Middle District Non-Compete Case – Summary Judgment

The following is an example of a motion for partial summary judgment in one of our non-compete cases presently pending in Tampa federal court.  As this motion makes clear, defendants in non-compete cases can often seek partial summary judgment on the issue of damages.

 

PLAINTIFFS/COUNTER-DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT & INCORPORATED MEMORANDUM OF LAW

Plaintiffs/Counter-Defendants, Alfred Moon, Sr., Alfred Moon, Jr. (“Chip Moon”), Cheryl Moon, and Megan White (collectively “Plaintiffs” or “the Moons”), by and through their undersigned counsel and pursuant to Fed Rule Civ. P. 56(c), respectfully file this Motion for Partial Summary Judgment and Incorporated Memorandum of Law.

INTRODUCTION

From January 1991 through July of 2008, the Alfred and Cheryl Moon owned and operated Moon Medical, a Kansas corporation. ¶5.[1] Moon Medical provided medical gas pipeline equipment, system testing, and construction certification. ¶¶2, 6. Medical Technology Associates, Inc. (“MTA”), a Florida Corporation, operated in the same space within the medical gas industry and, in addition, provided medical gas certification courses. ¶¶1 – 3 & 6.

On July 7, 2008, MTA purchased the assets of Moon Medical. ¶8. In connection with that sale, Alfred Moon became employed by MTA as a Midwest Regional Manager and was required under the purchase and sale agreement to enter into certain restrictive covenants for the benefit of MTA. ¶10 & 22. The details of the restrictive covenants contemplated by the purchase and sale agreement had previously been worked out, as Alfred Moon executed his employment agreement with MTA on June 30, 2008. ¶23.

On or about June 30, 2008, Cheryl Moon also executed an employment contract with MTA that contained restrictive covenants. ¶¶26 – 29. The language contained in Cheryl’s agreement does not tie her restrictive covenants to the sale of Moon Medical. ¶30.

Both Chip Moon and Megan White also became employed by MTA on or about June 30, 2008.   ¶11.

Mrs. Moon’s employment with MTA ended on May 31, 2010. ¶13. Thereafter, Cheryl, under the auspices of The William Rowland Corporation (“TWRC”), began marketing medical gas training classes on behalf Medical Gas Training and Consulting, LLC, a South Carolina based company. ¶¶94 – 96. Cheryl marketed these training courses in the Midwest. ¶97.

On January 18, 2013, in consideration for their continued employment with MTA, Megan White and Chip Moon entered employment agreements with MTA that contained restrictive covenants. ¶36 – 38.

On February 28, 2013, Alfred Moon was promoted to Director of Field Development. ¶14. On March 1, 2013, in connection with his promotion, Alfred Moon entered into a subsequent agreement with MTA that superseded the June 30, 2008 agreement. ¶¶31 – 32.

Alfred Moon, Chip Moon, and Megan White each terminated their employment with MTA in September or October of 2013. ¶¶15, 17, & 19. Upon their departure from MTA, The Moons founded Advanced Compliance Solutions, LLC (“ACS”). ¶104. ACS provides the same medical gas related services that Moon Medical did. ¶105.

On or about October 11, 2013, MTA caused to be delivered to each of the Moons a letter threatening legal action should The Moons engage in conduct prohibited by their respective restrictive covenants. ¶109. On October 29, 2013, The Moons filed the instant action seeking a declaration from this Court that the restrictive covenants are unenforceable. ¶110. On December 4, 2013, MTA filed their Amended Answer and Counterclaim alleging breach of contract and breach of fiduciary duty by each of the Moons and seeking reformation of Alfred Moon’s contract and alleging breach thereof. ¶111.

The Moons now move this Court for partial summary judgment on:

1. Counter-Plaintiff’s Claims for Damages
   1. Counter-Plaintiff has not offered any evidence of damages nor has MTA offered any reasonable means of calculating damages if they do exist.
2. Plaintiff’s Count 1 for Declaratory Judgment and All Counter-Claims Against Cheryl Moon
   1. Cheryl’s agreement is unenforceable because a reasonable temporal limitation period has expired.
3. Part of Counter-Plaintiff’s Count 1; Specifically Breach of the Non-Compete Agreement
   1. Alfred Moon, Chip Moon, and Megan White have not violated the non-compete agreements as they have not conducted any business within the restricted territory.

STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “Summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Thermo-Ply, Inc. v. Ohio Willow Wood Co., 2014 WL 285066, at *1 (M.D. Fla. Jan. 24, 2014). “The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“The moving party bears the initial burden of stating the basis for its motion for summary judgment and identifying those portions of the record which it believes demonstrates the absence of a genuine issue of material fact. The moving party meets its burden if it demonstrates an absence of evidence to support the nonmoving party’s case. The burden then shifts to the nonmoving party to identify specific facts that demonstrate a genuine issue of material fact in order to avoid summary judgment.” Salazar v. Am. Sec. Ins. Co., 2014 WL 4792003, at *2 (M.D. Fla. Sept. 22, 2014)(internal citations and quotations omitted).

However, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986)(internal citations and quotations omitted).

ARGUMENT

1. MTA Has No Damages

The Court should grant partial summary judgment in favor of the Moons on the issue of damages. Summary judgment is appropriate where the evidence presented in support of a position is insufficient as a matter of law. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Courts frequently employ this principle to grant summary judgment where a plaintiff has presented insufficient evidence of damages. See, e.g. Resolution Trust Corp. v. Stroock & Stroock & Lavan, 853 F.Supp. 1422, 1427-28 (S.D.Fla.,1994) (granting summary judgment where plaintiffs evidence of damages was insufficient and speculative). Although MTA seeks damages in the instant case, it has done nothing to prove that any such damages exist.

1. MTA Cannot Prove Any Claimed Damages

In the context of restrictive covenants, numerous courts have recognized that it is “inherently difficult to determine what damage actually is caused by the employee’s breach of a restrictive covenant.”   Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1243 (11th Cir. 2009) (citing Capraro v. Lanier Bus. Prods., Inc., 466 So.2d 212, 213 (Fla.1985). This logic applies here: Even if MTA prevailed as to liability, it simply could not establish damages. MTA ostensibly seeks damages in the form of lost profits. Although its Amended Counterclaim does not specifically plead “special damages” and does not mention lost profits, it can be gleaned from MTA’s papers – including its preliminary injunction papers – that MTA is seeking lost profits. This is the only measure of damages that MTA can seek for breach of the restrictive covenants at issue. See, e.g., Camel Investments, Inc. v. Webber, 468 So.2d 340, 342 (Fla.App. 1 Dist.,1985) (“The measure of damages for a breach of a non-competition agreement is the actual damages suffered as a result of the breach, which is generally loss of profits.”).

The crux of MTA’s case is that after the Moons left MTA, the Moons allegedly engaged in wrongful conduct that resulted in MTA losing certain business. Assuming, arguendo, that MTA could establish the Moons engaged in wrongful conduct, MTA still cannot establish causation and damages. MTA cannot link specific conduct by the Moons to the loss of specific business. To the extent MTA has lost business since the Moons left the company, those losses can be attributed to numerous other factors, including the following:

• No Contracts: None of the customers at issue had exclusive contracts with MTA. ¶¶63, 91. As such, MTA was not guaranteed to receive additional work from any of the customers at issue.
• Bidding: Both on the construction and service side, the industry operates principally on bidding. ¶¶58 – 62, 81 – 84, 87 – 90, & 106 – 107. MTA could have lost business as a result of being outbid— either in terms of price, timing, quality of work and other factors that are reviewed in evaluating a bid. ¶¶62, 84, 90, 107.
• Competition: Customers can choose from numerous vendors that provide the same products and services as MTA and the Moons.       From June 2013 to August 2014, JM Brennan – a customer at issue in this litigation – did business with 7 medical gas companies in the same market space as MTA and the Moons. ¶92. Ross Williams, the owner of ARTEC Environmental, a company that competes with MTA and the Moons, testified that the amount of work he has for a particular client fluctuates from year to year because of competition. ¶85 John Just of Titan/Just Service, another customer at issue in this litigation, testified that his revenues are not consistent year over year due to fluctuations in the amount of products and services needed by his customers. ¶93.
• Market Changes: Work-flow and revenue are not always consistent on a year-over-year basis.       ¶¶85, 93.
• MTA’s Customer Service:       MTA may have lost business as a result of its own shortcomings. Customers have testified to numerous problems with MTA ranging from defective products to drunken and irresponsible MTA employees to unfavorable credit terms. ¶¶64 – 78.
• MTA’s Failure to Maintain Relationships: MTA may have lost business as a result of its failure to maintain its purportedly substantial customer relationships. Certain customers testified that months after the Moons left MTA, they had yet to meet the new regional manager, Charlie Brons. ¶71. Mr. Brons himself testified that he did not know dozens of customers within his region (the Midwest). ¶72. Other customers testified that MTA did a poor job of maintaining its customer relationships. ¶73.
• Supplier issues: MTA may have lost business as a result of supplier issues. At various times, MTA has lost certain suppliers of medical gas equipment. ¶76.       The inability of MTA to provide products from certain suppliers may have caused certain customers to take their business elsewhere. ¶¶76 – 78.

To the extent MTA has lost business over the past year, much or all of that loss is likely attributable to the aforementioned variables, not to any allegedly wrongful conduct by the Moons. Any calculation of damages would need to account for these factors. See James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So. 3d 68, 74 (Fla. 4th DCA 2010) (reversing award of lost profits in non-compete case and noting that plaintiff failed to account for numerous other variables that could have contributed to such losses). Even if MTA tried to account for these factors, it would likely prove impossible to create a damages model that could weigh the impact of these variables and calculate damages proximately caused by the Moons. Any such calculation would be wildly speculative and, as a matter of law, insufficient to support an award of damages. On similar facts and under Florida law, the Eleventh Circuit has reached this same conclusion. See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1243 (11th Cir. 2009) (reversing award of lost profits where plaintiff had no reasonable way of linking breach of restrictive covenant to claimed damages and noting inherent difficulty of proving damages flowing from such a breach). The rationale of Proudfoot applies here: As a matter of law, MTA cannot establish damages.

1. There Is No Evidence of MTA’s Claimed Damages

As noted supra, MTA’s alleged damages would take the form of lost profits. Lost profits must be proved with reasonable certainty. See Envtl. Biotech, Inc. v. Sibbitt Enterprises, Inc., 2008 WL 5070251, at *5 (M.D. Fla. Nov. 24, 2008). Any attempted calculation of MTA’s lost profits would require a complex financial analysis that could control for numerous variables (e.g. bidding, competition, etc.). This sort of analysis would require a financial or accounting expert. See, e.g.,Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1222 (11th Cir. 2010) (noting that certain complex calculations of financial damages are of a nature that requires expert testimony).[2] But MTA failed to identify a damages expert prior to the close of expert discovery and never produced an expert report on damages. Given the complex nature of the damages claimed, MTA’s failure to proffer expert testimony as to its damages is essentially dispositive. See, e.g., Martinez v. Rabbit Tanaka Corp. Ltd., 2006 WL 5100536 (S.D.Fla. 2006) (striking damages expert and granting summary judgment as to damages where plaintiff had presented no other calculation of its claimed lost profits).

Not only did MTA fail to proffer expert testimony as to its claimed damages, it has utterly refused to provide even a rudimentary calculation of those damages. MTA’s Rule 26 Initial Disclosures indicate only that “MTA intends to seek the recovery of damages for violations of the Plaintiffs’ agreements. . .” ¶113. MTA’s Initial Disclosures do not mention lost profits or lost goodwill, let alone attempt to quantify those claimed damages. And in discovery, when MTA was asked via interrogatory to state its damages, it objected and provided nothing in the way of a calculation. To date, MTA has proffered one piece of evidence in support of its claimed damages: A half page excel spreadsheet titled “MTA Loss of Revenue”, which was created by MTA employee Nancy Hunter and introduced by MTA at a preliminary injunction hearing on October 29, 2014. ¶114. That spreadsheet compares MTA’s revenue from a handful of selected MTA customers during two separate time periods: The two years and ten months prior to the Moons leaving MTA and the year following their departure. ¶115. Ostensibly, MTA’s position is that any drop in revenue can be attributed to the Moons. But when pressed, Ms. Hunter admitted that she had no way knowing whether or not MTA’s allegedly lost revenue was caused by the Moons:

1. Do you know for a fact that the missing revenue from this column went to the Moons?
2. Do I know for a fact, no.

Q: You’re simply speculating that this revenue that you’re missing went to the Moons?

1. In some instances, I can clearly see through what was produced in their documents that that business went directly to them.
2. All of the business?
3. I don’t know that.[3]

¶115.

Q: Do you know what the total medical gas spend for any of these companies during the last 13 months has been?

1. No, I do not.
2. So you don’t know they actually have that same business?
3. No, I do not.

¶115. MTA’s lost profits spreadsheet is entirely speculative and insufficient as a matter of law. See James Crystal Licenses, LLC v. Infinity Radio Inc., 43 So. 3d 68, 72 (Fla. 4th DCA 2010) (reversing award of lost profits where damages calculation consisted solely of a summary of lost accounts prepared by plaintiff’s employee).

Beyond being speculative, the spreadsheet is factually inaccurate. The spreadsheet suggested that MTA previously performed certain work for JM Brennan, no longer was performing that work and – as a result – had lost profits. In the past, MTA had performed work for JM Brennan at Columbia St. Mary’s Hospital. ¶112. Because MTA is no longer performing work for JM Brennan at Columbia St. Mary’s Hospital, MTA suggests that it has lost this revenue as a result of the Moons wrongful conduct. This lost revenue is included in MTA’s spreadsheet. But as it turns out, MTA has not lost this revenue. As MTA’s own papers and witnesses make clear, MTA is still performing the exact same work at Columbia St. Mary’s Hospital, but doing so through a different mechanical contractor called Grunow Company, Inc. ¶112. MTA is still receiving that same revenue, but through a different intermediary. Ms. Hunter confirmed this in her testimony:

1. If you made a thousand dollars on doing work at Columbia St. Mary’s through — through J.M. Brennan one year, and you made a thousand dollars doing work at Columbia St. Mary’s through another contractor another year, didn’t you still make a thousand dollars?
2. I did.

. . .

1. Would the fact that you still made that thousand dollars be reported on your MTA’s loss of revenues spreadsheet?
2. The person who paid us for those services are that list there. It’s not our entire book of business.
3. But if you look at your sheet, okay, where you have $166,873.44 from J.M. Brennan during that almost three-year time period, if — if a thousand dollars of that money — if you still made it through a different vendor, didn’t you still make that money if it was billed to a different vendor?
4. Yes.

¶116. In other instances, MTA’s own documents and witnesses establish that certain work that MTA previously billed to JM Brennan, MTA was now performing directly for hospitals and billing those hospitals directly. ¶112.

Q: Did you continue performing work at Community Memorial Hospital? Even though J.M. Brennan might have been out of the equation, did you continue performing work for Community Memorial Hospital?

1. I see we did a project facility direct at that location.
2. So previously, you billed certain things to J.M. Brennan. Now, in 2014, there’s entries here that say you billed them directly to Community Memorial Hospital?
3. That is what is represented here, yes.
4. If you did work in Community Memorial Hospital and you billed J.M. Brennan $5,000, how much revenue would you receive?
5. $5,000.
6. In 2014, if you did the same work directly for Community Memorial Hospital, just not through J.M. Brennan, and you billed Community Memorial Hospital directly $5,000, how much revenue would you receive?
7. $5,000.

¶116. Again, MTA’s spreadsheet suggests MTA lost this revenue because of the Moons’ wrongful conduct. In reality, MTA is still making this same revenue, but billing it directly to a hospital rather than to JM Brennan.

In short, MTA has failed to establish any damages that can be traced to allegedly wrongful conduct by the Moons. MTA has not offered an expert report on damages. Given the complexity of calculating damages in this case, MTA’s lack of expert testimony on damages is itself dispositive. Further, MTA has offered nothing that could approximate a formal calculation of its damages. MTA’s lost revenues spreadsheet is amateurish, speculative, inaccurate and entirely insufficient as a matter of law. There is nothing in the record that would allow MTA to proceed to trial and prove its claimed lost profits with reasonable certainty, as required under Florida law. For these reasons, the Court should grant partial summary judgment in favor of the Moons as to damages.

1. Cheryl Moon’s Non-Compete Agreement is Unenforceable Because it is Expired

Florida law provides a framework to assist courts in determining the reasonableness in time of restrictive covenants. Fla. Stat. Ann. § 542.335(1)(d). When it comes to former employees, 6 month restrictive covenants are presumptively reasonable while those lasting over 2 years are presumptively unreasonable. Fla. Stat. Ann. § 542.335(1)(d)(1). In terms of sellers of a business, 3 year restrictions are reasonable while those lasting over 7 are considered unreasonable. Fla. Stat. Ann. § 542.335(1)(d)(3).

Admittedly, Cheryl Moon was both an employee of MTA as well as a seller of a business to MTA. However, the operative question with respect Cheryl Moon’s restrictive covenants is whether she agreed to them as a seller or as a prospective employee. That question turns on whether the restrictive covenants constituted part of the consideration associated with the sale of Moon Medical. See, e.g. Rinker Materials Corp. of W. Palm Beach v. Holloway Materials Corp., 167 So. 2d 875, 875 (Fla. 2nd DCA 1964)(enforcing restrictive covenants against concrete products business where covenants were agreed to as part of stock purchase agreement and were contained within the agreement itself); Coastal Loading, Inc. v. Tile Roof Loading, Inc., 908 So. 2d 609, 612 (Fla. 2nd DCA 2005)(Upholding validity of, though strictly construing, restrictive covenants where, “[t]he Asset Purchase Agreement reflect[ed] that at closing, the parties would enter into a separate agreement not to compete.”); and Wilson v. Pigue, 151 Fla. 734, 735-36, 10 So. 2d 561, 561 (1942)(Upholding restrictive covenant where, “Pigue, for a consideration of $900, sold to E. H. Wilson his well drilling equipment and the business of drilling wells in St. Johns County, Florida, and covenanted not to engage in the well drilling business in St. Johns County[.]”).  As Cheryl Moon’s restrictive covenants (1) were not set forth in the purchase and sale agreement, (2) were not contemplated by the purchase and sale agreement, and (3) did not state that they were entered into as part of the consideration in connection with the purchase and sale agreement, they are rightly construed as covenants between an employer and employee.

On this point, USI Ins. Servs. of Florida Inc. v. Pettineo is particularly instructive.   There, the agreement for the sale of an insurance agency contained a provision that restricted the seller of the business from carrying on a business in competition with the purchaser of the business for a period of five years from the date of the purchase. USI Ins. Servs. of Florida Inc. v. Pettineo, 987 So. 2d 763, 765 (Fla. Dist. Ct. App. 2008). Finding that the purchaser had purchased the right to serve customers in a particular line of business free from competition by the seller, the Court reasoned that, “Parties to the sale of a business are free to forge agreements which have for their object the removal of a rival and competitor in a business.” Id at 767(internal quotations and citations omitted).

Here, the parties to the purchase and sale agreement did not forge an agreement which had for its object the removal of Cheryl Moon from the field of competition. The Moon Medical Purchase and sale agreement contained two provisions that contemplated the existence of restrictive covenants. ¶¶20 – 22. The first provision sets forth that Moon Medical employees hired by MTA would be required to submit to restrictive covenants with durations of two years from the closing of the sale. ¶21. The second provision stated that, “Buyer shall have a written Employment Agreement with Alfred W. Moon, for his full time employment upon the terms and conditions as per Exhibit ‘9’ which shall include, inter alia, a comprehensive ‘Non-Competition, Non-Disclosure and Non-Solicitation Agreement’ for a period of five (5) years from the Closing Date.” ¶22. There is nothing in the purchase and sale agreement tying Cheryl Moon to a restrictive covenant.

Further, while Alfred Moon’s initial employment agreement specifically expressed that his employment – and by extension his restrictive covenants – was part and parcel of MTA’s purchase of Moon Medical, Cheryl Moon’s agreement did not. Alfred Moon’s agreement stated:

WHEREAS, Mr. Moon and his wife Cheryl Moon are the sole shareholders, directors and officers of Moon Medical, Inc, herein after also referenced as the “Business” which Business has this date sold its name and certain of its selected business assets to the Company pursuant to the terms of an Agreement For Purchase and Sale of Selected Business Assets which Agreement provides, in part, for Mr. Moon’s employment by the Company for a term of five years[.]

 

¶23 – 24. Later, specifically with respect to the non-compete portion of Mr. Moon’s agreement, the agreement reads:

As an inducement for Company to enter into the Agreement for Purchase and Sale of Business Assets and as additional consideration for the amount to be paid to he and his wife under the Agreement for Purchase and Sale of Business Assets, Mr. Moon has agreed and does now agree that for a period of two (2) years following the end of his employment with Company…

 

¶25. Cheryl Moon’s agreement contains none of this language.

If Cheryl Moon’s employment agreement is construed as a stand-alone document, it is clear that the 5-year temporal restriction contemplated by the agreement is unreasonable as Mrs. Moon was entering the agreement as an employee.

Construing Cheryl Moon’s agreement alongside the purchase and sale agreement and Alfred Moon’s initial agreement only makes this point more clear. The purchase and sale agreement and Alfred Moon’s agreement make it clear that MTA (1) considered the purchase of Moon Medical to be contingent upon Al Moon being restricted from the field of competition and (2) MTA knew how to draft such a restriction. That MTA did not draft such an agreement with respect to Cheryl Moon demonstrates that MTA’s purchase of Moon Medical was not contingent upon their ability to restrict Cheryl – an accountant, not a medical gas verifier – from competition. ¶12. As such, Mrs. Moon’s restrictive covenants have long since expired and summary judgment should be entered in her favor on Plaintiff’s claim for declaratory relief and on each of Defendant’s Counter-Claims.

• Al Moon, Megan White, and Chip Moon Have Not Breached Their Non-Compete Agreements

MTA has alleged that Alfred Moon, Megan White, and Chip Moon breached their restrictive covenants. ¶111. Each of the agreements contains four restrictive covenants: a confidentiality agreement, a non-compete agreement, a non-solicitation agreement, and a non-disparagement agreement. ¶¶31 & 36 – 38. With respect to the confidentiality, non-solicitation, and non-disparagement agreements, there are disputed issues of fact that would make summary judgment inappropriate. However, MTA has specifically alleged that Alfred, Megan, and Chip breached the non-competition provisions of their respective agreements. ¶111. With respect to this allegation, there are no disputed issues of fact, as the only pertinent fact is that the Moons have not conducted any business within the restricted territory. While this Court should leave intact MTA’s claims for breach of the non-solicitation and other restrictive covenants, MTA’s claim for breach of the non-compete provision is ripe for summary judgment.

Alfred, Megan, and Chip were restricted from competing in the states of Kansas, Missouri, Nebraska, and Iowa. ¶¶34 & 38. Subsequent to leaving MTA, neither Alfred, nor Megan, nor Chip has conducted any business in competition with MTA in the states of Kansas, Missouri, Nebraska, or Iowa. ¶108. MTA has offered no evidence to support its conclusory allegation that such competition occurred. See Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984) (conclusory allegations are not sufficient to defeat summary judgment). As such, summary judgment as to the alleged violations of the non-compete provision of their respective agreements should be entered.

CONCLUSION

           For the foregoing reasons, the Moons’ Motion for Partial Summary Judgment should be granted.

 

Dated: December 5, 2014                                                  Respectfully submitted,

By: s/ Jonathan Pollard

 

[1] All paragraph citations herein refer to D.E. 102 – Plaintiffs’ Statement of Undisputed Facts in Support of Motion for Partial Summary Judgment.

[2] To the extent MTA suggests that its damages take the form of lost goodwill, the same principles – and same legal authority – apply. See, e.g.,Mee Indus. v. Dow Chem. Co., 608 F.3d 1202, 1222 (11th Cir. 2010) (noting that valuing damages in the form of lost goodwill requires expert testimony).

[3] To the extent Ms. Hunter or MTA are suggesting that they are entitled to disgorgement, they are wrong. Disgorgement is not available as a measure of damages in this case. See, Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1245 (11th Cir. 2009).