Sylvan R. Shemitz Designs, Inc. v. Chris Brown (2013)

MEMORANDUM OF DECISION RE PLAINTIFF'S PETITION FOR TEMPORARY INJUNCTION (# 100.34)

I

FACTS

The court makes the following findings of fact.   The plaintiff, Sylvan R. Shemitz Designs, Inc., conducts business under the name, “The Lighting Quotient.”   The business primarily is engaged in lighting and lighting design.   The plaintiff has only one location, its manufacturing firm located in West Haven, Connecticut, but conducts business both nationally through eighty-five manufacturer representative firms and internationally.   Evidence was lacking, however, as to the amount of business that the plaintiff conducts in these locations.

The defendant, Chris Brown, is thirty-five years old and began working for The Lighting Quotient as an entry level applications engineer in November 2004.   The defendant began work with the plaintiff's Elliptipar division initially but, after two years of employment, transitioned to the company's Tambient division.

The defendant's duties in his position can be described as follows.   While working with Elliptipar, the defendant was a lighting designer.   In this capacity, he used AutoCAD (a computer-aided drafting program) for creating lighting designs to meet the customer's needs.   The process of creating the required lighting layout relied on drawings and additional information sent to the defendant by the plaintiff's sales representatives and used data, which is publicly available on the plaintiff's website, as to the performance of specific lighting fixtures.   At times, he would go on-site to “commission” controls, which involves programming lighting fixtures to function as needed.   During this time, he also attended trade shows on behalf of the plaintiff.

When he transitioned to the Tambient division, his responsibilities continued to include designing lighting fixtures and attendance at trade shows but also expanded to include work on wireless lighting controls.   The control work that the defendant was involved in primarily focused on controls made by a third party, Echoflex.   Subsequently, the defendant became familiar with various components and technology produced by Echoflex while working with Tambient.   The first was EnOcean, an open protocol ¹ programming language used to run lighting controls.   During his tenure with the plaintiff, the defendant also learned to use Garibaldi, a software developed by Echoflex that allows the user to commission controls through a laptop in order to more quickly program Echoflex products.   Information about Garibaldi and its use with Echoflex products is publicly available, although the plaintiff has a unique role as a beta tester of Garibaldi given the limited number of users who currently employ it.   The defendant only worked on projects involving Echoflex and never used any controls made by the plaintiff.   Additionally, the plaintiff at no point was prohibited from telling people outside the plaintiff's organization that Echoflex products or programming software was being used, frequently giving Echoflex user guides to the plaintiff's customers and referring them to Echoflex's website in order to help with any issues that might have arisen.

Over time, the defendant took on greater responsibilities, but they were marginal increases in responsibility at best.   When he began in 2004, the defendant's job did not involve leading any training sessions or group discussions;  by 2013, he was engaged in organizing and directing weekly group meetings for the Tambient division.   These meetings primarily involved discussions of present and future projects as well as issues with delivery;  research and development concerns, however, was not discussed during these weekly meetings.   He also taught others how to program the controls, but this appears to have involved little more than figuring out the manner for inputting the proper sequence into the controls to receive the desired result.   The defendant demonstrated to facility managers how to install and commission lighting controls and Tambient fixtures;  these demonstrations, however, generally involved attaching brackets to a cubicle and pressing buttons to program the controls.   The defendant earned a professional accreditation in Leadership and Energy and Environmental Design.   The plaintiff paid for his expenses in preparing for and ultimately taking the accreditation tests and gave the defendant a $5,000 bonus upon successful completion.   The defendant's compensation also increased, reflecting two 10 percent increases to his salary as well as several cost-of-living adjustments.

Importantly, during his course of employment, the defendant does not appear to have had access to any exceptional amount of proprietary information or technology.   Although the defendant requested greater involvement in new control development meetings, he was informed that, though he might be involved in setting up controls development pipeline in time or allowed to participate in certain product-related discussions going forward, he would not be allowed to participate in sessions focused on business and partnership development at that time.   The defendant does not appear to have at any time been involved in research and development efforts by the plaintiff.   Further, the defendant solely worked with controls developed by third parties during his employment.

Finally, during 2009 or 2010, the defendant, along with others working for the plaintiff, began working with a product involving wireless controls that, although made by Echoflex, were rebranded by the plaintiff pursuant to an agreement between the provider and the plaintiff.   This rebranded product, though eventually bearing the plaintiff's name, previously had been prominently displayed by the plaintiff at trade shows bearing the original third-party provider's name.   The defendant was not aware that this rebranding effort was to be kept secret and discussed the product under its original name at trade shows;  additionally, although relabeled pursuant to the agreement to bear the plaintiff's name, Echoflex displays the original product on their website.   There is therefore no basis on the evidence presented for believing that any product or process used by the defendant during his employment with the plaintiff was not known—or at least not easily discoverable—by the general public or was uniquely performable by the defendant alone.

It is clear that, at some point, the plaintiff started to set the groundwork for direct involvement in the development of lighting controls.   They currently hold two patents in this regard.   There is no evidence that the defendant has divulged any confidential information of which he might have been in possession;  rather, it appears to be the mere act of being employed by a competitor in this select field, regardless of the capacity, that the plaintiff appears to try prevent.

The defendant signed three noncompetition agreements while working for the plaintiff.   The first was signed on November 1, 2004, which was at or near the time the plaintiff hired the defendant.   Under it, the defendant is forbidden, without the plaintiff's written approval, from employment or association with any company which “develops, manufactures or sells” certain types of lighting equipment for use in certain contexts if (a) either that business exists within the United States or, for businesses existing outside the United States, that business sells or distributes within the United States and (b) revenues from the sale of the defined lighting equipment constitutes over 25 percent of that business' total revenues for two years following the termination of his employment with the defendant.  (Exhibit 1, p. 3.) The second was signed on July 20, 2009.   Although many of the terms are the same between these two, the latter contains an absolute prohibition on working for any company selling or distributing the prohibited types of lighting equipment as opposed to only those companies that met a specific revenue threshold.  (Exhibit F, p. 2.) Finally, the third noncompetition agreement, signed by the defendant on December 22, 2011, is the noncompetition agreement at issue here.   It changes the definition of which companies are covered by the prohibition to any that sells, develops, or manufactures the specific lighting equipment in the United States if over 25 percent of its total revenues comes from that sale, development or manufacture.   It also lists certain named businesses that are covered by the prohibition regardless of whether they meet the revenue threshold, one of which is Winona.  (Exhibit 2, p. 3.)

Several circumstances led to the defendant's decision to leave the plaintiff.   Despite requesting more responsibility within the company, the defendant felt that there was no room to grow professionally.   He also felt that he was underpaid, but when he spoke with Dave Pfund, the president of Tambient, about the possibility of a raise, the defendant was told it was not possible.   Additionally, his wife also works, and both the defendant and she both commute roughly fifty minutes to an hour and ten minutes to their respective places of employment.   All of these otherwise bearable issues appear to have reached their breaking point when the defendant's first child, Colton, was born roughly two months premature in August 2012.   Colton spent a month in the hospital's neonatal intensive care unit and has continuing health issues which require continued care and expense.   The plaintiff allowed the defendant to work at the hospital during this time;  Colton's continued health concerns, however, necessitate that someone be closer to home in case of an emergency.

The defendant responded to a job posting posted by Acuity Brands (Acuity) in early 2013.   Acuity has four separate divisions that focus on control work:  Synergy, LC & D, nLight, and SSI, or Sensor Switch, Incorporated.   A competitor of the plaintiff, Winona, that is expressly listed as a prohibited entity in the 2011 noncompetition agreement has since been acquired by Acuity, but the defendant's interactions with that division appear to be negligible or nonexistent.   Acuity is a significantly larger company than the plaintiff's firm.

In March 2013, the defendant gave notice of his resignation.   Due to concerns that the plaintiff might try to interfere with the defendant's new position, the defendant was reluctant to tell his supervisors where he was going to work.   The defendant revealed that he had been hired by Acuity only after a heated exchange in which Alison Schieffelin, the plaintiff's chief executive officer, stated, amidst other arguably threatening comments, that she would find out where he was going, even if it meant hiring a private detective.   Ms. Schieffelin at some point subsequent to learning the defendant was leaving, but prior to his actual exit from the company, requested that he stay on for four more weeks in order to attend, on the plaintiff's behalf, a major trade fair being held during that period.   The defendant initially stated that he had asked for and was denied the additional four weeks by Acuity;  a day later, however, he responded that he was willing to stay until April 12, 2013, if the plaintiff waived the noncompetition agreement.   The defendant began working for Acuity on April 1, 2013.

Examined as a whole, the defendant's responsibilities with Acuity appear to be very different as to the subject matter covered, even though the job title remains the same and there exists some generalized overlap between his responsibilities with the plaintiff and those he currently carries.   While employed by the plaintiff, the defendant was a lighting designer whose duties consisted primarily of lighting design with a limited amount of work on lighting controls.   Although his new position involves some work with lighting fixtures, the defendant's efforts are solely focused on creating control layouts for lighting designs as the design work has been done by the time he is involved.   None of his work involves actually commissioning controls, as this task is done by a separate department.   Furthermore, about 20 to 25 percent of his control work involves functions unrelated to lighting, such as HVAC products, shade control, and audio/video.   He also deals solely with wired products offered by Acuity in his current position, whereas the defendant's work with the plaintiff, although requiring familiarity with the wired controls that the plaintiff used and how they interact with those wireless controls carried by the plaintiff, primarily focused on wireless systems.   The defendant is not involved with research and development at Acuity, and no evidence was offered that he was in possession of any great deal of confidential information belonging to the plaintiff.   Finally, there is no information that Acuity deals with or uses in any way, shape, or form Garibaldi.

Approximately a month and a half after the defendant left the plaintiff's employ, the plaintiff brought the present action to enforce the 2011 noncompetition agreement.   The court heard argument on this motion for a temporary injunction on August 19, 2013.   At the hearing, amongst other testimony, Ms. Schieffelin admitted that she has no knowledge of any trade secrets or confidential information conveyed by the defendant to Acuity and that, even after five months, the only damages that the plaintiff was prepared to seek were legal fees.

II

DISCUSSION

“The principal purpose of a temporary injunction is to preserve the status quo until the rights of the parties can be finally determined after a hearing on the merits.”  (Internal quotation marks omitted.)  Rustici v. Malloy, 60 Conn.App. 47, 56, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000).  “[T]he standard for granting a temporary injunction is well settled.   In general, a court may, in its discretion, exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted he or she will suffer irreparable harm for which there is no adequate remedy at law ․ A party seeking injunctive relief must demonstrate that:  (1) it has no adequate remedy at law;  (2) it will suffer irreparable harm without an injunction;  (3) it will likely prevail on the merits;  and (4) the balance of equities tips in its favor.”  (Citation omitted;  internal quotation marks omitted.)  Aqleh v. Cadlerock Joint Venture II, L.P., 299 Conn. 84, 97, 10 A.3d 498 (2010).

A

Likelihood of Success on the Merits

The defendant raises two arguments as to why the plaintiff will likely be unsuccessful on the merits.   First, the defendant argues that the 2011 noncompetition agreement was not supported by consideration.   Second, the defendant argues that the noncompetition clause is substantively overbroad.

1

Consideration

The defendant first argues that the 2011 noncompetition agreement is unenforceable due to a lack of consideration.   It notes that the defendant was required to sign this noncompetition agreement seven years after he had begun working for the plaintiff and that no raise, bonus, promotion or other benefit was offered in conjunction with his signing the noncompetition agreement.

“[C]onsideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee ․” (Internal quotation marks omitted.)  Fountain Pointe, LLC v. Calpitano, 144 Conn.App. 624, 634 (2013).  “[T]he doctrine of consideration does not require or imply an equal exchange between the contracting parties ․ Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made ․ Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact ․” (Internal quotation marks omitted.)  Id. “A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do.”  (Emphasis added.)  Thermoglaze, Inc. v. Morningside Gardens Co., 23 Conn.App. 741, 745, 583 A.2d 1331, cert. denied, 217 Conn. 811, 587 A.2d 153 (1991).

In the present case, there are several critical differences between the 2009 noncompetition agreement and the 2011 noncompetition agreement.   Most pertinent to the court's analysis of this issue, the former seeks to restrain the defendant's activities for two years while the latter reduces this restriction to one year.   By signing the 2011 noncompetition agreement containing, inter alia, standards and list for what entities consisted of a prohibited business in return for the reduced temporal burden of the new clause, the defendant gave adequate consideration.

The defendant argues that the change in the length of the noncompetition agreement is insufficient because the two prior agreements were overbroad and unenforceable and the plaintiff therefore did not give up a legal right or bestow some benefit upon the defendant.   The defendant offers no legal support in support of this proposition, but instead references a portion of his brief that addresses why the 2011 noncompetition agreement is overbroad and unreasonable.   Apart from one footnote in their brief listing essentially the same arguments for why the 2011 noncompetition agreement is unenforceable, however, the brief does not analyze any of the specific terms of portion of either the 2004 or the 2009 noncompetition agreements, which both contain substantively different terms from the 2011 noncompetition agreement.   Further, the defendant does not address the fact that the 2011 noncompetition agreement specifically “supersede[s] and take[s] the place of any other proposals, agreements and/or understandings, oral or in writing, with respect to [the defendant's] employment with [the plaintiff].”  (Exhibit 2, pg. 1.) As the plaintiff specifically gave up whatever right it had to even attempt to enforce these prior agreements, the court finds this to have constituted adequate consideration and therefore finds that the defendant will be unlikely to succeed on the merits of this argument.

2

2011 Noncompetition Clause

“By definition, covenants by employees not to compete with their employers after termination of their employment restrain trade in a free market ․ Consequently, these covenants may be against public policy, and, thus, are enforceable only if their imposed restraint is reasonable, an assessment that depends upon the competing needs of the parties as well as the needs of the public.   These needs include:  (1) the employer's need to protect legitimate business interests, such as trade secrets and customer lists;  (2) the employee's need to earn a living;  and (3) the public's need to secure the employee's presence in the labor pool.”  (Citation omitted.)  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 761, 905 A.2d 623 (2006).

The Supreme Court has defined five factors that a court is to evaluate when determining if a covenant not to compete is reasonable.   See Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 529 n.2, 546 A.2d 216 (1988).  “The[se] five factors ․ are:  (1) the length of time the restriction operates;  (2) the geographical area covered;  (3) the fairness of the protection accorded to the employer;  (4) the extent of the restraint on the employee's opportunity to pursue his occupation;  and (5) the extent of interference with the public's interests.”  Id.

“[T]ime and geographic restrictions in a covenant not to compete are valid if they are reasonably limited and fairly protect the interests of both parties.”  Id., 530.  “The general rule is that the application of a restrictive covenant will be confined to a geographical area which is reasonable in view of the particular situation.   Geographic restrictions should be narrowly tailored to the plaintiff's business situation ․ In [Robert S. Weiss & Associates, Inc. v. Wiederlight], the court said that it was permissible for the employer to protect itself in a reasonably limited market area.”  (Citations omitted;  internal quotation marks omitted.)   Braman Chemical Enterprises, Inc. v. Barnes, Superior Court, judicial district of New Haven, Docket No. CV–06–4020633–S (December 12, 2006, Silbert, J.) (42 Conn. L. Rptr. 547, 549).

“Although in Van Dyck Printing Co. v. DiNicola, 43 Conn.Sup. 191, 648 A.2d 898 (1993), [aff'd, 231 Conn. 272, 678 A.2d 877 (1994) ], the court stated that the reasonableness of time and geographic restrictions in a covenant not to compete are intertwined and that broad geographic restrictions may be reasonable if the duration of the covenant is short, and longer periods may be reasonable if the geographic area is small, our Appellate Court has instructed us that the five pronged test is disjunctive;  a finding of unreasonableness in any one of the criteria is enough to render the covenant unenforceable.  New Haven Tobacco Co., Inv. v. Perrelli, 18 Conn.App. 531, 534, 559 A.2d 715, 717, [cert. denied, 212 Conn. 809, 564 A.2d 1071] (1989).   This court concludes that the meaning of prior case law on this subject is that while the non-compete must be viewed in its entirety, a single unreasonable provision may be sufficient to invalidate the entire agreement.”  (Internal quotation marks omitted.)  Braman Chemical Enterprises, Inc. v. Barnes, supra, 42 Conn. L. Rptr. 549.

“In every case in which the court upheld a covenant not to compete, the party whom the covenant benefitted was seeking to protect against something other than mere competition—the use of customer lists, information concerning potential customers in a limited area the employee had acquired, the impairment of good will he had purchased, confidential data or trade secrets, or some other advantage the employee acquired while in his employ which would make his immediate competition unfair ․ Under the law, restrictive stipulations in agreements between employer and employee are not viewed with the same indulgence as such stipulations between vendor and vendee of a business and its good will.”  (Citation omitted;  internal quotation marks omitted.)   Creative Dimensions, Inc. v. Laberge, Superior Court, judicial district of New Haven, Docket No. CV–11–6020991–S (May 31, 2012, Robinson, J.) (54 Conn. L. Rptr. 172, 174).

In the present matter, the applicable confidentiality/noncompetition agreement that the plaintiff seeks to enforce was signed by the defendant in 2011.   The noncompetition clause contained in paragraph 3(b) provides in relevant part:  “During the term of your employment with the Company and for a period of one (1) year after the termination of your employment, you will not, without the Company's prior written consent (except as a passive investor), directly or indirectly be employed by or associated with, represent, have any financial interest in, or aid or assist anyone else other than the Company in the conduct of, any business (‘Competitive Business') that develops, manufactures or sells asymmetric or bi-asymmetric distribution luminaires, LED luminaires which incorporate refractive optics, proprietary wired or wireless lighting control systems or furniture mounted or free standing lighting equipment for use in open plan or landscape office interiors (the ‘Specialized Lighting Business') within the United States of America (the ‘United States') if revenues from such Specialized Lighting Business constitute more than 25% of its total revenues.   Notwithstanding and without limitation of the foregoing, you acknowledge and agree that for purposes of this Agreement, Winona, SPI, Insight, Pinnacle, Ametrix and Rambusch shall be deemed a Competitive Business.”  (Exhibit 2, p. 3.)

Addressing the first factor, noncompetition clauses prohibiting activity for one year have been held to be reasonable.   See, e.g., Timenterial, Inc v. Dagata, 29 Conn.Sup. 180, 181, 277 A.2d 512 (1971).   In point of fact, the court in Timenterial, Inc. v. Dagata relied on Supreme and Superior Court case law that had found time restrictions as great as three years were enforceable See id., 181–82, and cases cited therein.   Further, in areas involving developing and marketing specific technologies or the provision of highly specialized services, the decisions of the Superior Court have been willing accept to find reasonable even extremely broad geographical prohibitions in light of the employer's sphere of operations.   See, e.g., Xplore Technologies Corp. v. Killion, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–10–5013459–S (October 8, 2010, Brazzel–Massaro, J.) (enforcing noncompetition agreement without listed geographical area because of nature and market area of business);  Maintenance Technologies International, LLC v. Vega, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–05–4005177–S (January 12, 2006, Ronan, J.T.R.) (40 Conn. L. Rptr. 576, 577–78) (holding geographic area lying within 150 miles of employer's place of business to be reasonable).   Here, the plaintiff is engaged in marketing technology and services to national and international clients.   Indeed, although the plaintiff does not personally own them and the court has limited information concerning the extent of the business therein, it has eighty-five manufacturer representative firms throughout the continental United States, Alaska, and Hawaii.   Thus, given the geographic extent of its business, the court does not find the geographic restraints to be demonstrably unreasonable.

The plaintiff, however, encounters significant difficulty when the court considers the third and fourth factors appraising the fairness of the protection accorded to the employer and extent of the restraint on the employee's opportunity to pursue his occupation, respectively.   The court finds particularly problematic that the noncompetition clause specifically prohibits any employment by a “Specialized Lighting Business,” regardless of the importance of the position or its relatedness to those duties which the employee held with the plaintiff.

The trial court in Merryfield Animal Hospital v. MacKay, Superior Court, judicial district of New Haven, Docket No. CV–02–0464586–S (December 19, 2002, Meadow, J.T.R.) (33 Conn L. Rptr. 554), the court faced a situation similar to the one presently before this court.   In that case, an animal hospital sought to enforce a noncompetition agreement against a former employee, who was a doctor of veterinarian medicine.  Id., 554.   The noncompetition agreement at issue stated that the former employee would not “own, manage, operate, control, be employed by, participate or be connected in any manner with the ownership, management, operation or control of any business or profession engaged in veterinary services” within a set geographic area during and for two years after the termination of employment.  Id., 555.   After careful examination, the court held that the restrictions in the noncompetition agreement went significantly beyond what the employer could reasonably expect to protect:  “The clause ․ prevents MacKay from being employed in any capacity within any entity that provides veterinary services.   The restriction prohibits management and non-management jobs.   It prohibits MacKay from being employed as an independent contractor or consultant.   It even prohibits being engaged in any veterinary service even beyond what Merryfield may be doing at their hospital.   Merryfield does not treat horses, cattle, sheep or swine and does not ordinarily treat reptiles and birds.   The protection afforded under the restrictive covenant in this case is overly broad and goes beyond the reasonable protective interests of Merryfield.”  (Emphasis in original.)  Id. The language was so broad that it “even would prevent MacKay from working as a meat inspector which is beyond the protection for Merryfield” as that was an activity which the employer “d[id] does not even engage in.”  Id., 556.   In the present matter, the 2011 noncompetition agreement that the plaintiff seeks to suffers from similar infirmities by forbidding any employment, no matter how important or menial, by a prohibited business.

The court further notes that the situation before the court is not the situation where the employee's position gave him extensive authority and access to highly sensitive information or where the employee had already had an extensive career before taking the position involving the noncompetition agreement.   See TyMetrix, Inc. v. Szymonik, Superior Court, judicial district of Hartford, Docket No. CV–06–4019412–S (December 28, 2006, Tanzer, J.).   The defendant in this case is relatively young and has spent most of the past decade working for the plaintiff in a niche field.   Cf. Creative Dimensions, Inc. v. Laberge, supra, 54 Conn. L. Rptr. 175 (“[n]otwithstanding the claims of CDI's officers, the defendants' collective skills, experience and knowledge are well-suited for the portable display world and less well-suited for others”).

“The test for reasonableness is not whether the defendants would be able to make a living in other ways, or in other occupations, but whether or not the Agreement as drafted and applied would unfairly restrain their ‘opportunity’ to pursue their occupation.”  Id. Therefore, weighing the differences in his positions with the plaintiff and Acuity with regards to both the areas in which he works and the extent of his involvement in each project, as well as the seemingly limited protected information belonging to the plaintiff that the defendant possesses or would be able to put to use in his current position, the court finds that enforcing such a broad noncompetition agreement would be tantamount to a significant and unacceptable impediment to the defendant's career.

Turning to the fifth factor, the court notes that, although there is scant evidence or argument as to this factor, the effect that enforcing the restrictive covenant would have on the public's interests would likely be minimal.   As this particular component has not been the focus of the parties' arguments and the considerable overbreadth and unduly detrimental effect of the 2011 noncompetition agreement render the agreement unenforceable, however, the court will not more thoroughly examine this issue.

3

Application of the “Blue Pencil” Principle

The plaintiff, though maintaining that the 2011 noncompetition agreement is reasonable, argues that the court can reform any provision that it holds unreasonable.   Indeed, the agreement between the parties does contain a rather broad permission granted to a court in paragraph 7 authorizing the court to reform any component of the agreement found unreasonable.²  “The blue pencil rule is used to strike an unreasonable restriction to the extent that a grammatically meaningful reasonable restriction remains after the words making the restriction unreasonable are stricken.”  (Internal quotation marks omitted.)  Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 769 n.21. Like the trial court in Creative Dimensions, Inc. v. Laberge, supra, 54 Conn. L. Rptr. 175, however, this court finds that “[t]his is not possible in this case because the unreasonable provisions form the heart of the agreement.”

B

Irreparable Harm & Inadequate Remedy

In order to acquire a preliminary injunction, a party must show that not granting the injunction will result in irreparable harm to it and that it has an inadequate remedy of law.   In the realm of judicial review of restrictive covenants, a number of courts have held that a party who has demonstrated that a covenant imposes a reasonable restraint has also met their burden for demonstrating irreparable harm and inadequate remedy at law.   See, e.g., Xplore Technologies Corp. v. Killion, supra, Superior Court, Docket No. CV–10–5013459–S;  see also Century 21 Access America v. Lisboa, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–03–081901–S (July 22, 2003, Ronan, J.) (35 Conn. L. Rptr. 272, 273–74), and cases cited therein.

In considering a petition for a temporary injunction to enforce a nonsolicitation agreement, this court has previously relied on Judge Adam's opinion in POP Radio, LP v. News America Marketing In–Store, Inc., which addressed the level of proof necessary to demonstrate these elements and thus garner injunctive relief in the realm of noncompetition agreements.   See Integrated Corp. Relations, Inc. v. Bidz, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–09–4028269–S (August 14, 2009, Hiller, J.) (48 Conn. L. Rptr. 413, 416), citing POP Radio, LP v. News America Marketing In–Store, Inc., 49 Conn.Sup. 566, 575–77, 898 A.2d 863 (2005) [40 Conn. L. Rptr. 332].   This court adopted the position that, while the level of proof to establish these elements is moderated, it is not abandoned completely, noting that “it would be counterintitutive to allow a plaintiff to obtain the extraordinary remedy of a preliminary injunction without showing any harm.”   (Emphasis in original.)  Integrated Corp. Relations, Inc. v. Bidz, Inc., supra, 48 Conn. L. Rptr. 416.

“[T]he character of the acts or acts alleged to be injurious, and not the fact of a noncompete agreement per se, determines the extent to which irreparable harm can or should be proven.”  (Internal quotation marks omitted.)   RKR Dance Studios, Inc. v. Makowski, Superior Court, judicial district of Hartford, Docket No. CV–08–4035468–S (September 12, 2008, Elgo, J.) (46 Conn. L. Rptr. 389, 395).

In the present matter, even were the plaintiff to carry its burden of demonstrating that it did not have an adequate remedy at law, the court is not persuaded that, even under the moderated burden of proof for these elements, the plaintiff would be irreparably harmed absent the granting of the requested injunction.   While the plaintiff has demonstrated that it has started to move into the area of lighting controls and that the defendant possessed some knowledge of these operations, it has not demonstrated that the defendant was involved in any research and development for it in this area or that Acuity is planning to get involved in those product lines with which the defendant worked on the plaintiff's behalf.   Further, the defendant, though perhaps familiar with aspects of the plaintiff's operations, is currently in a much more limited role of solely designing control layouts than he was while working on for the plaintiff, where his duties focused on designs and frequently involved actually commissioning lights as well;  he therefore does not appear to be in a position to actively use what knowledge he has of the plaintiff's operations to the plaintiff's detriment.   The defendant in his new capacity also works solely with those wired controls manufactured by Acuity, and there is no evidence that he is engaged presently with those third-party controls and related technology, specifically Echoflex and Garibaldi, that the plaintiff's business used during the defendant's term of employment.

Taken as a whole, the plaintiff has failed to demonstrate how the defendant, whose efforts for Acuity are both of a different character and deal with different products than those on which he worked while with the plaintiff, is in a position to cause irreparable harm to the company.   Thus, as any harm the plaintiff fears would come to pass is merely speculative, the court finds that it has not met its burden as to this element.

C

Balance of the Equities

“In considering the equities, the court must weigh whether the harm likely to occur to the defendant if a temporary injunction is granted is greater or less than the harm likely to occur to the plaintiff if the injunction is denied.”   Ferguson v. Jones, Superior Court, judicial district of New Britain, Docket No. CV–13–6018967–S (May 22, 2013, Tanzer, J.T.R.).

Evaluating the equities involved in this particular case, the court finds that they favor the defendant.   The defendant is a principal, possibly the primary, income earner for his young family.   He also has an infant son who, due to his premature birth, has required extensive medical care and will require continued medical attention.   Allowing a temporary injunction to enter in this case would clearly cause considerable damage to the defendant.

The plaintiff argues that the equities favor the issuance of a temporary injunction because the covenants at issue are reasonable and the defendant has breached his noncompetition clause to go work for a competitor.   Beyond the loss of an employee who was engaged in some minimal leadership and training functions and whose departure was unfortunately ill-timed vis-a-vis an important trade fair for the plaintiff, the plaintiff has been unable to point to any definite damages that the defendant's employment with Acuity has caused prior to or since the beginning of the present action or any damages that this employment will likely cause to it in the future.   Given the almost certain harm of imposing the temporary injunction in this case and no basis for believing that much, if any, harm would result in denying it, the court believes that denying the temporary injunction presents the preferable alternative until a full trial on the merits can be held.

III

CONCLUSION

As the plaintiff has failed to meet at least three of the four necessary elements for a temporary injunction, the plaintiff's motion is denied.

The Court

Hiller, J.

FOOTNOTES

FN1. “Open protocols” are publically available rather than proprietary technology..  FN1. “Open protocols” are publically available rather than proprietary technology.

FN2. Paragraph 7 provides in relevant part:  “To the extent permitted by applicable law, if an arbitrator or court of competent jurisdiction should determine that any provision of this Agreement is unreasonable as to the length of time, geography or scope, or is otherwise invalid or unenforceable, then, and in that event, you and the Company mutually authorize, empower and request such arbitrator or court to narrow, amend, or otherwise construe any such provision so as to preserve the validity, permit the enforceability, and achieve as nearly as possible the business purposes and intent of such provision.”.  FN2. Paragraph 7 provides in relevant part:  “To the extent permitted by applicable law, if an arbitrator or court of competent jurisdiction should determine that any provision of this Agreement is unreasonable as to the length of time, geography or scope, or is otherwise invalid or unenforceable, then, and in that event, you and the Company mutually authorize, empower and request such arbitrator or court to narrow, amend, or otherwise construe any such provision so as to preserve the validity, permit the enforceability, and achieve as nearly as possible the business purposes and intent of such provision.”

Hiller, Arthur A., J.