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Filing # 58868613 E-Filed 07/11/2017 04:21:51 PM
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA
AIR CRITICAL CARE, LLC,
a Florida limited liability company CASE NO. 16-001360 CA
Plaintiff,
Vv.
STEPHEN BRAINARD,
TONY BARTON, JEREMY BARTON,
TRANSMED-CARE, LLC
Defendants. /
MOTION FOR PRELIMINARY INJUNCTION
AND INCORPORATED MEMORANDUM OF LAW
Plaintiff, AIR CRICITAL CARE, LLC (“ACC”) by and through its undersigned attorneys
and pursuant to Florida Rule of Civil Procedure 1.610, files this Motion for a preliminary injunction
against Defendants, STEPHEN BRAINARD (“Brainard”), TONY BARTON (“T. Barton”),
JEREMY BARTON (‘J. Barton”) and TRANSMED-CARE, LLC. (“TRANSMED-CARE”)
(collectively referred to hereinafter to as “Defendants”) and, in support thereof, states as follows:
1 Plaintiff seeks a preliminary injunction against its former subcontractors, Brainard,
T. Barton and J. Barton, and the company they own and operate, TRANSMED-CARE, pursuant to
the terms of the Confidentiality, Non-Competition and Non-Solicitation Agreement (hereinafter
“Agreement’”) that each one of the individually named defendants executed, prohibiting them from
a) hiring or recruiting any person who is engaged in activity on behalf of ACC; b) solicit or
encourage any associates of ACC to terminate their employment with ACC; c) solicit or attempt to
induce any customer of ACC to cease doing business in whole or in part with or through ACC; or d)
perform work for any customer of ACC.
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2 As detailed herein, Defendants breached their contractual and common law
obligations to Plaintiff by, in part, soliciting ACC’s client and customers and improperly using or
disclosing ACC’s confidential or proprietary information in connection with their employment with
TRANSMED-CARE.
3 Plaintiff has no adequate remedy at law and will be irreparably harmed if the Court
does not grant the requested relief. The requested injunctive relief is reasonable and necessary to
protect Plaintiff's legitimate business interests, including, but not limited to, loss of clients and
goodwill as well as the unauthorized use and disclosure of confidential and proprietary information.
4. In conjunction with this motion, Plaintiff includes a memorandum of law which sets
forth the facts and circumstances entitling it to the relief requested.
5 A minimal bond should be required because Defendants knew when they ended their
contracts with ACC that they were bound by enforceable covenants set forth in the Agreement.
WHEREFORE, Plaintiff, AIR CRICITAL CARE, LLC, respectfully requests this Court
grant its motion and enter an injunction against Defendants, STEPHEN BRAINARD, TONY
BARTON, JEREMY BARTON and TRANSMED-CARE, LLC., as follows:
(a) That Defendants be restrained and enjoined, for a period of two (2) years or for the
longest period of time the Court deems reasonable under the circumstances, from soliciting,
attempting to solicit, or accepting work from any of ACC’s clients or customers to whom ACC has
performed services from the dates Brainard, T. Barton and J. Barton ended their working
relationship with ACC through the present;
(b) That they be restrained and enjoined from using or disclosing any of ACC’s
confidential or proprietary information or trade secrets acquired through their time providing
services to ACC;
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(c) That they be required to return to ACC all of its confidential and proprietary
information as well as all material created by the Company, or by any associate or employee of the
Company which was produced during the period of time Defendants worked with ACC or by using
Company equipment, which are in Defendants’ possession, custody, or control, whether in
electronic or paper form, and to retain no copies; and
(d) For such other relief that this Court deems just, necessary and proper.
MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION
This case involved the knowing, willful, and blatant breach of contractual obligations owed
by Defendants to ACC. Specifically, shortly after ending their working relationship with ACC in
late 2015 and early 2016, Brainard, T. Barton and J. Barton started TRANSMED-CARE, a business
in direct competition with ACC. Defendants are reasonably believed to be directly or indirectly
soliciting clients or customers of ACC, business relationships that ACC has dedicated significant
time and resources to establish and maintain.
After Brainard, T. Barton and J. Barton stopped providing services to ACC, upon
information and belief, Defendants have used and/or have threatened to use ACC’s valuable
confidential and proprietary information for their own benefit and for the benefit of their new
business, TRANSMED-CARE. Defendants’ intentional and illegal conduct is a breach of their
Agreement and is causing irreparable harm to ACC’s legitimate business interests in maintaining its
customer base and goodwill as well as its valuable confidential and proprietary information.
Accordingly, Plaintiff seeks a temporary injunction during the pendency of this action barring
Defendants from soliciting customers and clients, from using or disclosing the confidential and
proprietary information belonging to ACC, and from further competing and violating their
contractual obligations.
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RELEVANT FACTUAL BACKGROUND
A. The Parties
ACC is a Florida limited liability company based in Charlotte County, Florida. See
Complaint § 1, attached as Exhibit “A.” ACC is engaged in the competitive long-range transport
of patients with medical needs, including air transport and automobile transport. Jd. at § 3. ACC is
actively engaged in transporting patients throughout the Southeastern United States. Id. at J 4.
ACC’s primary source of business comes from hospitals under pressure to move patients out of
hospital beds and into skilled nursing facilities or to other hospitals. ACC markets to hospitals and
their caseworkers for referrals of such patients who need to be transported to distant counties or
states. Id. at ] 6.
Brainard, a Florida resident, began providing services for ACC on or about July 1, 2013. T.
Barton, a Florida resident, began providing services for ACC on or about December 13, 2013. J.
Barton, a Florida resident, began providing services for ACC on or about June 4, 2013. All three
(3) defendants worked as independent contractors and executed Confidentiality, Non-Competition
and Non-Solicitation Agreements with ACC. /d. at § 8-10. Brainard, T. Barton and J. Barton,
through their work with ACC, had exposure and provided services on behalf of ACC to various
hospitals and caseworkers. /d. at { 12. Brainard, T. Barton and J. Barton would not have had the
opportunity to establish relationships with these hospitals and caseworkers without ACC and now
have the unfair advantage to exploit the relationships and goodwill Plaintiff has established over
time with its customers. After approximately two (2) years of providing services for ACC,
Defendants began competing with Plaintiff by marketing to the same hospitals and caseworkers.'
Id. at§ 14.
"Brainard quit providing services to ACC in December 2015. T. Barton quit providing services to ACC in January
2016. J. Barton quit providing services to ACC in November 2015.
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B. Defendants’ Agreement with Plaintiff
In order to protect the Company’s existing and potential customer relationships, its
confidential and proprietary information from unauthorized use and disclosure, and its investment in
creating and maintaining its customer base and good will (as well as to avoid the very
circumstances that have triggered this lawsuit), ACC required Brainard, T. Barton and J. Barton to
sign the Agreement that is the subject of this action. See id. § 6-12. ACC provided a copy of the
Agreement to each defendant for review before signing. See id. { 8-10. Aware of their obligations
to ACC as a condition of their contractor relationship, Brainard signed the Agreement on July 1,
2013, T. Barton signed it on December 13, 2013 and J. Barton signed it on June 4, 2013. A copy of
each defendant’s signed agreements are attached as Exhibit “B.”
Pursuant to the terms of the Agreement, Brainard, T. Barton and J. Barton agreed that, while
providing services for ACC and during the two (2) years following the end of the working
relationship, they would not directly or indirectly
@ hire or recruit any person who is engaged in activity on behalf of
ACC, or solicit or encourage, or cause others to solicit or encourage, any
associates (employee or contractor) of ACC to terminate their employment
with ACC; or
(ii) solicit, induce, or attempt to induce any Customer of ACC to cease
doing business in whole or in part with or through ACC; or
(iii) perform work for any Customer of ACC that under normal
circumstances would have been awarded by the Customer to ACC.
See Agreements attached as Exhibit B.
Furthermore, Brainard, T. Barton and J. Barton agreed to and acknowledged the following:
For purposes of this Agreement, “Customer” means any individual or
business to which ACC is providing services on the date or during the
twelve (12) month period immediately preceding the date on which my
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subcontract with ACC ends, or any individual or business with which
ACC is actively negotiating terms or providing services on the date on
which my subcontract with ACC ends.
For a period of two (2) years from the termination of my subcontract with
ACC, I will not accept employment or subcontract work (directly or via
any third party firm) from a Customer or carry on or engage in medical,
non-emergency transport within the following geographic area: Southeast
United States.
5 Injunction.
I agree that it would be difficult to measure any damages caused to ACC
which might result from any breach by me of the promises set forth in this
Agreement, and that in any event, money damages would be an inadequate
remedy for any such breach.
Accordingly, I agree that if I breach, or propose a breach, any portion of
this Agreement, ACC shall be entitled, in addition to all other remedies
that it may have, to an injunction or other appropriate equitable relief to
restrain any such breach without showing or proving any actual damage to
ACC.
See Agreements attached as Exhibit B.
In the Agreement, Brainard, T. Barton and J. Barton stipulated that they understand and
agreed that their sub-contract “creates and has created a relationship of confidence and trust
between [them] and ACC and its Clients with respect to Confidential Information. /d. Brainard, T.
Barton and J. Barton further acknowledged and agreed that “both during the term of the sub-
contract with ACC and after its termination, [they] will keep in confidence and trust all Confidential
Information, and will not use or disclose any such Confidential Information without the prior
written consent of ACC, except as may be necessary in the ordinary course of performing [their] job
duties for ACC. /d. Brainard, T. Barton and J. Barton also acknowledged that they “understand
that this confidentiality, non-competition and non-solicitation agreement affects important rights.
[We] have read it carefully and [are] satisfied that [we] understand it completely. /d.
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cC. Defendants Developed and Maintained Customer Goodwill on ACC’s Behalf
The core of ACC’s revenues comes from hospitals and their caseworkers. See Complaint ¥
6 attached as Exhibit A. ACC, in whole or in part through its subcontractors, have developed a
substantial amount of goodwill with its customers by maintaining close working relationships with
many of them and providing quality services. /d. These relationships and goodwill are essential to
the maintenance of ACC’s repeat and growing customer base and the key to its success in this
competitive industry. Id. at § 12. Therefore, ACC invests heavily in the relationships its
subcontractors establish with its customers. See id at § 12-13.
Brainard, T, Barton and J. Barton, until the time that they stopped providing services for the
Plaintiff, had been actively working with ACC’s customers and they had access to ACC’s company
documents, which include confidential and propriety information. See Jd. ACC supported Brainard,
T. Barton and J. Barton by investing in the personal relationships they had with customers and to
establish new customer relationships during their employment.
D. Defendants’ Knowledge of ACC’s Confidential and Proprietary Information
In order to solicit and procure new customers, as well as to maintain the existing customer
base, ACC developed and acquired a large volume of valuable and technical, proprietary and
business information to stay competitive in the industry. See generally Complaint attached as
Exhibit A. This information includes confidential and proprietary customer account data. See id. {
6; Agreements attached as Exhibit B. It also includes confidential and proprietary information
regarding ACC’s trade secrets, product ideas, processes, techniques, date, know-how, copyrightable
materials, marketing plans and strategies, sales and financial reports and forecasts, and customer
lists. Id. With this information, a competitor could identify not only ACC’s customers, their
contact information, purchase history and preferences, but also ACC’s profitability with certain
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hospitals or caseworkers.
Brainard, T. Barton and J. Barton were privy to this confidential and proprietary information
to which considerable time and other resources were devoted to generate. Brainard, T. Barton and
J. Barton were provided access to this information during the course of their working relationship
with ACC for the purpose of enabling them to successfully provide services to ACC, which
included developing new and maintaining existing customer relationships and goodwill on ACC’s
behalf. See generally, Complaint attached as Exhibit A.
E Defendants’ Violation of the Agreement
From November 2015 through January 2016, Brainard, T. Barton and J. Barton all stopped
providing services for ACC, and, shortly thereafter, they started and began working for
TRANSMED-CARE. Jd at § 12-14. Upon information and belief, TRANSMED-CARE is in the
same business as Plaintiff, providing transportation for patients out of hospitals and delivering the
patients to their distant destinations, and it directly competes with ACC. /d at § 6.
Additionally, as detailed below, Brainard, T. Barton and J. Barton are reasonably believed to
be in violation of the restrictive covenants of their Agreement regarding the use and disclosure of
ACC’s confidential and trade secret information — such as client and customer lists, sales analysis
and information, and any other proprietary information of ACC — for the benefit of TRANSMED-
CARE and to the detriment of ACC. Specifically, the agreements provide that Brainard, T. Barton
and J. Barton are required, among other obligations, to maintain the confidentiality of ACC’s
confidential and proprietary information and data. Armed with this confidential and propriety
information of ACC - which includes customer and client lists and data as well as ACC’s policies,
procedures, pricing strategies, and other information — Brainard, T. Barton and J. Barton are
believed to be using some, if not all, of this information to TRANSMED-CARE, or otherwise using
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such information in connection with their employment with TRANSMED-CARE. Furthermore,
upon information and belief, Defendants have been directly or indirectly soliciting the business of
ACC’s clients.
LEGAL ARGUMENT.
ACC Meets All Requirements for a Temporary Injunction
Injunctive relief is appropriate in actions to enforce non-compete agreements. See Fla. Stat.
§ 542.335. In addition, the Uniform Trade Secrets Act provides a statutory basis for enjoining
“actual or threatened misappropriation” of trade secrets. See Fla. Stat. § 688.003. The purpose of a
temporary injunction is to preserve the status quo until a final hearing may be held and the dispute
is resolved. City of Miami Springs v. Steffan, 423 So. 2d 930 (Fla. 3d Dist. Ct. App. 1983). Another
critical purpose of a temporary injunction is to prevent injury so that a party will not be forced to
seek redress for damages after they have occurred. Lewis v. Peters, 66 So. 2d 489 (Fla. 1953).
While a temporary or preliminary injunction is an extraordinary remedy which should be sparingly
granted, the establishment of legal rights carries with it the duty to grant an appropriate remedy.
Silvers v. Dis Com Securities, 403 So. 2d 1133, 1137 (Fla. 4th Dist. Ct. App. 1981).
Pursuant to the Florida Rules of Civil Procedure 1.610, it is well established that a party
seeking injunctive relief must demonstrate: (1) there is a substantial likelihood of success on the
merits; (2) that it will suffer irreparable injury if the injunction is not issued; (3) that the threatened
injury to the movant outweighs the potential harm to the opposing party; and (4) that the injunction,
if issued, would not be adverse to the public interest. Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63,
65 (Fla. 2d Dist. Ct. App. 2010) (citing Masters Freight, Inc. v. Servco, Inc., 915 So. 2d 666, 666
(Fla. 2d Dist. Ct. App. 2005)); North American Products Corp. v. Moore, 196 F.Supp.2d 1217,
1223 (M.D. Fla. 2002). As shown below, the facts before this Court meet all of these requirements
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and thus entitle the Plaintiff to injunctive relief on a temporary basis pending the outcome of this
action.
A. Likelihood that ACC Will Ultimately Prevail on the Merits
To establish that ACC’s restrictive covenants are enforceable, Plaintiff must plead and prove
1) the existence of one or more legitimate business interests justifying the restrictive covenant; and
2) that the contractually specified restraint is reasonably necessary to protect the established
interests of the employer. See Fla. Stat. § 542.335; North American Products, 196 F. Supp. 2d at
1228. When the employer establishes a legitimate business interest and a violation of the restrictive
covenant, irreparable injury is presumed, and the burden shifts to the employee to establish the
absence of such injury. See id.
Under Florida law, “legitimate business interests” include: trade secrets, valuable
confidential business information, substantial relationships with specific prospective or existing
customers, customer goodwill, and extraordinary or specialized training. See Fla. Stat. §
542,335(1)(b). When interpreting Florida’s covenant not-to-compete statute, courts are statutorily
required to construe a restrictive covenant in favor of providing reasonable protection to all
legitimate business interests established by the person seeking enforcement. Fla. Stat. §
542.335(1)(h); Auto Nation, Inc. v. O’Brien, 347 F. Supp. 2d 1299, 1304 (S.D. Fla. 2004).
In the instant matter, ACC seeks to protect its valuable confidential business information,
substantial relationships with this clients and customers, and customer goodwill. First, ACC seeks
to protect the substantial amount of goodwill it has developed with its customers. While employed
with ACC, Brainard, T. Barton and J. Barton were tasked, in part, with maintaining and cultivating
customer goodwill on behalf of ACC. Brainard, T. Barton and J. Barton are now trading on the
goodwill ACC paid them to develop and maintain, and they are directly or indirectly soliciting
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customers for their competing business, TRANSMED-CARE, in direct violation of their
agreements.
Second, during their employ, Brainard, T. Barton and J. Barton were given extensive access
to ACC’s customer information, contact information, and confidential and proprietary materials.
Defendants are believed to be using ACC’s customers and client lists, among other information of
ACC, to build their competitive business. This use and disclosure of company proprietary and
confidential information is prohibited by the Agreements, especially in light of the fact that
Defendants are using this information in connection with their own competitive business.
Additionally, the restrictions which ACC seeks to enforce against Defendants are reasonable
because they are limited to a two (2) year period following the expiration of the contracts. With
respect to a reasonable time restriction, Florida courts regularly enforce non-competition
agreements for two (2) years and longer. See e.g., Supinski v. Omni Healthcare, P.A., 853 So. 2d
526 (Fla. Dist. Ct. App. 2003) (upholding 2 year non-compete); Wright v. Prescott, 420 So. 2d 623
(Fla. Dist. Ct. App. 1982) (reversing district court decision in favor of employee and inferring that 3
year noncompete was reasonable); see also Fla. Stat. § 542.335(d) (two year period is presumed
reasonable).
In accordance with the above, the Court should enforce the Agreement’s restrictive
covenants as they provide for a reasonable restrictive period of two (2) years and a reasonable
geographical restriction as well of the Southeastern United State given that ACC does business
throughout that region. See Carnahan y. Alexander Proudfoot Company World Headquarters, 581
So, 2d 184 (Fla. 4th Dist. Ct. App. 1991) (enforcing the non-compete agreement throughout
company's geographic market, including all of the United States and Australia); Marshall v. Gore,
506 So. 2d 91 (Fla. 2d Dist. Ct. App. 1987) (finding the nationwide scope of the noncompetition
GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hathywocd FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com
agreement reasonable); Micro Plus, Inc. v. Forte Data Sys., Inc., 484 So. 2d 1340 (Fla. 4th Dist. Ct.
App. 1986) (enforcing nondisclosure covenant with broad geographic restrictions), Therefore, the
Agreement is reasonable in scope under Florida judicial and statutory authorities.
Therefore, in light of the compelling facts demonstrating ACC’s legitimate business
interests to be protected and the reasonableness of the restrictions, the Plaintiff is likely to succeed
on the merits.
B ACC will Suffer Irreparable Harm in the Absence of Injunctive Relief
Florida law provides for a rebuttable presumption of irreparable injury flowing from the
violation of an enforceable restrictive covenant. See Fla. Stat. § 542.335(1)(j) (“The violation of an
enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking
enforcement of the restrictive covenant”). Once the party seeking enforcement of a restrictive
covenant establishes one or more legitimate business interests justifying the restriction, “irreparable
injury must be presumed by the Court” and the burden shifts to the employee to establish the
absence of such injury. North American Products, 196 F.Supp.2d at 1230; America II Electronics,
Inc. v. Smith, 830 So. 2d 906, 908 (Fla. Dist. Ct. App. 2002) (“a party seeking to enforce a
restrictive covenant by injunction need not directly prove that the defendant’s specific activities will
cause irreparable injury if not enjoined . . . [since] a presumption of irreparable injury” is created by
violation of an enforceable restrictive covenant) (citing Fla. Stat. § 542.335).
In this matter, ACC has demonstrated that Brainard, T. Barton and J. Barton are bound by
the Agreement, that the Agreement is reasonably necessary to protect ACC’s legitimate business
interests, and that Brainard, T. Barton and J. Barton have breached the Agreement. Indeed,
Brainard, T. Barton and J. Barton are engaged in solicitation in connection with their new
competitive business, TRANSMED-CARE, which is in violation of the agreements. Additionally,
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Brainard, T. Barton and J. Barton gained significant confidential information regarding ACC’s
clients and customers during the time they provided services to ACC, including the price customers
pay for ACC’s services as well as information concerning the prices customers might be willing to
pay for such services in the future, financial information regarding ACC’s customers, ACC’s
bidding strategy and information, and the terms and conditions included in customer contracts. This
confidential information was disclosed to Brainard, T. Barton and J. Barton to enable them to
perform their job duties and responsibilities and to give ACC an edge over competitors.
Defendants’ disclosure/use of ACC’s confidential and/or proprietary information in connection with
their new competitive business is significantly detrimental to ACC. Defendants have violated their
agreements, and thus, ACC should prevail on its claim based on this breach.
cC The Harm to ACC Favors Injunctive Relief
The threatened injury to ACC outweighs the threatened harm an injunction may cause
Defendants. Where, as here, a high degree of similarity between a contractor’s former and current
job makes it likely that the former employer’s trade secret and other confidential and proprietary
information will be used and disclosed by the contractor in the course of his new work, enforcement
of restrictive covenants is often necessary to protect against such use and disclosure. See Colucci v.
Kar Kare Auto Gp,. Inc, 918 So. 2d 431, 441 (Fla. Dist. Ct. App. 2006); Auto Nation, 347 F. Supp.
2d at 1304. Defendants utilizing ACC’s confidential and proprietary information and goodwill
cultivated with ACC’s customers is in violation of their contractual obligations. Additionally,
Defendants threaten to solicit the very customers to whom they provided services during their time
with ACC.
In addition, the long term effect of not being able to protect its interests would be severely
detrimental to ACC, and would create a disincentive to 1) promote its employees to positions that
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would necessitate access to confidential and privileged information; 2) allow its contractors to have
client contact for retention and growth; and 3) provide training and skill development opportunities.
An employer should be permitted to take solace in the fact that it can disclose confidential
information to an employee without the fear that it will be to its detriment and to the benefit of
another business. Injunctive relief restraining Defendants from engaging in such competition is
appropriate, reasonable, and fair.
In the case at bar, the restrictive covenants do not prevent Defendants from gaining
meaningful employment. Indeed, the Agreements only reasonably limit Defendants’ ability to
solicit customers, clients, employees, and agents and their ability to use and disclose ACC’s
confidential and propriety information, among the other reasonable restrictions set forth in the
agreements. Under such circumstances, requiring Defendants to abide by the terms of the
agreements hardly amounts to a hardship sufficient to overcome the harm to ACC.
D. An Injunction Against Defendants Furthers the Public Interest
Florida’s public policy favors enforcement of reasonable covenants not to compete and the
protection of trade secrets, as evidenced by the Legislature’s enactment of Fla. Stat. § 542.335. As
argued more fully above, Brainard, T. Barton and J. Barton have breached the valid and enforceable
Confidentiality, Non-Competition and Non-Solicitation Agreement. The public interest will be best
served by enjoining them from breaching the Agreement and protecting ACC’s legitimate business
interests.
E Only a Nominal Bond Should be Required
The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s
costs and damages if the injunction is wrongly issued. See Metalmaz Cutting Tools, Inc. v. Till-
Tech USA, Inc., 794 So .2d 609 (Fla. 2d Dist. Ct. App. 2001). The Court may consider factors other
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than anticipated costs and damages in setting an injunction bond including the adverse party’s
likelihood of overturning the temporary injunction. /d. In this proceeding, for the reasons stated
herein, the likelihood of overturning an injunction issued by this Court would be minimal. It is not
disputed that ACC carefully maintains confidential and proprietary information to which Brainard,
T. Barton and J. Barton had access.
Further, it is not disputed that Brainard’s, T. Barton’s and J. Barton’s contracts with ACC
have been terminated and, upon information and belief, the Defendants have solicited clients and
customers of ACC. It is similarly not disputed that Brainard, T. Barton and J. Barton had no right to
disclose or use ACC’s confidential and proprietary information for the benefit of themselves or
TRANSMED-CARE. The requested restraint would only protect ACC’s rights. Accordingly, ACC
submits there should be a minimal bond of no more than $5,000.00
CONCLUSION
Defendants Brainard, T. Barton and J. Barton violated their Agreement with ACC by
wrongfully soliciting ACC’s customers and clients as well as improperly accessing or using ACC’s
confidential or proprietary information and/or company property. Additionally, ACC’s entitlement
to injunctive relief is further supported by the fact that Brainard, T. Barton and J. Barton
contractually agreed that a breach or threatened breach thereof, shall entitle ACC to obtain an
injunction. Accordingly, ACC prays that the Court grant its motion to enjoin Defendants during the
pendency of this action and until further order of this Court.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 11, 2017, a true and correct copy of the foregoing
document is being served via email to Frank Malatesta, Esq., Counsel for Defendants, Malatesta
Law Office, 871 Venetia Bay Boulevard, Suite 220, Venice, FL 34275
(frank@malatestalawoffice.com)
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GALLUP AUERBACH
Counsel for Plaintiff
4000 Hollywood Boulevard
Presidential Circle - Suite 265 South
Hollywood, Florida 33021
t: (954) 894-3035; f: (954) 894-8015
By: /s/ Dana M. Gallup
DANA M. GALLUP
Florida Bar No. 0949329
Primary E-Mail: dgaliup@gallup-law.com
Secondary E-Mails: jauerbach@gallup-law.com
mescobar@gallup-law.com
melliott@gallup-law.com
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Filing # 44662102 E-Filed 08/01/2016 02:01:23 PM 16001360CA
EXHIBIT "A"
IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
AIR CRITICAL CARE, LLC
a Florida limited liability company,
Plaintiff,
v.
STEPHEN BRAINARD,
TONY BARTON, JEREMY
BARTON, and TRANSMED-
CARE, LLC,
Defendants
/
COMPLAINT AND DEMAND FOR JURY TRIAL
COMES NOW the plaintiff, AIR CRITICAL CARE, LLC sues defendants,
STEPHEN BRAINARD, TONY BARTON, and JEREMY BARTON, and states:
GENERAL ALLEGATIONS
1 Plaintiff is a limited liability company organized under the laws of Florida
with its principal place of business in Charlotte County, Florida.
2, Venue is appropriate in Charlotte County, Florida because one or more of
the causes of actions alleged herein occurred in Charlotte County, Florida.
3 Plaintiff's business is the long-range transport of patients with medical
needs, including air transport and automobile transport.
4 Plaintiff is actively engaged in transporting patients throughout the
Southeastern United States.
5 The defendants in this law suit were subcontractors in the automobile
transport sector of plaintiff's business.
6. Much of Plaintiff's business comes from hospitals under pressure to move
patients out of hospital beds and into skilled nursing facilities or to other hospitals.
Plaintiff markets to hospitals and their caseworkers for referrals of such patients who
need to be transported to distant counties or states.
7 Plaintiff has entered into written subcontractor agreements with the
defendants for services including interfacing with hospital caseworkers, physically
moving patients via gurney from the hospitals to the transport vans, securing the patients
in the vans, and delivering the patients to their distant destinations.
8 On or about July 1, 2013, plaintiff as general contractor, and Stephen
Brainard as subcontractor, entered into a Confidentiality, Non-competition and Non-
Solicitation Agreement, a true and correct copy of which is attached hereto as Exhibit
"A" and made a part hereof.
9. On or about December 13, 2013, plaintiff as general contractor, and Tony
Barton as subcontractor, entered into a Confidentiality, Non-competition and Non-
Solicitation Agreement, a truc and correct copy of which is attached hereto as Exhibit "B"
and made a part hereof.
10. On or about June 4, 2013, plaintiff
as general contractor, and Jeremy
Barton as subcontractor, entered into a Confidentiality, Non-competition and Non-
Solicitation Agreement, a true and correct copy of which is attached hereto as Exhibit "C"
and made a part hereof.
Air Critical Care, LLC v. Brainard, et al.
Complaint and Demand for Jury Trial
Page 2 of7
i. Specifically, each subcontractor covenanted in their agreement that he
would not:
.- directly or indirectly, for myself or in conjunction with any other
person, company, partnership, corporation, business, group, or other entity
{i) hire or recruit any person who is engaged in activity on behalf of ACC,
or solicit or encourage, or cause others to solicit or encourage, any
associates (employee or contractor) of ACC to terminate their employment
with ACC; or (ii) solicit, induce, or attempt to induce any Customer of
ACC to cease doing business in whole or in part with or through ACC; or
(iii) perform work for any Customer of ACC that under normal
circumstances would have been awarded by the Customer to ACC.
For purposes of this Agreement, “Customer” means any individual or
business to which ACC is providing services on the date or during the
twelve (12) month period immediately preceding the date on which my
subcontractor with ACC ends, or any individual or business with which
ACC is actively negotiating terms for providing services on the date on
which my subcontract with ACC ends.
12. Each defendant, by virtue of the exposure provided by the work to hospital
caseworkers, has become associated with the goodwill of plaintiff, such that it would give
the defendants an unfair advantage to exploit the relationships and goodwill for a
competitor. Therefore, plaintiff has a legitimate business interest in the goodwill
associated with the defendants.
13. Defendants have breached the restrictive covenants by recruiting one
another to leave their employment with Plaintiff.
14, Defendants have further breached the restrictive covenants by engaging in
a competing business which markets to the same caseworkers and hospitals.
15. Plaintiff has retained the undersigned attorney in connection with bringing
this action and has agreed to pay him a reasonable fee for his services. Plaintiff seeks an
award of its reasonable attomey’s fees pursuant to F.S. 542.335(1)(k).
Air Critical Care, LLC v. Brainard, et al.
Complaint and Demand for Jury Trial
Page3 of7
16. Enforcement of the restrictive covenant between the parties is reasonably
necessary to protect the above mentioned legitimate business interests of the plaintiff.
17. The time frame of two (2) years is a conventional time frame in the
ommunity for restrictions on competition and is a reasonably necessary period of time to
protect plaintiff's goodwill associated with exposure of its subcontractors to hospitals and
their caseworkers.
COUNTI
{Permanent and Temporary Injunction)
18. This is an action for temporary and permanent injunctive relief pursuant to
Chapter 542, Florida Statutes.
19. Plaintiff realleges paragraphs 1-17.
20, Enforcement of the relief requested by plaintiff will not harm the public
health, safety, and welfare.
21. Defendants’ breach of the restrictive covenants has caused and will
continue to cause irreparable harm and damage to plaintiff, which damage will continue
unless defendants are enjoined from violating the restrictive covenants.
22. Plaintiff has no adequate remedy at law to compensate for the continuing
nature of defendants’ breaches.
23, Plaintiff has retained the undersigned attorney and agreed to pay him a
reasonable fee for his services.
24, WHEREFORE, plaintiff seeks entry of an order of temporary and
permanent injunctive relief against defendants Stephen Brainard, Tony Barton, and
Jeremy Barton as follows:
Air Critical Care, LLC v. Brainard, et al.
Complaint and Demand for Jury Trial
Page 4 of 7
a) Enjoining them temporarily pending final hearing in order to maintain the
status quo prior to defendants’ violation, and permanently for the period of
time agreed for the protection of plaintiff's business interests, from
performing any protected activity in the same geographical area of plaintiff's
business within the term of the covenant not to compete;
c) Awarding plaintiff's costs and reasonable attorney's fees; and
d) Granting such other and further relief to which the Court decms plaintiff
to be entitled.
COUNT
(Damages for Breach of Contract)
25. The Circuit Court has jurisdiction of this claim because it exceeds
$15,000,00, which is the minimum amount necessary to invoke such jurisdiction.
26, Plaintiff realleges paragraphs 1-17.
27. As a result of defendants’ breach of the restrictive covenants, plaintiff has
been damaged.
WHEREFORE plaintiff seeks judgment for damages against defendants Stephen
Brainard, Tony Barton, and Jeremy Barton, plus interest, costs, attorney's fees, and all
other relief which the Court deems appropriate.
COUNT Ul
(Injunction v. Transmedcare, LLC)
(Tortious Interference with Noncompete)
28. This is an action for temporary and permanent injunctive relief against
defendant Transmedcare, LLC.
29. Plaintiff realleges paragraphs 1-17 and 20-21.
Air Critical Care, LLC v. Brainard, et al.
Complaint and Demand for Jury Trial
Page 5 of 7
30, At all times, defendant Transmedcare, LLC was aware of the existence
of the fact that Stephen Brainard, Tony Barton, and Jeremy Barton had restrictive
covenants with plaintiff.
31. Defendant Transmedcare, LLC intentionally and unjustifiedly interfered
with the restrictive covenant by, without limitation, inducing Stephen Brainard, Tony
Barton, and Jeremy Barton to breach it.
32, Stephen Brainard, Tony Barton, and Jeremy Barton have breached the
restrictive covenant as a result of the inducements of Transmedcare, LLC.
33. As a result of defendants’ interference, plaintiff has been damaged.
WHEREFORE, plaintiff seeks entry of an order of temporary and permanent
injunctive relief against defe
Preview
Filing # 58868613 E-Filed 07/11/2017 04:21:51 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA AIR CRITICAL CARE, LLC, a Florida limited liability company CASE NO. 16-001360 CA Plaintiff, Vv. STEPHEN BRAINARD, TONY BARTON, JEREMY BARTON, TRANSMED-CARE, LLC Defendants. / MOTION FOR PRELIMINARY INJUNCTION AND INCORPORATED MEMORANDUM OF LAW Plaintiff, AIR CRICITAL CARE, LLC (“ACC”) by and through its undersigned attorneys and pursuant to Florida Rule of Civil Procedure 1.610, files this Motion for a preliminary injunction against Defendants, STEPHEN BRAINARD (“Brainard”), TONY BARTON (“T. Barton”), JEREMY BARTON (‘J. Barton”) and TRANSMED-CARE, LLC. (“TRANSMED-CARE”) (collectively referred to hereinafter to as “Defendants”) and, in support thereof, states as follows: 1 Plaintiff seeks a preliminary injunction against its former subcontractors, Brainard, T. Barton and J. Barton, and the company they own and operate, TRANSMED-CARE, pursuant to the terms of the Confidentiality, Non-Competition and Non-Solicitation Agreement (hereinafter “Agreement’”) that each one of the individually named defendants executed, prohibiting them from a) hiring or recruiting any person who is engaged in activity on behalf of ACC; b) solicit or encourage any associates of ACC to terminate their employment with ACC; c) solicit or attempt to induce any customer of ACC to cease doing business in whole or in part with or through ACC; or d) perform work for any customer of ACC. GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Holtywocd FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com 2 As detailed herein, Defendants breached their contractual and common law obligations to Plaintiff by, in part, soliciting ACC’s client and customers and improperly using or disclosing ACC’s confidential or proprietary information in connection with their employment with TRANSMED-CARE. 3 Plaintiff has no adequate remedy at law and will be irreparably harmed if the Court does not grant the requested relief. The requested injunctive relief is reasonable and necessary to protect Plaintiff's legitimate business interests, including, but not limited to, loss of clients and goodwill as well as the unauthorized use and disclosure of confidential and proprietary information. 4. In conjunction with this motion, Plaintiff includes a memorandum of law which sets forth the facts and circumstances entitling it to the relief requested. 5 A minimal bond should be required because Defendants knew when they ended their contracts with ACC that they were bound by enforceable covenants set forth in the Agreement. WHEREFORE, Plaintiff, AIR CRICITAL CARE, LLC, respectfully requests this Court grant its motion and enter an injunction against Defendants, STEPHEN BRAINARD, TONY BARTON, JEREMY BARTON and TRANSMED-CARE, LLC., as follows: (a) That Defendants be restrained and enjoined, for a period of two (2) years or for the longest period of time the Court deems reasonable under the circumstances, from soliciting, attempting to solicit, or accepting work from any of ACC’s clients or customers to whom ACC has performed services from the dates Brainard, T. Barton and J. Barton ended their working relationship with ACC through the present; (b) That they be restrained and enjoined from using or disclosing any of ACC’s confidential or proprietary information or trade secrets acquired through their time providing services to ACC; GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South «Holywood FL 33021 Tel: 954.894.3035 * www.galluptaw.com (c) That they be required to return to ACC all of its confidential and proprietary information as well as all material created by the Company, or by any associate or employee of the Company which was produced during the period of time Defendants worked with ACC or by using Company equipment, which are in Defendants’ possession, custody, or control, whether in electronic or paper form, and to retain no copies; and (d) For such other relief that this Court deems just, necessary and proper. MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION This case involved the knowing, willful, and blatant breach of contractual obligations owed by Defendants to ACC. Specifically, shortly after ending their working relationship with ACC in late 2015 and early 2016, Brainard, T. Barton and J. Barton started TRANSMED-CARE, a business in direct competition with ACC. Defendants are reasonably believed to be directly or indirectly soliciting clients or customers of ACC, business relationships that ACC has dedicated significant time and resources to establish and maintain. After Brainard, T. Barton and J. Barton stopped providing services to ACC, upon information and belief, Defendants have used and/or have threatened to use ACC’s valuable confidential and proprietary information for their own benefit and for the benefit of their new business, TRANSMED-CARE. Defendants’ intentional and illegal conduct is a breach of their Agreement and is causing irreparable harm to ACC’s legitimate business interests in maintaining its customer base and goodwill as well as its valuable confidential and proprietary information. Accordingly, Plaintiff seeks a temporary injunction during the pendency of this action barring Defendants from soliciting customers and clients, from using or disclosing the confidential and proprietary information belonging to ACC, and from further competing and violating their contractual obligations. GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South «Holywood FL 33021 Tel: 954.894.3035 * www.galluptaw.com RELEVANT FACTUAL BACKGROUND A. The Parties ACC is a Florida limited liability company based in Charlotte County, Florida. See Complaint § 1, attached as Exhibit “A.” ACC is engaged in the competitive long-range transport of patients with medical needs, including air transport and automobile transport. Jd. at § 3. ACC is actively engaged in transporting patients throughout the Southeastern United States. Id. at J 4. ACC’s primary source of business comes from hospitals under pressure to move patients out of hospital beds and into skilled nursing facilities or to other hospitals. ACC markets to hospitals and their caseworkers for referrals of such patients who need to be transported to distant counties or states. Id. at ] 6. Brainard, a Florida resident, began providing services for ACC on or about July 1, 2013. T. Barton, a Florida resident, began providing services for ACC on or about December 13, 2013. J. Barton, a Florida resident, began providing services for ACC on or about June 4, 2013. All three (3) defendants worked as independent contractors and executed Confidentiality, Non-Competition and Non-Solicitation Agreements with ACC. /d. at § 8-10. Brainard, T. Barton and J. Barton, through their work with ACC, had exposure and provided services on behalf of ACC to various hospitals and caseworkers. /d. at { 12. Brainard, T. Barton and J. Barton would not have had the opportunity to establish relationships with these hospitals and caseworkers without ACC and now have the unfair advantage to exploit the relationships and goodwill Plaintiff has established over time with its customers. After approximately two (2) years of providing services for ACC, Defendants began competing with Plaintiff by marketing to the same hospitals and caseworkers.' Id. at§ 14. "Brainard quit providing services to ACC in December 2015. T. Barton quit providing services to ACC in January 2016. J. Barton quit providing services to ACC in November 2015. GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South «Hollywood FL 33021 Tel: 954.894.3035 * www.galluptaw.com B. Defendants’ Agreement with Plaintiff In order to protect the Company’s existing and potential customer relationships, its confidential and proprietary information from unauthorized use and disclosure, and its investment in creating and maintaining its customer base and good will (as well as to avoid the very circumstances that have triggered this lawsuit), ACC required Brainard, T. Barton and J. Barton to sign the Agreement that is the subject of this action. See id. § 6-12. ACC provided a copy of the Agreement to each defendant for review before signing. See id. { 8-10. Aware of their obligations to ACC as a condition of their contractor relationship, Brainard signed the Agreement on July 1, 2013, T. Barton signed it on December 13, 2013 and J. Barton signed it on June 4, 2013. A copy of each defendant’s signed agreements are attached as Exhibit “B.” Pursuant to the terms of the Agreement, Brainard, T. Barton and J. Barton agreed that, while providing services for ACC and during the two (2) years following the end of the working relationship, they would not directly or indirectly @ hire or recruit any person who is engaged in activity on behalf of ACC, or solicit or encourage, or cause others to solicit or encourage, any associates (employee or contractor) of ACC to terminate their employment with ACC; or (ii) solicit, induce, or attempt to induce any Customer of ACC to cease doing business in whole or in part with or through ACC; or (iii) perform work for any Customer of ACC that under normal circumstances would have been awarded by the Customer to ACC. See Agreements attached as Exhibit B. Furthermore, Brainard, T. Barton and J. Barton agreed to and acknowledged the following: For purposes of this Agreement, “Customer” means any individual or business to which ACC is providing services on the date or during the twelve (12) month period immediately preceding the date on which my GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South « Fioywocd FL 33021 Tel: 954.894.3035 * www.galluptaw.com subcontract with ACC ends, or any individual or business with which ACC is actively negotiating terms or providing services on the date on which my subcontract with ACC ends. For a period of two (2) years from the termination of my subcontract with ACC, I will not accept employment or subcontract work (directly or via any third party firm) from a Customer or carry on or engage in medical, non-emergency transport within the following geographic area: Southeast United States. 5 Injunction. I agree that it would be difficult to measure any damages caused to ACC which might result from any breach by me of the promises set forth in this Agreement, and that in any event, money damages would be an inadequate remedy for any such breach. Accordingly, I agree that if I breach, or propose a breach, any portion of this Agreement, ACC shall be entitled, in addition to all other remedies that it may have, to an injunction or other appropriate equitable relief to restrain any such breach without showing or proving any actual damage to ACC. See Agreements attached as Exhibit B. In the Agreement, Brainard, T. Barton and J. Barton stipulated that they understand and agreed that their sub-contract “creates and has created a relationship of confidence and trust between [them] and ACC and its Clients with respect to Confidential Information. /d. Brainard, T. Barton and J. Barton further acknowledged and agreed that “both during the term of the sub- contract with ACC and after its termination, [they] will keep in confidence and trust all Confidential Information, and will not use or disclose any such Confidential Information without the prior written consent of ACC, except as may be necessary in the ordinary course of performing [their] job duties for ACC. /d. Brainard, T. Barton and J. Barton also acknowledged that they “understand that this confidentiality, non-competition and non-solicitation agreement affects important rights. [We] have read it carefully and [are] satisfied that [we] understand it completely. /d. GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South «Hellywocd FL 33021 Tel: 954.894.3035 * www.galluptaw.com cC. Defendants Developed and Maintained Customer Goodwill on ACC’s Behalf The core of ACC’s revenues comes from hospitals and their caseworkers. See Complaint ¥ 6 attached as Exhibit A. ACC, in whole or in part through its subcontractors, have developed a substantial amount of goodwill with its customers by maintaining close working relationships with many of them and providing quality services. /d. These relationships and goodwill are essential to the maintenance of ACC’s repeat and growing customer base and the key to its success in this competitive industry. Id. at § 12. Therefore, ACC invests heavily in the relationships its subcontractors establish with its customers. See id at § 12-13. Brainard, T, Barton and J. Barton, until the time that they stopped providing services for the Plaintiff, had been actively working with ACC’s customers and they had access to ACC’s company documents, which include confidential and propriety information. See Jd. ACC supported Brainard, T. Barton and J. Barton by investing in the personal relationships they had with customers and to establish new customer relationships during their employment. D. Defendants’ Knowledge of ACC’s Confidential and Proprietary Information In order to solicit and procure new customers, as well as to maintain the existing customer base, ACC developed and acquired a large volume of valuable and technical, proprietary and business information to stay competitive in the industry. See generally Complaint attached as Exhibit A. This information includes confidential and proprietary customer account data. See id. { 6; Agreements attached as Exhibit B. It also includes confidential and proprietary information regarding ACC’s trade secrets, product ideas, processes, techniques, date, know-how, copyrightable materials, marketing plans and strategies, sales and financial reports and forecasts, and customer lists. Id. With this information, a competitor could identify not only ACC’s customers, their contact information, purchase history and preferences, but also ACC’s profitability with certain GALLUP AUERBACH? 4000 Hollywood Blvd, Suite 265 South «Hollywood FL 33021 Tel: 954.894.3035 * www.galluptaw.com hospitals or caseworkers. Brainard, T. Barton and J. Barton were privy to this confidential and proprietary information to which considerable time and other resources were devoted to generate. Brainard, T. Barton and J. Barton were provided access to this information during the course of their working relationship with ACC for the purpose of enabling them to successfully provide services to ACC, which included developing new and maintaining existing customer relationships and goodwill on ACC’s behalf. See generally, Complaint attached as Exhibit A. E Defendants’ Violation of the Agreement From November 2015 through January 2016, Brainard, T. Barton and J. Barton all stopped providing services for ACC, and, shortly thereafter, they started and began working for TRANSMED-CARE. Jd at § 12-14. Upon information and belief, TRANSMED-CARE is in the same business as Plaintiff, providing transportation for patients out of hospitals and delivering the patients to their distant destinations, and it directly competes with ACC. /d at § 6. Additionally, as detailed below, Brainard, T. Barton and J. Barton are reasonably believed to be in violation of the restrictive covenants of their Agreement regarding the use and disclosure of ACC’s confidential and trade secret information — such as client and customer lists, sales analysis and information, and any other proprietary information of ACC — for the benefit of TRANSMED- CARE and to the detriment of ACC. Specifically, the agreements provide that Brainard, T. Barton and J. Barton are required, among other obligations, to maintain the confidentiality of ACC’s confidential and proprietary information and data. Armed with this confidential and propriety information of ACC - which includes customer and client lists and data as well as ACC’s policies, procedures, pricing strategies, and other information — Brainard, T. Barton and J. Barton are believed to be using some, if not all, of this information to TRANSMED-CARE, or otherwise using GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South «Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com such information in connection with their employment with TRANSMED-CARE. Furthermore, upon information and belief, Defendants have been directly or indirectly soliciting the business of ACC’s clients. LEGAL ARGUMENT. ACC Meets All Requirements for a Temporary Injunction Injunctive relief is appropriate in actions to enforce non-compete agreements. See Fla. Stat. § 542.335. In addition, the Uniform Trade Secrets Act provides a statutory basis for enjoining “actual or threatened misappropriation” of trade secrets. See Fla. Stat. § 688.003. The purpose of a temporary injunction is to preserve the status quo until a final hearing may be held and the dispute is resolved. City of Miami Springs v. Steffan, 423 So. 2d 930 (Fla. 3d Dist. Ct. App. 1983). Another critical purpose of a temporary injunction is to prevent injury so that a party will not be forced to seek redress for damages after they have occurred. Lewis v. Peters, 66 So. 2d 489 (Fla. 1953). While a temporary or preliminary injunction is an extraordinary remedy which should be sparingly granted, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Silvers v. Dis Com Securities, 403 So. 2d 1133, 1137 (Fla. 4th Dist. Ct. App. 1981). Pursuant to the Florida Rules of Civil Procedure 1.610, it is well established that a party seeking injunctive relief must demonstrate: (1) there is a substantial likelihood of success on the merits; (2) that it will suffer irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweighs the potential harm to the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest. Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63, 65 (Fla. 2d Dist. Ct. App. 2010) (citing Masters Freight, Inc. v. Servco, Inc., 915 So. 2d 666, 666 (Fla. 2d Dist. Ct. App. 2005)); North American Products Corp. v. Moore, 196 F.Supp.2d 1217, 1223 (M.D. Fla. 2002). As shown below, the facts before this Court meet all of these requirements GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South «Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com and thus entitle the Plaintiff to injunctive relief on a temporary basis pending the outcome of this action. A. Likelihood that ACC Will Ultimately Prevail on the Merits To establish that ACC’s restrictive covenants are enforceable, Plaintiff must plead and prove 1) the existence of one or more legitimate business interests justifying the restrictive covenant; and 2) that the contractually specified restraint is reasonably necessary to protect the established interests of the employer. See Fla. Stat. § 542.335; North American Products, 196 F. Supp. 2d at 1228. When the employer establishes a legitimate business interest and a violation of the restrictive covenant, irreparable injury is presumed, and the burden shifts to the employee to establish the absence of such injury. See id. Under Florida law, “legitimate business interests” include: trade secrets, valuable confidential business information, substantial relationships with specific prospective or existing customers, customer goodwill, and extraordinary or specialized training. See Fla. Stat. § 542,335(1)(b). When interpreting Florida’s covenant not-to-compete statute, courts are statutorily required to construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. Fla. Stat. § 542.335(1)(h); Auto Nation, Inc. v. O’Brien, 347 F. Supp. 2d 1299, 1304 (S.D. Fla. 2004). In the instant matter, ACC seeks to protect its valuable confidential business information, substantial relationships with this clients and customers, and customer goodwill. First, ACC seeks to protect the substantial amount of goodwill it has developed with its customers. While employed with ACC, Brainard, T. Barton and J. Barton were tasked, in part, with maintaining and cultivating customer goodwill on behalf of ACC. Brainard, T. Barton and J. Barton are now trading on the goodwill ACC paid them to develop and maintain, and they are directly or indirectly soliciting GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com customers for their competing business, TRANSMED-CARE, in direct violation of their agreements. Second, during their employ, Brainard, T. Barton and J. Barton were given extensive access to ACC’s customer information, contact information, and confidential and proprietary materials. Defendants are believed to be using ACC’s customers and client lists, among other information of ACC, to build their competitive business. This use and disclosure of company proprietary and confidential information is prohibited by the Agreements, especially in light of the fact that Defendants are using this information in connection with their own competitive business. Additionally, the restrictions which ACC seeks to enforce against Defendants are reasonable because they are limited to a two (2) year period following the expiration of the contracts. With respect to a reasonable time restriction, Florida courts regularly enforce non-competition agreements for two (2) years and longer. See e.g., Supinski v. Omni Healthcare, P.A., 853 So. 2d 526 (Fla. Dist. Ct. App. 2003) (upholding 2 year non-compete); Wright v. Prescott, 420 So. 2d 623 (Fla. Dist. Ct. App. 1982) (reversing district court decision in favor of employee and inferring that 3 year noncompete was reasonable); see also Fla. Stat. § 542.335(d) (two year period is presumed reasonable). In accordance with the above, the Court should enforce the Agreement’s restrictive covenants as they provide for a reasonable restrictive period of two (2) years and a reasonable geographical restriction as well of the Southeastern United State given that ACC does business throughout that region. See Carnahan y. Alexander Proudfoot Company World Headquarters, 581 So, 2d 184 (Fla. 4th Dist. Ct. App. 1991) (enforcing the non-compete agreement throughout company's geographic market, including all of the United States and Australia); Marshall v. Gore, 506 So. 2d 91 (Fla. 2d Dist. Ct. App. 1987) (finding the nationwide scope of the noncompetition GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hathywocd FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com agreement reasonable); Micro Plus, Inc. v. Forte Data Sys., Inc., 484 So. 2d 1340 (Fla. 4th Dist. Ct. App. 1986) (enforcing nondisclosure covenant with broad geographic restrictions), Therefore, the Agreement is reasonable in scope under Florida judicial and statutory authorities. Therefore, in light of the compelling facts demonstrating ACC’s legitimate business interests to be protected and the reasonableness of the restrictions, the Plaintiff is likely to succeed on the merits. B ACC will Suffer Irreparable Harm in the Absence of Injunctive Relief Florida law provides for a rebuttable presumption of irreparable injury flowing from the violation of an enforceable restrictive covenant. See Fla. Stat. § 542.335(1)(j) (“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of the restrictive covenant”). Once the party seeking enforcement of a restrictive covenant establishes one or more legitimate business interests justifying the restriction, “irreparable injury must be presumed by the Court” and the burden shifts to the employee to establish the absence of such injury. North American Products, 196 F.Supp.2d at 1230; America II Electronics, Inc. v. Smith, 830 So. 2d 906, 908 (Fla. Dist. Ct. App. 2002) (“a party seeking to enforce a restrictive covenant by injunction need not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined . . . [since] a presumption of irreparable injury” is created by violation of an enforceable restrictive covenant) (citing Fla. Stat. § 542.335). In this matter, ACC has demonstrated that Brainard, T. Barton and J. Barton are bound by the Agreement, that the Agreement is reasonably necessary to protect ACC’s legitimate business interests, and that Brainard, T. Barton and J. Barton have breached the Agreement. Indeed, Brainard, T. Barton and J. Barton are engaged in solicitation in connection with their new competitive business, TRANSMED-CARE, which is in violation of the agreements. Additionally, GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Heitywocd FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com Brainard, T. Barton and J. Barton gained significant confidential information regarding ACC’s clients and customers during the time they provided services to ACC, including the price customers pay for ACC’s services as well as information concerning the prices customers might be willing to pay for such services in the future, financial information regarding ACC’s customers, ACC’s bidding strategy and information, and the terms and conditions included in customer contracts. This confidential information was disclosed to Brainard, T. Barton and J. Barton to enable them to perform their job duties and responsibilities and to give ACC an edge over competitors. Defendants’ disclosure/use of ACC’s confidential and/or proprietary information in connection with their new competitive business is significantly detrimental to ACC. Defendants have violated their agreements, and thus, ACC should prevail on its claim based on this breach. cC The Harm to ACC Favors Injunctive Relief The threatened injury to ACC outweighs the threatened harm an injunction may cause Defendants. Where, as here, a high degree of similarity between a contractor’s former and current job makes it likely that the former employer’s trade secret and other confidential and proprietary information will be used and disclosed by the contractor in the course of his new work, enforcement of restrictive covenants is often necessary to protect against such use and disclosure. See Colucci v. Kar Kare Auto Gp,. Inc, 918 So. 2d 431, 441 (Fla. Dist. Ct. App. 2006); Auto Nation, 347 F. Supp. 2d at 1304. Defendants utilizing ACC’s confidential and proprietary information and goodwill cultivated with ACC’s customers is in violation of their contractual obligations. Additionally, Defendants threaten to solicit the very customers to whom they provided services during their time with ACC. In addition, the long term effect of not being able to protect its interests would be severely detrimental to ACC, and would create a disincentive to 1) promote its employees to positions that GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com would necessitate access to confidential and privileged information; 2) allow its contractors to have client contact for retention and growth; and 3) provide training and skill development opportunities. An employer should be permitted to take solace in the fact that it can disclose confidential information to an employee without the fear that it will be to its detriment and to the benefit of another business. Injunctive relief restraining Defendants from engaging in such competition is appropriate, reasonable, and fair. In the case at bar, the restrictive covenants do not prevent Defendants from gaining meaningful employment. Indeed, the Agreements only reasonably limit Defendants’ ability to solicit customers, clients, employees, and agents and their ability to use and disclose ACC’s confidential and propriety information, among the other reasonable restrictions set forth in the agreements. Under such circumstances, requiring Defendants to abide by the terms of the agreements hardly amounts to a hardship sufficient to overcome the harm to ACC. D. An Injunction Against Defendants Furthers the Public Interest Florida’s public policy favors enforcement of reasonable covenants not to compete and the protection of trade secrets, as evidenced by the Legislature’s enactment of Fla. Stat. § 542.335. As argued more fully above, Brainard, T. Barton and J. Barton have breached the valid and enforceable Confidentiality, Non-Competition and Non-Solicitation Agreement. The public interest will be best served by enjoining them from breaching the Agreement and protecting ACC’s legitimate business interests. E Only a Nominal Bond Should be Required The purpose of an injunction bond is to provide sufficient funds to cover the adverse party’s costs and damages if the injunction is wrongly issued. See Metalmaz Cutting Tools, Inc. v. Till- Tech USA, Inc., 794 So .2d 609 (Fla. 2d Dist. Ct. App. 2001). The Court may consider factors other GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hethywocd FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com than anticipated costs and damages in setting an injunction bond including the adverse party’s likelihood of overturning the temporary injunction. /d. In this proceeding, for the reasons stated herein, the likelihood of overturning an injunction issued by this Court would be minimal. It is not disputed that ACC carefully maintains confidential and proprietary information to which Brainard, T. Barton and J. Barton had access. Further, it is not disputed that Brainard’s, T. Barton’s and J. Barton’s contracts with ACC have been terminated and, upon information and belief, the Defendants have solicited clients and customers of ACC. It is similarly not disputed that Brainard, T. Barton and J. Barton had no right to disclose or use ACC’s confidential and proprietary information for the benefit of themselves or TRANSMED-CARE. The requested restraint would only protect ACC’s rights. Accordingly, ACC submits there should be a minimal bond of no more than $5,000.00 CONCLUSION Defendants Brainard, T. Barton and J. Barton violated their Agreement with ACC by wrongfully soliciting ACC’s customers and clients as well as improperly accessing or using ACC’s confidential or proprietary information and/or company property. Additionally, ACC’s entitlement to injunctive relief is further supported by the fact that Brainard, T. Barton and J. Barton contractually agreed that a breach or threatened breach thereof, shall entitle ACC to obtain an injunction. Accordingly, ACC prays that the Court grant its motion to enjoin Defendants during the pendency of this action and until further order of this Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 11, 2017, a true and correct copy of the foregoing document is being served via email to Frank Malatesta, Esq., Counsel for Defendants, Malatesta Law Office, 871 Venetia Bay Boulevard, Suite 220, Venice, FL 34275 (frank@malatestalawoffice.com) GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com GALLUP AUERBACH Counsel for Plaintiff 4000 Hollywood Boulevard Presidential Circle - Suite 265 South Hollywood, Florida 33021 t: (954) 894-3035; f: (954) 894-8015 By: /s/ Dana M. Gallup DANA M. GALLUP Florida Bar No. 0949329 Primary E-Mail: dgaliup@gallup-law.com Secondary E-Mails: jauerbach@gallup-law.com mescobar@gallup-law.com melliott@gallup-law.com GALLUP AUERBACH 4000 Hollywood Blvd, Suite 265 South « Hollywood FL 3302 1° Tel: 954.894.3035 * www.galluptaw.com Filing # 44662102 E-Filed 08/01/2016 02:01:23 PM 16001360CA EXHIBIT "A" IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION AIR CRITICAL CARE, LLC a Florida limited liability company, Plaintiff, v. STEPHEN BRAINARD, TONY BARTON, JEREMY BARTON, and TRANSMED- CARE, LLC, Defendants / COMPLAINT AND DEMAND FOR JURY TRIAL COMES NOW the plaintiff, AIR CRITICAL CARE, LLC sues defendants, STEPHEN BRAINARD, TONY BARTON, and JEREMY BARTON, and states: GENERAL ALLEGATIONS 1 Plaintiff is a limited liability company organized under the laws of Florida with its principal place of business in Charlotte County, Florida. 2, Venue is appropriate in Charlotte County, Florida because one or more of the causes of actions alleged herein occurred in Charlotte County, Florida. 3 Plaintiff's business is the long-range transport of patients with medical needs, including air transport and automobile transport. 4 Plaintiff is actively engaged in transporting patients throughout the Southeastern United States. 5 The defendants in this law suit were subcontractors in the automobile transport sector of plaintiff's business. 6. Much of Plaintiff's business comes from hospitals under pressure to move patients out of hospital beds and into skilled nursing facilities or to other hospitals. Plaintiff markets to hospitals and their caseworkers for referrals of such patients who need to be transported to distant counties or states. 7 Plaintiff has entered into written subcontractor agreements with the defendants for services including interfacing with hospital caseworkers, physically moving patients via gurney from the hospitals to the transport vans, securing the patients in the vans, and delivering the patients to their distant destinations. 8 On or about July 1, 2013, plaintiff as general contractor, and Stephen Brainard as subcontractor, entered into a Confidentiality, Non-competition and Non- Solicitation Agreement, a true and correct copy of which is attached hereto as Exhibit "A" and made a part hereof. 9. On or about December 13, 2013, plaintiff as general contractor, and Tony Barton as subcontractor, entered into a Confidentiality, Non-competition and Non- Solicitation Agreement, a truc and correct copy of which is attached hereto as Exhibit "B" and made a part hereof. 10. On or about June 4, 2013, plaintiff as general contractor, and Jeremy Barton as subcontractor, entered into a Confidentiality, Non-competition and Non- Solicitation Agreement, a true and correct copy of which is attached hereto as Exhibit "C" and made a part hereof. Air Critical Care, LLC v. Brainard, et al. Complaint and Demand for Jury Trial Page 2 of7 i. Specifically, each subcontractor covenanted in their agreement that he would not: .- directly or indirectly, for myself or in conjunction with any other person, company, partnership, corporation, business, group, or other entity {i) hire or recruit any person who is engaged in activity on behalf of ACC, or solicit or encourage, or cause others to solicit or encourage, any associates (employee or contractor) of ACC to terminate their employment with ACC; or (ii) solicit, induce, or attempt to induce any Customer of ACC to cease doing business in whole or in part with or through ACC; or (iii) perform work for any Customer of ACC that under normal circumstances would have been awarded by the Customer to ACC. For purposes of this Agreement, “Customer” means any individual or business to which ACC is providing services on the date or during the twelve (12) month period immediately preceding the date on which my subcontractor with ACC ends, or any individual or business with which ACC is actively negotiating terms for providing services on the date on which my subcontract with ACC ends. 12. Each defendant, by virtue of the exposure provided by the work to hospital caseworkers, has become associated with the goodwill of plaintiff, such that it would give the defendants an unfair advantage to exploit the relationships and goodwill for a competitor. Therefore, plaintiff has a legitimate business interest in the goodwill associated with the defendants. 13. Defendants have breached the restrictive covenants by recruiting one another to leave their employment with Plaintiff. 14, Defendants have further breached the restrictive covenants by engaging in a competing business which markets to the same caseworkers and hospitals. 15. Plaintiff has retained the undersigned attorney in connection with bringing this action and has agreed to pay him a reasonable fee for his services. Plaintiff seeks an award of its reasonable attomey’s fees pursuant to F.S. 542.335(1)(k). Air Critical Care, LLC v. Brainard, et al. Complaint and Demand for Jury Trial Page3 of7 16. Enforcement of the restrictive covenant between the parties is reasonably necessary to protect the above mentioned legitimate business interests of the plaintiff. 17. The time frame of two (2) years is a conventional time frame in the ommunity for restrictions on competition and is a reasonably necessary period of time to protect plaintiff's goodwill associated with exposure of its subcontractors to hospitals and their caseworkers. COUNTI {Permanent and Temporary Injunction) 18. This is an action for temporary and permanent injunctive relief pursuant to Chapter 542, Florida Statutes. 19. Plaintiff realleges paragraphs 1-17. 20, Enforcement of the relief requested by plaintiff will not harm the public health, safety, and welfare. 21. Defendants’ breach of the restrictive covenants has caused and will continue to cause irreparable harm and damage to plaintiff, which damage will continue unless defendants are enjoined from violating the restrictive covenants. 22. Plaintiff has no adequate remedy at law to compensate for the continuing nature of defendants’ breaches. 23, Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee for his services. 24, WHEREFORE, plaintiff seeks entry of an order of temporary and permanent injunctive relief against defendants Stephen Brainard, Tony Barton, and Jeremy Barton as follows: Air Critical Care, LLC v. Brainard, et al. Complaint and Demand for Jury Trial Page 4 of 7 a) Enjoining them temporarily pending final hearing in order to maintain the status quo prior to defendants’ violation, and permanently for the period of time agreed for the protection of plaintiff's business interests, from performing any protected activity in the same geographical area of plaintiff's business within the term of the covenant not to compete; c) Awarding plaintiff's costs and reasonable attorney's fees; and d) Granting such other and further relief to which the Court decms plaintiff to be entitled. COUNT (Damages for Breach of Contract) 25. The Circuit Court has jurisdiction of this claim because it exceeds $15,000,00, which is the minimum amount necessary to invoke such jurisdiction. 26, Plaintiff realleges paragraphs 1-17. 27. As a result of defendants’ breach of the restrictive covenants, plaintiff has been damaged. WHEREFORE plaintiff seeks judgment for damages against defendants Stephen Brainard, Tony Barton, and Jeremy Barton, plus interest, costs, attorney's fees, and all other relief which the Court deems appropriate. COUNT Ul (Injunction v. Transmedcare, LLC) (Tortious Interference with Noncompete) 28. This is an action for temporary and permanent injunctive relief against defendant Transmedcare, LLC. 29. Plaintiff realleges paragraphs 1-17 and 20-21. Air Critical Care, LLC v. Brainard, et al. Complaint and Demand for Jury Trial Page 5 of 7 30, At all times, defendant Transmedcare, LLC was aware of the existence of the fact that Stephen Brainard, Tony Barton, and Jeremy Barton had restrictive covenants with plaintiff. 31. Defendant Transmedcare, LLC intentionally and unjustifiedly interfered with the restrictive covenant by, without limitation, inducing Stephen Brainard, Tony Barton, and Jeremy Barton to breach it. 32, Stephen Brainard, Tony Barton, and Jeremy Barton have breached the restrictive covenant as a result of the inducements of Transmedcare, LLC. 33. As a result of defendants’ interference, plaintiff has been damaged. WHEREFORE, plaintiff seeks entry of an order of temporary and permanent injunctive relief against defe