UNITED PARCEL SERVICE INC v. GIANINNA MERCADO (2025)

ORDER

This matter is before the Court on Plaintiff United Parcel Service, Inc.'s (“UPS”) Motion for Preliminary Injunction. (Doc. 13). UPS seeks to enjoin Defendant Gianinna Mercado, a former Vice President at UPS, from working for a competitor in violation of a non-compete provision. Upon review and consideration of the parties' briefings and evidence presented during an evidentiary hearing, the Court finds that UPS has carried its burden and is entitled to a preliminary injunction.

BACKGROUND

A. UPS and Its Competitors

UPS is a package delivery company with its principal place of business in Georgia that provides transportation, distribution, contract logistics, and other services globally. (Doc. 1 at ¶ 5; Doc. 13-2 at ¶ 3). UPS established a specialized business unit, UPS Healthcare, to focus on shipping and logistics for healthcare products that require heightened care due to their size, fragility, and temperature sensitivity. (Doc. 13-2 at ¶¶ 4–7). UPS's President of Healthcare Sales testified that, around 2015, UPS also acquired a company called Marken, LLP (“Marken”), which specializes in transporting pharmaceuticals in the clinical phase of development. Cencora, Inc. and its subsidiary, World Courier, also provide transportation, logistics, and delivery services. World Courier directly competes with Marken, in that it specializes in “providing premium logistics services for the pharmaceutical industry.” (See Doc. 27-1 at ¶ 25).

Since the market for logistics and supply-chain management is highly competitive, UPS wants to retain its top performing employees. For its top-level employees, UPS offers a Long-Term Incentive Performance (“LTIP”) Program, which is designed to attract and retain talent through awards of Restricted Stock Performance Units. The Restricted Stock Performance Units equal the value of a share of UPS Class A common stock, with potential for substantial added compensation to the participating employee. To receive an LTIP award, UPS employees must log in to a website hosted by Merrill Lynch and click on the available award. (Doc. 1-1 at 3). The employee must then review the LTIP Terms and Conditions (the “LTIP Agreement”) and elect whether to accept or reject the award. (Id.) If the employee does not expressly accept the conditions of the LTIP Terms and Conditions, the award may be cancelled. (Id.)

The LTIP Agreement includes several restrictive covenants.¹ (Doc. 1-1). Section 8.6 provides:

Covenant Not to Compete. During the Non-Compete Restricted Period, you will not, without the prior written consent of the Company, (a) work for a Restricted Competitor; (b) provide consulting services to a Restricted Competitor; or (c) otherwise provide services to a Restricted Competitor, in each of (a) through (c) that involves the provision of services that are similar to or relate to those services that you provided to the Company at any time during your employment and that relate, in any way, directly or indirectly, to the Restricted Competitor's competition with the transportation, delivery or logistics services provided by the Company during your employment. This non-compete provision is limited to the geographic area where the Company did business during your employment.

(Id. at 6). The “Non-Compete Restricted Period” is defined as a period of one year after an employee's employment with UPS ends for any reason. (Id. at 8). The “Company” is defined as UPS “and all of its Affiliates (as defined in O.C.G.A. § 13-8-51(1)).” (Id.) “Restricted Competitors” are defined as:

[A] person engaged in any business competitive with the Company's and its Subsidiaries' businesses of package delivery and global supply chain management solutions. Restricted Competitors shall be defined to include any affiliates of such entities that are engaged in delivery, transportation, and/or logistics services and activities. In addition, Restricted Competitors include, without limitation, the entities listed on Exhibit B.

(Id. at 9). The parties do not dispute that neither World Courier nor its parent company, Cencora, Inc., were listed in Exhibit B to the LTIP Terms and Conditions.

The LTIP Agreement also provided several terms defining how the agreement would be enforced. Section 8.9.1 provided that the restrictive covenants were “governed by the laws of the State of Georgia.” (Id. at 7). In Section 8.7, the employee acknowledged that the restrictive covenants were “necessary to protect the Company's legitimate business interests,” and in the event of a breach, the employee agreed that UPS had the right to “enjoin you, preliminarily and permanently (without the necessity of posting bond).” (Id.) And Section 8.8 provided that, in the event a court finds all or part of a restrictive covenant invalid or unenforceable, “such court shall modify the invalid or unenforceable term so that the Protective Covenants are enforceable to the fullest extent permitted by law.” (Id.)

B. Ms. Mercado's Employment with UPS

Ms. Mercado began her employment with UPS in 2001 as a Sales Representative. (Doc. 27-1 at ¶ 2). Over the next two decades, she worked in various positions, many of which had no connection to healthcare. (Id. at ¶¶ 3–4). In 2021, she was promoted to Vice President of Healthcare Sales and focused on Latin America and the United States. (Id. at ¶ 5). In that role, she was “responsible for leading UPS's Enterprise Sales team in executing strategy established by UPS's healthcare leadership” to grow business with UPS's customers in Latin America and the United States. (Id. at ¶¶ 6–7). Her role and involvement with UPS customers was significant—she oversaw half of UPS's U.S. Healthcare Enterprise (its largest, often multi-national corporations) and all of UPS's Latin America Healthcare Enterprise. (Doc. 13-2 at ¶ 10). Ms. Mercado was responsible for sales and business development operations (small package, freight, supply chain solutions), negotiation and pricing, “sales strategy, ensuring compliance with business plan requirements, assisting with internal cross-functional support, and providing senior executing sales leadership.” (Id. at ¶¶ 13–14). And though she did not directly support Marken, many of her enterprise customers were also Marken customers. (Id. at ¶¶ 18–19; Doc. 27-1 at ¶ 31).

In January 2025, Ms. Mercado accepted a position with UPS as Vice President of Operations for Latin America (excluding Mexico). (Doc. 27-1 at ¶ 8). This role “rivaled most CEOs,” as she was responsible for “management and operations authority over both UPS's delivery and logistics business units for Latin America,” and she directly managed “UPS's Small Package, Freight Forwarding, and Contract Logistics divisions; evaluated business results; conducted financial analysis; and monitored operational efficiency for countries within moderate capital investment and complex company operations.” (Doc. 13-3 at ¶¶ 6–7). She oversaw finances, safety, revenue, personnel, customers, and business units. (Id. at ¶ 8). Unlike a CEO, however, Ms. Mercado did not set strategy, policy, or procedures—higher level executives did that—but she implemented and ensured compliance with those strategies, policies, and procedures. (Doc. 27-1 at ¶ 10). Ms. Mercado remained in this position until she resigned from UPS in May 2025. (Doc. 13-3 at ¶ 12).

Between 2021 and 2024, Ms. Mercado accepted several LTIP awards, and each time she affirmatively accepted the LTIP Terms and Conditions. (Doc. 13-2 at ¶¶ 29–32). Specifically, on March 28, 2024, she accepted an award of 657 units after agreeing to the 2024 Amended and Restated LTIP Terms and Conditions. (Id. at 15 (Ex. 2)). The restrictive covenants contained in the 2024 LTIP Agreement were expressly “governed by the laws of the State of Georgia,” and prohibited Ms. Mercado from working for a competitor for a period of one year after leaving UPS, under the terms stated above. (Doc. 1-1). Ms. Mercado testified that she did not believe participation in the LTIP program was voluntary, but she did review the LTIP Agreement and accept each LTIP award. Ms. Mercado also admitted she knew she was bound by a non-compete provision, but she did not believe it applied to World Courier because it specializes in deliveries for clinical trials.

C. Ms. Mercado's Employment with World Courier

Ms. Mercado was hired by World Courier as its Vice President of North America and began working in that role in June 2025. (Doc. 27-1 at ¶¶ 14, 22). Before she left UPS, Ms. Mercado's supervisor asked her several times where she planned to work after leaving UPS. (Id. at ¶¶ 15–16; Doc. 13-3 at ¶ 13). Ms. Mercado testified that, while she did not disclose that she was going to work for World Courier, she discussed the Restricted Competitors list with her supervisor and determined that World Courier was not on the list.

The job description for her role at World Courier provides that she will “provide intense focus on overall sales, customer services and operations[,] [i]ncluding but not limited to creating incremental growth opportunities and business development within an assigned region.” (Doc. 13-7). The description also includes:

• Lead, direct, and control the activities of the North America region so that it achieves its short and long-term financial and operating objectives ․ as set by the overall World Courier business plan.

• Overall leadership for regional sales & business development strategy, as well as supply chain solutions

• Implementation of strategic initiatives to meet revenue targets and regional growth/development plans

• Warehouse management to ensure productivity and quality control meets company policies

• Lead regional administration including payroll, customer billing and invoicing

(Id. at 2). Ms. Mercado believes the position with World Courier is different from the roles she held at UPS in several ways: (1) she is not “exclusively dedicated to sales, nor will [she] be focused on Latin America;” (2) she will not be handling any enterprise accounts; (3) she will have greater responsibility and be on the leadership team that sets strategy, policies, and procedures; and (4) all of World Courier's business comes from healthcare, while UPS only derives about 10% of its revenue from healthcare. (Doc. 27-1 at ¶¶ 23–45).

D. This Litigation

UPS filed suit against Ms. Mercado on June 26, 2025, alleging she breached the LTIP Agreement by going to work for World Courier and by emailing herself confidential UPS information. (Doc. 1). UPS also alleges that the emails she sent to her personal email account breached the Employee Proprietary Information and Innovation Agreement. (Id.) On August 1, 2025, UPS filed a motion for preliminary injunction seeking to enjoin Ms. Mercado from working for World Courier and require her to subject her devices to forensic analysis to determine whether she retained UPS's confidential information or trade secrets. (Doc. 13). Ms. Mercado has since filed counterclaims for, among other things, declaratory judgment declaring the non-compete provision of the LTIP Agreement unenforceable. (Doc. 16).

In support of its request for a preliminary injunction, UPS submitted declarations from Nico Nauen, President of Healthcare Sales at UPS; Francisco Ricaurte, President of UPS Latin America; Nicholas Barlow, a digital forensic analyst who examined Ms. Mercado's UPS devices; and Daniel Park, counsel for UPS. (Docs. 13-2–13-5). In response, Ms. Mercado submitted her own declaration. (Doc. 27-1). On August 20, 2025, the Court held an evidentiary hearing on UPS's motion. During the hearing, the Court heard testimony from Ms. Mercado and Mr. Nauen, and it heard oral argument from the parties. Additionally, at the hearing, counsel for both parties agreed to confer on a plan to address Ms. Mercado's use of confidential information without the Court's intervention by September 3, 2025. (Doc. 36). Accordingly, the Court will only address the parties' arguments concerning a preliminary injunction barring or limiting Ms. Mercado's employment at World Courier.

LEGAL STANDARD

A party seeking a temporary restraining order or preliminary injunction must establish: “(1) a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (citation modified) (quoting Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009)). “In this Circuit, a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to each of the four prerequisites.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citation modified). The decision as to whether a plaintiff carried this burden “is within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.” Int'l Cosmetics Exch., Inc. v. Gapardis Health & Beauty, Inc., 303 F.3d 1242, 1246 (11th Cir. 2002) (citation modified).

DISCUSSION

To merit the grant of a preliminary injunction against Ms. Mercado, UPS must show a likelihood of prevailing on the merits of its breach of contract claim based upon the non-compete provision of the LTIP Agreement, irreparable harm if the injunction is not issued, that the harm threatened outweighs the harm to Ms. Mercado from the injunction, and that an injunction is in the public interest. To prevail on a claim for breach of contract under Georgia law, there must be: 1) a breach, 2) damages from the breach, and 3) the damages must be to a party with the right to complain about the breach. Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126, 1130 (11th Cir. 2014) (citing Norton v. Budget Rent A Car Sys., Inc., 307 Ga. App. 501 (2010)). The breach complained of “must be more than de minimus and substantial compliance with the terms of the contract is all that the law requires.” Kuritzky v. Emory Univ., 294 Ga. App. 370, 371 (2008).

A. UPS is substantially likely to succeed on the merits of its claim for breach of the LTIP Agreement.

UPS cannot succeed on its claim for breach of the non-compete provision of the LTIP Agreement if the provision is unreasonable under Georgia law.² So, first the Court will consider whether the LTIP non-compete complies with Georgia law, and if so, then consider whether UPS is likely to show that Ms. Mercado has breached the terms of the LTIP non-compete.

1. The Georgia Restrictive Covenants Act

In 2011, Georgia enacted the Georgia Restricted Covenants Act (the “GCRA”) and recognized that “reasonable restrictive covenants” may serve legitimate business interests.” See O.C.G.A. § 13-8-50; Motorsports of Conyers, 317 Ga. at 215 (discussing the GCRA's “more permissive scheme for construing and enforcing restrictive covenants,” compared to prior law). Under the GCRA, restrictive covenants in employment contracts are permitted and enforceable if they are reasonable in time, geographic area, and scope of prohibited activities. O.C.G.A. § 13-8-53(a); Falcon Ridge, Inc. v. Leon, No. A25A1333, 2025 WL 2461467, at *2 (Ga. Ct. App. Aug. 27, 2025). For contractual non-compete provisions, the GCRA provides specific guidance:

• Geographic area: a “geographic territory which includes the areas in which the employer does business at any time during the parties' relationship, even if not known at the time of entry into the restrictive covenant, is reasonable, provided that: (A) the total distance encompassed by the provisions of the covenant also is reasonable ․ O.C.G.A. § 13-8-56.

• Duration of non-compete for former employee: “a court shall presume to be reasonable in time any restraint two years or less in duration ․” O.C.G.A. § 13-8-57(b).

• Description of competitive activities in post-employment covenants: “any good faith estimate of the activities, products, or services, or geographic areas, that may be applicable at the time of termination shall [satisfy the requirement to describe prohibited conduct], even if such estimate is capable of including or ultimately proves to include extraneous activities, products, or services, or geographic areas.” O.C.G.A. § 13-8-53(c)(1).

• Construing post-employment covenants: “The post-employment covenant shall be construed ultimately to cover only so much of such estimate as relates to the activities actually conducted, the products or services actually offered, or the geographic areas actually involved within a reasonable period of time prior to termination.” Id.

• When a non-compete does not conform to the GCRA: “a court may modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties,” and it may “grant only the relief reasonably necessary to protect such interest or interests and to achieve the original intent of the contracting parties to the extent possible.” O.C.G.A. §§ 13-8-53(d), 13-8-54.

To enforce a non-compete, an employer must “plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant,” and once the prima facie burden is met, then the employee “has the burden of establishing that the contractually specified restraint does not comply with such requirements or that such covenant is unreasonable.” O.C.G.A. § 13-8-55.

2. The LTIP non-compete's geographic limitation is overbroad.

The LTIP non-compete is restricted to the geographic area “where the Company did business during [Ms. Mercado's] employment.” (Doc. 1-1 at 6). UPS argues that this geographic area is reasonable because UPS is a global company and Ms. Mercado's clients were enterprise customers, which were the largest multi-national corporations. Therefore, according to UPS, even if she was responsible for North America and Latin America, the customers located in those regions also had global reach. Ms. Mercado argues that the geographic territory is overbroad because it is not reasonable as to her work and customers, which were limited to North America and Latin America. Ms. Mercado also insists that the Court cannot modify or “blue pencil” the geographic territory to make it reasonable.

Under the language of the GCRA, a geographic territory that is limited to where the employer did business during the term of employment is presumptively reasonable if the “total distance encompassed by the provisions of the covenant” is also reasonable. O.C.G.A. § 13-8-56(2)(A). To determine whether the “total distance” is reasonable, the Court must “consider the territorial restriction in light of the business interest it protects.” Janco FS3, LLC v. Pitcock, No. 1:23-cv-05469-WMR, 2024 WL 5104148, at *5 (N.D. Ga. Jun. 21, 2024) (citation modified) (citing Baldwin v. Express Oil Change, LLC, 87 F.4th 1292, 1305 (11th Cir. 2023)). But while courts have enforced nationwide or global geographic territories, courts rarely do so without also considering the scope of the affected employee's work. See, e.g., Anderson v. USI Ins. Servs. LLC, No. 1:19-cv-05582-SCJ, 2022 WL 2111982, at *12 (N.D. Ga. Mar. 29, 2022) (nationwide restriction was reasonable, “particularly” where the employee was “performing work for the employer on a nationwide basis”); Janco FS3, 2024 WL 5104148, at *5 (“[C]ourts typically find the geographic scope of a noncompete agreement reasonable so long as it aligns with the territorial scope of the employee's job responsibilities for the employer.”). Even in Novelis Corp. v. Smith, where a global restriction was applied to a manager of a plant operating out of Oswego, New York, the court based its conclusion that the global restriction was reasonable primarily on the fact that the non-compete agreement included a list of prohibited competitors, making it presumptively reasonable under subsection (B), not subsection (A).³ No. 1:16-cv-01557-ODE, 2017 WL 1745635, at *7 (N.D. Ga. Mar. 10, 2017).

Considering the business interest UPS seeks to protect—its “trade secrets, confidential information, customer relationships, and goodwill”—UPS has not demonstrated that a global geographic territory is reasonable where Ms. Mercado was only responsible for customers in North America and Latin America in the last year of her employment. See O.C.G.A. § 13-8-53(c)(1) (restrictive covenant must be “construed ultimately to cover only so much” of the “geographic areas actually involved within a reasonable period of time prior to termination”).⁴ Even though her customers were large, multi-national corporations, it does not follow that Ms. Mercado touched every country that her customers touched. UPS can achieve its stated business interests by prohibiting Ms. Mercado from competing in the regions she has familiarity and customer relations—to extend that range beyond North America and Latin America is unreasonable.

3. The Court can modify or “blue pencil” the LTIP non-compete.

Because the geographic territory of the LTIP non-compete does not comply with the GCRA, the Court may “modify” it “so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.” O.C.G.A. § 13-8-53(d). Ms. Mercado argues that any modification “cannot rewrite or reform” the non-compete because “the blue pencil marks, but it does not write.” (Doc. 27 at 21 (citing N. Am. Senior Benefits, LLC v. Wimmer, 368 Ga. App. 124, 130 (2023); LifeBrite Lab'ys, LLC v. Cooksey, No. 1:15-cv-04309-TWT, 2016 WL 7840217, at *7–9 (N.D. Ga. Dec. 9, 2016)). But the Court does not read Wimmer or LifeBrite to mean a modification under O.C.G.A. § 13-8-53(d) cannot include new words, nor does the Eleventh Circuit.

In Baldwin v. Express Oil Change, the Eleventh Circuit considered whether this Court “invent[ed] new terms ‘from whole cloth’ when it narrowed” a restrictive covenant pursuant to § 13-8-53(d). 87 F.4th at 1309–10. The district court in Baldwin did, in fact, cross out terms and write new words in their place to narrow the scope of the geographic territory. Id. at 1300. The Eleventh Circuit affirmed the district court's blue-penciling, finding the modified terms were authorized by the language of the GCRA and Georgia common law. Id. at 1310. The Eleventh Circuit also agreed that the district court's modification to the covenant, in lieu of declining to enforce the provision at all, was consistent with the intent of the parties because the agreement contemplated that a court could modify the unenforceable terms. Id.

Neither Wimmer nor LifeBrite conflict with the Eleventh Circuit's reasoning in Baldwin. In both Wimmer and LifeBrite, the restrictive covenants at issue lacked any clearly demarcated geographic territory at all, so the court in those cases would have had to invent one. In LifeBrite, this Court recognized that, even under pre-GCRA precedent, the Georgia Supreme Court in Hamrick v. Kelley, 260 Ga. 307 (1990) would have permitted the court to narrow “the clause to fifty miles from seventy-five, but it could not completely redefine the area.” 2016 WL 7840217, at *7 (explaining “courts may strike unreasonable restrictions, and may narrow over-broad territorial designations”). And, Wimmer's ultimate refusal to blue-pencil is mooted by the Georgia Supreme Court's subsequent reversal, finding the terms of the restrictive covenant at issue were specific enough that no additional geographic territory (or blue-penciling) was required. N. Am. Senior Benefits, LLC v. Wimmer, 319 Ga. 641 (2024). Ms. Mercado's reliance on Wimmer and LifeBrite for the proposition that this Court cannot do precisely what the GCRA says it can do is unpersuasive.

Because the LTIP non-compete contains an overbroad geographic territory, and like the parties in Baldwin, the parties here expressed an intention that a court finding such provision unenforceable “shall modify the invalid or unenforceable term so that the Protective Covenants are enforceable to the fullest extent permitted by law,” the Court modifies the Section 8.6 of the LTIP Agreement as follows:

Covenant Not to Compete. During the Non-Compete Restricted Period, you will not, without the prior written consent of the Company, (a) work for a Restricted Competitor; (b) provide consulting services to a Restricted Competitor; or (c) otherwise provide services to a Restricted Competitor, in each of (a) through (c) that involves the provision of services that are similar to or relate to those services that you provided to the Company at any time during your employment and that relate, in any way, directly or indirectly, to the Restricted Competitor's competition with the transportation, delivery or logistics services provided by the Company during your employment. This non-compete provision is limited to the geographic area where the Company you did business during the last year of your employment.

This modification of the LTIP non-compete is not more restrictive on Ms. Mercado than the original language, reflects the intention of the parties, and is otherwise consistent with the requirements of the GCRA.

4. The modified LTIP non-compete is enforceable.

Having modified the LTIP non-compete's geographic territory to comply with the GCRA, the Court finds that UPS has met its burden to show that the other provisions also comply with the GCRA. First, UPS has demonstrated that it has a legitimate business interest in protecting its customer relationships, goodwill, and preventing Ms. Mercado from using the knowledge she acquired at UPS to compete against it. Ms. Mercado's involvement in generating sales, fostering and developing customer relationships, and implementing strategy for North America and Latin America makes her precisely the kind of employee UPS wanted itself from competing against. Second, the one-year period of her non-compete is presumptively reasonable under O.C.G.A. § 13-8-57(b) because it is less than two years.

Finally, the scope of prohibited activities under the LTIP non-compete is reasonable. The LTIP non-compete prohibits (1) working for or providing consulting services to a Restricted Competitor, or (2) otherwise providing any service to a Restricted Competitor “that involves the provision of services that are similar to or relate to those services that you provided to the Company at any time during your employment and that relate, in any way, directly or indirectly, to the Restricted Competitor's competition with the transportation, delivery or logistics services provided by the Company during your employment.” (Doc. 1-1 at 6). Ms. Mercado argues that this provision is overbroad but noticeably fails to cite any cases that support her interpretation of the GCRA requirements. (Doc. 27 at 18). The GCRA permits the scope of restricted activity to be “measured by the business of the employer,” and UPS's LTIP non-compete narrows the scope of restricted activity even further to only services provided by Ms. Mercado. See O.C.G.A. § 13-8-56(3); United Physician Grp., LLC v. Leche, No. 1:20-cv-01586-SEG, 2023 WL 4843345, at *19 (N.D. Ga. Mar. 21, 2023) (similar scope of prohibited activity was reasonable). The Court finds that this provision is reasonable as Ms. Mercado could reasonably anticipate which services she could not provide to a competitor after she left UPS.

5. UPS has substantially demonstrated Ms. Mercado is violating the modified LTIP non-compete.

UPS has shown a substantial likelihood of success on the merits of its breach of contract claim relating to the LTIP non-compete. Ms. Mercado argues that she did not breach the non-compete for two reasons: (1) World Courier is not a Restricted Competitor, and (2) the services she provides to World Courier are not similar to those she provided to UPS. Both arguments are unsupported by the record before the Court.

First, Ms. Mercado's argument that World Courier is not a Restricted Competitor because it does not appear on the list of Restricted Competitors is frivolous. The LTIP Agreement plainly defines Restricted Competitors as anyone “engaged in any business competitive with the Company's and its Subsidiaries' businesses of package delivery and global supply chain management solutions,” and includes “any affiliates of such entities that are engaged in delivery, transportation, and/or logistics services and activities.” (Doc. 1-1 at 9). The list of Restricted Competitors, “in addition,” provides exemplars, not an exhaustive list. And World Courier plainly falls within this definition—it provides package delivery and logistics services (in direct competition with UPS) and provides those services specifically to pharmaceutical customers in the clinical trial stage (in direct competition with UPS's subsidiary, Marken).

Ms. Mercado also argues that the services she is providing to World Courier are “entirely distinct from those she provided UPS.” (Doc. 27 at 24). Based on Ms. Mercado's testimony and the descriptions of her roles at UPS and World Courier, the Court disagrees. While she was Vice President of Healthcare Sales at UPS, Ms. Mercado oversaw business development and implemented sales strategies in North America and Latin America and focused on UPS's healthcare customers. When she was Vice President of Operations for Latin America, she managed all aspects of logistics, air cargo operations, supply chain services, and package delivery for customers in Latin America. As Vice President of Operations, she also oversaw finances, safety, revenue, personnel, customers, and business units. Now, she oversees World Courier's North America region, focusing “on overall sales,” providing “overall leadership for regional sales and business development strategy, as well as supply chain solutions,” and implementing “strategic initiatives to meet revenue targets and regional growth/development plans.” She also manages productivity of inventory, creates “effective supply chain for end users,” manages warehouses, and administrative tasks like payroll, customer billing, and invoicing.

Mr. Neuen testified that, in his view, Ms. Mercado's current role at World Courier is essentially a combination of both of her Vice President positions at UPS. The evidence in the record supports that assessment. For both UPS and World Courier, Ms. Mercado led sales and business development strategy in North America. For both UPS and World Courier, she focused on healthcare customers, though her customers at World Courier are more specialized. For both UPS and World Courier, she managed operational functions like logistics and supply chains. And, though Ms. Mercado makes much of her administrative tasks at World Courier like payroll and invoicing, it appears that she also handled administrative functions while she was Vice President of Operations at UPS. While Ms. Mercado will likely have some different tangential tasks working for World Courier, she is providing sufficiently similar, if not virtually identical, services to World Courier as those she provided to UPS in the final year of her employment.⁵ Therefore, UPS is substantially likely to succeed on the merits of its breach of contract claim.

B. UPS will likely suffer an irreparable injury.

“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987) (citing Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983)). Though Ms. Mercado testified that she was undervalued at UPS, it is clear that she was very important to building and maintaining customer relationships, sales, and operations in North America and Latin America. If she is not enjoined, even if she does not disclose UPS's trade secrets or confidential information, Ms. Mercado would be able to use her valuable strategic knowledge of UPS's business and customers to aid World Courier in achieving a competitive advantage in the healthcare space. And, once Ms. Mercado shares her knowledge of the field with World Courier, that information and strategic advantage cannot be unwound, and no amount of money could compensate for the loss of competitive edge UPS would experience. This is precisely the kind of outcome UPS sought to avoid by offering a highly compensated non-compete like the one Ms. Mercado accepted. Therefore, UPS has met its burden to show irreparable harm if an injunction is not issued.

C. The threatened injury to UPS outweighs the potential harm to Ms. Mercado.

In most cases where a non-compete is in place, and a former employee has started a new job, there are substantial potential harms to both parties. UPS has demonstrated that Ms. Mercado's work for World Courier will likely substantially harm it by effectively stealing away its customers, goodwill, and all insider information about its sales and pricing strategy. Ms. Mercado, as the breadwinner of her family, undoubtedly will face hardship if she is unable to continue working, since she is receiving a substantial salary from World Courier. But, because the Court has blue-penciled the LTIP non-compete to narrow the restricted geographic territory, Ms. Mercado is not barred from working in the logistics field in other parts of the world. See HOA Franchising, LLC v. MS Foods, LLC, 1:23-cv-04096-ELR, 2023 WL 9692401, at *16 (N.D. Ga. Dec. 20, 2023) (finding that blue-penciling limited the scope of the restrictive covenant and the potential harm to the affected employee). Moreover, any harm Ms. Mercado faces as a result of being enjoined “is the result of enforcement of a covenant not to compete to which she agreed.” NCR Corp. v. Manno, 3:12-cv-00121-TCB, 2012 WL 12888663, at *8 (N.D. Ga. Oct. 26, 2012) (citation modified). Balancing these harms, then, the threatened injury to UPS's business outweighs the limits on Ms. Mercado's ability to compete with her former company.

D. An injunction enforcing the LTIP non-compete serves the public interest.

“Georgia favors enforcing reasonable restrictive covenants, [and] reasonable restrictive covenants ․ serve the legitimate purpose of protecting legitimate business interests and creating an environment that is favorable to attracting commercial enterprises to Georgia and keeping existing businesses within the state.” Novelis Corp., 2017 WL 1745635, at *8 (citation modified) (quoting O.C.G.A. § 13-8-50). As modified, the non-compete is reasonable, and UPS expended over 2,000 LTIP awards—equaling “over $100,000 of vested stock”—to protect its legitimate business interests to prevent Ms. Mercado from competing against the company, protect its relationships with its customers, and maintain its competitive advantage. (Doc. 33 at 21). Moreover, UPS's principal place of business is in Georgia, and it expressly drafted its non-compete with reference to Georgia's restrictive covenant statutes which requires that courts “enforce a restrictive covenant by any appropriate and effective remedy available at law or equity, including, but not limited to, temporary and permanent injunctions.” See id., O.C.G.A. § 13-8-58(c). Enforcing UPS's restrictive covenant is consistent with the aims of the GCRA, and, therefore, UPS has demonstrated an injunction against Ms. Mercado is in the public interest.

E. UPS will not be required to post a bond.

Under Federal Rule of Civil Procedure 65(c), the Court may issue a preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” But, “it is well-established that ‘the amount of security required by the rule is a matter within the discretion of the trial court, and the court may elect to require no security at all.’ ” BellSouth Telecomms., Inc. v. MCIMetro Access Transmission Servs., LLC, 425 F.3d 964, 971 (11th Cir. 2005) (citation modified) (quoting City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir. 1981)).

Here, the LTIP Agreement expressly provides that, in the event UPS must pursue a preliminary injunction to enforce the restrictive covenants, it would do so “without the necessity of posting a bond.” (Doc. 1-1 at 7). While this language is not binding on the Court, Ms. Mercado has not requested that UPS post a bond, and, like the other provisions of the LTIP Agreement, the Court agrees that Ms. Mercado is bound by this provision. See Cellairis Franchise, Inc. v. Duarte, No. 2:15-cv-00101-WCO, 2015 WL 6517487, at *9 (N.D. Ga. Oct. 21, 2015) (issuing preliminary injunction to enjoin violation of restrictive covenants and waiving bond where defendant raised no arguments and covenant contained provision waiving the posting of a bond). Therefore, the bond requirement under Rule 65(c) is waived.

CONCLUSION

For the reasons stated, UPS's Motion for Preliminary Injunction (Doc. 13) is GRANTED. Accordingly, Ms. Mercado is preliminarily ENJOINED until June 1, 2026 (one year after the date of her separation from employment with UPS), from providing services to World Courier that are similar to or relate to the healthcare sales or operations services she provided to UPS. This preliminary injunction is limited to North America and Latin America.

SO ORDERED, this 2nd day of September, 2025.

FOOTNOTES

1.   Section 8.3 of the LTIP Agreement prohibits the disclosure of confidential information and trade secrets, and it specifically states: “The act of emailing Confidential Information or Trade Secrets or both to your personal email address is considered to be a breach of this section.” In the event the parties are unable to reach an agreement as to a forensic examination vendor and search terms for the purpose of evaluating whether any confidential or trade secret information is or was contained on Ms. Mercado's devices, the Court will address UPS's arguments relating to Ms. Mercado's alleged breach of this section in a separate order.

2.   Ms. Mercado disputes whether Georgia law applies to the LTIP Agreement despite an express choice-of-law provision at § 8.9: “Section 8 of these LTIP terms and conditions are governed by the laws of the State of Georgia.” (Doc. 1-1 at 7). Federal courts sitting in diversity must apply the substantive law of the forum state unless federal constitutional or statutory law compels a contrary result. Admiral Ins. Co. v. Feit Mgmt. Co., 321 F.3d 1326, 1328 (11th Cir. 2003). In Georgia, “contractual choice-of-law provisions ‘will be enforced unless application of the chosen law would be contrary to the public policy or prejudicial to the interests of this state.’ ” Motorsports of Conyers, LLC v. Burbach, 317 Ga. 206, 210 (2023) (citations omitted). Ms. Mercado has not demonstrated that application of Georgia law would be contrary to the public policy or prejudicial to the interests of this state; therefore, the Georgia choice-of-law provision is enforceable.

3.   As noted above, it is undisputed that, while the LTIP Agreement contained a list of Restricted Competitors, that list did not include World Courier or Cencora, so Novelis is inapplicable.

4.   UPS has only presented evidence regarding a specific territory covered by Ms. Mercado since 2021. From 2021 to 2025, Ms. Mercado covered North America and Latin America, and for approximately five months in 2025, she covered Latin America, except for Mexico. Because Ms. Mercado signed the applicable LTIP Agreement in 2024, the Court construes the last year of Ms. Mercado's employment (May 2024 to May 2025) as the “reasonable period of time prior to termination” for purposes of O.C.G.A. § 13-8-53(c)(1).

5.   Ms. Mercado's reliance on United Parcel Service, Inc. v. Cherry, 1:22-cv-02874-LMM, 2022 WL 18938283 (N.D. Ga. Nov. 30, 2022) is unhelpful. Though the non-compete at issue in Cherry was virtually identical to the non-compete at issue in this case, the facts of Cherry are not. Unlike the defendant in Cherry, Ms. Mercado is not going to work in a different stage of logistics or package delivery.

TIFFANY R. JOHNSON United States District Judge