Superior Court of Massachusetts, Suffolk, Business Litigation Session
March 31, 2017
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
FOR A PRELIMINARY INJUNCTION
Kenneth W. Salinger, Justice of the Superior Court.
Industry Groups, LLC, seeks a preliminary injunction that
would enforce restrictive covenants signed by Joseph
Palmarozzo while he was working for ABM as a branch manager.
ABM provides janitorial and building maintenance services at
larger facilities and projects. It is a large,
publicly-traded company that generates roughly $5 billion in
annual revenues. Palmarozzo left ABM in December 2016 to
become the general manager at Compass Facility Services,
Inc., a much smaller company that generates around $15
million in annual revenues by providing janitorial services
at relatively small facilities. Palmarozzo overseas CFS's
operations; he has no responsibility for and no role in
sales. ABM seeks an order that would bar Palmarozzo from
working for CFS, compel Palmarozzo to comply with the
non-competition and non-solicitation covenants in his ABM
employment contract, and bar him from using or divulging any
confidential information belonging to ABM.
Court will DENY the motion for a preliminary injunction
because ABM has not proved that it will likely succeed in
proving that its non-competition agreement with Mr.
Palmarozzo is enforceable or that Palmarozzo has violated his
non-solicitation or non-disclosure agreements.
Motions for Preliminary Injunction
A preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172
L.Ed.2d 249 (2008). To the contrary, " the significant
remedy of a preliminary injunction should not be granted
unless the plaintiffs had made a clear showing of entitlement
thereto." Student No. 9 v. Board of Educ., 440
Mass. 752, 762, 802 N.E.2d 105 (2004). " Trial judges
have broad discretion to grant or deny injunctive
relief." Lightlab Imaging, Inc. v. Axsun
Technologies, Inc., 469 Mass. 181, 194, 13 N.E.3d 604
plaintiff is not entitled to preliminary injunctive relief if
it cannot prove that it is likely to succeed on the merits of
its claim. See, e.g., Fordyce v. Town of Hanover,
457 Mass. 248, 265, 929 N.E.2d 929 (2010) (vacating
preliminary injunction on this ground); Wilson v.
Commissioner of Transitional Assistance, 441 Mass. 846,
858-59, 809 N.E.2d 524 (2004) (same). Nor may a plaintiff
obtain a preliminary injunction without proving that it will
suffer irreparable harm in the absence of such an order, and
that such harm to the plaintiff from not granting the
preliminary injunction would outweigh any irreparable harm
that defendants are likely to suffer if the injunction
issues. See, e.g., American Grain Products Processing
Institute v. Department of Pub. Health, 392 Mass. 309,
326-29, 467 N.E.2d 455 (1984) (vacating preliminary
injunction on this ground); Nolan v. Police Comm'r of
Boston, 383 Mass. 625, 680, 420 N.E.2d 335 (1981)
(same). " The public interest may also be considered in
a case between private parties where the applicable
substantive law involves issues that concern public
interest[s]." Bank of New England, N.A. v. Mortgage
Corp. of New England, 30 Mass.App.Ct. 238, 246, 567
N.E.2d 961 (1991). Under Massachusetts law, " [a]
covenant not to compete contained in a contract for personal
services" is only enforceable to the extent that it is
consistent with the public interest. All Stainless, Inc.
v. Colby, 364 Mass. 773, 778, 308 N.E.2d 481 (1974).
Non-Compete and Non-Solicitation Agreements
employee's agreement not to compete with his or her
employer by soliciting away customers or potential customers
may be enforced under Massachusetts law only to the extent
necessary to protect the employer's legitimate business
interests--which include guarding against the release or use
of trade secrets or other confidential information, or other
harm to the employer's goodwill, but do not include
merely avoiding lawful competition--and to the extent it is
reasonable in scope in terms of the activities it restricts,
the geographic limitations it imposes on those activities,
and the length of time it is in effect. See New England
Canteen Service, Inc. v. Ashley, 372 Mass. 671, 673-76,
363 N.E.2d 526 (1977); All Stainless, 364 Mass. at
employer has the burden of proving that the agreement
protects legitimate business interests and thus is
enforceable. New England Canteen Service, supra, at
675; Folsom Funeral Service, Inc. v. Rodgers, 6
Mass.App.Ct. 843, 372 N.E.2d 532 (1978) (rescript).
Protection of the employer from ordinary competition . . . is
not a legitimate business interest, " however, "
and a covenant not to compete designed solely for that
purpose will not be enforced." Marine Contractors,
Inc. v. Hurley, 365 Mass. 280, 287-88, 310 N.E.2d 915
(1974); accord, e.g., Boulanger v. Dunkin' Donuts,
Inc., 442 Mass. 635, 641, 815 N.E.2d 572 (2004), cert.
denied, 544 U.S. 922, 125 S.Ct. 1662, 161 L.Ed.2d 480 (2005).
" [a]n employer may prevent his employee, upon
termination of his employment, from using, for his own
advantage or that of a rival and to the harm of his employer,
confidential information gained by him during his employment;
but he may not prevent the employee from using the skill and
general knowledge acquired or improved though his
employment." Abramson v. Blackman, 340 Mass.
714, 715-16, 166 N.E.2d 729 (1960); accord, e.g.,
Richmond Bros., Inc. v. Westinghouse Broadcasting Co.,
Inc., 357 Mass. 106, 111, 256 N.E.2d 304 (1970);
Woolley's Laundry v. Silva, 304 Mass. 383, 387,
23 N.E.2d 899 (1939). " The 'right (of an employee)
to use (his) general knowledge, experience, memory and
skill' promotes the public interest in labor mobility and
the employee's freedom to practice his profession and in
mitigating monopoly." Dynamics Research Corp. v.
Analytic Sciences Corp., 9 Mass.App.Ct. 254, 267, 400
N.E.2d 1274 (1980), quoting J.T. Healy & Son v. James
A. Murphy & Son, 357 Mass. 728, 740, 260 N.E.2d 723
(1970); accord, Club Aluminum Co. v. Young, 263
Mass. 223, 226-27, 160 N.E. 804 (1928).
contractual covenant restraining competition by a former
employee " will be enforced 'only to the extent that
is reasonable and to the extent that it is severable for the
purposes of enforcement.' " Blackwell v. E.-M.
Helides, Jr., Inc., 368 Mass. ...