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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

THE MSA CARD, LLC, a Florida limited liability company, Plaintiff, vs. Case No. 2015-CA-7552 Complex Business Litigation Court ADRIANO SILVA, Defendant. /

MOTION AND MEMORANDUM OF LAW FOR TEMPORARY INJUNCTION1

(WITH NOTICE)

Plaintiff, THE MSA CARD, LLC (“Plaintiff” or “MSA”) by and through its

undersigned counsel, and pursuant to Rule 1.610 of the Florida Rules of Civil

Procedure and other applicable law, hereby moves for entry of a temporary

injunction (with notice) to enjoin Defendants, CHIEFS CONSULTING GROUP

LLC (“Chiefs Consulting”), KERRY AUGUSTINE (“Augustine”) and ADRIANO

SILVA (“Silva” and together with Chiefs Consulting and Augustine, “the

Defendants”) as follows: (1) enjoining Silva from violating Silva’s Confidentiality

Agreement; (2) enjoining Chiefs Consulting and Augustine from continuing to

1 In support of this Motion, MSA contemporaneously files with the Court the Affidavit of Theodore M. Cranias (“Cranias Aff.”).

Filing # 33246127 E-Filed 10/14/2015 04:40:16 PM

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violate the Non-Disclosure Agreement; (3) enjoining the Defendants from using

Plaintiff's Confidential Information and contractor works belonging the Plaintiff, as

that information is described in Silva’s Confidentiality Agreement and in the Non-

Disclosure Agreement; (4) enjoining the Defendants from transferring any of

Plaintiff's confidential and proprietary information and contractor works to any

third party; (5) requiring the Defendants to immediately return to Plaintiff any

confidential and proprietary information and contractor works belonging to the

Plaintiff and obtained by the Defendants during the course of Defendants'

consulting engagement for the development of the MSA Project; and (6) declaring

that Plaintiff is the rightful owner of the confidential and proprietary information

and contractor works. In support of this motion, Plaintiff states as follows:

INTRODUCTION

Plaintiff engaged Chiefs Consulting to provide information technology

consulting services to Plaintiff, specifically, the MSA Project, more fully described

below. Plaintiff paid Chiefs Consulting over $700,000.00 for work performed and

prior to entering into the engagement, Plaintiff required Chiefs Consulting to

contractually agree to preserve, safeguard and keep confidentiality the intellectual

property that Plaintiff would come to share with Chiefs Consulting and Augustine.

Indeed, Chiefs Consulting also contractually agreed with Plaintiff that it would

require its independent contractors assigned to work on the MSA Project to do the

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very same. However, Chiefs Consulting, through Augustine, quickly breached

those contractual obligations. More egregiously, Chiefs Consulting’s actions show

that it had every intention to steal Plaintiff's Confidential Information, because,

from the very beginning, Chiefs Consulting required Siva, Chiefs Consulting’s

independent contractor, to sign papers whereby Silva agreed that any confidential

information that Silva would come to access through his work on the MSA Project,

belonged exclusively to Chiefs Consulting. Indeed, after gaining access to

Plaintiff’s Confidential Information, Silva, at the direction of Chiefs Consulting

and Augustine, seized said information by electronically transferring it away from

Plaintiff, and to cloud-based computer storage servers and networked “cloud”

infrastructures owned and operated exclusively by the Defendants. Through this

scheme the Defendants have misappropriated, and continue to misappropriate

Plaintiff's confidential, proprietary and trade secret information, all of which is

central to conducting Plaintiff’s core business. Plaintiff is not even able to stop

the bleeding and take over the MSA Project from where Silva and Chiefs

Consulting left off because Plaintiff’s Confidential Information, including

Plaintiff’s source codes, architect documents, software codes, coding diagrams,

logic diagrams, developer notes and instructional materials, are presently under the

exclusive control of the Defendants. Under these circumstances, the relevant

contract documents and Florida law call for an injunction.

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FACTUAL BACKGROUND AND BASIS FOR RELIEF

1. Plaintiff is in the business of providing services within Self-Guided

administration and payment systems for Medicare Set-aside account administrator.

At the time of the acts described hereinbelow, Plaintiff was on the verge of

launching its MSA Project to the industry and had numerous companies showing a

keen interest in partnering with Plaintiff for the use of Plaintiff’s product. Cranias

Aff. ¶ 5.

2. Specifically, during the time it has been in business, Plaintiff has

developed highly profitable proprietary information and confidential tools and

materials, including, without limitation, software programs, codes, protocols and

methodologies, relating to Medicare set-aside Self-Administration account

administration, and this information is referred to in the Confidential Agreement

and more fully described below as “Confidential Information.” Cranias Aff. ¶ 6.

3. This Confidential Information also specifically includes the

operational techniques, processes, formulas, protocols and interfaces associated

with the management of electronic health records, electronic medical records,

together with other ancillary processing techniques designed for the payment,

review, settlement and/or adjudication of medical claims. Cranias Aff. ¶ 7.

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4. This Confidential Information also specifically includes all patents,

trademarks and trade names. Cranias Aff. ¶ 8.

5. Plaintiff’s Confidential Information has been developed by Plaintiff

over time and Plaintiff has put forth a substantial investment in creating and

maintaining said information and materials. Cranias Aff. ¶ 9.

6. Accordingly, if any of Plaintiff's Confidential Information was

revealed or disclosed for use by competitors, potential competitors or otherwise

used in any manner other than to the benefit of Plaintiff, it would cause immediate

and irreparable harm to Plaintiff. Cranias Aff. ¶ 10.

7. Chiefs Consulting is in the business of providing consulting services

to its business clients in the areas of inter alia, financial management, executive

management, information and technology (“IT”) management, project

management and human resource management. Cranias Aff. ¶ 11.

8. Prior to September 24, 2013, MSA began discussions with Chiefs

Consulting for the purpose of exploring the possibility of entering into a consulting

arrangement with Chiefs Consulting, whereby Chiefs Consulting would provide IT

consulting services to MSA so as to assist MSA in designing and implementing a

computer-based software to electronically process the electronic health records and

other electronic medical files necessary to Plaintiff’s business and described

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hereinabove (sometimes referred to hereinafter as the “MSA Project”). Cranias

Aff. ¶ 12.

9. Because any contemplated consulting relationship between MSA and

Chiefs Consulting would necessarily require MSA to share its Confidential

Information with Chiefs Consulting, on September 24, 2013, MSA and Chiefs

Consulting entered into a certain Mutual Confidentiality, Non-Disclosure and Non-

Circumvention Agreement (the “Non-Disclosure Agreement”). A true and correct

copy of the Non-Disclosure Agreement is attached to the Amended Complaint as

Exhibit A. Cranias Aff. ¶ 13.

10. Pursuant to the terms of that certain Non-Disclosure Agreement, the

parties mutually agreed to protect one another’s Confidential Information and

Trade Secrets (together referred to in the Non-Disclosure Agreement as

“Proprietary Information”). Cranias Aff. ¶ 14.

11. Understanding that Chiefs Consulting would likely engage third

parties to perform tasks related to the MSA Project, the parties further agreed as

follows:

The parties shall not disclose any Confidential Information to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agreement or a similar Agreement consented to by the providing Party.

Non-Disclosure Agreement at ¶ 1; Cranias Aff. ¶ 15.

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12. Likewise, with regard to Trade Secrets, the parties similarly, agreed as

follows:

The parties shall not disclose any Trade Secrets to any other person without the prior written consent of the providing Party and then only after such other person executes a copy of this Agreement or a similar Agreement consented to by the providing Party.

Non-Disclosure Agreement at ¶ 2; Cranias Aff. ¶ 16.

13. In paragraph 4 of the Non-Disclosure Agreement the parties agreed

that “upon written request of the other Party…they will surrender to the other Party

any and all data, software, drawings, notes, papers, lists, books, records, and other

media and material, and all copies thereof, which embody contain, or otherwise

disclose Proprietary Information transmitted to them by the other Party….”

Cranias Aff. ¶ 17.

14. In Paragraph 12 of the Non-Disclosure Agreement, the parties agree

that in the event of a breach of the agreement, the aggrieved party shall be entitled

to injunctive relief. Cranias Aff. ¶ 18.

15. In Paragraph 6 of the Non-Disclosure Agreement, Chiefs Consulting

and MSA agree that neither party will “use any of the Proprietary Information

disclosed by the other for any purposes other than the potential Transaction and

business relationships between the Parties for which such information was

disclosed.” In that same paragraph, Chiefs Consulting and MSA further agree that

neither will “use, for the benefit of himself, itself or any other person, persons,

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partnership, association, corporation or other entity, the Proprietary Information in

any manner whatsoever, other than in the course of the receiving Party’s evaluation

of the Transaction or as specifically authorized in writing by the disclosing Party.”

“The receiving Party also agrees not to analyze, sell, show or give the Proprietary

Information or documents relating thereto, or products made or derived from

them, to any third Party.” (emphasis added). Cranias Aff. ¶ 19.

16. The language of paragraph 6 of the Non-Disclosure Agreement

prohibits Chiefs Consulting from using MSA’s software for any anything other

than the MSA Project. Cranias Aff. ¶ 20.

17. Pursuant to the foregoing terms of the Non-Disclosure Agreement,

MSA subsequently provided Chiefs Consulting with a form Confidentiality and

Work Product Agreement (“the Confidentiality Agreement”), prepared by MSA, a

copy of which was to be executed by and between Plaintiff and any third parties

(including computer programmers or software programmers) that Chiefs

Consulting would hire to work on the MSA Project. Cranias Aff. ¶ 21.

18. At some point during the discussions between Chiefs Consulting and

MSA, Chiefs Consulting retained Silva, a software developer, to design the

software for the MSA Project. Cranias Aff. ¶ 22.

19. On or about June 1, 2014, MSA and Chiefs Consulting formalized

their consulting relationship in connection with the MSA Project, and MSA and

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Chiefs Consulting agreed that the project would be managed by Chiefs

Consulting’s Chief Innovations Officer, Augustine. Cranias Aff. ¶ 23.

20. Pursuant to its consulting engagement with MSA, Chiefs Consulting,

through Augustine, agreed to oversee and manage the work of the individual

computer programmers and software developers, like Silva, that Chiefs Consulting

would itself retain in connection with the MSA Project. Cranias Aff. ¶ 24.

21. As was required by the Non-Disclosure Agreement to ensure the

continuing confidentiality of MSA’s proprietary information, Chiefs Consulting

provided Silva with a copy of the Confidentiality Agreement, and Silva executed

that agreement on or about August 14, 2014 (“Silva’s Confidentiality

Agreement”). A true and correct copy of Silva’s Confidentiality Agreement is

attached to the Amended Complaint as Exhibit B. Cranias Aff. ¶ 25.

22. Silva’s Confidentiality Agreement executed by Silva, as Contractor,

specifically provides, in relevant part, as follows:

1. Confidentiality

1.2 Except as may be required in the performance of the Contractor's duties with and for MSA Card, its subsidiaries, divisions or affiliates, Contractor will not at any time, whether during or following the termination of the Contractor's engagement with MSA Card, reveal to any person or organization any Confidential Information of MSA Card, and the Contractor will not use, attempt to use, or assist any third party in using any Confidential Information in any manner that may directly or indirectly injure or cause loss to MSA Card. Contractor agrees to comply with any and all procedures which MSA Card may adopt from time to time to preserve the

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confidentiality of tangible items relating to or containing Confidential Information.

1.3 "Confidential Information" shall mean information of any nature and in any form, whether disclosed prior or subsequent to signing this Agreement, which at the time or times concerned is not generally known to those persons engaged in business similar to that of MSA Card or to that contemplated by MSA Card or any subsidiary, division or affiliate of MSA Card, including, but not limited to, research and development projects and findings, plant design and layout, lists and other data regarding customers or suppliers and prospective customers or suppliers, accounting and financial records, computer programs, job plans, bidding specifications and practices, engineering data and drawings, equipment designs and specifications, Contractor Works (as defined in Section 2.1), shop plans and drawings, formulae, processes, personnel records and information, methods of manufacture, materials handling methods and procedures, costs and all pricing data, new device or product information and evaluations, know now, trade secrets, inventions, discoveries, and improvements, together with all copies of any of the foregoing.

2. Contractor Works.

2.1 All works of authorship, inventions, discoveries and work product, whether or not patentable, and in whatever form, which are created, made or developed by Contractor in the course of performing services for MSA Card, whether prior or subsequent to the signing of this Agreement, and which relate in any way to the current or future business of MSA Card (the "Contractor Works"), including the work itself, all media in which each Contractor Work is rendered or embodied, and all proprietary rights therein, including, but not limited to, invention rights, whether sole or joint, all copyrights created by or arising in Contractor shall belong exclusively to MSA Card. Contractor agrees that, to the extent possible, the Contractor Work is a “work made for hire” for MSA Card, as such term is defined in 17 U.S.C. Sec. 101, and that all copyrights in such Contractor Work shall be, and are, owned solely, completely, and exclusively by MSA Card. To the extent not transferred to MSA Card as a result of the Contractor Work's status as a work made for hire, the Contractor hereby assigns, without further consideration, to MSA Card, its

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successors and assigns, all of Contractor's right, title, and interest in and to the Contractor Work.

2.3 Contractor represents and warrants (a) that all Contractor Works are the original work of the Contractor; (b) that Contractor is the sole author of the Contractor Work and has full power to grant the rights hereby conveyed to MSA Card; (c) that the Contractor Work contains no matter which is libelous or otherwise unlawful, or which infringes any right of privacy, proprietary right, copyright (whether statutory or common law) or other intellectual property right of any third party; and (d) that Contractor has not and will not hereafter enter into any agreement or understanding with any person, firm or corporation other than MSA Card for the rights in the Contractor Work.

3. Return of Confidential Information and Contractor Works. Upon request by MSA Card, and in any event upon termination of Contractor's engagement with MSA Card for whatever reason and irrespective of whether said termination of engagement is voluntary on the part of Contractor, Contractor will deliver to MSA Card all Confidential Information and Contractor Works (including all tangible embodiments thereof), as well as all property belonging to MSA Card, which is in Contractor's custody, possession or control.

4. Remedies. Contractor acknowledges and agrees that in the event of any breach of this agreement, in addition to any other remedies to which MSA Card may be entitled, including, but not limited to, money damages, MSA Card may seek injunctive or other equitable relief to enforce this agreement and to mitigate any damages.

Cranias Aff. ¶ 26.

23. Pursuant to paragraph 1.3 of Silva’s Confidentiality Agreement, all

Contractor Works (as specifically defined in paragraph 2 of the Confidentiality

Agreement and set forth above) constitute “Confidential Information” belonging to

MSA. Cranias Aff. ¶ 27.

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24. Pursuant to the terms of the Non-Disclosure Agreement and the

understanding between MSA and Chiefs Consulting that any relationship between

the two was strictly of a “work-for-hire” nature, Chiefs Consulting obtained from

Silva, Silva’s [executed] Confidentiality Agreement, and delivered that executed

agreement to MSA along with the representation that, consistent with the Non-

Disclosure Agreement, any and all proprietary, confidential and trade secret

information disclosed to Silva and/or Chiefs Consulting, including Silva’s work

product (“Contractor Works”), belonged to MSA. Cranias Aff. ¶ 28.

25. Entirely unbeknownst to MSA, however, notwithstanding paragraphs

1 and 2 of the Non-Disclosure Agreement (between MSA and Chiefs Consulting

which required third parties, like Silva, to execute a Confidentiality Agreement),

and notwithstanding Silva’s Confidentiality Agreement executed on August 14,

2014, on or about May 15, 2014—weeks prior to June 1, 2014 when MSA

formally engaged the services of Chiefs Consulting—Silva, at Chiefs Consulting’s

direction, executed a certain Independent Contractor Agreement pursuant to which

Silva contractually agreed that any and all confidential and proprietary information

to which Silva would come to have access during the course of Silva’s work on the

MSA Project (i.e., MSA’s Confidential Information) belonged exclusively to

Chiefs Consulting. A true and correct copy of the Independent Contractor

Agreement is attached to the Amended Complaint as Exhibit C. Cranias Aff. ¶ 29.

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26. Inconceivably, Schedule “A” attached to and incorporated into the

Independent Contractor Agreement rendered all of MSA’s Confidential

Information provided to Silva during the course of his work on the MSA Project as

the property of Chiefs Consulting:

1. Engagement with the Company as an independent contractor or consultant ("Engagement") will give the Consultant access to proprietary and confidential information belonging to the Company, its customers, its suppliers and others (the proprietary and confidential information is collectively referred to in this Agreement as "Confidential Information"). Confidential Information includes but is not limited to customer lists, marketing plans, proposals, contracts, technical and/or financial information, databases, software and know-how, All Confidential Information remains the confidential and proprietary information of the Company.

Schedule “A” attached to the Independent Contractor Agreement at ¶ 1

(emphasis in original); Cranias Aff. ¶ 30.

27. Further, Schedule “A” also rendered all of Silva’s work product (i.e.,

Silva’s “Contractor Works” as identified in Silva’s Confidentiality Agreement) to

be the exclusive property of Chiefs Consulting:

3. The Consultant may in the course of the Consultant's Engagement with the Company conceive, develop or contribute to material or information related to the Business of the Company, including, without limitation, software, technical documentation, ideas, inventions (whether or not patentable), hardware, know-how, marketing plans, designs, techniques, documentation and records, regardless of the form or media, if any, on which such is stored (referred to in this Agreement as "Proprietary Property"). The Company shall exclusively own, and the Consultant does hereby assign to the Company, all Proprietary Property which the Consultant conceives, develops or contributes to in the course of the Consultant's

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Engagement with the Company and all intellectual and industrial property and other rights of any kind in or relating to the Proprietary Property, including but not limited to all copyright, patent, trade secret and trade-mark rights in or relating to the Proprietary Property. Material or information conceived, developed or contributed to by the Consultant outside work hours on the Company's premises or through the use of the Company's property and/or assets shall also be Proprietary Property and be governed by this Agreement if such material or information relates to the Business of the Company. The Consultant shall keep full and accurate records accessible at all times to the Company relating to all Proprietary Property and shall promptly disclose and deliver to the Company all Proprietary Property.

Schedule “A” attached to the Independent Contractor Agreement at ¶ 3;

Cranias Aff. ¶ 31.

28. Thus, even before Silva has entered into Silva’s Confidentiality

Agreement to protect MSA’s Confidential Information (including all “Contractor

Works”) per the Non-Disclosure Agreement between MSA and Chiefs Consulting,

Chiefs Consulting had already required Silva (and its other consultants) to execute

a separate agreement in which Silva agreed that all of MSA’s Confidential

Information belonged to Chiefs Consulting. Cranias Aff. ¶ 32.

29. By virtue of this calculated and fraudulent scheme, Chiefs Consulting

had no intention of safeguarding or protecting MSA’s Confidential Information

and Trade Secrets and, instead, had every intention to steal and misappropriate that

Confidential Information and Trade Secrets for its own use, benefit, profit,

commercial gain and commercial enterprise. Cranias Aff. ¶ 33.

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30. In or about June 2015, MSA became aware of certain peculiar and

suspicious activities on its computer systems which, at that time, were under the

control of Silva, Chiefs Consulting and Augustine. Cranias Aff. ¶ 34.

31. Specifically, through its investigation, Plaintiff learned that Silva and

Chiefs Consulting, at the direction of Augustine, had electronically transferred

certain Confidential Information belonging to Plaintiff from Plaintiff’s protected

computer servers and networks to cloud-based computer storage servers and

networked “cloud” infrastructures owned, operated and controlled by Silva and/or

Chiefs Consulting. Silva and/or Chiefs Consulting, through Augustine, made these

electronic transfers without Plaintiff’s consent or knowledge. Cranias Aff. ¶ 35.

32. Plaintiff’s investigation revealed that Silva and/or Chiefs Consulting,

at the direction of Augustine, had accomplished the electronic transfers of

Plaintiff’s Confidential Information by, among other things, granting computer

access, privileges and authorizations to himself and third parties, which access,

privileges and authorizations have never been authorized or approved by Plaintiff

or its agents, and which access, privileges and authorizations fall well beyond the

scope of Silva’s consulting duties for Plaintiff. Cranias Aff. ¶ 36.

33. In making the unauthorized transfers of Plaintiff’s Confidential

Information away from Plaintiff’s protected computer servers and networks to

servers and networks exclusively controlled by Silva, Silva and Chiefs Consulting,

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through Augustine, willfully intended to abort and deny Plaintiff’s access to

Confidential Information belonging to Plaintiff. Cranias Aff. ¶ 37.

34. Plaintiff has made every reasonable effort to avoid taking this

measure. Plaintiff has demanded a return of its Confidential Information, including

all Contractor Works, but Silva, Chiefs Consulting, and Augustine have refused to

return those materials to Plaintiff and instead, Chief’s Consulting has demanded

that Plaintiff enter into a licensing agreement for the use of Plaintiff’s own

intellectual property. After filing its Amended Complaint, Plaintiff continued its

efforts toward an early resolution, but those efforts have seemingly collapsed

leaving Plaintiff compelled to come before this Court to seek injunctive relief to

prevent further irreparable harm. Cranias Aff. ¶ 38.

LEGAL ARGUMENT

A. Standard for Temporary Injunction

Pursuant to Rule 1.610 of the Florida Rules of Civil Procedure and the case

law interpreting Rule 1.610, a temporary injunction should be granted if the

movant establishes (i) substantial likelihood of succeeding on the merits, (ii) a

likelihood of irreparable harm, (iii) unavailability of an adequate legal remedy, and

(iv) support for the injunction within consideration of public interest. Phantom of

Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1014 (Fla. 2d DCA 2005).

In deciding whether to issue an injunction in a particular case, a trial court must

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consider the totality of the circumstances and determine whether injunctive relief is

necessary to achieve justice between the parties. Davis v. Joyner, 409 So. 2d 1193,

1195 (Fla. 4th DCA 1982). Establishment of these required elements carries with it

the duty to grant an appropriate remedy, in this case, injunctive relief. See Sentry

Ins. v. Dunn, 411 So. 2d 336 (Fla. 5th DCA 1982).

As set forth herein, Plaintiff satisfies its burden with respect to all four

elements and therefore it has a clear legal right to relief. Plaintiff is seeking the

return of information that belongs to Plaintiff in the first instance, and is simply

asking that the Defendants be compelled to do what they will not agree to do

voluntarily: honor their contractual obligations to safeguard, protect, and return

Plaintiff’s Confidential Information that the Defendants are contractually

prohibited from retaining. Accordingly, the Court should grant Plaintiff’s motion.

B. Plaintiff Has a Substantial Likelihood of Success on the Merits

Injunctive relief is appropriate in this case to protect Plaintiff’s Confidential

Information which, as expressly set forth in the Non-Disclosure Agreement,

constitutes proprietary trade secret information under chapter 688, Florida's

Uniform Trade Secrets Act (“FUTSA”).2 Pursuant to the FUTSA,

2 Section 688.002(4) of the FUTSA defines a “Trade secret” as follows:

(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that:

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misappropriation of a party’s trade secrets is a basis for an injunction. See Hatfield

v. AutoNation, Inc., 939 So. 2d 155, 157-58 (Fla. 4th DCA 2006) (granting a

motion for a temporary injunction and finding that the party seeking an injunction

had a clear legal right and substantial likelihood of success on the merits because

section 688.003, Florida Statutes, provides injunctive relief when trade secrets

have actually been misappropriated, or misappropriation has been threatened); see

also § 688.003, Fla. Stat. (stating that an actual or threatened misappropriation of

trade secrets may be enjoined.)

Specifically, “[a]n injunction with respect to stolen business secrets is

authorized where it will eliminate commercial advantage derived from the

misappropriation and affirmative acts to protect a trade secret can be compelled by

court order.” Id. at 157. Here, the fact that Plaintiff required Chiefs Consulting to

sign the Non-Disclosure Agreement and required Silva to sign Silva’s

Confidentiality Agreement demonstrate that Plaintiff had gone to great lengths to

identify and protect its trade secret information. Plaintiff has itself developed this

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

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information, does not disclose this information to its competitors, and derives

independent economic value by maintaining the confidentiality of this information,

which is not generally known to, or readily ascertainable by proper means, to

anyone outside the company. Disclosure of this information to a competitor would

provide the competitor with economic value and would be devastating to Plaintiff’s

business. Under Florida law “[t]he misappropriation and continuing use of a trade

secret constitutes a continuing tort. The prevention of continuing wrongs is a well-

recognized basis for injunctive relief, as is the prevention of a multiplicity of

suits.” Dotolo v. Schouten, 426 So. 2d 1013, 1015 (Fla. 2d DCA 1983) (internal

citations omitted). Accordingly, in paragraph 12 of the Non-Disclosure Agreement

(by and between Plaintiff and Chiefs Consulting), and in paragraph 4 of Silva’s

Confidentiality Agreement (by and between Plaintiff and Silva), Chiefs Consulting

and Silva respectively each agreed that injunctive relief is an appropriate remedy

for breaches of those written agreements.

Also, here, like in Hatfield, the injunction that Plaintiff seeks is narrowly

focused on protecting Plaintiff’s intellectual property, which includes, without

limitation, Plaintiff’s source codes, architect documents, software codes, coding

diagrams, logic diagrams, developer notes and instructional materials. These

materials fall squarely within the contractual confidentiality agreements executed

by the Defendants pursuant to which the Defendants agreed and committed to

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safeguard said information. Troublingly, however, even before Silva signed

Silva’s Confidentiality Agreement (as Chief Consulting was required to direct

Silva to do per the Non-Disclosure Agreement between Chiefs Consulting and

Plaintiff), Chiefs Consulting, through Augustine, required Silva to agreed that the

Confidential Information belonging to Plaintiff, to which Silva would have access,

belonged to Chief’s Consulting. This course of conduct shows that Chiefs

Consulting and Augustine’s misappropriation was malicious, thus entitling

Plaintiff to an award of attorneys’ fees under section 688.005 of the FUTSA.

C. Plaintiff Has No Available and Adequate Remedy at Law The FUTSA permits Plaintiff to seek monetary damages or injunctive relief

for Defendants’ misappropriation of its trade secrets. See §§ 688.003 and 688.004,

Fla. Stat. Moreover, here, injunctive relief is the proper remedy because Plaintiff’s

damages flowing from the Defendants’ misappropriation of Plaintiff’s confidential

materials are largely unquantifiable and incapable of reasonable ascertainment.

The monetary loss suffered by the Plaintiff is not easily calculable and that is

precisely why, in paragraph 12 of the Non-Disclosure Agreement, both Chiefs

Consulting and Plaintiff expressly acknowledged that “a remedy at law from any

breach of this [Non-Disclosure] Agreement would necessarily be inadequate, and

they thus stipulate that, in the event of any such breach, they shall be entitled to

seek appropriate equitable relief, including, but not limited to, injunctive relief….”

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Similarly, in Silva’s Confidentiality Agreement, Silva agreed that Plaintiff “may

seek injunctive relief or other equitable relief to enforce this agreement and to

mitigate any damages.” On these facts, money damages are not sufficient.

Furthermore, in Count VIII of its Amended Complaint, Plaintiff has pled

claims against Chiefs Consulting for its tortious interference with Silva’s

Confidentiality Agreement, and temporary injunctions have been recognized as a

viable form of relief in a suit for tortious interference with a contract. See

Heavener, Ogier Services, Inc. v. R. W. Florida Region, Inc., 418 So. 2d 1074,

1075 (Fla. 5th DCA 1982); Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d

1371 (Fla. 4th DCA 1987).

D. Plaintiff Can Show a Likelihood of Irreparable Harm

In the absence of a temporary injunction, Plaintiff will suffer irreparable

harm as a result of the Defendants’ continuing misappropriation of Plaintiff’s

Confidential Information. Plaintiff simply has no idea with whom the Defendants

have shared or intend to share Plaintiff’s Confidential Information, and without the

return of its proprietary information, Plaintiff is unable to take over and complete

the software and program development originally undertaken by the Defendants,

because, for example, the Defendants have control of Plaintiff’s source codes.

Indeed, at the time of Defendants unlawful acts, Plaintiff was on the verge of

launching its proprietary software in the form of its “MSA Card” to the industry

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and had multiple companies show significant interest in utilizing Plaintiff’s

product. The Defendants’ refusal to return Plaintiff’s material to Plaintiff has

thwarted Plaintiff’s efforts in completing its product and bringing it to the

marketplace. In cases like these, irreparable injury need not even be alleged or

proven, see Unistar Corp. v. Child, 415 So. 2d 733 (Fla. 3d DCA 1982), and

instead, is implicit in the nature of Plaintiff’s misappropriation and tortious

interference claims.

E. An Injunction Will Serve and Will Not Disserve the Public Interest.

The benefits of injunctive relief to Plaintiff far outweigh any detriment to the

Defendants. Plaintiff seeks an injunction requiring the Defendants to comply with

the written agreements and return the Confidential Information to Plaintiff pending

resolution of the underlying claims and defenses. Chiefs Consulting and

Augustine have deliberately misappropriated Plaintiff’s trade secret information,

have used that information for their own commercial benefit and have now

demanded that Plaintiff pay a licensing fee to Chiefs Consulting for the use its own

information. The evidence shoes that Chiefs Consulting had no intention of

complying with the Non-Disclosure Agreement even though Chiefs Consulting

specifically acknowledged in that agreement that the Confidential Information

belonged to Plaintiff and agreed to safeguard that information, by, among other

things, requiring that all of its subcontractors and independent contractors sign

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confidentiality agreements in which they also expressly agreed to do the same.

Failure to stop the Defendants from further using this stolen information will only

encourage other consultants, third party vendors and competitors to engage in

similar misdeeds. Moreover, an injunction at this early juncture will further serve

to mitigate Plaintiff’s monetary damages arising from the Defendants’

malfeasance.

WHEREFORE, Plaintiff, THE MSA CARD, LLC, respectfully requests that

this Court grant this motion and enter a temporary injunction, together with any

other and further relief that this Court deems just and proper.

CERTIFICATE OF GOOD FAITH CONFERENCE (BCP 5.3)

In compliance with BCP 5.3, on October 14, 2015, Howard Marks, counsel

for Plaintiff, contacted J. Timothy Schulte, counsel for Defendants, Chiefs

Consulting and Augustine, and David H. Popper, counsel for Defendant, Silva, via

telephone with regard to the relief requested in this motion. The Defendants object

to the relief requested in this motion.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on October 14, 2015, a true and correct copy of

the foregoing was filed with the Clerk of Court by using the Florida Courts E-

Filing Portal which will send notice of electronic filing and complete service of the

foregoing as required by Fla. R. Jud. Admin. 2.516 to David H. Popper, Esquire

25514639 v1 24

(dpopper@southmilhausen.com); South Milhausen, P.A., 1000 Legion Place, Suite

1200, Orlando, FL 32801 and J. Timothy Schulte, Esquire,

(tschulte@zkslawfirm.com) Zimmerman, Kiser, Sutcliffe, P.A., 315 E. Robinson

Street, Suite 600, Orlando, Florida 32801.

/s/ Sheena A. Thakrar HOWARD S. MARKS

Florida Bar Number: 0750085 Email: hmarks@burr.com Secondary: dmmorton@burr.com SHEENA A. THAKRAR Florida Bar No. 0871141 Email: sthakrar@burr.com Secondary: jmorgan@burr.com

BURR & FORMAN LLP 200 S. Orange Avenue, Suite 800 Orlando, Florida 32801 Telephone: (407) 540-6600

Attorneys for Plaintiff