Home Instead, Inc. v. Florance et al

Filing 177

PERMANENT INJUNCTION Ordered by District Judge John M. Gerrard.(Zwart, Cheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

HOME INSTEAD, INC., a Nebraska Corp.,
Plaintiff,
vs.
DAVID FLORANCE, MICHELLE FLORANCE,
and FRIEND OF A FRIEND, INC.,
Defendants.

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Case No. 8:12-CV-264

ORDER OF PERMANENT
INJUNCTION

IT IS HEREBY ORDERED:
1.

Defendants shall wind down Friend of a Friend, Inc. d/b/a Home Care of the Palm

Beaches (“FOF”) by no later than August 31, 2014. “Winding down” means that Defendants
shall stop servicing all clients of FOF and shall transition all clients of FOF to other providers for
no monetary consideration.
2.

Defendants and their respective officers, agents, employees, servants,

representatives, attorneys, and all other persons under their authority or who are acting in concert
with Defendants or on their behalf shall, effective on the first day after Defendants issue to
Home Instead, Inc. (“Home Instead”) a written certification of completion of the winding down
process or September 1, 2014 (“Effective Date”), whichever comes first:
a. Not directly or indirectly represent to the public or hold themselves out as a
present or former franchisee of Home Instead, including without limitation,
representing such on any social media or association website profiles;

b. Not use, in any manner whatsoever, any confidential methods, computer software,
procedures, techniques, or telephone numbers associated with the unique
management and business system for non-medical companionship and domestic
care-services for senior citizens known as Home Instead Senior Care (the
“System”);
c. Not communicate or order products from any of Home Instead’s approved
suppliers;
d. Not use any of the trademarks, domain names, service marks, logos or other
commercial symbols associated with the System, including, without limitation,
HOME INSTEAD SENIOR CARE® (collectively the “Licensed Marks”);
e. Not use any distinctive forms, slogans, signs, symbols and devices associated with
the System including, without limitation, signs, advertising materials, displays,
stationary, forms, Home Instead training materials, any other proprietary materials
of Home Instead, or any other articles that display a Licensed Mark;
f. Make any modifications or alterations necessary to distinguish their business
office from its appearance while operating as a HOME INSTEAD SENIOR
CARE® franchisee so as to prevent any possibility of confusion by the public;
g. Take any action required to cancel all fictitious or assumed names or equivalent
registrations relating to any of the Licensed Marks;
h. On or before August 31, 2014, notify the telephone company and all listing
agencies to cancel all telephone numbers (including toll free numbers) and
regular, classified, or other telephone directory listings ever associated with Home

Care of the Palm Beaches or the Licensed Marks, and provide Home Instead with
written verification of same;
i. Deliver to Home Instead the following proprietary and/or Confidential
Information (which for purposes of this Order is defined as the methods,
techniques, formats, specifications, procedures, information, systems, and
knowledge of and experience in the operation and franchising of a HOME
INSTEAD SENIOR CARE® business, including, without limitation, Home
Instead’s training program and operations manual), which belong to Home
Instead: all copies, in any form, of Home Instead’s operations manual, software
licensed by Home Instead, training materials, and forms related to Defendants’
operation of a HOME INSTEAD SENIOR CARE® franchised business pursuant
to the 2002 Renewal Franchise Agreements for Franchise Nos. 176 and 285
(“2002 Renewal Franchise Agreements”). Defendants shall destroy all remaining
files and records related to Defendants’ operation of a HOME INSTEAD
SENIOR CARE® franchised business pursuant to the 2002 Renewal Franchise
Agreements, including, without limitation, agreements, invoices and any
documents containing client information (all of which constitute Home Instead’s
Confidential Information), and any copies of the foregoing documents and
records. Defendants must delete all such documents, records, and information
that are maintained in electronic form. Defendants must not retain any copy or
record of any of the foregoing, except Defendants’ copies of the initial and
renewal franchise agreements for Franchise No. 176 and 285, any correspondence
between the parties, and any other documents that Defendants reasonably need for

compliance with any provision of law. Notwithstanding the requirement that
Defendants destroy all documentation containing client information, Defendants
may forward to third party providers documents necessary to transition clients to
the respective third party providers during the winding down process;
j. Furnish to Home Instead, within thirty (30) days after the Effective Date,
evidence satisfactory to Home Instead of Defendants’ compliance with
paragraphs 2(a) through 2(i);
k. Not use Home Instead’s Confidential Information, which includes, without
limitation, client information and Home Instead’s operations manual, in any other
business or capacity;
l. Maintain the absolute confidentiality of Home Instead’s Confidential Information;
m. Not make any unauthorized copies of any portion of Home Instead’s Confidential
Information disclosed in written form;
n. For a period of one (1) year from the Effective Date, refrain from either directly
or indirectly, for themselves or through, on behalf of, or in conjunction with any
other person, partnership, corporation or limited liability company:
i. except for the “winding down” of FOF, performing any act injurious or
prejudicial to the goodwill associated with the Licensed Marks and the
System;
ii. owning, maintaining, operating, engaging in, or having any financial or
beneficial interest (including any interests in any corporations,
partnerships, trusts, limited liability companies, incorporated associations
or joint ventures) advising, assisting, or making loans to, any business that
is of a character and concept similar to a HOME INSTEAD SENIOR
CARE® franchised business. The term “similar” means a business that
looks like, copies, imitates or operates in a manner similar to a HOME
INSTEAD SENIOR CARE® franchised business, including, but not
limited to, any senior care business, and which business is, or is intended
to be, located within a seventy-five (75) mile radius of the location of any
HOME INSTEAD SENIOR CARE® franchised business or within

seventy-five (75) miles of the franchised business granted by the 2002
Franchise Renewal Agreements. This clause is not intended to prohibit
Defendants’ attorneys of record in this litigation from providing legal
counsel to a business that is of a character and concept similar to a HOME
INSTEAD SENIOR CARE® franchised business, so long as they do not
make use of any information or documents from this litigation.

DATED this 1st day of July, 2014.
BY THE COURT:

s/ John M. Gerrard
John M. Gerrard
United States District Judge