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Agero Administrative Service Corp. v. Campolo

United States District Court, D. Massachusetts

February 4, 2019

AGERO ADMINISTRATIVE SERVICE CORP.
v.
FRANK CAMPOLO, et al.

          ORDER

          Rya W. Zobel senior United States District Judge

         Plaintiff Agero Administrative Service Corp. (“Agero”) filed suit against Frank Campolo, its former Vice President of Sales, and Road America Motor Club, Inc. (“Road America”), Campolo's current employer. The complaint asserts several claims related to both Campolo's alleged breach of his employment agreement with plaintiff and his current employment with Road America.

         Plaintiff seeks an injunction prohibiting Campolo from working for Road America, soliciting plaintiff's customers, and using or disclosing any of plaintiff's confidential information or goodwill. Plaintiff also seeks to enjoin Road America from using plaintiff's confidential information or goodwill. The motion (Docket # 1-1) is allowed in part and denied in part.

         I. Factual Background

         Agero and Road America both contract with various companies, including insurance carriers and car manufacturers, to provide towing services and roadside assistance to consumers. Campolo began working for Agero in 2004. Thereafter, he executed an employment agreement that includes three provisions relevant to the instant dispute: (1) a confidentiality provision; (2) a customer non-solicitation provision; and (3) a non-compete provision. Docket # 1-1 at 51-56 (“Agreement”).[1] On November 30, 2018, Campolo left his position as Agero's Vice President of Sales and on, December 3, 2018, he joined Road America as its Vice President of Sales.

         II. Legal Standard

         A preliminary injunction is an extraordinary remedy granted only if the movant demonstrates “(1) a substantial likelihood of success on the merits; (2) a significant risk of irreparable harm if the injunction is withheld; (3) a favorable balance of hardships; and (4) a fit (or lack of friction) between the injunction and the public interest.” Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir. 2003). “The sine qua non of this four-part inquiry is likelihood of success on the merits.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002).

         Under Massachusetts law, [2] a restrictive covenant in an employment agreement is enforceable “only if it is necessary to protect a legitimate business interest, reasonably limited in time and space, and consonant with the public interest.” Boulanger v. Dunkin' Donuts Inc., 442 Mass. 635, 639 (2004) (collecting cases). Legitimate business interests include the protection of confidential information, goodwill, and trade secrets. Id. at 641.

         III. Analysis

         A. Likelihood of Success

         On the merits, the core issue before the court is the enforceability of the customer non-solicitation provision and the non-compete provision. The parties do not contest the confidentiality provision.

         1. Customer Non-Solicitation Provision

During the Restricted Period, [Campolo] will not directly or indirectly solicit, divert, take away, or attempt to divert or take away, from [Agero] any of the business or patronage of any of its actual or potential customers, clients, accounts, vendors, or suppliers with whom [Campolo] had material contact with or which whom [Campolo] had access to material Confidential Information regarding, or induce or attempt to induce any such ...

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