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[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-14217 ____________________
VITAL PHARMACEUTICALS, INC., a Florida corporation d.b.a. VPX Sports/Redline/Bang Energy, Plaintiff-Appellee-Cross Appellant, versus CHRISTOPHER ALFIERI, an individual, ANDREW LAROCCA, an individual, ELEGANCE BRANDS, INC., a Delaware corporation,
Defendants-Cross Appellees, USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 2 of 34
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ADAM PERRY, an individual,
Defendant,
AMY MAROS, an individual,
Defendant-Appellant-Cross Appellee.
Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 0:20-cv-61307-AHS ____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and ANDERSON, Cir- cuit Judges. WILLIAM PRYOR, Chief Judge: This appeal and cross-appeal involve the partial grant and partial denial of a motion for a preliminary injunction to enforce several restrictive covenants against the former employees of a pro- ducer of energy drinks. One former employee argues on appeal that she should not have been enjoined. The producer argues on USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 3 of 34
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cross-appeal that the district court should have enjoined additional former employees. Many, but not all, of the restrictive covenants—and the cor- responding provisions in the preliminary injunction—have ex- pired. So, we dismiss as moot the portions of the former em- ployee’s appeal that challenge the expired provisions. We also dis- miss as moot the entire cross-appeal, which concerns only the ex- pired covenants. But we have jurisdiction over—and reach the merits of—the former employee’s appeal from the unexpired pro- visions in the preliminary injunction. And we vacate those provi- sions because the producer failed to prove its entitlement to pre- liminary relief. I. BACKGROUND Vital Pharmaceuticals, Inc., a Florida corporation, produces and sells energy-drink products under the brand name “BANG.” It views itself as a competitor of “[c]ompanies such as . . . Red Bull, Rock Star[,] and Monster Energy.” And it considers itself “a recog- nized leader in the energy drink and sports nutrition markets.” In 2019, Vital made four hires relevant here. It hired Chris- topher Alfieri as vice-president of sales and distribution. It hired Adam Perry as director of sales and distribution. It hired Andrew LaRocca as director of distribution strategy. And it hired Amy Ma- ros as senior supply chain manager. When they accepted the job offers, these individuals signed employment agreements containing three restrictive covenants. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 4 of 34
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They agreed not to work for “a [c]ompeting [c]ompany” “[d]uring the term of [their] employment with [Vital] . . . and for a period of one . . . year from [their] termination or cessation date.” They agreed not to solicit Vital employees to join a competing company, a provision that was also valid for one year from termination. And they agreed “never to disclose” or “to utilize for [their] own benefit, or for any third party’s benefit” any of Vital’s confidential infor- mation, including its product formulae and its marketing and sales information. The new hires did not remain at the company for long. Vital terminated Alfieri in March 2020 when its business plans changed. Alfieri then joined Elegance Brands, Inc., a Delaware corporation, as its chief revenue officer. Elegance principally sells alcoholic bev- erages, but in 2019 it developed a cannabidiol-infused caffeinated drink called “Gorilla Hemp.” LaRocca and Perry left Vital in May 2020 and accepted jobs with Elegance. Maros resigned from Vital effective June 17, 2020, but it appears that she began working for Elegance in early June. Vital sued Alfieri, LaRocca, Maros, Perry, and Elegance. It alleged that the individuals violated their non-compete covenants by working for Elegance within a year after leaving Vital; that Al- fieri violated the employee non-solicitation covenant by encourag- ing LaRocca, Maros, and Perry to join Elegance; and that Elegance and Alfieri engaged in tortious interference with Vital’s contractual relationships with the other former employees. Vital sought in- junctive relief and damages. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 5 of 34
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Vital then moved for a preliminary injunction. It asked the district court to enjoin its former employees from violating their non-compete covenants by working for Elegance or another com- petitor during the one-year term of those covenants, “as such pe- riod may be extended due to tolling.” It also sought to enforce Al- fieri’s employee non-solicitation covenant. And it asked that Ele- gance be enjoined from interfering with the former employees’ re- strictive covenants and from using any confidential information be- longing to Vital. Perry settled with Vital before the district court ruled on the motion. After a two-day evidentiary hearing, the district court granted the motion in part. It first determined that the restrictive covenants were valid and enforceable under Florida law. See FLA. STAT. § 542.335. Specifically, it concluded that the covenants were justified by Vital’s “legitimate business interests” in its product for- mulae, in its other confidential information, and in its customer re- lationships. See id. § 542.335(1)(b). And it rejected the argument that Vital was required to “identify specific customers” to establish a legitimate business interest in its customer relationships. The district court then concluded that Vital “ha[d] shown a substantial likelihood of succeeding on its claims against Maros . . . but not [against] Alfieri or LaRocca.” It explained that Vital had “presented . . . more than sufficient evidence . . . that Maros ha[d] breached the [agreement] she signed” because the evidence estab- lished that “Maros accepted a position at Elegance while still em- ployed [by] and collecting [a] salary from [Vital].” And it reasoned USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 6 of 34
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that it could infer a likelihood of success from the breach of the restrictive covenant. But, crediting the testimony of Elegance’s chief executive officer, the district court found that “there [was] ab- solutely no evidence that Alfieri or LaRocca took any information with them from [Vital] to Elegance” or that Elegance had seen any of Vital’s confidential information. So, Vital could not “make a prima facie showing that Alfieri or LaRocca breached their [agree- ments].” The district court also determined that Vital had satisfied the other elements necessary to secure a preliminary injunction against Maros. Under Florida law, the district court explained, Vital was entitled to a “presumption of irreparable injury” because it had proved “[t]he violation of an enforceable restrictive covenant,” id. § 542.335(1)(j), and Maros had not rebutted the presumption. The balancing of harms favored Vital because the district court was un- able to “consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.” See id. § 542.335(1)(g)(1). The public interest favored the enforcement of the restrictive covenants. And Maros’s defenses to enforcement failed. The preliminary injunction contained five operative provi- sions. First, Maros was “enjoined for a period of twelve . . . months,” “calculated from” the date Vital posted a bond, “from working for Elegance” or other competitors of Vital. Second, Ele- gance was also prohibited during the same period from employing Maros or using any of Vital’s confidential information. Third, USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 7 of 34
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Maros was “further enjoined from working for any other competi- tor” and from soliciting Vital employees “for a period of twelve[ ]months as set forth in the [employment] [a]greement,” to be “tolled until the date that Maros and Elegance c[a]me into compli- ance with the non-competition restriction of the agreement.” Fourth, although the district court had suggested in its opinion that Alfieri and LaRocca would not be enjoined, it prohibited the two men, along with Maros, from soliciting “current [Vital] energy drink customer[s] or prospective customers about whom [they] had” confidential information belonging to Vital. Finally, it stated that the three individuals “shall not use, permit to be used, disclose, or transmit for any purpose any of [Vital’s] [c]onfidential and [p]roprietary information.” Vital posted a bond on October 16, 2020. Maros timely ap- pealed the preliminary injunction against her. See 28 U.S.C. § 1292(a)(1). And Vital timely cross-appealed the partial denial of preliminary injunctive relief against Alfieri and LaRocca. See id. Vital moved to supplement the record on appeal. Vital asked this Court to take notice that “Alfieri and LaRocca were terminated [by Elegance] on October 12, 2020, and Maros was terminated on October 16, 2020.” We carried the motion with the case. In the light of this new information, we directed the parties to file supplemental briefs explaining when and whether the one- year-long provisions in the employment agreements and prelimi- nary injunction had expired. We also directed the parties to discuss whether any aspect of the appeal or cross-appeal was moot. The USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 8 of 34
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parties agreed that the two time-limited provisions in the prelimi- nary injunction had expired, and that the prohibition against using Vital’s confidential information had not expired because there was no applicable time limit. But Maros argued that her appeal was not moot. And Vital argued the same as to its cross-appeal. II. STANDARDS OF REVIEW Two standards govern our review. “We review de novo questions of our jurisdiction.” United States v. Amodeo, 916 F.3d 967, 970 (11th Cir. 2019). And we review for abuse of discretion a ruling on a motion for a preliminary injunction. See Jysk Bed’N Linen v. Dutta-Roy, 810 F.3d 767, 773 (11th Cir. 2015). “A district court abuses its discretion if it applies an incorrect legal standard . . . or makes findings of fact that are clearly erroneous.” Id. at 773– 74 (internal quotation marks omitted). III. DISCUSSION We divide our discussion in two parts. We first explain why the appeal is partially moot and the cross-appeal is moot in its en- tirety. We then explain why the district court abused its discretion when it entered the unexpired portions of the preliminary injunc- tion against Maros. Before addressing these issues, we grant the motion to sup- plement the record. “Although we generally do not consider evi- dence that the parties did not submit in the district court, we have the power to do so” in exceptional circumstances. See Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006). USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 9 of 34
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Because the supplemental material contains facts that “illuminate the mootness issue,” id. at 1171, we conclude that supplementation of the record is appropriate here. A. The Appeal is Partially Moot and the Cross-Appeal is Completely Moot. We turn first, as we must, to our own jurisdiction. See Pep- pers v. Cobb Cnty., 835 F.3d 1289, 1296 (11th Cir. 2016) (“[W]e are obliged first to consider our power to entertain the claim.”). The constitutional command that the federal judiciary hear only “Cases” and “Controversies,” see U.S. CONST. art. III, § 2, applies with as much force to courts of appeals as it does district courts, see Amodeo, 916 F.3d at 971. And because a case or controversy “must exist throughout all stages of litigation,” id. (internal quotation marks omitted), we must ensure—up until the moment our man- date issues—that intervening events have not mooted the appeal by preventing us from “grant[ing] any effectual relief whatever in favor of the appellant,” United States v. Sec’y, Fla. Dep’t of Corr., 778 F.3d 1223, 1228 (11th Cir. 2015) (internal quotation marks omit- ted); see also Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (“An appellate court simply does not have ju- risdiction under Article III to decide questions which have become moot by reason of intervening events.” (internal quotation marks omitted)); Key Enters. of Del., Inc. v. Venice Hosp., 9 F.3d 893, 899 (11th Cir. 1993) (en banc) (dismissing an appeal “[b]ecause the case became moot after the panel published its decision but before the mandate issued”). USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 10 of 34
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“One such intervening event is the expiration of a prelimi- nary injunction that is being challenged in an interlocutory appeal.” Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29. “If the preliminary injunction has expired, it no longer has legal effect on the parties, and a decision by this court affirming or vacating the defunct in- junction cannot affect the rights of the litigants.” Id. at 1229 (alter- ation adopted) (internal quotation marks omitted). Similarly, we have “consistently held that the appeal of a preliminary injunction is moot where the effective time period of the injunction has passed.” Brooks, 59 F.3d at 1119. And an appeal from the denial of a preliminary injunction is moot if “the end-date of the requested injunction,” id., has come and gone before the court of appeals is- sues its mandate. Maros’s appeal is moot to the extent it challenges the por- tions of the preliminary injunction prohibiting her from working for Vital’s competitors or soliciting Vital’s employees. The twelve- month prohibition against working for competitors began on Oc- tober 16, 2020, when Vital posted bond, and ended a year later. And the prohibition against soliciting Vital’s employees also expired Oc- tober 16, 2021, a year after “Maros and Elegance c[a]me into com- pliance with the . . . agreement” through Elegance’s termination of Maros. Maros’s efforts to save those portions of her appeal from mootness are unavailing. She argues that “[t]he injunction bond undercuts the notion that” those portions of the appeal are moot. But “any issue preserved by [that] bond . . . must be resolved in a USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 11 of 34
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trial on the merits,” not “on appeal of [the] preliminary injunction.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 396 (1981). She also con- tends that “the [d]istrict [c]ourt may afford law-of-the-case status to its prior clear legal conclusions reached at the preliminary injunc- tion stage.” But, as the district court acknowledged in its order, “the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.” Id. at 395. And although Maros is correct that we may review “disputes that are capable of repetition, yet evading review” as an “exception to the mootness doctrine,” Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1229 (internal quotation marks omitted), the moot issues here are not capable of repetition. Because the non-compete and employee non-solicitation covenants in Maros’s employment agreement have already expired, there is no “reasonable expectation or a demonstrated probability” that Vital will seek or obtain another preliminary injunction to enforce those covenants. Id. (internal quotation marks omitted). By contrast, Maros’s appeal is not moot to the extent it chal- lenges the portions of the preliminary injunction relating to solici- tation of Vital’s customers and the disclosure of confidential infor- mation. Those portions of the injunction—like the non-disclosure provisions they enforce—have no end date. So, neither the non- disclosure covenant nor the corresponding portions of the prelim- inary injunction have expired. Vital’s cross-appeal of the partial denial of preliminary in- junctive relief against Alfieri and LaRocca is moot in its entirety. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 12 of 34
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To be sure, the employment agreements toll the duration of the twelve-month-long non-compete and employee non-solicitation covenants for as long as “the [e]mployee is found to have been in violation of such restriction[s].” But it is undisputed that the men were terminated from Elegance on October 12, 2020. And Vital concedes that “the record does not establish whether [the men have] been employed in violation of [their] restrictive covenant[s] since that date.” On the current record, then, the twelve-month pe- riod of the non-compete and employee non-solicitation covenants in Alfieri’s and LaRocca’s agreements came to an end no later than October 2021. Because “the effective time period of the injunction has passed,” the appeal of the partial denial of preliminary relief is moot. Brooks, 59 F.3d at 1119. Vital argues that the cross-appeal “is not moot, because [Vi- tal] is entitled to the benefit of its contractual agreement.” That is, if Vital succeeded on its cross-appeal, “the one-year restrictive pe- riod” in Alfieri’s and LaRocca’s agreements “should begin after the Court issues its decision.” In support, Vital relies on the holding of a Florida court that, “[w]here there has been a delay in the entry of a non-compete injunction . . . , the party seeking to enforce the non-compete clause is entitled to receive the benefit of its bargain, which is the enforcement of the full non-compete period specified in the agreement between the parties.” Anakarli Boutique, Inc. v. Ortiz, 152 So. 3d 107, 109 (Fla. Dist. Ct. App. 2014). We rejected the same argument in Tropicana Products Sales, Inc. v. Phillips Brokerage Co., another appeal involving the USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 13 of 34
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enforcement of a non-compete covenant under Florida law. 874 F.2d 1581, 1582 (11th Cir. 1989). We recited the general rule that “an appeal from the denial of a motion for [a] preliminary injunc- tion is mooted when the requested effective end-date for the pre- liminary injunction has passed.” Id. And we acknowledged that the employer “may have a substantive right under Florida law to an injunction of the length specified in [the restrictive covenant] to begin upon entry of final judgment if it prevails at a trial on the merits.” Id. at 1583. But we held that this substantive right to a post- trial remedy did not alter our conclusion “that the denial of [the] preliminary injunction [was] . . . mooted by the passing of the spe- cific end-date of the requested preliminary relief.” See id. We reach the same conclusion here. “[A] preliminary injunc- tion is meant to keep the status quo for a merits decision, not to replace it.” Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4 F.4th 1220, 1225 (11th Cir. 2021). So, setting aside its potential en- titlement to permanent relief, Vital is entitled at this stage to no more than its “requested preliminary relief,” Tropicana, 874 F.2d at 1583—enforcement of the non-compete and employee non-so- licitation covenants “during each such covenant’s applicable re- strictive period as such period may be extended due to tolling.” Be- cause there is no evidence that Alfieri or LaRocca violated those covenants after October 12, 2020, the twelve-month restrictive pe- riods (including tolling) have, for purposes of this appeal, ended and the “effective end-date for the preliminary injunction has passed.” Id. at 1582. The cross-appeal is moot. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 14 of 34
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To be clear, we hold only that the cross-appeal and portions of the appeal are moot. We do not hold that the entire case is moot. Vital’s complaint requests money damages, and “[s]uch claims, if at all plausible, ensure a live controversy” in the district court. Mis- sion Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019). Vital also asserts a right under Florida law to a perma- nent injunction enforcing the “full . . . period” of even the expired covenants, although we express no opinion as to whether Vital is entitled to that purported right. B. Vital Did Not Prove Its Entitlement to the Rest of the Prelimi- nary Relief it Obtained Against Maros. A party seeking “a preliminary injunction must establish that (1) it has a substantial likelihood of success on the merits; (2) irrep- arable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if is- sued, the injunction would not be adverse to the public interest.” Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (internal quotation marks omitted). “A preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishes the burden of persuasion as to the four requisites.” Id. (internal quotation marks omitted). When considering whether Vital has satisfied these require- ments, we are guided by Florida law, “which contains a compre- hensive framework for analyzing, evaluating and enforcing restric- tive covenants contained in employment contracts.” Proudfoot USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 15 of 34
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Consulting Co. v. Gordon, 576 F.3d 1223, 1230–31 (11th Cir. 2009) (internal quotation marks omitted). “For a restrictive covenant to be valid, ‘the person seeking enforcement of the restrictive cove- nant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.’” Id. at 1231 (alterations adopted) (quoting FLA. STAT. § 542.335(1)(b)). Florida law also provides that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” FLA. STAT. § 542.335(1)(j). Of the four provisions in the preliminary injunction that op- erated against Maros, we have jurisdiction to review only two: the prohibitions against soliciting Vital’s current or prospective “en- ergy drink customers . . . about whom [Maros] had [Vital’s] [c]on- fidential and [p]roprietary information” and against using “for any purpose any of [Vital’s] [c]onfidential and [p]roprietary infor- mation.” These prohibitions give effect to the non-disclosure cov- enant in Maros’s employment agreement. But because Vital never alleged a breach of that covenant, it is unclear why the district court considered the prohibitions warranted. And the district court abused its discretion by including the prohibitions in the prelimi- nary injunction. As an initial matter, Vital did not establish a legitimate busi- ness interest in its customer relationships. Florida law treats rela- tionships with customers as legitimate business interests only when those relationships are “[s]ubstantial” and with “specific USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 16 of 34
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prospective or existing customers.” Id. § 542.335(1)(b)(3) (emphasis added). It follows from the statutory text that a party seeking en- forcement of a restrictive covenant cannot rely on customer rela- tionships as a legitimate interest unless the party “plead[s] and prove[s]” the identity of specific customers and the substantiality of the relationship with those customers. Id. § 542.335(1)(b); see also Evans v. Generic Sol. Eng’g, LLC, 178 So. 3d 114, 117–18 (Fla. Dist. Ct. App. 2015) (holding that the record was “insufficient to support the trial court’s finding of a substantial business relationship” be- cause “the record d[id] not even contain enough information to meaningfully discuss the relationship”); Passalacqua v. Naviant, Inc., 844 So. 2d 792, 796 (Fla. Dist. Ct. App. 2003) (vacating a pre- liminary injunction predicated on the defendants’ solicitation of the plaintiff’s customers because “not one such customer was named in the complaint, the motion[,] or any exhibits filed”). Vital failed to name and prove a substantial relationship with specific clients. So, it cannot rely on its customer relationships to establish a legiti- mate business interest. And the district court abused its discretion when it held otherwise. Even if we assume that some legitimate business interest ex- ists, Vital did not prove that it would suffer irreparable injury unless Maros was enjoined from violating the non-disclosure covenant— the only covenant that could have justified the two prohibitions. Vital contends that the district court correctly applied the state-law rule that “[t]he violation of an enforceable restrictive covenant cre- ates a presumption of irreparable injury.” FLA. STAT. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 17 of 34
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§ 542.335(1)(j). This contention raises a knotty choice-of-law ques- tion. See Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1448 (11th Cir. 1991) (holding that “federal procedure,” including “tradi- tional federal equity practice,” applies in diversity cases “to deter- mine whether [a] preliminary injunction was properly issued”); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (ex- plaining that presumptions of irreparable harm are “contrary to tra- ditional [federal] equitable principles”). But we need not resolve that question here because Vital has not proved its entitlement to the statutory presumption in any event. As the statutory language suggests, see FLA. STAT. § 542.335(1)(j), the presumption applies only to the “enforceable re- strictive covenants that have been violated,” Medco Data, LLC v. Bailey, 152 So. 3d 105, 106 (Fla. Dist. Ct. App. 2014); cf. Proudfoot, 576 F.3d at 1229, 1232 (treating non-compete, non-solicitation, and “client non-compete” provisions, and “a clause concerning confi- dential information” in the same agreement as four separate restric- tive covenants and permitting a universal presumption of irrepara- ble harm because the defendant “breached all four [r]estrictive [c]ovenants”). The district court found that Maros had violated the non-compete covenant by working for Elegance. But Vital did not plead in its complaint or argue in its motion for a preliminary in- junction that Maros had breached the non-disclosure covenant by disclosing confidential information or soliciting Vital’s clients about whom she held confidential information. Nor did the district court make findings to that effect. To the contrary, the district USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 18 of 34
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court credited the “unequivocal” testimony of Elegance’s chief ex- ecutive officer that “Elegance has not seen and is not privy to any of [Vital’s] allegedly confidential trade secret information.” The dis- trict court abused its discretion when it applied the presumption of irreparable harm to the non-disclosure covenant. Without the benefit of a presumption, Vital did not estab- lish, as it was required to, that it was “likely to suffer irreparable harm in the absence of preliminary relief” prohibiting Maros from disclosing or using its confidential information. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). In response to Maros’s ar- gument that Vital “could not identify any actually confidential and specific [Vital] information that is being or could be utilized by [her] . . . to unfairly compete,” Vital asserts only that the rebuttable pre- sumption relieved the company of this evidentiary obligation and that Maros has not rebutted that presumption. Vital has the same response to Maros’s explanation—supported by the record—that confidential information about the prices Vital pays to its suppliers is of no use to Elegance because Vital “benefits from economies of scale . . . and has developed in-house capabilities that smaller drink companies, like Elegance, simply do not have.” But again, Vital is not entitled to a presumption of irreparable harm with respect to the non-disclosure provision. Vital also asserts that “[i]f competitors acquire[d] [its] pro- tected information, they would gain an unfair competitive ad- vantage in the market.” But this asserted injury is “remote [and] speculative,” not “actual and imminent.” See Siegel v. LePore, 234 USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 19 of 34
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F.3d 1163, 1176 (11th Cir. 2000) (internal quotation marks omitted). As already explained, Vital did not plead or argue that Maros breached the non-disclosure provision. And the evidence estab- lished that much of this information would be of little use to Vital’s smaller competitors. In short, Vital failed to prove that the prohi- bitions against violation of the non-disclosure provision were nec- essary to prevent irreparable harm. IV. CONCLUSION We GRANT the motion to supplement the record. We DISMISS AS MOOT Vital’s cross-appeal and the portions of Ma- ros’s appeal relating to the non-compete and employee non-solici- tation provisions of the preliminary injunction. And we VACATE the portions of the injunction that prohibit Maros from soliciting Vital’s clients and disclosing Vital’s confidential information. USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 20 of 34
WILLIAM PRYOR, Chief Judge, concurring: I write separately to address the “knotty choice-of-law ques- tion” that the panel opinion properly does not resolve. Panel Op. at 17. Florida law provides that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” FLA. STAT. § 542.335(1)(j). But, in federal court, presumptions of irrepa- rable harm are ordinarily disfavored in the context of a preliminary injunction. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 544–45 (1987) (rejecting a presumption of irreparable harm as “con- trary to traditional equitable principles”); Snook v. Tr. Co. of Ga. Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (“The plaintiff’s success in establishing a likelihood it will prevail on the merits does not obviate the necessity to show irreparable harm.” (internal quotation marks omitted)). The question is whether a fed- eral court considering a motion for a preliminary injunction in a diversity case must apply the state-law presumption or follow fed- eral equity practice. Although “the answer is surprisingly evasive,” David Crump, The Twilight Zone of the Erie Doctrine: Is There Really a Different Choice of Equitable Remedies in the “Court A Block Away”?, 1991 WIS. L. REV. 1233, 1242, the better case is that a fed- eral court must apply the federal standard and not the Florida pre- sumption. Traditionally, federal courts have applied uniform standards to the award of equitable relief, even in the face of con- trary state rules. And the modern choice-of-law analysis for USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 21 of 34
2 WILLIAM PRYOR, C.J., concurring 20-14217
diversity cases—once described as a “muddled soup of inconsistent principles,” id. at 1241—does not require the traditional approach to yield to the Florida rule. Since the ratification of the Constitution, the scope of the federal “judicial Power” has “extend[ed] to all Cases, in Law and Equity, . . . between Citizens of different States.” U.S. CONST. art. III, § 2. The first Congress gave “cognizance” to the newly created federal courts “of . . . suits of a civil nature at common law or in equity, where . . . the suit is between a citizen of the State where the suit is brought, and a citizen of another State.” Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78. The first Congress also enacted rules governing proceedings in law and in equity, which were dis- tinct legal systems at the time. Federal courts first used state procedures for common-law proceedings. “[I]n suits at common law,” Congress provided that “the forms of writs . . . and modes of process” were to be those “used or allowed in the supreme court[] of the” state in which the federal court sat. Process Act of 1789, ch. 21, § 2, 1 Stat. 93, 93. And “the laws of the several states . . . [were to] be regarded as rules of decision in trials at common law . . . in cases where they apply.” Judiciary Act § 34. By contrast, “Congress provided that ‘the forms and modes of proceeding in suits of equity’ would conform to the settled uses of courts of equity.” Guar. Tr. Co. v. York, 326 U.S. 99, 104–05 (1945) (alteration adopted) (quoting Process Act of 1792, ch. 36, § 2, 1 Stat. 275, 276). That is, the procedure that applied to equitable USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 22 of 34
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remedies in federal court was “not limited by the chancery system adopted by any State,” but instead conformed to “[t]he usages of the High Court of Chancery in England” at the time of the Found- ing. Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518, 563 (1851). And it became “settled doctrine . . . that the remedies in equity [were] to be administered, not according to the state practice, but according to the practice of courts of equity in the parent country.” Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658 (1832); accord Atlas Life Ins. Co. v. W.I. S., Inc., 306 U.S. 563, 568 (1939). “Consequently, a federal court could issue an injunction in a diversity case that would have been unavailable in state court, while denying injunctive relief that a state court would have granted.” Michael T. Morley, The Federal Equity Power, 59 B.C. L. REV. 217, 238–39 (2018). Consider, for example, Guffey v. Smith, a diversity suit involving an Illinois lease. See 237 U.S. 101, 109, 114 (1915). There, the Supreme Court permitted the award of an in- junction to a lessee whose lease contained a “clause giving the les- see an option to surrender [the lease],” even though the Illinois Su- preme Court had held “that the presence of such a clause in the lease operates to prevent the lessee from . . . enforcing [the lease] in equity.” Id. at 114. The Court explained that, “[b]y the legislation of Congress and repeated decisions of this court[,] it has long been settled that the remedies afforded . . . in the Federal courts, sitting as courts of equity, are not determined by local laws or rules of decision, but by general principles, rules[,] and usages of equity.” USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 23 of 34
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Id. The “common law of chancery” that developed to elucidate these general equitable principles, Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) at 563, mirrored the “general principles of commercial law” that federal courts applied in diversity actions at law in the place of “the decisions of the [relevant] state tribunals,” see Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842); Guar. Tr., 326 U.S. at 102–03 n.1 (explaining that, in the nineteenth century, “the same views” of federal power “governed both” “law and equity” “and that Swift v. Tyson was merely another expression of the ideas put forth in the equity cases”). In Erie Railroad Company v. Tompkins, the Supreme Court “disapprov[ed]” the general-principles approach to commercial law in diversity cases “declared in Swift v. Tyson.” 304 U.S. 64, 79 (1938). The Court reasoned that Swift “rest[ed] upon the assump- tion . . . that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts the parties are entitled to an independent judgment on mat- ters of general law.” Id. (internal quotation marks omitted). This “fallacy” was “an unconstitutional assumption of powers by courts of the United States.” Id. (internal quotation marks omitted). The Court held that “[t]here is no federal general common law. Con- gress has no power to declare substantive rules of common law ap- plicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts.” Id. at 78. In- stead, “the law to be applied in any [diversity] case is the law of the USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 24 of 34
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State[,] . . . whether [that law is] declared by its Legislature in a stat- ute or by its highest court in a decision.” Id. The abrogation of the common law of chancery soon fol- lowed. Days after it issued Erie, the Supreme Court confirmed that, “in a suit in equity,” questions of substantive state law were “now to be governed, even in the absence of state statute, by the deci- sions of the appropriate state court.” Ruhlin v. N.Y. Life Ins. Co., 304 U.S. 202, 205 (1938). And in Guaranty Trust Company v. York, the Court explained that “Congress never gave . . . federal courts . . . the power to deny substantive rights created by State law or to create substantive rights denied by State law.” 326 U.S. at 105. And it announced a test for determining whether a state law is substan- tive: “does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?” Id. at 109. This abrogation came with an important qualification: the repudiation of the common law of chancery “d[id] not mean that whatever equitable remedy is available in a State court must be available in a diversity suit in a federal court, or conversely, that a federal court may not afford an equitable remedy not available in a State court.” Id. at 105. “State law cannot define the remedies which a federal court must give simply because a federal court in diversity jurisdiction is available as an alternative tribunal to the State’s courts.” Id. at 106. Instead, “[e]quitable relief in a federal court” remained “subject to restrictions,” including the USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 25 of 34
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requirement that the suit “be within the traditional scope of equity as historically evolved in the English Court of Chancery.” Id. at 105; accord Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318–19 (1999). Guaranty Trust was not a model of clarity, and later deci- sions of the Supreme Court have refined the choice-of-law analysis in three important respects. First, in Hanna v. Plumer, the Supreme Court acknowledged that, “in [a] sense[,] every procedural varia- tion” between state and federal law “is outcome-determinative.” 380 U.S. 460, 468 (1965) (internal quotation marks omitted). So, it directed courts applying “[t]he ‘outcome-determination’ test” an- nounced in Guaranty Trust to consider “the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequi- table administration of the laws.” Id. As modified, the outcome-de- termination test requires courts “to determine whether failure to apply the state law would lead to different outcomes in state and federal court and result in inequitable administration of the laws or forum shopping.” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1349–50 (11th Cir. 2018) (internal quotation marks omitted). Second, the Supreme Court concluded “that the Guaranty Trust ‘outcome-determination’ test was an insufficient guide in cases presenting countervailing federal interests.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 432 (1996). When such a coun- tervailing interest exists, a federal court should consider whether the state rule is “merely a form and mode of enforcing” a state sub- stantive right or “bound up with the definition of the [substantive] USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 26 of 34
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rights and obligations of the parties.” Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 536 (1958). If the state rule is “not bound up with [state-created] rights and obligations,” the court must deter- mine “whether the federal policy” at issue “should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court and another way in the state court.” Id. at 538. Finally, the Supreme Court clarified “the appropriate test for resolving conflicts between state law and the Federal Rules [of Civil Procedure].” Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4 (1987). “The initial step is to determine whether, when fairly construed, the scope of [the federal rule] is sufficiently broad to cause a direct collision with the state law or, implicitly, to control the issue before the court, thereby leaving no room for the operation of that law.” Id. at 4–5 (internal quotation marks omitted). “The Rule must then be applied if it represents a valid exercise of Congress’[s] rulemak- ing authority, which originates in the Constitution and has been bestowed on this Court by the Rules Enabling Act.” Id. at 5; accord Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). A court need reach the next step—the outcome-deter- mination test—only if “the Federal Rule is inapplicable or invalid.” Shady Grove, 559 U.S. at 398; accord Carbone, 910 F.3d at 1349. The Supreme Court has declined to resolve whether federal- or state-law standards govern preliminary injunctions in diversity cases, see Grupo Mexicano, 527 U.S. at 318 n.3, but our Court has decided this issue. In Ferrero v. Associated Materials Inc., we USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 27 of 34
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reviewed a preliminary injunction granted to enforce a “covenant not to compete” governed by Georgia law. 923 F.2d 1441, 1444 (11th Cir. 1991). Because “Georgia law presume[d] that [prelimi- nary] injunctions . . . should issue except in limited cases”—the converse of the federal approach—we “confront[ed] the threshold question of whether, under Erie, the [district] court should have applied federal or state law to determine the appropriateness of is- suing the preliminary injunction.” Id. at 1448. We reasoned that “Federal Rule of Civil Procedure 65 incorporate[d] traditional fed- eral equity practice” “by reference.” Id. And because Rule 65 “is both constitutional and within the scope of the rules’ enabling act,” we “appl[ied] federal procedure to determine whether the prelimi- nary injunction was properly issued.” Id. If Ferrero still binds us, it is dispositive of the choice-of-law issue. It “makes no difference” that this appeal involves Florida law instead of Georgia law. See Shady Grove, 559 U.S. at 409 (plurality opinion) (emphasis omitted). “[I]t is not the substantive or proce- dural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the Federal Rule.” Id. at 410. In the light of Ferrero’s holding that Rule 65 is a valid proce- dural rule that incorporates the federal standard for preliminary in- junctions, that standard will always apply in diversity cases, regard- less of the provisions of state law. See id. at 409 (“A Federal Rule of Procedure is not valid in some jurisdictions and invalid in others— or valid in some cases and invalid in others . . . .”). USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 28 of 34
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To be sure, an intervening decision of the Supreme Court calls into question part of our reasoning in Ferrero. In Grupo Mex- icano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., the Court stated that “[t]he substantive prerequisites for obtaining an equita- ble remedy as well as the general availability of injunctive relief are not altered by Rule 65 and depend on traditional principles of eq- uity jurisdiction.” 527 U.S. at 318–19 (alterations adopted) (internal quotation marks omitted). This statement has been read to mean that “Rule 65 . . . does not . . . address the standards governing any form of injunctive relief.” Morley, supra, at 254–55. And in the light of this statement, it is arguable that our Court was incorrect to rea- son that Rule 65 “incorporates traditional federal equity practice.” See Ferrero, 923 F.2d at 1448. But Ferrero’s holding—that the fed- eral standard applies to preliminary injunctions in diversity cases— remains valid even if Rule 65 does not incorporate those standards. This conclusion is consistent both with the outcome-determina- tion test first announced in Guaranty Trust and with the apparent exception for equitable remedies also announced in that decision. Guaranty Trust and other precedents postdating Erie sug- gest that the award of equitable relief in diversity cases remains governed by traditional equitable principles and not by state law. See Sonner v. Premier Nutrition Corp., 971 F.3d 834, 842–44 (9th Cir. 2020). For example, the Supreme Court has stated that these principles inhere in the congressional grant to federal courts of ju- risdiction over equitable actions. Atlas Life Ins. Co., 306 U.S. at 568 (“The jurisdiction . . . conferred on the federal courts to entertain USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 29 of 34
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suits in equity is an authority to administer in equity suits the prin- ciples of the system of judicial remedies which had been devised and was being administered by the English Court of Chancery at the time of the separation of the two countries.” (internal quota- tion marks omitted)). It has explained that this grant of authority “prescribes the body of doctrine which is to guide [courts’] deci- sions and enable them to determine whether . . . [to] exercise . . . the extraordinary powers of a court of equity.” Id. It has confirmed that the “body of doctrine” for equitable relief “remain[s] unaf- fected” by “the fusion of law and equity [in] the [Federal] Rules of Civil Procedure.” Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 382 n.26 (1949) (internal quotation marks omitted). And it has con- firmed that state law “cannot remove these fetters from the federal courts . . . in diversity jurisdiction.” Guar. Tr., 326 U.S. at 106. Some circuit courts and commentators have inferred from these statements “that state law cannot” “change the nature of . . . [or] circumscribe a federal court’s equitable powers[,] even when state law affords the rule of decision.” Sonner, 971 F.3d at 842–43; see also, e.g., id. at 843 (collecting decisions); Morley, supra, at 220 (“Guaranty Trust requires federal courts to apply a uniform body of equitable principles tracing back to the English Court of Chan- cery . . . when deciding whether to grant equitable relief, regardless of whether the underlying claim arises under federal or state law.”); John T. Cross, The Erie Doctrine in Equity, 60 LA. L. REV. 173, 174 (1999) (similar). USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 30 of 34
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Nevertheless, it is unlikely that equitable exceptionalism alone can justify a federal court’s departure from state law, espe- cially when it comes to the final object of the suit. Guaranty Trust was clear that, “[i]n giving federal courts ‘cognizance’ of equity suits in cases of diversity jurisdiction, Congress never gave . . . the power to deny substantive rights created by State law.” 326 U.S. at 105. And later decisions have defined a substantive rule as a rule that would cause “the character or result of a litigation materially to differ,” Hanna, 380 U.S. at 467—a definition that is broad enough to encompass some equitable relief. For example, the extent of a court’s power to award a permanent injunction undoubtedly af- fects the character—if not the result—of the litigation. See 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4513 (rev. 3d ed. 2021) (“Permanent injunctions . . . may be granted in a diversity case only if authorized by the relevant state law” because “[r]ights and remedies are closely interrelated con- cepts; to deviate from the state’s definition of the latter often also would change the former.”); see also Crump, supra, at 1235 (“Eq- uitable remedies . . . seem to be substantive because they are the ‘business end’ of the rights that they enforce, and thus they deter- mine outcomes.”). Although there is reason to believe that “the practice of bor- rowing state rules of decision does not apply with equal force to determining . . . equitable remedies, as it does to defining actiona- ble rights,” Davilla v. Enable Midstream Partners L.P., 913 F.3d 959, 973 (10th Cir. 2019), Guaranty Trust and later precedents USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 31 of 34
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nonetheless require federal courts to assess whether the federal in- terest in applying traditional equity rules for a preliminary injunc- tion must give way to a contrary state rule, see Crump, supra, at 1273; cf. Chambers v. NASCO, Inc., 501 U.S. 32, 44–45, 52–55 (1991) (applying the Hanna v. Plumer test to determine the extent to which a court sitting in diversity could exercise its inherent pow- ers, which are derived in part from historic equitable powers). And that assessment counsels our application of the federal standard for preliminary relief because, unlike permanent injunctions, prelimi- nary injunctions “are not final awards in any sense.” 11A WRIGHT ET AL., supra, § 2943.
Because “a preliminary injunction is meant to keep the sta- tus quo for a merits decision, not to replace it,” Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4 F.4th 1220, 1225 (11th Cir.), vacated as moot, __ F.4th __, No. 20-14210 (11th Cir. Dec. 29, 2021), the Florida presumption (at least in the context of a prelimi- nary injunction) cannot be said to be “bound up with the definition of the rights and obligations of the parties,” see Byrd, 356 U.S at 536; S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991) (treating a preliminary injunction as procedural because its purpose “is merely to preserve the relative positions of the parties until a trial on the merits can be held” (quoting Univ. of Tex. v. Came- nisch, 451 U.S. 390, 395 (1981))); accord Cap. Tool & Mfg. Co. v. Maschinenfabrik Herkules, 837 F.2d 171, 172–73 (4th Cir. 1988). In- deed, Florida courts treat “the standard for granting [a] temporary injunction” as “procedural,” not “substantive,” for choice-of-law USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 32 of 34
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purposes because the standard does not “prescribe[] duties and rights,” but “concerns [only] the means and methods to apply and enforce those duties and rights.” Quirch Foods LLC v. Broce, 314 So. 3d 327, 338 (Fla. Dist. Ct. App. 2020) (internal quotation marks omitted). The federal standard also need not “yield to the state rule in the interest of furthering the objective that the litigation . . . not come out one way in the federal court and another way in the state court.” See Byrd, 356 U.S. at 538. To be sure, there is some possi- bility that the failure to apply the presumption of irreparable harm will lead to the denial of a preliminary injunction that would have been granted in state court. But this possibility does not result in a “certainty . . . or even the strong possibility that” “a different result would follow” at the preliminary-injunction stage, much less in the litigation as a whole—the inquiry that matters. See id. at 539; Guar. Tr., 326 U.S. at 109 (focusing on whether a statute “significantly affect[s] the result of [the] litigation” (emphasis added)). Aside from the presumption of irreparable harm, the stand- ards for a preliminary injunction under Florida and federal law are similar. Florida courts and federal courts will issue a preliminary injunction only if they conclude, among other things, that the plaintiff has a substantial likelihood of succeeding on the merits, that the plaintiff will suffer irreparable harm without the prelimi- nary injunction, and that injunctive relief is in the public interest. See Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011); Quirch, 314 So. 3d at 338. And, in both USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 33 of 34
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jurisdictions, a preliminary injunction is treated as an extraordinary remedy not to be awarded as a matter of course. See Forsyth Cnty., 633 F.3d at 1039; Scott v. Trotti, 283 So. 3d 340, 343 (Fla. Dist. Ct. App. 2018). Because the standards are similar overall, the outcomes at the preliminary-injunction stage are likely to be similar, too. Moreover, a plaintiff who succeeds on the merits at trial is entitled under Florida law to a permanent injunction for the full duration of the restrictive covenants, including the restrictive cov- enants that have expired. See Quirch, 314 So. 3d at 331 n.1. If fed- eral courts are bound to apply this rule in diversity cases, it will be the rare case that “come[s] out one way in the federal court and another way in the state court if the federal court failed to apply” the Florida presumption at the preliminary-injunction stage. See Byrd, 356 U.S. at 536–37. In short, because “there is little chance that” resolution of a motion for a preliminary injunction using the federal standard “ul- timately will interfere seriously with the goals or policies of the state-created right that is being litigated,” 11A WRIGHT ET AL., su- pra, § 2943, “the federal practice” need not “yield to the state rule,” see Byrd, 356 U.S. at 540. And because the federal standard will have little impact on outcomes, application of that standard will not “result in inequitable administration of the laws or forum shop- ping.” See Carbone, 910 F.3d at 1349–50 (internal quotation marks omitted); Michael Steven Green, The Twin Aims of Erie, 88 NOTRE DAME L. REV. 1865, 1875 (2013) (“[I]nequity is generated by substantially different rules applying to a state law action solely by USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 34 of 34
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virtue of the accident of diversity of citizenship.” (internal quota- tion marks omitted)); Cross, supra, at 193 n.144 (Under Hanna, “[f]orum-shopping is objectionable when undertaken for the pur- pose of obtaining a different result.”). In my view, under Erie, the Florida standard for obtaining a preliminary injunction is a matter of procedure, not of substance. Federal courts must apply the federal standard in cases involving Florida law. And under the federal standard, a plaintiff must prove irreparable harm without the presumption afforded by Florida law. See Snook, 909 F.2d at 486. So, our precedent in Ferrero remains good law.