MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Katch, LLC’s (“Katch”) Motion for Preliminary Injunction and Expedited Discovery (“Motion”) [Doc. No. 5]. For the reasons stated below, Katch’s Motion is denied.
I. BACKGROUND
A. Katch, Its Business, and the Controversy Regarding “Confidential Information”
Katch is a California limited liability company primarily based out of Califor
Katch assists advertisers in placing their ads by employing a software platform (“Katch Platform”) that offers “bid control, analytics, testing, integration, workflow, and customization features for both advertisers and publishers.” (Id. at ¶ 7.) The Katch Platform uses an algorithm to tailor which ads are shown to which consumers on the publisher’s website based on basic data provided by a consumer visiting the publisher’s website and data about various advertisers’ insurance products. (See id. at ¶¶ 13-14.) The Katch Platform is periodically “adjusted and tweaked” by certain Katch employees including, until recently, Defendant Jeff Sweetser (“Sweetser”) “based on real-time performance data and confidential and trade secret information .... ” (Id. at ¶ 13.)
How many consumers delivered to an advertiser through ads on a particular publisher’s webpages actually become insurance customers (“Conversion Data”) is tracked by Katch. (Id. at ¶ 15.) Katch then uses this Conversion Data to determine the most efficient and productive publishers (referred to as “Quality Publishers”). (Id.) Knowing which publishers are Quality Publishers, according to Katch’s Platform, is important to how Katch profits from its position between advertisers and publishers.
Advertisers submit bids to Katch for their ads to be placed on publisher’s websites using the Katch Platform. (See id. at ¶ 11.) These bids are usually expressed on a “per click” basis, meaning the advertiser only pays when an individual actually clicks on, or interacts with, the ad.
(A) How much Katch has offered in the past for the opportunity to display advertisements on a publisher’s website;
(B) Who the preferred, quality publishers are, based on their track record and the value delivered to advertisers and Katch;
(C) Which publishers have the capacity to handle a certain volume of ads;
(D) Which publishers are particularly vulnerable to price competition; and
(E) What the advertisers are willing and have been willing to pay based on Conversion Data.
(Compl. at ¶ 20.) In supplemental documentation,
Katch claims to have expended millions of dollars and considerable amounts of time and resources developing the Confidential Information. (Compl. at ¶ 28.) As a result, “Katch has undertaken consistent efforts to maintain the secrecy of’ the Confidential Information. (Id. at ¶ 29.) For instance, Katch requires its publishers to sign confidentiality agreements stating they will not disclose Katch’s prices to third parties. (Ex. 1 to the Second Supplemental Declaration of Patrick Cross (“Publisher Agreement”) at 3 [Doc. No. 30-1].
According to Katch, if a competitor knew the price it paid to publishers, the competitor could “start at the finish line” and immediately win over Katch’s publishers by outbidding Katch. (See Compl. at ¶¶ 26-27.) Similarly, knowing the identity of the Quality Publishers would allow a competitor to attract more bids at higher prices from advertisers, assuming the competitor could win over those publishers. (See Declaration of Patrick Cross (“Cross Dec.”) at ¶ 10 [Doc. No. 9].) Keeping Katch’s competitive edge over its rivals by safeguarding the Confidential Information is especially important during the open enrollment periods for health insurance
B. Sweetser and MediaAlpha
Sweetser lives and works in Minnesota. (Compl. at ¶ 4.) He has worked in the online advertising industry since 2006. (Declaration of Jeff Sweetser (“Sweetser Dec.”) at ¶ 3 [Doc. No. 20].) His first job was with a firm called QuinStreet, Inc. (“QuinStreet”), which is a direct competitor of Katch. (Sweetser Dec. at ¶ 3.) During his first six years in the industry, Sweetser claims to have developed considerable knowledge and expertise about the online advertising marketplace including: “how advertisers and publishers interact ... how to develop relationships with publishers, how to find potential publishers, and how to effectively sell online advertising.” (Id. at ¶ 5.)
In 2012, Katch recruited Sweetser and he joined the company as a Senior Manager of Business Development. (Id. at ¶ 4; Compl. at ¶¶ 30-31.) He was later promoted to Senior Director of Business Development. (Sweetser Dec. at ¶ 4; see Compl. at ¶ 31.) Sweetser’s job at Katch “was to use his intimate knowledge of Katch’s [Confidential Information] to run the publisher side of the health insurance vertical .... ” (Compl. at ¶ 31.)
As a condition of his employment with Katch, Sweetser signed an Employee Proprietary Information and Inventions Agreement (“Confidentiality Agreement”). (See Compl. at ¶ 29; Confidentiality Agreement.) The Confidentiality Agreement requires that Sweetser not disclose or use any of Katch’s Proprietary Information after his employment ends. (Confidentiality Agreement at 1.) “Proprietary Information” is defined, in relevant part, as “all confidential and/or proprietary knowledge, data, or information of [Katch] ... in-elude[ing] ... trade secrets ... and (b) information regarding ... prices and costs, suppliers and customers .... ” (Id.) Importantly, Sweetser did not sign any sort of non-compete or non-solicitation agreement.
In mid-September 2015, Sweetser informed Katch of his intention to leave the company later that month and go to work for MediaAlpha, LLC (“MediaAlpha”). Sweetser would hold a similar, if not identical, position at MediaAlpha. (Compl. at ¶ 35.) MediaAlpha is a direct competitor of Katch for online advertising in the health insurance vertical. (Id. at ¶¶ 37, 39, 41.) Previously, in 2014, MediaAlpha hired away two other Katch executives, Keith Cramer (“Cramer”)
After Sweetser announced his departure, Katch attempted to convince him to stay. First, Sweetser claims Katch offered him “a substantial bonus” if he would sign
Both Sweetser and MediaAlpha acknowledge he is bound by the Confidentiality Agreement and may not disclose or use Katch’s confidential or trade secret information. (Sweetser Dec. at ¶¶ 13, 17; Cramer Dec. at ¶ 7; Declaration of Steve Yi (‘Yi Dec.”) at ¶¶ 2-3 [Doc. No. 22].) MediaAlpha has specifically forbidden Sweetser from using such information during his employment.
Katch disputes this characterization of the difference between Katch’s and Me-diaAlpha’s Platforms. (See Second Supplemental Declaration of Patrick Cross (“Second Supp. Cross Dec.”) [Doc. No. 30].) Specifically, it alleges MediaAlpha “ultimately controls the transaction [between advertisers and publishers] and receives a portion of the payment,” just as Katch does. (Second Supp. Cross Dec. at ¶ 5.) “MediaAlpha’s publishers do not know what advertisers pay, and advertisers do not know what publishers are paid. That is the same as Katch’s platform. There is no meaningful difference.” (Id. at ¶ 4.) Thus, Katch contends the Confidential Information is extremely valuable to MediaAlpha as it would allow MediaAlpha to out-bid Katch, acquire better publishers, and divert advertisers. (See Compl. at ¶¶ 26-27, 50; Cross Dec. at ¶¶ 5, 10.)
C. Procedural Background
Based on the aforementioned facts, Katch brought suit against Sweetser alleging breach of contract, and threatened misappropriation of trade secrets, (Compl. at ¶¶ 46-69). Katch filed its Motion shortly thereafter. Katch asks Sweetser be enjoined from:
1. For a period of One Hundred and Twenty (120) days, performing for MediaAlpha, LLC (“MediaAlpha”)the same or similar services he provided for Katch in the health insurance, life insurance and Medicare vertical;
2. Using, communicating, disclosing, divulging or furnishing Katch’s Margin Information, to any person, firm, corporation, association, or other entity for any reason or purpose;
3. Communicating, disclosing, divulging or furnishing any of Katch’s confidential and proprietary information or trade secrets, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever so long as the information retains its confidentiality and value; and
4. Interfering with Katch’s current prospective business relations.
(Motion at 1.) Katch further asks that Sweetser be required to:
1. For a period of One Hundred and Twenty (120) days, cease employment with MediaAlpha in any capacity that is the same or similar capacity as his employment with Katch, specifically for the health insurance, life insurance and Medicare vertical; and
2. Preserve all documents and data of any nature whatsoever, including but not limited to electronic documents, electronic mail, and corporate documents of or relating to Katch, and prohibiting Sweetser from destroying any documents or data of any nature whatsoever during the pendency of this action.
(Id. at 2.) Lastly, Katch asks the Court to allow expedited discovery “without the need to engage in the meet and confer process under Rule 26 of the Federal Rules of Civil Procedure.” (Id.)
Katch filed a brief in support of its Motion. (Plaintiffs Memorandum of Law in Support of Its Motion for a Preliminary Injunction (“Memo.”) [Doc. No. 7].) Sweet-ser filed a brief in opposition, (Defendant’s Memorandum of Law in Opposition to Plaintiffs Motion for a Temporary Injunction (“Resp.”) [Doc. No. 19].), and Katch duly submitted a reply, (Plaintiffs Reply Memorandum of Law (“Reply”) [Doc. No. 29].) A hearing on the Motion was held on October 29, 2015. In essence, Katch claims that Sweetser, in his new position with MediaAlpha, will inevitably disclose Katch’s Confidential Information in violation of the Confidentiality Agreement and the Minnesota Uniform Trade Secrets Act (“MUTSA”). (See Compl. at ¶¶ 46-69; see generally Memo.; Reply.) Importantly, Katch does not allege that Sweetser took any confidential documents or materials, only that he knows the Confidential Information by virtue of having worked with it regularly. (See Compl. at ¶¶ 13, 31; Cross Dec. at ¶¶ 3, 6; Supp. Cross Dec. at ¶¶ 2-4, 11.) Nor does Katch claim any disclosure of the Confidential Information has actually occurred, only that disclosure of the Confidential Information is inevitable because of Sweetser’s knowledge and his pending position with MediaAlpha.
II. DISCUSSION
A. Legal Standard for Preliminary Injunctions
Preliminary injunctions are intended to prevent irreparable harm and preserve the status quo during the pen-dency of litigation. Kansas City S. Transp. Co. v. Teamsters Local Union #41,
B. Likelihood of Success on the Merits
An injunction cannot issue if there is little or no chance of success on the merits. Mid-Am. Real Estate Co. v. Iowa Realty Co.,
1. Choice of law provision in the Confidentiality Agreement
As an initial matter, the Court must address a choice of law provision in the Confidentiality Agreement between Sweet-ser and Katch. That provision reads:
This Agreement will be governed by and construed according to the laws of the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents. [Sweetser] hereby expressly consents] to the personal jurisdiction of the state and federal courts located in Los Ange-les, California for any lawsuit filed there against [him] by [Katch] arising from or related to this Agreement.
(Confidentiality Agreement at 4.) The parties agree that pursuant to this provision, California law governs Katch’s breach of contract claim against Sweetser. However, Sweetser argues that this choice of law provision also means that California law governs any trade secrets claim Katch might assert against him. (Resp. at 14-16.) Katch, however, claims that Sweetser owes it independent tort duties under the MUT-SA and this “narrow” choice of law provision does not govern its statutory trade secrets claim. (Reply at 7-11.) Whether California or Minnesota law applies to Katch’s trade secrets claim is important because California categorically rejects the “inevitable disclosure” doctrine on which that claim is based. See Whyte v. Schlage Lock Co.,
A federal court sitting in diversity employs the choice of law principles of the forum state when deciding whether a contractual choice of law provision applies. Florida State Bd. of Admin. v. Law Eng’g
Where a plaintiffs tort claims are closely related to the interpretation of the contract and fall within the ambit of the express agreement, those tort claims are also properly subject to the contract’s choice of law clause. In other words, under Minnesota law, if analysis of the claims connected to a contract involves interpretation of the contract, then the forum will apply the contractual choice-of-law provisions to the tort claims.
Superior Edge, Inc. v. Monsanto Co.,
Where a choice of law provision is broadly worded to include any and all claims arising out of the contract, it applies to the plaintiffs related tort claims. See Superior Edge,
The Confidentiality Agreement between Sweetser and Katch explicitly lists “trade secrets” as confidential information covered by the agreement’s terms. The Confidentiality Agreement expressly states that it is to “be governed by and construed according to” the laws of the state of California. Furthermore, it requires Sweetser to consent to personal jurisdiction in California for claims “arising from or related to this Agreement.” On these facts, there is a strong argument to be made that Kateh’s misappropriation of trade secrets claim closely relates- to the Confidentiality Agreement and requires interpretation of its terms
2. Misappropriation of trade secrets under Minnesota law
Even if Minnesota law governs Katch’s misappropriation of trade secrets claim, Katch is unlikely to succeed on the merits. Trade secrets laws are meant to be a shield to preserve the trust in confidential relationships, “not a sword to be used by employers to retain employees by the threat of rendering them substantially unemployable in the field of their experience _” E.W. Bliss Co. v. Struthers-Dunn, Inc.,
a. Trade secrets under MUTSA
Whether Katch’s Confidential Information qualifies as a trade secret is questionable. The MUTSA defines a trade secret as information that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Minn. Stat. § 325C.01, subd. 5. Information which is generally known to the public or within an industry, or is readily ascertainable, is not a trade secret. Lexis-Nexis,
Katch argues its Confidential Information qualifies as a trade secret because it is not generally known or ascertainable, has independent economic value from its secrecy, and because Katch has made reasonable efforts to maintain that secrecy. (See Memo. at 11-15.) The Court does not see this issue to be so clear-cut. For instance, the identity of publishers appears to be readily known or ascertainable within the online advertising industry. (See Sweetser Dec. at ¶¶ 6, 18 (describing his accumulation of knowledge about which publishers work with Katch, MediaAlpha, and other competitors and claiming “the identity of publishers is well known to or easily ascertainable by anyone working in this space”); Cramer Dec. at ¶ 11 (describing knowledge of publishers that individuals like Sweetser and Cramer accumulate over their careers, as well as online tools a company can use to identify where publishers are sending their business).) Although the identity of those whom Katch considers to be Quality Publishers, as determined by the Katch Platform, may possibly be a trade secret, the general identity of these publishers, or the fact they do business with Katch, are unlikely to be considered trade secrets. Moreover, if Me-diaAlpha’s Platform allows advertisers, and not MediaAlpha, to determine who the “quality” publishers are, knowledge of Katch’s Quality Publishers is of little value.
Similarly, the amount Katch pays its publishers is of questionable independent economic value. Katch, Sweetser, and Me-diaAlpha all agree that any salesperson can simply ask a publisher what it will take to move its business from one platform to another. (Sweetser Dec. at ¶ 18; Cramer Dec. at ¶¶ 8-9; Reply at 3-4.) According to Katch, the single most important consideration for a publisher in deciding whether to move to a new platform is
Furthermore, whatever Confidential Information Sweetser knows is more than a month old. The parties dispute whether the average price paid per query to publishers changes regularly or not. (See Supp. Cross Dec. at ¶ 10 (alleging this amount changes very slowly and very little); Yi Dec. at ¶ 16 (arguing this amount changes quickly and fluctuates a significant amount); Sweetser Dec. at ¶ 17 (asserting whatever information he knows about Katch’s margin and pricing information is likely stale because such information changes regularly).) If this sort of information does change regularly, what Sweetser knows may already be stale, or soon become so. See Fox Sports Net N., L.L.C. v. Minnesota Twins P’ship,
Again, the Court need not decide whether the Confidential Information is in fact a trade secret under MUTSA. It is enough to note that the issues discussed above reduce Katch’s likelihood of success on the merits and thus its entitlement to preliminary injunctive relief.
b. Threatened misappropriation and the inevitable disclosure doctrine
To succeed on its misappropriation claim, Katch must also show the Confidential Information has or will be misappropriated through its improper disclosure or use. However, Katch stands little, if any, chance of establishing such disclosure, even employing the inevitable disclosure doctrine.
Minnesota Statute § 325C.02(a) allows for injunctive relief even where there is only a threat of misappropriation. See Reliastar Life Ins.,
Two cases with marked factual similarities to the matter at bar illustrate why Katch fails to establish the high probability of inevitable disclosure necessary to show a likelihood of success on the merits. The first is Honeywell, where the Court denied a preliminary injunction because a former employer failed to show a likelihood of establishing inevitable disclosure of trade secrets.
The defendant (“Stacey”) was a national account manager for Honeywell. Id. at *1. In this position, Stacey had considerable access to and knowledge of Honeywell’s commercial-distribution system, customers, and plans regarding product development and release. See id. at *1-3. Stacey was bound by an employee agreement that forbade him from misappropriating, using, or disclosing Honeywell’s “Trade Secrets, Proprietary and Confidential Information,” which the agreement defined as, “methods of doing business, customer lists, customer usages or requirements, [and] supplier information.” Id. at *4. The agreement also forbade Stacey from soliciting existing Honeywell customers or, for two years, working at a job wherein “it could be reasonably anticipated that [Stacey] would disclose Honeywell’s Trade Secrets, Proprietary and Confidential Information.” Id. at *4-5.
Stacey left his job and accepted a position with a Honeywell competitor, Nest Labs (“Nest”). Id. at *1. Nest, although considerably smaller in size, was a competitor of Honeywell. Id. at *2. Stacey’s job responsibilities at Nest included developing a commercial-distribution channel like the one at Honeywell, leading Nest’s sales team, and soliciting customers for Nest products similar to those distributed by Honeywell. Id. at *3.
Honeywell brought claims against Stacey alleging breach of contract and misappropriation of Honeywell’s trade secrets. Id. at *5. It sought an injunction barring Stacey from worldng for Nest in the portion of that company that competed with Honeywell, and from soliciting Honeywell customers, suppliers, and vendors. Id. at *1. Because there was no evidence that Stacey actually misappropriated any trade secrets, Honeywell instead argued that he would inevitably misappropriate them in the course of performing his new job. Id. at *5.
The Court clarified that “this is not a case in which a departing employee stole documents” and that whatever trade secrets Stacey “possesses in his head ... he cannot help but take with him.” Id. at *6. The Court was unpersuaded by Honeywell’s assertion that the similarity of Stacey’s responsibilities in his new job meant that he will inevitably disclose Honeywell’s trade secret information. “[M]erely possessing trade secrets and holding a comparable position with a competitor does not justify an injunction.” Id. (citing Reliastar Life Ins.,
Here, Katch offers no evidence Sweet-ser improperly acquired any of Hatch’s Confidential Information or that any disclosure of that information has occurred. Instead, it argues that because Sweetser has the Confidential Information “in his head” and his position with MediaAlpha is substantially similar to the one he held with Katch, disclosure of the Confidential Information is inevitable. The Platforms employed by MediaAlpha and Katch are different to some extent, a difference Me-diaAlpha claims makes Hatch’s Confidential Information of little use. Although Katch vehemently disputes this contention, it is enough to note that if MediaAlpha is correct about the difference, it significantly reduces the risk of inevitable disclosure and thus Katch’s likelihood of success on the merits. Even if MediaAlpha might find the Confidential Information interesting or useful, Sweetser avers he will not disclose it, and MediaAlpha states it would not use the Confidential Information.
The second factually similar case is United Products Corp. There, a roofing and siding distributor (“UPC”) appealed the district court’s refusal to enjoin a former employee (“Cederstrom”) and his new employer (“Alcoa”) from violating a non-compete agreement between UPC and Cederstrom and from violating the MUT-SA. United Products Corp.,
Cederstrom resigned from UPC and went to work as a district salesperson for Alcoa, a distributor of siding and competitor of UPC. Id. However, Alcoa carefully structured Cederstrom’s responsibilities and sales territory so they did not violate Cederstrom’s non-compete and non-solicitation agreement, and directed Ceder-strom not to use or disclose any of UPC’s confidential information. See id. at *2.
The Minnesota Court of Appeals first noted that UPC failed to provide sufficient information to classify its customer lists, pricing information, and sales strategies as trade secrets under the MUTSA. Id. at *5. The Court also found that UPC failed to demonstrate a high probability of inevitable disclosure. Id. UPC produced no evidence that Cederstrom took confidential information, or that he had disclosed anything he remembered. Id. The Court stated, “[t]he moving party may not use an injunction ‘simply to eliminate a possibility of a remote future injury, or a future invasion of rights,’ and ‘injunctions will not be issued merely to allay the fears and apprehensions or to soothe the anxieties of the parties.’ ” Id. (quoting Int’l Bus. Mach. Corp.,
Here, Sweetser is quite similar to Ced-erstrom. Sweetser alleges he does not remember precise details about much of Katch’s Confidential Information. (Sweetser Dec. at ¶ 14.) Although Katch disputes this contention, if true, it weakens Katch’s inevitable disclosure theory. Sweetser also describes how his time working at online advertising platforms other than Katch gave him insight into the online advertising platform industry and how to locate and attract publishers. (See Sweetser Dec. at ¶ 5.) Furthermore, there is no allegation that Sweetser actually took any documentation or materials, other than what he does remember from his work at Katch. MediaAlpha is also much like Alcoa in United Products Corp. It has specifically instructed Sweetser not to use or disclose any of Katch’s Confidential Information. MediaAlpha further claims that differences in the MediaAlpha Platform would make Katch’s Confidential Information of limited value, much like Alcoa’s placement of Ced-erstrom in a different sales territory decreased the likelihood he would use any of UPC’s confidential information.
Lastly, the fact that two other former Katch employees went to work for Me-diaAlpha — and no claim of misappropriation of trade secrets or breach of contract was asserted against them — suggests that. disclosure of Katch’s Confidential Information is not inevitable. See Int’l Bus. Mach. Corp.,
3. Breach of contract under California law
In what is essentially a minor modification of its inevitable disclosure argument, Katch contends Sweetser will inevitably breach the Confidentiality Agreement by working for MediaAlpha in a position similar to the one he held at Katch. (See Memo. at 20-21.) For reasons similar to those just discussed, Katch has not shown a likelihood of success on its breach of contract claim. See Honeywell,
Under California law, a claim for breach of contract consists of: (1) the existence of a' valid agreement; (2) the plaintiffs performance or excusable nonperformance; (3) the defendant’s breach; and, (4) resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman,
Here, the only contested element is whether Sweetser breached the Confidentiality Agreement. Katch does not allege that Sweetser has actually breached the Confidentiality Agreement, but instead argues such a breach “is certain” because of the position Sweetser will occupy at Me-diaAlpha. (See Memo. at 21; Compl. at ¶ 64.) The Court construes this as an argument that Sweetser, by declaring his intent to work for MediaAlpha, is anticipa-torily breaching the Confidentiality Agreement. The problem with this argument is that Sweetser has not expressly or implicitly repudiated the contract. Although Sweetser disagrees with Katch’s definition of what is protected information under the Confidentiality Agreement, he has repeatedly declared his intent to abide by the contract. (See Sweetser Dec. at ¶¶ 13-
Katch fails to establish a likelihood of success on the merits for either of its claims against Sweetser. This failure alone warrants denying its requested preliminary relief. See CPI Energy Servs., Inc. v. W. River Pumps, Inc.,
C. Irreparable Harm
To receive injunctive relief, the moving party must also show it faces a sufficient threat of irreparable harm. Bandag, Inc. v. Jack’s Tire & Oil, Inc.,
Normally, “lost profits and lost business can be readily calculated and redressed through monetary relief.” Cenveo Corp. v. S. Graphic Sys., Inc., No. 08-cv-5521 (JRT/AJB),
Katch fails to show that it faces a threat of irreparable harm sufficient to warrant injunctive relief. First, as previously explained, Katch did not establish the necessary probability of inevitable disclosure, or that Sweetser anticipatorily breached the Confidentiality Agreement. See supra Part II.B.2.b., Part II.B.3. Thus, any harm is at best speculative and cannot serve as the basis for irreparable harm. See Int’l Bus. Mach.,
Second, Katch fails to meet its burden in showing that whatever lost revenues and profits it might face are difficult to quantify such that they constitute irreparable harm. See Bison Advisors,
Third, there is some question as to whether the Confidential Information Sweetser does remember is stale or obsolete. See supra Part II.B.2.a. This fact weighs against finding irreparable harm and awarding injunctive relief. See Lexis-Nexis,
D. Balance of Harms
When considering the balance of harms, courts must weigh “the threat to each of the parties’ rights and economic interests that would result from either granting or denying the preliminary injunction.” Cenveo,
Sweetser rejects Katch’s arguments that injunctive relief here would preserve the status quo, arguing that such relief would “radically alter” Sweetser’s contractual obligations by imposing a judicially constructed non-compete. (See Resp. at 30.) Furthermore, Sweetser contends that an injunction would prevent him from exercising his right to work in his profession, with the employer of his choosing, and advance his career in the process. (See id. at 29-30.) According to Sweetser, “[t]his harm, including the message it sends to other potential litigants, vastly outweighs any harm Katch could suffer if the injunction is not granted.” (Id. at 30.)
The Court agrees with Sweetser and finds the balance of harms weighs against Katch. Katch’s requested injunctive relief essentially bars Sweetser from pursuing his career and taking a job with MediaAl-pha (possibly losing the position that was offered to him completely), or any other Katch competitor, for several months. See Honeywell,
E. Public Interest
The public has a strong interest in preserving and fostering business competition. See Lasermaster Corp. v. Sentinel Imaging, a Div. of Sentinel Bus. Sys., Inc.,
Here, the Court concludes the public interest favors denying Katch in-junctive relief. Given Katch’s lack of likelihood of success on the merits, issuing the requested injunctive relief cannot be said to prevent unfair competition. Furthermore, there is no valid business agreement to enforce through a preliminary injunction. Sweetser acknowledges that he is bound by the Confidentiality Agreement
F. Expedited Discovery
Since the Court finds that Katch is not entitled to preliminary injunctive relief, it also declines to award Katch expedited discovery in this matter. The parties will proceed under the normal Federal Rules of Civil Procedures and in accordance with the scheduling orders of this Court.
III. ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Plaintiff Katch’s Motion for Preliminary Injunction and Expedited Discovery [Doc. No. 5] is DENIED.
Notes
. Until recently, Katch was known as Vantage Media, LLC. (Compl. at ¶ 3.)
. There are other forms of bidding and factors that go into determining the bid amount. (See Compl. at ¶ 12.) However, the "per click” means of assessing Katch’s business is the primary focus of this suit.
. The Katch Platform is employed not only in placing particular ads with particular publishers based on the individual consumer, but also in determining the amount Katch pays a publisher per click. (See Compl. at ¶¶ 12-13, 15, 20, 22; Supplemental Declaration of Patrick Cross at ¶ 6 [Doc. No. 18].) Presumably, not only does Katch charge advertisers more for placement with Quality Publishers, but it also pays Quality Publishers more to retain their business.
.Sweetser argues this supplemental documentation was improper under D. Minn. L.R. 7.1(c)(3)(B) and the Court’s Scheduling Order [Doc. No. 12] because it was filed one day before his response briefing was due. (Defendant’s Memorandum in Opposition to Plaintiff's Motion for a Temporary Injunction at 2 n.3 [Doc. No. 19].) Despite this objection, Sweetser addressed the supplemental materials on their merits. (See generally id.) Hatch's filing of supplemental documentation in this fashion, without the Court’s permission, runs afoul of D. Minn. L.R. 7.1(c) and the Court’s Scheduling Order. However, this supplementation was an attempt to focus the Court’s attention on two particular pieces of information related to or derived from the confidential information described in the Complaint. (See Compl. at ¶ 20.) Despite the late supplementation, the court will consider these materials.
. The Publisher Agreement is not paginated, thus the ECF page numbers are referenced.
. The Confidentiality Agreement is not paginated, thus the ECF page numbers are referenced.
. .When asked at the hearing why Katch did not have Sweetser sign a non-compete agreement, Katch’s counsel said that because Katch is a California company, and California does not allow non-compete agreements, Katch did not think to do so.
. Katch refers to a “Keith Kramer,” (see, e.g., Compl. at ¶¶ 43-45), but it appears Mr. Cram-er’s name is spelled “Cramer” as reflected in his Declaration, (see generally, Declaration of Keith Cramer [Doc. No. 21]).
. Katch does not find these reassurances persuasive because it claims MediaAlpha’s executives have been sued for misappropriation of trade secrets in the past. (Declaration of Patrick Quigley at ¶ 3 [Doc. No. 31].) However, the Court notes that the suit Katch references was dismissed with no finding of wrongdoing. See Oversee.net v. Fareloop, LLC et. ah, Civ. No. BC4388893, order dated Jan. 21, 2011, Superior Court, Los Angeles County, California.
. At the hearing, Katch's counsel made reference to a recent incident where a particular publisher allegedly moved its business from Katch to MediaAlpha. However, no evidence was presented to support this contention, or link the move to any disclosure of Confidential Information by Sweetser.
. A claim for misappropriation requires a showing that the trade secret was acquired by “improper means.” Minn. Stat. § 325C.01, subd. 3; Cal. Civ. Code § 3426.1(b). Improper means include various illegals acts as well as “breach ... of a duty to maintain secrecy,” such as the duty created by the Confidentiality Agreement. See Minn. Stat. § 325C.01, subd. 2; Cal. Civ. Code § 3426.1(a). Thus, the Court would have to interpret the Confidentiality Agreement to determine the scope of Sweetser's duty to maintain the secrecy of Katch’s Confidential Information.
. California trade secrets law does recognize a claim for threatened misappropriation consisting of (1) a trade secret, (2) held by a defendant, (3) who intends to improperly use or disclose the trade secret. Cent. Valley Gen. Hosp. v. Smith,
. This is commonly known as the inevitable disclosure doctrine. See PepsiCo, Inc. v. Redmond,
. Notably, the Court cannot find a single instance of a moving party meeting the high probability of inevitable disclosure standard
. These facts also provide a critical point of distinction with PepsiCo, Inc, v. Redmond,
. Something Sweetser was permitted to do since he was not bound by any non-compete agreement.
. See supra Part II.B.1 (discussing the Confidentiality Agreement’s choice of law provision and its applicability to Katch’s breach of contract claim).