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COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 2382CV02998
BPI CONSTRUCTION MANAGEMENT, INC.
ys.
RODRIGO BORGES, BRENO DESA and BLUEPRINT BUILDERS, INC.
MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
The matter is before the Court on the plaintiff BPI Construction Management Inc.’s
(“BPI”) motion for preliminary injunction ordering defendants Rodrigo Borges (“Borges”) and
Blueprint Builders, Inc. (“Blueprint”), pending a trial on the merits, to be enjoined from (1)
accessing BPI’s Builder Trend construction management software program; (2) using
information the defendants have obtained from BPI’s Builder Trend software program; (3)
deleting data from their computers or other electronic devices used to conduct business for
Blueprint; and ordering (4) Blueprint to produce to BPI's information technology consultant all
computers used to conduct business for Blueprint for the purpose of forensic inspection.!
e relief
Following a hearing conducted on November 2, 2023, the plaintiff's motion for injunctiv
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is ALLOWED in part and DENIED in part.
BACKGROUND
The facts relevant to the Court’s decision are briefly stated as follows.
In 2016, BPI contracted with Borges as a part-time independent contractor to provide bill
collection services for its construction company. The parties dispute whether Borges signed a
to return whatever
1 At hearing, BPI also requested additional injunctive relief; namely, that Blueprint be ordered
materials the defendants obtained by entering BPI’s Builder Trend software program.
1
confidentiality and non-disclosure agreement when he was hired. BPI contends that like all BPI
subcontractors, independent contractors and employees, Borges signed a standard confidentiality
and non-disclosure agreement when he was hired and that it was one of Borges’ responsibilities
to maintain such agreements for BPI. BPI further maintains that Borges’ confidentiality and
non-disclosure agreement is now missing from its files. Borges contends that he did not sign a
confidentiality and non-disclosure agreement when he was hired.
Borges worked as an independent contractor for BPI until October 2022. While working
for BPI, Borges used BPI’s Builder Trend construction software management program to do his
collection services work. Borges accessed the Builder Trend software and the data contained
therein using the username staff@bpiconstruction.com, which was the individualized usemame
BPIassigned to him. Borges’ corresponding password was “RBorges1!” In March 2021, while
he was still working as an independent contractor for BPI, Borges and Breno Desa (“Desa”)
incorporated Blueprint with the Massachusetts Secretary of State indicating general construction
as the company’s business.
In September 2022, Borges gave BPI two weeks’ notice. Before he left, Borges trained
Caio Xavier (“Xavier”), an employee BPI hired to perform the collection and other work that
Borges had been doing. Borges instructed Xavier to use Borges’ unique username and password
to access the Builder Trend program. Xavier did not know that this username and password had
been uniquely assigned by BPI to Borges.
Between October 6, 2022 and September 27, 2023, Borges used his unique login
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credentials to access BPI’s Builder Trend software program 38 times. BPI alleges in paragraphs I
the
29-41 of its Complaint that during these unauthorized entries to its Builder Trend account,
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I
defendants improperly obtained confidential information regarding BPI's customers and
i
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prospective customers, it's price quotes for subcontracts currently under bid, and other business
and financial information that was unavailable to the public. BPI further alleges that the
defendants’ unauthorized access to its confidential has caused it to lose business and/or reduce its ‘
quoted price in order to secure certain jobs.
On October 26, 2023, the plaintiff filed a Complaint and affidavits in support of its
requested preliminary injunction in which it alleged that the defendants misappropriated BPI’s
trade secrets, violated the federal computer fraud and abuse act, tortiously interfered with BPI’s
advantageous business relationships, engaged in unfair and deceptive business activity, engaged
in a civil conspiracy, and that Borges breached his confidentiality and non-solicitation agreement
with BPI.
DISCUSSION
In order to prevail on its request for preliminary injunctive relief, BPI bears the burden of
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showing its likelihood of success on the merits of its claim, that it will suffer irreparable harm if
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the injunctive relief is not granted; and that its harm, without injunction, outweighs
any harm to |
721, 722- : |
the defendants from their being enjoined. GTE Products Corp. v. Stewart, 414 Mass.
|
723 (1993); Packaging Indus. Group v. Cheney, 380 Mass. 609, 616-617 (1980). To
|
there will |
demonstrate irreparable harm, the plaintiff must show that without the injunctive relief,
be no adequate remedy at final judgment. See American Grain Prod. Processing Inst. v. Dep’t
, Inc., 102
of Pub. Health, 392 Mass. 309, 326 (1984); Ross-Simons of Warwick, Inc. v. Baccarat I
|1
F.3d 12, 19 (1st Cir. 2004).
After hearing, a review of the parties’ pleadings and the governing case law, the plaintiff
|
has met its burden of proving likelihood of success on the merits of a number of its claims,
to make out a |1
notably its tortious interference with advantageous business relationships. In order
claim for interference with advantageous business relations, the plaintiff must prove that (1) it
had a business relationship for economic benefit with a third party, (2) the defendants knew of
the relationship, (3) the defendants interfered with the relationship through improper motive or
means, and (4) the plaintiff's loss of advantage resulted directly from the defendants! conduct.
Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc., 41 Mass.App.Ct. 101, 104 (1996). See
|1
United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990). The plaintiff's count
for interference satisfies these requirements. For purposes of this cause of action, as to element 3,, |
“improper means” may consist of a violation of a statute or common law precept. See United
Truck Leasing Corp. v. Geltman, 406 Mass. at 817, 551 N.E.2d 20. The defendants do not
dispute that after October 2022 Borges periodically accessed BPI’s Builder Trend data using the 1
login credentials that BPI assigned to him in 2016. Under the circumstances presented, Borges’
38 unauthorized accesses to BPI’s Builder Trend account and the information contained therein
strongly supports, at a minimum, a claim of common law thievery. The defendants argue that
because Borges’ unauthorized entry was not unlawful, BPI cannot satisfy its burden to show
likelihood of success on the merits. It is clear from the case law that the defendants handed up to
|
1
the court at hearing that BPI need not establish that the defendants acts were unlawful. The other
ts’
elements of tortious interference with business relations are readily met here. The defendan
overarching argument that BPI cannot show likelihood of success on the merits of any of its six
needs no
claims, fails. Finding a likelihood of the success on the merits on count 3, the court
further analysis as to the likelihood of success of the remaining charges.
2 Defendants argue that because BPI cannot prove that it took adequate steps to safeguard
information, it cannot succeed in its misappropriation of its trade secrets claim, which the
its confident ial
defendants c ontend is fatal |
to the likelihood of success of most of BPI’s claims.
4
The plaintiff has also made a sufficient showing of the likelihood of irreparable harm if
denied injunctive relief. Borges’ actions, in his unauthorized access to BPI’s Builder Trend
program and use of information obtained on that platform to contact BPI’s customers and bid
competitively on projects BPI was also bidding on, establish a plausible threat of BPI’s future
loss of jobs (or jobs that can be performed profitably) and customer defection. It would be
difficult to ascertain whether any loss of business was a result of the defendants’ solicitation or
of other factors. In addition, the defendants’ actions likely could undermine BPI’s business
relationships with its customers upon learning that Blueprint unsolicited bids and advances came
as a result of a breach of BPI’s Builder Trend data.
Any potential harm caused to BPI by a denial of its motion must be balanced against any
reciprocal harm caused to Borges and Blueprint by the imposition of an injunction. Here, as to
the requested injunctive relief in paragraphs 1-3 of the plaintiff's proposed order (as modified
orally at hearing), BPI’s proposed preliminary injunction would, during the pendency of this
litigation, (1) bar Borges and Blueprint from accessing or attempting to access BPI’s Builder
Trend software program, (2) bar Borges and Blueprint from using [or disseminating] any
information the defendants obtained from BPI’s Builder Trend software program and return any
information the defendants obtained from BPI’s Builder Trend software program, and (3) bar
Borges and Blueprint from deleting or otherwise altering or removing any data from its
electronic devices used to conduct Blueprint’s business. BPI alleges that it has already seen a 2% |
decrease in its business which it reasonably attributes to the defendants’ actions and a credible
t
risk that in the absence of this relief, it may lose customers and/or jobs. As to the requested
injunctive relief in paragraphs 1-3 of the plaintiff's proposed order, Borges and Blueprint argue
that balancing the equities the injunction should not issue where BPI has not taken steps to
safeguard its Builder Trend information. At hearing, plaintiffs counsel informed the court that
BPI has taken steps to eliminate Borges’ login credentials. As such, this argument is mooted.
To the extent BPI seeks and order that Borges and Blueprint turn over all of their computers, cell
phones or other electronic devices used to conduct business for Blueprint, paragraph 4 of the
plaintiff s proposed injunctive order, the Court agrees that the balance of the equities weigh in
favor of the defendants. If granted, this requested relief would cause a substantial
interruption/cessation of Blueprint’s business. Thus, the court will not order Blueprint to turn
over it's computers, cell phones, or other electronic devices for forensic review at this time.
ORDER
Accordingly, for the foregoing reasons, the plaintiff's motion for preliminary injunction
is ALLOWED in part and DENIED in part, and it is hereby ORDERED that:
Defendants Rodrigo Borges and Blueprint Builders, Inc. are hereby enjoined:
1. from accessing or attempting to access the plaintiffs Builder Trend construction
management software program;
from using or disseminating any information the defendants have obtained from the
plaintiffs Builder Trend construction management software program in their business,
including but not limited to the use of such information to identify prospective
customers or to prepare contract proposals for prospective customers, and return any
information the defendants obtained from BPI’s Builder Trend software program; and
uf
3. from deleting, erasing, wiping or otherwise altering or removing any data from
computers, cell phones, or other electronic devices used to conduct business for
Blueprint Builders, Inc.
Date: November 3, 2023
Justice of the Superior Court
Preview
e- oil it COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 2382CV02998 BPI CONSTRUCTION MANAGEMENT, INC. ys. RODRIGO BORGES, BRENO DESA and BLUEPRINT BUILDERS, INC. MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION The matter is before the Court on the plaintiff BPI Construction Management Inc.’s (“BPI”) motion for preliminary injunction ordering defendants Rodrigo Borges (“Borges”) and Blueprint Builders, Inc. (“Blueprint”), pending a trial on the merits, to be enjoined from (1) accessing BPI’s Builder Trend construction management software program; (2) using information the defendants have obtained from BPI’s Builder Trend software program; (3) deleting data from their computers or other electronic devices used to conduct business for Blueprint; and ordering (4) Blueprint to produce to BPI's information technology consultant all computers used to conduct business for Blueprint for the purpose of forensic inspection.! e relief Following a hearing conducted on November 2, 2023, the plaintiff's motion for injunctiv ~ is ALLOWED in part and DENIED in part. BACKGROUND The facts relevant to the Court’s decision are briefly stated as follows. In 2016, BPI contracted with Borges as a part-time independent contractor to provide bill collection services for its construction company. The parties dispute whether Borges signed a to return whatever 1 At hearing, BPI also requested additional injunctive relief; namely, that Blueprint be ordered materials the defendants obtained by entering BPI’s Builder Trend software program. 1 confidentiality and non-disclosure agreement when he was hired. BPI contends that like all BPI subcontractors, independent contractors and employees, Borges signed a standard confidentiality and non-disclosure agreement when he was hired and that it was one of Borges’ responsibilities to maintain such agreements for BPI. BPI further maintains that Borges’ confidentiality and non-disclosure agreement is now missing from its files. Borges contends that he did not sign a confidentiality and non-disclosure agreement when he was hired. Borges worked as an independent contractor for BPI until October 2022. While working for BPI, Borges used BPI’s Builder Trend construction software management program to do his collection services work. Borges accessed the Builder Trend software and the data contained therein using the username staff@bpiconstruction.com, which was the individualized usemame BPIassigned to him. Borges’ corresponding password was “RBorges1!” In March 2021, while he was still working as an independent contractor for BPI, Borges and Breno Desa (“Desa”) incorporated Blueprint with the Massachusetts Secretary of State indicating general construction as the company’s business. In September 2022, Borges gave BPI two weeks’ notice. Before he left, Borges trained Caio Xavier (“Xavier”), an employee BPI hired to perform the collection and other work that Borges had been doing. Borges instructed Xavier to use Borges’ unique username and password to access the Builder Trend program. Xavier did not know that this username and password had been uniquely assigned by BPI to Borges. Between October 6, 2022 and September 27, 2023, Borges used his unique login | | credentials to access BPI’s Builder Trend software program 38 times. BPI alleges in paragraphs I the 29-41 of its Complaint that during these unauthorized entries to its Builder Trend account, | I defendants improperly obtained confidential information regarding BPI's customers and i i| prospective customers, it's price quotes for subcontracts currently under bid, and other business and financial information that was unavailable to the public. BPI further alleges that the defendants’ unauthorized access to its confidential has caused it to lose business and/or reduce its ‘ quoted price in order to secure certain jobs. On October 26, 2023, the plaintiff filed a Complaint and affidavits in support of its requested preliminary injunction in which it alleged that the defendants misappropriated BPI’s trade secrets, violated the federal computer fraud and abuse act, tortiously interfered with BPI’s advantageous business relationships, engaged in unfair and deceptive business activity, engaged in a civil conspiracy, and that Borges breached his confidentiality and non-solicitation agreement with BPI. DISCUSSION In order to prevail on its request for preliminary injunctive relief, BPI bears the burden of |I showing its likelihood of success on the merits of its claim, that it will suffer irreparable harm if | the injunctive relief is not granted; and that its harm, without injunction, outweighs any harm to | 721, 722- : | the defendants from their being enjoined. GTE Products Corp. v. Stewart, 414 Mass. | 723 (1993); Packaging Indus. Group v. Cheney, 380 Mass. 609, 616-617 (1980). To | there will | demonstrate irreparable harm, the plaintiff must show that without the injunctive relief, be no adequate remedy at final judgment. See American Grain Prod. Processing Inst. v. Dep’t , Inc., 102 of Pub. Health, 392 Mass. 309, 326 (1984); Ross-Simons of Warwick, Inc. v. Baccarat I |1 F.3d 12, 19 (1st Cir. 2004). After hearing, a review of the parties’ pleadings and the governing case law, the plaintiff | has met its burden of proving likelihood of success on the merits of a number of its claims, to make out a |1 notably its tortious interference with advantageous business relationships. In order claim for interference with advantageous business relations, the plaintiff must prove that (1) it had a business relationship for economic benefit with a third party, (2) the defendants knew of the relationship, (3) the defendants interfered with the relationship through improper motive or means, and (4) the plaintiff's loss of advantage resulted directly from the defendants! conduct. Adcom Prods., Inc. v. Konica Bus. Machs. USA, Inc., 41 Mass.App.Ct. 101, 104 (1996). See |1 United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990). The plaintiff's count for interference satisfies these requirements. For purposes of this cause of action, as to element 3,, | “improper means” may consist of a violation of a statute or common law precept. See United Truck Leasing Corp. v. Geltman, 406 Mass. at 817, 551 N.E.2d 20. The defendants do not dispute that after October 2022 Borges periodically accessed BPI’s Builder Trend data using the 1 login credentials that BPI assigned to him in 2016. Under the circumstances presented, Borges’ 38 unauthorized accesses to BPI’s Builder Trend account and the information contained therein strongly supports, at a minimum, a claim of common law thievery. The defendants argue that because Borges’ unauthorized entry was not unlawful, BPI cannot satisfy its burden to show likelihood of success on the merits. It is clear from the case law that the defendants handed up to | 1 the court at hearing that BPI need not establish that the defendants acts were unlawful. The other ts’ elements of tortious interference with business relations are readily met here. The defendan overarching argument that BPI cannot show likelihood of success on the merits of any of its six needs no claims, fails. Finding a likelihood of the success on the merits on count 3, the court further analysis as to the likelihood of success of the remaining charges. 2 Defendants argue that because BPI cannot prove that it took adequate steps to safeguard information, it cannot succeed in its misappropriation of its trade secrets claim, which the its confident ial defendants c ontend is fatal | to the likelihood of success of most of BPI’s claims. 4 The plaintiff has also made a sufficient showing of the likelihood of irreparable harm if denied injunctive relief. Borges’ actions, in his unauthorized access to BPI’s Builder Trend program and use of information obtained on that platform to contact BPI’s customers and bid competitively on projects BPI was also bidding on, establish a plausible threat of BPI’s future loss of jobs (or jobs that can be performed profitably) and customer defection. It would be difficult to ascertain whether any loss of business was a result of the defendants’ solicitation or of other factors. In addition, the defendants’ actions likely could undermine BPI’s business relationships with its customers upon learning that Blueprint unsolicited bids and advances came as a result of a breach of BPI’s Builder Trend data. Any potential harm caused to BPI by a denial of its motion must be balanced against any reciprocal harm caused to Borges and Blueprint by the imposition of an injunction. Here, as to the requested injunctive relief in paragraphs 1-3 of the plaintiff's proposed order (as modified orally at hearing), BPI’s proposed preliminary injunction would, during the pendency of this litigation, (1) bar Borges and Blueprint from accessing or attempting to access BPI’s Builder Trend software program, (2) bar Borges and Blueprint from using [or disseminating] any information the defendants obtained from BPI’s Builder Trend software program and return any information the defendants obtained from BPI’s Builder Trend software program, and (3) bar Borges and Blueprint from deleting or otherwise altering or removing any data from its electronic devices used to conduct Blueprint’s business. BPI alleges that it has already seen a 2% | decrease in its business which it reasonably attributes to the defendants’ actions and a credible t risk that in the absence of this relief, it may lose customers and/or jobs. As to the requested injunctive relief in paragraphs 1-3 of the plaintiff's proposed order, Borges and Blueprint argue that balancing the equities the injunction should not issue where BPI has not taken steps to safeguard its Builder Trend information. At hearing, plaintiffs counsel informed the court that BPI has taken steps to eliminate Borges’ login credentials. As such, this argument is mooted. To the extent BPI seeks and order that Borges and Blueprint turn over all of their computers, cell phones or other electronic devices used to conduct business for Blueprint, paragraph 4 of the plaintiff s proposed injunctive order, the Court agrees that the balance of the equities weigh in favor of the defendants. If granted, this requested relief would cause a substantial interruption/cessation of Blueprint’s business. Thus, the court will not order Blueprint to turn over it's computers, cell phones, or other electronic devices for forensic review at this time. ORDER Accordingly, for the foregoing reasons, the plaintiff's motion for preliminary injunction is ALLOWED in part and DENIED in part, and it is hereby ORDERED that: Defendants Rodrigo Borges and Blueprint Builders, Inc. are hereby enjoined: 1. from accessing or attempting to access the plaintiffs Builder Trend construction management software program; from using or disseminating any information the defendants have obtained from the plaintiffs Builder Trend construction management software program in their business, including but not limited to the use of such information to identify prospective customers or to prepare contract proposals for prospective customers, and return any information the defendants obtained from BPI’s Builder Trend software program; and uf 3. from deleting, erasing, wiping or otherwise altering or removing any data from computers, cell phones, or other electronic devices used to conduct business for Blueprint Builders, Inc. Date: November 3, 2023 Justice of the Superior Court