United States District Court, E.D. North Carolina, Western Division
W.FLANAGAN UNITED STATES DISTRICT JUDGE
matter is before the court on plaintiff's ex parte motion
for order directing preservation of documents, software and
things (DE 4) and ex parte motion for temporary restraining
order (“TRO”) (DE 5). For the reasons set forth
herein, the court grants in part plaintiff's motion for
order directing preservation of documents, software and
things, and grants in part plaintiff's motion for
temporary restraining order.
filed its verified complaint March 1, 2019, asserting causes
of action against defendants for violations of the Defend
Trade Secrets Act, 18 U.S.C. §§ 1832, 1836; the
North Carolina Trade Secrets Protection Act, N.C. Gen. Stat.
§ 66-152 et seq.; the Virginia Uniform Trade
Secrets Act, Va. Code § 59.1-336 et seq.;
breach of contract; tortious inference with contractual
relations; breach of the duty of loyalty; unfair and
deceptive trade practices, in violation of N.C. Gen. Stat.
75-1.1, et seq.; conversion; and unjust enrichment.
seeks damages from defendants, as well as injunctive relief
requiring the return and removal of confidential information
in defendants' possession, prohibiting defendants from
using, possessing, or disclosing plaintiff's confidential
information, prohibiting defendants Bruna Maraccini
(“Maraccini”) and Colleen Savory
(“Savory”) from working for defendants Lidl US,
LLC, Lidl U.S. Operations, LLC, and Lidl U.S. Management,
Inc. (collectively “Lidl”) for one year,
disgorging defendant Maraccini's compensation from
defendant Lidl while she was receiving severance benefits
from plaintiff, and requiring defendants to provide quarterly
affidavits for a period of two years verifying compliance
with obligations to plaintiff. Plaintiff also seeks
reasonable attorney's fees and costs.
relies upon defendant Maraccini's executed severance
agreement with plaintiff (“Severance Agreement”
(DE 1-7)), defendant Maraccini's executed acknowledgment
of the ALDI Code of Conduct (“Maraccini
Acknowledgment” (DE 1-8)), defendant Savory's
executed acknowledgment of the ALDI Code of Conduct
(“Savory Acknowledgment” (DE 1-9)), the
verification of Joshua Walsh (“Walsh
Verification” (DE 1-10)), and the verification of Chris
Daniels, plaintiff's Division Vice President
(“Davis Verification” (DE 1-11)).
argues it is likely to succeed on the merits, the equities
favor issuance of a TRO and preliminary injunction, and the
public interest would not be disserved by an injunction.
temporary restraining order may only issue where
“specific facts in an affidavit or verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). In
addition, a temporary restraining order may only issue where
“the movant's attorney certifies in writing any
efforts made to give notice and the reasons why it should not
be required.” Fed.R.Civ.P. 65(b)(1)(B). The substantive
standard governing whether to grant a TRO is the same as that
governing whether to enter a preliminary injunction. See
U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d
275, 281 n.1 (4th Cir. 2006). The movant must establish the
following to obtain a temporary restraining order or a
preliminary injunction: 1) that it is likely to succeed on
the merits; 2) that it is likely to suffer irreparable harm
in the absence of preliminary relief; 3) that the balance of
equities tips in its favor; and 4) that an injunction is in
the public interest. Winter v. Natural Res. Def. Council.
Inc., 555 U.S. 7, 20 (2008). “The court may issue
a preliminary injunction or a temporary restraining order
only if the movant gives security in an amount that the court
considers proper to pay the costs and damages sustained by
any party found to have been wrongfully enjoined or
restrained.” Fed.R.Civ.P. 65(b)(1)(C).
has carried its burden to demonstrate the propriety of a TRO.
Plaintiff submits through its verified complaint and
supporting sworn statements that defendants are
misappropriating plaintiff's confidential information and
trade secrets, damaging plaintiff's business by allowing
a direct competitor to access such information and use it to
formulate its own real estate development strategy.
(See Compl. ¶¶ 78-122; Joshua Walsh
Verification (DE 1-10) ¶¶ 2-14; Chris Daniels
Verification (DE 1-11)). Such possession, use, and disclosure
of plaintiff's confidential information and trade secrets
imposes immediate and irreparable injury on plaintiff's
competitive standing in the marketplace. The equities in this
case and the public interest also favor issuance of the
temporary restraining order for the limited purpose of
protecting plaintiff from the unconsented to disclosure of
its proprietary information.
counsel certified in writing his efforts to give notice, and
demonstrated that no further notice should be required.
(See Motion for Temporary Restraining Order (DE 5)
at 6). Accordingly, plaintiff's motion for temporary
restraining order (DE 5) is granted on the terms set forth
1. “Confidential Information and Trade Secrets”
is defined as ALDI's strategic business plans, real
estate strategy, its Strategic Growth Plan, its business
information (such as sales, sales volume, sales methods and
strategies, marketing methods and strategies, profit margins,
consumer sales data (gathered and purchased), and data
regarding each individual ALDI customer such as the amount
spent per basket or kind of customers' purchases from
ALDI, etc.) and its supply information (such as vendors,
sources of supply, system documentation, pricing data, etc.)
obtained by defendants Maraccini and Colleen Savory
(“Savory”) during and after the course of their
employment with ALDI.
2. Defendants are hereby immediately enjoined and restrained,
whether alone or in concert with any person or entity, from:
a. Misappropriating, using, or disclosing to any person or
entity ALDI's Confidential Information and ...