Ambiguous Allegations, Lack Of Imminent Harm, And Delay In Taking Action Doom Request For Temporary Restraining Order
In Bridgeview Bank Group v. Meyer, the Illinois Appellate Court recently affirmed the denial of a temporary restraining order (“TRO”) against an individual who joined a competitor and then, among other things, allegedly violated contractual non-solicitation and confidentiality obligations.
As a threshold matter, the Appellate Court was troubled by what it described as Bridgeview’s “leisurely approach” to seeking injunctive relief. The Appellate Court noted that Bridgeview filed the lawsuit three months after Meyer joined a competitor, waited two more weeks to file a motion for a TRO, and then did not notice its motion for a TRO as an emergency motion — instead waiting to present the motion on the trial court’s regular motion call. The Appellate Court emphasized that Bridgeview did not offer any explanation for its slowness to act and explained that “[i]f, as Bridgeview now contends, Meyer’s possession of the contact list, standing alone, is an obvious breach of his confidentiality agreement, we can conceive of no reason why Bridgeview would take such a leisurely approach to protecting that information.”
Although the Appellate Court explained that Bridgeview’s delay, standing alone, did not warrant denial of the TRO, “it was a relevant consideration.”
But that delay in acting was just one of many noted problems with Bridgeview’s case. Starting with Bridgeview’s complaint, the Appellate Court explained it was lacking necessary detail:
there are virtually no well-pled facts in Bridgeview’s complaint regarding information Meyer allegedly took with him or customers he solicited after he left. Rather, the complaint is replete with nonspecific and conclusory allegations. For example, Bridgeview alleged that it had developed ‘unique marketing strategies, processes and information’ without ever describing, even generally, the nature of those strategies, processes or information or what made them ‘unique’ in the banking industry.
The Appellate Court further wrote that “[m]onths after it terminated Meyer, Bridgeview should have been able to identify specific customers it had lost and with which Meyer interacted during his tenure, if there were any.” The Appellate Court added that “Bridgeview’s failure to identify in its complaint even one customer or describe with any specificity the confidential information used or disclosed is inexplicable and, hence, insufficient.”
The Appellate Court then turned to whether the additional materials submitted by Bridgeview at the TRO hearing were sufficient. Here, the Appellate Court held that e-mails and attachments that were not referenced in Bridgeview’s verified complaint and which were not supported by any affidavits were merely “unverified allegations of wrongdoing” which “the trial court could properly have refused to consider.”
Nevertheless, because the trial court did consider these, so, too, did the Appellate Court. The primary focus of the trial court was on a so-called “customer list.” The Appellate Court held that “while certain information on the list may be ‘confidential’ in the sense that it was unknown outside the bank, Bridgeview made no preliminary showing that the information was of any particular value to Meyer or his current employer.” Moreover, the Appellate Court explained that “while, under appropriate circumstances, a customer list can qualify as a trade secret, there is no per se rule affording it such status.” Here, Bridgeview “made no showing that it had a protectable interest in its SBA customer base. Other than a newsletter describing its ‘loyal’ customers, Bridgeview provided no evidence as to the resources devoted to acquiring and retaining customers or the longevity of their relationships with the bank.”
As for alleged violations of Meyer’s confidentiality agreement, the Appellate Court held that the only evidence presented involved a past violation; there was no “indication that the threat of Meyer’s use or disclosure of confidential information was ongoing.”
Ultimately, the Appellate Court concluded that Bridgeview failed to establish either a likelihood of success on the merits or that it would suffer irreparable harm in the absence of a TRO.
Practitioners can take several lessons from this case. First, when it comes to requests for injunctive relief, time is of the essence. Second, when drafting a complaint, even though a plaintiff must take care not to unwittingly publish trade secrets or other confidential information, enough detail must be provided to establish the necessary elements for injunctive relief. Finally, to justify the powerful remedy of an injunction, the requesting party must be able to demonstrate imminent harm, and its claims must be supported by competent evidence.