[Cite as Medpace, Inc. v. ICON Clinical Research, L.L.C., 2023-Ohio-4552.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
MEDPACE, INC., : APPEAL NO. C-230133 TRIAL NO. A-2102208 Plaintiff-Appellee, :
: VS. O P I N I O N. :
ICON CLINICAL RESEARCH, LLC, :
DOCS GLOBAL, INC., :
CHRISTEN BELL, :
JAMIE PRUITT, :
STEPHANIE WILLIS, :
ROBERT ALEXANDER, :
DAVID CARPENTER, :
CAMERON JOHNSON, :
NARAYANA KOMARAVELLI, :
OLUBUSOLA OKUNNU, :
GRANT PIEPLES, :
SARAH STEELE, :
REGAN HITT, :
LINDSAY LUTSI, :
CHRISTINE TULISIAK, :
CORDILIA OBENG, OHIO FIRST DISTRICT COURT OF APPEALS
: and : KAYLEE C. BRILLHART,
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: December 15, 2023
Keating Muething & Klekamp PLLC, Michael L. Scheier, Jacob D. Rhode and Joseph B. Womick, for Plaintiff-Appellee,
Baker & Hostetler LLP, M. Scott McIntyre and Sean P. Ryan, for Defendants- Appellants.
2 OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} A spat between two companies over noncompete agreements with
allegations about poaching employees resulted in litigation filed by plaintiff-appellee
Medpace, Inc., seeking, among other things, a permanent injunction against
defendants-appellants, ICON Clinical Research, LLC, DOCS Global, Inc., various
adverse individual recruiters, and former Medpace employees (collectively,
“Defendants”). As the case proceeded, the trial court entered an order barring
Defendants from “hiring, soliciting, and/or recruiting Medpace Inc.’s employees”
subject to active contractual noncompete restrictions. But the court failed to comply
with any of the procedural requirements for injunctive relief under Civ.R. 65, and
Medpace did not actually request a preliminary injunction. What to do in such
circumstances? We conclude that the order, however it arose, constitutes a
preliminary injunction. On Defendants’ appeal of this order, it accordingly obliges us
to consider our appellate jurisdiction. Consistent with our recent precedent in this
area, we ultimately conclude that we lack jurisdiction over this appeal. Accordingly,
we dismiss this appeal.
I.
{¶2} Medpace hires clinical research associates and other employees who
receive proprietary training. As such, it requires its employees to sign a Proprietary
Rights Agreement (“PRA”) that includes noncompete and other restrictive covenants.
Medpace alleges that former employees breached their PRAs at the behest of ICON,
DOCS, and others, painting a scheme in which their recruiters tortiously interfered
with these contracts by soliciting Medpace employees to work for competing
3 OHIO FIRST DISTRICT COURT OF APPEALS
businesses, coaching them on how to best get out of their PRAs, and ultimately hiring
them in violation of their PRAs.
{¶3} During a March 2022 hearing, Medpace produced evidence that (it
claims) showed that, since the outset of the litigation, ICON and their recruiters
continued to solicit and recruit Medpace employees. The trial court warned defense
counsel that “I would suggest you tell your client * * * this is not an order of this Court,
but they probably should not be getting in touch with Medpace employees currently
because you’ve got this pending litigation.” But the trial court issued no order, nor did
Medpace seek injunctive relief.
{¶4} Nearly a year later, during a February 2023 status conference before the
trial court on four motions unrelated to this appeal, Medpace tendered evidence that
it claimed showed an ongoing pattern of improper solicitation of its employees,
notwithstanding the trial court’s prior admonishment. But despite these supposedly
dire consequences, Medpace did not file any motion for a temporary restraining order
or a preliminary injunction. Defendants protested that they had no opportunity to
brief the “evidence” submitted, and highlighted the impropriety of tossing allegations
like this around at a hearing without any sort of formal motion for relief.1 Yet after its
consideration of the evidence of the alleged ongoing solicitations during the pendency
of the litigation, the trial court issued an oral order that ICON, DOCS, and their named
recruiters “cease and desist contacting Medpace” until the litigation is resolved. The
trial court warned: “if it is happening, hypothetically – hypothetically speaking, it
better not happen again.”
1 We take no position on what this evidence shows or doesn’t show since we resolve this appeal on
jurisdictional grounds. 4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Two weeks after this hearing, Defendants sought reconsideration,
requesting that the trial court reconsider its oral order because it amounted to a de
facto preliminary injunction, and the court failed to follow the procedural
requirements for issuing such an injunction. But the trial court denied the motion.
{¶6} Defendants then appealed the oral order, and Medpace moved to
dismiss on the basis that oral pronouncements are not appealable. Subsequently, this
court remanded the matter to the trial court—requiring it to journalize the order—and
stayed the appeal because we had no written order to review. After our remand,
Medpace tendered a proposed order for the trial court’s consideration, and Defendants
objected and submitted a competing proposed order. Mirroring the language of
Medpace’s proposed order, the trial court entered the written order at issue.
{¶7} After Defendants appealed this order, this court requested
supplemental briefing on our jurisdiction, which both Medpace and Defendants
provided. Medpace argued that the order at issue is not a final appealable order and
asked us to dismiss the appeal for a lack of jurisdiction, whereas Defendants (pointing
to the First Amendment) assured us that jurisdiction was proper. After reviewing this
briefing, this court provisionally decided that the order appeared to be a final
appealable order but indicated that the parties could revisit the issue in their merits
briefing.
II.
{¶8} In their sole assignment of error, Defendants contest the trial court’s
order, framing it as a prior restraint on First Amendment speech and a decision
lacking reasonable notice as required by Civ.R. 65 and due process. Defendants also
criticize the trial court’s failure to consider any of the Civ.R. 65 factors or the restrictive
5 OHIO FIRST DISTRICT COURT OF APPEALS
covenant enforceability test under Raimonde v. Van Vlerah, 42 Ohio St.2d 21, 325
N.E.2d 544 (1975). A.
{¶9} But before we can assess any of this, we must consider the nature of the
trial court’s order. Defendants insist that, although the court labeled the order as a
“cease and desist order” and the Civ.R. 65 requirements for issuing a preliminary
injunction were not followed, it is tantamount to a preliminary injunction. We agree.
When something looks like a duck and quacks like a duck, it usually is a duck. Invoking
similar logic, courts have recognized that if an order functions as a preliminary
injunction, it constitutes a preliminary injunction. See, e.g., England v. 116 W. Main
LLC, 2d Dist. Miami Nos. 2023-CA-19 and 2023-CA-22, 2023-Ohio-3086, ¶ 17 (“To
determine the nature of the trial court’s order, we review the substance and effect of
the order. Although the trial court has denominated its order as a ‘status order,’ this
language is not dispositive.”). And an order functions as a preliminary injunction
when it “ ‘preserves the status quo by enjoining a defendant from performing the
challenged acts in the future.’ ” Id., quoting Heartland of Urbana OH, LLC. v.
McHugh Fuller Law Group, PLLC, 2016-Ohio-6959, 72 N.E.3d 23, ¶ 87 (2d Dist.).
{¶10} The order at issue provides, in pertinent part: “While this litigation is
pending, Defendants are hereby ordered to cease and desist hiring, soliciting, and/or
recruiting Medpace, Inc’s employees who are subject to active proprietary rights
agreements and/or restrictive covenants prohibiting employment with Medpace’s
competitors and restricted businesses.” However denominated, the order effectively
operates as a preliminary injunction—it enjoins Defendants from performing the
6 OHIO FIRST DISTRICT COURT OF APPEALS
challenged acts during the pendency of the litigation. Given these specific
circumstances, we must analyze the order as a preliminary injunction.
B.
{¶11} That threshold determination, however, begs a jurisdictional inquiry.
Appellate courts are courts of limited jurisdiction, and we must respect the constraints
imposed on our jurisdiction by the state constitution and statutes. Article IV, Section
3(B)(2) of the Ohio Constitution grants appellate courts jurisdiction to “review and
affirm, modify, or reverse * * * final orders of the courts of record inferior to the court
of appeals within the district.” If a trial court order “ ‘is not final, then an appellate
court does not have jurisdiction to review the matter, and the matter must be
dismissed.’ ” Preterm-Cleveland v. Yost, 1st Dist. Hamilton No. C-220504, 2022-
Ohio-4540, ¶ 9, appeal allowed, 169 Ohio St.3d 1457, 2023-Ohio-758, 204 N.E.3d
564, quoting Taxiputinbay, LLC v. Village of Put-In-Bay, 6th Dist. Ottawa No. OT-
20-021, 2021-Ohio-191, ¶ 7.
{¶12} Defendants—citing Natl. Socialist Party of Am. v. Skokie, 432 U.S. 43,
97 S.Ct. 2205, 53 L.Ed.2d 96 (1977)—argue that all prior restraints on First
Amendment speech constitute final appealable orders under Ohio law. In Skokie, the
United States Supreme Court considered an Illinois Supreme Court decision denying
a stay of a preliminary injunction prohibiting, in part, Nazi demonstrators from
“marching, walking or parading or otherwise displaying the swastika on or off their
person.” Id. at 43. Because the preliminary injunction deprived the Nazi Party of
protected First Amendment rights, the Court determined that Illinois must have either
“provide[d] strict procedural safeguards * * * including intermediate appellate review”
or, “[a]bsent such review, * * * allow[ed] a stay.” Id. at 44. Relying on this case,
7 OHIO FIRST DISTRICT COURT OF APPEALS
Defendants posit that any intrusion on such sacred First Amendment protections
demands immediate appellate scrutiny.
{¶13} The basic prior restraint doctrine is fairly well-established: “A prior
restraint is any law, administrative order, or judicial order that forbids protected
speech in advance.” Ostergren v. Frick, 856 Fed.Appx. 562, 568 (6th Cir.2021), citing
Schmitt v. LaRose, 933 F.3d 628, 637-638 (6th Cir.2019); Novak v. City of Parma,
932 F.3d 421, 432 (6th Cir.2019). For core political speech such as that at issue in
Skokie, the prior restraint doctrine functions in a predictable manner.
{¶14} But that robust protection sputters in cases, like this one, involving
commercial speech. “Hiring, soliciting, and/or recruiting” are “no more than
[proposals] of possible employment” and are “classic examples of commercial speech.”
Pittsburgh Press Co. v. Pittsburgh Comm. on Human Relations, 413 U.S. 376, 385, 93
S.Ct. 2553, 37 L.Ed.2d 669 (1973); see Centro De La Comunidad Hispana De Locust
Valley v. Town of Oyster Bay, 868 F.3d 104, 112 (2d Cir.2017) (“The district court
correctly concluded that, because the Ordinance restricts speech only if it constitutes
soliciting of employment, the speech targeted by the Ordinance is commercial
speech.”).
{¶15} Building on this distinction, this court has recognized that restrictions
that target commercial speech receive lesser protection than other constitutionally-
protected speech. See, e.g., City of Cincinnati v. Fourth Natl. Realty, LLC, 2023-Ohio-
1012, 214 N.E.3d 1, ¶ 22 (1st Dist.) (“And it is well-settled that commercial-speech
restrictions receive a lesser form of scrutiny, and courts ‘distinguish commercial
speech from speech at the First Amendment’s core.’ ” (quoting Florida Bar v. Went
for It, 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995))). And the Sixth Circuit
8 OHIO FIRST DISTRICT COURT OF APPEALS
recently suggested that the prior restraint doctrine does not even apply to commercial
speech. See Kenjoh Outdoor, LLC v. Marchbanks, 23 F.4th 686, 694 (6th Cir.2022)
(“If anything, we have strongly suggested that prior restraint never applies to
commercial speech.”). We need not go that far at this point, but certainly the prior
restraint doctrine is at a minimum seriously diluted in cases involving commercial
speech.
{¶16} This noncompete dispute provides a great illustration as to why. Every
run-of-the-mill tortious interference case between competing businesses would
suddenly assume constitutional magnitude. No court could stop a business from
improperly interfering with the counter-party’s employees without tripping over the
First Amendment. That is certainly not the way that garden-variety business tort cases
have been historically litigated in Ohio courts.
{¶17} Defendants protest, however, that the order is so vague that it
potentially applies to both commercial and noncommercial speech. In this vein, they
allege that the order “chills any Individual Appellant simply expressing positive views
of the Corporate Appellants or their work to a friend or loved one.” We find that view
of the order difficult to square with its text. Appreciating the full context of the order,
it does not prohibit casual conversation among friends; it applies only to efforts
“hiring, soliciting, and/or recruiting” Medpace employees subject to the
noncompetition agreements at issue in the underlying tortious interference claim.
This is pure commercial speech.
{¶18} As a fallback, Defendants insist that the prior restraint doctrine applies
to commercial speech and secures immediate appellate review, citing Connor Group
v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959. In Raney, the court
9 OHIO FIRST DISTRICT COURT OF APPEALS
concluded that a preliminary injunction constituted a prior restraint on speech (and
was thus final and appealable), even though it later deemed the speech commercial.
Id. at ¶ 1, 63. But courts have traditionally determined injunctions in defamation
claims—the underlying claim at issue in Raney—are prior restraints. See, e.g., CBS v.
Davis, 510 U.S. 1315, 1318, 114 S.Ct. 912, 127 L.Ed.2d 358 (1994) (“Subsequent civil or
criminal proceedings, rather than prior restraints, ordinarily are the appropriate
sanction for calculated defamation or other misdeeds in the First Amendment
context.”). There is no such history finding that preliminary injunctions in
prototypical commercial disputes involving noncompete agreements constitute prior
restraints.
{¶19} As we read the controlling statute, R.C. 2505.02, we see no exception
that would allow alleged prior restraints of commercial speech to bypass the statutory
requirements for appellate jurisdiction. Nor are we aware of any Ohio case that treats
the stifling of some commercial “speech” in a noncompete dispute as a prior restraint
that enjoys immediate appellate review.
{¶20} Consequently, we must proceed with the analysis governed by R.C.
2505.02(B) to determine whether the preliminary injunction at issue constitutes a
final appealable order.
C.
{¶21} Defendants first assert the order “affects a substantial right,”
ostensibly indicating that the order may be final under R.C. 2505.02(B)(2). But that
basis for finality is reserved for orders “made in a special proceeding or upon a
summary application in an action after judgment.” The order at hand was issued
10 OHIO FIRST DISTRICT COURT OF APPEALS
during a common law tort dispute (not a special proceeding), so R.C. 2505.02(B)(2) is
not applicable.
{¶22} Rather, because the order grants a provisional remedy (a preliminary
injunction, see R.C. 2505.02(A)(3)), the relevant subsection of R.C. 2505.02 at issue
is R.C. 2505.02(B)(4) which provides:
(B) An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
***
(4) An order that grants or denies a provisional remedy and to which both of
the following apply:
(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy
by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶23} A preliminary injunction “must [] satisfy both prongs of R.C.
2505.02(B)(4) to constitute a final appealable order.” Preterm-Cleveland, 1st Dist.
Hamilton No. C-220504, 2022-Ohio-4540, at ¶ 12, citing State v. Muncie, 91 Ohio
St.3d 440, 450-452, 746 N.E.2d 1092 (2001). For an order to be deemed final under
R.C. 2505.02(B)(4), “[t]he first prong requires that the order effectively determines
the action with respect to the provisional remedy and prevents a judgment in favor of
the appealing party with respect to the provisional remedy.” Id. at ¶ 13, citing R.C.
2505.02(B)(4)(a). As this court noted in Preterm-Cleveland, the Ohio Supreme Court
11 OHIO FIRST DISTRICT COURT OF APPEALS
has explained that an order satisfies the first prong if “ ‘there existed nothing further
for the trial court to decide with respect to the provisional remedy.’ ” Id. at ¶ 13,
quoting In re Special Docket No. 73958, 115 Ohio St.3d 425, 2007-Ohio-5268, 875
N.E.2d 596, ¶ 29.
{¶24} Here, the trial court expressly reserved the right to amend the order as
discovery progresses and upon the presentation of evidence at trial. But “a trial court
generally retains the ability to revisit interlocutory rulings.” Id. at ¶ 14. And like the
trial court in Preterm-Cleveland, the trial court here “gave no indication that its
decision was tentative or contingent in any manner.” Id. Far from it—it entered the
order after we indicated that the court needed to memorialize a written order so that
we could properly assess jurisdiction. Accordingly, we conclude that the order at hand
satisfies this requirement, so we proceed to the next prong of the R.C. 2505.02(B)(4)
analysis.
{¶25} “To satisfy the second prong of R.C. 2505.02(B)(4), the appealing party
must show that, if it cannot appeal now, it will be deprived of ‘a meaningful or effective
remedy’ if it must await ‘an appeal following final judgment as to all proceedings.’ ”
Id. at ¶ 15, quoting R.C. 2505.02(B)(4)(b). While there are different strands of Ohio
caselaw that address this requirement, Defendants first focus their argument on the
line of cases illustrating the “unringing” of the bell concept. See id. at ¶ 17.
{¶26} Courts have recognized that an order may be final and appealable if “the
proverbial bell cannot be unrung.” Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092.
But Ohio courts have generally limited this inquiry to “situations that would
irreparably change the party’s position between provisional remedy and final
judgment.” Preterm-Cleveland, 1st Dist. Hamilton No. C-220504, 2022-Ohio-4540,
12 OHIO FIRST DISTRICT COURT OF APPEALS
at ¶ 24. These cases tend to involve “information which, once disclosed would be
‘irretrievably lost,’ ” id., quoting Cleveland Clinic Found. v. Levin, 120 Ohio St.3d 1210,
2008-Ohio-6197, 898 N.E.2d 589, ¶ 13, or “ ‘particularly severe’ interferences with an
individual’s liberty interest,” id., quoting Muncie at 452. Ohio courts have found this
inquiry to be applicable in cases involving the divulgence of confidential or privileged
information, Cleveland Clinic Found., the forced administration of medication,
Muncie, and cases implicating the right against double jeopardy, State v. Anderson,
138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 53-59.
{¶27} Defendants’ alleged harm falls outside the scope of this inquiry. While
they insist that the trial court’s order prevents people from seeking greener
employment pastures elsewhere, the individuals at hand all signed noncompetition
agreements and any restriction on their ability to consider other employment is
temporary in nature. Nothing irretrievable will be lost, nor will anything irreversible
transpire. Yes, if the preliminary injunction is ultimately reversed, certain parties will
be negatively impacted during the period between the preliminary injunction and
appellate vindication. But this is the case with any preliminary injunction (which is
exactly why courts impose bond requirements). Therefore, this strand of Ohio caselaw
does not provide a pathway to immediate appellate review.
{¶28} Turning to a second strand of Ohio caselaw, Defendants argue that they
will be deprived of a meaningful or effective remedy because the preliminary
injunction alters the status quo. Ohio courts have found that “ ‘a preliminary
injunction which acts to maintain the status quo pending a ruling on the merits is not
a final appealable order under R.C. 2505.02.’ ” Preterm-Cleveland at ¶ 21, quoting
Quinlivan v. H.E.A.T. Total Facility Solutions, Inc., 6th Dist. Lucas No. L-10-1058,
13 OHIO FIRST DISTRICT COURT OF APPEALS
2010-Ohio-1603, ¶ 5. “In the context of preliminary injunctions, various Ohio
appellate districts have defined ‘status quo’ as the ‘last, actual, peaceable, uncontested
status which preceded the pending controversy.’ ” Id., quoting Taxiputinbay, 6th Dist.
Ottawa No. OT-20-021, 2021-Ohio-191, at ¶ 17. Generally, Ohio courts do not permit
appellate review of preliminary injunctions preserving the status quo because “the
aggrieved party will have an opportunity to obtain its ‘meaningful or effective remedy’
if a permanent injunction is issued.” Id. at ¶ 22.
{¶29} An order maintaining the status quo returns the parties to their last
legally uncontested status. Here, Medpace claims that Defendants are tortiously
interfering with its contractual and business relationships by coaching its employees
on how to breach their contractual obligations to Medpace (among other things).
Therefore, the order returns the parties to the status quo by preventing Defendants
from “hiring, soliciting, and/or recruiting Medpace Inc.’s employees” subject to active
noncompete obligations. The trial court likewise described its order as “intended to
maintain the status quo among the parties during the pendency of this litigation.”
Although the trial court’s label is not dispositive, we agree that the function of this
preliminary injunction is to maintain the status quo, which further militates against a
conclusion that the order is final and appealable.
{¶30} Defendants also assert that because the order at issue is “broader” than
the permanent injunction Medpace seeks, they would not have a meaningful and
effective remedy following final judgment. Generally, Ohio courts “hold that the
second prong of R.C. 2505.02(B)(4) cannot be met when the provisional remedy is a
preliminary injunction and the ultimate relief sought in the lawsuit is a permanent
injunction.’ ” Preterm-Cleveland, 1st Dist. Hamilton No. C-220504, 2022-Ohio-4540,
14 OHIO FIRST DISTRICT COURT OF APPEALS
at ¶ 18, quoting Clean Energy Future, LLC v. Clean Energy Future-Lordstown, LLC,
11th Dist. Trumbull No. 2017-T-0110, 2017-Ohio-9350, ¶ 7. Here, while the trial court
granted a preliminary injunction enjoining Defendants from “hiring, soliciting, and/or
recruiting Medpace, Inc.’s employees who are subject to active proprietary rights
agreements and/or restrictive covenants,” Medpace ultimately seeks relief in the form
of a permanent injunction enjoining Defendants from “violating the restrictive
covenants contained in the Agreements and/or interfering with the contractual
obligations of the Former Employees and any other Medpace employees” and from
“further tortiously interfering with Medpace’s contractual or business relationships.”
And in its complaint, Medpace defines the tortious interference as “employing, * * *
solicit[ing], and recruit[ing]” Medpace employees subject to restrictive covenants. As
we see it, Medpace’s permanent injunction request seeks to enjoin the same acts as the
preliminary injunction. Consequently, the ultimate form of relief sought by Medpace
indicates that the order is not suitable for our immediate review.
{¶31} Defendants argue, and this court may ultimately agree, that the trial
court failed to meet the procedural requirements of Civ.R. 65 by attempting to disguise
a preliminary injunction as a cease-and-desist order. Nearly every time a party seeks
to appeal, they are convinced that the trial court committed a serious error. But any
purported disregard for the proper procedure for issuing a preliminary injunction does
not expand this court’s jurisdiction beyond its constitutional and statutory
boundaries.
{¶32} In this case, the trial court issued a preliminary injunction to preserve
the contractual rights of the party who argued that its rights were infringed upon
during the pendency of the litigation. Upon a decision on the permanent injunction,
15 OHIO FIRST DISTRICT COURT OF APPEALS
any aggrieved party will enjoy the right to appeal, and Defendants fail to demonstrate
that they will be deprived of a meaningful or effective remedy if they cannot appeal
now. As such, we agree the order at issue is not a final appealable order.
{¶33} Accordingly, we hold that the trial court’s order does not satisfy the
requirements of a final appealable order under R.C. 2505.02(B)(4).
* * *
{¶34} We can certainly understand Defendants’ frustration with this result—
they simply want this case decided on the merits. That day will have to wait, much like
we recognized in Preterm-Cleveland. For better or worse, we cannot expand our
jurisdiction simply to accommodate the desires of a particular party, regardless of the
fairness of the litigation obstacles erected in their path. Therefore, in light of the
foregoing analysis, we must dismiss this appeal for a lack of a final appealable order.
Appeal dismissed. CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.