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

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

8                                                                        

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        Before the Court is Plaintiffs Bureau Veritas Technical Assessments, LLC and 
16   Bureau Veritas North America, Inc.’s Motion for Preliminary Injunction (Doc. 17, Mot.), 
17   to which Defendants Apex Imaging Services, Inc. (“Apex”), Blake Brosa, and Todd 
18   Tankersley filed a collective response (Doc. 44, Resp.), and Plaintiffs replied (Doc. 53, 
19   Reply). The Court held an evidentiary hearing on the Motion on January 27, 2026. Having 
20   considered the briefing and all evidence and testimony presented by the parties, the Court 
21   denies the Motion.                                                   
22   I.   BACKGROUND                                                      
23        Plaintiffs provide project management services for multi-site customers. (Doc. 18, 
24   Susi Decl., ¶ 9.) Apex provides general construction services for multi-site customers. 
25   (Doc.  44-1,  Cardona  Decl.,  ¶ 6.)  Both  companies  use  project  management  software; 
26   Plaintiffs’ software is known as “ProTrack” (Doc. 19, McNeice Decl., ¶ 14), while Apex’s 
27   software is branded “Apexview” (Cardona Decl. ¶ 20).                 
28   . . .                                                                
1        Mr. Tankersley worked as Plaintiffs’ Senior Product Developer for several years 
2   and  helped  develop  and  operate  ProTrack.  (McNeice  Decl.  ¶¶ 12–14;  Doc.  44-2, 
3   Tankersley Decl., ¶ 8.) As a part of his employment, Mr. Tankersley entered into a 
4   Confidentiality  Agreement  (“Tankersley  Agreement”)  that  prohibited  the  copying, 
5   removal, use, or disclosure of Plaintiffs’ confidential information without permission. 
6   (Doc. 17-9 at 2–3.)                                                  
7        Mr. Brosa worked as Plaintiffs’ Executive Vice President of Sales and was involved 
8   in, inter alia, planning annual sales, leading Plaintiffs’ emergence into the electric vehicle 
9   charging  (“EVC”)  market,  and  preparing  large  responses  to  Requests  for  Proposals 
10   (“RFPs”). (Susi Decl. ¶¶ 23–24; Hr’g Tr. at 65:19–66:24.) As a part of his employment, 
11   Mr. Brosa entered a Confidentiality, Non-Competition, Non-Solicitation, and Assignment 
12   of Rights Agreement (“Brosa Agreement”). (Doc. 17-8; Hr’g Tr. at 55:8–57:18.) As 
13   relevant  here,  the  Brosa  Agreement  prohibited  the  use  or  disclosure  of  Plaintiffs’ 
14   confidential information and retention of Plaintiffs’ company property and confidential 
15   information. (Doc. 17-8 at 2–3.)                                     
16        In September 2024, Mr. Brosa met Apex’s Chief Operating Officer Dan Cardona 
17   while attending an event in Scottsdale, Arizona. (Hr’g Tr. at 68:6–13.) Subsequently, 
18   Mr. Cardona extended him an offer of employment. (Id. at 68:17–69:2, 71:11–17.) As 
19   Mr. Brosa recalls, Mr. Cardona expressed to him that there was an “immense opportunity” 
20   for Apex to become a “total turn-key solution” and “world-class one-firm-firm,” and 
21   together  they  could  “kick  some  ass.”  (Id.  at  68:22–70:19,  74:20–75:19.)  Mr.  Brosa 
22   accepted the job offer on October 17, 2024. (Id. at 77:2–78:5.)      
23        On November 19, 2024, Mr. Brosa informed Plaintiffs that he “will be transitioning 
24   [his] career back to [his] roots as a self-perform general contractor.” (Doc. 17-1 at 2.) Over 
25   one month later, after apparently learning that Mr. Brosa began working with Apex, 
26   Plaintiffs sent Mr. Brosa and Apex a letter reminding Mr. Brosa of his post-employment 
27   obligations set forth in the Brosa Agreement. (Doc. 17-2.) Around this time, Mr. Brosa still 
28   possessed his work laptop for the purpose of ensuring that Plaintiffs would pay him his last 
1   commission check. (Hr’g Tr. at 63:8–23; 107:12–21.) While in possession of the laptop, 
2   Mr. Brosa acknowledged that he accessed his “contacts list one time.” (Id. at 63:24–25.)  
3        In April 2025, Mr. Tankersley terminated his employment with Plaintiffs and began 
4   working as Apex’s Director of Systems the following month. (Tankersley Decl. ¶¶ 2–3, 
5   10.)  It  is  unclear  whether  Mr.  Tankersley’s  responsibilities  included  working  with 
6   ProTrack at the time he stopped working for Plaintiffs. (Compare Tankersley Decl. ¶¶ 4, 9 
7   with Hr’g Tr. at 50:25–51:24.)                                       
8        At some point, Mr. Brosa returned the laptop to Plaintiffs. Plaintiffs subsequently 
9   retained Mr. David Greetham, a digital forensic examiner, to examine the laptop. (Doc. 20, 
10   Greetham Decl., ¶¶ 11–13.) Mr. Greetham prepared a forensic image of the laptop that 
11   revealed Mr. Brosa had repeatedly connected an external WD Elements 2621 USB device 
12   (“External Drive”) to the laptop. (Id. ¶ 16.) According to Mr. Greetham, Mr. Brosa 
13   accessed or created “a substantial number of files and folders” on the External Drive. (Id.)  
14        On  July  3,  2025,  Plaintiffs  sued  Defendants  asserting—as  relevant  here—
15   misappropriation of trade secrets under federal and state law and breach of the Brosa and 
16   Tankersley Agreements.1 According to Mr. Cardona, Apex instructed Mr. Brosa to deliver 
17   the External Drive to Apex’s legal counsel soon after the lawsuit was filed. (Cardona Decl. 
18   ¶ 12.) Mr. Brosa did so and had no access to the External Drive since. (Hr’g Tr. at 109:18–
19   111:21.)                                                             
20        On  August  1,  2025,  Plaintiffs  moved  for  a  preliminary  injunction  against 
21   Defendants. While briefing was ongoing, the parties nominated two forensic consultants to 
22   conduct an examination of the External Drive (Doc. 45) and the Court appointed Mr. Brian 
23   J. Halpin. (Doc. 52). Mr. Halpin’s examination of the External Drive revealed that it 
24   contained hundreds, perhaps thousands, of files. (See Doc. 66, Halpin Decl.) Plaintiffs now 

25   1 Originally, Plaintiffs moved for injunctive relief based on their claims that Mr. Brosa 
    breached the confidentiality, non-recruitment, non-solicitation and non-compete covenants 
26   contained in the Brosa Agreement, but the claims pertaining to the latter two have since 
    been dismissed. (See  Docs. 71, 84;  Hr’g Tr.  at 18:4–6.)  At the  evidentiary hearing, 
27   Plaintiffs’ counsel clarified that they no longer seek injunctive relief based upon Mr. 
    Brosa’s  alleged  recruitment  of  Ms.  Lynelle  Grimes.  (Hr’g  Tr.  at  130:11–132:7.) 
28   Accordingly, the only breach of the Brosa Agreement before the Court is based upon the 
    confidentiality covenant.                                            
1   move the Court to enjoin Defendants “from disclosing, accessing, uploading, downloading, 
2   copying, printing, or transferring or otherwise using any of Plaintiffs’ confidential or trade 
3   secret information,” return (Doc. 17-10; Hr’g Tr. at 139:12–140:9.) Additionally, Plaintiffs 
4   request that Defendants be ordered to return Plaintiffs’ property and confidential and trade 
5   secret information, identify all devices or accounts that were used to access the confidential 
6   or trade secret information, and submit those devices or accounts to a third-party forensic 
7   examiner of Plaintiffs’ choosing. (Doc. 17-10; Hr’g Tr. at 139:12–140:9.) 
8   II.  LEGAL STANDARD                                                  
9        In order to obtain a preliminary injunction, Plaintiffs must show that “(1) [they are] 
10   likely to succeed on the merits, (2) [they are] likely to suffer irreparable harm in the absence 
11   of preliminary relief, (3) the balance of equities tips in [their] favor, and (4) an injunction 
12   is in the public interest.” Garcia v. Google, Inc., 

786 F.3d 733, 740

 (9th Cir. 2015) (citing 
13   Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7, 9

 (2008)).       
14   III.  ANALYSIS                                                       
15        A.   Evidentiary Objections                                     
16        In setting the evidentiary hearing, the Court ordered that only the declarations, 
17   affidavits, and exhibits submitted as of September 12, 2025 would be considered. (Doc. 71 
18   at 26–27.) At issue here, Plaintiffs request the Court to accept and consider evidence 
19   submitted after the September 12th cutoff date that includes: (1) Mr. Halpin’s declaration 
20   filed on October 3, 2025 (Doc. 66); (2) Mr. Greetham’s supplemental declaration filed on 
21   October 3, 2025 (Doc. 67); and (3) a document entitled “3Q 2023 PM Sales Update” 
22   offered at the evidentiary hearing (“Sales Document”) (Hr’g Tr. at 118:7–23).  
23        Plaintiffs argue that the declarations arise from the Court-sanctioned expedited 
24   discovery and appointment of Mr. Halpin to analyze the External Drive and were filed and 
25   served with sufficient time for Defendants to prepare a response. (Doc. 86 at 3.) Plaintiffs 
26   offer no argument as to the Sales Document. Defendants object to the introduction of 
27   evidence submitted after the cutoff date. According to Defendants, they were unaware of 
28   Plaintiffs’ intention to rely on the two declarations until the first prehearing statement draft 
1   was circulated on the eve of the deadline to file it. (Id. at 6.) Had they known, Defendants 
2   maintain  that  they  would  have  prepared  a  rebuttal  expert  report  to  meet  that  of 
3   Mr. Greetham. (Id.) As to the Sales Document, it too was submitted long after the cutoff 
4   date. Notably, Plaintiffs do not even list it as an exhibit in the Joint Pre-Hearing Statement. 
5   (See Doc. 86 at 4–5.)                                                
6        The Court will overrule Defendants’ objection as to Mr. Halpin’s declaration. As 
7   the third-party neutral appointed by the Court, Mr. Halpin generated a ninety-three-page 
8   report of the contents of the External Drive and, insofar as the Court is aware, timely shared 
9   it with both parties in accordance with the Court’s minute entry dated August 25, 2025. 
10   (See Halpin Decl. ¶ 2.) The information contained in Mr. Halpin’s declaration and report 
11   is  bereft  of  interpretive  gloss  or  endorsement.  Because  the  forensic  report  and 
12   accompanying declaration were neutral, court-ordered, and presented to both sides long 
13   before the hearing took place, the Court finds no prejudice or hardship to either party in 
14   considering Mr. Halpin’s declaration.                                
15        Defendant’s objection as to the other evidence is sustained. Unlike Mr. Halpin’s 
16   declaration, the supplemental declaration of Mr. Greetham is far from neutral. In it, 
17   Mr. Greetham analyzes Mr. Halpin’s report to extrapolate conclusions that favor Plaintiffs. 
18   The merit of those conclusions is not for the Court to decide now. Rather, the Court 
19   observes that Plaintiffs knew of the cutoff date as early as December 1, 2025 when the 
20   Court entered its order setting the evidentiary hearing (see Doc. 71 at 26–27) and could 
21   have requested leave to use the supplemental declaration any time thereafter. They did not. 
22   Instead, they delayed notice of using Mr. Greetham’s supplemental declaration until the 
23   eve of the prehearing statement deadline. As for the Sales Document, it was not only 
24   submitted after the cutoff date, but it was not properly noticed as an exhibit in the Pre-
25   Hearing Statement. This trial-by-ambush exercise is the kind that the Court attempted to 
26   avoid in setting the cutoff date. Accordingly, the Court will not consider Mr. Greetham’s 
27   supplemental declaration, the Sales Document, or counsel’s oral arguments related thereto.  
28   . . .                                                                
1        B.   Likelihood of Success on the Merits                        
2        Under the first Winter element, Plaintiffs must show that they are likely to succeed 
3   on the merits of their claims. This factor is the most important of the Winter elements. 
4   Garcia, 

786 F.3d at 740

. “Because it is a threshold inquiry, when a plaintiff has failed to 
5   show the likelihood of success on the merits, we need not consider the remaining three 
6   Winter elements.” 

Id.

 (citation modified).  The Ninth Circuit employs a sliding scale 
7   approach in which “serious questions going to the merits and a hardship balance that tips 
8   sharply toward the [movant] can support issuance of an injunction, assuming the other two 
9   elements of the Winter test are also met.” Drakes Bay Oyster Co. v. Jewell, 

747 F.3d 1073

, 
10   1078 (9th Cir. 2013) cert. denied, 

134 S. Ct. 2877

 (2014) (citation modified). 
11        The standard required by the first Winter element becomes “doubly demanding” 
12   when a movant seeks a mandatory injunction rather than a prohibitory injunction. Id. The 
13   former injunction mandates a party to take action, while the latter restrains a party from 
14   action. See id. When mandatory relief is sought, the movant must meet a heightened burden 
15   by demonstrating that the facts and law “clearly favor” the movant. Id. Neither party briefed 
16   whether Plaintiffs’ injunctive relief is of the prohibitory or mandatory variety. The Court 
17   will assume that the relief sought is prohibitory and declines to apply a heightened standard 
18   to Plaintiffs’ burden of showing a likelihood of success on the merits. 
19             1.   Trade Secret Misappropriation                         
20        Plaintiffs  move  for  injunctive  relief  based  on  two  claims  for  trade  secret 
21   misappropriation under the Defend Trade Secrets Act and its state law counterpart Arizona 
22   Uniform Trade Secrets Act. Courts in this district analyze these claims together because 
23   the elements are identical. See ReBath LLC v. HD Sols. LLC, No. CV-19-04873-PHX-JJT, 
24   

2020 U.S. Dist. LEXIS 223194

, *2–3 (D. Ariz. Sep. 18, 2020). To establish a claim for 
25   trade secret misappropriation, a plaintiff must show: “(1) that the plaintiff possessed a trade 
26   secret[;]  (2)  that  the  defendant  misappropriated  the  trade  secret;  and  (3)  that  the 
27   misappropriation caused or threatened damage to the plaintiff.” InteliClear, LLC v. ETC 
28   Glob. Holdings, Inc., 

978 F.3d 653

, 657–58 (9th Cir. 2020) (citing 

18 U.S.C. § 1839

(5)).  
1                  a.   Trade Secrets                                    
2        Trade secrets are defined broadly and include three components: “(1) information, 
3   (2) that is valuable because it is unknown to others, and (3) that the owner has attempted 
4   to keep secret.” Id. at 657; see also 

8 U.S.C. § 1839

(3); A.R.S. § 44-401(4). Even though 
5   trade secrets are defined broadly, “[t]he plaintiff should describe the subject matter of the 
6   trade secret with sufficient particularity to separate it from matters of general knowledge 
7   in the trade or of special knowledge of those persons . . . skilled in the trade.” Inteliclear, 
8   

978 F.3d at 658

 (citation and internal quotation marks omitted).     
9        At the evidentiary hearing, Mr. Brosa confirmed that he copied files from his work 
10   laptop to the External Drive. (Hr’g Tr. at 84:3–89:2.) He testified that he would not be 
11   surprised if ninety percent of the files contained on the External Drive were business-
12   related. (Id. at 64:23–65:3.) Of those files, Plaintiffs tendered three. The first is an executed 
13   project proposal that contains the client’s contact information, the scope of the work and 
14   services, and project pricing. (Susi Decl. ¶ 36; Doc. 57-1.) The second is spreadsheet that 
15   includes 2024 year-to-date project data for active projects. (Doc. 57-2.) The third document 
16   depicted  notes  from  an  executive  meeting  that  identified,  inter  alia,  “Must  Wins,” 
17   including upcoming program rollouts and projects set to open in 2025. (Doc. 57-3.) The 
18   Court refers to these three documents collectively as the “Business Documents.” 
19        Plaintiffs also submitted two emails that Mr. Brosa forwarded from his work 
20   account to a personal account.  The first was forwarded on November 27, 2024 and 
21   contained a RFP he received from a client who was soliciting services for an EVC project. 
22   (Doc. 57-4.) The last email was forwarded on December 2, 2024—Mr. Brosa’s last day of 
23   work with Plaintiffs—and contained the payment history of that same EVC client. (Doc. 
24   57-6.) The Court refers to these two emails collectively as the “EVC Emails.” 
25        Additionally, Mr. Greetham declared that Mr. Brosa accessed Outlook files named 
26   “Client Emails” and “BV Stock Emails” on November 25, 2024 and “BV Stock contacts” 
27   on December 20, 2024, (Greetham Decl. ¶¶ 26, 28.) Mr. Greetham suspects these files 
28   “likely contain a substantial number of BVTA emails, calendar invites, and contacts,” and 
1   “contact information in relation to BV stock.” (Id. at ¶ 27.) The Court refers to these files 
2   as the “Outlook Files.”                                              
3        Plaintiffs contend that ProTrack, the three Business Documents, the Outlook Files, 
4   and the EVC Emails are trade secrets. 2 (Reply at 4–6; Doc. 54, Supp. Susi Decl., ¶¶ 5–10). 
5   There is sufficient evidence in the record to show that ProTrack, the Business Documents 
6   and EVC Emails are valuable by virtue of not being known to others. According to 
7   Mr. McNeice, Plaintiffs’ Vice President of Digital Product Innovation, ProTrack was 
8   transformed from a base software into its current form through the work of Mr. Tankersley 
9   and others over the course of years. (McNeice Decl. ¶ 19.) Mr. McNeice also declared that 
10   ProTrack is “often a determinative factor for customers in deciding which proposal to an 
11   RFP is successful,” demonstrating just how valuable the software is to Plaintiffs’ business. 
12   (McNeice Decl. ¶ 17.) As for the Business Documents, the content of those documents 
13   clearly reveals Plaintiffs’ weaknesses, strategies, and current streams of revenue, and 
14   would allow a competing company to capitalize off Plaintiffs’ shortcomings or divert 
15   potential business if known. Lastly, the EVC Emails contain a RFP from a client and related 
16   payment history. This information exposes how lucrative this account is for Plaintiffs and 
17   could inspire a competitor to seek out that client’s business knowing what kinds of services 
18   it seeks and for what price.                                         
19        There is also sufficient evidence to show that ProTrack, the Business Documents 
20   and EVC Emails were subject to Plaintiffs’ efforts to maintain their secrecy. Ms. Joanne 
21   Susi,  Plaintiffs’  current  Vice  President  of  Business  Development,  testified  that  the 
22   Business Documents and EVC Emails are not accessible outside of Plaintiffs’ business 
23   (Supp. Susi Decl. ¶ 10) and are protected by confidentiality agreements, internal code of 
24   ethics, and password protection. (Susi Decl. ¶¶ 19–21.) ProTrack is also protected by 
25   confidentiality covenants. (Doc. 17-8 at 2; Doc. 17-9 at 2.) There are additional markers of 

26   2 Separately, Plaintiffs submitted five other emails that Mr. Brosa forwarded to himself on 
    November 25, 2024. (Docs. 57-9–57-13.) Each email contained Plaintiffs’ marketing 
27   materials and related content. Plaintiffs submitted these emails to support their claim that 
    Mr. Brosa violated the non-solicitation covenant (Reply at 9), which has since been 
28   dismissed. See footnote 1, supra at 3. Plaintiffs do not identify the Outreach Emails as a 
    trade secret (see Reply at 4–6), so the Court will not analyze them as such. 
1   confidentiality made apparent through other testimony and the documents themselves. One 
2   of the Business Documents was an executed response to an RFP that, according to Mr. 
3   Brosa himself, is typically treated as confidential and would have been accompanied by a 
4   non-disclosure agreement. (Hr’g Tr. at 66:25–67:11.) One of the EVC Emails evinced clear 
5   instructions that it was to be treated as confidential. (See Doc. 57-4.) Other Business 
6   Documents were clearly internal files prepared for “executive meetings” that identified 
7   future “must-win” accounts, set out future sales goals and areas of improvement (Doc. 57-
8   3), and contained active client names and related project and financial information (Doc. 
9   57-2). The revealing nature of the information contained in these documents, combined 
10   with  the  measures  undertaken  by  Plaintiffs  to  maintain  their  secrecy,  sufficiently 
11   demonstrates that they are trade secrets.                            
12        The Outlook Files, however, are far more abstract. Based solely on the file names, 
13   Mr. Greetham speculates that the Outlook Files contain a “substantial number of BVTA 
14   emails, calendar invites, and contacts,” and potentially “contact information in relation to 
15   BV stock.” (Greetham Decl. ¶¶ 26–28). Mr. Greetham’s speculation does not assist the 
16   Court in determining whether the content of these files derive their value by virtue of being 
17   unknown to others or that Plaintiffs attempted to keep these files secret. For instance, a 
18   calendar invite, email, or contact could be sent to or from anyone in the world with an email 
19   account. Without more evidence to place the Outlook Files in context, they cannot be 
20   deemed a trade secret.                                               
21                  b.   Misappropriation                                 
22        Misappropriation can occur: (1) by acquisition through improper means; or (2) by 
23   disclosure or use of a trade secret with knowledge or with reason to know that it was 
24   acquired through improper means. 18 U.S.C § 1839(5); A.R.S. § 44-401(2). Improper 
25   means includes “theft, bribery, misrepresentation, breach or inducement of a breach of a 
26   duty to maintain secrecy, or espionage.” 18 U.S.C § 1839(6); A.R.S § 44-401(2). While 
27   improper means include several kinds of conduct, “[m]ere possession of trade secrets by a 
28   departing employee is not sufficient to establish misappropriation or show injury.” Cutera, 
1   Inc. v. Lutronic Aesthetics, Inc., 

444 F. Supp. 3d 1198

, 1207 (E.D. Cal. 2020) (analyzing 
2   misappropriation under the California state law counterpart of the DTSA). Rather, the 
3   purported misappropriation must extend beyond mere possession.  See 

id.

 at 1207–08 
4   (allegations that the defendant deployed a sales method claimed to be a trade secret were 
5   sufficient to plead misappropriation); see also Early Warning Servs. LLC, 

2025 LEXIS 6

   89594,  at  *12–13  (allegations  that  the  defendant  published  previously  unknown 
7   information without the plaintiff’s consent were sufficient to plead misappropriation); Fire 
8   Sec. Elecs. & Commc’ns Inc. v. Nye, No. CV-23-02730-PHX-DLR, 

2024 U.S. Dist. LEXIS 9

   25575, at *10–11 (D. Ariz. Feb. 13, 2024) (evidence of a former employee coordinating 
10   with a current employee to copy files supported misappropriation).   
11        Plaintiffs argue that Mr. Brosa misappropriated Plaintiffs’ trade secrets “by making 
12   copies of them on his Elements USB Device and forwarding them to his personal Gmail 
13   account at or around the time of his departure from BVTA.” (Mot. at 11.) Mr. Brosa does 
14   not contest that he did, in fact, acquire these documents and emails without Plaintiffs’ 
15   permission. (Hr’g Tr. at 81:13–82:9.)                                
16        Mr. Brosa’s motivations for his conduct vary. In a letter sent in July 2025, Apex’s 
17   attorney explained that Mr. Brosa’s “intent of keeping these was not nefarious, but an 
18   attempt to be helpful after he left . . . he downloaded a number of files so that if/when 
19   someone reached out, he had basic information to remind himself about the client or the 
20   project . . .” (Doc. 17-7 at 6.) In his declaration, Mr. Brosa stated that he copied files to the 
21   External Drive “to have access to forms [he] had developed, and to have access to personal 
22   information unrelated to [his] work for BVTA.” (Doc. 44-3 ¶ 6.) At the hearing, Mr. Brosa 
23   testified that he copied files to the External Drive because he feared that Apex would 
24   “crash” and “wasn’t a for sure bet,” and these files would be something he would need if 
25   he returned to work for Plaintiffs. (Hr’g Tr. at 86:6–12.) He acknowledged that his conduct 
26   was ultimately done with “poor judgment.” (Id.) As for sending the EVC Emails, Mr. Brosa 
27   testified that he sent them to himself “[o]ut of being a pure nerd.” (Id. at 107:8–11.) He 
28   “was wildly excited to see how [the client] is doing this” and “was curious about it.” (Id.) 
1   And, in the event Plaintiffs asked Mr. Brosa about the project later, he “could go back and 
2   look at the RFP.” (Id.)                                              
3        No matter which, or if any, of these theories constitute Mr. Brosa’s true motivations, 
4   the evidence plainly shows that he did not merely possess the information passively. 
5   Rather, he actively copied and stored the Business Documents and sent himself the EVC 
6   Emails without permission. This is precisely the kind of conduct that falls within the 
7   inscription of trade secret law and amounts to misappropriation.     
8        As to Mr. Tankersley, Plaintiffs argue he misappropriated ProTrack simply by 
9   having knowledge of that software and working in a “nearly identical role” with Apex that 
10   uses the same QuickBase platform. (Mot. at 12.) Defendants argue, and the Court agrees, 
11   that  Plaintiffs’  theory  primarily  relies  upon  the  inevitable  disclosure  doctrine.  “The 
12   rationale underlying the inevitable disclosure doctrine is that a plaintiff may establish 
13   threatened misappropriation simply by the fact that the defendant’s new employment will 
14   inevitably lead that defendant to rely on plaintiff’s trade secrets . . . it constitutes a narrow 
15   avenue for courts to provide injunctive relief for threatened misappropriation of trade 
16   secrets.” Kinship Partners, Inc. v. Embark Veterinary, Inc., No. 3:21-cv-01631-HZ, 2022 

17 U.S. Dist. LEXIS 2804

, at *17–19 (D. Or. Jan. 3, 2022) (citation modified). This doctrine 
18   is not recognized in the Ninth Circuit or the State of Arizona and the Court declines to 
19   apply it here. Agency Solutions.Com, LLC v. TriZetto Grp., Inc., 

819 F. Supp. 2d 1001

, 
20   1027 (E.D. Cal. 2011) (“[A] court cannot presume that such disclosure is inevitable based 
21   only on the fact of a business association between the defendant and the plaintiff’s rivals.”); 
22   Liss v. Exel Transp. Servs., No. CIV-04-2001-PHX-SMM, 

2007 U.S. Dist. LEXIS 20555

, 
23   at *27 (D. Ariz. Mar. 20, 2007); Kinship Partners, Inc., 

2022 U.S. Dist. LEXIS 2804

, at 
24   *19.                                                                 
25        Even if an inference of disclosure or use was permissible—which it is not—Apex 
26   and Mr. Tankersley testified that he does not work with Apexview “on a day-to-day-basis” 
27   in his current role. (Cardona Decl. ¶ 22; Tankersley Decl. ¶¶ 13–14.) Plaintiffs’ witness 
28   Mr. McNeice did not dispute this, and he confirmed that any suspicions he has regarding 
1   Mr. Tankersley’s use or disclosure of ProTrack are pure speculation. (Hr’g Tr. at 48:8–
2   49:5.)                                                               
3        In the absence of evidence, Plaintiffs instead parse Mr. Tankersley’s declaration—
4   that he “currently” does not work with Apexview “day-to-day”—to mean that he works on 
5   Apexview infrequently or did so in the past. (Reply at 8 n.5.) But Mr. Tankersley avers that 
6   he has “not used any information [he] learned during [his] time with BVTA or BVNA to 
7   make any changes, revisions, additions or deletions to Apexview. It operates in the same 
8   manner in which it operated when [he] joined Apex.” (Tankersley Decl. ¶ 14; see also 
9   Cardona Decl. ¶¶ 20–23.) This dispels Plaintiffs’ theory that Mr. Tankersley “copied” or 
10   led  others  to  copy  ProTrack,  and  Plaintiffs  show  no  evidence  to  suggest  otherwise. 
11   Plaintiffs’ evidence shows that Mr. Tankersley possessed knowledge of ProTrack but 
12   nothing more.                                                        
13        Finally, Plaintiffs argue that Apex misappropriated trade secrets by hiring Mr. Brosa 
14   and Mr. Tankersley. (Mot. at 11.) During oral argument, Plaintiffs contend that Apex 
15   poached Mr. Brosa and Mr. Tankersley with the goal of becoming a greater competitor of 
16   Plaintiffs. (Hr’g Tr. at 67:25–71:10.) This may be true, but “merely recruiting another 
17   company’s  employees  does  not  meet  the  knowledge  requirement  for  trade  secret 
18   misappropriation,” Bombardier Inc. v. Mitsubishi Aircraft Corp., 

383 F. Supp. 3d 1169

, 
19   1182 (D. Wash. 2019), and the Court declines to make an inference that Apex will 
20   inevitably rely on purported trade secrets purely on account of employing Plaintiffs’ former 
21   staff. See Agency Solutions.Com, LLC, 

819 F. Supp. 2d at 1027

 (rejecting the inevitable 
22   disclosure doctrine). Furthermore, the evidence in the record demonstrates that Apex had 
23   no knowledge that Mr. Brosa possessed the Business Documents or EVC Emails until 
24   Apex received Plaintiffs’ letter on July 7, 2025. (Cardona Decl. ¶ 11.) According to 
25   Mr. Cardona, Mr. Brosa mailed the External Drive directly to Apex’s legal counsel; Apex 
26   never had possession or access to it. (Id. ¶¶ 12–14.)                
27        For the first time in reply, Plaintiffs advance that Apex is vicariously liable for 
28   Mr. Brosa’s misappropriation under a theory of respondeat superior. (Reply at 7–8.) “A 
1   business entity may be liable for intentional torts committed by an agent or employee, such 
2   as misappropriation of trade secrets, even if the business has not authorized the activity, so 
3   long as the activity falls within the scope of the agency or employment.” Gordon Grado 
4   M.D., Inc. v. Phx. Cancer & Blood Disorder Treatment Inst. PLLC, 

603 F. Supp. 3d 799

, 
5   811 (D. Ariz. 2022). “Whether an employee’s tort is within the scope of employment is 
6   generally a question of fact. It is a question of law, however, if the undisputed facts indicate 
7   that the conduct was clearly outside the scope of employment.” Engler v. Gulf Interstate 
8   Eng’g, Inc., 

258 P.3d 304

, 309–10 (Ariz. Ct. App. 2011), aff’d, 

280 P.3d 599

 (Ariz. 2012).  
9        Arizona  courts  follow  the  Restatement  (Third)  of  the  Law  of  Agency 
10   (“Restatement”)  for  evaluating  whether  an  employee  acts  within  the  scope  of  his 
11   employment. Id. at 309. According to § 7.07 of the Restatement, “[a]n employee acts within 
12   the scope of employment when performing work assigned by the employer or engaging in 
13   a  course  of  conduct  subject  to  the  employer’s  control.”  See  also  comment  (f)  to 
14   Restatement, § 7.07; Restatement § 1.01(f)(1) (“An essential element of agency is the 
15   principal’s right to control the agent’s actions.”). “A relationship of agency is not present 
16   unless the person on whose behalf action is taken has the right to control the actor,” which 
17   is a “narrower and more sharply defined concept than domination or influence more 
18   generally.” Restatement § 1.01(f)(1). While “[c]onduct is considered within the scope of 
19   employment when it is performed, at least in part, to benefit the employer,” Gordon Grado 
20   M.D., Inc., 603 F. Supp. 3d at 811–12, it is not within the scope of employment when the 
21   act “occurs within an independent course of conduct not intended by the employee to serve 
22   any purpose of the employer,” Restatement § 7.07.                    
23        Here, Plaintiffs contend that Apex is liable “because part of Brosa’s theft occurred 
24   during the scope of Brosa’s employment while he was employed as Apex’s Director of 
25   Business Development.” (Reply at 7.) Based on the evidence in the record,3 there are two 

26   3 Plaintiffs make several new allegations in their First Amended Complaint that Mr. Brosa 
    accessed other documents on the External Drive while he was employed by Apex. (See 
27   Doc. 74, FAC, ¶¶ 97–104.) But a preliminary injunction “may only be awarded upon a 
    clear showing of evidence that supports each relevant preliminary injunction factor. This 
28   clear showing requires factual support beyond the allegations of the complaint . . .” 
    Medcursor Inc. v. Shenzen KLM Internet Trading Co., 

543 F. Supp. 3d 866

, 870 (C.D. Cal. 
1   instances of misappropriation that occurred while Mr. Brosa was an Apex employee: (1) 
2   he sent one of the EVC Emails containing the payment history to himself on December 2, 
3   2024 (Susi Decl. ¶¶ 42–43; see Doc. 57-6); and (2) he accessed one of the Outlook Files 
4   titled “D:\Outlook EMAILS\BV Stock contacts.pst” on December 20, 2024 (Greetham 
5   Decl. ¶ 28). As to the first occurrence, Mr. Brosa testified—and Plaintiffs have not 
6   disputed—that Apex is not in the business of building or managing EVC projects. (Hr’g 
7   Tr. at 106:12–107:11.) Plaintiffs fail to show how this act, even if it occurred while 
8   Mr. Brosa was an Apex employee, benefits Apex or was done at Apex’s instruction such 
9   that it occurred within the scope of employment. See Restatement § 7.07; Gordon Grado 
10   M.D., Inc., 603 F. Supp. at 811–12. As to the second occurrence, the Court already 
11   determined  that  the  Outlook  Files  do  not  constitute  trade  secrets,  so  there  is  no 
12   misappropriation for which Apex could be vicariously liable. Plaintiffs have failed to put 
13   forth sufficient evidence that shows a likelihood of success on their claim that Apex 
14   misappropriated their trade secrets.                                 
15                  c.   Actual or Threatened Harm                        
16        The misappropriation, if established, must also cause or threaten to cause harm to 
17   the holder of the trade secret. “Damages are an essential element of a misappropriation of 
18   trade secret claim, and a claim fails as a matter of law without a cognizable theory of 
19   proximately caused damages.” W.L. Gore & Assocs. v. GI Dynamics, Inc., 

872 F. Supp. 2d 20 883, 888

 (D. Ariz. 2012) (citation modified).                        
21        While Plaintiffs demonstrate a likelihood of success on their claim that Mr. Brosa 
22   misappropriated the Business Documents and EVC Emails, evidence of harm or threatened 
23   harm is severely lacking. On this point, the parties sharply contest whether Apex is a true 
24   competitor of Plaintiffs. During her cross-examination, Ms. Susi discussed two broad 
25   categories of services: general contracting services and stand-alone project management 
26   services. (Hr’g Tr. at 31:3–33:4.) The difference between these services is “an added layer 
27                                                                        
    2021); see also S.F. Veteran Police Officers Ass’n v. City & Cty. of S.F., 

18 F. Supp. 3d 28 997, 1006

 (N.D. Cal. 2014) (“[A] motion for a preliminary injunction must be supported 
    by evidence that goes beyond the unverified allegations of the pleadings . . .”). 
1   of management between the owner and the general contractor.” (Hr’g Tr. at 32:19–22.) 
2   Plaintiffs provide that added layer of management as a “third-party independent provider” 
3   (id. at 32:8–18), whereas Apex primarily acts as a general contractor that manages and 
4   performs the work itself (id. at 33:2–4). The distinction is insignificant for the purposes of 
5   this analysis. At the core of both parties’ services is project management, and that is one 
6   of the several commodities both parties sell to multi-site customers. In this sense, Apex 
7   competes with Plaintiffs.                                            
8        Though the two companies compete to provide project management services, the 
9   harm of Mr. Brosa’s misappropriation is highly speculative. Plaintiffs offer no evidence 
10   that the misappropriation negatively affected them, such as a downward trend in customer 
11   generation, loss of revenue, or loss of market share. Even where Plaintiffs offer testimony 
12   that Apex submitted responses to the same three RFPs as them, there is no suggestion that 
13   they lost those business opportunities or suffered other harm as a result. Rather, Plaintiffs’ 
14   theory of harm arises from the threat of it. But the evidence demonstrates that the Business 
15   Documents existed nowhere else but on the External Drive that Mr. Brosa has not accessed 
16   since July 2025.4 To the extent that the EVC Emails are still in Mr. Brosa’s possession, 
17   they pertain to an industry that Apex takes no part in. (Id. at 106:12–107:11.) Having failed 
18   to establish harm or threat of harm, Plaintiffs fail to demonstrate a likelihood that they will 
19   succeed on the merits of their trade secret misappropriation claim against Mr. Brosa. 
20             2.   Breach of Contract                                    
21        Plaintiffs argue that Mr. Brosa and Mr. Tankersley breached the confidentiality 
22   covenants contained in their respective Agreements. To establish a breach of contract 
23   claim, a plaintiff must show (1) a contract, (2) breach, and (3) damages. Thunderbird 
24   Metallurgical,  Inc.  v.  Ariz.  Testing  Lab.,  

423 P.2d 124, 126

  (Ariz.  1967).  Plaintiffs 
25   introduce the Brosa and Tankersley Agreements into evidence and sufficiently establish 
26   the first element. (See Docs. 17-8, 17-9.)                           

27   4 The Court again observes that Plaintiffs make new allegations in their First Amended 
    Complaint that Mr. Brosa copied other documents to a device while he was still in 
28   possession of it (see, e.g., FAC ¶¶ 97–104), but unverified allegations are insufficient to 
    justify the extraordinary award of injunctive relief. See footnote 3, supra at 13. 
1                  a.   Breach                                           
2        While the parties originally briefed Plaintiffs’ breach of contract claims related to 
3   the non-solicitation, non-recruitment, and non-compete covenants contained in the Brosa 
4   Agreement, Plaintiffs conceded at the hearing that they no longer seek injunctive relief as 
5   to those covenants. (Hr’g Tr. at 18:4–6, 130:11–132:7.) Accordingly, the Court will only 
6   address  the  likelihood  of  success  on  the  merits  of  Plaintiffs’  claims  relating  to  the 
7   confidentiality covenants in both Agreements.                        
8        The confidentiality covenants prohibit Mr. Brosa and Mr. Tankersley from using or 
9   disclosing Plaintiffs’ confidential information and mandate them to return it and other 
10   company property to Plaintiffs upon termination. (Doc. 17-8 at 2–3; Doc. 17-9 at 2–3.) 
11   Based on the content of the Business Documents and EVC Emails, they likely fall within 
12   the Brosa Agreement’s definition of confidential information that includes “all documents 
13   or information, in whatever form or medium, regarding the business or affairs of the 
14   Company.” (Doc. 17-8 at 2.) Mr. Brosa testified that he understood that the confidentiality 
15   covenant  prohibited  him  from  taking  confidential  information  and  from  retaining 
16   Plaintiffs’ property, such as the work laptop, but he retained the information and property 
17   anyway after his termination date. (Hr’g Tr. at 62:1–64:4.) His retention of the work laptop, 
18   External Drive that contained at least some confidential information, and the EVC Emails 
19   without Plaintiffs’ permission is a clear-cut breach of the Brosa Agreement.  
20        Plaintiffs’ other theory of breach—that Mr. Brosa used or disclosed confidential 
21   information (Mot. at 13; Reply at 7–8)—is not so clear-cut. Plaintiffs cite one case for the 
22   proposition that they need only show that Mr. Brosa “accessed and removed confidential 
23   materials around the time of [his] departure” to demonstrate that he used or disclosed 
24   information  in  breach  of  the  confidentiality  covenant.  (See  Mot.  at  13.)  In  Colwell 
25   Consulting LLC v. Papageorge, the former employee entered a confidentiality agreement 
26   that prohibited him from using the employer’s “proprietary information” to his benefit. No. 
27   2:24-cv-01824-JCG, 2024 LX 208401, at *18–19 (D. Ariz. Aug. 14, 2024). The employee 
28   downloaded numerous documents shortly before he terminated his employment. Id. at *8. 
1   This case is distinguishable upon one critical fact: the employee started his own company 
2   in the same industry immediately after his termination. It was from this very fact that the 
3   court could “discern no other logical reason for these business files to have been accessed 
4   and transferred . . . other than for [his] use in a new competing business.” Id. at *21.  
5        Here, Mr. Brosa left his employment to join a company that was already established 
6   in its industry. Apex avers that it had “its own business strategies, processes, marketing 
7   plans and way of doing business that it has developed since it began doing full-scale general 
8   contractor rollouts nearly 40 years ago.” (Cardona Decl. ¶ 16.) Mr. Brosa also presents 
9   several explanations for why he copied or forwarded himself confidential information, 
10   none of which are completely devoid of reason or as “fantastical” as Plaintiffs urge.5 Based 
11   on the evidence in the record, it cannot be said that the only logical inference that can be 
12   made from Mr. Brosa’s acquisition of Plaintiffs’ information is to use or disclose it. 
13   Plaintiffs otherwise advance no other evidence aside from speculation that Mr. Brosa used 
14   or disclosed information protected by the confidentiality covenant.  
15        As for Mr. Tankersley’s breach, Plaintiffs assert that he “is believed to have violated 
16   his confidentiality covenant by duplicating BVTA’s confidential computer information for 
17   Apex.” (Mot. at 13.) As discussed supra, Plaintiffs offer nothing more than speculation 
18   that Mr. Tankersley has “duplicated” anything for Apex. In this State and Circuit, the 
19   inference that Mr. Tankersley will inevitably use his knowledge based solely on him 
20   working for Apex is impermissible. Plaintiffs fail to establish a likelihood of success on 
21   the merits of breach as to Mr. Tankersley.                           
22                  b.   Damages                                          
23        Now, having established the scope of breach shown by Plaintiffs, the Court turns to 
24   whether the damages element has been satisfied. Neither party addressed this element at 
25   all in their briefing or oral argument. The Court is weary to do so further. Rather, it merely 
26                                                                        
    5 The Court agrees with Plaintiffs that Mr. Brosa’s explanations varied over time and that 
27   those explanations may ultimately be self-serving. However, the Court observes that his 
    explanations—helping  the  incoming  team  after  the  transition,  fearing  his  jump  in 
28   employment would fall through, wanting to secure his personal files—can all be true no 
    matter how misguided they may have been.                             
1   observes the plain language of the Brosa Agreement that asserts “the unauthorized use or 
2   disclosure of [confidential information] will cause irreparable harm, substantial injury, and 
3   loss of profits and goodwill” and “that a breach of Employee’s obligations hereunder will 
4   result in irreparable and continuing damage to the Company, for which money damages 
5   may not provide adequate relief.” (Doc. 17-8 at 2, 6.) But these clauses do not relieve 
6   Plaintiffs from their burden of setting forth evidence of damages, which is an essential 
7   element of their breach of contract claim. See Graham v. Asbury, 

540 P.2d 656, 657

 (Ariz. 
8   1975); see also Thomas v. Montelucia Villas, Ltd. Liab. Co., 

302 P.3d 617, 621, 621

 (Ariz. 
9   2013) (holding that a party must prove it sustained actual damages from breach of a 
10   contract that contained a liquidated damage provision). Having presented no such evidence, 
11   Plaintiffs fail to show a likelihood of success on their claim that Mr. Brosa’s breach of the 
12   confidentiality covenant caused them damages.                        
13        C.   Irreparable Harm                                           
14        Plaintiffs repeatedly argue that, at a minimum, they raise serious questions regarding 
15   the merits of their misappropriation and contract breach claims. (Mot. at 12, 15.) If true, 
16   then the Court would apply the Ninth Circuit’s sliding scale approach in which a strong 
17   showing of hardship to the movant may rebalance a weak showing of the merits, but this 
18   assumes that “the other two elements of the Winter test are also met.” Jewell, 

747 F.3d at 19

   1078 (citation modified). The Court now addresses the second Winter element to resolve 
20   any doubt that a preliminary injunction is not warranted here.       
21        The  Supreme  Court  has  repeatedly  recognized  the  “basic  doctrine  of  equity 
22   jurisprudence that courts of equity should not act . . . when the moving party has an 
23   adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” 
24   Younger v. Harris, 

401 U.S. 37

, 43–44 (1971). In other words, irreparable harm is one that 
25   cannot be remedied by monetary damages. Cutera, 444 F. Supp. 3d at 1208. 
26        Even where the injury is irreparable, the movant “must still rely on evidence to 
27   establish this type of irreparable harm, not mere speculation of such harm.” Luminate Home 
28   Loans, Inc. v. Better Mortg. Co., No. 24-cv-02251-BAS-MSB, 

2025 U.S. Dist. LEXIS 1

   22733,  *13-14,  at  *13-14  (S.D.  Cal.  Feb.  7,  2025).  “[C]onclusory  statements  and 
2   theoretical arguments are insufficient to meet the standard.” Medcursor Inc., 

543 F. Supp. 3

   3d at 877. While “[e]vidence of threatened loss of prospective customers or goodwill 
4   certainly supports a finding of the possibility of irreparable harm,” Stuhlbarg Int’l Sales 
5   Co. v. John D. Brush & Co., 

240 F.3d 832, 841

 (9th Cir. 2001), evidence of an economic 
6   injury alone is insufficient. Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, 
7   Inc., 

944 F.2d 597

, 603 (9th Cir. 1991).                             
8        Plaintiffs assert three irreparable harms: (1) loss of confidential and trade secret 
9   information; (2) loss of customer goodwill; and (3) loss of competitive advantages. (Mot. 
10   at 15.) The case law of this Circuit is clear that these harms may be irreparable in some 
11   circumstances. See id.; Fujikura Composite Am., Inc. v. Dee, No. 24-CV-782 JLS (MSB), 
12   

2024 U.S. Dist. LEXIS 115959

, at *15 (S.D. Cal. June 28, 2024) (collecting cases).  
13        That  harm,  though,  must  be  forthcoming  and  likely,  not  just  possible,  absent 
14   injunctive relief. Garcia, 

786 F.3d at 740

; All. For The Wild Rockies v. Cottrell, 

632 F.3d 15 1127, 1131

  (9th  Cir.  2011).  Plaintiffs  argue  that  irreparable  harm  is  likely  because 
16   Defendants misappropriated the trade secret information and Mr. Brosa and Mr. Tankersley 
17   each agreed that a breach of their agreements would result in irreparable harm to Plaintiffs. 
18   (Mot. at 15; see also Reply at 10.) Not so.                          
19        The Court has already detailed the ways in which Plaintiffs failed to show that 
20   Mr. Tankersley or Apex misappropriated or threatened to misappropriate ProTrack. And 
21   while there is evidence showing that Mr. Brosa acquired the Business Documents, there is 
22   no evidence that Mr. Brosa still possesses them after returning the External Drive such that 
23   he could use or disclose them. See Sitrus Tech. Corp. v. Quynh Le, 

600 F. Supp. 3d 1106

, 
24   1111 (C.D. Cal. 2022) (declining to find irreparable harm where, based on the forensic 
25   evidence, “neither Plaintiff nor the Court can determine whether Defendant did transfer or 
26   copy files onto other devices he is still withholding”). To the extent Mr. Brosa retains 
27   access to the External Emails—which Plaintiffs did not establish but Defendants did not 
28   contest  (see  Hr’g  Tr.  at  127:24–129:16)—the  evidence  demonstrates  that  Apex  is 
1   “strategically not” in the EVC industry (id. at 107:5–6). This suggests that neither Apex 
2   nor Mr. Brosa could use that information to harm Plaintiffs’ competitive advantage or 
3   goodwill built in that industry and among those customers.           
4        Based on the record, the Court cannot find that irreparable harm is likely to occur 
5   based on Defendants’ misappropriation of trade secrets. The case law cited by Plaintiffs 
6   counsels no differently. In Nye, a company’s employee downloaded twenty-two company 
7   reports that included unique client and project data. 

2024 U.S. Dist. LEXIS 25575

, at *2–
8   3. Once he began working for a competing business, the employee’s access to the other 
9   reports was revoked. 

Id.

 at *3–5. The company lost three clients after the employee’s 
10   departure but otherwise grew in both its customer base and revenue. 

Id.

 The court found 
11   irreparable harm existed due to the immediate risk that the employee would continue to use 
12   or disclose the twenty-two reports he downloaded and still retained. Id. at *19. But there 
13   was no immediate risk that the company would suffer loss of goodwill and reputation 
14   “given [the company’s] healthy financial state and breadth of customers.” Id. at *19–20. 
15   Here, Plaintiffs present no evidence that Mr. Brosa continues to possess the Business 
16   Documents, or that the EVC Emails that may be in his possession risk Plaintiffs’ goodwill 
17   or reputation in the EVC industry.                                   
18        In Tribal Behavioral Health LLC v. Reeves, the court determined that an emerging 
19   company was likely to be irreparably harmed when its consultant refused to turn over the 
20   company’s client list and a confidential report that the company paid for to secure a specific 
21   business deal. No. CV-22-00926-PHX-SPL, 

2022 U.S. Dist. LEXIS 112186

, at *32–35, 
22   37–38 (D. Ariz. June 24, 2022). The company was able to show that, as a new entrant in a 
23   highly niche industry without a book of business, the consultant’s ongoing possession of 
24   those documents and continued work in that industry threatened the competitive advantage 
25   it obtained by compiling the customer list and paying for the report. Id. at *38. Here, 
26   Plaintiffs are neither emerging nor niche. As Plaintiffs themselves pronounce, they are a 
27   long-time  “leader”  in  providing  numerous  technical  services  to  “large,  national  or 
28   multinational companies” (Susi Decl. ¶¶ 8–10), so the Court is not convinced that the EVC 
1   Emails, assuming they are in Mr. Brosa’s possession, are the proverbial key to Plaintiffs’ 
2   success as the confidential report was to the emerging company in Reeves to support a 
3   claim for loss of competitive advantage.                             
4        In Papageorge, a company demonstrated that its clients were requesting that their 
5   files be transferred to its former employee who absconded with business information and 
6   started a new competing company. 

2024 U.S. Dist. LEXIS 144503

 at *26. The court 
7   determined that evidence of actual loss of clients was sufficient to demonstrate a threatened 
8   loss of goodwill with those clients and irreparably harmed the company. 

Id.

 Here, Plaintiffs 
9   set forth no evidence of client or revenue loss to support a claim for loss of goodwill. 
10        These cases demonstrate that, while the acts underlying a misappropriation may 
11   ultimately be relevant to an analysis of irreparable harm, Plaintiffs still must “demonstrate 
12   immediate threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean 
13   Marine Servs. Co. v. Baldrige, 

844 F.2d 668

, 674 (9th Cir. 1988).    
14        The fact that Mr. Brosa and Tankersley agreed that their breach of the Agreements 
15   would cause irreparable injury does not change this outcome. It is well-established that “[a] 
16   preliminary injunction is an extraordinary remedy never awarded as of right,” Winter, 555 
17   U.S. at 24. In light of this precedent, the Court is not convinced that contracting parties can 
18   obviate an independent judicial determination of irreparable harm. Courts in other circuits 
19   have reached the same conclusion. See, e.g., Flex-Plan Servs. v. Evolution1, Inc., No. C13-
20   1986-JCC, 

2013 U.S. Dist. LEXIS 201868

, at *22 (W.D. Wash. Dec. 31, 2013) (noting 
21   similar a contractual provision and making an independent determination that irreparable 
22   harm will occur); Pliteq, Inc. v. Mostafa, 

775 F. Supp. 3d 1231

, 1261 (S.D. Fla. 2025) 
23   (holding that a similar contractual provision “does not bind the Court’s analysis as to 
24   whether Plaintiffs have satisfied their burden of showing irreparable harm”); Hodnett v. 
25   Medalist Partners Opportunity Master Fund II-A, L.P., No. 1:21-cv-00038-MKV, 2021 
26   LX 43518, at *20 (S.D.N.Y. Feb. 12, 2021) (collecting Second Circuit cases holding that 
27   such contractual provisions are not dispositive in proving irreparable harm). Plaintiffs offer 
28   no authority to persuade the Court otherwise.                        
 1          While the Court may look to the Agreements to support a finding of irreparable 
2||    harm, that contractual language does not supplant the lack of evidence in the record that 
  ||  irreparable harm will ensue absent injunctive relief. At most, Plaintiffs speculate that they 
       will be injured. But “[s]peculative injury does not constitute irreparable injury sufficient to 
5 ||  warrant granting a preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844 
  ||  F.2d 668,  674  (9th Cir.  1988).  As  a result,  Plaintiffs  do not satisfy the  second  Winter 
  ||  element. 
8]    IV.    CONCLUSION 
9          Injunctive relief is an extraordinary remedy not granted lightly. Starbucks Corp. v. 
      McKinney,  

602 U.S. 339, 346

  (2024).  Here, Plaintiffs  fail to meet the first two  Winter 
11 |)  elements and are not entitled to injunctive relief. 
12          IT IS ORDERED denying Plaintiffs’ Motion for Preliminary Injunction (Doc. 17). 
13          Dated this 18th day of February, 2026.            CN 
14                                                        “wok: 
                                      Unifga    States#District Judge 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 

                                         -22-