

According to Defendants, this is a sufficient and less-restrictive means of
preventing any irreparable harm. Defendants also contend that the customer
information and price lists are publicly available and, therefore, not protectable
interests. Finally, Defendants assert that ESI has offered mere conjecture regarding
the purported misappropriation of trade secrets.
DISCUSSION
In determining whether to issue a TRO, the Court must consider the
following four factors: (1) the threat of irreparable harm to the movants; (2) the
balance between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movants will succeed on the merits;
and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113
(8th Cir. 1981) (en banc); see also Home Instead, Inc. v. Florance, 721 F.3d 494,
497 (8th Cir. 2013). The party requesting injunctive relief bears the “complete
burden” of proving that an injunction should be granted. Gelco Corp. v. Coniston
Partners, 811 F.2d 414, 418 (8th Cir. 1987).
Likelihood of Success on the Merits
The Court is satisfied that ESI is likely to succeed on the merits of several of
its claims, including its request for enforcement of the Agreement, as well as its
request for injunctive relief in order to protect the disclosure of its confidential
information and trade secrets.
7

Under Missouri law, non-compete covenants are enforced if they are
reasonable under the circumstances and their enforcement serves legitimate
protectable interests. Mayer Hoffman McCann, P.C. v. Barton, 614 F.3d 893, 908
(8th Cir. 2010). Defendants contend that the Agreement is overly broad and,
therefore, unenforceable because it restricts Lavin’s employment opportunities for
one year in both the United States and Canada. The Court finds that the Agreement
at issue is a narrowly-tailored effort by ESI to keep its information secret and
retain competitive advantage, and it is more than adequately limited in scope.
With respect to scope, the Agreement is reasonable under the circumstances
because Lavin was a high level and highly compensated executive of the Freedom
Fertility business unit, the last eight years of which he served as National Sales
Director at ESI. His noncompetition covenant limits his employment with MDR
for only one year, which is reasonable as a matter of law. Whelan Security Co. v.
Kennebrew, 379 S.W.3d 835, 846-47 (Mo. banc 2012)(“Considerable precedent in
Missouri supports the reasonableness of a two-year non-compete agreement. . .”);
Panera, LLC v. Nettles, No. 16-cv-1181-JAR, 2016 U.S. Dist. LEXIS 101473,
*6 (Aug. 3, 2016) (“the non-competition agreement at issue limits [defendant’s]
employment for only one year, which is reasonable”). Indeed, Missouri courts have
held that non-compete agreements with a restrictive time period much longer than
a one-year restriction are reasonable. See, e.g., Whelan, 379 S.W.3d at 846-47;
8

Alltype Fire Prot. Co. v. Mayfield, 88 S.W.3d 120, 123 (Mo. App. 2002) (finding a
two-year limitation on employment reasonable); Church Mut. Ins. Co. v. Sands,
2014 U.S. Dist. LEXIS 93303, at *9 (W.D. Mo. July 9, 2014) (holding a three-year
non-compete agreement is enforceable).
Courts applying Missouri law also readily enforce geographical limitations
that span nationwide. See, e.g., Sigma Chemical Co. v. Harris, 586 F. Supp. 704,
710 (E.D. Mo. 1984)(enforcing two-year, worldwide limitation); Superior Gearbox
Co. v. Edwards, 869 S.W.2d 239 (Mo. App. 1993) (enforcing a nationwide noncompete for five years). Here, as National Sales Director at ESI, Lavin personally
managed or had direct oversight of ESI accounts across the country. He directly
supervised twelve direct reports who handled sales in assigned regions across the
country. 3
Enforcing the Agreement also serves legitimate protectable interests of ESI.
An employer has a legitimate protectable interest in its confidential and trade
3

3 The Agreement also provides that if any of its restrictions are found by any
court of competent jurisdiction to be unenforceable because it extends for too long
a period of time or over too great a range of activities or in too broad a geographic
area, it shall be interpreted to extend only to cover the maximum period of time,
range of activities, or geographic area as to make such restriction reasonable as a
matter of law and enforceable, as modified. (ECF Doc. No. 1-3 at ¶ 9). Missouri
courts have the right to modify and enforce unreasonable restrictions to the extent
they are reasonable. Kennebrew, 379 S.W.3d at 844 (“when the provisions of a
non-compete clause impose a restraint that is unreasonably broad, appellate courts
can still give effect to its purpose by refusing to give effect to the unreasonable
terms or modifying the terms of the contract to be reasonable”).
9

secret information (including customer lists), its customer relationships, and the
goodwill that developed while Lavin worked for ESI. Whelan Security Co. v.
Kennebrew, 379 S.W.3d 835 (Mo. 2012). The Missouri Supreme Court has
recognized the employer’s legitimate interest in customer contacts to “protect
against ‘the influence an employee acquires over his employer’s customers through
personal contact.’” Kennebrew, 379 S.W.3d at 842 (quoting Healthcare Servs. of
the Ozarks, Inc. v. Copeland, 198 S.W.3d 604, 611 (Mo. 2006)). As such, customer
non-solicitation provisions in relation to customers whom the employee dealt with,
such as the provision in the Agreement, is reasonable to protect the employer’s
interests and, as such, enforceable. Whelan, 379 S.W.3d at 844-45. For example, in
Mid-States Paint & Chemical Co. v. Herr, 746 S.W.2d 613, 618 (Mo. App. 1988),
the court affirmed the lower court’s holding that access to customer lists, pricing
information, and formula books warranted enforcement of a restrictive covenant
for period of three years.
Likewise, in Cape Mobile Home Mart, Inc. v. Mobley, 780 S.W.2d 116, 11719 (Mo. App. 1989), the court affirmed the lower court’s finding that a restrictive
covenant was enforceable where an employee possessed access to monthly and
year-to-date sales and profit statistics, quarterly business and sales reports, a
companywide operations and procedures manual listing employer policies and
procedures, as well as customer lists. The court also noted that the employer
10

advised employee that he would have access to a great deal of confidential
information that he could not share.
Here, Lavin’s continued access to and use of ESI’s confidential information
and trade secrets was robust, and – as set forth above – he was privy to ESI’s most
detailed confidential information and trade secrets regarding its customer
relationships and goodwill, customer contracts, and business strategies moving
forward. “An express agreement not to compete may be enforced as to employees
having substantial customer contacts. It is not necessary to show that there is a
secret customer list.” Emerson Elec. Co. v. Rogers, 418 F.3d 841, 845 (8th Cir.
2005) (quoting Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 75 (Mo. 1985)).
Moreover, ESI makes concerted efforts to keep the development of these
systems and processes confidential by limiting access to these materials to highlevel executives, all of whom sign non-compete agreements, and labeling highlysensitive confidential documents as proprietary and confidential.
MDR fits squarely in the prohibited category of Paragraph 2(i) of the
Agreement--i.e.: “pharmacy benefit management, including without limitation mail
order and specialty pharmacy services, specialty pharmaceutical distribution,
prescription drug claim’s processing or formulary development or administration”-as that is the business line in which he worked for ESI. The restriction supports
ESI’s legitimate business interests in protecting its confidential information
11

and trade secrets, its goodwill, and it customer relationships.
In their opposition, Defendants argue that the tortious interference claim is
“married to the baseless and problematic” breach of contract claim. (ECF Doc. No.
18 at p. 9). Essentially, Defendants claim that the tortious interference claim fails
for the same reasons the breach of contract claim fails. As discussed above, this
Court finds the breach of contract claim is likely to succeed on the merits. This
Court also finds ESI likely to succeed on the merits of its tortious interference
claim. “The elements of a claim for tortious interference with contract are: (1) a
contract; (2) defendant’s knowledge of the contract; (3) intentional interference by
the defendant inducing or causing a breach of the contract; (4) absence of
justification; and (5) damages resulting from defendant’s conduct.” Howard v.
Youngman, 81 S.W.3d 101, 112-113 (Mo. App. 2002). The Court finds that ESI
satisfies each.
As discussed above, Lavin appears to have breached the Agreement. The
evidence demonstrates that MDR was aware of the Agreement. Lavin told his
supervisor so. Lavin said that, not only was MDR aware of the Agreement, but it
crafted a job description to be as broad, vague and general as possible in order to
circumvent any issues with respect to Lavin’s obligations under the Agreement.
Moreover, Lavin asked ESI to release him from his obligations under the
Agreement so that he could work for MDR. ESI refused. Lavin resigned anyway
12

and MDR began employing despite its knowledge of the Agreement and the
refusal to release the restrictions. At this point, MDR has provided no justification
for such behavior.
The Court also finds ESI likely to succeed on the merits of its trade secret
claims. The DTSA defines “trade secret” as:
all forms and types of financial, business, scientific, technical,
economic, or engineering information, including patterns, plans,
compilations, program devices, formulas, designs, prototypes,
methods, techniques, processes, procedures, programs, or codes,
whether tangible or intangible, and whether or how stored,
compiled, or memorialized physically, electronically, graphically,
photographically, or in writing if—
(A) the owner thereof has taken reasonable measures to keep
such information secret; and
(B) the information derives independent economic value, actual
or potential, from not being generally known to, and not being
readily ascertainable through proper means by, another person who
can obtain economic value from the disclosure or use of the
information.
18 U.S.C. § 1839(3). The definition of “trade secret” under the MUTSA is
substantially the same. See Mo. Rev. Stat §417.453(4). ESI has established the
information possessed by Lavin constitutes “trade secrets” under the statutes, and
that Lavin may have actually misappropriated or threatens to misappropriate them.
Here, Lavin has created, contributed to the creation of, and been privy to a host of
confidential information and trade secrets, including: the names of and specific
contacts at ESI’s customers and potential customers; all contracts between ESI and
its customers, along with the terms of those contracts; customer feedback and
13

opinions (positive and negative) with respect to ESI’s products and services, as
well as their contract history and status; marketing plans, including new products
in development; and the pricing and profit margins of ESI’s products. As National
Sales Director, Lavin was privy to weekly, monthly and annual volume reports,
strategic planning reports, which contain such information. (ECF Doc. No. 1 at
¶¶ 23-27).
ESI’s confidential contract and customer information, including the identity
of customers and potential customers, the terms of contracts, the reimbursement
schedules and rates for such contracts, marketing plans, and new products in
development provide independent economic value to ESI and fall within the
definition of trade secrets.
The evidence demonstrates that ESI undertakes reasonable measures to keep
confidential and secret its confidential contract and customer information,
including the identity of customers and potential customers, the terms of contracts,
the reimbursement schedules and rates of the contracts, marketing plans, and new
products in development. For example, ESI requires employees to sign
nondisclosure, nonsolicitation and noncompetition agreements, as Lavin did.
In addition, documents generally are password protected and contain
“confidential” legends, and ESI conducts security monitoring of external e-mails
and document transfers. ESI gains a benefit from having its confidential
14

information and trade secrets remain unknown outside ESI. Conversely, its
competitors, such as MDR, would profit at ESI’s expense from knowing such
information and trade secrets.
Moreover, if Lavin is permitted to work at MDR, his use and disclosure of
the trade secrets are inevitable. This is so because (1) the nature of his
responsibilities at MDR are akin to those he held for ESI and require his
consideration of ESI’s trade secrets in the faithful performance of those
responsibilities, and (2) Lavin’s actions, and the obfuscation engaged in by
Lavin and MDR since Lavin first announced his intent to accept the position at
MDR (including the manufacturing of the job description specifically to avoid
Lavin’s obligations under the Agreement), demonstrate a lack of candor and an
unwillingness to preserve confidentiality on the part of Lavin and MDR. See H&R
Block Eastern Tax Services, Inc. v. Enchura, 122 F. Supp. 2d 1067, 1074-75 (W.D.
Mo. 2000). Such threatened misappropriations also can be enjoined. Mo. Rev. Stat
§417.455.1.
Lavin will have decision-making authority in his job at MDR; his
responsibilities will be similar to those he held with ESI; his ESI position required
his use of ESI’s trade secrets and so will his job at MDR; Lavin developed, or
contributed to the development of, the ESI trade secrets at issue; and the nature of

15

the trade secrets Lavin possesses are easily subject to memorization. See H&R
Block Eastern Tax Services, 122 F. Supp. 2d at 1075.
Irreparable Harm to ESI Absent an Injunction
“[T]o demonstrate irreparable harm, a party must show that the harm is
certain and great and of such imminence that there is a clear and present need for
equitable relief.” Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895 (8th Cir.
2013). This Court finds ESI will suffer irreparable harm if the terms of the
restrictive covenants are violated. “Loss of intangible assets such as reputation and
goodwill can constitute irreparable injury.” United Healthcare Ins. Co. v.
AdvancePCS, 316 F.3d 737, 741 (8th Cir. 2002). “Courts generally hold that the
disclosure of confidential information such as customer information and business
strategy will result in irreparable harm to the plaintiff.” Experitec, Inv. v.
Stachowski, 2014 U.S. Dist. LEXIS 185282, at *7 (E.D. Mo. Jan. 30, 2014).4
Defendants contend that Lavin’s new role at MDR, as its Executive Director of
Customer Success, is one where Lavin is not and will not be seeking to acquire

4

The Court notes that Lavin’s role as ESI’s National Director of Sales also
required him to manage existing ESI relationships. In fact, the first sentence of
ESI’s job description for Lavin’s position states that “The primary function of the
Director of Account Management is to drive the day-to-day business results
through oversight and management within existing business, strategic initiatives
and other key customers.” (ECF Doc. No. 1-5) (emphasis added).
16

new business or sales for MDR. Instead, they claim, Lavin’s position will be
managing existing MDR relationships.
Defendants also put much stock into an “agreement” they purportedly
entered into two days after ESI filed this lawsuit, which purportedly restricts Lavin
from disclosing any confidential information or trade secrets of ESI. (ECF Doc.
No. 18-4). The Court finds these arguments unpersuasive at the TRO stage.
Notably, this “agreement” does not restrict Lavin from violating the nonsolicitation and non-competition provisions of his Agreement with ESI. Thus, even
by its own terms, the “agreement” is insufficient to prevent irreparable harm to
ESI.
It is not necessary for the employer to show that actual damage has occurred
in order to obtain injunctive relief. Ashland Oil v. Tucker, 768 S.W.2d 595, 601
(Mo. App. 1989); Osage Glass, Inc. v. Donovan, 693 S.W.2d 71, 75 (Mo. 1985). If
the covenant is lawful, and the opportunity for influencing the employer’s
customers to the former employer’s disadvantage, enforcement is appropriate.
Ashland Oil, 768 S.W.2d at 601; Osage Glass, 693 S.W.2d at 75; see also
Systematic Business Services, Inc. v. Bratten, 162 S.W.3d 41, 51 (Mo. Ct. App.
2005) (where the restrictive covenant is valid and the former employee has an
opportunity to influence his former employer’s customers, actual damages are not
necessary to obtain permanent injunctive relief).
17

“The district court is empowered to issue an injunction ‘even without a
showing of past wrongs,’ so long as ‘there exists some cognizable danger of
recurrent violation.’” Church Mut. Ins. Co. v. Sands, 2014 U.S. Dist. LEXIS
110953, at *6 (W.D. Mo. Aug. 11, 2014) (quoting U.S. v. W.T. Grant Co., 345
U.S. 629, 633 (1953)). A former employee’s “possible disclosure or use of
confidential information such as customer information” is relevant in determining
irreparable harm. Id. (quoting Medtronic, Inc. v. Gibbons, 684 F.2d 565, 569 (8th
Cir. 1982)).
“The mere violation of a valid non-compete agreement can support an
inference of the existence of a threat of irreparable harm.” Sands, 2014 U.S. Dist.
LEXIS 110953, at *7 (W.D. Mo. Aug. 11, 2014) (citing N.I.S. Corp. v. Swindle,
724 F.2d 707,710 (8th Cir. 1984)). Irreparable harm is also properly presumed
where there is evidence that a covenant not to compete is breached or confidential,
proprietary information is being improperly used. H&R Block Tax Servs. LLC v.
Haworth, 2015 U.S. Dist. LEXIS 127010 (W.D. Mo. Sept. 22, 2015). As in
Haworth, monetary relief will not adequately protect ESI’s interests in these
relationships, and it cannot fully remedy ESI’s loss of goodwill, confidential
information and other legitimate business advantage. Id. at *9.
In addition, “[c]ourts regularly find irreparable harm where a non-compete
agreement states that it breach constitutes irreparable injury.” Panera, LLC v.
18

Nettles, 2016 U.S. Dist. LEXIS 101473, at *10-11 (E.D. Mo. Aug. 3, 2016). Such
is the case here. Lavin agreed with ESI that “the breach of any provision of this
Agreement shall result in irreparable injury and damage to the Company, that there
is no adequate remedy at law for such breach, and that the Company should be
entitled to specific performance, injunctive relief and other equitable remedies in
addition to any remedies provided by law, together with the Company’s attorney’s
fees and costs.” (ECF Doc. No. 1 at ¶¶ 36-37; ECF Doc. No. 1-3 at ¶ 11).
As recently acknowledged by the Court, in Nettles, while Missouri has not
formally adopted the doctrine of inevitable disclosure, the Court found the
rationale underpinning the theory helpful in understanding how a former
employee’s performance in his new role would “almost certainly require him to
draw upon and use trade secrets and the confidential strategic planning to which he
was privy.” Nettles, 2016 U.S. Dist. LEXIS, *11-12. The Court then held that the
disclosure of confidential information such as business strategy would result in
irreparable harm to the former employer, and the Court agreed that the employee’s
employment with the new employer was likely to lead to such disclosure. Id.
Lavin’s entire career has been in the sale of infertility medication to fertility
clinics, the medical professionals employed by such clinics and their patients.
This Court went on to hold that, even without relying on such inevitable
disclosure, where the irreparable harm includes not only the divulgence of trade
19

secrets, but also the violation of a binding non-competition agreement, the remedy
at law is inadequate because such damages would be difficult if not impossible to
measure. Id. at *12. The Court also found it significant that the employee had
agreed, as Lavin did here, that his breach would constitute irreparable harm. The
same rationale applies to this case. The Court finds that ESI has demonstrated that,
absent injunctive relief, it has suffered and will continue to suffer irreparable harm.
Balance of Harms
The Court finds that in contrast to the irreparable harm that ESI will suffer if
injunctive relief is not granted, Defendants will suffer comparatively slight harm.
Lavin accepted employment with MDR after being told by ESI that doing so would
violate his Agreement because MDR is a direct competitor of ESI in the fertility
specialty pharmacy business, a narrow and competitive industry. While Lavin will
not be permitted to immediately join MDR, he remains free to obtain other
employment that calls for his general management and/or sales skills. Lavin’s
supervisor even told him that Lavin was free to seek employment in the fertility
industry, but he could not work for a competitor in the specialty pharmacy
business, as MDR clearly is. Additionally, the harm to Lavin, if enjoined at least
until such time as the Court can hold a preliminary injunction hearing, can be
satisfied by the payment of any monies that may be lost during the period of nonemployment. Thus, the harm that ESI has suffered, and will continue to suffer
20

absent an injunction, outweighs any harm that may befall Defendants if their
actions are enjoined.
The Public Interest
Here, the balance of the equities also favors granting ESI’s motion for
injunctive relief. Enjoining Defendants from violating ESI’s contractual rights and
federal and Missouri statutes will not harm the public, as it will continue to have
access to MDR’s (and other competitors’) products and services. Conversely,
denying injunctive relief will cause ESI irreparable harm, undermine the
enforcement of federal and Missouri statutes, deny ESI the benefit of its bargain
with Lavin, and cost ESI business and clients that it would not have lost but for the
current situation. Moreover, parties should be able to rely on each other to comply
with their agreements and should be able to rely on the courts to enforce
agreements when they are breached. The public interest thus weighs in favor of
enjoining Defendants as requested by ESI.
CONCLUSION
Based upon the foregoing analysis, the Court concludes a temporary
restraining order is appropriate.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for a temporary

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restraining order (ECF Doc. No. 5) is GRANTED. The Court hereby orders as
follows:
1.

That Defendant Samuel J. Lavin (“Lavin”) shall immediately cease
and desist, and is hereby enjoined from either directly or indirectly
acting on behalf of, advising, consulting, or working for Defendant
Ocean Drug, Inc. d/b/a MDR Pharmaceutical Care, together with any
related affiliates or subsidiaries (collectively “MDR”), and shall
remain enjoined from working for MDR until further order;

2.

That MDR shall immediately cease and desist, and is hereby enjoined
from either directly or indirectly seeking advice from, consulting with,
employing or permitting Lavin to provide services to MDR, and shall
remain enjoined from so doing until further order;

3.

That Lavin shall be enjoined from seeking, acquiring, using, or
disclosing any of ESI’s trade secrets or confidential information;

4.

That MDR shall be enjoined from seeking, acquiring, using, or
disclosing any of ESI’s trade secrets or confidential information that
Lavin acquired in the course of, or arising out of, his employment
with ESI;

5.

That Lavin shall preserve all documents and information that he
acquired or took from ESI;
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6.

That Lavin shall provide counsel for ESI with his password(s) for the
ESI owned cell phone and tablet within six hours of the entry of this
Order;

7.

That Lavin shall be enjoined from breaching the Nondisclosure,
Nonsolicitation and Noncompetition Agreement he signed on
February 7, 2014.

8.

The parties shall submit to a deposition upon three business days’
notice;

9.

The parties shall respond to any interrogatories under F.R.C.P. 33 and
to any document requests under F.R.C.P. 34 within seven days of
service of same; and

10.

Pursuant to Fed. R. Civ. P. 65(b)(2), this Order shall remain in effect
until the next hearing on this matter, on Plaintiff’s motion for a
preliminary injunction, which the Court hereby sets for July 17, 2017,
at 11:00 a.m., or such other appropriate time to which the parties
consent and agree, in the courtroom of the undersigned.

Dated this 7th day of July, 2017.

________________________________
HENRY EDWARD AUTREY
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UNITED STATES DISTRICT JUDGE

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