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Among the many things that I learned while working at my old firm, Boies, Shiller & Flexner, was the importance of presentation--- Specifically, the value that a strong Powerpoint presentation can add to hearings, particularly where there are numerous complicated issues at play. This is an example of an actual Powerpoint presentation that we prepared for a hearing in the case Moon et al v. Medical Technology Associates, Inc (M.D.Fla 2013). In this case, we are defending the Moon family, owners of a medical gas company, against claims that they violated various non-compete and non-solicitation agreements. The case is presently pending in the United States District Court for the Middle District of Florida - Tampa Division. We prepared the attached Powerpoint for use at a recent evidentiary hearing on the plaintiff's motion for a preliminary injunction. In non-compete litigation, the preliminary injunction often represents the most critical part of the case. If a defendant can successfully defeat the motion for a preliminary injunction, this opens up the door for settlement and suggests that defendant has good odds of ultimately prevailing on the merits. If you are in Florida and have been sued for violating a non-compete agreement or are facing the prospect of non-compete litigation, I urge you to contact our office at 954-332-2380. We have experience litigating non-compete cases in federal and state courts throughout Florida. We are licensed in all Florida state and federal courts (Southern District, Middle District and Northern District) as well as the United States Court of Appeals for the Eleventh Circuit. We focus our practice on defending non-compete, trade secret and trademark claims. For more information about me and my team, please visit www.pollardllc.com, check out or popular blog on non-compete litigation at www.thenoncompeteblog.com or view our page on JD Supra Business Advisors at www.jdsupra.com/profile/jonathan_pollard_docs/ Our goal is to be the most effective, most creative and most business-savvy non-compete and trade secret lawyers in the state of Florida. And, to date, we have made great progress to that goal. I urge you to read more about us and contact my office if we can be of assistance. Sincerely, Jonathan Pollard Direct: 954-332-2395
Citation preview
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CASE NO: 8:13-cv-02782-EAK-EAJ
ALFRED MOON, ALFRED MOON JR., CHERYL MOON &
MEGAN WHITE,
Plaintiffs/Counter-Defendants,
vs.
MEDICAL TECHNOLOGY ASSOCIATES, INC.
Defendant/Counter-Plaintiff.
HEARING ON MTA’S MOTION FOR PRELIMINARY INJUNCTIONOCTOBER 28, 2014
Jonathan Pollard LLC
401 E. Las Olas Blvd. #1400
Fort Lauderdale, FL 33301
p. 954-332-2380
www.pollardllc.com
“Under federal law there is no presumption of irreparable harm.
Instead, the movant carries the burden of persuasion as to this
element.”
Southern Wine & Spirits of Am. v. Simpkins, 2011 WL 124631,
at *8 (S.D. Fla. Jan. 14, 2011)
(citing Church of City of Huntsville, 30 F.3d 1332, 1342)
(11th Cir. 1994).
2
Restricted Territoryfor Al, Megan and Chip
3
Actual Competition Against MTA in
Medical Gas
4
Florida Statute 542.335 – Regarding
Customers
With respect to customers, the purpose of F.S. 542.335 is “to prevent an
employee from taking advantage of a customer relationship which was
developed during the term of the employee's employment.”
Bradley v. Health Coal., Inc., 687 So. 2d 329, 334-35 (Fla. Dist. Ct. App.
1997)
Alfred Moon – A Medical Gas Industry Veteran
Forty years of experience in the medial gas and medical supply industry.
Began his career in the 1970’s working for medical gas and medical equipment
manufacturers and suppliers, including the predecessor of BeaconMedaes and Allied
Healthcare Products.
Founded Moon Medical with Cheryl Moon in 1991 and operated the company until 2008.
A founding member and Vice President of the largest medical gas-related trade
association, Medical Gas Professional Healthcare Organization since its inception in 1998.
A member or past member of American Society of Hospital Engineers, the American Society
of Sanitary Engineers, the American Society of Plumbing Engineers, the National Fire
Protection Association, the American Association for Respiratory Care, and the Kansas
Respiratory Care Society.
6
“Substantial Customer Relationships”
Florida law only protects “substantial” customer relationships. Florida
Statute 542.335
7
MTA’s “Substantial” Customer Relationships
“We never had anything close to an exclusive or special relationship with MTA . . .”
- Matt Brennan, owner of J.M. Brennan, Inc. in Milwaukee, WI
Between June 2013 and August 2014, JM Brennan has done business with 7 different
medical gas vendors. (See if you can do text in some creative way to make a sort of visual of
all these companies:
ACS, MTA, ARTEC, MEDGAS SOLUTIONS, O.E. MEYERS, OHIO MEDICAL CORP., PURELY
MED GAS
8
MTA’s “Substantial” Customer Relationships
“We never had anything close to an exclusive or special relationship with MTA . . .”
- Matt Brennan, owner of J.M. Brennan, Inc. in Milwaukee, WI
Between June 2013 and August 2014, JM Brennan has
done business with 7 different medical gas vendors:
9
ACS Medical LLC
MTA’s “Substantial” Customer Relationships
“[W]e have had a number of problems with MTA that have involved poor service, MTA’s failure to supply functioning equipment and MTA’s failure to keep its promises. … As a result, we have never had a very strong relationship with MTA.”
Q: In your view, did MTA do a good job of managing that relationship?
A: No.
Q: From 2008 through the present, has Titan/Just Service worked with numerous medical gas vendors?
A: Yes.
Q: Do you maintain an exclusive relationship with any one vendor?
A: No
- Al Mueller, owner of Just Service Inc. / Titan Plumbing in Greendale, WI
10
“Open up the Yellow Pages…”
Q If I were to start a business such as ARTEC, MTA, ACS -- how
would I -- how would I go about finding customers?
A: Open up the Yellow Pages under "hospitals." Every one of
those are a customer. Drive down the road and look for every
blue sign that says "H," turn left or right, pull into the front door;
and that's your customer. There's hospitals all over.
Q Would I be able to find the point person at that hospital?
A Very easily. They are all -- they're all inside that building.
Deposition of Ross Williams – Artec Environmental
11
The Law – Substantial Customer
Relationships
“There was little evidence of any exclusive or other kind of relationship that
could be construed as ‘substantial’ within the meaning of the statute.”
Anich Indus., Inc. v. Raney, 751 So. 2d 767, 771 (Fla. 5th DCA 2000)
Lack of an exclusive customer relationship, use of multiple vendors, fierce
competition and customer dissatisfaction weighs against a finding of a
substantial relationship.
TrueBlue, Inc. v. Dyn, 2010 WL 3565756 (M.D. Fla. Sept. 9, 2010)
12
The Customers Solicit Bids
The Facts
“[W]hen we obtain a new project, we often solicit bids from a variety of vendors for both
equipment and services.”
-Declaration of Matt Brennan, Owner of J.M. Brennan, Inc. in Milwaukee, WI
13
The Shields Decision Controls
On remand the district court should consider the application of Shields v.
Paving Stone Co., Inc., 796 So.2d 1267, 1269 (Fla. 4th DCA 2001),
because a federal court sitting in diversity is bound to apply the law of the
forum state.
Moon v. Med. Tech. Associates, Inc., 14-11155, 2014 WL 4056724 (11th
Cir. Aug. 18, 2014)
14
What Shields Says…
A party seeking to enforce a non-solicitation agreement has no protectable
interest where the customer relationships are not exclusive, the customers
are known throughout the industry and contracts are awarded through
bidding.
15
Customer Lists
Customer lists which can be compiled from readily accessible sources not
protected. See Blackstone v. Dade City Osteopathic Clinic, 511 So.2d 1050
(Fla. 2d DCA 1987)
16
The Alleged Solicitation of Lexington
Plumbing
“Al did stop by my office on approximately November 8, 2013. . . . He
further explained that because of a non-compete agreement, he would not
be doing any medical gas work in the region of KS, MO, NE, and IA for the
next two years.”
“Neither Al Moon nor any member of the Moon family or Advanced
Compliance Solutions has attempted to solicit any business from me
since the family members stopped working for MTA.”
- Declaration of Dan Axtell, Chairman of Lexington Plumbing in Kansas City, MO
17
Timeline 18
2008 2010 2013
Moon Medical
sold to MTA
July 2008
2014
Cheryl resigns
from MTA
May 31, 2010Al, Chip, and
Megan resign
from MTA
Sep – Oct 2013
The alleged
“wrongful
conduct”
Oct – Nov 2013
MTA & ACS
bidding on
newly
announced
projects
Today
Oct. 28, 2014
All Past Harm No Current or Future Harm
MTA’s Allegedly Confidential
Information
The Facts
Information regarding what a competitor bid or what a customer needs is not
valuable, confidential information that belongs to MTA.
The Law
Information that is commonly known in the industry and not unique to the allegedly
injured party is not confidential. See Autonation, Inc. v. O’Brien, 347 F.Supp.2d
1299, 1304 (S.D. Fla. 2004); Anich Indus., Inc. v. Raney, 751 So.2d 767, 771 (Fla.
5th DCA 2000); Keel v. Quality Medical Systems, Inc., 515 So.2d 337 (Fla. 3d DCA
1987)
19
“During the term of or for a period of sixty months following the
termination or expiration of her employment. . . .”
A 5-year employee non-compete agreement is unenforceable. Florida
Statutes 542.335.
20The Actual Terms of Cheryl’s Non-Compete – Part I
Cheryl left MTA on May 31, 2010, more than 3 and ½ years ago
The Actual Terms of Cheryl’s Non-Compete – Part II
“Employee shall not [compete] in any county in which Employer
has sold products or services during the sixty (60) months
immediately preceding the signing of this Agreement.”
21
The Actual Terms of Cheryl’s Non-Compete – Part II
“Employee shall not [compete] in any county in which Employer has sold
products or services during the sixty (60) months immediately preceding the
signing of this Agreement.”
Where was MTA marketing medical gas training courses from July 7, 2003 to July 7,
2008? MTA’s papers do not say.
22
?
The Actual Terms of Cheryl’s Non-Compete – Part II
“Employee shall not [compete] in any county in which Employer has sold
products or services during the sixty (60) months immediately preceding the
signing of this Agreement.”
Where was MTA selling and servicing medical gas equipment from July 7, 2003 to
July 7, 2008? In what exact counties? MTA's papers do not say.
23
WHAT COUNTIES?
The William Rowland Corporation markets medical gas training
courses on behalf of a South-Carolina based company called Medical
Gas Training & Consulting. Most of this is done through publicly
available email lists.
24
Jonathan Pollard LLC
Competition Lawyers
Jonathan Pollard LLC is a boutique litigation firm focused on defending
non-compete, trade secret and trademark claims throughout the state of
Florida. We are licensed in all Florida state and federal courts and the
United States Court of Appeals for the Eleventh Circuit. For more
information about Jonathan Pollard and the practice, please visit any of the
following:
www.pollardllc.com
www.thenoncompeteblog.com
http://www.jdsupra.com/profile/jonathan_pollard_docs/
Or call our Fort Lauderdale office at 954-332-2380.
25
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