CENTIMARK CORPORATION v. JACOBSEN, No. 2:2011cv01137 - Document 63 (W.D. Pa. 2011)
Court Description: MEMORANDUM AND OPINION: Plaintiff's motion for a temporary restraining order and/or preliminary injunction is denied for the reasons set forth herein. Signed by Judge William L. Standish on 11/29/2011. (cs)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CENTIMARK CORPORATION, Plaintiff, vs. Civil Action No. 11-1137 JON A. JACOBSEN, Defendant. MEMORANDUM OPINION Pending before the Court is a motion restraining order and preliminary injunction, CentiMark Corporation ("CentiMark") working for another violation of Jacobsen and proprietary Pennsylvania an and nationally Uniform filed by Plaintiff Plaintiff rmer employee, recognized agreement misappropriating trade temporary Jon A. from unfairly competing with CentiMark by employment from a at Docket No.5. seeks an order of Court preventing its Jacobsen ("Jacobsen"), for secret Trade between in company CentiMark Plaintiff's information Secrets roofing in and confidential of For Act. violation reasons the the discussed below, the motion is denied. I. BACKGROUND A. Factual Background 1 CentiMark Corporation is one of the largest roofing Unless otherwise noted, the facts in this section are taken from the Complaint and are consistent with the evidence present at the TRO/PI hearing. Additional facts will be set out in the discussion below. contractors in the United States and some parts of Canada. maintains approximately 65 offices and focuses large-scale industrial CentiMark organized is and into matters discussed herein: commercial three a sales force, its business on roofing activities It projects. relevant to the a Business Development Team, and a National Accounts Group. The function of the CentiMark Business Development Team is to identify new sales leads, target prospective customers, develop relationships with its new customers, and especially those businesses which function on a nationwide scale. The National Accounts Group is comprised of a number of account managers who are assigned to specific programs. These relationship between particularly territories individuals CentiMark important Understandably, to establish and its responsibility accounts generate approximat revenue. or specific and national maintain largest because customers, the the a national y 60% of CentiMark's annual sales the confidential information generated by the Business Development Team and the National Accounts Group is proprietary to CentiMark and of great business value to it. Jon A. Jacobsen was originally hired by CentiMark in 1996 as a corporate accounts representative. process, September Jacobsen 19, entered 1996 ("the As part of the hiring into an agreement 1996 2 with Agreement.") CentiMark This on agreement included a provision which precluded him first or misappropriating CentiMark's trade from disclosing secrets, proprietary information, and confidential information either during the time he was employed by CentiMark or at non-disclosure provision.") any time Secondly, thereafter the 1996 ("the Agreement established a two-year period beginning with his departure from the company for any reason during which he agreed not to engage in any activity which CentiMark's business could be the post-employment posi tion, business Jacobsen would information, as competing ("the non-compete provision.) and Jacobsen recogni zed in the for construed 1996 Agreement provisions be privy was to including access the that CentiMark's to the CentiMark 2 fact with the reason that in con dential identity of his the company's most valuable customers and its business development research and data. During the next five years, Jacobsen progressed through the CentiMark hierarchy, eventually becoming the Sales Manager for the Florida Region in 1999. Senior Regional In 2001, Jacobsen was let go from the company. CentiMark rehired Jacobsen on August 30, Sales Manager for the Southern Group. employment, Jacobsen signed an Again, Employment 2004, as Regional as a condition of Agreement which The two provisions are discussed in greater detail below inasmuch as they form the basis for the claims brought by Plaintiff in this lawsuit. 3 2 explici tly incorporated the same post-employment those in the 1996 Agreement ("the Employment Agreement. II) the next seven years, him exposed as Over Jacobsen was promoted into positions which ever to provisions increasing amounts of CentiMark's confidential, proprietary business information. On July 27, 2011, Jacobsen unexpectedly resigned from his employment at CentiMark, explaining in a letter to the company's founder and President located chief of in Nations Roof Atlanta, acknowledged intention executive the to officer South Georgia. terms fully of LLC In the comply that was the the to become Roof South ll ), letter, Jacobsen ("Nations same Employment with he Agreement obligations and set his forth therein. According to CentiMark's Complaint, one of its direct competitors. roof services, management management along replacement, and Roof South, LLC ("Nations with through Roofll) nationwide basis commercial roofing Complaint, its and Roof South is Both companies offer commercial including technical, emergency Nations maintenance preventative, Like services. sister-companies network, offers competes for In industry. in the fact, same asset restoration, CentiMark, these the and Nations Nations services Roof, on a market in the according to the the CentiMark National Account Team competes directly 4 with Nations Roof for the accounts of several large customers. Inasmuch as the companies are direct competitors, by going to work as president and an equity holder in Nations Roof South, Jacobsen allegedly violated the Employment Agreement. B. Procedural Background CentiMark 2011, alleging provision of filed suit that Jacobsen the in Employment this breached (1) ("PUTSA"), Nations Roof 12 on the Agreement; Pennsylvania Uniform Trade Secrets Act, seq. Court September 8, non-compet i tion violated (2 ) Pa. C. S. the et 5301 § by misappropriating, misusing and disclosing to and/or Nations Roof South confidential or proprietary business information belonging to CentiMark; and (3) is unfairly competing with CentiMark. CentiMark filed restraining the order now-pending ("TRO") and Immediately thereafter, motion preliminary for a temporary injunction ("PI"), seeking to enjoin Jacobsen's employment by Nations Roof South or any other competing business for a two-year period beginning as of the date indefinitely of the from Court's decision misappropriating, and using, enjoining or him disclosing .CentiMark's confidential, proprietary trade secret information. After an initial case management heard two days of testimony on matters PI, at which a corporate conference, Court related to the TRO and representative 5 the of CentiMark, John Godwin ("Godwin"), Sales and of the the concl usions were and Executive Jacobsen hearing, on to file law. The deadlines of that several they times were proposed on actively 29, their proposed findings the of in Court fact and that representations pursuing of Following 2011, established the and President findings negotiations were ultimately unsuccessful. filed Vice testi f ied. September parties postponed parties company's Marketing, conclusion directed the order of settlement. the Those The parties have now conclusions regarding the issues raised in the Complaint and at the hearings. II. JURISDICTION AND VENUE CentiMark is a Pennsylvania corporation with its principal place of business currently a in resident Canonsburg, of Pennsylvania. Georgia. This Jacobsen Court therefore is has jurisdiction over this matter based on complete diversity of the parties and, according to the Complaint, controversy in excess of the statutory minimum. Jacobsen 1332(a)-(c) . does not dispute the an amount in See 28 U.S.C. § Court's personal jurisdiction over him. Venue 1391(a) is appropriate inasmuch as the in this Court Employment under Agreement 28 U.S.C. § specifically provides that any litigation arising from the Agreement shall be brought in a court sitting in Washington County , 6 Pennsylvania, which is located within this judicial district. III. STANDARD OF REVIEW It is injunctive granted well-established relief only in Conserve Program, denied, 514 U.S. is "an limited in circuit extraordinary (1995) that preliminary remedy which circumstances." 42 F.3d 1421, 1103 this 1426-1427 AT&T v. (3d Cir. should be Winback 1994), & cert. (internal quotation omitted.) The four elements the party seeking the injunction must demonstrate are equally well known: (1) a "reasonable probability of eventual success in the litigation;" (2) the existence of immediate irreparable the relief requested is not granted; harm if (3) the possibility of harm to other interested persons (including the defendant) from the grant or denial of the injunction; and (4) the public interest. Ortho Pharmaceutical Corp. v. Amgen, Inc., 882 F.2d 806, 812-813 (3d Cir. 1989). Although the movant must present evidence "sufficient to convince the trial judge that all four factors favor preliminary relief" F.2d (Opticians Ass'n of Am. 187, essential. 192 (3d Cir. Abu-Jamal 1998); Hohe v. Casey, v. v. Indep. ()pticians of Am., 920 1990)), the first are Price, 154 F.3d 868 F.2d 69, 7 72 two 128, (3d Cir.), criteria 133 cert. (3d Cir. denied, 493 U.S. 848 (1989) (the motion should be denied if the party seeking relief cannot "demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted.") (Emphasis in original.) Rule 65 of the Federal Rules of Civil Procedure sets out the requirements for the court to consider when presented with either a preliminary injunction or a temporary restraining order and the standard for granting either form of relief is the same. v. Duck Boat * 13 4422, relief Tours, (E. D. is Pa . not discretion of a the Inc., No. 04-5595, Mar. 21, 2005). matter of right district 2005 U.S. The grant but court. Ride the Ducks, LLC is Dist. of within Spartacus, inj uncti ve the Inc. LEXIS v. sound McKees Rocks, 694 F.2d 947, 949 (3d Cir. 1982). IV. ANALYSIS The Court has relied on the parties' fact and of law in arriving at its conclusions In the interest of brevity, citations to the record are below. made conclusions proposed findings of only where an issue is in dispute. The analysis is organized according to the three claims brought by CentiMark in its Complaint. A. Breach of the Non-Compete Provision of the Employment Agreement 1. in 1983 with After having graduated from college Background: a degree in building 8 construction management, Jacobsen worked for a commercial roofing company for about nine years. In 1996, in its Westland, Agreement, provision, he was approached by CentiMark for a pos Michigan office. Jacobsen Section became 4.05, When presented with the 1996 concerned because ion the about roofing the non-compete industry was the only area in which he had established any significant expertise. He therefore proposed, and CentiMark accepted, a paragraph which identified certain types of employment within the roofing industry in which he would be allowed to work despite a general prohibition against employment with "Competing Businesses,,3 for two years following termination of his CentiMark employment. (Transcript of Hearing held on September 28, 2011, "Tr. Section 4.05(d) 9/28," at 61.) As drafted by Jacobsen, Doc. No. 58, the 1996 Agreement stated: 3 "Competing Business" is defined in the 1996 Agreement as follows: (i) any person, business, enterprise or other entity which sells or attempts to sell any products or services, or any combination thereof, which are the same as, or similar to, the products and services sold by CENTIMARK at any time, and from time to time, during the last three (3) years prior to the termination of Employee's employment hereunder or subsequent thereto during the period of time in which Employee is restricted from competing with Centimark pursuant to the provisions of this Agreement. (ii) any person, business, enterprise or other entity which solicits, trades with, advises, calls upon or otherwise does, or attempts to do, directly or indirectly, a business with any clients, customers or accounts of CENTlMARK, its successors, assigns, subsidiaries or affiliates, that have done business with CENTlMARK at any time, or from time to time, during the period of Employee's employment hereunder. (Tr. 9/20, Exh. 1, 1996 Agreement, § 9 4.05(a) (i) and (ii).J of Notwithstanding anything contained in 4. OS, Employee [i. e. , Jacobsen] shall be able to work, after termination of employment, whether in a self employed capacity or as an employee, in the residential shingle contracting business, as or for a Durolast contractor, or as or for an SBS or APB 4 Modified roofing contractor. In addition, Employee may work for a roofing materials manufacturer or a wholesaler or distributor of roofing materials. (Transcript of Hearing held on September 20, 2011, Doc. No. 32, "Tr. 9/20,11 Exh. 1, 1996 Agreement, § 4.05(d).) After Section 4.05(d) agreement, Jacobsen agreed to go Manager in Michigan. Corporate Account was inserted into to for work He the proposed CentiMark and his as a family subsequently relocated from Michigan to Florida in order for him to take the position year after moving, of Regional in March 2001, Sales Manager. Less than a he was told that his position was being eliminated and his employment terminated. He was able to negotiate a different position within the company, only to be terminated just five months later on August 31, 2001. In the August 31 letter terminating his employment f president pay and for human greater CentiMark officially Jacobsen was told he would receive upset about the fact that he had eight weeks of severance pay. been abruptly terminated, from Jacobsen wrote to the CentiMark vice resources, flexibility requesting in seeking additional employment severance within the Defendant states (Doc. No. 62 at 4, n. 4) and Plainti ff does not disagree, that "APE" is a typographical error in the 1996 Agreement and that "APP" is the proper abbreviation. 10 commercial roofing industry. response, CentiMark's (Tr. 9/28 at 76 and Exh. coun~el, in-house I.) Annemarie In Hoffman, indicated that CentiMark would provide 15 weeks of severance in exchange for his agreement to a Settlement precluded him from working for any roofing and Release company other than one which performed only residential shingle work. 79 and Exh . K.) post-CentiMark Jacobsen employment refused to the roofing which (Tr. condition companies 9/28 at limiting his that only did residential shingle work because he believed it contradicted the full scope of Section 4.05(d) at 80 and Exh. of the 1996 Agreement. (Tr. 9/28 CentiMark ultimately agreed to modify the L.) Settlement and Release and allowed Jacobsen to work for certain types of roofing companies in Between 2001 and mid-2004, roofing companies manager for a in a and Northern commercial and modified time, the As America. Jacobsen worked for a series of variety of positions including general roofing company specializing in sheet bitumen systems for General Roofing Services the Michigan (Id. at 80 and Exh. M.) Ohio. metal Florida, and regional ("General Roofing") largest commercial required by Section roofing 4.08 of sales manager which was, company the in at North 1996 Agreement, CentiMark was kept apprised of these jobs and did not object to them. In 2004, General Roofing 11 filed for bankruptcy. Its former chief executive formed a company, position orida, new as officer, Richard Nations of president Roof, Nugent offered company's the and ("Nugent") , Jacobsen office which had not yet been established. in a Orlando, Jacobsen declined Nugent's offer, but remained in contact with him. CentiMark him the contacted position Georgia office. the to of Regional Articles position Sales Employment I in mid-2004, Manager which he dissatisfied with a Agreement through including Section 4.05(d). a again in As a condition of employment, updated incorporated Jacobsen VII of the Atlanta, Jacobsen agreed which the offering explicitly 1996 Agreement, In 2008, Jacobsen was transferred to considered a demotioni he was also second transfer in 2009 because he was no longer managing people and believed his career had taken a step back since relocating offered to Atlanta. a sales 9/28 at position 95 97.) with In 2010, Nugent Roof. Jacobsen declined that offer but expressed an interest in a management position. Jacobsen (Tr. Nations In 2011, Nugent offered him the position of president and general manager of Nations Roof South, which he accepted. On (Tr. 9/28 at 97.) July 27, 2011, Jacobsen resigned from CentiMark in a conversation with Godwin and an e-mail message to Edward Dunlap ("Dunlap"), CentiMark's chief executive officer. 12 In the e-mail, Jacobsen terms of assured his Dunlap that Employment he intended Agreement and to comply explained with that the Nations Roof South primarily performed new construction, "plan room bidwork," and consultant referrals, all (Tr. typically did not engage. areas 9/28 at in which CentiMark 103 and Exh. V.) He further explained that he was not going to be responsible for sales at Nations Roof South and that prior to accepting his new position, he had responsibilities managing field informed at Nations operations business. (Tr. CentiMark filed Nugent 9/28 at suit Roof and of South the restriction. would be profit and Despite 102-104.) against this these him without His limited loss of to the assurances, prior notice, contending he had violated the Employment Agreement. 2. Applicable law: 5 CentiMark alleges that provision of Employment the In Count Jacobsen has I of its violated Agreement by the going Complaint, non-compete to work for 5 Although Jacobsen argues elsewhere that Georgia law should be applied, as a Court sitting in diversity, we are required to apply the substantive law of the forum state. See Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938); Edwards v. HOVENSA, LLC, 497 F.3d 355,361 (3d Cir. 2007). When applying Pennsylvania substantive law, if there is no controlling decision by the Pennsylvania Supreme Court, this Court will consider decisions of intermediate appellate courts, which, although not conclusive, are indicative of how the Supreme Court might decide the issue. McGowan v~ Uni~ Scranton, 759 F.2d 287, 291 (3d Cir. 1985) (in "appropriate circumstances," such intermediate court decisions may consti tute "presumptive evidence" of Pennsylvania law.) Moreover, the Employment Agreement which is at the heart of this dispute includes a choice of law provlSlon indicating that Pennsylvania law is to applied. (Tr. 9/20, Exh. 1, § 7.06.) 13 Nations Roof South. 6 Pennsylvania law recognizes restrictive covenants prohibiting an employee from competing with his former Zambelli employer. 424 (3d Cir. Fireworks Mfg. 2010.) restraint on trade, Co. v. Wood, 592 F. 3d 412, While such covenants are disfavored as a they are enforceable to the extent that they are "incident to an employment relationship between the parties; the restrictions necessary for restrictions imposed the by the protection imposed are 917 see also Hess v. 2007); (Pa. 2002) of the reasonably geographic extent." Victaulic Co. (3d Cir. covenant v. reasonably employer; limited Tiernan, Gebhard are and the in duration and 499 F. 3d 227, 235 Co. 808 A.2d 912, (non-compete and other restrictive covenants "are not favored in Pennsylvania and have been historically viewed as a trade restraint that prevents a former employee from earning a living.") may "Generally, not employee enforce simply to a American courts post-employment insist that an employer restriction eliminate competition per se; on a the former employer must establish a legitimate business interest to be protected." Hess, 808 A.2d at 918. Under Pennsylvania law, the interpretation provision is a matter of law for the court. of a contract Swiss Reinsurance 6 The breach of contract claim also alleges breach of the non disclosure provisions of the Employment Agreement; these are discussed below in the section addressing Count II, the claim that Jacobsen has violated or will inevitably violate the PUTSA. 14 Am. Corp. App. v. Airport Indus. Park, Inc., No. 07-3749, 2009 U.S. * 9 (3d Cir. May 5, 2009), ci ting Hutchison v. LEXIS 9701, Sunbeam Coal Corp., 519 A.2d 385, 390 (Pa. 1986). "Determining the intention of the parties is a paramount consideration in the interpretation of any contract. . The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. Hutchinson, 1/ id. at 389-390 (internal citations omitted.) 3. success in Plaintiff's the reasonable li tiga tion. To probability succeed on the "(1) the essential terms, and (3) Cutillo, 225 723 damages. (3d Cir. A.2d into essential the II 2003) 1053, a its aintiff must contract, including its 1058 Ware v. Rodale Press, Inc., quoting CoreStates Bank, (Pa. Super. ct. 1999) N.A. 322 v. (internal There is no question that the parties had quotation omitted.) entered of of (2) a breach of a duty imposed by the contract, resultant F.3d 218, existence eventual merits breach of contract claim under Pennsylvania law, establish of Employment non-compete clause, Agreement and we in 2004, including therefore turn to the the question of whether Jacobsen has breached that provision. CentiMark argues that Jacobsen has violated Section 4.05 of the 1996 Agreement, Agreement, as incorporated by accepting a into the position with and 15 2004 Employment holding an equity interest in one of its most significant competitors. argues that the South falls work done by Nations wi thin Section 4.05 (d) and he is therefore not CentiMark argues, Jacobsen Roof and/or Nations Roof of the Employment Agreement in violation of that agreement. Jacobsen's position is argument without merit for two reasons: clearly first, a But, post hoc his attempt to distinguish his new job at Nations Roof South in his resignation letter to Dunlap does not mention Section 4.05 (d); he has admitted CentiMark, Nations Roof is a direct competitor not only with regard to the markets they serve, services and solicit, but competed. whether that and second, products also We past agree Plaintiff they is offer, projects with on and the which customers they the parties that to succeed on likely have the they actually determination the merits of of of its breach of contract claim hinges on the interpretation of Section 4.0S(d). Omitting some provisions not relevant here, Section 4.05(d) provides that [Jacobsen] shall be able to work. . in the residential shingle contracting business, as or for a Durolast Contractor, or as or for an SBS or APP Modified roofing contractor. [and in addition] for a roofing materials manufacturer or a wholesaler or distributor of roofing materials. CentiMark argues only for a that company Section which 4.05 (d) is 16 in allows the Jacobsen "residential to work shingle contracting business." by a simple reading This interpretation is refuted not only· of the paragraph he but insisted also that by this Jacobsen's testimony. Jacobsen testified paragraph be inserted into the 1996 Agreement because if he left CentiMark, he wanted to be able to "go to work within the industry for a company that installs steep slope shingles, or APP and SBS modified Bitumen three areas CentiMark. he (Tr. had worked in roof prior or Durolast systems systems" which to 9/28 at 61 and 63.) becoming were the employed by Nations Roof South is a licensed and approved Durolast contractor and installs SBS and APP modified roofing systems. (Id. at 63.) Durolast is a PVC single-ply membrane and APP and SBS are asphal t-based modified (Id. membranes used with hot asphalt. These three products are not the type of roofing CentiMark installs, the "majority" of as Jacobsen also material selection when which described are them, single-ply membranes, "CentiMark's typical or, they install a roof would be a single-ply rubber or EPDM system, or a single-ply thermoplastic which would be a TPO or a PBC roof system." (Id. at 64-65; 67.) CentiMark provides only its own warranty as compared to the manufacturers' warranties applicable to roof systems using Durolast, SBS therefore does not offer those products. 17 or APP, and (Id. at 67.) CentiMark CentiMark (Tr. distinctions. only the not did argument contractor" and "as contractor" modify 9/28 at 120-123.) the phrases or for an SBS previous shingle contracting business." these on Instead, CentiMark offers that the Jacobsen cross-examine "as or or for APP phrase a Durolast Modified "in the roofing residential It concludes that "the sentence can only be read to mean that Jacobsen shall be able to work in the residential Durolast shingle contractor contractor." contract [ing] or an (Plaintiff's business or SBS APP Proposed ~~ either Modified Findings Conclusions of Law, Doc. No. 52, at 22-25, for of a roofing Fact and 121-130.) The Court concludes that a reasonable finder of fact would more likely 4.05(d) than agree with with Jacobsen's CentiMark's. interpretation First, based on of Section Jacobsen's unrefuted testimony, Durolast, APP and SBS are not what would be commonly understood as involve rather "membranes" "shingles" than since those individual roofing pieces of systems roofing material. Second, there would be no reason to include provisions allowing Jacobsen to work "as or for a Durolast contractor or "as or for an SBS or APP Modified roofing contractor" if these were products that a "residential shingle contracting business" installed or, roofing conversely I contractor were if a Durolast, considered 18 a SBS or APP Modified "residential shingle contracting business." Jacobsen testi construction, ed that Nations Roof South primary does new plan room bid-work, and consultant referrals, areas in which CentiMark does not engage to any extent. 9/28 at 103.) on this Again, issue testimony. conceded nor And, that (Tr. CentiMark did not cross-examine Jacobsen does it offer any evidence to refute this contrary to Plaintiff's argument that Jacobsen Nations Roof South and CentiMark are direct competitors, we find his testimony less clear cut than Plaintiff contends. (See Doc. No. 52 at 20, reference to the hearing transcript this admission by Jacobsen, Tr. Plaintiff's first which purportedly verifies 9/20 Godwin's testimony and the second, refer to competition at all. 109.) <Jl Tr. at 55, actually 9/20 at 38-40, cites does not Even when Plaintiff is given the benefit of the doubt and one assumes that CentiMark is referring to the transcript of September 28, 2011 instead, testimony at page 55 does not discuss competition, has not shared the information in a list of Jacobsen's only that he major CentiMark projects in progress with anyone at Nations Roof or Nations Roof South nor has he attempted to contact any company in that list. In his testimony at pages 38-40, he admits that in one instance Nations South) Roof (not Nations Roof already had which CentiMark intended to contest and in another, 19 an account that there was at least one other company Roof competing for a project. besides CentiMark and Nations Two projects out of hundreds does not establish that the two companies compete to any significant extent in the same markets, services, products, or customers. Finally, 4.05(d) the fact that Jacobsen did not refer to Section in his termination letter to Dunlap does not necessarily mean this is a post hoc argument; in fact, points to the opposite conclusion. the written evidence In a letter to CentiMark's in-house counsel dated September 27, 2001, Jacobsen wrote: When I came to Centimark, I signed your employment Agreement. To my knowledge, it is still in effect. At that time you made changes to paragraph 4.05, subparagraph D, which allows me to work for a shingle contractor, a DuroLast contractor, or a modi ed bitumen contractor. (T r. 9/28, Exh. L.) The twelve ultimate months agreement after October between 26, the 2001, parties the date was that for on which the Settlement and Release was executed, Jacobsen would not engage directly or indirectly, in the roofing or roof related business other than working with a government bid, new construction roofer, or residential roofing company in the State of Florida, Michigan and Northern Ohio. Nothing herein precludes Mr. Jacobsen from working for a roofing distributor or manufacturer. (T r. 9/28, Exh. M, Moreover, a <j[ 4.) reasonable finder of fact might conclude Jacobsen believed there was no reason to mention this provision 20 in his e-mail to Dunlap because he thought he had already won this That bat tie. redress when products, he went services, CentiMark and in a use confidential is, he knew CentiMark did not to work Roofing, for General seek legal whose and market were similar to those offered by capacity where information he could, acquired without during his question, tenure with CentiMark, i.e., as a regional sales manager. In sum, the Court concludes that CentiMark is not likely to succeed on its claim that Jacobsen breached the non-compete provision of the Employment Agreement by going to work for Nations Roof South. We need not consider the other prongs of the test applied in determining because, as whether the Circuit has held, a failure to to grant a United States Court preliminary of Appeals injunction for the "a failure to show a likelihood of success or demonstrate irreparable injury must result in the denial of a preliminary injunction." Treacher's Franchisee Litig., necessarily In re Arthur 689 F.2d 1137, 1143 (3d Cir. 1982) (emphasis added by the Court); see also S. Camden Citizens in Action v. N.J. Dep't of Envtl. Prot., 274 F.3d 771, 777 2003) Third (having found the plaintiffs' (3d Cir. case "legally insufficient" when considering their probability of success in the litigation, the court indicated it would "go no further.") 21 B. Violation of the Pennsylvania Uniform Trade Secrets Act In the Complaint, Background: 1. Plaintiff asserts that during Jacobsen's two periods of employment with CentiMark (1996 through 2001 and 2004 through 2011), he steadily rose through the company's management hierarchy and was exposed on a regular basis pertaining to confidential its to and proprietary information business development activities, sales strategies, and the marketing practices of the National Accounts Group_ the CentiMark further alleges that during his ten years with company, development used Jacobsen strategies, its serviced its marketing most and business valuable accounts, trained other employees in CentiMark's methods of developing and doing business, established long-standing relationships with its most important customers, and gained insight into needs of its customers and potential customers. 73-78.) and According to inevitably will, Plaintiff, be all exploited of this by the unique (Complaint, <][<][ information can, any. other roofing contractors who offer products and services similar to those of CentiMark and will give such competitors an unfair advantage. In Count II of the Complaint, CentiMark alleges that it has spent significant time and money developing these valuable trade secrets relating and to confidential the and roofing proprietary industry 22 and business to the information company's operations, customers, employees, financial data and products. It has taken steps to protect this information from disclosure, including requiring information to employees execute who have employment confidentiality provisions access contracts to such containing such as those in the 1996 Agreement and the Employment Agreement. However, as President of Nations Roof South, Jacobsen "has and/or inevitably will misappropriate, misuse and disclose the trade secrets and confidential and proprietary business information of CentiMark to and on behalf of Nations Roof, will undermine a competitor of CentiMark's." CentiMark's competitive immediate and irreparable harm. 2. Applicable law: position (Complaint, Under His disclosures the ~~ and cause it 99-106.) Pennsylvania Uniform Trade Secrets Act, a trade secret is defined as: Information, including a formula, drawing, compilation including a customer list, device, method, technique or process that: pattern, program, (1) 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) Is the subject of efforts that reasonable under the circumstances to maintain secrecy. 12 Pa. and C.S. 0 . D. § 5302, An d e r s on , see also RESTATEMENT Inc. v. Cric k s , 23 815 (2d) A. 2d are its OF TORTS, 1 0 63 , 1070 § 757 ( Pa . Super. Ct. 2003). This definition is essentially the same as that used prior to April 2004 when the PUTSA became effective. Retail 2009) Holding, ("The Inc., 626 F. PUTSA displaced misappropriation of trade Supp.2d Pennsylvania I s secrets, that the statute effected a 511, but Youtie v. 529 (E.D. Pa. common law tort for there is n.10 Ma~ no indication substantive shift in the definition of 'trade secret.'") Under Pennsylvania law, to establish misappropriation of a trade secret, the plaintiff must show that the defendant used or disclosed information that it knew or had reason to know was a trade secret and that the defendant acquired such information by improper means. Soffa Indust., 12 Pa. C.S. § 5302;7 see also Moore v. Kulicke & Inc., 318 F.3d 561,566 (3d Cir. 2003), stating that the elements of a trade secrets misappropriation claim are "(1) the existence of a trade secret; (2) communication of the In full, "misappropriation" is defined as: "( 1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) disclosure or use of a trade secret of another without express or implied consent by a person who: (i) used improper means to acquire knowledge of the trade secret; (ii) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (Al derived from or through a person who had utilized improper means to acquire it; (B) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (iii) before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake." 12 Pa. C.S. § 5302. 24 trade secret pursuant to a confidential relationship: the trade secret in violation of that confidence; (3) use of and (4) harm to the plaintiff." Failure to establish anyone of the elements defeats the claim. Block v. Blakely, CA No. 02-8053, 2004 U.S. Dist. LEXIS 16920, *7 (E.D. Pa. Aug. 25, 2004). The Pennsylvania Superior Court has identified a number of factors to be considered when determining if particular is known information constitutes a trade secret: (1) the extent to which the information outside of the company's business; (2) the extent to which the information is known by employees and others involved in the company's business; (3) the extent of the measures taken by the company to guard the secrecy of the information; (4) the value of the information to the company and its competitors; (5) the amount of effort or money the company spent in developing the information; and (6) the ease or difficulty with which the information could be acquired or duplicated legitimately by others. Crum v. Bridgestone/Firestone N. Am. Tire, LLC, 907 A.2d 578, 585 (Pa. Super. Ct. 2006): see also SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1256 (3d Cir. 1985). In level of ascertaining a trade what secret, business the court 25 information performs "a rises to highly the fact specific inquiry into the situation." v. Botticella, 613 F.3d 102, 113 Bimbo Bakeries USA, (3d Cir. 2010). Inc. A trade secret can consist of "a compilation of information which is used in one's business that advantage over A.2d 990, Certain 997 gives competitors." provision necessarily qualify in as Siemens Capital Corp., 843 an a may Health v. n.5. (Pa. be agreement trade to obtain Bayliss, protected even secret. 566 A.2d 1214, 1224 Morgan's Home Equipment bane) ; opportunity WellSpan information disclosure 838, an an 869 (Pa. Super. Ct. 2005) (internal quotation omitted.) confidential (en one 1957) (a it a non does Den-Tal-Ez, not Inc. v. (Pa. Super. Ct. 1989) C2F~v. non-disclosure create the right to protection, if by Martucci, covenant 136 A.2d does not but "serves as evidence of the confidential nature of the data.") There are also Pennsylvania cases which suggest that courts will more readily act to protect confidential information of a technical nature rather than non technical secrets. Iron Age Corp. v. See Dvorak, 880 A.2d 657, 665 (Pa. Super. Ct. 2005), and Oberg Indus., Inc. v. Finney, 555 A.2d 1324, 1327 (Pa. Super. Ct. 1989). There are, trade secrets. to the employer, employer is however, some matters For example, which do not qualify as the information must be particular not general secrets of the trade in which the engaged. SI Handling 26 Systems, 753 F. 2d at 1256, citing Capital Bakers v. Townsend, 231 A.2d 292, 294 (Pa. 1967). An employee's aptitudes, skills, dexterity, or manual and mental ability cannot use thereof Felmlee v. be a is curtailed Lockett, "other subj ecti ve the legally protected trade secret unless his course of 351 by A.2d agreement 273, knowledge as his employment 276 with (Pa. the 1976). employer. Similarly, [the employee J obtains while in is II not protect able . Corp., 880 A.2d at 663 (citation omitted.) Iron Age In addition, "[iJf a competitor could obtain the information by legitimate means, will not be given WellSpan Health, F.3d at 568 independently inj uncti ve protection 869 A.2d at 997 (technical is a trade secret. II (citations omitted)i Moore, 318 information not as it entitled a to competitor can protection. ) develop Likewise, information which the employer makes little or no effort to keep NOVA confidential clearly does not qualify as a trade secret. Chems., Inc. v. Sekisui Plastics Co., 579 F.3d 319, 327 quoting James Pooley, 2009), TRADE SECRETS § 4.04 (3d Cir. (2009) ("the most important characteristic of a trade secret is that it is in fact secret.") whether certain In sum, "the information crucial indicia constitutes a for trade determining secret substantial secrecy and competitive value to the owner. II are O. D. Anderson, Inc., 815 A.2d at 1070 (internal citation omitted.) A court may enjoin the 27 actual or threatened misappropriation of a trade secret. 110, citing 12 Pa. C.S. Bimbo Bakeries, A wide-ranging 5303 (a). § 613 F.3d at injunction that prohibits an employee from working in the relevant industry or soliciting rather, the usual disclosing 234, customers specified The broader law only when it his former employee injunction merely prevents trade ci ting RESTATEMENT (1995). of is secrets. (3d) u "is atypical; the employee from Victaulic, 499 injunction is available "virtually impossible under for at 44 cmt. OF UNFAIR COMPETITION § F. 3d d Pennsylvania the employee to perform his duties for his new employer without in effect giving it the benefit of his confidential information. (internal citation considering whether and alternations to grant an u Victaulic, omitted. ) injunction in a A trade id. court secrets matter "has discretion to enjoin a defendant from beginning new employment if the threat of trade facts of the case demonstrate secret misappropriation. U a substantial Bimbo Bakeries, 613 F.3d at 113. 3. success in Plaintiff's the reasonable litigation. We probability conclude that of eventual CentiMark has failed to show that it has a reasonable likelihood of succeeding on the merits of its PUTSA claim. The Agreement) 1996 Agreement (as incorporated into included an expansive definition of 28 the Employment "trade secrets, proprietary information and confidential information. u8 The Agreement further provided that Mr. Jacobsen further agrees, now and in the future for a period never to expire, that he will not disclose or disseminate any confidential or proprietary information or materials of Centimark to any person, firm or entity. Such confidential information includes, but is not limited to, its bidding and/or pricing structures, profit margins, commission schedules, customer information, profiles and vendor information. Mr. Jacobsen agrees that this Paragraph will survive expiration of the twelve (12) and twenty four (24) months periods discussed in Paragraph 4 and will entitle Centimark to liquidated damages described in Paragraph 6 at any time now or in the future if same is breached. (Tr. 9/28, Exh. M, <.II 5.) As summarized in a declaration submitted by Jacobsen, allegedly its confidential Complaint information consists of customers, customers' customers' future projects, strategies, customers' identified pricing roofing needs, by CentiMark structures proj ections for decision makers in current and timing of "unique specifications, budgets, the U for negotiating actual and 8 "Trade secrets, proprietary information and confidential information" were defined as including but not limited to "technical information such as methods, processes, formulas, compositions, inventions, product development, machines, computer programs, special hardware, product hardware, related software development, research projects, ideas improvements, systems methods, and other confidential technical data, and business information, such as sales, sales volume, sales methods, sales proposals, customers and prospective customers identi ty of key purchasing personnel in the employ of customers and prospective customers, details of previous calls and personal data regarding each individual buyer, amount or kind of customer's purchases from CENTlMARK and its divisions, sources of supply, system documentation, pricing data (including general price lists and prices charged to specific customers) , and marketing, production or merchandising systems or plans." (Tr. 9/20, Exh. 1, , 3.02.) 29 I potential strategy, its CentiMark's customers, marketing organizations, identities general of CentiMark's marketing relationships, of CentiMark negotiating knowledge A. Jon would be (e. g., and of complaints, Jacobsen, pricing national the (1) vendor or of budgets, information is unique any (3) Nations through (e.g., 19, current Exh . i 1, 26.) (2) of nothing at customers, he has no needs roofing or information Roof he South (4 ) or the or decision makers, customers, the has (e.g. , legitimate methods customers' identities offered supplier Decl.," specifications); is otherwise not confidential CentiMark No . strategies); to readily available marketing methodologies, for customers' value and ( Doc. structures (e.g., no difficulties, the information is not unique pricing methodologies); stale purchasing methodologies, or "Jacobsen marketing topic customers' volume. ) complaints and warranty information. marketing group pricing unique Jacobsen contends that either to using and customer volume, sales Declaration methodology customers, national unique annual hearing to sales refute these assertions even though the declaration had been offered in opposition before the hearings began. There is no question, that Jacobsen had access however, to a based on Godwin's testimony, great deal of confidential business information during his employment by CentiMark. 30 Godwin indicated that some of the information compiled by CentiMark as part of its sales effort, (Tr. 9/20, Exh. e.g., a national account lead summary contained 5), information compiled simply by internet research, that could not be such as safety concerns, the type and length of the warranty the customer might seek, the overall general conditions of the client, and "information regarding how the proposal should be put together, based on what the customer testified is for." (Tr. contrary that looking to Jacobsen's 9/20 at 32-33.) assertion in He his resignation letter to Dunlap, CentiMark and Nations Roof compete "on a daily basis." companies staff and six specific assured him the head to head." number compete, the Id. at 55.) of (Tr. markets two 9/20 and He identified approximately 15 roofing roofing at projects his contractors were He further which the 57-58.) services where in sales "competing identified a two companies based on his own knowledge of CentiMark's business and information provided website. Id. at 61-65.) you time spend doing by Nations Roof on its internet Godwin also testified that "any time research and determining who your main targets are, the important ones at least, you don't need a piece of paper to figure out who to go after." CentiMark Roof South, argues that Jacobsen, (Tr. 9/20 at 31.) as President a direct competitor of CentiMark, 31 of Nations "will inevitably call upon otherwise or proprietary and trade CentiMark's most secret significant sales ~ (Doc No. 52 at 25, Court The information the he and confidential learned as business circumstances concludes of the failed fact, we to conclude sufficient that that that given all such disclosure CentiMark the facts and relationship Bakeries, and is discussion failed threat of the F.3d proper at 116, standard to of and see also Den-Tal-Ez, U In even "a disclosure. that referring the disclosure doctrine u as discussed in Victaulic, was dictum; show stating and impossibilityU "virtual CentiMark "inevitable. has 613 formulation is substantial or u 135.) Jacobsen-CentiMark likelihood Bimbo See show of these trade Jacobsen's duties at that company and at Nations Roof, has one executives. Jacobsen "cannot erase from his mind u Specifically, secrets. misappropriate u this to the "inevitable 499 F.3d at 234, 566 A.2d at 1232, stating that the "proper inquiryU when granting or denying an injunction is not whether trade the secret, substantial Chemicals, defendant but "whether threat U of Inc. v. him Johnson, already there doing has is used or sufficient so, citing 442 A.2d 1114, disclosed the likelihood, or Air 1122-25 Products (Pa. & Super. Ct. 1982), and SI Handling Sys., 753 F.2d at 1263-1264. Although information which is available on the internet or 32 in industry publications certainly is not protectable as trade secrets,9 we shall assume that at least some of the information identified by CentiMark does in fact, For the following reasons, secrets. evidence presented by the parties, to rise to the level of trade show that there is a having considered all the we find CentiMark has failed substantial will disclose such information and, likelihood that Jacobsen even if he were to do so, that CentiMark would be harmed thereby. During periods the with disclosure three years CentiMark, provision between i. e., of the while 1996 Jacobsen's he was other roofing contractors. When his employment bound by the Agreement, with only minimal objection from CentiMark, two Jacobsen non worked, for at least three employment with CentiMark was terminated in 2001, he had held the positions of salesman, regional sales manager, and southern regional marketing manager for five years CentiMark's sales and had to activi ties have regional a and customers which he had been responsible. position as known His sales manager great in the deal regions new employment for the about southern for included a region of General Roofing, at that time the largest roofing company in the 9 Jacobsen's declaration states that information such as the identity of potential customers' decision makers or purchasing managers is readily available through internet services such as Hoover's business directory, that CentiMark publishes its annual sales volume on its website and in a national trade association journal, and that its warranties are common knowledge in the field. (Jacobsen Decl., ~ 26.) CentiMark offers no specific evidence to refute these statements. 33 United States and undoubtedly a direct competitor of CentiMark. Yet no evidence has been presented which would allow the finder of fact to conclude Jacobsen was ever accused of, much less found liable for, breach of the non-disclosure provisions of the 1996 Agreement. In fact, in 2004 CentiMark sought out and re hired Jacobsen, actions which would not have been logical if the company had even the least suspicion he had disclosed its trade secrets to Jacobsen others. disclosed CentiMark even a presented single iota no of evidence its that confidential business information to any of those employers. Second, July 2011, Jacobsen testified that when he left CentiMark in he turned over his computer, cellphone, and all marketing or other sales or customer information to Godwin who was in (Tr. Jacobsen's 9/28 at office when he Godwin 98-99.) announced witnessed his him resignation. doing so and completed an employee termination checklist, both men signed it, and Jacobsen left the building. (Id. at 99 and Exh. T.) He did not take copies of any documents or data relating to CentiMark's business or customers and did not download any data or business information Godwin to a confirmed left CentiMark, take a computer, portable this storage testimony, device. admitting (Id. that at 99-100.) when Jacobsen "he took nothing with him," that is, he did not telephone or any other company property. 34 (Tr. This case is therefore distinguishable from other 9/20 at 73.) cases as A.M. Skier Agency, Inc. v. Gold, 747 A.2d 936, Super. Ct. where directory customer 2000), and the former various information to his new company, 11-757, 2011), 2011 U.S. Dist. employee other clearly *7-*8 a account Lavine, (W.O. (Pa. took confidential or CentiMark v. LEXIS 82691, 941 Pa. CA No. July 28, where there was strong evidence that the employee might have taken confidential information on a missing computer drive. Third, Jacobsen in his e-mail to Dunlap announcing his termination, told condi tions of the his CentiMark Employment CEO that Agreement he and understood intended to the fully abide by those obligations; that he had no sales responsibility in his new role; or employees; that he would not solicit CentiMark customers and that the areas where Nations Roof South focused its market were not competitive with CentiMark "to any (Tr. 9/28 at 102-103 and Exh. extent." Jacobsen Roof South, Nations testified that in his V.10 ) discussions with he had advised Nugent and Carey Kerley, Roof, that he was not able to solicit any Nations the CEO of CentiMark customer with whom he had contact while employed by CentiMark or 10 Jacobsen wrote in his termination letter, "I understand the conditions of my [Employment] Agreement and fully intend to abide by them. I will have no sales responsibility in my new role, and will not solicit any CentiMark customers or employees. Nations Roof [South] does primarily new construction, plan room bid-work and consul tant referrals. Some single ply, metal and steep slope, but mostly hot systems." (Tr. 9/28, Exh. V.l 35 to be involved in sales. contacted any entity included compiled by CentiMark not shared He further testified that he had not (Tr. information in 9/20, with several Exhs. anyone at lists of 16 through 22) Nations Roof Nations Roof regarding those customers or entities. at 55-57.) customers and had South (Tr. or 9/28, He had not attempted to contact nor did he intend to contact such customers and had not utilized any information to which he had access while employed by CentiMark. (Tr. 9/28 at 103-105; 110-112.) Godwin confirmed these statements, evidence Jacobson CentiMark believe had that CentiMark's contacted or or customer (Tr. 9/20 at 74.) acknowledging he had no attempted performed services for to contact such customers. He had no information which would lead him to his since database departure of customer Jacobsen had information, accessed pricing, profitability, customer contacts, and similar information. 9/20 at 79.) any Based on the detail of the lists (Tr. presented as evidence at the hearing, we conclude, as did the court in Oberg, that these information, reports, the extent they contained confidential "were so voluminous that they could not have been committed to memory." Age CO!:E..:..r to Oberg, 880 A.2d at 664, 555 A.2d at 1327 i see also Iron refusing to enjoin a sales manager who went to work for a competitor in a similar position because 36 the trial court "available not] be to concluded competitors declared a distinguishable on No. 10-13920, Dec. 2010) , 29, information u.s. legitimate LEXIS CentiMark's proprietary information. 138302, Roof South while and case was [could is v. *7-*9 also Vitek, (N.D. CA Ill. shared profit gross confidential data during even though he recognized this Here, there is no evidence that Jacobsen was asked for or provided confidential Nations list means This defendant the negotiations for a new position, was customer from CentiMark Corp. Dist. where Age secret." facts regarding Iron through trade s 2010 the discussing a information to potential new position with that company. Fourth, underlying Jacobsen premise testified that it Nations Roof South, the markets. He stated that was two that contrary in direct compan s CentiMark to competition focus did CentiMark's on "very with different little new construction, no bid work, [and] no public work that I know of, the identified three areas he had as Nations principal areas. He went on to explain that those "very aren't areas were there addition to "most manufacturer's competitive" support times warranty and [CentiMark's] those or a types consultant 37 "the profit be margins structure;" projects to South's this was because overhead of Roof II in require [a] involved," and CentiMark "typically" does not offer manufacturer's systems or work with consultants "as a general rule." at 82.) "public bid, they new that (Tr. 9/28 He further testified that the projects for Nations Roof South are are roofing warranted they are brought to us construction, consultants." the evidence conclusion that same region there are 9/28 presented although and suf (Tr. they both cient at the are two in the differences are at work 7.) the that's The s are commercial their done Court hearing compan in by consultants, with concludes supports the located in the roofing target industry, markets and business practices to minimize the importance to Nations Roof of any CentiMark information Jacobsen might disclose. Fifth, Jacobson testified that when he was asked by the CEO of Nations Roof if he were interested in managing operations, he told him he was, that capacity and (Tr. 9/28 at indicating "I have that experience and I have that 97-98.) would Godwin be allowed testified manage operations while at CentiMark. under that my agreement." Jacobsen did not He further acknowledged that Jacobsen's knowledge of the commercial roofing business was not gained solely through his employment with CentiMark. 9/20 at 77.) Other than the blanket assertion that (Tr. "Jacobsen cannot erase from his mind CentiMark's confidential, proprietary and trade secret information" and that 38 in his new position as President of Nations Roof South, or otherwise misappropriate" 25, ~~ he will "inevitably call upon that information (Doc. No. 52 at 134-135), CentiMark has not provided a single example of how, as a Nations Roof South employee responsible for operations and profit and loss and explicitly not charged with sales responsibilities, Jacobsen would use any specific information he gained while employed by CentiMark. were three increase ways to improve company's sales shift to customers that are more profitable. (Tr. 68-69.) knowledge But, of efficiencies, profit increase 55, operational a Godwin testified that there as noted above, operations and loss volume, and 9/20 at 54 he conceded that Jacobsen's management was not learned while employed by CentiMark (id.), and Jacobsen testified that the two companies focused different methods their (Tr. efforts on 9/28 at 7, 64-67.) here similar to that of Wei sman v. Inc., 205 Weissman F. not Supp.2d only distinct 415, 428, demonstrated he through We find the situation Transcon. n.10 markets (E.D. had a Printi Pa. 2002) , store of where general knowledge gained during his previous career and the court found that much of the information he had gained in his position with Transcontinental Printing would be "simply not useful to him" in his new employment even though the same industry. 39 two companies were in the Finally, the Court was able, during the hearing, to observe Jacobsen's demeanor and listen to his answers under oath. asked by CentiMark's couns "Over the next two years. this Court doesn't issue an injunction, your integrity, what's to Jacobsen integrity." (Tr. responsibili ties answered is from you [exploiting after these proceedings are directly, 9/28 at 123.) if other than your word or prevent confidential CentiMark information] closed?" When "My word and my One of this Court's overriding determining the credibility of witnesses. In A.M. Skier Agency, 747 A.2d at 939, the Pennsylvania Superior Court recognized findings in this question duty, stating were that supported where by the the factual testimony of witnesses, the appeals court would not disturb the lower court's credibility determination without good See reason. also Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1245 (Pa. Super. Ct. 2011), noting that where there was conflicting evidence on the question of whether the employee would reveal trade secrets to his new employer and the court chose to believe the employee's testimony supported the While recognize we lower that court's he would not decision CentiMark's and position do so, would that the be such record affirmed. disclosure would be inevitable, we find Jacobson's demeanor, testimony, and past actions reflect a strong 40 probability of the opposite result. In sum, we conclude CentiMark does not have a substantial likelihood of prevailing on the merits of its will injunction deny the motion for a preliminary PUTSA claim and in this regard. C. Unfair Competition Background: 1. Complaint that disclosing damage is business engaged in Roof information unfair in the South and to his new competition with s conduct "has caused and will continue to cause CentiMark's to prospective and confidential Jacobsen CentiMark. CentiMark alleges by becoming employed by Nations its employer, In brief, customer valuable industrial business and goodwill, customer relationships, interests" commercial relationships, contractual and practices." is relationships "contrary (Complaint, to IjIIjI honest 108 and 110.) Applicable law: 2. has noted that compet The Pennsylvania Supreme Court in addition to the traditional scope of "unfair ion" which limits this tort to the act of "palming off of one's goods as those of a rival trader," the concept has been extended in some business settings as well as misrepresentation. Co. v. to include misappropriation Pottstown Daily News 192 A.2d 657, Pottstown Broadca 41 662 Publishing (Pa. 1963) (internal citations omitted.) "Pennsylvania recognized a cause of action courts have the common law tort of un ir competition where there is evidence of, among other things,. tortious interference with contract, another's employees, and unlawful information. 11 Synthes (USA) v. improper Globus 1235, 2005 U.S. Dist. LEXIS 19962, *24 (citing cases)i 2011 U.S. un Dist. ir LEXIS 25295, *26 Med., (E.D. (E.D. Pennsylvania courts competition RESTATEMENT of of confidential CA No. Inc., 04 Pa. Sept. 14, 2005) see also EXL Labs. LLC v. Egolf, CA No. 10-6282, recognizing that of use inducement (3d) which is Pa. Mar. 11, 2011), de tion that the have adopted a coextensive OF UNFAIR COMPETITION, § 1. with "Nevertheless, the term may not be construed as a virtual catch-all for any form of wrongful bus business ss torts. (E.D. Pa. 2010) 3. success in conduct or Giordano v. 1/ to include Claudio, 714 all F. forms of modern Supp.2d 508, 522 (internal quotations omitted.) Plaintiff's reasonable the li tiga tion. probability CentiMark devotes eventual little attention to this third Count of its Complaint in its proposed findings of fact and conclusions of law. that It concentrates only on the claims if Jacobsen were to disclose confidential and proprietary information competitor to an a competitor, unfair advant such i 42 disclosures in addition, would give disclosure the of CentiMark's customer target list or "push up lead list" would provide the competitor with a "road map" in determining "how to attack certain customers." (Doc. No. 52, 28, <]!<]! 61, 70, and 134. ) We nothing find distinguishes claim the inasmuch as claim of both disclosing CentiMark's information. in CentiMark's unfair rest trade on pleadings competition the secrets from possibility and its PUTSA of Jacobsen confidential business For the reasons discussed in the we therefore conclude that which ous section, aintiff has failed to demonstrate a likelihood that it would succeed on the merits of this claim and will deny the preliminary Having considered the unction as to Count III. arguments of the parties and the evidence presented at the hearings of September 20 and 28, 2011, we deny Plaintiff's motion for a preliminary inj unction enjoining Jacobsen's continued employment by Nations Roof South. An appropriate Order follows. November itt - - ' 2011 William L. Standish Judge United States Dist 43
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