Free Country LTD v. Drennen et al

Filing 33

OPINION: For all the foregoing reasons, the Court, in its Order dated December 9, 2016 granted in part plaintiff's motion for a renewed TRO, but rejected plaintiff's request that defendants be prohibited from soliciting Free Country's customers for the fall 2017 season. (Signed by Judge Jed S. Rakoff on 12/30/2016) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------- x
FREE COUNTRY LTD,
Plaintiff,

-v-

16 CV 8746 (JSR)
OPINION

BRIAN DRENNEN, MATTHEW VANDER
WYDEN, ROUSSO APPAREL GROUP, INC.
and SANTA FE APPAREL, LLC,
Defendants.
JED S. RAKOFF, U.S.D.J.
This dispute comes before the Court after Plaintiff Free Country
LTD ("Free Country") moved ex parte for an order to show cause for a
preliminary injunction and temporary restraining order ("TRO") against
defendants Brian Drennen, Matthew Vander Wyden, Rousso Apparel Group,
Inc.

("Rousso") , and Santa Fe Apparel, LLC ("Santa Fe")

(collectively,

the "defendants"). In brief, plaintiff alleges that its former
employees, defendants Drennen and Vander Wyden, have misappropriated
plaintiff's trade secrets in order to establish a competing product
line for defendants Rousso and Santa Fe.

Initially, the Court granted

the plaintiff's motion by Order dated November 10, 2016, which it
amended on November 17, 2016. Subsequently, however, after counsel for
defendants had appeared, the Court held a three-day evidentiary
hearing to put the TRO to the test of the adversary system.
Thereafter, on the basis of the Court's assessment of the evidence
presented at that hearing (including its assessment of the witnesses'
demeanor and credibility), the Court by Order dated December 9, 2016
granted in part plaintiff's motion for a renewed TRO by prohibiting

defendants from using or disseminating plaintiff's confidential
information, but denied plaintiff's request that defendants be

the fall 2017 season. This Opinion explains the reasons for these
post-hearing rulings.
Plaintiff Free Country is an apparel manufacturer and wholesaler
with approximately 65 employees. See transcript of evidentiary hearing
("Tr.")

172:5-10. Plaintiff maintains a wide variety of business

information on a shared network system,
email accounts to its employees,

id. at 177-178, and provides

id. at 178:7-9. Employees access

these systems by logging in to password-protected computers provided
by Free Country, id. at 267:20-23, and plaintiff generally requires
new hires to sign a confidentiality agreement and an acknowledgement
of the company's handbook. Id. at 179:19-25. By signing the documents,
the employees agree to not disseminate Free Country's proprietary
information.

Id. at 180-181; 190-191.

In August 2014, plaintiff hired defendant Drennen, who had 20
years of experience in the apparel industry, to oversee Free Country's
Men's and Ladies' active wear as Vice President of Sales. Id. at
173:22-174:11; 382:13-25. In November 2015, plaintiff hired defendant
Vander Wyden, who had 30 years of industry experience, as a director
of sales for Men's outerwear.

Id. at 176:2-6; 282:9-23.

1

While it is disputed whether Vander Wyden signed a confidentiality
agreement and acknowledgement of the company's handbook, Tr. 321:2-14,
Vander Wyden was aware that by accepting employment at Free Country he
was bound not to disclose Free Country's confidential information. Id.
1

2

Both Drennen and Vander Wyden had a practice of transferring
materials from Free Country's server during their employment. In or

sharing program called "Dropbox," id. at 345:25-346:3, which allows
users to transfer information among "linked" devices using an online
"cloud" account. Id. at 85:2-86:2; 21:22-22:10. Drennen testified that
he used the program to aid his work while he was on the road or at
home, and linked three personal devices to his Dropbox account while
at Free Country: an Android phone, an iPad, and an iMac.

Id. at 346:6-

16. Defendant Vander Wyden, in turn, frequently emailed to himself
Free Country's "Master Contact List," id. at 327:16-23, which
contained the contact information for the company's clients, id. at
231:17-19. Vander Wyden testified that he used the list while
traveling on Free Country's behalf.

Id. at 334:12-20.

Neither Drennen nor Vander Wyden were happy at Free Country. Id.
at 290:14-17; 430:9-16. In late September 2016, Drennen and Vander
Wyden began employment negotiations with defendant Rousso.2 Id. at
315:10-20. Vander Wyden subsequently resigned from Free Country on
October 13, 2016, after receiving an offer to create a competing
product line for Rousso's newly-formed division,

"Mountain and Isles."

Id. 279:2-3; 316:11-15. Prior to his departure, however, Vander Wyden

at 281-284.
2 Defendant Santa Fe is an affiliate of Rousso located in the same
office space as Mountain and Isles. Tr. 315:2-317:3. It does not
appear that defendants were in negotiations with Santa Fe. Id.
3

emailed to his personal address on October 10 and 11, 2016 copies of
several documents, including Free Country's Master Contact List and an

at 291-293.
The same day that Vander Wyden resigned,

Drennen began

transferring a substantial quantity of information from Free Country's
server into his Dropbox account, including customer orders and design
information for the fall 2017 season.

3

Id. at 89:21-90:5; 201:3-21.

Drennen made an additional transfer on October 18, 2016,

id. at 126:8-

17, and resigned from Free Country three days later on October 21,
2016 to join Mountain and Isles, id. at 111:9-12. Drennen uninstalled
Dropbox from his Free Country computer the same day.
During the evidentiary hearing,

Id. at 115:15-20.

Drennen testified that he transferred

the materials so that he could review the files for personal
information, id. at 353:1-10, and that he deleted any Free Country
documents by October 22, 2016, id. at 358:10-15. The Court entirely
discredits the first statement, but is inclined to credit the second
statement.
Free Country discovered the document transfers after reviewing
Drennen's laptop and issued cease and desist letters to defendants
Drennen and Vander Wyden on October 27, 2016.

4

Id. at 199:17-200:17;

The precise quantity is subject to dispute. Free Country estimates
that defendant Drennen transferred nearly 50,000 files and 257GB of
information. See Tr. at 89:21-90:5. Defendant Drennen argues that the
amount is much smaller. Id. at 97:2-98:11.

3

4

The parties dispute the precise day that Drennen received the
4

415:15-416:3; 417:12-24. On November 10, 2016, plaintiff moved ex
parte for an order to show cause for a preliminary injunction and
temporary reBtraining order, alleglr19 among oLher cau5e5 of action
that defendants had misappropriated Free Country's trade secrets in
violation of New York law and the Defend Trade Secrets Act
18 U.S.C. § 1831. See ECF No.
see ECF No.

("DTSA"),

1. The Court granted plaintiff's motion,

9, and held a hearing on the order to show cause on

November 15, 2016. On November 17, 2016, the Court extended and
amended its order to prohibit defendants Drennen and Vander Wyden from
soliciting Free Country's customers unless defendants could show that
such customer contact information was in their possession prior to
their employment at Free Country. See ECF No. 17. The amended order
also required that defendant Drennen permit inspection of his Dropbox
account by a neutral forensic expert agreed upon by the parties or
appointed by the Court.

Id. By consent orders dated November 20 and

21, 2016, the Court appointed Robert Knudsen as the neutral forensic
expert and established a protocol for his examination of the account.
See ECF No.
November 29,

18, 19. Mr. Knudsen submitted his report to the Court on
2016, which the Court provided to the parties the

following day. The Court subsequently held an evidentiary hearing on
the temporary restraining order on December 5,

7, and 8,

2016, the key

issue of which was whether the Court should prohibit defendants
Drennen and Vander Wyden from soliciting Free Country's customers in

letter, id. at 415:10-21, but this fact is immaterial to the current
proceedings.
5

connection with the fall 2017 season. By order dated December 9, 2016,
the Court granted in part plaintiff's motion for a renewed TRO, but
denied the p~opoood non-ool~c~tot~on prov~o~on.

The standard for an entry of a TRO is essentially the same as for
a preliminary injunction. Andino v. Fischer, SSS F. Supp. 2d 418,
(S.D.N.Y. 2008). The main differences are,

first,

that a TRO is often

granted ex parte but thereafter has a limited lifespan and,
that even where

(as here)

419

second,

there is a subsequent adversarial hearing on

the TRO, it typically occurs before there has been extensive
discovery. Therefore, a TRO, perhaps even more so than a preliminary
injunction, is an "extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the
burden of persuasion." JBR,
F. App'x 31, 33

Inc. v. Keurig Green Mountain,

(2d Cir. 201S)

Inc.,

(quoting Sussman v. Crawford,

618

488 F.3d

136, 139 (2d Cir. 2007)).
A party seeking a TRO,

like one seeking a preliminary injunction,

must typically show four elements:
ultimate merits of the lawsuit;

(1) a likelihood of success on the

(2) a likelihood that the moving party

will suffer irreparable harm if a TRO is not granted;

(3) that the

balance of hardships tips in the moving party's favor; and (4) that
the public interest is not disserved by the relief granted. Id.
(citing Salinger v. Colting,

607 F.3d 68,

TRO, like a preliminary injunction,
Winter v. Nat. Res. Def. Council,

79-80

(2d Cir. 2010)). A

is "never awarded as of right,"

Inc.,

6

SSS U.S. 7, 24

(2008), and

whether to grant such relief "rests in the sound discretion of the
district court," JSG Trading Corp. v. Tray-Wrap,
(:id

C~r.

Inc.,

917 F.2d 75,

79

1000).

The underlying substantive claims largely rest on alleged
misappropriation of Free Country's trade secrets. The requirements for
showing a misappropriation of a trade secret are similar under state
and federal law. Under New York law, a party must demonstrate:

(1)

that it possessed a trade secret, and (2) that the defendants used
that trade secret in breach of an agreement, confidential relationship
or duty, or as a result of discovery by improper means. N. Atl.
Instruments,

Inc. v. Haber, 188 F.3d 38, 43-44

(2d Cir. 1999)

Similarly, under the DTSA, a party must show "an unconsented
disclosure or use of a trade secret by one who
to acquire the secret, or,

(ii)

(i)

used improper means

at the time of disclosure,

knew or had

reason to know that the trade secret was acquired through improper
means, under circumstances giving rise to a duty to maintain the
secrecy of the trade secret, or derived from or through a person who
owed such a duty." Syntel Sterling Best Shores Mauritius Ltd. v.
Trizetto Grp.,

Inc., No. 15CV211LGSRLE, 2016 WL 5338550, at *6

(S.D.N.Y. Sept. 23, 2016)

(quoting 18 U.S.C.

§

1839(3)

(A)-(B))

The Court finds at the outset that there is no evidence of any
wrongdoing by the corporate defendants, Rousso and Santa Fe. While
their clear (and legitimate) intent was to go into direct competition
with Free Country, they appear to have been unaware prior to this

7

lawsuit that defendants Drennen and Vander Wyden transferred any
allegedly confidential information to their personal possession, and

possession of such information. See id. at 239:24-240:8; 317:4-7;
318:10-15. Accordingly, the Court finds that plaintiff has failed to
show a likelihood of success on the merits against defendants Rousso
and Santa Fe.s
Defendants Drennen and Vander Wyden present a closer call. While
they each arguably misappropriated plaintiff's information (see
infra), there is no evidence that defendants Drennen and Vander Wyden
colluded with each other for this purpose or exchanged any allegedly
confidential information between themselves.

6

See id. at 287:3-22;
~-

-~

360:20-362:14. The Court must therefore address the applicability of a
TRO against these defendants separately, because the nature of the
information allegedly misappropriated by each defendant differs. The
Court begins with defendant Vander Wyden.
Plaintiff alleges that Vander Wyden misappropriated two types of
proprietary information:

Free Country's client list and Free Country's

5

As the Court stated on the record, however, at this point it is not
appropriate to dismiss defendants Rousso and Santa Fe from the
proceedings because they may still be necessary as relief defendants,
depending on any future injunctive action by the Court. See Tr. at
432:13-25.
Plaintiff's sole "evidence" of collusion in this respect is that
defendants jointly traveled to China on a business trip after
beginning their employment at Mountain and Isles. Tr. 462:22-463:1.
Such joint travel is unsurprising, however, because Drennen and Vander
Wyden are employed by the same entity for the same purpose of
promoting a new line of apparel.
6

8

pricing information relating to Free Country's products. Although the
Court has some misgivings about Vander Wyden's credibility in certain

Court is not persuaded that either of the two kinds of information he
is accused of misappropriating are trade secrets. Under Second Circuit
precedent, a customer list "developed by a business through
substantial effort and kept in confidence may be treated as a trade
secret .

. provided the information it contains is not otherwise

readily ascertainable." N. Atl. Instruments,
38, 46

Inc. v. Haber,

188 F.3d

(2d Cir. 1999) . 7 "The question of whether or not a customer

list is a trade secret is generally a question of fact." A.F.A. Tours,
Inc. v. Whitchurch,

937 F.2d 82, 89

(2d Cir. 1991). Based on the

Court's review of plaintiff's client list,

Free Country's customers

are well-known apparel retailers whose identities are not protected
(indeed, many are named in plaintiff's complaint). The contact
information for these companies is also readily ascertainable by
calling the companies' general lines, Tr. 334:25-335:4, through
external sources such as Linkedin and Google, id. at 383:1-385:23, and
directories of buyers in the apparel industry, id. at 296:16-20.
Indeed, plaintiff's Executive Vice President, Jody Schwartz, admitted

The DTSA similarly defines a trade secret, among other things, as
any business information that (A) "the owner thereof has taken
reasonable measures to keep such information secret; and (B) "the
information derives independent economic value ... from not being
generally known . . . [or] readily ascertainable . . . [to] another person
who can obtain economic value from the disclosure or use of the
information [ . ] " 1 8 U . S . C . 1 8 3 9 ( 3 ) (A) - ( B )

7

9

during testimony that the identities and contact information of Free
Country's clients are known outside the company. Id. at 245:9-12. The
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of success on the merits for misappropriation of Free Country's
contact list.
Plaintiff's allegations concerning Free Country's pricing
information are similarly flawed.

Data relating to pricing can

constitute a trade secret under some circumstances. In re Dana Corp.,
574 F.3d 129, 152

(2d Cir. 2009). However, this is generally where a

company uses some type of proprietary formula that gives it a unique
advantage, such as a complex pricing or trading algorithm in a
financial business. See Saks Inc. v. Attachmate Corp., No. 14 CIV.
4902 CM, 2015 WL 1841136, at *18
Controls,
537-38

(S.D.N.Y. Apr. 17, 2015); Johnson

Inc. v. A.P.T. Critical Sys., Inc., 323 F. Supp. 2d 525,

(S.O.N.Y. 2004). On the other hand, information relating to

Free Country's underlying mechanics, such as the prices of materials
and costs of manufacturing, are not trade secrets because "any
seller's publicly-available prices signal to competitors some
information about the underlying mechanics of the seller's pricing
structure." Silipos, Inc. v. Bickel, No. 1:06-CV-02205, 2006 WL
2265055, at *4-5

(S.O.N.Y. Aug. 8, 2006); see Prod. Res. Grp., L.L.C.

v. Oberman, No. 03 CIV. 5366 (JGK), 2003 WL 22350939, at *14

(S.D.N.Y.

Aug. 27, 2003).
Here, Free Country has offered no evidence that it prices,

10

sources, or manufactures its clothing line using anything other than
industry practice. Defendant Drennen,

Free Country's former employee,

testified that Free Country determined pricing using "basic sourcing
information" commonly utilized in the industry and easily reverse
engineered. Tr. at 366:11-368:6. While this testimony may be selfserving on Drennen's part,

Free Country has failed to present any

convincing evidence to the contrary.

8

Accordingly, the Court finds at

this time that plaintiff has failed show that the pricing information
at issue constitutes a trade secret for the purposes of Free Country's
misappropriation claim.9
Furthermore, even if plaintiff could make such a showing,
plaintiff has failed to show the second prong of its misappropriation
claim: that defendant Vander Wyden will use such pricing information
in breach of an agreement or confidential relationship. Plaintiff does
not argue that Vander Wyden currently possesses any specific documents
containing Free Country's pricing information. Rather, plaintiff
argues that Vander Wyden was privy to such information as part of his
responsibilities at Free Country, and should be prohibited from
working for a competitor because the information now resides in his

In this regard, plaintiff presented only Ms. Schwartz's broad
statements that such information was part of Free Country's "secret
sauce" and competitors could "potentially undercut [Free Country's]
prices." Id. at 203:15-21; 204:19-12. This latter, of course, smacks
more of free market competition than misappropriation.
8

9

All the findings of fact made in this Opinion are, of course, made
only for the preliminary purposes of adjudicating the TRO and are not
binding or final for any other purpose.
11

head.
New York law recognizes a specific means for plaintiff to protect

EarthWeb,

Inc. v. Schlack, 71 F. Supp. 2d 299,

Janus et Cie v. Kahnke, No. 12 CIV. 7201

311

(S.D.N.Y. 1999);

(WHP), 2013 WL 5405543, at *2

(S.D.N.Y. Aug. 29, 2013). In the absence of such a provision, courts
in this Circuit will restrict an individual's employment only where
the individual has stolen its former employer's trade secrets and
there is a high probability that the individual will "inevitably
disclose" this information to its new employer. Id.
Here, plaintiff has failed to show that defendant Vander Wyden
has stolen proprietary information relating to pricing, let alone that
Vander Wyden will inevitably disclose such information. To be sure,
Vander Wyden's explanation for how he "accidentally" emailed to
himself four product designs prior to his departure from Free Country
is unworthy of belief. Tr. 291-293. Nonetheless, the information
contained in these decades-old designs is unlikely a trade secret, and
even if it were,

it has nothing to do with pricing.

10

The possibility

Contrary to plaintiff's assertion at the evidentiary hearing, the
Court is aware of no presumption of inevitable disclosure where a
defendant has copied some of plaintiff's confidential information.
Copying can provide strong (and sometimes overwhelming) circumstantial
evidence that the information is valuable and that defendant intends
to use it. Here, however, the alleged transfer was miniscule (four
product designs) and was unrelated to alleged proprietary information
(pricing). Given these circumstances, and the fact that the TRO, as
amended, continues to prohibit defendant from using or disclosing
plaintiff's proprietary information, see ECF No. 27, the Court is not
persuaded that any disclosure of proprietary information is
inevitable.
10

12

that Vander Wyden may have been interested in designs does not make it
highly likely that he would disclose confidential information
concerning Free Country's pricing.11
The Court is also not convinced that any injuries that might flow
from the two kinds of information that Vander Wyden is accused of
misappropriating cannot be remedied by money damages. As to the
customer lists, while the loss of a customer relationship can result
in irreparable harm where the relationship would otherwise have
produced "an indeterminate amount of business in years to come," Marsh
USA Inc. v. Karasaki, No. 08 CIV. 4195
(S.D.N.Y. Oct. 31, 2008)
F.3d 63,

69

(JGK), 2008 WL 4778239, at *14

(quoting Ticor Title Ins. Co. v. Cohen, 173

(2d Cir. 1999) ), plaintiff here does not argue that there

will be any such ongoing loss. As for the pricing information, there
is no evidence that Vander Wyden's allegedly misappropriated pricing
information will be relevant beyond the fall 2017 season, see Tr.
373:13-375:8; 466:2-8; 487:3-11, or that plaintiff will suffer any
ongoing loss of customer goodwill. Instead, plaintiff claims that
Vander Wyden will use its pricing information to undercut its business
with a defined subset of its customers for a discrete period of time,
which can easily be quantified at trial. See Liberty Power Corp., LLC
v. Katz, No. 10-CV-1938 NGG CLP, 2011 WL 256216, at *7

(E.D.N.Y. Jan.

Plaintiff's citation to Henry Schein, Inc. v. Cook, No. 16-CV03166-JST, 2016 WL 3212457, at *3 (N.D. Cal. June 10, 2016) is not to
the contrary (and, of course, is not binding on the Court in any
event). There, the court granted an ex parte motion for a temporary
restraining order where the defendant transferred a broad range of
confidential information to her computer prior to her resignation. The

11

13

26, 2011)

(finding that harm was not irreparable where plaintiff

alleged that defendant's misappropriation would result in lost

As for the balance of the equities, there is no dispute that a
temporary restraining order prohibiting Vander Wyden from selling to
Free Country's customers for the fall 2017 season would effectively
mean that Vander Wyden could not work for his new employer. Tr.
388:24-389:23; 482:17-483:1. This has implications not only for Vander
Wyden's personal welfare, but future employment prospects as well. Id.
at 388:24-389:23.
Accordingly,

for the foregoing reasons, plaintiff has failed to

show that a TRO prohibiting Vander Wyden from selling to Free
Country's customers for the fall 2017 season is warranted.
The Court next turns to plaintiff's request for a TRO against
defendant Drennen.

It is clear that Drennen expressly copied a large

amount of Free Country's information immediately prior to his
resignation, id. at 97:2-98:11, and the Court concludes that his claim
that he did so solely to help him sort out which information was
personal and which was not is preposterous. While plaintiff does not
specify which of the copied documents, including customers sales
information, design packages, and production packages for past,
present, and future business, id. at 201:3-202:13, are proprietary,
the Court agrees with plaintiff that the information taken as a whole
is a trade secret critical to plaintiff's business. See id. at 456:23-

nature of defendant Vander Wyden's transfer is materially different.
14

457:4

("[T]his is not simply just about a single CAD or even a master

contact list or any single document. It is the body of the information
th~t

W~Q

found in

~he

Drennen Dropbox folder thal riot only concerns

the historical business of Free Country but its current business and
its prospective business"); see also id. at 457:5-12.
Plaintiff, however, has failed to show a likelihood that
defendant Drennen used the proprietary information transferred to his
Dropbox account for an improper purpose, or is likely to do so in the
future.

During the evidentiary hearing, Drennen testified that he had

deleted any Free Country-related information from his Dropbox account
by October 22, 2016, id. at 358:10-15, and that he did not transfer
any Free Country information prior to its deletion. Id. at 360:20362:14. Defendant Vander Wyden similarly testified that he never
accessed Drennen's Dropbox account or received Free Country
information from Drennen. Id. at 287:3-22.
This testimony is materially corroborated by the neutral forensic
analyst. Specifically, the forensic analysis conducted by Knudsen
confirmed that Drennen has deleted all but 486 files from his Dropbox,
id. at 26:20-24, none of which appear to contain proprietary
information. There is also no evidence that Drennen has transferred
Free Country's materials to another device, or that Drennen lied about
the date on which he deleted Free Country's files.

12

Of course, Knudsen did not provide a complete account of Drennen's
Dropbox activity because his review protocol did not require him to do
so. Id. at 12:2-21, 17:3-20; 22:5-14. At this stage of the
proceedings, however, the Court is not prepared to draw an adverse

12

15

To be sure, the finding that Drennen no longer possesses Free
Country's materials does not mean that Drennen did not look at the

theoretically lodge an inevitable disclosure claim based on the
information still in Drennen's head. But this argument would
nonetheless fail.

Plaintiff concedes that the materials transferred by

Drennen are only useful to a competitor as a "bodyu of information.
See id. at 456:23-457:4. This body is enormous. Drennen transferred
nearly 50,000 files,

id. at 89:23-25, and while only a subset of these

files may be proprietary, plaintiff concedes that even individual
documents contain a "tremendousu amount of information.

Id. at 210:5-

11. Drennen possessed the files at issue for a maximum of nine days,
and the Court is not persuaded that Drennen could have memorized
gigabytes of data concerning Free Country's past, present, and future
business in such a short period of time. See, e.g., Robert Half Int'l,
Inc. v.

Dunn, No.

29, 2013)

5:13-CV-974, 2013 WL 10829925, at *8

(N.D.N.Y. Oct.

(rejecting inevitable disclosure claim because there was no

evidence that defendant was still in possession of plaintiff's
confidential information). Accordingly, in the absence of evidence of
misuse, the Court finds that plaintiff has failed to show a likelihood
of success on the merits of its misappropriation claim against
Drennen.

inference against Drennen because of an incomplete protocol jointly
proposed and agreed upon by the plaintiff. It should further be noted
that Drennen has voluntarily consented to the forensic analyst
deleting the remaining files in his Dropbox account. Id. at 431:9-11.
16

Furthermore, plaintiff has failed to show that it will suffer any
imminent irreparable harm from Drennen's copying that now warrants
injunotivo relief.

Irreparable harm rcquireB an "l11Jury thaL

l~

neither remote nor speculative, but actual and imminent." N.Y. ex rel.
Schneiderman v. Actavis PLC,
Forest City Daly Hous.,
153

787 F.3d 638,

660

(2d Cir. 2015)

Inc. v. Town of N. Hempstead,

(quoting

175 F.3d 144,

(2d Cir.1999)). As set forth at the evidentiary hearing,

plaintiff's alleged injury arises out of lost sales for the fall 2017
season. Tr. 489:9-490:19. The parties do not negotiate these sales
until January and February 2017, and do not ship their products until
closer to the season. Id. Since the Court has expedited discovery,
plaintiff has ample time to determine whether defendant Drennen and
Vander Wyden are, notwithstanding their denials,

still in possession

of any proprietary information. Should defendants have been less than
forthcoming,

the Court has scheduled a preliminary injunction hearing

to conclude by no later than January 31, 2017, and plaintiff may move
for a preliminary injunction upon discovery of any material
information. At that time, the Court has a variety of means to avoid
any imminent irreparable harm to the plaintiff, including prohibiting
defendants from completing any sales to Free Country's past and
present customers. Given the lack of imminence at the present time,
however, the balance of the hardships tips in defendant Drennen's
favor for the same reasons articulated for defendant Vander Wyden.
Finally, as in Vander Wyden's case, the equities favor not

17

preventing Drennen from engaging in his new employment absent a
greater showing than plaintiff has so far made.

Der c..11 the
December 9,

forcgo~ng

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2016 granted in part plaintiff's motion for a renewed TRO,

but rejected plaintiff's request that defendants be prohibited from
soliciting Free Country's customers for the fall 2017 season.

~{ Yu.S.D.J.

Dated: New York, New York
December.3'.:}, 2016

18