Bureau Veritas Technical Assessments LLC et al. v. Blake Brosa et al.

• Court: District Court, D. Arizona
• Decided: January 14, 2026
• Docket: 2:25-cv-02339
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bureau Veritas Technical Assessments LLC, No. CV-25-02339-PHX-JJT et al., 10 ORDER Plaintiffs, 11 v. 12 Blake Brosa, et al., 13 Defendants. 14 15 At issue is Plaintiffs Bureau Veritas Technical Assessments, LLC (“BVTA”) and 16 Bureau Veritas North America, Inc. (“BVNA”) Motion for Clarification and/or 17 Reconsideration of 12/01/2025 Order [ECF 71] and Memorandum of Points and 18 Authorities (“Motion”) (Doc. 72, Mot.), to which Defendant Blake Brosa filed a court- 19 ordered Response (Doc. 76, Resp.) and Plaintiffs replied (Doc. 82, Reply). The Court finds 20 this matter appropriate for resolution without oral argument. See LRCiv 7.2(f). For the 21 reasons set forth below, the Court will grant in part and deny in part the Motion. 22 I. BACKGROUND1 23 Plaintiffs provide project management services, building assessment, and code 24 compliance for multi-site customers. (Doc. 1, Compl., ¶¶ 24–26.) Defendant began 25 working for Plaintiffs in July 2015 as their Senior Vice President of Sales. (Id. ¶ 37.) In 26 October 2021, Defendant was promoted to the Executive Vice President of Sales (Id. ¶ 38.) 27 1 The Court recounts the facts as alleged in Plaintiffs’ original Complaint and procedural 28 history that are relevant to the dismissal of claims of which Plaintiffs now seek reconsideration in their Motion. 1 As a part of his promotion, Defendant entered a Confidentiality, Non-Competition, Non- 2 Solicitation, and Assignment of Rights Agreement (“Brosa Agreement”). (Id. ¶¶ 41–48; 3 Doc. 1-2.) The Brosa Agreement contained four covenants: (1) confidentiality; (2) non- 4 competition; (3) non-solicitation; and (4) non-recruitment. In November 2024, Defendant 5 allegedly extracted several files from his work computer to a flash drive and sent customer 6 communications and documents to his personal email account. (Id. ¶¶ 68–82.) In December 7 2024, Defendant terminated his employment with Plaintiffs and began working for 8 Defendant Apex Imaging Services Incorporated as its Director of Business Development 9 for Multi-Site Retail. (Id. ¶¶ 66–67.) 10 Plaintiffs sued Defendant on the following claims at issue in the pending Motion: 11 breach of the confidentiality covenant in the Brosa Agreement (Count Three) and breach 12 of the non-solicitation and non-recruitment covenants in the Brosa Agreement (Count 13 Four). (Id. ¶¶ 133–63.) Defendant filed his Motion to Dismiss and supporting 14 memorandum (Doc. 25, MTD), to which Plaintiffs responded (Doc. 36, MTD Resp.) and 15 Defendant replied (Doc. 50, MTD Reply). In its Order dated December 1, 2025 (“Prior 16 Order”) (Doc. 71), the Court dismissed Count Three and the portion of Count Four only 17 pertaining to the non-solicitation covenant without leave to amend. Plaintiffs timely move 18 this Court to clarify or reconsider its dismissal of Counts Three and Four. 19 II. LEGAL STANDARD 20 Plaintiffs suggest that the Court should clarify its prior Order under Federal Rule of 21 Civil Procedure 60, which permits it to “correct a clerical mistake or a mistake arising from 22 oversight or omission whenever one is found in a[n] . . . order.” Fed. R. Civ. P. 60(a) (See 23 Mot. at 6.) Plaintiffs, however, principally argue that the Court erred in finding the two 24 covenants of the Brosa Agreement unenforceable, which amounts to more than a mere 25 clerical mistake, oversight, or omission. 26 Accordingly, the Court will apply the legal standard delineating its authority to 27 reconsider rulings that have not resulted in a final judgment under Rule 54(b). Sonoma Cty. 28 Ass’n of Retired Emples. v. Sonoma Cty., No. C 09-4432 CW, 2015 U.S. Dist. LEXIS 1 53081, *9 (N.D. Cal. Apr. 22, 2015). “The District of Arizona adopted Local Rule 7.2(g) 2 to implement and supplement Rule 54(b), and, thus, a litigant seeking relief under Rule 3 54(b) must comply with Local Rule 7.2(g)’s requirements.” FTC v. Noland, No. CV-20- 4 00047-PHX-DWL, 2022 U.S. Dist. LEXIS 55593, at *11 (D. Ariz. Mar. 28, 2022) (internal 5 quotation marks and citation omitted). LRCiv 7.2(g)(1) sets forth in detail the standard for 6 a motion for reconsideration:

7 The Court will ordinarily deny a motion for reconsideration of 8 an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought 9 to its attention earlier with reasonable diligence. Any such 10 motion shall point out with specificity the matters that the movant believes were overlooked or misapprehended by the 11 Court, any new matters being brought to the Court’s attention 12 for the first time and the reasons they were not presented earlier, and any specific modifications being sought in the 13 Court’s Order. No motion for reconsideration of an Order may 14 repeat any oral or written argument made by the movant in support of or in opposition to the motion that resulted in the 15 Order. Failure to comply with this subsection may be grounds 16 for denial of the motion.

17 III. ANALYSIS 18 A. Count Three 19 In bringing Count Three, Plaintiffs alleged that Defendant breached Section 1(a) 20 and Section 1(e) of the Brosa Agreement. (Compl. ¶¶ 138–39.) Section 1(a) prohibits an 21 employee’s use of Plaintiffs’ confidential information, while Section 1(e) mandates the 22 return of Plaintiffs’ property, including confidential information, upon that employee’s 23 termination. In dismissing Count Three in its entirety, the Court found that Section 1(a)’s 24 definition of confidential information was unenforceable and incurable. 25 Plaintiffs argue that the Court erred when it “interpreted a clause in Section 1(a)’s 26 definition of ‘Confidential Information’ to include publicly available information.” (Mot. 27 at 9.) Section 1(a) reads, in relevant part, as follows: 28 1 . . . All documents or information, in whatever form or medium, regarding the business or affairs of the Company and 2 its affiliates . . . shall all be deemed ‘Confidential Information,’ 3 except to the extent the same shall have been lawfully and without breach of obligation made available to the general 4 public without restriction, or that Employee can prove, by 5 documentary evidence, was previously known to Employee prior to Employee’s employment . . . 6

7 (Doc. 1-2 ¶ 1(a) (emphasis omitted).) According to Plaintiffs, it was improper for the Court 8 to interpret the exclusionary clause, “except to the extent the same shall have been lawfully 9 and without breach of obligation made available to the general public without restriction,” 10 as including public information on a sua sponte basis. (Mot. at 9–10.) 11 First, the Court reached its conclusion based on the parties’ briefing on the issue, 12 not sua sponte. Defendant argued that Section 1(a) included “any and all information 13 learned during employment, whether confidential or otherwise, it would also include 14 general know-how, and other large swaths of non-confidential information no business has 15 a legitimate business interest from restricting.” (MTD at 4.) Defendant pointed the Court 16 to Orca Communs. Unlimited, Ltd. Liab. Co. v. Noder, 314 P.3d 89 (Ariz. Ct. App. 2013) 17 (“Orca I”), de-published in part on other grounds, 236 Ariz. 180 (Ariz. 2014) (“Orca II”), 18 as “directly on point and instructive.” (MTD at 5.) 19 Plaintiffs responded that Section 1(a)’s definition of confidential information was 20 properly tempered by the exclusionary clause because it excludes information that was 21 made public. (MTD Resp. at 11.) Plaintiffs distinguished Section 1(a) from the 22 confidentiality covenant in Orca I on the grounds that the latter “extended to publicly- 23 available and non-confidential information.” (Id.) Plaintiffs pointed to other case law that 24 likewise held that a confidentiality agreement cannot deem public information confidential. 25 (Id. at 12.) See Williams & Lake LLC v. Genesis Systems LLC, 2017 U.S. Dist. LEXIS 26 211434, at *29–31 (D. Ariz. Sep. 12, 2017); see also Joshua David Mellberg LLC v. Will, 27 96 F. Supp. 3d 953, 968 (D. Ariz. 2015). It is from Plaintiffs’ own arguments and both 28 1 parties’ case citations that the Court was drawn to the exclusionary clause of Section 1(a) 2 and to ask whether it properly excluded public information like Plaintiffs professed it did. 3 Second, the exclusionary clause plainly defines confidential information to exclude 4 only that which was (1) “lawfully and without breach of obligation made available to the 5 general public without restriction,” or (2) “that Employee can prove, by documentary 6 evidence, was previously known to Employee prior to Employee’s employment.” (Doc. 1- 7 2 ¶ 1(a).) The first portion of that provision is not qualified by any one person or actor, 8 while the second portion is. The selective use of a qualifier is of consequence in a contract, 9 and the lack of a qualifier within the first portion plainly means that it is not limited by who 10 makes the information public lawfully and without breach of obligation to Plaintiffs. The 11 express purpose of Section 1(a) supports this conclusion, which is to “prevent 12 dissemination of Confidential Information beyond those employees entrusted with such 13 information.” (Id. (emphasis added).) The language and intent of the confidentiality 14 covenant clearly prohibits Defendant’s use of Plaintiffs’ information that has entered the 15 public domain. First Am. Title Ins. Co. v. Johnson Bank, 372 P.3d 292, 294 (Ariz. 2016) 16 (“[Courts] construe provisions in such contracts according to their plain and ordinary 17 meaning.”); Grosvenor Holdings, L.C. v. Figueroa, 218 P.3d 1045, 1050 (Ct. App. 2009) 18 (“In order to determine what the parties intended, we first consider the plain meaning of 19 the words in the context of the contract as a whole.”). 20 Third, Plaintiffs argue that the Court erred because the exclusionary clause in 21 Section 1(a) is “ambiguous as to whether it only applies to Brosa, or to other BVTA 22 employees.” (Mot. at 9.) Plaintiffs misinterpret the Court’s Prior Order, which found that 23 the exclusionary clause could include information made public by others aside from 24 Defendant himself due to the lack of a written qualifier, discussed supra, thereby rendering 25 it overbroad under Orca I. It has not been suggested, by the parties or the Court, that the 26 Brosa Agreement applies to or is enforceable against anyone other than Defendant. There 27 is no ambiguity. 28 . . . 1 Fourth, Plaintiffs argue that the Court erred by failing to sever six words from the 2 exclusionary clause: “lawfully and without breach of obligation.” (Id. at 11.) This is the 3 first time Plaintiffs identify any particular terms that could be severed to save the covenant 4 of unreasonableness. Defendant does not disagree that severance of those six words would 5 cure the covenant. Rather, Defendant responds that “Plaintiffs could have presented this 6 targeted severance theory earlier but did not.” (Resp. at 4.) But Plaintiffs did raise the 7 general issue of severance in their responsive memorandum (MTD Resp. at 16 n.4; Reply 8 at 3), albeit without pinpointing the six words that they presently identify. Upon Plaintiffs’ 9 Motion, the Court now considers which words should be severed to bring the covenant 10 within compliance of the law—an issue that was introduced in the original motion practice 11 but not fully and completely briefed until now. The Court agrees with Plaintiffs that those 12 six words are the precise ones that offend Orca I’s proscription against restricting an 13 employee’s use of public information and severing them will render the covenant 14 reasonable. 15 Defendant’s remaining argument in his original Motion to Dismiss briefing, that 16 Section 1(a) is overbroad because it includes all information he learned during his 17 employment (MTD at 4; MTD Reply at 5–6), is unavailing because the exclusionary clause 18 now properly eliminates information made public or that which he knew prior to 19 employment from the scope of confidentiality. See Orca I, 314 P.3d. at 95 (holding that an 20 employer cannot deem all information that an employee learns through employment as 21 confidential if that information includes that which is publicly available). 22 Next, Plaintiffs argue that the confidentiality covenant, now rendered enforceable 23 by the severance of six words, does not fail for lack of temporal or geographic restrictions. 24 (MTD Resp. at 12–13; Mot. at 12.) Defendant failed to brief this issue previously and 25 presently; rather, he contends, as he did before, that the confidentiality covenant is still 26 construed as a non-compete covenant that fails for lack of limitations. (Resp. at 4.) 27 While it is true that overbroad confidentiality covenants are construed as a non- 28 compete covenant, Orca I, 314 P.3d at 95, the covenant here is no longer overbroad. 1 Therefore, Arizona case law merely requires that confidentiality covenants are reasonably 2 tailored to protect the employer’s legitimate interest in its confidential information. BioD, 3 LLC v. Amnio Tech., LLC, No. 2:13-cv-1670-HRH, 2014 U.S. Dist. LEXIS 199784, at *16 4 (D. Ariz. July 22, 2014); Orca I, 314 P.3d at 95. Under the Restatement (Second) of 5 Contracts, “[t]he extent of the restraint is a critical factor in determining its reasonableness 6 . . . What limits as to activity, geographical area, and time are appropriate in a particular 7 case depends on all the circumstances.” Section 188(d); Cornell v. Desert Fin. Credit 8 Union, 524 P.3d 1133, 1139 (Ariz. 2023) (following the Restatement). “While a true trade 9 secret is entitled to protection of indefinite duration,” the same may not be true for 10 information that is generally known and accessible to competitors. Amex Distrib. Co. v. 11 Mascari, 724 P.2d 596, 603 (Ariz. Ct. App. 1986). 12 Plaintiffs allege that the information protected by the confidentiality covenant is, at 13 least in part, a trade secret. (Compl. ¶¶ 137, 140, 141.) Assuming those allegations are 14 true—which the Court must do at the motion to dismiss stage—the confidentiality covenant 15 is not unreasonable because it lacks temporal limitations. Amex, 724 P.2d at 603. Plaintiffs 16 further allege that they conduct business on an international scale, and Defendant had 17 access to that information. (Compl. ¶¶ 11, 26, 40, 56, 102.) If true, then it is not 18 unreasonable that the confidentiality covenant is not tempered by space. At this stage, 19 Plaintiffs plead sufficient facts that the confidentiality covenant is necessary to protect their 20 legitimate interest in protecting confidential and trade secret information on a global scale, 21 and that is not outweighed by the public interest or Defendant’s hardship because the 22 covenant now properly excludes information that is public or known to Defendant prior to 23 his employment with Plaintiffs. 24 The Court hereby severs the terms “lawfully and without breach of obligation” from 25 the confidentiality covenant of the Brosa Agreement and reinstates Count Three. The Court 26 need not resolve the remaining issues raised by Plaintiffs as they relate to Section 1(e), 27 which are rendered moot by the reinstatement of Count Three. 28 . . . 1 B. Count Four 2 Finally, Plaintiffs move the Court to reconsider its dismissal of Count Four, which 3 asserted breach of the non-solicitation covenant in the Brosa Agreement. Plaintiffs argue 4 that the Court erred by failing to sever the words that Plaintiffs now identify for the first 5 time. Plaintiffs propose severing “or prospective,” “or who the Company or any affiliate 6 solicited” and “contacted, called on, serviced, or” and leave the following:

7 . . . Employee shall not directly or indirectly solicit business 8 from or interfere with, or attempt to solicit business from or interfere with, any actual customer, service provider, vendor, 9 or supplier of the Company or any affiliate of the Company 10 with whom the Company or any affiliate did business within the eighteen (18) months prior to Employee’s termination from 11 employment with the Company, and (1) who or which 12 Employee did business with, on behalf of the Company or any affiliate of the Company, during Employee’s employment with 13 the Company, or (2) about whom Employee received 14 Confidential Information (collectively, “Customers”) . . . 15 (Mot. at 13.) But even after severing the terms suggested by Plaintiffs, the covenant still 16 includes customers who “did business” but who may have ended their business with 17 Plaintiffs prior to Defendant’s termination. See Hilb, Rogal & Hamilton Co. v. McKinney, 18 946 P.2d 464, 467 (Ariz. Ct. App. 1997) (holding that a non-solicitation covenant cannot 19 prohibit solicitation of former customers). Further, the term “actual” customer does not 20 mean the customer was “current,” and the Court cannot add language to clarify that 21 Plaintiffs meant to prohibit the solicitation of only its current customers at the time of 22 Defendant’s termination. See Valley Med. Specialists v. Farber, 982 P.2d 1277, 1286 (Ariz. 23 1999). The Court could sever other language from the covenant, such as each instance of 24 “did business,” or “within the eighteen (18) months,” but doing so does not ultimately cure 25 the underlying impermissible prohibition of solicitating customers who no longer did 26 business with Plaintiffs when Defendant ended his employment. Because the non- 27 solicitation covenant is unenforceable and incurable, the Court did not err when it 28 dismissed Count Four without leave to amend. 1 IV. CONCLUSION 2 The Court will reinstate Count Three but finds no error in dismissing Count Four 3 pertaining to the non-solicitation covenant without leave to amend. The Court notes that 4 Plaintiffs have already filed their First Amended Complaint in accordance with the Prior 5 Order. (See Doc. 74, FAC.) Therein, Plaintiffs retained Counts Three and Four as originally 6 pled in their Complaint. (FAC ¶¶ 173–203.)2 7 No later than fourteen days from the date of this Order, Plaintiffs may file an amended 8 complaint that amends the First Amended Complaint. The amended complaint shall retain 9 Count Three as alleged but shall remove Count Four as it pertains to the non-solicitation 10 covenant. Plaintiffs shall file a separate Notice of Filing Amended Complaint with an 11 attached redlined copy showing the changes between the First Amended Complaint and the 12 amendment. No new claims may be added to an amendment absent leave of court pursuant 13 to Federal Rule of Civil Procedure 15 and Local Rule 15.1. 14 IT IS ORDERED granting in part and denying in part Plaintiffs’ Motion for 15 Clarification and/or Reconsideration of 12/01/2025 Order [ECF 71] and Memorandum of 16 Points and Authorities (Doc. 72.) 17 IT IS FURTHER ORDERED severing “lawfully and without breach of 18 obligation” from Section 1(a) of the Confidentiality, Non-Competition, Non-Solicitation, 19 and Assignment of Rights Agreement between Defendant Brosa and Plaintiffs (Doc. 1-2 20 ¶ 1(a)). 21 IT IS FURTHER ORDERED reinstating Count Three as alleged in Plaintiff’s 22 First Amended Complaint (Doc. 74). 23 IT IS FURTHER ORDERED that, no later than fourteen days from the date of this 24 Order, Plaintiffs may file an amended complaint. The amended complaint shall retain Count 25 Three as alleged in the First Amended Complaint but shall remove Count Four as it pertains 26 to the non-solicitation covenant. Plaintiffs shall file a separate Notice of Filing Amended 27 Complaint with an attached redlined copy showing the changes between the First Amended

28 2 Defendant Apex has since moved to dismiss other claims (see Docs. 79–80) but reinstatement of Count Three will not affect that pending motion and briefing. 1 || Complaint and the amendment. No new claims may be added to an amendment absent leave of court pursuant to Federal Rule of Civil Procedure 15 and Local Rule 15.1. 3 Dated this 14th day of January, 2026. CN

Unie States#District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-10-