United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION
KATHLEEN B. BURKE UNITED STATES MAGISTRATE JUDGE.
case is before the undersigned for a report and
recommendation on Defendant Securitas Electronic
Security's (“Securitas”) motion for temporary
restraining order (“TRO Motion”) filed on April
9, 2019. Doc. 5. Plaintiff Wesley Jacobs
(“Jacobs”) filed a response on April 10, 2019,
Doc. 8, and the undersigned held a telephone conference with
counsel on April 10.
reasons explained below, the undersigned recommends that the
Court GRANT in part and DENY in part Securitas' TRO
Motion. Specifically, the undersigned recommends that the
Court GRANT the TRO Motion insofar as it seeks to restrict
Jacobs from working directly or indirectly with clients he
worked with during the last year of his employment with
Securitas or with prospective clients of Securitas that he
was assigned to solicit business from during that period. In
addition, the undersigned recommends that Jacobs be enjoined
from disclosing or utilizing proprietary information or
soliciting any employee or agent of Securitas to terminate
employment with Defendant. The undersigned recommends that
the Court DENY the TRO Motion to the extent it would prevent
Jacobs from working for Defendant's competitor,
Convergent, in any capacity.
Securitas is “a security-systems integrator and
security-monitoring provider, which sells, installs,
operates, and monitors various products, systems, and
services, including software solutions.” Doc. 4, p. 11,
¶4. On June 11, 2018, Securitas purchased a company
called Kratos,  where Jacobs had worked as an account
executive since December 2011. Doc. 1, p. 2, ¶¶6,
11. At Kratos, Jacobs was paid commissions and was given
access to customer and sales data, which allowed him to
confirm that he had been paid all commissions due. Doc. 1, p.
2, ¶10; Doc. 4, p. 17, ¶28.
Securitas purchased Kratos, Jacobs became an employee of
Securitas. In September 2018, Securitas required Jacobs to
sign a noncompetition and non-solicitation agreement
(hereinafter, “Agreement”) in order to continue
to earn commissions on his existing customers. Id.,
¶11. The Agreement reads, in pertinent part:
[E.] 3. Non-Disclosure. In exchange for the
Associate's receipt and use of the Company and/or its
Related Companies' Proprietary Information . . ., and in
consideration of the Associate's employment or continued
employment with the Company and the compensation and benefits
arising from that employment or continued employment . . .,
the Associate agrees not to directly or indirectly, either
during employment with the Company or thereafter, use or
disclose Proprietary Information to or for the benefit of any
person not authorized by the Company to receive or benefit
from such Proprietary Information.. . .
* * *
[F.] 4. Non-Competition Post-Termination. For a
period of one (1) year following the Associate's
termination from employment with the Company, . . ., the
Associate shall not, within the employee's assigned
market area, where the Company or any of its Related
Companies market, sell, install, operate, monitor, or
maintain their products, systems or services, engage in any
Competing Business Activity . . . regarding any product,
service, system, or business for which the Associate had any
responsibility during the last two (2) years of his or her
employment with the Company.
* * *
5. Non-Solicitation of Customers. If the
Associate's duties . . . involve selling . . ., then for
a period of one (1) year following the Associate's
termination of employment from the Company, . . . the
Associate shall not: (a) directly or indirectly solicit, or
assist others in soliciting business from any Restricted
Customer . . .; or(b) in any manner make, attempt to make, or
assist others in making Sales of products or services that
are in competition with the Company's products or
services to any Restricted Customer.”
Doc. 1-1, pp. 4-5.
job title at Securitas was “Strategic Accounts
Manager.” Doc. 4, p. 16, ¶23. In about October
2018 through March 15, 2019, his title changed to
“Senior Account Executive - National Financial
Sales.” Doc. 4, p. 16, ¶23. Securitas states that,
in both roles, “Jacobs was primarily responsible for
executing sales and marketing strategies to achieve sales
goals for Securitas products and services, including
supporting Securitas customers, proposing Securitas solutions
that would meet customer requirements, leading customer
discussions and negotiations to secure sales, and ensuring
successful post-sale implementation and follow-up.”
Doc. 4, pp. 16-17, ¶24. He had large accounts in the
United States and Canada assigned to him. Counsel indicated,
during the telephone conference with the Court, that
Jacobs' principal client, during the last year of his
employment with Securitas and Kratos, was JPMorgan Chase. See
also id., ¶26.
was the primary point of contact for accounts assigned to
him, and, Securitas alleges, had access to confidential and
proprietary information, including information concerning
current and potential customers, accounts, sales, costs,
suppliers, processes, and pricing. Id., ¶27.
Counsel for Securitas explained that, in addition to
Jacobs' assigned client JPMorgan Chase, Jacobs was part
of Securitas' national financial sales team, which
discussed other large financial institutions that were
prospective clients. See also Doc. 11, p. 4.
alleges that he performed the same job for Securitas that he
did for Kratos, he had the same customers, and he was not
given “any new information whatsoever since he began
his employment with Securitas, and certainly no new
‘Proprietary Information.'” Doc. 1, p. 4,
¶22. He asserts that Securitas substantially reduced his
earned commissions on his existing clients and took away
several customer accounts that he had developed when he
worked for Kratos, prior to Securitas purchasing Kratos.
Id., ¶¶24-25. As a result, Jacobs alleges,
he was left with a smaller customer base and a reduced
ability to earn commissions; he also alleges that Securitas
has engaged in a variety of acts that have caused it to
underpay or avoid paying him commissions that are due him.
Id., ¶¶25, 27-29.
March 1, 2019, Jacobs left Securitas and began working in a
similar capacity for Convergint, a competitor of Securitas.
Id., p. 5, ¶33. Counsel indicated that his work
for Convergint involves only clients located in the United
filed a Complaint alleging breach of contract and seeking
contractual remedies for Securitas' alleged failure to
pay him commissions; he also requested a judgment declaring
that the Agreement is unenforceable. Doc. 1. Securitas filed
an Answer and Verified Counterclaim (Doc. 4) and the TRO
Motion, in which it seeks to enjoin Jacobs from violating the
terms of the Agreement. Doc. 5.
purpose of a TRO under Rule 65 is to preserve the status quo
so that a reasoned resolution of a dispute may be had.”
Reid v. Hood, 2011 WL 251437, at *2, (N.D. Ohio Jan.
26, 2011) (quoting Procter & Gamble Co. v. Bankers
Trust Co., 78 F.3d 219, 227 (6th Cir. 1996)). TROs
expire “at the time after entry-not to exceed 14
days-that the court sets” unless extended by the court
for good cause or by consent of the enjoined party.
standard for issuing a TRO is the same as for a preliminary
injunction; however, the emphasis is on irreparable harm
“given that the purpose of a temporary restraining
order is to maintain the status quo.” Reid,
2011 WL 251437, at *2 (citing Motor Vehicle Bd. of Calif.
v. Fox, 434 U.S. 1345, 1347 n.2, (1977)).
determining a motion for TRO, courts consider whether the
moving party meets its burden in establishing the following
four factors: 1) whether the moving party has a strong or
substantial likelihood of success on the merits; 2) whether
the moving party will suffer irreparable harm unless
injunctive relief is granted; 3) whether the requested relief
will cause substantial harm to third parties; and 4) whether
injunctive relief is in the public interest. Northeast
Ohio Coal. for Homeless and Service Emps. Int'l Union v.
Blackwell, 467 F.3d 999 (6th Cir. 2006); Jones v.
Caruso, 569 F.3d 258, 265 (6th Cir. 2009). “These
factors are not prerequisites but are factors that are to be
balanced against each other.” Overstreet v.
Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566,
573 (6th Cir. 2002). “A preliminary injunction is an
extraordinary remedy which should be granted only if the
movant carries his or her burden of proving that the
circumstances clearly demand it.” Id. (citing
Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir.
Ohio law, a non-compete agreement is enforceable only to the
extent its terms are reasonable. Procter & Gamble Co.
v. Stoneham, 747 N.E.2d 268, 270 (Oh. Ct. App. 2000). A
non-compete is reasonable if three conditions are met: (1) it
goes no further than necessary to protect the legitimate
interests of the employer; (2) it does not impose undue
hardships on the employee; and (3) it is not injurious to the
public. FirstEnergy Solutions Corp. v. Flerick, 521
Fed. App'x 521, 525-526 (6th Cir. 2013) (citing