Recently, in the case of BlackBerry Corp. v. Filipovich, 2021 US. Dist. Lexis 38132 (2021) the federal district court in the Middle District of Pennsylvania denied BlackBerry Corporation’s motion for a preliminary injunction against its former employee, Bradley Filipovich. The thrust of the Court’s decision was that BlackBerry could not prove that Filipovich’s new employer, Proofpoint, Inc., was a competitor. But what was more interesting was the reaction the Court had on some of the equitable evidence. 

The salient facts are that Filipovich worked as a salesman at BlackBerry for 16 months and was then recruited to sell for Proofpoint. There was no argument that Filipovich had signed an employment agreement with noncompetition and nonsolicitation clauses or that he received adequate consideration.  The case turned on the fact that Filipovich was able to convince the court that the two companies were not competitors. Consequently, the preliminary injunction motion was denied and Filipovich was able to continue his IT sales career with his new employer. 

Looking more closely at the Court’s opinion you can begin to understand the nuances that can tilt a case in an employee’s favor. According to the opinion, when he got his offer from Proofpoint, Filipovich conducted “extensive research” to ensure that the two companies were not competitors.. The Judge found Filipovich’s testimony to be credible. By contrast, the court noted that the BlackBerry witness “performed nothing other than a cursory internet search to determine if the companies competed.” 

Next, the Court criticized BlackBerry’s evidence on proving irreparable harm as being, “long on conjecture and short on proof.” The Judge reduced BlackBerry’s argument to saying that Filipovich would inevitably breach the clauses. The Court then pointed to Filipovich’s conduct before he left BlackBerry. Namely, when he resigned, he “retained no confidential information, client list, pricing or other proprietary material from BlackBerry.” 

As for Blackberry’s assertion that Filipovich was soliciting, the Court said that there was no evidence that Filipovich was actively working to steal customers. The Court considered emails Filipovich sent to clients, but determined that they related to relationships created before employment with BlackBerry.  The court was persuaded that Filipovich was hired because of his decades-long experience in sales rather than any information he had access to at BlackBerry. 

Finally, in balancing the harms the court was convinced that BlackBerry had not shown enough harm to deny Filipovich’s ability to earn a living and enjoining him from his chosen employment.

Here are the four nuanced takeaways from this restrictive covenant case: 

• The Court liked that Filipovich has done extensive research to determine whether the two companies were competitors. BlackBerry did little or no research.

• The Court liked that Filipovich took no BlackBerry materials or trade secrets with him when he left for Proofpoint.

• The Court thought that calling on long term relations that existed before Filipovich’s BlackBerry employment was acceptable.

• Lastly, the Court thought that preventing Filipovich from working in his chosen profession, where he had worked for many years, would not properly balance the harms.   

The lesson here for employers is not to simply rely on the strength of the document.  The underling facts are very important to the Judge.  The lesson for the employee is to do your research and leave the trade secrets and materials behind.  You can gain the Court’s sympathy where you properly conduct yourself as you leave your employer.