Middle District Denies Motion to Enforce Non-Solicitation Agreement

On February 11, 2013, the United States District Court for the Middle District of Florida issued an opinion denying an employer's motion for preliminary injunction against a former employee. See The Variable Annuity Life Insurance Co. v. Fawn Laeng, Case No. 8:12-cv-2280-T-33MAP, Slip. Op. (M.D.Fla. Feb. 11, 2013). The employer in Variable markets financial services to tax exempt organizations. As part of her employment, a Variable employee signed an employment agreement whereby she "agreed to a non-solicitation provision promising for one year after leaving employment not to solicit business from [the employer's] customers who were within [the employee's] assigned territories to her during the one year preceding her departure." Opinion at *1.

On July 11, 2012, the employee left the employer and began working for a competitor. Approximately three months later, the employer commenced an action in the United States District Court for the Middle District of Florida seeking a preliminary injunction. The employer sought an injunction which would, among other things, prohibit the employee from disseminating confidential and proprietary information (i.e. trade secrets), and prohibiting the employee from soliciting the employer's customers for one year. Opinion at *2.

The court in Variable applied the traditional legal standard for consideration of a preliminary injunction. Citing Carillon Importers, Ltd., v. Frank Pesce Int'l Group Ltd., 112 F.3d 1125, 1126 (11th Cir. 1997), the court noted that the decision to grant a preliminary injunction hinges on whether the moving party can demonstrate (1) a substantial likelihood of success on the merits; (2) the irreparable harm to the moving party unless the injunction is granted; (3) the threatened injury to the moving party outweighs the potential harm the proposed injunction may causing the opposing party; and (4) if issued, the injunction would not be contrary to public policy. Opinion at *2-3.

The employer argued that the employee had issued a "mass mailing" to former customers of the employer soon after the employee resigned. According to the employer, it would have been "extremely difficult, if not impossible" to issue the mass mailing without using customer information that was protected under the non-solicitation agreement. Opinion at *3. The employee countered, arguing that the list of customers solicited were eligible participants in the Hillsborough and Pasco County School Districts and that...