A long-simmering commercial dispute between two players in the medical equipment sales business has boiled over into the controversy presently before the Court. Plaintiff, Freedom Medical Inc., is a Pennsylvania-based medical equipment sales company; Defendants are: Med One Equipment Services ("Med One"), a medical sales company; a family of corporations linked to Med One ("Corporate Affiliates"); and three individual ("Individual Defendants"), all of whom recently left the employ of Plaintiff to take new roles with Med One. The dispute arises out of allegations that the Individual Defendants misappropriated Freedom Medical's confidential and proprietary information to solicit customers for Med One; and, that Med One facilitated the misappropriation by poaching Freedom Medical's employees. On September 26, 2018, Freedom Medical filed both a Complaint and a Motion for a Temporary Restraining (TRO) and Preliminary Injunction. On October 4, 2018, the Court granted in part and denied in part the TRO. Specifically, the Court enjoined the Individual Defendants from divulging or using Freedom Medical's trade secrets, and ordered the Defendants to return any confidential or proprietary information to Freedom Medical.
Presently before the Court is Freedom Medical's Motion for Preliminary Injunction. Based upon the parties' submissions and testimony elicited at a hearing held on October 23 and 25, 2018, Plaintiff's motion will be granted in part and denied in part.
I. Background
A. Freedom Medical
Freedom Medical is in the business of renting and selling medical equipment to *515hospitals, nursing homes and other healthcare providers. Particularly important to Freedom Medical's business is the relationships it has with healthcare providers that are members of Group Purchasing Organizations ("GPO"), entities that aggregate purchasing volume among member-healthcare-providers and leverage that volume to negotiate discounts with manufacturers, distributors and other vendors. Freedom Medical is a "preferred provider" of medical equipment for three of the four largest GPOs in the nation. As a preferred provider, Freedom Medical may submit bids in response to a GPO's request for proposals; if the bids are accepted, then Freedom Medical signs an Agreement with the GPO, guaranteeing that Freedom Medical will provide goods and services to GPO members under the terms set forth in the Agreement. Such GPO Agreements contain pricing and servicing information.
To maintain an advantage in the competitive healthcare industry, Freedom Medical has developed certain information related to its business, which it contends is both confidential and proprietary, including, inter alia , pricing information, business plans and customer lists.
B. Defendants
Plaintiff brings suit against two sets of Defendants. The first group of Defendants consists of Med One, a Utah-based seller of medical equipment, and various corporate entities tied to Med One.
The second group of Defendants consists of three former employees of Freedom Medical who left to take roles at Med One, namely Gerry Whitman, Joshua Oderlin, and Jason Cavanaugh ("Individual Defendants"). All three Individual Defendants *516worked as regional branch managers at Freedom Medical before leaving to join Med One: Whitman served as regional branch manager of the Atlanta Branch Office; Oderlin served as regional branch manager of the San Diego Branch Office; and Cavanaugh served as regional branch manager of the San Francisco Branch Office. As regional branch managers, Individual Defendants had access to Freedom Medical's confidential information, including customer lists, pricing schedules, and Freedom Medical's business plans.
Defendant Cavanaugh was the first to leave Freedom Medical, resigning on February 12, 2018. On April 3, 2018, Defendant Whitman left, and, finally, on July 6, 2018, Defendant Oderlin resigned. All three were hired to be sales representatives for Med One. Both Defendant Cavanaugh and Defendant Oderlin remained in their respective territories. Defendant Whitman, however, moved territories, switching to the Florida Panhandle.
As of October 24, 2018, Defendant Cavanaugh was no longer employed at Med One. Defendant Oderlin, while still employed, was on unpaid leave pending an investigation related to this case. Defendant Whitman remains employed at Med One.
C. Procedural History
On September 26, 2018, Freedom Medical filed suit against Defendants, bringing the following claims: (1) Violation of the Defend Trade Secret Act (DTSA),
• Enjoin, temporarily, preliminarily and permanently thereafter, Cavanaugh, Whitman and Oderlin from directly or indirectly using, disclosing or retaining any confidential, proprietary or trade secret information of Freedom Medical;
• Enjoin, temporarily, preliminarily and permanently thereafter Cavanaugh, Whitman and Oderlin from soliciting, doing business with, selling to, renting to or servicing any current or prospective client, customer or account, who has been solicited or serviced by Freedom Medical or any affiliate of Freedom Medical within one (1) year prior to the termination of their employment;
• Enjoin, temporarily, preliminarily and permanently thereafter for a one (1) year period following a final order of this Court Cavanaugh, Whitman and Oderlin from working for any of the Med One Defendants, or any of their affiliated entities or any other person whether as an employee, consultant, owner, agent, or in any other capacity or manner whatsoever, for their own account or for the benefit of any person, that is engaged in any business or any service that, directly or indirectly, is in competition with, similar to or the same as the business of Freedom Medical;
• Enjoin, temporarily, preliminarily and permanently thereafter Cavanaugh, Whitman and Oderlin from soliciting any employee of Freedom Medical to leave his or her employment with Freedom Medical;
*517• Enjoining the Med One Defendants and each of their affiliated entities from continuing to employ Cavanaugh, Whitman and Oderlin in violation of the restrictive covenants contained in their employment agreements;
• Order Cavanaugh, Whitman and Oderlin to return to Freedom Medical all Freedom Medical confidential, proprietary or trade secret information and produce for inspection and analysis all their personal computers, smart phones, thumb drives and any other digital media storage devices;
• Order Cavanaugh, Whitman and Oderlin to provide Freedom Medical with a full, detailed and complete accounting of all communications each of them has had with current or prospective customers of Freedom Medical or any employee of Freedom Medical since the end of their employment with Freedom Medical;
• Order Cavanaugh, Whitman and Oderlin to provide a detailed accounting of all revenues attributable directly or indirectly to the activities of Cavanaugh, Whitman and Oderlin since they became employed by Med One.
On October 4, 2018, following a hearing, the Court granted in part and denied in part Freedom Medical's TRO. Specifically, the Court enjoined the Individual Defendants "from divulging to Defendant Med One or any other person, company, or entity or using for any purpose any trade secrets, proprietary information, or confidential information belonging to Plaintiff," and further ordered the Individual Defendants to "immediately return to Plaintiff any ...confidential or proprietary information of Plaintiff that is in their possession or control, in whatever form that information exists, including, but not limited to any physical or electronic documents and copies thereof, with the exception of documents and information pertaining to Defendants Whitman, Oderlin and Cavanaugh's personal compensation."
The Court held hearings on Freedom Medical's motion on October 23 and October 25, 2018. At the hearings, the parties elicited testimony from the following witnesses: Michael Boylan, Chief Executive Officer for Freedom Medical; Jim Acker, Senior Vice President (SVP) for Freedom Medical; Phil Henry, SVP for Freedom Medical; Eric Wenzel, Chief Financial and Operations Officer for Freedom Medical; Brad Johnson, Regional Manager for Med One; Defendant Whitman; and, Defendant Oderlin.
II. Legal Standard
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc. ,
III. Discussion
Freedom Medical moves for preliminary injunctive relief across a broad front, seeking to enjoin all Defendants for misappropriating trade secrets, enjoin the Individual Defendants for breach of contract and breach of a fiduciary duty, and enjoin Med One for tortious interference with contractual relations.
A. Misappropriation of Trade Secrets
Freedom Medical claims that all of the Defendants-Med One, the Corporate Affiliates, and each of the Individual Defendants-misappropriated its trade secrets in violation of both the DTSA and PUTSA. Accordingly, it seeks to enjoin all of the Defendants for the alleged misappropriation. The evidence, however, differs as to each of the Defendants-different Defendants are alleged to have taken different information. Therefore, an individualized determination is necessary as to whether Freedom Medical carried its burden of showing an injunction should issue. Certainteed Ceilings Corp. v. Aiken ,
1. Defendant Whitman
Freedom Medical claims that Defendant Whitman misappropriated its trade secrets, when on April 2nd, 2018-the day before he left Freedom Medical-he sent himself an email, attaching four Excel spreadsheets that contained Freedom Medical's price schedules. There is no evidence that Defendant Whitman took or used any other information that Freedom Medical considered trade secrets. Thus, the question is whether the email and the four attachments are sufficient to support an injunction against Defendant Whitman.
i. Likelihood of Success on Merits
To be entitled to an injunction against use or disclosure of confidential information, Freedom Medical must show:
(1) that the information constitutes a trade secret; (2) that it was of value to the employer and important in the conduct of his business; (3) that by reason of discovery or ownership the employer had the right to the use and enjoyment of the secret; and (4) that the secret was communicated to the defendant while employed in a position of trust and confidence under such circumstances as to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer.
SI Handling Sys., Inc. v. Heisley ,
a. Trade Secret
The first question is whether the spreadsheets containing Freedom Medical's pricing information constitutes a trade secret. "Although the DTSA and the PUTSA use different wording to define a trade secret, they essentially protect the same type of information." Teva Pharm. USA, Inc. v. Sandhu ,
Here, Freedom Medical has taken reasonable steps to keep its price schedules secret. In its Acceptable Use Policy, Freedom Medical defines pricing information as the company's confidential information and restricts the disclosure of such information. Further, Freedom Medical's employment agreements contain restrictive covenants that prohibit employees from taking or using confidential information, including price schedules, once they leave Freedom Medical.
Second, Freedom Medical also derives independent economic value from having its pricing schedules kept secret. Boylan testified that the pricing schedules are based on Freedom Medical's understanding of the healthcare-equipment market and the company's own economics. As Henry explained, the pricing schedules are valuable because they are the baseline from which Freedom Medical negotiates with healthcare providers to sell and rent medical equipment. Widespread-publication of the pricing schedules would allow competitors to undercut Freedom Medical's bids to GPO members and other healthcare equipment purchasers.
Relatedly, having access to Freedom Medical's price schedules would be of value to Med One because that information could be used to undercut Freedom Medical's offers to healthcare providers, and allow Med One to steal sales. Although Johnson testified that the prices charged by Freedom Medical were not relevant to Med One's pricing model, it is not credible to suggest that having a potential competitor's pricing would not be of some value for Med One. After all, as Wenzel testified, healthcare providers seeking to obtain movable medical equipment- whether by renting it or purchasing it-are price sensitive because the products are, in effect, fungible. Thus, knowing another provider's price would allow Med One to consistently undercut Freedom Medical's offer.
Whether price schedules are protected trade secrets, then, turns on if the pricing schedules were "readily ascertainable by proper means." Teva Pharm ,
Here, the pricing schedules are more than "pure pricing information" because they are the product of a proprietary pricing formulae derived from a "range of data relat[ed] to materials, labor, overhead, and profit margin." SI Handling ,
In addition, the compilation of Freedom Medical's pricing information into aggregated and organized pricing schedules renders the information protected trade secrets. Although Freedom Medical's customers-and thus, also its competitors-can access Freedom Medical's price information for a given product, the full compilation of pricing information is not readily obtainable from publicly available sources. As Henry testified, Freedom Medical's sales representatives would not include a full price list in a bid; rather, reps would include only the pricing information for the products relevant to the bid. And while any GPO member may access Freedom Medical's pricing information through an online portal, Wenzel testified that members do not have access to the compiled pricing information organized into readily accessible spreadsheets. Thus, the compilation of Freedom Medical's pricing information into organized schedules further supports the conclusion that the schedules are protected trade secrets.
b. Value to the Employer
The second question is whether the price schedules "[were] of value to [Freedom Medical] and important in the conduct of [its] business."
c. Right to Use and Enjoyment
The third question is whether "by reason of discovery or ownership [Freedom Medical] had the right to the use and enjoyment of the secret."
d. Misappropriation
The final question is whether "the secret was communicated to [Defendant Whitman] while employed in a position of trust and confidence under such circumstances as to make it inequitable and unjust for him to disclose it to others, or to make use of it himself, to the prejudice of his employer."
"A court may enjoin the actual or threatened misappropriation of a trade secret." Bimbo Bakeries USA, Inc. v. Botticella ,
Defendant Whitman, however, testified that he sent the email only so that he could wrap-up client work for Freedom Medical. Specifically, he explained that he used the pricing schedules to complete client work to ease the burden on his successor. He further stated that he deleted the email from his personal account within twenty-four hours-that is, before his employment with Freedom Medical officially came to an end. Finally, Defendant Whitman testified that in his current role with Med One, he has no need for the pricing schedules. Although the timing of the email is suspicious, the Court finds Defendant Whitman's testimony credible, and concludes that Freedom Medical has not carried its burden of showing actual misappropriation.
Where there is no actual misappropriation of trade secrets, "courts applying Pennsylvania law" are nevertheless "empowered to enjoin...the threatened misappropriation of trade secrets."
In sum, Freedom Medical has failed to show that it is likely to succeed on the merits of its claim for misappropriation of trade secrets against Defendant Whitman *522because Freedom Medical has failed to establish actual or threatened misappropriation. Therefore, no injunction will issue again Defendant Whitman on the misappropriation claim.
2. Defendant Cavanaugh
Freedom Medical claims that Defendant Cavanaugh misappropriated trade secrets- including GPO pricing schedules and Freedom Medical's 2017 business plan for the Southern California region-by sharing that information with Med One employees.
i. Likelihood of Success on Merits
Freedom Medical has put forth sufficient evidence to support a conclusion that it is likely to succeed on the merits of its claim against Defendant Cavanaugh.
First, for the reasons discussed above, Freedom Medical's pricing information is a protected trade secret. In addition, Freedom Medical's regional business plan is also a protected trade secret. See BIEC Int'l ,
Second, Freedom Medical's business plans and price schedules are important to its commercial success. Boylan testified that Freedom Medical's business plans are the roadmap for the company's financial success, and the pricing schedule, as the basis from which its sales teams negotiate with customers, are the tools its employees use to execute on that plan.
Third, Freedom Medical enjoys the right to use its business plans and price schedules because both are fully produced and owned by the company.
Fourth, and finally, Freedom Medical introduced evidence that Defendant Cavanaugh actually misappropriated its trade secrets. Defendant Cavanaugh, like Defendant Whitman, had a contractual duty not to disclose the secrets of Freedom Medical. BIEC Int'l ,
ii. Irreparable Harm
For an injunction to issue, Freedom Medical must also establish that it stands to suffer immediate irreparable harm, absent the issuance of preliminary relief. In the context of trade secrets, the Third Circuit has stated that "an intention to make imminent or continued use of a trade secret or to disclose it to a competitor will almost certainly show immediate irreparable harm." Campbell Soup Co. v. ConAgra, Inc. ,
Freedom Medical has failed to carry its burden of showing that Defendant Cavanaugh has "an intention to make imminent or continued use of a trade secret or to disclose it to a competitor."
3. Defendant Oderlin
The story is different as to Defendant Oderlin. Freedom Medical produced evidence that Defendant Oderlin misappropriated its trade secrets, specifically by sharing Freedom Medical's pricing schedules with employees at Med One.
*524i. Likelihood of Success on Merits
As discussed at some length above, Freedom Medical's pricing schedule "constitutes a trade secret," "was of value to [Freedom Medical] and important in the conduct of [its] business," and "by reason of discovery or ownership [Freedom Medical] had the right to the use and enjoyment of the secret." SI Handling Sys. ,
In addition, Freedom Medical established that Defendant Oderlin actually misappropriated its trade secretes by sharing Freedom Medical's pricing information with Med One employees. In one email, Defendant Oderlin sent another Med One employee a copy of Freedom Medical's agreement with a GPO that included, as an attachment, a price schedule for all of Freedom Medical's equipment. Another email, with the subject line "Competitive Pricing," shows Defendant Oderlin telling another Med One sales representative that: "Freedom is currently charging the rates below on the [GPO]," followed by a table of prices for Freedom Medical's prices. The table corresponds exactly to a Freedom Medical GPO pricing schedule that Defendant Cavanaugh had in his possession as of September 20, 2018. While Defendant Oderlin testified that he did not use Freedom Medical's price schedule and, instead, recalled those price figures from memory, such testimony is not credible. Thus, Freedom Medical has demonstrated it is likely to succeed on the merits of its misappropriation claim against Defendant Oderlin.
ii. Irreparable Harm
The evidence introduced by Freedom Medical demonstrates that Defendant Oderlin has "an intention to make imminent or continued use of a trade secret or to disclose it to a competitor." Campbell Soup,
iii. Balance of Equities
Balancing of the equities requires evaluating whether the harm done to Freedom Medical through the misappropriation of its trade secrets outweighs the potential harm done to Defendant Oderlin through the issuance of a preliminary injunction. See, e.g. , Bimbo Bakeries ,
iv. Public Interest
Finally, Freedom Medical must show that the public interest weighs in favor of issuing an injunction. In a misappropriation of trade secrets case, "there are several public interests at play."
4. Med One
Freedom Medical also seeks to enjoin Med One. The basis of Freedom Medical's argument is that Med One acquired Freedom Medical's trade secrets and "kn[ew] or ha[d] reason to know that the trade secret [s] was acquired by improper means."
Here, the evidence is sparse as to what, if anything, Med One knew about the misappropriation of Freedom Medical's trade secrets. Freedom Medical introduced emails in which Defendants Cavanaugh and Oderlin shared Freedom Medical information with Med One sales representatives. The evidence suggests that those representatives likely should have known that the information shared-specifically, Freedom Medical's business plan and contract with Tri-City Medical Center-was, at the very least, confidential.
Despite that, it is far from clear that Freedom Medical would likely prevail in a misappropriation claim against Med One. First, no evidence was produced showing that Med One knew or should have known that Defendants Oderlin or Cavanaugh misappropriated trade secrets when they were hired. Second, although some Med One employees had access to this information, Johnson, who managed the sales representatives, testified that he was not aware of that fact. Third, Boylan testified that Freedom Medical had access to competitor's GPO pricing information, which suggests possession of such information was not necessarily uncommon in the industry. The record is insufficient for the Court to draw a firm conclusion as to whether it was common practice, rather than an indication of misappropriation, to share information like that shared here.
*526And, even if the Med One representatives who received this information had constructive knowledge that it was acquired through improper means, the parties have not briefed whether Med One may be held vicariously liable for those actions. Fitzgerald v. McCutcheon ,
The parties' briefing, or lack thereof, and the sparse factual record developed is insufficient to support a conclusion that Freedom Medical is "likely to succeed on the merits" on its misappropriation claims against Med One. Winter ,
5. Med One Corporate Affiliates
For the same reasons no preliminary injunction will issue against Med One, none will issue against the Corporate Affiliates either.
B. Breach of Contract
Freedom Medical also seeks to enjoin Individual Defendants from continuing their employment with Med One on the grounds that the Individual Defendants breached the restrictive covenants contained in their Freedom Medical employment contracts.
1. Likelihood of Success on Merits
To prevail on its breach of contract claim, Freedom Medical must establish (1) the existence of a contract, including its essential terms, (2) a breach of the contract; and, (3) resultant damages. Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C. ,
i. Choice of Law
The Court must first determine what law applies to the Individual Defendants' employment contracts. A federal court sitting in diversity must apply the choice-of-law-rules of the forum state-here, Pennsylvania.
*527Hammersmith v. TIG Ins. Co. ,
Here, Pennsylvania has a substantial relationship to the parties because Freedom Medical is a Pennsylvania-based company. Select Med. Corp. v. Hardaway ,
ii. Reasonableness
Even if Pennsylvania law applies, the Court must determine if the restrictive covenants are appropriate under Pennsylvania law. Although still disfavored, restrictive covenants are permitted under Pennsylvania, if: (1) they relate to a contract for employment; (2) are supported by adequate consideration; and (3) the application of the covenant is reasonably limited in both time and territory. See Piercing Pagoda, Inc. v. Hoffner ,
Here, the restrictive covenants were incident to an employment agreement between the parties. The covenants were also supported by adequate consideration because they were based on the "employment itself." Barb-Lee Mobile Frame Co. v. Hoot ,
The issue, then, is whether the covenants' lack of a territorial limitation renders them unreasonable. Court applying Pennsylvania law "have found broad geographic restrictions reasonable so long as they are roughly consonant with the scope of the employee's duties." Victaulic Co. v. Tieman,
An employer's interest in the customer relationships developed by an employee whose contact with customers occurred at the customer's premises extends no farther than the sales territory to which the employee was assigned. Thus, a restrictive covenant designed to protect this interest is valid only insofar as it is limited to that area.
Boldt Mach. & Tools, Inc. v. Wallace ,
Here, though all three Individual Defendants were Branch Managers with Freedom Medical, the role was essentially a sales role. Moreover, each of the Individual Defendants were limited to a specific sales territory: Defendant Whitman in Georgia and parts of Alabama, namely Birmingham; Defendant Oderlin in San Diego; and, Defendant Cavanaugh in San Francisco. The restrictive covenants, however, contain no geographic limitation; the Individual Defendants are barred from working for any competitor anywhere in the nation, or, for that matter, the world. Such an expansive geographic reach is not "roughly consonant with the scope of the employee[s'] duties." Victaulic Co. ,
i. Irreparable Harm
Because Freedom Medical is likely to succeed on a limited breach of contract claim, the next question is whether Freedom Medical stands to suffer irreparable harm from the Individual Defendants' breach of the restrictive covenants. Under Pennsylvania law, "the threat of the unbridled continuation of the violation [of a restrictive covenant] and the resultant incalculable damage to the former employer's business" establishes irreparable harm. John G. Bryant Co. v. Sling Testing & Repair, Inc. ,
*529Here, the irreparable harm Freedom Medical stands to suffer differs between the three Individual Defendants. First, Defendant Whitman no longer works in the Georgia or Alabama region. Instead, his work with Med One is limited to the Florida Panhandle, a region of the country where, according to Wenzel, Freedom Medical has no customers. Thus, Defendant Whitman's employment with Med One has not caused irreparable harm to Freedom Medical. As to Defendant Cavanaugh, he is no longer employed with Med One. Because Defendants Cavanaugh is not employed by a competitor, Freedom Medical does not stand to suffer irreparable harm from the breach of his restrictive covenant. Defendant Oderlin, on the other hand, remains employed as a sales representative in the same territory in which he worked for Freedom Medical. Freedom Medical stands to suffer irreparable harm from Defendants Oderlin's continued violation of the restrictive covenant. Thus, no preliminary injunction will issue against Defendants Whitman and Cavanaugh on the breach of contract claim.
ii. Balance of Equities
To determine whether an injunction should issue against Defendant Oderlin, the Court must weigh his interests against that of Freedom Medical. As noted, Freedom Medical has an interest in enforcing the terms of its employment agreement and protecting its business from harm that will result from the breach of that agreement. Defendant Oderlin, though, has an interest in "pursuing his livelihood in the manner he chooses." Bimbo Bakeries ,
iii. Public Interest
As noted, "there is a public interest in employers being free to hire whom they please and in employees being free to work for whom they please." Bimbo Bakeries ,
In sum, then, a preliminary injunction will be granted against Defendant Oderlin to enforce the terms of the restrictive covenant, limited to the sales areas in which he worked as Freedom Medical employee. No preliminary injunction will be issued to enforce the terms of Defendant Whitman's restrictive covenant because he took active steps to avoid infringing upon that covenant. Finally, no preliminary injunction will issue on Freedom Medical's breach of contract claim against Defendant Cavanaugh because he is no longer employed, and thus no longer in breach of his restrictive covenant.
C. Tortious Interference of Contract
Freedom Medical also seeks an injunction against Med One related to the *530latter's tortious interference with Freedom Medical's employment contracts with the Individual Defendants. Regardless of whether it is likely to prevail on the merits,
Here, Freedom Medical has not put forth any evidence that it stands to suffer "immediate irreparable harm" from Med One's tortious interference. To the degree that Med One interfered with Freedom Medical's contracts by recruiting the Individual Defendants away from Freedom Medical, such conduct occurred entirely in the past. Any harm that Freedom Medical suffered, such as the Individual Defendants leaving its employment, has also already occurred. Freedom Medical has not put forth evidence that Med One is currently interfering, or immediately threatens to interfere, with Freedom Medical's employment contracts. Absent such a showing, no preliminary injunction will issue.
3. Breach of Fiduciary Duty
Finally, Freedom Medical seeks injunctive relief related to Individual Defendants' breach of their fiduciary duty to Freedom Medical. Pennsylvania law permits a limited cause of action for a breach of fiduciary duty to an employer as follows:
Pennsylvania law permits an agent or employee to "make arrangements to compete," but prohibits him from using "confidential information peculiar to his employer's business and acquired therein." Within this framework, an employee may properly inform customers of his current employer that he is leaving the employer to work elsewhere in the field, or to start his own competing business. In contrast, an employee who, while still working for her employer, makes improper use of her employer's trade secrets or confidential information, usurps a business opportunity from the employer, or, in preparing to work for a rival business, solicits customers for such rival business, may be liable for a breach of the duty of loyalty.
Bro-Tech Corp. v. Thermax, Inc.,
* * *
In conclusion, the Court will grant Freedom Medical's motion for a preliminary injunction as to Defendant Oderlin on Freedom Medical's misappropriation of trade secrets claim and breach of contract claims. The Court will deny the remainder of Freedom Medical's motion.
An appropriate order follows.
Freedom Medical defines its confidential information to include "marketing strategies, contact lists, group purchasing organization relationships, supplier relationships and agreements, internal rates of return, product pricing, product costs, customer lists, customer preferences, customer patient demographics, product rental and sales information by customer, average rental terms, inventory by product and location, rental and sales revenue, variable costs, specialized training and servicing methodologies and knowhow associated with the proprietary products and services offered by the company."
The employment contracts contain a choice-of-law clause providing that Pennsylvania law shall apply.
The Corporate Affiliates are: Med One Equipment Rental-California, L.P.; Med One Equipment Rental-Georgia, L.P.; Med One Equipment Rental - Pennsylvania; L.P Med One Capital Funding - California, L.P.; Med One Capital Funding - Georgia, L.P.; and Med One Capital Funding - Pennsylvania, L.P.
Membership in a GPO does not preclude a healthcare provider from seeking one-off deals with vendors like Med One.
On October 15, 2018, Freedom Medical also moved for an Order to Show Cause, alleging that Defendant Whitman violated the TRO by failing to return four Excel spreadsheets that he had emailed to himself on the eve of resigning. However, Freedom Medical withdrew that motion in order to submit a broader motion based on the discovery of additional evidence of non-compliance leading up to the October 23, 2018 hearing. Therefore, there is presently no motion to show cause pending before the Court.
Although Freedom Medical brought separate claims for misappropriation of trade secrets under the DTSA and PUTSA, the analysis as to the likelihood of success is the same because the DTSA and PUTSA effectively proscribe the same conduct. See, e.g. , Mickey's Linen v. Fischer ,
Without the actual schedules, it is also unlikely that Defendant Whitman could make use of the information contained therein because the spreadsheets have pricing information for hundreds of products, which would be difficult to memorize and recall.
Freedom Medical also argues that Defendant Oderlin misappropriated customer lists by sending himself an email that included the contact information from his Freedom Medical Microsoft Outlook Contacts. Freedom Medical, however, has failed to show that the contact list was a protected trade secret. Defendant Oderlin testified that upwards of "75%" of the contact information concerned his personal contacts that were unrelated to Freedom Medical. Further, Wenzel testified that Freedom Medical kept its customer information in a separate database called Zoho that was not integrated with Outlook. It is far from clear, then, that the contact list is information that Freedom Medical "derives independent economic value, actual or potential, from being kept secret." Teva Pharm. ,
Of course, the denial of a preliminary injunction does not preclude Freedom Medical from pursuing a claim against Med One once a fuller record is developed.
Wenzel testified that, as to the restrictive covenants, all three employment contracts were, in effect, identical.
Defendant Whitman does not make a similar argument as to Georgia law.
There is no need to evaluate Med One or the Corporate Affiliates interests because Freedom Medical limited its breach of contract claim to the Individual Defendants.
To prevail on a tortious interference of contract claim, the Freedom Medical must establish: "(1) a contractual relation; (2) purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of any privilege or justification on the part of the defendant; and (4) damage resulting from defendant's conduct." Gundlach v. Reinstein ,