PatientPoint Network Solutions, LLC v. Contextmedia, Inc. et al

Filing 18

DECISION AND ENTRY DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. 2 ). Signed by Judge Timothy S. Black on 3/21/2014. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PATIENTPOINT NETWORK
SOLUTIONS, LLC,
Plaintiff,
vs.
CONTEXTMEDIA, INC., et al.,
Defendants.

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Case No. 1:14-cv-226
Judge Timothy S. Black

DECISION AND ENTRY DENYING
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER (Doc. 2)
This civil action is before the Court on the Motion for Temporary Restraining
Order filed by Plaintiff PatientPoint Network Solutions, LLC (“PatientPoint”). (Doc. 2).
The Court held an informal preliminary telephone conference regarding PatientPoint’s
Motion for Temporary Restraining Order on March 13, 2014, at which time the Court set
a briefing schedule and a hearing on the Motion. Pursuant to the Court’s briefing
schedule, Defendants Contextmedia, Inc. (“Context”) and Christopher Hayes (“Hayes”)
filed a Brief in Opposition to PatientPoint’s Motion for Temporary Restraining Order.
(Doc. 12). On March 20, 2014, this case came before the Court for hearing by telephone
on PatientPoint’s Motion. The Motion is now ripe for decision by the Court.
I. FACTS
The parties agree that Plaintiff PatientPoint and Defendant Context are direct
competitors in the business of delivering educational, health-related content to physician

practices at the point-of-care. These businesses pursue specific medical practices
focusing on diabetes, rheumatology and cardiology. The businesses compete by targeting
physician practices in these medical specialties and by marketing their point-of-care
products to pharmaceutical and other companies in the business of selling drugs treating
conditions within these specialties.
Plaintiff hired Defendant Hayes as an Executive Vice-President, Business
Development Specialist in May 2012. According to Hayes, before working for
PatientPoint, he worked in various sales positions since 1997, including working for
WebMD as its Director, Strategic Accounts from 2007 until 2011. (Doc. 12-1). While
working for WebMD, Hayes states that he developed a spreadsheet template for tracking
his sales efforts and leads that he called an “Opportunity Tracking Report.” (Id.)
In June 2011, Mr. Hayes left WebMD and began working for Healthcare Regional
Marketing (“HRM”) as Vice President, Pharmaceutical Markets. (Id.) In that position,
Hayes continued to use his “Opportunity Tracking Report” document in his work for
HRM. (Id.) When he left WebMD and began working at HRM, Hayes overwrote the
data in that spreadsheet template and began tracking his sales efforts at HRM using that
same template. (Id.) Hayes still maintains a copy of a version of the spreadsheet that he
used while at HRM. (Id.)
After being hired by PatientPoint in May 2012, Hayes began work on June 1, 2012
and received a promotion in July 2012. (Id.) Hayes did not sign an employment
agreement with PatientPoint or any other document containing any restrictive covenants
2

upon his hiring or for fourteen months thereafter. (Id.) As with his prior two jobs, Hayes
was responsible for calling on marketers at pharmaceutical and medical supply
companies, as well as their partner advertising agencies, to seek sponsorship dollars for
PatientPoint’s business. (Id.) As he did in his prior employment positions, Hayes
brought his Opportunity Tracking Report with him to PatientPoint, overwriting the data
from his time at HRM with new data for his sales efforts on behalf of PatientPoint. (Id.)
PatientPoint provided an iPad and laptop computer to Hayes. (Id.) Hayes used the
computer as his personal and work computer. (Id.) Between June 2012 and January
2014, the laptop computer and the iPad issued to Hayes by PatientPoint were the only
computers he owned. (Id.) The only other computer in the Hayes household, which
consists of Hayes, his wife, and three children, belonged to his wife. (Id.) Thus,
according to Hayes, the computer given to him by PatientPoint was often used by his
three children for homework and other family purposes until March 2014. (Id.)
During his employment with PatientPoint, Hayes alleges that he was subjected to
instances of sexual harassment and a hostile work environment. (Id.) Hayes contends he
was one of the only men on a largely female team of salespeople. (Id.) In April 2013, a
recruiter contacted Hayes and he accepted the call because of his discomfort with the
working environment at PatientPoint. (Id.) Ultimately, the opportunity presented did not
interest Hayes, and he continued in his employment with PatientPoint. (Id.)
A few weeks later, however, Hayes contends that the recruiter disclosed to
PatientPoint that he was exploring other employment opportunities. (Id.) Linda
3

Ruschau, Hayes’ supervisor, confronted Hayes and he admitted that he had discussed a
potential opportunity with a recruiter, but that he was not interested in the opportunity
presented and intended to continue his employment with PatientPoint. (Id.) Thereafter,
Hayes continued to explore other work opportunities, but he nevertheless continued his
productive work for PatientPoint and continued to receive positive reviews from
Ruschau. (Id.) According to Hayes, he received positive performance feedback from
PatientPoint up until the date of his termination. (Id.)
In July 2013, PatientPoint’s Chief Financial Officer, Gregory Robinson, called
Hayes and informed him that he was required to sign an agreement in order to continue
working for PatientPoint. (Id.) Hayes signed an “Employee Agreement” containing a
non-compete provision and a non-disclosure provision on July 22, 2013. (Id.; see also
Doc. 2-2, PAGEID 102-106). On August 28, 2013, Ruschau and Robinson scheduled a
call with Hayes and informed him that PatientPoint was terminating his employment with
the company effective immediately. (Id.) The evidence presented to date fails to indicate
the reason, if any, PatientPoint terminated Hayes.
Two days after his termination, Hayes reached out to PatientPoint’s Chief
Financial Officer, Tom McGuinness, to request continued coverage of his COBRA
expenses and to request that PatientPoint pay his salary through the end of the year. (Id.)
In response to Hayes’ request, Meg Paul, PatientPoint’s Director of HR Compliance,
Compensation and Benefits, emailed Hayes and informed him that, “[a]fter careful
review of the request you made of Tom McGuinness, PatientPoint will pay your full
4

medical COBRA premium for the first 3 months of COBRA coverage.” (Id., ¶ 23; see
also Doc. 12-1, PAGEID 312). Paul informed Hayes, however, that in order for
PatientPoint to pay his COBRA benefits and a commission payment, he would have to
sign a Separation Agreement. (Id.; see also Doc. 12-1, PAGEID 312). The Separation
Agreement attached to the email contained restrictive covenants regarding confidentiality, as well as non-competition and non-solicitation provisions. (Id.) Hayes refused to
sign that agreement because he did not want to agree to a non-competition provision.
(Id.)
On September 11, 2013, roughly two weeks after his termination, and after
additional negotiations with PatientPoint, Paul proposed a revised Separation Agreement.
(Id.; see also Doc. 12-1, PAGEID 326-327). This version of the Separation Agreement
removed any non-compete and non-disclosure provisions, and it also contained an
express clause, under the heading “Entire Agreement,” stating that the “[a]greement
contains all the understandings and representations between the Employee and Employer
pertaining to the subject matter hereof and supersedes all prior and contemporaneous
understandings, agreements, representations and warranties, both written and oral, with
respect to such subject matter.” (Id.; see also Doc. 12-1, PAGEID 326-327). Hayes
signed this version of the Separation Agreement on September 16, 2013 and mailed it to
Ms. Paul. (Id.; see also Doc. 12-1, PAGEID 329-330).
According to Hayes, at no point during his conversation with Robinson and
Ruschau on August 28, 2013, nor during any subsequent conversation with anyone at
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PatientPoint, did anyone instruct Hayes to destroy any PatientPoint documents or
information in his possession, nor did anyone request or demand that Hayes return the
laptop and iPad until Hayes received a letter from PatientPoint on February 24, 2014.
(Id.)
In January 2014, Context hired Hayes as Director of Strategic Sponsorships. (Id.)
Hayes began his employment with Context on January 2, 2014. (Id.) In his role for
Context, Hayes is responsible for calling on marketers at pharmaceutical and medical
supply companies, as well as their partner advertising agencies. (Id.) Hayes concedes
that his duties are the same or similar to the duties he performed in his previous positions
with PatientPoint, HRM, and WebMD. (Id.)
In his employment at Context, Hayes has attempted to contact only a handful of
the more than eighteen companies he attempted to contact while at PatientPoint. (Id.) Of
those companies, Hayes was unsuccessful at making contact with roughly half of them.
(Id.) Of the companies that he has attempted to contact while at Context, only one was a
company that he had actually successfully contracted with while at PatientPoint. (Id.)
According to Hayes, that contract came about because he went to college with the contact
person at the particular company, and because he had done business with that contact
person while employed at WebMD. (Id.) Hayes contends he also had preexisting
relationships with the contacts at several of the other companies that he is now attempting
to contact on behalf of Context based on his time working at WebMD and HRM. (Id.)

6

Hayes contends that he has not used any other documents from his laptop
computer provided to him by PatientPoint for his work at Context, with the exception of
an Opportunity Tracking Report he accessed to use as a template. (Id.) According to
Hayes, when Hayes began working for Context, he took the spreadsheet template that he
had created for his Opportunity Tracking Report, removed the information specific to his
work for PatientPoint, and began using that same template to track his sales activities and
prospects for Context. (Id.)
Upon receiving the aforementioned letter dated February 24, 2014 from
PatientPoint, Hayes saved from that computer to separate flash drives all of his personal
files, including personal photographs, home movies, his children’s homework, his
personal financial information, as well as the relatively few files that he had created for
Context on that computer. (Id.) After receiving the letter from counsel for PatientPoint,
Hayes states that he did not save any documents belonging to PatientPoint from that
laptop computer to any external source. (Id.)
Forensic Analysis of Hayes’ Computer
Both PatientPoint and Context have forensically analyzed the computer and the
iPad PatientPoint issued to Hayes. PatientPoint’s forensic analysis reveals that Hayes
accessed and opened over twenty files allegedly containing highly confidential and
proprietary information on February 28, 2014. PatientPoint’s forensic analysis also
revealed that Hayes opened a document titled “PPT_Opportunity Tracking Report
2014_082213.xls” from a flash storage device on January 26, 2014.
7

Defendants’ forensic analysis of the equipment suggests that files purportedly
accessed and opened by Hayes on February 28, 2014 were not in fact opened in their
native applications, and may not have been opened deliberately. (Doc. 12-2).
Defendants’ forensic examiner indicates that, out of a total of 138 link files associated
with Microsoft Office based applications listed in Exhibit B to the Declaration of
PatientPoint’s forensic examiner, only nineteen link files indicate purposeful opening of
the files in their native applications, and most of the nineteen files contain information
seemingly unrelated to PatientPoint, such as Hayes’ personal financial information and
other non-business documents. (Id.)
According to Defendants, the same is true of the non-Office documents analyzed
by Defendants’ forensic examiner, which appear from their file names and file types to be
primarily photographs, movies and other files personal to Hayes. (Id.) Thus, in the view
of Defendants’ forensic examiner, there is a significant question as to whether the vast
majority of activity cited by PatientPoint as improper is the result of deliberate user
initiated activity. (Id.)
Purported Use of Proprietary Information
PatientPoint’s forensic analysis of the computer equipment also revealed emails in
which Hayes sent a high level competitive analysis regarding PatientPoint’s business to
executives of Context. Hayes admits preparing a high level competitive intelligence
analysis of PatientPoint using information contained on PatientPoint’s website and in its
marketing materials distributed at conferences and other events. (Doc. 12-1). Hayes
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contends that he never disclosed any information to Context in that document or
otherwise that he believed reasonably could be considered confidential to PatientPoint.
(Id.)
Patient Point also points to forensic analysis which shows that Hayes connected
over twenty flash drives to his PatientPoint laptop after his termination, and that he
connected six flash drives to the computer on the day he returned the computer to
PatientPoint. (Doc. 2-5). Defendants’ forensic analysis reveals that it examined fourteen
flash drives recovered from Hayes, all fourteen of which account for every such drive
that was connected to the laptop computer between January 2, 2014 and March 1, 2014,
with the exception of a single flash drive shown as having been last connected to the
laptop on February 13, 2014. (Doc. 12-2).
Defendants’ forensic review of those flash drives revealed that: (1) on two flash
drives purportedly containing old work files, the most recent last written date or file
create date of any user-generated file is dated October 15, 2012; (2) on one flash drive
purportedly containing Hayes’ personal information, only two documents appear to be
related to Hayes’s work, and those documents do not appear to relate to PatientPoint and
have created and last written dates of September 29, 2011 and May 23, 2012,
respectively; (3) on ten flash drives purportedly containing personal photographs and
videos, nearly all of the files consist of photographs and videos, and that the most recent
last written date or file create date of any other user-generated file (i.e., not a photograph
or video) is August 6, 2011; and (4) on one flash drive purportedly containing emails and
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photographs from PatientPoint employees relating to potential claims Hayes might have
against PatientPoint related to his termination and alleged harassment, forensic analysis
confirmed that the most recent last written date or file create date of any user-generated
file on these drives is September 4, 2013, i.e., one week after PatientPoint terminated
Hayes. (Doc. 12-2).
II. STANDARD OF REVIEW
“The Sixth Circuit has explained that ‘the purpose of a TRO under Rule 65 is to
preserve the status quo so that a reasoned resolution of a dispute may be had.’” Reid v.
Hood, No. 1:10 CV 2842, 2011 U.S. Dist. LEXIS 7631, at *2 (N.D. Ohio Jan. 26, 2011)
(citing Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996)).
“The standard for issuing a temporary restraining order is logically the same as for a
preliminary injunction with emphasis, however, on irreparable harm given that the
purpose of a temporary restraining order is to maintain the status quo.” Id. (citing Motor
Vehicle Bd. of Calif. v. Fox, 434 U.S. 1345, 1347 n.2 (1977)). Plaintiff bears the heavy
burden of demonstrating its entitlement to a preliminary injunction. An “injunction is an
extraordinary remedy which should be granted only if the movant carries his or her
burden of proving that the circumstances clearly demand it." Overstreet v. LexingtonFayette Urban County Gov’t, 305 F.3d 566, 573 (6th Cir. 2002).
In determining whether to grant injunctive relief, this Court must weigh four
factors: (1) whether the moving party has shown a strong likelihood of success on the
merits; (2) whether the moving party will suffer irreparable harm if the injunction is not
10

issued; (3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction. Id. These
four considerations are factors to be balanced, not prerequisites that must be met.
McPherson v. Michigan High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459 (6th Cir. 1997).
“Although no one factor is controlling, a finding that there is simply no likelihood of
success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam'rs, 225 F.3d
620, 625 (6th Cir. 2000). The Court does not subscribe to the argument that a movant
need only raise a “fair question” as to the merits rather than “a substantial likelihood of
success” on the merits.
III. ANALYSIS
PatientPoint asserts three causes of action in this case: (1) a claim that both
Context and Hayes violated the Ohio Uniform Trade Secrets Act (“UTSA”); (2) that
Hayes breached his agreement with PatientPoint by taking employment with Context and
soliciting PatientPoint accounts; and (3) that Context is tortuously interfering with the
contract between Hayes and PatientPoint by employing Hayes despite knowing of the
non-compete provision purportedly binding Hayes and prohibiting his employment with
Context. In seeking a temporary restraining order, PatientPoint argues that it is likely to
prevail on: (1) its claim for an alleged breach of the non-compete agreement; and (2) for
alleged misappropriation of trade secretions in violation of UTSA).

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A.

Likelihood of Success on the Merits
1.

Non-Compete Agreement

The Court first addresses the merits of PatientPoint’s assertion that it is likely to
prevail on its claim that Hayes breached the non-compete provision of his Employee
Agreement. In so arguing, PatientPoint omits any evidence regarding the specific
circumstances surrounding Hayes’ separation from employment.
Ruschau’s declaration contains potentially conflicting statements regarding the
Hayes’ separation employment. (Doc. 2-6). At one point, Ruschau states that she
“supervised Hayes . . . until his termination in August 2013[,]” and at another point states
that Hayes “resigned from PatientPoint.” (Doc. 2-6) (emphasis added). PatientPoint’s
Verified Complaint contains the same potential inconsistencies. (Doc. 1). The Verified
Complaint states that Hayes “resigned” from PatientPoint, but also that “PatientPoint
terminated Hayes effective August 28, 2013.” (Doc. 1, PAGEID 14, 16). Hayes
specifically states in his declaration that PatientPoint unilaterally terminated his
employment on August 28, 2013. (Doc. 12-1).
The circumstances surrounding Hayes’ separation from employment appears
critical. Specifically, the July 22, 2013 Employee Agreement expressly states that it
becomes effective only “if Employee voluntarily terminates his or her employment or if
[PatientPoint] terminates Employee’s employment for ‘cause’[.]*” (Doc. 2-3, PAGEID

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113). Additionally, the Employee Agreement expressly states that “[t]he parties agree
that the Covenant Not to Compete will be null and void if [PatientPoint] terminates
Employee’s employment for reasons other than for ‘cause’*.” (Doc. 2-3, PAGEID 115).
The Employee Agreement defines “cause” as:
any of the following: (i) a material breach of any agreement you
have with the Company; (ii) a felony or any other crime involving
dishonesty, breach of trust, moral turpitude, or physical harm to any
person; (iii) an act of fraud, misconduct, or dishonesty in connection
with the business of the Company; (iv) failure to satisfactorily or
adequately perform your duties here as determined by the
Company based upon objective facts, including, but not limited to,
your ability to achieve goals, inability to work with others,
insubordination or excessive tardiness; (v) your receipt of a Final
Written Warning for any reason; (vi) insobriety or other substance
abuse during work activities; or (vii) death or permanent disability[.]
(Doc. 2-3, PAGEID 117).
PatientPoint, in failing to offer evidence regarding Hayes’ separation from
employment, fails to demonstrate that Hayes was terminated for cause, or that Hayes
voluntarily terminated his employment. In fact, the only evidence before the Court at this
time is Hayes’ statement that PatientPoint simply unilaterally terminated his employment
abruptly despite positive reviews in the time leading up to his termination. Accordingly,
PatientPoint fails to demonstrate that the non-compete provision binds Hayes under the
circumstances, and therefore, fails to demonstrate a likelihood of success on the merits of

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such a claim at this stage. 1
2.

Ohio Uniform Trade Secrets Act

To prevail on a misappropriation of trade secrets claim under the Ohio UTSA, a
plaintiff must prove: “(1) the existence of a trade secret; (2) the acquisition of a trade
secret as a result of a confidential relationship; and (3) the unauthorized use of a trade
secret.” MEMC Electronic Materials v. Balakrishnan, No. 2:12-cv-344, 2012 WL
3962905, *6 (S.D. Ohio Sept. 11, 2012) (citing Heartland Home Fin., Inc. v. Allied Home
Mortg. Capital Corp., 258 F. App’x 860, 861 (6th Cir.2008); Hoover Transp. Serv., Inc.
v. Frye, 77 F. App’x 776, 782 (6th Cir.2003) (per curiam)). Ohio’s UTSA defines a trade
secret as:

1

The Court also concludes that, assuming the non-compete provision is triggered and not superseded by the
Separation Agreement, PatientPoint also fails to show a likelihood of successfully demonstrating that the noncompete provision is reasonable. Under Ohio law, “a noncompetition agreement is reasonable if (1) it is no greater
than is required for the protection of the employer; (2) it does not impose undue hardship on the employee; and (3) it
is not injurious to the public.” Am. Bldg. Services, Inc. v. Cohen, 78 Ohio App.3d 29, 603 N.E.2d 432 (Ohio App.
1992) (citing Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325 N.E.2d 544 (Ohio 1975). Additional factors
considered in determining the reasonableness of a non-compete provision include “‘whether the covenant seeks to
stifle the inherent skill and experience of the employee . . . whether the covenant operates as a bar to the employee's
sole means of support; [and] whether the employee's talent which the employer seeks to suppress was actually
developed during the period of employment[.]’” Raimonde, 325 N.E.2d at 547 (citations omitted).
Here, Hayes worked for PatientPoint for a single month after signing the non-compete provision, and now
PatientPoint seeks to limit his employment for a year after his termination. Hayes establishes that he has worked in
the same industry, performing the same tasks, and contacting many of the same companies for the five years before
his brief stint with PatientPoint. In addition, Hayes states that others within PatientPoint worked on accounts with
the companies he contacted before he began working at PatientPoint. Thus, it appears clear that the non-compete
provision seeks to stifle all of the experience Hayes gained and developed in his career before his brief employment
with PatientPoint, despite the fact that other PatientPoint employees had contact with these same customers. See
Am. Bldg. Services, 603 N.E.2d at 435 (finding a non-compete agreement unreasonable where defendant worked for
plaintiff only a short period of time and defendant “obtained much of his experience and skill as a salesperson and
manager” during his previous employment).

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information, including the whole or any portion or phase of any
scientific or technical information, design, process, procedure,
formula, pattern, compilation, program, device, method, technique,
or improvement, or any business information or plans, financial
information, or listing of names, addresses, or telephone numbers,
that satisfies both of the following:
(1) It derives independent economic value, actual or potential, from
not being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value from
its disclosure or use.
(2) It is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Ohio Rev. Code § 1333.61(D). In addition, the Supreme Court of Ohio has set forth a
number of factors to consider in determining whether information constitutes a trade
secret, namely:
“(1) The extent to which the information is known outside the
business; (2) the extent to which it is known to those inside the
business, i.e., by the employees; (3) the precautions taken by the
holder of the trade secret to guard the secrecy of the information;
(4) the savings effected and the value to the holder in having the
information as against competitors; (5) the amount of effort or
money expended in obtaining and developing the information; and
(6) the amount of time and expense it would take for others to
acquire and duplicate the information.”
State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 732 N.E.2d 373, 377-78
(Ohio 2000) (citations omitted).
Here, Defendants contend that the information at issue, namely the names of
potential sponsor brands, is not a secret, and that Ruschau’s declaration admits as much
by stating that “over the last few years, PatientPoint and Context have attempted to reach
the same sponsor brands.” (Doc. 2-6, PAGEID 148). However, the Court agrees with
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PatientPoint that the information at issue consists of more than the mere identity of
potential sponsors.
Nevertheless, even assuming that the information has “independent economic
value . . . from not being generally known to, and not being readily ascertainable by
proper means, by other persons who can obtain economic value from its disclosure or
use[,]” the record presently before the Court fails to evidence that PatientPoint’s efforts
to maintain the secrecy of its information were reasonable under the circumstances.
Initially, the Court notes that Hayes had access to PatientPoint’s alleged proprietary
information and/or trade secrets throughout his employment. However, PatientPoint
never sought to bind Hayes to a non-compete or non-disclosure agreement until over a
year after his employment began, and then only a month before his termination.
Further, with regard to the PPT Opportunity Tracking Reports specifically, while
Ruschau declares that only she, members of PatientPoint’s business development team,
and PatientPoint’s executives have access to these reports, PatientPoint does not yet
present any declaration or other evidence that any of these individuals are bound by noncompete or non-disclosure agreements or are otherwise instructed to keep the information
secure from other employees or third parties.
In addition, while PatientPoint generally alleges in its Verified Complaint that it
requested the return of its laptop computer and iPad at the time PatientPoint terminated
Hayes, PatientPoint evidences no specific written request made of Hayes at that time.

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The record before the Court at this time also fails to demonstrate that PatientPoint
requested Hayes to turn over any other purportedly proprietary and/or trade secret
information then in his possession. Instead, the only written demand in the record was
sent at the end of February 2014, approximately six months after his termination. Even
assuming PatientPoint did make a specific request that Hayes to return the equipment at
the time of his termination, the Court cannot conclude that waiting six months to make
any additional demand amounts to a reasonable effort under the circumstances to secure
purportedly proprietary and/or trade secret information.
Finally, although PatientPoint initially requested that Hayes sign a detailed
separation agreement that included strict non-disclosure provisions and non-compete
provisions, PatientPoint ultimately accepted a separation agreement from Hayes setting
forth no non-compete or non-disclosure provisions. PatientPoint’s concession in this
regard perhaps adds credence to Defendants’ suggestion that the information known by
Hayes was not of such value that PatientPoint believed that these provisions were
necessary. Further, the Separation Agreement ultimately accepted by PatientPoint
arguably supersedes the earlier executed Employee Agreement by stating that it “contains
all the understandings and representations between the Employee and the Employer

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pertaining to the subject matter hereof 2 and supersedes all prior and contemporaneous
understandings, agreements, representations and warranties, both written and oral, with
respect to such subject matter.” (Doc. 12-1).
Based on the foregoing, the Court concludes that PatientPoint fails to establish a
likelihood of success on the merits of its UTSA claim.
B.

Irreparable Harm

“To demonstrate irreparable harm, the plaintiffs must show that . . . they will
suffer actual and imminent harm rather than harm that is speculative or unsubstantiated.”
Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). Harm is irreparable if it cannot
be fully compensated by monetary damages. Overstreet v. Lexington-Fayette Urban
County Gov’t., 305 F.3d 566, 578 (6th Cir. 2002).
Here, because PatientPoint has failed to establish a likelihood of success on the
merits, the Court does not need to analyze the existence of irreparable harm.

See

Gonzales v. Nat’l Bd. of Med. Examiners, 225 F.3d 620, 632 (6th Cir. 2000); see also

2

During oral argument on Plaintiff’s Motion, Plaintiff cited the case of Try Hours, Inc. v. Douville, 985
N.E.2d 955 (Ohio App. 2013), wherein the Ohio Sixth District Court of Appeals concluded that that a separation
agreement with an integration clause did not supersede a prior employment agreement containing non-compete and
non-solicitation provisions. There, the court found that the integration clause in the separation agreement was
“expressly limited in scope to the subject matter of the separation agreement[,]” i.e., continued benefits in exchange
for a release of claims. Id. Further, the court noted that integration clause in that case only superseded prior or
subsequent oral Agreements, representations or understandings[,]” and, therefore, could not have superseded the
employee’s previous written non-compete and non-solicitation agreements. Id. at 960.
This Court is inclined to conclude that the phrase “pertaining to the subject matter hereof[,]” set forth in the
Separation Agreement, is, at the least, ambiguous. One could reasonably conclude that the “subject matter” of the
Separation Agreement is the broad subject of Hayes’ separation from employment with PatientPoint. Certainly, the
previous non-compete agreement pertained, in part, to Hayes’ separation by governing his ability to compete with
PatientPoint for twelve months following his separation.

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Novak v. Farneman, No. 2:10-cv-768, 2010 WL 4643002, *6 (S.D. Ohio Nov. 9, 2010)
(stating that “[b]ecause [plaintiff] has not established a likelihood of success on the
merits on either of his claims, the Court need not address irreparable inj ury”).
Nevertheless, the Court concludes here that, in light of an agreement between the
parties, PatientPoint will suffer no actual and imminent harm. As the Court understands
the parties’ agreement, Hayes will not solicit ten specific target sponsors on behalf of
Context until resolution of the issues in this case; that Defendants will not use or disclose
any of PatientPoint’s confidential information; and that Defendants will return any and all
of PatientPoint’s confidential and proprietary information to PatientPoint. In light of the
parties’ proposed agreement, which counsel shall formally reduce to writing and submit
to the Court, the Court finds the prospect unlikely that PatientPoint will suffer irreparable
harm in the absence of a temporary restraining order.
C.

Substantial Harm to Others and the Public

With regard to determining the probability that granting a temporary restraining
order will substantially harm others, “the focus is on the harm that a defendant will
suffer[.]” Lander v. Montgomery Cty. Bd. Comm’rs, 159 F. Supp.2d 1044, 1053 fn. 18
(S.D. Ohio 2001). Here, the record now before the Court demonstrates that PatientPoint
terminated Hayes’ employment and now seeks to prevent him from continuing to work in
the industry he has worked since 2007. PatientPoint has not demonstrated a likelihood of
prevailing on the merits, yet Defendants have agreed to limit Hayes’ contact with
potential sponsors for the time being. The Court concludes that imposing further
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restrictions on Context and Hayes in the absence of a showing that PatientPoint will
succeed on the merits or suffer irreparable harm is unwarranted.
With regard to harm to the public, “the trade secret policies in Ohio are to
maintain the standards of commercial ethics and the encouragement of invention, as
well as the protection of the substantial investment of employers in their proprietary
information.” MAR Oil Co. v. Korpan, No. 3:11cv1261, 2011 WL 5023263, *5 (N.D.
Ohio Oct. 20, 2011) (citing Valco Cincinnati, Inc. v. N & D Machining Service, 24 Ohio
St.3d 41, 492 N.E.2d 814 (1986)). In the absence of a showing “by clear and convincing
evidence” that Defendants have violated the Ohio UTSA, courts should not “intervene to
protect those interests[.]” Id. (citation omitted). Finding that PatientPoint has not
demonstrated a likelihood of success on the merits, the Court concludes that public
interest is furthered by denying the relief requested.
IV. CONCLUSION
Accordingly, based on all of the foregoing, the Court DENIES PatientPoint’s
Motion for Temporary Restraining Order. (Doc. 2).
IT IS SO ORDERED.

Date: 3/21/14

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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