Williams-Sonoma Direct, Inc. v. Arhaus, LLC d/b/a Arhaus Furniture et al
Filing
183
ORDER granting 13 and 92 Preliminary Injunction. Signed by Judge Jon Phipps McCalla on 6/18/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
WILLIAMS-SONOMA DIRECT, INC.
and WILLIAMS-SONOMA RETAIL
SERVICES, INC.,
Plaintiffs,
v.
ARHAUS, LLC d/b/a ARHAUS
FURNITURE, TIMOTHY STOVER,
BRAD VOELPEL, and JESSICA
DAUGHERTY,
Defendants.
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No. 2:14-cv-02727-JPM-tmp
ORDER GRANTING PRELIMINARY INJUNCTION
Before the Court is Plaintiffs’ Motion for Temporary
Restraining Order and Order to Show Cause Regarding Preliminary
Injunction (ECF No. 13 (sealed)) and Supplemental Brief in
Support of Motion for Preliminary Injunction (ECF No. 92).
For
the reasons stated below, Plaintiffs’ Motion is GRANTED.
I.
BACKGROUND
A. The Corporate Entities Involved
1.
A Note on Nomenclature
Williams-Sonoma, Inc. is referred to herein as “WSI.”
Williams-Sonoma Direct, Inc. is referred to as “WSDI,” and
Williams-Sonoma Retail Services, Inc. is referred to as “WSRSI.”
At various places in the record, an entity known simply as
“Williams-Sonoma” is referenced.
When the Court can describe a
particular corporate entity, the Court will do so.
When the
record references “Williams-Sonoma” or generally all entities,
however, the Court will use the term “Williams-Sonoma” to refer
to either all or part of the conglomerated entities that include
WSI and its subsidiaries.
2.
Williams-Sonoma
Williams-Sonoma is a corporation that is primarily in the
business of selling furniture and home furnishings.
(October
24–25, 2014, Hr’g Tr. 41, ECF Nos. 104, 105 (sealed).)
Williams-Sonoma sells its merchandise both through its 585
retail stores and through direct to consumer channels, including
e-commerce.
(Id. at 42.)
The corporation’s brands include
Williams-Sonoma Home, Pottery Barn, Pottery Barn Kids, Pottery
Barn Teen, West Elm, Mark and Graham, and Rejuvenation.
(Id. at
41.)
3.
Williams-Sonoma Direct, Inc.
WSDI is a wholly-owned subsidiary of WSI that provides
supply chain services to Williams-Sonoma’s entities.
42.)
WSDI was incorporated in 1999.
(Id.)
(Id. at
It has
approximately $165 million in assets and employs approximately
3500 people in several states, including California, New Jersey,
and Tennessee.
4.
(Id. at 43.)
Williams-Sonoma Retail Services Inc.
WSRSI has approximately $50 million in assets and employs
approximately 800 people.
(Id.)
It is responsible for stocking
2
Williams-Sonoma’s retail stores as well as moving furniture.
(Id. at 48.)
5.
Arhaus, LLC
Arhaus, LLC (“Arhaus”) has approximately fifty-two retail
stores and sells special-order furniture.
(Id. at 499.)
Although no evidence was introduced indicating the exact revenue
of either WSI or Arhaus, witness testimony indicated on numerous
occasions that Arhaus is a significantly smaller company.
(See,
e.g., id. at 126 (“Arhaus would probably not get as good a rate
because they don’t have the volume [of Williams-Sonoma] . . .
.”); December 10, 2014, Hr’g at 45 (“[Williams-Sonoma’s] carrier
rates were ridiculous because they were rates that [Arhaus]
could never get because we are so small.”), ECF No. 140.)
B. Procedural Background
WSDI filed its Complaint on September 18, 2014 (ECF No. 1)
and a Motion for Temporary Restraining Order on September 19,
2014 (ECF No. 13).
Judge Samuel H. Mays, Jr. held a hearing on
the Motion for Temporary Restraining Order on September 29 and
30, 2014.
(ECF Nos. 52, 54.)
Arhaus and Stover filed a Joint
Motion to Dismiss on September 26, 2014.
(ECF No. 31.)
On
September 29, 2014, WSDI amended the Complaint so as to correct
a technical pleading defect.
(ECF No. 51.)
On September 30,
2014, Judge Mays issued an order granting in part and denying in
part the Motion for Temporary Restraining Order.
3
(ECF No. 56.)
The order required Defendants to preserve evidence, and ordered
Defendants not to acquire, access, disclose, or use any of
WSDI’s trade secrets -- or to attempt to do so.
(Id. at 3-4.)
The order further restrained Daugherty and Stover from:
acquiring, accessing, disclosing or using, or attempting to
acquire, access, disclose, or use WSDI’s or its derivatives’
confidential information; and from soliciting employees of WSDI,
its parents, subsidiaries, or affiliates.
(Id. at 4.)
On October 14, 2014, the Court set a preliminary injunction
hearing and, by consent, extended the TRO.
(ECF No. 73.)
Plaintiffs filed their Second Amended Complaint on October 22,
2014, which added Williams-Sonoma Retail Services, Inc. as a
plaintiff.
(ECF No. 83.)
Plaintiffs then filed a Supplemental
Brief in Support of Motion for Preliminary Injunction on October
23, 2014.
(ECF No. 92.)
Defendants each filed briefs in
opposition to a preliminary injunction also on October 23, 2014.
(ECF Nos. 94–100.)
The Court held a preliminary injunction
hearing on October 24 and 25, 2014 and December 10, 2014.
Nos. 102, 104, 1 141.)
(ECF
By consent of the parties (see ECF No.
106), on November 3, 2014, the Court extended the TRO until an
order issued regarding the Plaintiffs’ request for preliminary
injunction.
(ECF No. 109.)
1
The ECF Docket incorrectly lists the second day of the preliminary
injunction hearing as October 28, 2014; the second day of the hearing was in
fact held on Saturday, October 25, 2014.
4
Stover filed a Motion to Dismiss and in the Alternative
Motion for Summary Judgment on November 5, 2014.
(ECF No. 111.)
Arhaus filed a Motion to Dismiss or in the Alternative Motion
for Summary Judgment on November 10, 2014.
(ECF No. 115.)
Plaintiffs filed their response to these motions on December 11,
2014.
(ECF No. 134.)
January 30, 2015.
The Court denied in part these motions on
(ECF No. 160.)
By joint motion of Plaintiffs and Voelpel (ECF No. 121),
the Court granted a Permanent Injunction and Judgment as to
Voelpel on December 3, 2014.
(ECF Nos. 128, 129.)
Similarly,
by joint motion of Plaintiffs and Daugherty (ECF No. 132), the
Court granted a Permanent Injunction and Judgment as to
Daugherty on December 19, 2014.
II.
(ECF Nos. 145, 146.)
TESTIMONY AND EVIDENCE INTRODUCED BY THE PARTIES
For the purposes of this Order, the Court makes the
following factual findings.
1.
Williams-Sonoma’s Confidential Information
Most of the confidential information involved in this case
is related to Williams-Sonoma’s supply chain management.
Steve
Anderson, Williams-Sonoma’s Senior Vice President of Operations,
explained that managing Williams-Sonoma’s supply chain entails
managing the movement of our purchased or manufactured
merchandise from point of origin or manufacture to the
United States or to the point where we are going to
sell it, from that point, moving it to our
distribution centers, and then ultimately warehousing
5
that merchandise and then ultimately delivering it to
our customer, whether it’s delivering it directly to
somebody’s home or replenishing one of our 585 retail
stores throughout the country.
(October 24–25, 2014, Hr’g Tr. 60.)
Efficiently managing a
supply chain can result in significant savings for a company:
recent initiatives at Williams-Sonoma have yielded tens of
millions of dollars in savings over the past few years.
id. at 62.)
(See
Examples of areas where such savings can be
generated include the software systems that are used, the number
of distribution centers a company maintains, and how contracts
are negotiated with third-party transporters, including ocean
carriers and trucking companies.
(See id.)
Williams-Sonoma
stores some of this type of information on a shared drive that
its employees can access.
(See id. at 237–38.)
Details of a corporation’s supply chain management can be
useful to competing organizations.
For example, pricing
information with third-party vendors can provide a competing
organization with a benchmark that can be leveraged in the
negotiating process.
(See id. at 76.)
The contents of
contracts that include non-disclosure clauses can provide a
competitive advantage.
(See id. at 90-91.)
Additionally, the
process by which a company solicits bids and ultimately picks a
third-party vendor can be of value to a competitor.
at 159-61.)
6
(See id.
Williams-Sonoma employs a number of measures to protect its
confidential information, including the details of its supply
chain management.
(Id. at 66-67.)
A log-on is required to get
into the network system, which is provided by each employee’s
manager.
(Id.)
Each employee’s access to the network is
restricted based on the position the employee is in and what the
employee needs to know.
(Id.)
Additionally, when an employee
is hired by Williams-Sonoma, the employee is given a handbook
that explains Williams-Sonoma’s confidential information
policies as well as how electronic information is handled.
at 66.)
(Id.
Employees must also sign the Williams-Sonoma, Inc. Code
of Business Conduct and Ethics (“Code of Conduct”) (Ex. 1) every
year and take a quiz on the contents of the Code of Conduct.
(October 24–25, 2014, Hr’g Tr. 66–67.)
The Code of Conduct describes in some detail an employee’s
duties to protect Williams-Sonoma’s confidential information.
(See Ex. 1 at 10–11.)
at issue in this case.
Two provisions of the Code of Conduct are
One provision describes the nature of
the employee’s duty to protect that information:
As associates of the Company, and for the benefit of
ourselves as well as the Company, we each have a duty
to safeguard our Company’s trade secrets and
Confidential Information and to refrain from any
improper dealings with the confidential information of
any other company, including our competitors.
Associates may not disclose Confidential Information
either while an employee of WSI or at any time after
7
employment ends, regardless of the reason why
employment ends.
(Id.)
Another provision prohibits solicitation of Williams-
Sonoma employees:
As part of our duty to safeguard the Company’s trade
secrets and Confidential Information, associates may
not, either during their employment with the Company
or for twelve months afterward, directly or indirectly
recruit, solicit or induce . . . any employee . . . of
the Company to terminate employment.
(Id. at 11.)
2. Defendants’ Misconduct
Having described the nature and value of the confidential
information at issue in this case, the Court now turns to the
facts established regarding Defendants’ misconduct.
worked for Williams-Sonoma for seventeen years.
2014, Hr’g Tr. 63.)
Stover
(October 24–25,
At the time of his departure, Stover was
the Senior Vice President of Transportation, Engineering, and
Planning.
(Id.)
In his role, Stover had access to
transportation contracts, building contracts, and leases that
Williams-Sonoma considered confidential.
(Id. at 63–64.)
Stover first interviewed with Arhaus on June 17, 2014, at
Arhaus’ headquarters in Walton Hills, Ohio.
(Id. at 303.)
On
the evening of June 17, 2014, Stover sent a text message to
Jessica Daugherty, who was at that time Manager of Global
Network Operations for Williams-Sonoma.
(Id. at 304–07.)
content of the message was as follows:
“I need to know our
8
The
ocean costs from various origins to the US.
[sic]
Can you provide.
Plus what would be my linehaul costs say from [C]leveland
to [H]ouston and who would be my provider?”
(Ex. 32.)
At the
hearing, Stover initially denied that he was asking for that
information in order to use it during his interviews or for use
if he was to be hired.
(October 24–25, 2014, Hr’g Tr. 308–09.)
Plaintiffs’ counsel then pressed Stover on the point.
309–10.)
(Id. at
After equivocating for some amount of time, Stover
stated: “I’m not sure why I was asking other than, you know,
yeah, they do have a distribution center in Cleveland.”
(Id.)
Stover received an offer letter from Andrew Lobo, Chief
People Officer of Arhaus, on July 11, 2014.
Ex. 33.)
(Id. at 314;
He submitted his resignation to Williams-Sonoma on
July 18, 2014, and officially resigned on July 21, 2014.
(October 24–25, 2014, Hr’g Tr. 167, 314.)
for Arhaus on August 11, 2014.
Stover began working
(Id. at 526.)
After Stover began working at Arhaus, he sent some of
Williams-Sonoma’s contracts to other employees of Arhaus,
including Greg Teed, Arhaus’ Chief Finanical Officer.
(October
24–25, 2014, Hr’g Tr. 418–28; Exs. 4–7 (sealed) (all sent from
Stover’s Arhaus email address).)
Stover also sent Williams-
Sonoma PowerPoint presentations to Teed and Lobo.
On September
16, 2014, Stover sent Teed a presentation that included
Williams-Sonoma’s competitive assessment of Arhaus. (October 24–
9
25, 2014, Hr’g Tr. 732–33; Ex. 17.)
Stover sent Andrew Lobo a
human resources presentation of Williams-Sonoma’s on September
12, 2014.
(December 10, 2014, Hr’g Tr. 57–58; Ex. 87.)
Stover also acknowledged that he had requested WilliamsSonoma information from Williams-Sonoma employees after he began
working at Arhaus.
He admitted to sending such a request to
Brad Voelpel, then Director of International Transportation at
Williams-Sonoma, on August 5, 2014.
(Id. at 431-32; Ex. 37.)
In the email, Stover tells Voelpel: “Still have not received the
RFP.
Try sending to my Gmail account.”
(Ex. 37.)
Stover
admitted that he was asking Voelpel to send him documents with
information about the process Williams-Sonoma utilizes to bid
out contracts to ocean carriers.
Tr. 431–32.)
(See October 24–25, 2014, Hr’g
Voelpel responded by sending several documents
that outline in detail how Williams-Sonoma manages its ocean
carrier bidding process.
(sealed).)
(See id. at 254–61; Exs. 8–11
Voelpel also sent Stover an Excel spreadsheet
relevant to the ocean carrier bidding process.
2014, Hr’g Tr. 261–62; Ex. 12 (sealed).)
(October 24–25,
The spreadsheet
includes numerous data-points on hundreds of ocean routes
between various cities.
(See Ex. 12 (sealed).)
Each route in
the spreadsheet includes a dollar value for what Williams-Sonoma
actually paid in 2012 and an amount that Williams-Sonoma had set
10
as its target rate for that route.
(See id.; October 24–25,
2014, Hr’g Tr. 124–25.)
Stover also received confidential information from Jessica
Daugherty after he began working at Arhaus.
In an email date-
stamped July 28, 2014, Daugherty forwarded Stover an email that
included a “break-down of the Network Team’s responsibilities”
at Williams-Sonoma.
Ex. 39 at 2.)
(October 24–25, 2014, Hr’g Tr. 435–36;
Stover acknowledged that he replied to Daugherty,
“Good email.........no response?
Might want to stick to gmail
and not my Arhaus email since it may be looked at moving forward
along with your phone and texts.
Just be careful.....”
(October 24–25, 2014, Hr’g Tr. 435–36; Ex. 39 at 1.)
On August
11, 2014, Daugherty sent Stover contact information for sales
representatives for a number of third-party vendors.
24–25, 2014, Hr’g Tr. 680–83; Exs. 62, 63.)
Daugherty admitted
that she sent her resume to Stover on July 28, 2014.
24–25, 2014, Hr’g Tr. 685; Ex. 64.)
(October
(October
Plaintiffs’ counsel then
asked Daugherty, “And around the same time you downloaded or
uploaded 37,000 files from your -- from Williams-Sonoma into an
external hard drive, correct?”
686.)
(October 24–25, 2014, Hr’g Tr.
Daugherty responded, “It seems to have the same funny
timing.”
(Id.)
Williams-Sonoma became aware that Stover was asking
employees for confidential information as early as September 11,
11
2014.
(See October 24–25, 2014, Hr’g Tr. 171–75; Exs. 22, 23.)
Williams-Sonoma’s loss prevention department began investigating
under the direction of the legal group.
Hr’g Tr. 174.)
(October 24–25, 2014,
Daugherty and Voelpel were both interviewed and
terminated as a result of sending information to Stover.
(Id.
at 175.)
Three people reviewed Stover’s electronic activities
surrounding the time of his departure from Williams-Sonoma and
hiring at Arhaus.
Jim KempVanEe, a neutral computer forensics
specialist, analyzed Stover’s laptop that he used with Arhaus as
well as several of Stover’s personal devices.
(See Ex. 51.)
Karen Slocum, an IT Security Manager with Williams-Sonoma,
investigated Stover’s use of Williams-Sonoma’s networks prior to
his departure.
(October 24–25, 2014, Hr’g Tr. 549–71.)
Lastly,
Anthony Merlino, a computer forensic specialist with Document
Technologies (“DTI”), analyzed the computer that Stover had used
at Williams-Sonoma.
(Id. at 572–631.)
KempVanEe’s report included a number of relevant findings.
According to KempVanEe, there was “a dramatic increase in
accessed documents starting on 7-22-14,” and “a large number of
these files appeared to be related to Williams-Sonoma.”
at 5.)
(Ex. 51
As to Stover’s Arhaus laptop, KempVanEe found that “at
least 36 files had been accessed from removable media,” some of
which “had file names consistent with Williams-Sonoma
12
document[s].”
(Id. at 6.)
Lexar thumb drive.
KempVanEe also analyzed Stover’s
(See id.)
On the drive, he “located over
500 files and folders that had been created between 07-07-14 and
07-17-14, most of which appeared [to] be William[s]-Sonoma
documents.”
(Id.)
KempVanEe noted that many of the documents
“had been deleted and some over written,” and that “[s]ome of
the deleted documents had not been deleted until sometime
between 09-12-14 and 09-23-14.”
(Id.)
KempVanEe’s report also
included a list of removable storage drives that had been
connected to Stover’s home desktop and to Stover’s Arhaus
computer.
(Id. at 5, 6.)
Slocum found that Stover’s user ID had not been used to
access Williams-Sonoma’s shared drive in 2014 until June of that
year.
(October 24–25, 2014, Hr’g Tr. 557.)
Slocum also found
that in June 2014, Stover’s user ID was used to open or copy
hundreds of files.
(See id. at 551–54; Ex. 12.)
Merlino performed a forensic analysis of Stover’s WilliamsSonoma computer, resulting in two significant findings.
First,
Merlino found evidence that Stover had installed and used
software for “anti-forensic” purposes.
Hr’g Tr. 577–78.)
(October 24–25, 2014,
The evidence suggested that Stover installed
the software on July 20, 2014.
(Id. at 578.)
Second, by
referencing the KempVanEe report, Merlino found strong evidence
13
that Stover had inserted the same thumb drive into both his
Williams-Sonoma and Arhaus computers.
(Id. at 602–04.)
Stover admitted that he had deactivated his Gmail account,
but denied doing so after receiving notice of his duty to
preserve evidence.
(Id. at 439.)
Stover acknowledged that he
had received a letter demanding that he preserve evidence on
September 18, 2014.
(Id. at 437; Ex. 40.)
He also acknowledged
that he sent an email to Daugherty through his Gmail the morning
of September 18, 2014.
(October 24–25, 2014, Hr’g Tr. 441.)
As
to whether he deactivated his Gmail after receiving the demand
letter, Stover then testified: “I don’t believe so, but I didn’t
do it intentionally or dishonestly here.
don’t recall.
I’m just saying I
Obviously, it was still open that morning early.”
(Id. at 442.)
Evidence was also introduced related to Plaintiffs’ claim
that Stover violated his non-solicitation agreement with
Williams-Sonoma.
Stover admitted that he had sent an email on
September 5, 2014, to Eric Marsiglia, then an employee of
Williams-Sonoma, in which he said: “You were always so important
to what I did and you actually carried me most of the time.
can get you to a VP level I know so hang on if you can.”
at 433; Ex. 38.)
(Id.
After initially equivocating, Stover
acknowledged that “clearly I’m stating I can get you to a VP
level [at Arhaus].”
(October 24–25, 2014, Hr’g Tr. 433–34.)
14
I
Additionally, Stover arranged for Daugherty to be
interviewed at Arhaus.
Stover forwarded Daugherty’s resume to
Andrew Lobo and Greg Teed, Arhaus’ Chief Financial Officer, on
July 28, 2014.
(December 10, 2014, Hr’g Tr. 65; Ex. 88.)
In
the email, Stover represented that Daugherty was “a young lady
we should hang onto for future opportunities,” and that “[o]ne
day we could use someone of her talents as we grow.”
Lobo responded to Stover: “Sweet.
discuss in near future.”
89.)
(Ex. 88.)
Will definitely hold and
(December 10, 2014, Hr’g Tr. 66; Ex.
Daugherty subsequently had an interview with Lobo and Teed
at Arhaus on August 22, 2014.
684–85.)
(October 24–25, 2014, Hr’g Tr.
Lobo learned of Stover’s non-solicitation agreement
with Williams-Sonoma two days earlier, on August 20, 2014.
(December 10, 2014, Hr’g Tr. 68.)
III. CONCLUSIONS OF LAW
Plaintiffs request that a preliminary injunction issue that
includes all the injunctive requirements currently in the TRO.
(ECF No. 92 at 1.)
Plaintiffs additionally request the
following relief:
a preliminary injunction that (a) enjoins Defendant
Stover from working for Arhaus for a period of time
sufficient to protect against misuse of WSDI’s trade
secrets; (b) enjoins Arhaus from permitting any
employee who received WSDI’s information from,
directly or indirectly, engaging in, assisting in, or
advising on the negotiation or drafting of Arhaus
agreements with ocean carriers, line-haul carriers, or
furniture home delivery vendors for a period of two
15
years; and (c) requires third party monitoring, paid
for by Stover and Arhaus, to ensure that Defendants
are compliant with the foregoing.
(Id.)
“The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial on
the merits can be held.”
390, 395 (1981).
Univ. of Texas v. Camenisch, 451 U.S.
“Accordingly, a party ‘is not required to
prove his case in full at a preliminary injunction hearing and
the findings of fact and conclusions of law made by a court
granting the preliminary injunction are not binding at trial on
the merits.’”
Certified Restoration Dry Cleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)
(quoting Camenisch, 451 U.S. at 395).
In determining whether injunctive relief is proper in a
diversity case, the Court applies its “own procedural
jurisprudence regarding the factors to consider . . . .”
541.
Id. at
Four factors are used by the Sixth Circuit to determine
whether injunctive relief is appropriate: (1) the likelihood of
success on the merits; (2) whether the injunction will save the
plaintiff from irreparable injury; (3) whether the injunction
would cause substantial harm to others; and (4) whether the
public interest would be served by the injunction.
Id. at 542.
“These four considerations are factors to be balanced, not
16
prerequisites that must be met.”
Id. (internal quotation marks
omitted).
Plaintiffs argue that all four factors weigh in favor of
granting the preliminary injunctive relief requested.
(E.g.,
ECF No. 143.)
Defendants oppose the relief requested, albeit for
different reasons and to different degrees.
Arhaus concedes
that some preliminary injunctive relief is appropriate.
(ECF
No. 142 at 2 (stating that the correct remedy in this case is to
require Defendants to return Williams-Sonoma’s materials and to
restrain Defendants from using, disclosing, or accessing those
materials).)
Arhaus, however, argues that the balance of the
factors weighs against two aspects of the relief sought by
Plaintiffs: (1) preventing Stover from performing supply chain
functions for Arhaus; and (2) preventing Arhaus employees that
received any Williams-Sonoma information from Stover from having
contact with third-party vendors.
(Id.)
In contrast, Stover argues that no injunctive relief is
appropriate in this case.
(ECF No. 144.)
Stover goes so far as
to argue that all four of the factors weigh against granting any
relief.
(ECF No. 144.)
The Court considers each of the four factors in turn.
17
A.
Likelihood of Success on the Merits
The Third Amended Complaint alleges five causes of action
against Arhaus and Stover: (1) misappropriation of trade secrets
in violation of the Tennessee Uniform Trade Secrets Act
(“TUTSA”) (as to both Defendants); (2) breach of contract (as to
Stover); (3) breach of the duty of loyalty (as to Stover); (4)
tortious interference of contract (as to both Defendants); and
(5) violations of the Computer Fraud and Abuse Act (as to
Stover).
(3d Am. Compl. ¶¶ 54-98, ECF No. 163.)
Plaintiffs
only argue a likelihood of success on the merits as to their
first two causes of action. 2
(See ECF Nos. 92, 143, and 147.)
Accordingly, the Court narrows its analysis of Plaintiffs’
claims to those first two claims.
Because the Parties have
stipulated that Tennessee law applies as to the first four
causes of action (TRO Hr’g 14-15 (sealed)), the Court considers
the likelihood of success under Tennessee law.
1.
Misappropriation of Trade Secrets
Trade secrets are protected in Tennessee by the Tennessee
Uniform Trade Secrets Act (“TUTSA”).
25–1702(1) et seq.
See Tenn. Code Ann. § 47–
The “TUTSA lists three requirements for
information to be considered a trade secret: (1) the information
must derive independent economic value from not being generally
2
They do not appear to concede in any way that there is no likelihood of
success on the merits as to their other causes of action. Plaintiffs instead
appear to argue that a likelihood on the merits as to the first two causes of
action is sufficient for the preliminary injunctive relief they seek.
18
known, (2) others could obtain economic value from its
disclosure or use, and (3) efforts have been made to maintain
its secrecy.”
J.T. Shannon Lumber Co. v. Barrett, 2:07–cv–2847–
JPM–cgc, 2010 WL 3069818, at *4 (W.D. Tenn. Aug. 4, 2010)
(citing Tenn. Code Ann. § 47–25–1702(4)).
The TUTSA prohibits misappropriation of trade secrets,
providing for both injunctive relief and damages.
Ann. §§ 47–25–1701 to 47–25–1709.
Tenn. Code
“Misappropriation” means, in
relevant part, either acquisition by a person who knows or has
reason to know the trade secret was acquired by improper means,
or disclosure without consent of a trade secret by a person who
knows or has reason to know that it was acquired under
circumstances giving rise to a duty to maintain its secrecy or
limit its use.
§ 47–25–1702(2).
“Improper means” include
“theft, bribery, misrepresentation, breach or inducement of a
breach of a duty to maintain secrecy or limit use, or espionage
through electronic or other means.”
§ 47–25–1702(1).
Defendants argue that Plaintiffs have failed to show a
likelihood of success against Stover as to their TUTSA claim
because there was neither evidence that Arhaus or Stover used
the trade secrets at issue nor evidence that there was any
detriment to WSDI.
No. 144 at 5.)
(ECF No. 95 at 4-11; ECF No. 142 at 13; ECF
In support of their arguments, Defendants cite
Stratienko v. Cordis Corp., 429 F.3d 592, 600 (6th Cir. 2005).
19
This citation, though, is inapposite.
Stratienko describes the
elements of misappropriation of a trade secret under Tennessee
common law -- not under the TUTSA.
See id. at 597 (noting that
Stratienko did not appeal the district court’s rejection of his
TUTSA claim).
reasons.
Stratienko is therefore irrelevant for two
First, Plaintiffs did not plead a violation of
Tennessee common law protecting trade secrets.
Second, even if
they had done so, such a claim would have been preempted by the
TUTSA.
Tenn. Code Ann. § 47–25–1708(a) (stating that the TUTSA
“displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies for misappropriation of a
trade secret”); Ram Tool & Supply Co. v. HD Supply Const.
Supply, Ltd., No. M2013-02264-COA-R3CV, 2014 WL 4102418, at *11–
14 (Tenn. Ct. App. Aug. 19, 2014) (citing with approval Hauck
Mfg. Co. v. Astec Indus., Inc., 375 F. Supp. 2d 649, 658 (E.D.
Tenn. 2004) (holding that the TUTSA preempts any non-contractual
common law claim that “would succeed or fail dependent on proof”
of the misappropriation of a trade secret)).
Under the plain meaning of the TUTSA, proving
misappropriation requires only evidence of acquisition by
improper means.
See Tenn. Code Ann. § 47–25–1702(2).
It does
not require proof that the trade secret has actually been used.
See id.
Nor does the TUTSA require proof of detriment outside
the misappropriation or disclosure itself.
20
See id.
The TUTSA
indicates that harm to the owner of a trade secret is inherent
in its misappropriation or disclosure.
See § 47-25-1704
(stating that damages “can include both the actual loss caused
by misappropriation and the unjust enrichment caused by
misappropriation that is not taken into account in computing
actual loss”).
When information that derives value from not
being generally known becomes more widely known, its value is
necessarily diminished.
See Ruckelshaus v. Monsanto Co., 467
U.S. 986, 1011 (1984) (“Once the data that constitute a trade
secret are disclosed to others, or others are allowed to use
those data, the holder of the trade secret has lost his property
interest in the data.”)
Plaintiffs therefore need only
establish a likelihood of success in showing that they possessed
a trade secret that Defendants misappropriated or disclosed.
The record is replete with evidence that establishes a
likelihood of success in demonstrating that Defendants
misappropriated Plaintiffs’ trade secrets.
On the evening of
Stover’s first interview with Arhaus, he started gathering
information for Arhaus’ benefit.
303, 308-309.)
(October 24-25, 2014, Hr’g Tr.
That evening, he asked Daugherty, then an
employee of WSDI, the linehaul costs from Cleveland to Houston,
and who would be the best provider.
(Id. at 308–09.)
Stover
admitted that he asked for the information because Arhaus “ha[s]
a distribution center in Cleveland.”
21
(Id. at 309–10.)
After
resigning, Stover repeatedly asked for -- and received -confidential information regarding Williams-Sonoma’s supply
chain from Williams-Sonoma employees.
61, 431-32, 435-36, and 680-86.)
(See, e.g., id. at 254-
One such document included
detailed pricing information on hundreds of shipping routes used
by Williams-Sonoma.
(See Ex. 12 (sealed).)
Stover proceeded to
distribute confidential information to high-level executives at
Arhaus, including Gregg Teed, the Chief Financial Officer, and
Andrew Lobo, the Chief People Officer.
(See, e.g., October
24-25, 2014, Hr’g Tr. 418-28, 432-33; December 10, 2014, Hr’g
Tr. 32-34.)
The record also indicates that Stover remained in
possession of significantly more confidential details of
Williams-Sonoma’s supply chain than those that were specifically
admitted.
After not having used his user ID to access Williams-
Sonoma’s shared drive in 2014 at all, the user ID was suddenly
used in June 2014 to open or copy hundreds of files.
October 24-25, 2014, Hr’g Tr. 551-3, 557.)
(See
Additionally,
Stover’s Lexar thumb drive includes over 500 files and folders
created between July 7, 2014, and July 17, 2014, that the
neutral computer forensics specialist determined appeared to be
Williams-Sonoma documents.
(Ex. 51 at 5-6.)
Many of the documents that Stover misappropriated
constitute trade secrets under the TUTSA.
22
As noted in Part
II.B.1, supra, details of a corporation’s supply chain
management can be useful to competing organizations.
As a
result, such information has value to the possessor due to not
being known by the competitor, thus providing a market
advantage.
Further, substantial efforts were taken by
Plaintiffs to maintain the secrecy of the details of their
supply chain management.
See Part II.B.1, supra.
The Court finds that Plaintiffs have met their burden in
establishing a likelihood of success on the merits of their
TUTSA action.
2. Breach of Contract
In the Order denying in part Stover’s and Arhaus’ Motions
to Dismiss and in the Alternative for Summary Judgment (ECF
No. 160), the Court found that the Code of Conduct (Ex. 1) was a
binding contract between Plaintiffs and Stover for the following
reasons:
A document such as an employee handbook is
contractually binding under Tennessee law when it
“contain[s] specific language showing the employer’s
intent to be bound by the handbook’s provisions.”
Reed v. Alamo Rent-A-Car, Inc., 4 S.W.3d 677, 687
(Tenn. Ct. App. 1999) (quoting Rose v. Tipton Cnty.
Pub. Works Dep’t, 953 S.W.2d 690, 692 (Tenn. Ct. App.
1997)). The Code of Conduct specifically states that
it “serves as an agreement between you and the
Company” (ECF No. 13-6 at PageID 95) and that the
agreement is “in exchange for your employment, and the
payment to you of salary, bonus, equity awards, and
other compensation” (id.). Because the language
unambiguously shows an intent to be bound, the Code of
Conduct is a contract.
23
At the TRO hearing, the individual Defendants did not
contest that they each signed the Code of Conduct.
The individual Defendants were thus parties to the
contract.
To determine whether Plaintiffs were parties to the
Code of Conduct, the Court looks to the language of
the contract itself. There are three provisions in
the Code of Conduct relevant to determining whether or
not Plaintiffs were parties to the contract:
1.
References in the Code of Conduct to we, us, our,
Williams-Sonoma, WSI or the Company are generally
intended to mean Williams-Sonoma, Inc. and all
its affiliates, divisions, brands and
subsidiaries, including its global subsidiaries,
stores and offices. (Id. at PageID 94.)
2.
This Code of Conduct also serves as an agreement
between you and the Company. (Id. at PageID 95.)
3.
[W]e ask you to enter into this agreement, in
exchange for your employment, and the payment to
you of salary, bonus, equity awards and other
compensation. (Id.)
It is not contested that WSDI and WSRSI are
subsidiaries of WSI. Therefore, references to “the
Company” in the contract also include WSDI and WSRSI.
The Code of Conduct specifically states that it serves
as an agreement between the employee “and the
Company,” which includes WSDI and WSRSI.
Williams-Sonoma Direct, Inc. v. Arhaus, LLC, 304 F.R.D. 520, 528
(W.D. Tenn. 2015).
Most of the Court’s factual findings in the previous Order
were established during the preliminary injunction hearing.
The
record reflects that Stover signed the Code of Conduct (Ex. 30),
and that WSDI is a subsidiary of WSI (see October 24-25, 2014,
Hr’g Tr. 42).
Additionally, both Arhaus and Stover concede that
WSRSI is a subsidiary of WSI.
(Def. Arhaus, LLC’s Answer &
24
Separate Defenses to Pls.’ 3d Am. Compl. ¶ 4, ECF No. 167; Def.
Stover’s Answer to 3d Am. Compl. ¶ 4, ECF No. 168.)
Accordingly, the Court finds that Plaintiffs have established a
likelihood of success of showing that WSDI, WSRSI, and Stover
were parties to the contract.
As to breach, Stover initially argues that he “has not
solicited or recruited any employee of WSI.”
10.)
(ECF No. 100 at
Instead, Stover argues that he “responded to overtures
from WSI employees, who were unhappy with their positions.”
(Id.)
The Court finds that Plaintiffs have established a
likelihood of success on the merits as to their breach of
contract claim against Stover.
The Code of Conduct specifically
prohibits recruiting any of Williams-Sonoma’s employees for a
period of twelve months after leaving Williams-Sonoma.
at 11.)
(Ex. 1
The record firmly establishes that Stover tried on
multiple occasions to recruit at least two Williams-Sonoma
employees within months of leaving.
(See, e.g., October 24–25,
2014, Hr’g Tr. 433–34 (acknowledging that he told Eric Marsiglia
that he could “get [Marsiglia] to a VP level” at Arhaus); id. at
684–85 (arranging for an interview of Daugherty at Arhaus).)
Stover’s actions went far beyond simply “respond[ing] to
overtures.”
25
Similarly for the reasons stated in Part III.A.1, supra,
the facts support a finding that Stover violated his contractual
duties to protect “confidential information” as defined in the
Code of Conduct.
Accordingly, the Court finds that WSDI has established a
likelihood of success on this claim.
B. Irreparable Injury
“A plaintiff’s harm from the denial of a preliminary
injunction is irreparable if it is not fully compensable by
monetary damages.”
Overstreet v. Lexington-Fayette Urban Cnty.
Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).
“[A]n injury is not
fully compensable by money damages if the nature of the
plaintiff’s loss would make damages difficult to calculate.”
Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992.)
“Damages in trade secrets cases are difficult to calculate
. . . .”
Avery Dennison Corp. v. Four Pillars Enter. Co., 45 F.
App’x 479, 485 (6th Cir. 2002).
This results in part from the
disparate nature of the harm that misappropriation of trade
secrets can cause a corporation, including reduced volume of
sales, lower profit margin, the cost of remedial efforts,
reduction in capital value, and development costs.
See
generally, Michael A. Rosenhouse, Proper Measure and Elements of
Damages for Misappropriation of Trade Secrets, 11 A.L.R.4th 12
(1982).
26
Similarly, the loss of employees to a competitor in breach
of a non-solicitation agreement results in damages that are hard
to calculate.
In a slightly different context, the Eighth
Circuit noted that the violation of a non-solicitation agreement
as to customer accounts resulted in irreparable harm.
Corp. v. Swindle, 724 F.2d 707, 710 (8th Cir. 1984).
N.I.S.
According
to the Eighth Circuit, a lack of a preliminary injunction would
leave the plaintiff “with the Hobson’s choice of either filing a
separate lawsuit for damages (or at least an amendment to an
initial suit) each time one of the defendants solicited away
another . . . customer or waiting until [plaintiff’s] customers
and goodwill had been completely drained away.”
Id.
This logic
applies equally in the employee non-solicitation context.
A
failure to issue injunctive relief would result in an analogous
Hobson’s choice every time an employee was solicited.
Accordingly, because Plaintiffs have demonstrated a strong
likelihood of success on the merits of both their TUTSA and
breach of contract claims, they have demonstrated irreparable
injury.
C. Substantiality of Harm to Others
There is no indication that injunctive relief would cause
any harm to anyone other than the parties.
The Sixth Circuit,
however, has held that “in deciding whether to grant a
preliminary injunction, the district court must consider the
27
harm that the injunction would cause the non-movant.”
Brake
Parts, Inc. v. Lewis, 443 F. App’x 27, 33 (6th Cir. 2011)
(citing Lorillard Tobacco Co. v. Amouri’s Grand Foods, Inc., 453
F.3d 377, 382 (6th Cir. 2006)).
The harm to a defendant may be
discounted, though, when there is evidence that the defendant
“knowingly and illegally” placed itself in a position to be
harmed by injunctive relief.
Id.
Defendants argue that two aspects of the injunctive relief
sought would cause them substantial harm: (1) restraining Stover
from working for Arhaus; and (2) restraining certain Arhaus
employees from being involved in negotiations with third-party
vendors.
The Court addresses each argument in turn.
Even though Stover and Arhaus appear to have “knowingly and
illegaly” placed themselves in a position to be harmed by
injunctive relief, the Court still finds that restraining Stover
from being employed by Arhaus would cause substantial harm to
both.
Andrew Lobo testified regarding the extensive search that
Arhaus utilized before ultimately hiring Stover (December 10,
2014, Hr’g Tr. 17-22), which would likely have to be repeated
were Stover restrained.
Moreover, while that search would be
ongoing, it is apparent from the record that Arhaus would be
left with no employee qualified to manage its supply chain.
harm to Stover is obvious and significant.
Restraining Stover
from working for Arhaus would deprive him of his current
28
The
employment and likely his source of income, as there is no
guarantee that Arhaus would continue to pay him while the
preliminary injunction remains in effect.
As to the sought-after relief to restrain any Arhaus
employees that received any of Plaintiffs’ confidential
information from having any involvement in negotiations with
third-party vendors for two years, Arhaus argues that its
competitive position would be severely damaged.
The Court
agrees that this would result in substantial harm to Arhaus.
The evidence indicates that such a restriction would harm
Arhaus’ ability to engage in negotiations at all -- for example,
by preventing the CFO from even reviewing important agreements
before they are signed.
D. Public Interest
There are three significant areas in of interest that are
at stake in this action.
First, there is a public interest in
“enforcing contract terms as they were intended by the parties.”
Interox Am. v. PPG Indus., Inc., 736 F.2d 194, 203 (5th Cir.
1984); see also ProductiveMD, LLC v. 4UMD, LLC, 821 F. Supp. 2d
955, 961 (M.D. Tenn. 2011) (“In drafting the TUTSA, ‘[t]he
Tennessee legislature adopted the definition of ‘trade secrets'
under the Uniform Trade Secrets Act, and also adopted additions
which make Tennessee's definition even broader than the
definition in the Uniform Act.’” (quoting Hamilton-Ryker Grp.,
29
LLC v. Keymon, No. W2008-00936-COA-R3-CV, 2010 WL 323057, at *14
(Tenn. Ct. App. Jan. 28, 2010) (alteration in original)).
Second, in considering the public interest served by an
analogous Ohio statute to TUTSA, the Sixth Circuit recognized
that “the public has an interest in discouraging unfair trade
practices.”
Hoover Transp. Servs., Inc. v. Frye, 77 F. App’x
776, 785 (6th Cir. 2003).
trade are disfavored.”
Third, in Tennessee, “restraints of
PartyLite Gifts, Inc. v. Swiss Colony
Occasions, No. 3:06-CV-170, 2006 WL 2370338, at *9 (E.D. Tenn.
Aug. 15, 2006) (quoting AmeriGas Propane, Inc. v. Crook, 844 F.
Supp. 379, 390 (M.D. Tenn. 1993)) aff’d, 246 F. App’x 969 (6th
Cir. 2007).
These three interests weigh in favor of some -- but not all
-- of the relief that Plaintiffs seek.
Restraining Stover from
violating his non-solicitation agreement would further the
public interest in enforcing contracts.
Similarly, restraining
Defendants from profiting from Plaintiffs’ trade secrets would
promote the public interest in discouraging unfair trade
practices.
In contrast, restraining Stover from working for
Arhaus would be contrary to the public’s interest against
restraints on trade -- as would restraining the activities of
employees at Arhaus.
30
E. Balance of the Factors
The four factors in determining whether to grant a
preliminary injunction “are not prerequisites, but are factors
that are to be balanced against each other.”
F.3d at 573.
Overstreet, 305
“A preliminary 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.”
Id.
The primary disagreement of the parties is how to balance
the factors -- specifically as to restraining Stover’s
employment and the activities of Arhaus employees.
Plaintiffs
argue that such relief is appropriate in light of the “nature of
the information that Stover stole and the competitive
relationship between WSDI and Arhaus,” as well as “the
dishonesty and bad faith that accompanied Stover’s actions.”
(ECF No. 92 at 12, 13, 15.)
Plaintiffs give two principal
reasons that these measures should be taken.
First, Plaintiffs
argue that the nature of the trade secret knowledge that Stover
possesses is such that there is a sufficient threat of misuse.
Plaintiffs assert that Stover will inevitably disclose his
knowledge of WSI’s trade secrets.
Plaintiffs contend that based
on the nature of Stover’s knowledge alone the balance of the
equities favors restraining his employment.
92 at 10-12; ECF No. 143 at 2-4.)
31
(See e.g., ECF No.
Second, Plaintiffs argue that
Stover’s previous bad faith weighs heavily in their favor.
(See
e.g., ECF No. 92 at 13-14; ECF No. 143 at 7–9.)
Stover and Arhaus raise two main arguments to support their
assertion that the balance of the factors weighs against the
restraints that Plaintiffs seek.
First, Defendants argue they
no longer have access to any of the trade secrets that Stover
took.
(ECF No. 142 at 9; ECF No. 144 at 6.)
Second, they argue
that the information that Stover retains in his head is unlikely
to constitute trade secret information that needs protecting.
(ECF No. 142 at 11-13 (citing Am. Airlines, Inc. v. Imhof, 620
F. Supp. 2d 574, 576 (S.D.N.Y. 2009)); ECF No 144 at 11-14.)
Defendants’ reliance on Imhof is well-placed.
Imhof
concerned a former employee of American Airlines, Inc.
(“American”).
620 F. Supp. 2d at 576.
American for twenty-two years.
Id.
Imhof worked for
At the time he left, Imhof
served as managing director of sales for American, covering the
greater New York region.
Id.
“His responsibilities required
familiarity with American’s travel agency compensation policies,
contracts with and strategies toward major customers, and
competitive conditions.”
Id.
Imhof contacted Delta Airlines, Inc. (“Delta”) in mid-March
2009 regarding a job opportunity, resigned from American on
April 28, 2009, and began work at Delta on May 1, 2009.
Id.
Eight days before Imhof resigned, he attended American’s sales
32
board meeting in Dallas, which “included discussion of what
American claims was sensitive competitive information.”
Id. at
577.
In the month before his departure, he sent emails to
himself at his personal email address and attached documents
“relating to American’s business and/or his work at American.”
Id.
Days before his resignation, he brought in an external hard
drive “to which he copied both personal and American documents
that were stored . . . on his American laptop computer.”
Id.
A
few days later, “he purchased a Blackberry for the purpose . . .
of transferring the contacts on his American-issued Blackberry
to his own.”
Id.
Following Imhof’s departure, American reviewed his emails,
and discovered the proprietary information that Imhof had sent
to his family email address.
Id. at 578.
American further
discovered that Imhof had copied files to an external hard
drive.
Id.
In response, American sent a demand to Delta that
Imhof cease his employment.
Id.
Delta placed Imhof “on
something akin to administrative leave.”
Id.
The Imhof court found that a preliminary injunction
restraining Imhof from working would likely cause him
substantial harm.
Id. at 586.
Further, the court found that
the harm to American was speculative as a result of Imhof’s
inability to access any more information at the time of the
33
order than was in his memory.
See id. at 584–85; 587.
The
Court therefore declined to restrain Imhof from working for
Delta.
Id. at 587.
The Court agrees with Plaintiffs that some injunctive
relief is appropriate, but finds that the factors weigh against
either restraints on Stover’s employment or on the activities of
Arhaus employees.
As in Imhof, “it is well to bear in mind that
we are dealing with an individual responsible for [business
processes] distinct, for example, from a food chemist privy to
the secret formula for Coca–Cola or even a salesman for a highly
specialized, technical product used only by small numbers of
obscure manufacturers.”
Id. at 582.
Stover, like Imhof, had
access to a great deal of sensitive information.
Like Imhof --
and contrary to Plaintiffs’ suggestions -- many of the
competitively advantageous details of that information are
unlikely to reside in Stover’s head.
Stripped of the minutiae,
much of the information that Stover likely retains in his head
is of the type that one would find in any business school class
on supply chain management.
Accordingly, a restraint on
Stover’s employment would be excessive.
As to the requested restraints on Arhaus employees, the
Court finds that degree of the harm to Arhaus similarly does not
justify such a burden.
There is no evidence of any ongoing use
of the information that Stover forwarded, so any further harm to
34
Plaintiffs based on Arhaus employees’ previous possession of
this sensitive information is purely speculative.
Moreover, the balance of the factors weighs against
appointing a third-party monitor.
The appointment of a third-
party monitor to ensure compliance with an order is an
extraordinary remedy.
See Sierra Club v. U.S. Army Corps of
Engineers, 701 F.2d 1011, 1044 (2d Cir. 1983).
The
circumstances of this case do not justify such an extreme
measure.
Defendants have ongoing discovery obligations.
To the
extent any violation of this Order is revealed, Plaintiffs can
move for the violating party to be held in contempt.
“The
purpose of a preliminary injunction is simply to preserve the
status quo . . . .”
United States v. Edward Rose & Sons, 384
F.3d 258, 261 (6th Cir. 2004).
The balance of the factors does
not indicate that a third-party monitor is necessary to maintain
the status quo.
The decision not to grant all the relief requested,
however, does not imply that Defendants appear to have clean
hands.
In contrast to Imhof, this case presents a troubling
pattern of repeated instances of bad faith, both by the
pilfering party and the hiring organization.
Accordingly, it is
appropriate that a preliminary injunction should issue.
35
IV.
CONCLUSION
For the reasons stated above, the Plaintiffs’ Supplemental
Motion for Preliminary Injunction, (ECF No. 92), is GRANTED.
As
the Court previously noted, however, the Court declines to
impose all of the restrictions that Plaintiffs requested.
The Court HEREBY ORDERS Defendants:
(a)
to continue to preserve evidence relevant to this
dispute, including, but not limited to, relevant
electronic evidence; and
(b)
not to acquire, access, disclose, or use, or attempt
to acquire, access, disclose, or use, any of
Plaintiffs’ confidential information.
Further, Stover is HEREBY PRELIMINARILY ENJOINED and
RESTRAINED from:
(c)
acquiring, accessing, disclosing or using, or
attempting to acquire, access, disclose, or use WSDI’s
or its derivatives’ confidential information; and
(d)
directly or indirectly recruiting or soliciting any
employee of WSDI, its parents, subsidiaries, or
affiliates, or inducing, or attempting to induce, any
employee of WSDI, its parents, subsidiaries, or
affiliates, to terminate his or her employment with
WSDI, including its parents, subsidiaries, and
affiliates.
For the purposes of this order, confidential information of WSDI
is defined as data and information relating to the business of
Williams-Sonoma, Inc. or WSDI that was disclosed to any employee
or former employee as a consequence of that person’s employment
and which is not disclosed to the public at large.
at 10-11.)
36
(See Ex. 1
IT IS SO ORDERED, this 18th day of June, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
37
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