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COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2017-1497
MARBLE HOUSE COIFFEURS, INC.,
d/b/la NICHOLAS MICHAELS SALON & SPA
ys.
PAULINE ROBERTSON and ELAINE LINDSEY d/b/a LARUCHE SLAON &
SPA, and JANA SOULOR d/b/a LARUCHE SALON & SPA
DECISION & ORDER ON PLAINTIFF’S
MOTION FOR PRELIMINARY INJUNCTION
This matter came before the Court on September 26, 2017, on a motion ‘a
for preliminary injunction filed by the plaintiff, Marble House Coiffeurs, Inc., d/b/a =.
Nicholas Michaels Salon & Spa (“Nicholas Michaels”) against the defendants
Pauline Robertson (“Robertson”) and Elaine Lindsey & Jana Soulor d/b/a
LaRuche Salon & Spa (“LaRuche’”). Nicholas Michaels alleges that its former
employee, Robertson, breached her September 2013 Confidentiality, Non-
Solicitation and Non-Compete Agreement (“Agreement”) by soliciting Nicholas
Michaels’ customers and going into direct competition with Nicholas Michaels
within a ten mile radius of the salon. In addition, Nicholas Michaels alleges
LaRuche was aware of the Agreement, and has intentionally interfered with that
contractual relationship. "By definition, a preliminary injunction must be granted
or denied after an abbreviated presentation of the facts," Packaging Indus.
Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980).Relevant to the issues presently before this court, the pertinent portions of
the Agreement provided that: (1) Robertson was prohibited from disclosing
confidential information;' (2) for a period of six (6) months following termination
of employment, Robertson was prohibited from directly or indirectly soliciting any
customers of Nicholas Michaels; and (3) for a period of six (6) months following
termination of employment, Robertson was prohibited from engaging in any
business which competes with Nicholas Michaels within a ten (10) mile radius of
Nicholas Michaels.
Based on the limited information presented at the hearing, the court finds
that over the last thirty years Robertson worked for Nicholas Michaels for twenty-
five of those years. During that time, she signed a total of five agreements
similar to the Agreement she signed in September 2013.2 During her
employment with Nicolas Michaels, Robertson performed many jobs, including as
a hair stylist. She had contact with many customers and developed relationships
with those customers, which included relationships outside of employment. At
this stage of the proceedings, there is no evidence that the customers Robertson
serviced while at Nicholas Michaels, or developed relationships with, were ones
who specifically came for Robertson, were brought into the salon by Robertson,
or were general customers of Nicolas Michaels who used her services.
Robertson left Nicholas Michaels at the end of May 2017. Just before
leaving, Nicholas Michaels had Robertson write a letter to the clients she
serviced, notifying them that she was leaving. In August 2017, Robertson began
' Under the Agreement, “Confidential Information” included customer names and information.
? The court does not credit Robertson’s contention that she did not sign the September 2013 Agreement.tenting space from LaRuche in order to work as a self-employed hair stylist.
LaRuche is located less than one mile from Nicholas Michaels. Robertson is not
an employee of LaRuche and there is no evidence at this stage of the
proceedings that LaRuche receives any benefit from Robertson’s business, other
than monthly rent from the tenancy.
Given the limited information provided at the hearing, and based on what
is contained in the pleadings, Robertson has communicated with customers she
serviced while employed at Nicholas Michaels, she has solicited customers, and
some of those customers have canceled appointments with Nicholas Michaels
and. are being serviced by Robertson. The communications and/or solicitations
by Robertson have occurred through announcements, social media and directly.
Whether to grant a preliminary injunction involves application of the
balancing test set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at
616-17. See, e.g., Carroll v. Marzilli, 75 Mass.App.Ct. 550, 552 (2009). "[T]he
judge initially evaluates in combination the moving party's claim of injury and
chance of success on the merits." Packaging Indus. Group, Inc. v.Cheney, 380
Mass. at 617. "If the judge is convinced that failure to issue the injunction would
subject the moving party to a substantial risk of irreparable harm, the judge must
then balance this risk against any similar risk of irreparable harm which granting
the injunction would create for the opposing party" (footnote omitted). Id. In
balancing those considerations, "[w]hat matters as to each party is not the raw
amount of irreparable harm the party might conceivably suffer, but rather the risk
of such harm in light of the party's chance of success on the merits." Id. "Onlywhere the balance between these risks cuts in favor of the moving party may a
preliminary injunction properly issue." Id. "[T]he significant remedy of a
preliminary injunction should not be granted unless the plaintiff] ha[s]made a
clear showing of entitlement thereto." Student No. 9 v. Board of Educ., 440 Mass.
752, 762 (2004), citing Landry v. Attorney Gen., 429 Mass. 336, 343 (1999).
Whether or not to grant a preliminary injunction is a matter of discretion for
the judge, see, e.g., GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722 (1993), as
is the scope of the relief ordered. See, e.g., Borne v. Haverhill Golf & Country
Club, Inc., 58 Mass.App.Ct. 306, 323-24 (2003), citing Commonwealth v. Adams,
416 Mass. 558, 566 (1993); Cahaly v. Benistar Prop. Exch. Trust Co.,68
Mass.App.Ct.668, 679 (2007). in its exercise of discretion, the Court is mindful
that "the purpose of a preliminary injunction is ‘only to preserve the status quo
while the case is under consideration.'" Petricca Constr. Co. v. Commonwealth,
37 Mass. App. Ct. 392, 399 (1994), quoting Jet-Line Servs., Inc. v. Selectmen of
Stoughton, 25 Mass. App. Ct. 645, 649-50 (1988).
Noncompete and nonsolicitation agreements will be enforced only if
reasonable based on all of the circumstances. All Stainless, 364 Mass. at 778;
New England Tree Expert Co., Inc. v. Russell, 306 Mass. 504, 510 (1940).
Determination of the reasonableness of restrictive covenants requires a fact-
sensitive inquiry. Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714, 717
(1961); Sherman v. Pfefferkorn, 241 Mass. 468, 474 (1922). If a covenant is too
broad in space, time or any other respect, it will be enforced only to the extent it
is reasonable and to the extent that it is severable for the purposes ofenforcement. All Stainless, 364 Mass. at 778; Novelty Bias Binding Co., 342
Mass. at718; Cedric G. Chase Photographic Labs, Inc. v. Hennessey, 327 Mass.
137, 139 (1951). Any restraint must be consistent with the protection of the
goodwill of the employer. All Stainless, 364 Mass. at 779. At this stage of the
proceedings, the court cannot say that the restrictions in the Agreement in this
case are unreasonable.
This court preliminarily finds that Nicholas Michaels has not met its burden
of establishing a likelihood of success on the merits with regard to LaRuche.
While there is some evidence that LaRuche has done some notification that
Robertson is now there, such general information does not rise to the level
necessary to prohibit LaRuche from doing business, which it was doing prior to
Robertson’s arrival.
With respect to Robertson, the court preliminarily finds that Nicholas
Michaels has demonstrated that Robertson breached the Agreement by opening
up a competing business within the ten mile radius. With respect to solicitation,
the facts presented are mixed at this stage. There is some evidence that
Robertson has communicated with customers, she may have sent
announcements, notified customers through social media, and directly informed
certain customers of her new business. What is not clear is who the customers
are, how they came to be Robertson’s clients or Nicholas Michaels’ clients, and
who initiated the communication once Robertson left. At this stage, the record
suggests some violation of the non-solicitation covenant at least as to some
customers.However, in the business Robertson and Nicholas Michaels provide, the
dilemma is that the customer develops a relationship with a particular stylist and
any goodwill generated is shared between employee and employer. There is no
doubt that some of the goodwill Nicholas Michaels has with the clients who were
serviced by Robertson belongs to Robertson personally. Therefore, the
customers also have an interest in retaining Robertson’s services, or at least
having the option to do so. It would be inequitable to grant relief to Nicholas
Michaels that has the result of penalizing the interests of those customers.
Finally, as to the question of harm, "[i]n the context of a preliminary
injunction the only rights which may be irreparably lost are those not capable of
vindication by a final judgment, rendered either at law or in equity." Packaging
Indus. Group, Inc. v. Cheney, 380 Mass. at 617 n.11. "[DJamage to client
relationships and customer goodwill has been held to be ‘irreparable harm' under
Massachusetts law," Bear, Stearns & Co., Inc. v. Sharon, 550 F.Sup.2d 174, 178
(D.Mass. 2008), citing All Stainless, Inc. v. Colby, 364 Mass. 773 (1974).
Nicholas Michaels argues that without injunctive relief it risks unquantifiable harm
in the form of lost customers trust and confidence. See, e.g., North Am.
Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 869-70 (2009),
citing cases (good will includes company's positive reputation in eyes of its
customers or potential customers and is generated by repeat business with
existing customers or by referrals to potential customers). At this stage of the
proceedings, Nicholas Michaels has met its burden.
Having determined that the failure to issue some form of injunction wouldsubject Nichols Michaels to a substantial risk of irreparable harm, the court must
weigh that risk against the risk of irreparable harm to Robertson by granting an
injunction. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 617. While
mindful of Robertson’s argument that an injunction will harm her ability to earn a
living, the court cannot disregard the fact that she entered into an Agreement that
restricts her from competing and non-soliciting within a ten mile radius and for a
period of six months. Roberts is not prevented from working or competing
generally with Nicholas Michaels.
When considering all of the factors and issues involved, including the
interests of third parties, Nicholas Michaels has met its burden in part and,
therefore, this Court shall exercise its discretion and grant its request for a
preliminary injunction, in part.
ORDER
For the reasons stated above, with the exception of any specific
customers who have transferred their business to Robertson, this Court
ALLOWS Nicholas Michaels’ motion for a preliminary injunction to the limited
extent that it hereby ORDERS that:
1. Until November 30, 2017, or the final adjudication of this case,
whichever comes first, Robertson is enjoined from working for any business,
either as an employee or self-employed, which competes with Nicholas Michaels
in the provision of services and products provided by Nicholas Michaels, within a
ten (10) mile radius of Nicholas Michaels.2. Until November 30, 2017, or until the final adjudication of this case,
whichever comes first, Robertson is enjoined from soliciting, directly or indirectly,
any customers of Nicholas Michaels, all in accordance with the terms of the
Agreement.
3. Robertson shall provide to Nicholas Michaels a list of every
customer she has communicated with between May 31, 2017 to the present, who
is either a present customer of Nicholas Michaels, or a former customer of
Nicholas Michaels who is now doing business with Robertson, setting forth:
(a) the name of the customer;
(b) the date of each communication;
(c) the method of communication (e.g. telephone call, social
media, regular mail or email);
(d) who initiated the communication; and
(e) | asummary of the substance of each communication.
4. With regard to any specific customers of Nicholas Michaels who
have transferred their business to Robertson, Robertson shall segregate and
maintain separate accounts and records of all services and products sold or
provided to any of those former Nicholas Michaels customers, and shall send to
Nicholas Michaels on a monthly basis, through counsel, copies of all such
accounts and records, including reports of gross revenue earned by Robertson
from said customers.
5. The parties are restrained from destroying any and all documents
and communications of any kind whatsoever concerning the subject matter of thelitigation, including e-mails and other electronic forms of information. In addition,
the parties are ordered to take all steps necessary to preserve all such
documents and communications for discovery during the course of the litigation.
6. Beyond this, Nicholas Michaels’ motion for preliminary injunction is
DENIED.
Dated: September 27, 2017
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COMMONWEALTH OF MASSACHUSETTS WORCESTER, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1497 MARBLE HOUSE COIFFEURS, INC., d/b/la NICHOLAS MICHAELS SALON & SPA ys. PAULINE ROBERTSON and ELAINE LINDSEY d/b/a LARUCHE SLAON & SPA, and JANA SOULOR d/b/a LARUCHE SALON & SPA DECISION & ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION This matter came before the Court on September 26, 2017, on a motion ‘a for preliminary injunction filed by the plaintiff, Marble House Coiffeurs, Inc., d/b/a =. Nicholas Michaels Salon & Spa (“Nicholas Michaels”) against the defendants Pauline Robertson (“Robertson”) and Elaine Lindsey & Jana Soulor d/b/a LaRuche Salon & Spa (“LaRuche’”). Nicholas Michaels alleges that its former employee, Robertson, breached her September 2013 Confidentiality, Non- Solicitation and Non-Compete Agreement (“Agreement”) by soliciting Nicholas Michaels’ customers and going into direct competition with Nicholas Michaels within a ten mile radius of the salon. In addition, Nicholas Michaels alleges LaRuche was aware of the Agreement, and has intentionally interfered with that contractual relationship. "By definition, a preliminary injunction must be granted or denied after an abbreviated presentation of the facts," Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980).Relevant to the issues presently before this court, the pertinent portions of the Agreement provided that: (1) Robertson was prohibited from disclosing confidential information;' (2) for a period of six (6) months following termination of employment, Robertson was prohibited from directly or indirectly soliciting any customers of Nicholas Michaels; and (3) for a period of six (6) months following termination of employment, Robertson was prohibited from engaging in any business which competes with Nicholas Michaels within a ten (10) mile radius of Nicholas Michaels. Based on the limited information presented at the hearing, the court finds that over the last thirty years Robertson worked for Nicholas Michaels for twenty- five of those years. During that time, she signed a total of five agreements similar to the Agreement she signed in September 2013.2 During her employment with Nicolas Michaels, Robertson performed many jobs, including as a hair stylist. She had contact with many customers and developed relationships with those customers, which included relationships outside of employment. At this stage of the proceedings, there is no evidence that the customers Robertson serviced while at Nicholas Michaels, or developed relationships with, were ones who specifically came for Robertson, were brought into the salon by Robertson, or were general customers of Nicolas Michaels who used her services. Robertson left Nicholas Michaels at the end of May 2017. Just before leaving, Nicholas Michaels had Robertson write a letter to the clients she serviced, notifying them that she was leaving. In August 2017, Robertson began ' Under the Agreement, “Confidential Information” included customer names and information. ? The court does not credit Robertson’s contention that she did not sign the September 2013 Agreement.tenting space from LaRuche in order to work as a self-employed hair stylist. LaRuche is located less than one mile from Nicholas Michaels. Robertson is not an employee of LaRuche and there is no evidence at this stage of the proceedings that LaRuche receives any benefit from Robertson’s business, other than monthly rent from the tenancy. Given the limited information provided at the hearing, and based on what is contained in the pleadings, Robertson has communicated with customers she serviced while employed at Nicholas Michaels, she has solicited customers, and some of those customers have canceled appointments with Nicholas Michaels and. are being serviced by Robertson. The communications and/or solicitations by Robertson have occurred through announcements, social media and directly. Whether to grant a preliminary injunction involves application of the balancing test set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 616-17. See, e.g., Carroll v. Marzilli, 75 Mass.App.Ct. 550, 552 (2009). "[T]he judge initially evaluates in combination the moving party's claim of injury and chance of success on the merits." Packaging Indus. Group, Inc. v.Cheney, 380 Mass. at 617. "If the judge is convinced that failure to issue the injunction would subject the moving party to a substantial risk of irreparable harm, the judge must then balance this risk against any similar risk of irreparable harm which granting the injunction would create for the opposing party" (footnote omitted). Id. In balancing those considerations, "[w]hat matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party's chance of success on the merits." Id. "Onlywhere the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue." Id. "[T]he significant remedy of a preliminary injunction should not be granted unless the plaintiff] ha[s]made a clear showing of entitlement thereto." Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004), citing Landry v. Attorney Gen., 429 Mass. 336, 343 (1999). Whether or not to grant a preliminary injunction is a matter of discretion for the judge, see, e.g., GTE Prods. Corp. v. Stewart, 414 Mass. 721, 722 (1993), as is the scope of the relief ordered. See, e.g., Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306, 323-24 (2003), citing Commonwealth v. Adams, 416 Mass. 558, 566 (1993); Cahaly v. Benistar Prop. Exch. Trust Co.,68 Mass.App.Ct.668, 679 (2007). in its exercise of discretion, the Court is mindful that "the purpose of a preliminary injunction is ‘only to preserve the status quo while the case is under consideration.'" Petricca Constr. Co. v. Commonwealth, 37 Mass. App. Ct. 392, 399 (1994), quoting Jet-Line Servs., Inc. v. Selectmen of Stoughton, 25 Mass. App. Ct. 645, 649-50 (1988). Noncompete and nonsolicitation agreements will be enforced only if reasonable based on all of the circumstances. All Stainless, 364 Mass. at 778; New England Tree Expert Co., Inc. v. Russell, 306 Mass. 504, 510 (1940). Determination of the reasonableness of restrictive covenants requires a fact- sensitive inquiry. Novelty Bias Binding Co. v. Shevrin, 342 Mass. 714, 717 (1961); Sherman v. Pfefferkorn, 241 Mass. 468, 474 (1922). If a covenant is too broad in space, time or any other respect, it will be enforced only to the extent it is reasonable and to the extent that it is severable for the purposes ofenforcement. All Stainless, 364 Mass. at 778; Novelty Bias Binding Co., 342 Mass. at718; Cedric G. Chase Photographic Labs, Inc. v. Hennessey, 327 Mass. 137, 139 (1951). Any restraint must be consistent with the protection of the goodwill of the employer. All Stainless, 364 Mass. at 779. At this stage of the proceedings, the court cannot say that the restrictions in the Agreement in this case are unreasonable. This court preliminarily finds that Nicholas Michaels has not met its burden of establishing a likelihood of success on the merits with regard to LaRuche. While there is some evidence that LaRuche has done some notification that Robertson is now there, such general information does not rise to the level necessary to prohibit LaRuche from doing business, which it was doing prior to Robertson’s arrival. With respect to Robertson, the court preliminarily finds that Nicholas Michaels has demonstrated that Robertson breached the Agreement by opening up a competing business within the ten mile radius. With respect to solicitation, the facts presented are mixed at this stage. There is some evidence that Robertson has communicated with customers, she may have sent announcements, notified customers through social media, and directly informed certain customers of her new business. What is not clear is who the customers are, how they came to be Robertson’s clients or Nicholas Michaels’ clients, and who initiated the communication once Robertson left. At this stage, the record suggests some violation of the non-solicitation covenant at least as to some customers.However, in the business Robertson and Nicholas Michaels provide, the dilemma is that the customer develops a relationship with a particular stylist and any goodwill generated is shared between employee and employer. There is no doubt that some of the goodwill Nicholas Michaels has with the clients who were serviced by Robertson belongs to Robertson personally. Therefore, the customers also have an interest in retaining Robertson’s services, or at least having the option to do so. It would be inequitable to grant relief to Nicholas Michaels that has the result of penalizing the interests of those customers. Finally, as to the question of harm, "[i]n the context of a preliminary injunction the only rights which may be irreparably lost are those not capable of vindication by a final judgment, rendered either at law or in equity." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 617 n.11. "[DJamage to client relationships and customer goodwill has been held to be ‘irreparable harm' under Massachusetts law," Bear, Stearns & Co., Inc. v. Sharon, 550 F.Sup.2d 174, 178 (D.Mass. 2008), citing All Stainless, Inc. v. Colby, 364 Mass. 773 (1974). Nicholas Michaels argues that without injunctive relief it risks unquantifiable harm in the form of lost customers trust and confidence. See, e.g., North Am. Expositions Co. Ltd. Partnership v. Corcoran, 452 Mass. 852, 869-70 (2009), citing cases (good will includes company's positive reputation in eyes of its customers or potential customers and is generated by repeat business with existing customers or by referrals to potential customers). At this stage of the proceedings, Nicholas Michaels has met its burden. Having determined that the failure to issue some form of injunction wouldsubject Nichols Michaels to a substantial risk of irreparable harm, the court must weigh that risk against the risk of irreparable harm to Robertson by granting an injunction. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. at 617. While mindful of Robertson’s argument that an injunction will harm her ability to earn a living, the court cannot disregard the fact that she entered into an Agreement that restricts her from competing and non-soliciting within a ten mile radius and for a period of six months. Roberts is not prevented from working or competing generally with Nicholas Michaels. When considering all of the factors and issues involved, including the interests of third parties, Nicholas Michaels has met its burden in part and, therefore, this Court shall exercise its discretion and grant its request for a preliminary injunction, in part. ORDER For the reasons stated above, with the exception of any specific customers who have transferred their business to Robertson, this Court ALLOWS Nicholas Michaels’ motion for a preliminary injunction to the limited extent that it hereby ORDERS that: 1. Until November 30, 2017, or the final adjudication of this case, whichever comes first, Robertson is enjoined from working for any business, either as an employee or self-employed, which competes with Nicholas Michaels in the provision of services and products provided by Nicholas Michaels, within a ten (10) mile radius of Nicholas Michaels.2. Until November 30, 2017, or until the final adjudication of this case, whichever comes first, Robertson is enjoined from soliciting, directly or indirectly, any customers of Nicholas Michaels, all in accordance with the terms of the Agreement. 3. Robertson shall provide to Nicholas Michaels a list of every customer she has communicated with between May 31, 2017 to the present, who is either a present customer of Nicholas Michaels, or a former customer of Nicholas Michaels who is now doing business with Robertson, setting forth: (a) the name of the customer; (b) the date of each communication; (c) the method of communication (e.g. telephone call, social media, regular mail or email); (d) who initiated the communication; and (e) | asummary of the substance of each communication. 4. With regard to any specific customers of Nicholas Michaels who have transferred their business to Robertson, Robertson shall segregate and maintain separate accounts and records of all services and products sold or provided to any of those former Nicholas Michaels customers, and shall send to Nicholas Michaels on a monthly basis, through counsel, copies of all such accounts and records, including reports of gross revenue earned by Robertson from said customers. 5. The parties are restrained from destroying any and all documents and communications of any kind whatsoever concerning the subject matter of thelitigation, including e-mails and other electronic forms of information. In addition, the parties are ordered to take all steps necessary to preserve all such documents and communications for discovery during the course of the litigation. 6. Beyond this, Nicholas Michaels’ motion for preliminary injunction is DENIED. Dated: September 27, 2017