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Panorama Consulting Solutions, LLC v. Armitage

United States District Court, D. Colorado

July 10, 2017

PANORAMA CONSULTING SOLUTIONS, LLC, Plaintiff,
v.
RICHARD ARMITAGE, RICHARD FARRELL, BRIAN POTTS, PATRICIA G. STEELE, LIBERTY TECHNOLOGY ADVISORS, INC., Defendants.

          ORDER

          RAYMOND P. MOORE United States District Judge.

         These matters come before the Court with Plaintiff Panorama Consulting Solutions, LLC's (“plaintiff”) Ex Parte Motion for Temporary Restraining Order and Preliminary Injunction (“the PI motion”) (ECF No. 2), and Defendants Richard Farrell (“Farrell”), Brian Potts (“Potts”), and Liberty Technology Advisors, Inc. (“LTA”) (collectively “the LTA defendants”) Motion to Dissolve (“the motion to dissolve”) (ECF No. 33) the Temporary Restraining Order entered on June 9, 2017 (“the TRO”) (ECF No. 10). The LTA Defendants have also filed a response in opposition to the PI motion (ECF No. 32), which Defendant Richard Armitage (“Armitage”) has joined. (ECF No. 46.) A hearing on the PI motion and the motion to dissolve was held on July 7, 2017 (“the PI hearing”)-28 days after entry of the TRO.

         For all the reasons stated at the PI hearing, which are substantially condensed below, the PI motion and motion to dissolve are GRANTED IN PART and DENIED IN PART.

         I. Legal Standard

         A request for injunctive relief requires the movant to show: (1) irreparable harm if the injunction is not granted; (2) a substantial likelihood of success on the merits; (3) its injury outweighs possible harm to the adverse party if the injunction is granted; and (4) the injunction would not be contrary to the public interest. Thomas v. Carson, 30 F. App'x 770, 772 (10th Cir. 2002) (citing ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999)).

         II. Discussion

         Plaintiff seeks a preliminary injunction to prevent the LTA defendants and Armitage from using plaintiff's confidential information and trade secrets, and to prevent Potts, Farrell, and Armitage from breaching confidentiality, non-solicitation, and/or non-competition agreements with plaintiff.[1] (ECF No. 2 at 5.)[2]

         A. Substantial Likelihood of Success on the Merits

         In its Amended Complaint, plaintiff brings claims for (1) misappropriation of trade secrets in violation of the Defend Trade Secrets Act (“DTSA”), (2) misappropriation of trade secrets in violation of the Colorado Uniform Trade Secrets Act (“CUTSA”), (3) breach of contract, (4) tortious interference with contractual relations and prospective business relations, (5) civil conspiracy to commit tortious interference, (6) conversion, (7) civil theft, (8) breach of the duty of loyalty, (9) computer fraud in violation of 18 U.S.C. § 1030, and (10) destruction of company property. (ECF No. 43 at 15-24.)

         As explained at the PI hearing, the thrust of the evidence presented goes to the misappropriation, breach of contract, tortious interference, and civil conspiracy claims (Claims One through Five). Although evidence was presented of damaged property, as explained, that claim (Claim Ten) has no bearing on the instant analysis because there is no activity to enjoin with respect to the same. As for plaintiff's other claims (Claims Six through Nine), there was simply no evidence presented (or argument made) to support them. Therefore, the Court finds that there is not a substantial likelihood of success on the merits as to Claims Six through Nine.

         1. Potts

         The totality of the evidence introduced against Potts is that he took a box or boxes that may have contained plaintiff's confidential information, and during the length of his employment with plaintiff he acquired knowledge of plaintiff's business methods and strategies, which he may use in a new job with LTA. As explained, the highly speculative nature of (i) whether Potts has taken any information and (ii) the chances of him using any acquired knowledge is simply far too short of creating a substantial likelihood of success with any of the claims against Potts. There is no evidence that Potts acquired trade secrets by improper means, that Potts had used or disclosed trade secrets, that Potts has breached any provision of his employment agreement with plaintiff, that Potts has induced anyone to breach an agreement with plaintiff, or that Potts engaged in a conspiracy with the other LTA defendants to harm plaintiff.

         As a result, with respect to Potts, the PI motion is DENIED, the motion to dissolve ...


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