Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 1 of 33

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
ADECCO USA, INC., ADO STAFFING, INC.,
Plaintiffs,
v.

6:20-cv-00744-MAD-TWD

STAFFWORKS, INC., ANITA VITULLO, KAREN
WALSER, VICKI RODABAUGH, DEBORAH
ROHDE, MAURICA GLORIA, BRIANNA FLINT,
TAYLER FRAVEL, KAREN STANDFORD,
Defendants.
_________________________________________________

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ APPLICATION FOR A TEMPORARY RESTRAINING
ORDER, PRELIMINARY INJUNCTION, AND EXPEDITED DISCOVERY

Respectfully submitted,
PHILLIPS LYTLE LLP
Attorneys for Defendants
Staffworks, Inc., Anita Vitullo, Karen Walser,
Vicki Rodabaugh, Deborah Rohde,
Maurica Gloria, Brianna Flint, Tayler Fravel
and Karen Standford
One Canalside
125 Main Street
Buffalo, New York 14203
(716) 847-8400
Preston L. Zarlock
– Of Counsel –

 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 2 of 33

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES........................................................................................... iii
PRELIMINARY STATEMENT ...................................................................................... 1
STATEMENT OF FACTS .............................................................................................. 3
A.

Introduction and background ...................................................................... 3

B.

Adecco’s corporate restructuring results in corporate dysfunction ................. 3

C.

Adecco’s overbroad restrictions do not protect legitimate interests ................ 7

ARGUMENT .................................................................................................................. 9
POINT I

PRELIMINARY INJUNCTIONS, TEMPORARY RESTRAINING
ORDERS, AND EXPEDITED DISCOVERY ARE
EXTRAORDINARY REMEDIES AND SHOULD NOT BE
READILY GRANTED .............................................................................. 9

POINT II

ADECCO IS NOT ENTITLED TO THE EXTRAORDINARY
RELIEF IT SEEKS....................................................................................11
A.

Adecco cannot demonstrate irreparable harm...................................11

B.

Adecco has not and cannot establish that it will succeed on the
merits ............................................................................................13
1.

The Form Agreements are unenforceable ..............................13
a.

New York law applies – Adecco’s attempt to
impose Florida law after 2015 only establishes its
overreaching ..............................................................13

b.

Adecco cannot demonstrate the “continued
willingness” to employ Defendants necessary to
enforce the restrictions in the Form Agreements
against any of the Former Employees .........................14

c.

The Form Agreements are overbroad as a matter
of New York law .......................................................16

d.

Adecco’s overreaching bars partial enforcement ..........17

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2.

Adecco’s allegations of misappropriation of trade secrets
and unfair competition are baseless and of demonstrably
recent manufacture ...............................................................18

3.

Defendants did not tortiously interfere with contracts or
business relations ..................................................................21

4.

No ongoing conversion of property is at issue in this
case ..................................................................................23

C.

The balance of hardships tips in favor of Defendants ........................23

D.

Adecco’s proposed expedited discovery should be denied for
other reasons ...................................................................................24

CONCLUSION ..............................................................................................................25

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TABLE OF AUTHORITIES
Page(s)
Cases
Alpha Media Works, Inc. v. Perception Research Services, Inc.,
No. 09 Civ. 9563, 2012 WL 406914 (S.D.N.Y. Feb. 9, 2012) .......................................20
Arakelian v. Omnicare Inc.,
735 F. Supp. 2d 22 (S.D.N.Y. 2010) ...........................................................................15
In re AutoHop Litig.,
No. 12 civ. 4155 (LTS)(KNF), 2013 WL 5477495 (S.D.N.Y. Oct. 1, 2013) ..................12
BDO Seidman v. Hirshberg,
93 N.Y.2d 382 (1999) ........................................................................................... 17, 18
Berne Wealth Consulting Servs. LLC v. Englebert,
2020 WL 506639 (S.D.N.Y. Jan. 30, 2020) .................................................................15
Borey v. Nat’l Union Fire Co. of Pittsburgh, Pa.,
934 F.2d 30 (2d Cir. 1991) ..........................................................................................12
Briggs & Stratton Corp. v. Chongquing Rato Power Co., Ltd.,
No. 5:13-cv-0316, 2013 WL 12134085 (N.D.N.Y. Apr. 25, 2013) ................................10
Briskin v. All Seasons Servs.,
206 A.D.2d 906 (4th Dep’t 1994) ................................................................................19
Brown & Brown, Inc. v. Johnson,
115 A.D.3d 162 (4th Dep’t 2014), rev’d, 25 N.Y.3d 364 (2015) ............................... 15, 19
Brown & Brown, Inc. v. Johnson,
158 A.D.3d 1148 (4th Dep’t 2018) ..............................................................................18
Brown & Brown, Inc. v. Johnson,
25 N.Y.3d 364 (2015) .................................................................................. 2, 14, 16, 17
Buchanan Capital Mkts., LLC v. DeLucca,
144 A.D.3d 508 (1st Dep’t 2016) ................................................................................14
Capricorn Mgt. Sys., Inc. v. Govt. Employees Ins. Co.,
15-cv-2926 (DRH)(SIL), 2019 WL 5694256 (E.D.N.Y. 2019) ......................................19
Carvel Corp. v. Noonan,
3 N.Y.3d 182 (2004) ...................................................................................................22

- iii -

 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 5 of 33

Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
547 F.3d 115 (2d Cir. 2008) ........................................................................................22
Citigroup Glob. Mkts. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30 (2d Cir. 2010) ..........................................................................................10
Citizens Sec., Inc. v. Bender,
No. 1:19-cv-916, 2019 WL 3494397 (N.D.N.Y. Aug. 1, 2019) ...................................... 9
Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp.,
42 N.Y.2d 496 (1977) ........................................................................................... 17, 19
Connecticut Res. Recovery Auth. v. Occidental Petroleum Corp.,
705 F.2d 31 (2d Cir. 1983) ..........................................................................................13
Cooney v. Osgood Machinery, Inc.,
81 N.Y.2d 66 (1993) ...................................................................................................21
Davis v. New York City Hous. Auth.,
166 F.3d 432 (2d Cir. 1999) ........................................................................................10
DS Parent, Inc. v. Teich,
No. 5:13-CV-1489 LEK/DEP, 2014 WL 546358 (N.D.N.Y. Feb. 10,
2014) .........................................................................................................................21
Eastman Kodak Co. v. Carmosino,
77 A.D.3d 1434 (4th Dep’t 2010) .......................................................................... 15, 19
Faiveley Transp. Malmo AB v. Wabtec Corp.,
559 F.3d 110 (2d Cir. 2009) ........................................................................................11
Fieger v. Pitney Bowes Credit Corp.,
251 F.3d 386 (2d Cir. 2001) ........................................................................................14
Foundry Servs., Inc. v. Beneflux Corp.,
206 F.2d 214 (2d Cir. 1953) ........................................................................................13
Free Country Ltd v. Drennen,
235 F. Supp. 3d 559 (S.D.N.Y. 2016).................................................................... 13, 24
Frink America, Inc. v. Champion Road Machinery Ltd.,
48 F. Supp. 2d 198 (N.D.N.Y. 1999) ..........................................................................20
Geritrex Corp. v. Dermarite Indus., LLC,
910 F. Supp. 955 (S.D.N.Y. 1996) ..............................................................................18
Giacomello v. J.C. Penney Co.,
175 F. Supp. 2d 568 (S.D.N.Y. 2001)..........................................................................21
- iv -

 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 6 of 33

Grand River Enter. Six Nations, Ltd. v. Pryor,
481 F.3d 60 (2d Cir. 2007) ..........................................................................................11
Grassi & Co, CPAs, P.C. v. Janover Rubinott,
LLC, 82 A.D.3d 700 (2d Dep’t 2011) ..........................................................................15
Iron Mountain Info. Mgmt., Inc. v. Taddeo,
455 F. Supp. 2d 124 (E.D.N.Y. 2006) .........................................................................24
Kirch v. Liberty Media Corp.,
449 F.3d 388 (2d Cir. 2006) ........................................................................................21
Kirsch v. Fleet Street, Ltd.,
148 F.3d 149 (2d Cir. 1998) ........................................................................................15
Kolchin v. Evolution Mkts., Inc.,
182 A.D.3d 408 (1st Dep’t 2020) ................................................................................14
Lama Holding Co. v. Smith Barney Inc.,
88 N.Y.2d 413 (1996) .................................................................................................21
Long Island Minimally Invasive Surgery P.C. v. St. John’s Episcopal Hosp.,
164 A.D.3d 575 (2d Dep’t 2018) .................................................................................18
Lowe v. CUSA, LLC,
No. 09-civ-7766 (PGG), 2011 WL 13334284 (S.D.N.Y. Sept. 29, 2011) .......................15
Markets Group, Inc. v. Oliveria,
18 Civ. 2089 (GHW)(RWL), 2020 WL 820654 (S.D.N.Y. Feb. 3, 2020) ................ 16, 19
Med. Soc’y of State of N.Y. v. Toia,
560 F.2d 535 (2d Cir. 1977) ........................................................................................10
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O’Connor,
194 F.R.D. 618 (N.D. Ill. 2000) ..................................................................................10
Morris v. Schroeder Cap. Man. Int’l,
7 N.Y.3d 616 (2006) ...................................................................................................15
Mullins v. City of New York,
626 F.3d 47 (2d Cir. 2010) ..........................................................................................10
NBT Bancorp, Inc. v. Fleet/Norstar Financial Group, Inc.,
87 N.Y.2d 614 (1996) .................................................................................................22
New York ex rel. Spitzer v. Operation Rescue Nat’l,
273 F.3d 184 (2d Cir. 2001) ........................................................................................23

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Nielsen v. Pioneer Bank,
No. 115-cv-623, 2016 WL 4768798 (N.D.N.Y. Sept. 13, 2016) ....................................16
Notaro v. Koch,
95 F.R.D. 403 (S.D.N.Y. 1982) ............................................................................ 10, 11
Out of Box Promotions, LLC v. Koschitzki,
55 A.D.3d 575 (2008) .................................................................................................22
P.C. v. Skavina,
9 A.D.3d 805 (3d Dep’t 2004), lv. denied, 3 N.Y.3d 612 (2004) ............................... 17, 18
Post v. Merrill Lynch, Pierce, Fenner & Smith,
48 N.Y.2d 84 (1979) ............................................................................................. 14, 15
Pure Power Boot Camp Inc. v. Warrier Fitness Boot Camp, LLC,
813 F. Supp. 2d 489 (S.D.N.Y. 2011).................................................................... 17, 18
Raza v. City of New York,
998 F. Supp. 2d 70 (E.D.N.Y. 2013) ...........................................................................25
Reuters Ltd. v. United Press Int’l, Inc.,
903 F.2d 904 (2d Cir. 1990) ........................................................................................11
Rodriguez ex rel. Rodriguez v. DeBuono,
175 F.3d 227 (2d Cir. 1999) ........................................................................................11
Rush v. Hillside Buffalo, LLC,
314 F. Supp. 3d 477 (W.D.N.Y. 2018) ......................................................................... 9
Savannah Bank, N.A. v. Savings Bank of Fingerlakes,
261 A.D.2d 917 (4th Dep’t 1999) .......................................................................... 19, 21
Sci. Components Corp. v. Sirenza Microdevices, Inc.,
No. 03-cv-1851, 2006 WL 6937123 (E.D.N.Y. July 11, 2006) ......................................18
SIFCO Indus., Inc. v. Advanced Plating Techs., Inc.,
867 F. Supp. 155 (S.D.N.Y. 1994) ..............................................................................15
Sit-Up Ltd. v. IAC/InterActiveCorp.,
No. 05 Civ. 9292, 2008 WL 463884 (S.D.N.Y. Feb. 20, 2008) ............................... 19, 20
Stagliano v. Herkimer Cent. Sch. Dist.,
151 F. Supp. 3d 264 (N.D.N.Y. 2015) .........................................................................10
Thea v. Kleinhandler,
807 F.3d 492 (2d Cir. 2015) ........................................................................................13

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In re UFG Int’l, Inc.,
225 B.R. 51 (S.D.N.Y. 1998) ......................................................................................15
VoiceStream Wireless Corp. v. All U.S. Commc’ns,
149 F. Supp. 2d 29 (S.D.N.Y. 2001) ...........................................................................21
Waterville Inv., Inc. v. Homeland Security Network, Inc.,
No. 08 Civ. 3433, 2010 WL 2695287 (E.D.N.Y. July 2, 2010) .....................................20
Wilkins v. Time Warner Cable, Inc.,
10 F. Supp. 3d 299 (N.D.N.Y. 2014) ..........................................................................15
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ........................................................................................................ 9
Statutes
COBRA ........................................................................................................................... 4
Other Authorities
Federal Rule of Civil Procedure 26...................................................................................10

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PRELIMINARY STATEMENT
Defendants, Staffworks, Inc. (“Staffworks”), Anita Vitullo (“Vitullo”), Karen
Walser (“Walser”), Vicki Rodabaugh (“Rodabaugh”), Deborah Rohde (“Rohde”), Maurica
Gloria (“Gloria”), Brianna Flint (“Flint”), Tayler Fravel (“Fravel”), and Karen Standford
(“Standford”) (collectively “Defendants”), submit this memorandum of law in opposition to
the application by plaintiffs, Adecco USA, Inc. and ADO Staffing, Inc. (collectively,
“Adecco” or “Plaintiffs”), seeking a temporary restraining order, expedited discovery, and a
preliminary injunction.
Adecco recently conducted mass layoffs throughout New York State,
expressly and constructively discharging former employees including Defendants Walser,
Rodabaugh, Rohde, Gloria, Flint, Fravel, and Standford (the “Former Employees”). It
then threatened litigation against those Former Employees when they tried to obtain new
and secure employment, along with the small business owner who dared to take them in
(Vitullo and Staffworks). Worse, it brought this action based on overreaching form
employment agreements (collectively the “Form Agreements”) it imposes on all of its New
York employees despite being indisputably overbroad and unenforceable under New York
law, and entirely disingenuous claims of misappropriation of trade secrets. In short, Adecco
should be denied the extraordinary and drastic remedies of injunctive relief and expedited
discovery because it can demonstrate neither a likelihood of success on the merits nor
irreparable injury if injunctive relief is not granted, and the balance of hardships and the
interest of the public tips decidedly in Defendants’ favor.
On the merits, all of the various Form Agreements Adecco imposed upon all
employees, without exception or modification, are unenforceable for a number of reasons.

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First, Adecco expressly terminated two of the Defendants (Walser and Rodabaugh)
involuntarily and not for cause, and constructively terminated the rest by imposing
furloughs, drastically cutting their pay, and changing their duties. Enforcement of the Form
Agreements is thus barred because Adecco cannot demonstrate the required continued
willingness to employ any of the Former Employees. Second, Adecco forced on
Defendants Gloria, Fravel, and Flint (all New York employees) Form Agreements applying
Florida law after the New York Court of Appeals ruled that such agreements may not be
used in this State because they are offensive to fundamental New York policy.1 Third, all of
the Form Agreements are overbroad as a matter of New York law because each purports to
restrict any post-employment competition for any Adecco customers anywhere in the world.
Because the terms of the Form Agreements and Adecco’s actions demonstrate overreaching,
Adecco is precluded from seeking the equitable remedy of partial enforcement.
Adecco’s claims of improper takings of “trade secret” information is a red
herring. The customer lists and information they identify concern commonly known
commercial enterprises in a limited geographical area. The claims of misappropriation are
demonstrably contrived and are disposed of seriatim in Defendants’ responding declarations.
Simply put, Adecco made no attempt to retrieve any electronic devices or information when
it fired Defendants or when they were forced to resign, and only thereafter raised these
issues once it realized that Defendants would not stay unemployed. The clients themselves
confirm that Adecco’s self-inflicted inability to provide customer service following a
corporate reorganization, not any improper solicitation, is the cause of any loss of business.
Finally, there is no irreparable injury. In the unlikely event that Adecco succeeds, damages

1

Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364, 370 (2015).
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for lost staffing business are easily calculated. But Adecco should be required to prove its
case through normal litigation and motion practice, not by attempting to immediately
overwhelm its smaller adversary to restrict competition.
STATEMENT OF FACTS
A.

Introduction and background
The Former Employees are women who were terminated by, or forced to

resign from, Adecco, a global corporation with revenues of over $5 billion. As part of an
aggressive restructuring plan, two of them – Walser and Rodabaugh – were terminated in
May 2020, following decades of loyal service. Walser Dec. ¶¶ 5-7, 16; Rodabaugh Dec.
¶¶ 4-5, 9. A third – Standford – was furloughed and told to start looking for alternative
employment. Standford Dec. ¶ 15. The remaining four – Rohde, Gloria, Flint, and Fravel
– continued working additional hours for less pay without a structured leadership team. As
their coworkers were fired, branches were closed, and conditions deteriorated, they
submitted their resignations. Rohde Dec. ¶¶ 13-16; Gloria Dec. ¶¶ 10-14, 20; Flint Dec.
¶¶ 13-15; Fravel Dec. ¶¶ 8-13. The working environment became so stressful that at least
one of the Defendants was forced to seek mental health treatment. Flint Dec. ¶ 15.
Fortunately, these women were able to find alternative employment even in
the midst of a severe economic downturn through Staffworks and Vitullo, who have also
been named as Defendants in this action. Adecco responded to their good fortune by
seeking an order that they be precluded from gainful employment.
B.

Adecco’s corporate restructuring results in corporate dysfunction
On April 6, 2020, Adecco instituted a pay cut of 10% for most employees and

began furloughing staff. Walser Dec. ¶ 14. Walser, a Senior Regional Vice President, was

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forced to furlough 14 members of her team. Id. ¶ 13. She was informed further cuts were
coming. Id. On May 12, 2020, an Adecco employee called Walser to tell her that her
position was being eliminated due to corporate restructuring. Id. ¶ 16. Walser was not
provided with any notice prior to the phone call. Id. In fact, she believed she was going to
be asked to take on additional responsibilities when the call was scheduled. Id. Walser was
shocked. Id. Despite the COVID-19 pandemic, her territory was still one of the strongest
companywide. Id. ¶ 31. Nevertheless, she agreed to remain with Adecco until June 1, 2020
to help transition the territory and the team to new leadership. Id. ¶ 16.
Rodabaugh suffered a similar fate. After 18 years with Adecco, she was
terminated on May 13, 2020, with a final work date of May 15. Rodabaugh Dec. ¶¶ 4, 9.2
Two weeks later, Standford, who had worked at Adecco for 22 years, was furloughed.
Standford Dec. ¶¶ 5, 15. Standford asked whether she should seek alternate employment.
Id. ¶ 15. An Adecco employee responded, “that is what I would do.” Id.
During this period, the work atmosphere at Adecco was chaotic. For two
weeks after Standford learned her boss and long-time colleague Walser had been
terminated, she had no idea to whom she was supposed to report or what her
responsibilities were. Id. ¶ 10.3 Knowing that additional layoffs were looming and that their
trying time at Adecco was limited at best, Rohde, Gloria, Flint, and Fravel submitted their

As a single mother of two, with no support, she signed a severance agreement out of fear
of having no income. Id. ¶ 14. Adecco assured her they would pay for COBRA insurance
for the month of June, but did not do so. Id.
2

Many other employees were unsure of who was providing needed supervision and
observed layoffs and location closures. Walser Dec. ¶¶ 18-19. Employees describe being
overworked and facing extreme stress. Fravel Dec. ¶¶ 10-11; Gloria Dec. ¶¶ 11-14. Flint
sought mental health treatment due to the difficult circumstances. Flint Dec. ¶ 15.
3

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resignations in June 2020. Rhode Dec. ¶ 16; Gloria Dec. ¶¶ 14, 20; Flint Dec. ¶¶ 13-14;
Fravel Dec. ¶¶ 10-13.4
This dysfunctional state of affairs was exacerbated by the COVID-19
pandemic. In addition to lack of management guidance, Adecco employees were working
from home, where they had to email and print their own work documents. Walser Dec.
¶ 11; Rodabaugh Dec. ¶ 8. Adecco had also instituted a new policy in February of 2020
requiring the shredding of paper file copies. Flint Dec. ¶ 11; Gloria Dec. ¶ 9. From this
confluence of factors, Adecco has apparently misplaced copies of some client and vendor
terms and conditions, personnel files, and other records. The company incorrectly seeks to
blame Defendants for those losses. The Former Employees’ declarations are clear,
however, that they did not take any such records from Adecco and are not in possession of
any confidential information belonging to the company.5
Similarly, Adecco seeks to blame Defendants for the dissatisfaction of its
clients and its poor recordkeeping. Contrary to Adecco’s claims, Walser worked diligently
during this period to assuage the concerns of Adecco clients about the restructuring and was
able to rescue some clients for Adecco before she left; she did not solicit them. Walser Dec.
¶¶ 20-25. Rodabaugh instructed her team on the location of information for various clients,
and was sure to have the members of her team present when she cleared her office.
Rodabaugh Dec. ¶ 11. None of the Defendants acted to “sabotage” payroll, although some

These resignations were not coordinated as a means of harming Adecco, but were
individual decisions by employees faced with an untenable situation. Rhode Dec. ¶ 16;
Gloria Dec. ¶ 21; Flint Dec. ¶ 18; Fravel Dec. ¶ 13.
4

Walser Dec. ¶ 12; Rodabaugh Dec. ¶¶ 12-13; Standford Dec. ¶ 26; Rhode Dec. ¶¶ 22, 24;
Gloria Dec. ¶ 29; Flint Dec. ¶ 25; Fravel Dec. ¶ 18.
5

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were aware that Adecco clients were experiencing problems with payroll even after they left.
Rohde Dec. ¶¶ 15, 20-21; Flint Dec ¶¶ 16, 21-23; Gloria Dec ¶¶ 15, 27. None of the
Defendants took Adecco’s terms and conditions, although at least one client had been
requesting a copy from Adecco since December. Rohde Dec. ¶ 22.
Adecco attempts to cast Walser’s actions in a particularly sinister light but
none of its allegations hold water. Walser was unfortunately forced to use a hammer to
retrieve personal items from her personal cabinets after misplacing the keys. Walser Dec.
¶ 26. She promptly reported to the branch manager and to maintenance that she had done
so. Id. She did not take any personnel files. Id. And despite Adecco’s attempt to paint this
mundane occurrence as involving some sort of deception, Walser continued to work at
Adecco for another two-and-a-half weeks. Id. ¶ 30. During that time, she ran into
Standford, who was gathering personal effects from her own office. Id. ¶ 27.6 Walser
explains that she forwarded a handful of emails to her personal account on her final day of
work so that she would have proof of her outstanding personal performance and so that she
would have information on a particular project Adecco was pursuing should her former
colleague (who was still working at Adecco) need it. Walser Dec. ¶¶ 31-33.

Underscoring the petty nature of the allegation against Defendants, Adecco claims that the
two women stole a number of coffee mugs, keychains, and similar merchandise that day.
They did no such thing. Walser Dec. ¶ 27; Standford Dec. ¶ 11.
6

Adecco also spends a great deal of time discussing a Facebook page that Gloria created
without Adecco’s approval or involvement. Gloria Dec. ¶ 4; Flint Dec. ¶ 26. That page did
not have a separate password, but was accessible from Gloria’s personal Facebook page.
Gloria Dec. ¶ 25; Flint Dec. ¶ 26. After leaving Adecco, Gloria attempted to remove
references to the company by changing the page’s title to Fingerlakes Staffing, as a
placeholder, and did not solicit business from it. Gloria Dec. ¶¶ 25-26; Flint Dec. ¶ 26.
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Adecco’s accusations of solicitation are likewise unfounded. None of the
Former Employees solicited Adecco colleagues to leave the company. Instead, some
Defendants reached out to their former supervisors once they decided to leave Adecco and
its toxic atmosphere.7 The same is true of Adecco’s clients and associates. As Walser
explains, some former clients contacted her after they became dissatisfied with the service
Adecco was providing following her termination. Walser Dec. ¶¶ 37, 41. A representative
of one of those companies, Felix Schoeller, has submitted a declaration confirming that
poor customer service from Adecco prompted the company to switch staffing companies,
not solicitation by Defendants. Clements Dec. ¶¶ 3-9. As to the Boral associates upon
whom Adecco focuses, they decided to join Staffworks after one associate contacted Flint
and learned she was no longer working at Adecco, not as the result of a lengthy conspiracy
among the Former Employees. Flint Dec. ¶ 21-23.
C.

Adecco’s overbroad restrictions do not protect legitimate interests
Although the Form Agreements that the Former Employees were forced to

sign have some differences, all are overbroad and unenforceable. The Form Agreements
were non-negotiable, required as a condition of employment, and presented to the Former
Employees without the benefit of advice from counsel.8 All of the Form Agreements
attempt to bar the Former Employees from soliciting any Adecco client anywhere in the
world, regardless of whether the employee worked with or even knew of the client while
employed at Adecco. Compl. (Dkt. No. 1) Exs. 1-2 ¶ 9; Exs. 9-10 ¶ 9; Exs. 11-13 ¶ 8(2).

Walser Dec. ¶ 36; Rodabaugh Dec. ¶¶ 16-17; Stanford Dec. ¶ 24; Rohde Dec. ¶ 16; Fravel
Dec. ¶ 12; Flint Dec. ¶ 17; Gloria Dec. ¶ 23.
7

Walser Dec. ¶¶ 6, 10; Rodabaugh Dec. ¶ 4; Standford Dec. ¶ 5; Rhode Dec. ¶ 7; Gloria
Dec. ¶ 6; Flint Dec. ¶ 5; Fravel Dec. ¶ 4.
8

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The Form Agreements signed by Gloria, Fravel, and Flint purport to apply
Florida law even though, as explained below, they were signed after the New York Court of
Appeals held such provisions contravene public policy. Compl. (Dkt. No. 1) Exs. 11-13
¶ 25.9 Those Form Agreements define “Confidential Information” to include any
information regarding procedures, operations, clients, personnel, plans, or objectives; the
names of prospective clients or consultants; and “any other information designated as
confidential” by Adecco. Id. ¶ 4. The other Form Agreements define “Confidential
Information” to include similarly non-confidential items, including the names of clients,
methods of operations, and recruiting techniques. Compl. (Dkt. No. 1) Exs. 1-2, 9-10 ¶ 7.
Yet Defendants’ work at Adecco did not involve trade secrets or other
confidential material.10 Adecco did not use any unique or unusual methods to find clients
or provide specialized training.11 To the contrary, staffing companies build their client base
through hard work and customer service, not secret lists.12 Many employers seek out
multiple staffing companies to bid on work through specific requests or by advertising large
websites, and in the smaller upstate New York market in which the Former Employees
worked, large employers who need staffing services are few and are well known.13

The severance agreement signed by Rodabaugh also purports to apply Florida law.
Compl. (Dkt. No. 1) Ex. 19 ¶ 22.
9

Walser Dec. ¶ 11; Rodabaugh Dec. ¶¶ 7, 13; Standford Dec. ¶ 26; Rhode Dec. ¶ 12;
Gloria Dec. ¶ 29; Flint Dec. ¶ 25; Fravel Dec. ¶ 18.
10

Walser Dec. ¶ 8; Rodabaugh Dec. ¶ 7; Standford Dec. ¶ 7; Rhode Dec. ¶ 9; Gloria Dec.
¶ 7; Flint Dec. ¶ 8; Fravel Dec. ¶ 5.
11

Vitullo Dec. ¶¶ 9, 4-8; Walser Dec. ¶ 12; Rodabaugh Dec. ¶ 7; Standford Dec. ¶ 7; Rhode
Dec. ¶¶ 9, 11; Gloria Dec. ¶ 29; Flint Dec. ¶ 8; Fravel Dec. ¶ 5.
12

13

Vitullo Dec. ¶¶ 22-23; Walser Dec. ¶ 12; Flint Dec. ¶ 10; Gloria Dec. ¶ 19.
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The absence of confidential materials is confirmed by Adecco’s failure to
demand that any of the Former Employees return any particular documents or files when
their employment ended.14 If this information were truly subject to trade secret protection,
Adecco should have exercised due diligence to ensure former employees had no access to it.
Adecco belatedly requested the return of computer hardware only after the Former
Employees’ employment had already ended, Compl. (Dkt. No. 1) ¶ 101 n.51, but had no
interest in the assertedly invaluable information upon which it now bases its claims.
Adecco’s true motivation in forcing the Former Employees to sign the
overbroad agreements, threatening them with litigation, and seeking this injunction is to
prevent ordinary competition. If successful, they will rob Defendants, some of whom are
single mothers, of the ability to secure a livelihood. Rohde Dec. ¶ 31; Flint Dec. ¶ 14.
ARGUMENT
POINT I
PRELIMINARY INJUNCTIONS, TEMPORARY RESTRAINING ORDERS,
AND EXPEDITED DISCOVERY ARE EXTRAORDINARY
REMEDIES AND SHOULD NOT BE READILY GRANTED
Adecco seeks both a preliminary injunction and a temporary restraining
order. Order to Show Cause (Dkt. No. 13) at 1. “Temporary restraining orders and
preliminary injunctions are extraordinary and drastic remedies, which are ‘never awarded as
of right,’ or ‘as a routine matter.’” Citizens Sec., Inc. v. Bender, No. 1:19-cv-916 (MAD/DJS),
2019 WL 3494397, at *2 (N.D.N.Y. Aug. 1, 2019) (quoting Rush v. Hillside Buffalo, LLC, 314
F. Supp. 3d 477, 483-84 (W.D.N.Y. 2018)); see also Winter v. Nat. Res. Def. Council, Inc., 555

Walser Dec. ¶ 42; Rodabaugh Dec. ¶ 19; Standford Dec. ¶ 27; Rhode Dec. ¶ 25; Gloria
Dec. ¶ 29; Flint Dec. ¶ 17; Fravel Dec. ¶ 18.
14

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U.S. 7, 24 (2008); Med. Soc’y of State of N.Y. v. Toia, 560 F.2d 535, 538 (2d Cir. 1977).
Accordingly, a party seeking a preliminary injunction must demonstrate:
(1) irreparable harm should the injunction not be granted, and
(2) either (a) likelihood of success on the merits or
(b) sufficiently serious questions going to the merits and a
balance of hardships tipping decidedly toward the party seeking
injunctive relief.
Citigroup Glob. Mkts. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.
2010). The same standards apply to a request for a temporary restraining order. Stagliano v.
Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264, 272 (N.D.N.Y. 2015).15
Federal Rule of Civil Procedure 26(d) governs the timing and sequence of
discovery and provides in relevant part, “[a] party may not seek discovery from any source
before the parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). This
Court has discretion to alter the timing and sequence provided for by Federal Rules.
However, “[e]xpedited discovery is not the norm.” Merrill Lynch, Pierce, Fenner & Smith, Inc.
v. O’Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000); see also Briggs & Stratton Corp. v.
Chongquing Rato Power Co., Ltd., No. 5:13-cv-0316 (LEK/ATB), 2013 WL 12134085, at *1
(N.D.N.Y. Apr. 25, 2013) (noting “such orders are unusual”). The Court must find true
necessity for the request to deviate from Rule 26 and protect defendants from unfair
expedited discovery. See Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982).
Pursuant to the Notaro standard, courts focus on the following four factors:
(1) irreparable injury, (2) some probability of success on the
merits, (3) some connection between the expedited discovery
Although “affidavits may be considered on a preliminary injunction motion, motions for
preliminary injunction should not be resolved on the basis of affidavits that evince disputed
issues of fact.” Davis v. New York City Hous. Auth., 166 F.3d 432, 437-38 (2d Cir. 1999).
Further, hearsay should be given limited weight at the preliminary injunction phase. See
Mullins v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010).
15

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and the avoidance of irreparable injury, and (4) some evidence
that the injury that will result without the expedited discovery
looms greater than the injury that the defendant will suffer if the
expedited relief is granted.
Dentsply Sirona Inc. v. LIK Supply, Corp., 3:16-cv-00806 (MAD/DEP), 2016 WL 3920241, at
*9 (N.D.N.Y. July 15, 2016); see also Notaro, 95 F.R.D. at 405.
Given the similarities in the standards for temporary restraining orders,
preliminary injunctions, and expedited discovery, Defendants will simultaneously address
Adecco’s failure to meet its burden for these requests. As discussed below, Adecco has not
and cannot establish irreparable harm, that it will succeed on its claims, or that the balance
of hardships tips in its favor.
POINT II
ADECCO IS NOT ENTITLED TO THE
EXTRAORDINARY RELIEF IT SEEKS
A.

Adecco cannot demonstrate irreparable harm
“A showing of irreparable harm is ‘the single most important prerequisite for

the issuance of a preliminary injunction.’” Faiveley Transp. Malmo AB v. Wabtec Corp., 559
F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227,
234 (2d Cir. 1999)). To show irreparable harm, Adecco must demonstrate that “absent a
preliminary injunction [it] will suffer an injury that is neither remote nor speculative, but
actual and imminent, and one that cannot be remedied if a court waits until the end of trial
to resolve the harm.” Id. (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60,
66 (2d Cir. 2007). An irreparable injury is “one incapable of being fully remedied by
monetary damages.” Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990).

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Adecco’s motions should be denied ab initio because Adecco “has . . . failed to
demonstrate the likelihood of any harm, much less irreparable harm in the absence of an
injunction.” In re AutoHop Litig., No. 12 civ. 4155 (LTS)(KNF), 2013 WL 5477495, at *10
(S.D.N.Y. Oct. 1, 2013). As explained below, all of Adecco’s claimed injuries are based on
its inability to constrain the Former Employees with unenforceable restrictive covenants.
Adecco has not lost its ability to staff clients. Instead, Adecco complains that due to market
competition, some of its clients’ staffing work has shifted to competitors. However, any loss
of clients is due to poor service. Vitullo Dec. ¶ 21; Walser Dec. ¶ 37; Clements Dec. ¶¶ 3-9.
Even if Adecco could show that customer attrition were occurring, its motion
would still fail. Any damages resulting from breach of the Form Agreements would be
easily ascertainable. “[W]hen a party can be fully compensated for financial loss by a
money judgment, there is simply no compelling reason why the extraordinary equitable
remedy of a preliminary injunction should be granted.” Borey v. Nat’l Union Fire Co. of
Pittsburgh, Pa., 934 F.2d 30, 34 (2d Cir. 1991) (citation omitted).
Adecco relies on general statements of law concerning cases in which
damages are difficult quantify while ignoring the factual specifics of the staffing industry.
This is not a case in which future business projections are speculative and profit rates
impossible to estimate. Nor does it involve efforts by a former employer to protect goodwill
by ending disparagement or fraud; Adecco’s requested order simply seeks to prevent
Defendants from continuing gainful employment. See Order to Show Cause (Dkt. No. 13)
¶¶ (g), (h), (i). Instead, Adecco’s claims concern nothing more than monetary damages.
And those damages would not be difficult to calculate. Staffing companies like Adecco and
Staffworks apply a set-rate markup on amounts paid to associates placed with clients.

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Vitullo Dec. ¶ 27. To the extent Adecco were able to prevail on the merits of this action,
any monetary damages could be determined with ease by looking to the number of hours
worked by Staffworks associates through allegedly improper placements.16
Because Adecco has not shown that it will be irreparably harmed without a
temporary restraining order, a preliminary injunction, and expedited discovery, its Order to
Show Cause should be denied.
B.

Adecco has not and cannot establish that it will succeed on the merits
Adecco has not and cannot establish that it will be successful on its alleged

causes of action against Defendants. The restrictions in the Form Agreements are
unenforceable as a matter of law, and allegations of trade secret misappropriation/unfair
competition are demonstrably contrived and fail to establish that Adecco has a trade secret
much less that it has suffered misappropriation.
1.

The Form Agreements are unenforceable
a.

New York law applies – Adecco’s attempt to impose Florida law
after 2015 only establishes its overreaching

“Where jurisdiction is predicated on diversity of citizenship, a federal court
must apply the choice-of-law rules of the forum state.” Thea v. Kleinhandler, 807 F.3d 492,

See Connecticut Res. Recovery Auth. v. Occidental Petroleum Corp., 705 F.2d 31, 37 (2d Cir.
1983) (affirming denial of injunctive relief because “[t]he only realistic injury confronting
plaintiffs is economic” and the amount of any such damages would be “readily
ascertainable”); Foundry Servs., Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir. 1953) (“The
ordinary and natural result of such competition would be to dampen the sales of the
appellee; but since any loss so caused could, if a wrong, be adequately redressed by money
damages ascertainable upon proof, it does not constitute the irreparable injury necessary to
justify an injunction pendente lite.”); Free Country Ltd v. Drennen, 235 F. Supp. 3d 559, 568
(S.D.N.Y. 2016) (no irreparable injury because alleged trade secret information would be
used “to undercut [plaintiff’s] business with a defined subset of its customers for a discrete
period of time, which can easily be quantified at trial”).
16

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497 (2d Cir. 2015) (citations omitted). This rule includes the New York choice of law
principle that a contractual choice-of-law provision is unenforceable if it violates the public
policy of the State. See Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir. 2001).
The employment and all other actions of the parties occurred in New York,
and in 2015 the New York Court of Appeals expressly held that Florida law could not be
applied to New York employment agreements. See Brown & Brown, 25 N.Y.3d at 370.
Accordingly, Adecco’s requirement thereafter that its New York employees sign Form
Agreements that require their conduct be measured under rejected Florida law is barred by
the plain language of the Court of Appeals’ holding and the policy behind it. Indisputably,
Adecco seeks to reintroduce the very law that the Court of Appeals found offensive to
fundamental New York public policy. Id. (“[A]pplication of Florida law [to the parties’
agreement] would be offensive to a fundamental public policy of this State.”). It cannot do
so. Instead, New York law applies.
b.

Adecco cannot demonstrate the “continued willingness” to employ
Defendants necessary to enforce the restrictions in the Form
Agreements against any of the Former Employees

As a general rule, restrictive covenants against a former employee are
unenforceable unless the former employer can demonstrate a “continued willingness” to
employ the employee. See Kolchin v. Evolution Mkts., Inc., 182 A.D.3d 408 (1st Dep’t 2020);
Buchanan Capital Mkts., LLC v. DeLucca, 144 A.D.3d 508, 508 (1st Dep’t 2016) (“[Restrictive]
covenants are not enforceable if the employer (plaintiff) does not demonstrate continued
willingness to employ the party covenanting not to compete.”) (citing Post v. Merrill Lynch,
Pierce, Fenner & Smith, 48 N.Y.2d 84, 89 (1979) (“Where the employer terminates the
employment relationship without cause, however, his action necessarily destroys the

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mutuality of obligation on which the covenant rests as well as the employer’s ability to
impose a forfeiture.”)); Grassi & Co, CPAs, P.C. v. Janover Rubinott, LLC, 82 A.D.3d 700 (2d
Dep’t 2011); see also Berne Wealth Consulting Servs. LLC v. Englebert, 2020 WL 506639, at *5
(S.D.N.Y. Jan. 30, 2020); Arakelian v. Omnicare Inc., 735 F. Supp. 2d 22, 41 (S.D.N.Y.
2010); SIFCO Indus., Inc. v. Advanced Plating Techs., Inc., 867 F. Supp. 155, 158 (S.D.N.Y.
1994); In re UFG Int’l, Inc., 225 B.R. 51, 55-56 (S.D.N.Y. 1998).17
Here, Adecco terminated Walser and Rodabaugh. The other Defendants
were constructively discharged by being furloughed, having their pay cut and duties altered,
and being subjected to an unbearable working environment.18 This is especially true as to
Standford, who suffered a change of title and a furlough within a single week, and was

While Adecco’s motion letter response (Dkt. No. 25) contends that this is not a “brightline rule,” the cases it cites do not support a contrary finding. See, e.g., Morris v. Schroeder
Cap. Man. Int’l, 7 N.Y.3d 616 (2006) (holding only that “constructive discharge” test was
appropriate legal standard to apply when determining whether, under “employee choice”
doctrine, employee voluntarily left his employment to work for competitor, thus forfeiting
deferred compensation under his employment agreement). And even the outlying Fourth
Department view recognizes that involuntary termination is relevant in a balancing of the
equities situation. See Eastman Kodak Co. v. Carmosino, 77 A.D.3d 1434, 1436 (4th Dep’t
2010) (a termination without cause prevented the former employer from enforcing a noncompetition clause by injunction); Brown & Brown, Inc. v. Johnson, 115 A.D.3d 162, 170 (4th
Dep’t 2014), rev’d, 25 N.Y.3d at 364 (quoting Eastman Kodak, 77 A.D.3d at 1436) (“[T]his
Court’s decision in Eastman Kodak . . . did not extend the Post holding to establish a per se
rule that involuntary termination without cause renders all restrictive covenants
unenforceable. Rather, this Court cited Post while conducting a ‘balance of the equities’
analysis.”).
17

Rohde Dec. ¶¶ 13-16; Gloria Dec. ¶¶ 10-14; Flint Dec. ¶¶ 13-15; Fravel Dec. ¶¶ 9-12; see
Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 161-62 (2d Cir. 1998) (sharp reduction in pay
constitutes constructive discharge); Wilkins v. Time Warner Cable, Inc., 10 F. Supp. 3d 299,
308 (N.D.N.Y. 2014) (“It is well established that a change in title or loss of pay may support
a claim of constructive discharge.”); Lowe v. CUSA, LLC, No. 09-civ-7766 (PGG), 2011 WL
13334284, at *11 (S.D.N.Y. Sept. 29, 2011) (denying summary judgment on constructive
discharge claim based on “a reduction in pay, a demotion, a failure to promote, and a
forced change in shift”).
18

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advised to start looking for alternative employment.19 Accordingly, Adecco’s attempt to
enforce the Form Agreements fails ab initio.
c.

The Form Agreements are overbroad as a matter of New York law

Each of the Form Agreements prohibits the Former Employee from soliciting
any of Adecco’s customers, wherever located and whether or not the Former Employees
have anything to do with the customer or even knew about the customer. Compl. (Dkt.
No. 1) Exs. 1-2 ¶ 9; Exs. 9-10 ¶ 9; Exs. 11-13 ¶ 8(2). As a practical matter, these provisions
would bar employment within the industry given the relatively small number of potential
clients in the smaller markets at issue. Most also contain a broad non-competition clause
precluding working for any competitor. Compl. (Dkt. No. 1) Exs. 1-2 ¶ 10; Exs. 9-10 ¶ 11.
The Form Agreements are, therefore, overbroad and unenforceable under
New York law. The enforcement of restrictive covenants “is generally limited to instances
where the employee rendered specific substantive services of a confidential nature to the
employer’s customers.” See Brown & Brown, 25 N.Y.3d at 370-71 (concluding that a nonsolicitation provision precluding an employee from “directly or indirectly soliciting,
accepting or servicing . . . a customer or account” of the employer’s New York offices was
overbroad and unenforceable “to the extent that it prohibited [employee] from working
with any of plaintiff’s New York customers, even those [employee] had never met, did not
know about, and for whom she had done no work”).20

Standford Dec. ¶ 15; Nielsen v. Pioneer Bank, No. 115-cv-623 (GLS/CFH), 2016 WL
4768798, at *4 (N.D.N.Y. Sept. 13, 2016) (finding constructive discharge based on
comments that could “reasonably be interpreted as tantamount to a threat of a demotion or
termination”).
19

See also Markets Group, Inc. v. Oliveria, 18 Civ. 2089 (GHW)(RWL), 2020 WL 820654, at
*13 (S.D.N.Y. Feb. 3, 2020) (finding that non-competition and non-solicitation provision
that barred former employee from working for any client or customer was unenforceable
20

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d.

Adecco’s overreaching bars partial enforcement

To determine whether to grant the equitable relief of partial enforcement, “‘a
court should conduct a case specific analysis, focusing on the conduct of the employer in
imposing the terms of the agreement.’” Brown & Brown, 25 N.Y.3d at 371.21 The employer
must “‘demonstrate[] an absence of overreaching, coercive use of dominant bargaining
power, or other anti-competitive misconduct, [and that it] has in good faith sought to protect
a legitimate business interest, consistent with reasonable standards of fair dealing.’” Brown
& Brown, 25 N.Y.3d at 371 (citation omitted). Factors weighing against partial enforcement
include:
the imposition of the covenant in connection with hiring or
continued employment – as opposed to, for example,
imposition in connection with a promotion to a position of
responsibility and trust – the existence of coercion or a general
plan of the employer to forestall competition, and the
employer’s knowledge that the covenant was overly broad.
Scott, Stackrow & Co., C.P.A.’s, P.C. v. Skavina, 9 A.D.3d 805, 807 (3d Dep’t 2004), lv. denied,
3 N.Y.3d 612 (2004).

and recommending dismissal); Pure Power Boot Camp Inc. v. Warrier Fitness Boot Camp, LLC,
813 F. Supp. 2d 489, 511 (S.D.N.Y. 2011) (citing BDO Seidman v. Hirshberg, 93 N.Y.2d 382,
392 (1999) (“Extending the anti-competitive covenant to BDO’s clients with whom a
relationship with defendant did not develop through assignments to perform direct, substantive
accounting services would, therefore, violate the first prong of the common-law rule: it would
constitute a restraint ‘greater than is needed to protect’ these legitimate interests”) (emphasis
added, citation omitted)).
Severance or partial enforcement of an overbroad employee restrictive covenant
constitutes equitable relief. See Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d
496, 499-500 (1977) (“[O]n its face the covenant is too broad to be enforced as written. . . .
Nonetheless, plaintiff now asks us to sever the impermissible from the valid and uphold the
covenant to the extent that it is reasonable. We perceive no basis on which to grant equitable
relief.” (internal quotation marks omitted)).
21

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Here, Adecco required every employee to sign the same unmodifiable
employment agreement as a condition of employment, despite its knowledge that it was
overbroad under BDO Seidman and that Florida law is offensive to New York public policy.
Gloria Dec. ¶ 6; Flint Dec. ¶ 5; Fravel Dec. ¶ 4; see also Walser Dec. ¶¶ 6, 10; Rodabaugh
Dec. ¶ 4; Standford Dec. ¶ 5; Rhode Dec. ¶ 7. Accordingly, the equitable remedy of partial
enforcement is not available, as New York courts will not partially enforce overbroad noncompetes. See Brown & Brown, Inc. v. Johnson, 158 A.D.3d 1148, 1149-50 (4th Dep’t 2018)
(declining to partially enforce non-compete that was a condition of initial employment,
imposed on all employees, and noting that “the fact that the agreement provides for partial
enforcement of the non-solicitation covenant, which is clearly over-broad under New York
law, casts doubt on plaintiffs’ good faith in imposing the covenant”).22
2.

Adecco’s allegations of misappropriation of trade secrets and unfair
competition are baseless and of demonstrably recent manufacture
To state a claim for misappropriation of trade secrets, a plaintiff must allege

that “(1) it possessed a trade secret, and (2) [defendants are] using that trade secret in breach
of an agreement, confidence, or duty, or as a result of discovery by improper means.”
Geritrex Corp. v. Dermarite Indus., LLC, 910 F. Supp. 955, 961 (S.D.N.Y. 1996) (internal
quotation marks and citation omitted) (alteration in original).23

See also Long Island Minimally Invasive Surgery P.C. v. St. John’s Episcopal Hosp., 164 A.D.3d
575, 578 (2d Dep’t 2018) (declining to partially enforce non-compete that was a condition of
initial employment and “clearly overbroad”); Skavina, 9 A.D.3d at 807 (denying partial
enforcement where “plaintiff continued to require defendant to sign the agreement after the
issuance of BDO Seidman, which deemed unreasonable a similar anti-competition agreement
prohibiting the solicitation of an accounting firm’s entire client base and served as notice to
plaintiff that the agreement at issue here was also overly broad”); Pure Power Boot Camp, Inc.,
813 F. Supp. 2d at 509 (denying partial enforcement).
22

Adecco’s unfair competition claim is based on the same factual allegations as its
misappropriation claim and fails for the same reasons. See Sci. Components Corp. v. Sirenza
23

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In evaluating Adecco’s “trade secret” claims, it may not take refuge in the
definitions contained the Form Agreements it unilaterally drafted. Rather, “A trade secret
is defined by law . . . not by contract.” Capricorn Mgt. Sys., Inc. v. Govt. Employees Ins. Co., 15cv-2926 (DRH)(SIL), 2019 WL 5694256, at *17 (E.D.N.Y. 2019), report and recommendation
adopted, 2020 WL 1242616 (E.D.N.Y. 2020) (holding that plaintiff could not rely on the
“NDA’s definition of a trade secret to relieve itself of the requirement that it describe the
purported trade secret at issue with specificity”).
While the issue of whether information is proprietary or a trade secret is often
a question of fact, Brown & Brown, 115 A.D.3d at 173, it is well established that certain items
are not trade secrets. For example, “where the employer’s past or prospective customers’
names are readily ascertainable from sources outside its business, trade secret protection will
not attach and their solicitation by the employee will not be enjoined.” Mkts. Group Inc.,
2020 WL 820654, at *6 (quoting Columbia Ribbon, 42 N.Y. 2d at 499). Similarly, “[m]ere
knowledge of the intricacies of a business” does not qualify as a trade secret. Eastman
Kodak, 77 A.D.3d at 1436. Nor does knowledge of pricing and costs in an industry, or the
specificities used in trade qualify. See Briskin v. All Seasons Servs., 206 A.D.2d 906, 906-07
(4th Dep’t 1994) (declaring that covenants were unenforceable because customer lists and
price structure policy were not trade secrets). Simply put, information is not a trade secret if
it is readily ascertainable through sources outside the plaintiff’s business. Savannah Bank,
N.A. v. Savings Bank of Fingerlakes, 261 A.D.2d 917, 918 (4th Dep’t 1999).24
Microdevices, Inc., No. 03-cv-1851, 2006 WL 6937123, at *19 (E.D.N.Y. July 11, 2006)
(“Where an unfair competition claim duplicates a claim for misappropriation of trade
secrets, the two claims generally rise or fall together.”).
See also Sit-Up Ltd. v. IAC/InterActiveCorp., No. 05 Civ. 9292, 2008 WL 463884, at *9-10
(S.D.N.Y. Feb. 20, 2008) (dismissing claim for misappropriation of trade secrets where
24

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Adecco’s claims of improper takings of “trade secret” information fails as a
matter of law. The customers it identifies are commonly known commercial enterprises in
small markets well known in the area. Vitullo Dec. ¶¶ 9, 22-23; Walser Dec. ¶ 12; Flint
Dec. ¶ 10; Gloria Dec. ¶ 19. Adecco does not identify any particular information or
methods unique to its company. And its contrived claims of misappropriation are wholly
rebutted by Defendants’ responding declarations. Walser Dec. ¶¶ 11-12; Rodabaugh Dec.
¶ 13; Standford Dec. ¶ 26; Rhode Dec. ¶¶ 12, 22; Gloria Dec. ¶ 29; Flint Dec. ¶ 25; Fravel
Dec. ¶ 18. Adecco made no attempt to retrieve electronic devices or particular information
when it fired Defendants or when they resigned, only belatedly raising these issues after
learning Defendants were seeking new employment. Walser Dec. ¶ 42; Rodabaugh Dec.
¶ 19; Standford Dec. ¶ 27; Rhode Dec. ¶ 25; Gloria Dec. ¶ 29; Flint Dec. ¶ 17; Fravel Dec.
¶ 18.
Further, the clients themselves confirm that Adecco’s self-inflicted inability to
provide customer service following its corporate restructuring, not any improper solicitation,
was the cause of any losses that may have been suffered by Adecco. Clements Dec. ¶¶ 3-9.
Accordingly, Adecco also fails to provide any proof of use of its “trade secrets.”25

plaintiff claimed that its “overarching business method” warranted protection, but failed to
“demonstrate[] the way in which the various components fit together as building blocks in
order to form the unique whole” and thus did not raise “a triable issue of fact as to its
unique combination”); Frink America, Inc. v. Champion Road Machinery Ltd., 48 F. Supp. 2d
198, 206 (N.D.N.Y. 1999) (dismissing misappropriation claim where “plaintiff failed to
satisfy its burden of proof that the process or equipment used” in manufacturing its product
“was significantly distinctive or secret as to merit trade secrecy protection”).
See Sit-Up Ltd., 2008 WL 463884, at *13; Alpha Media Works, Inc. v. Perception Research
Services, Inc., No. 09 Civ. 9563, 2012 WL 406914, at *4 (S.D.N.Y. Feb. 9, 2012) (dismissing
claims for misappropriation of trade secrets where the sole evidence proffered was the
allegation that “a former salesman for [plaintiff] who then went to work for [defendant] . . .
stole our proprietary information and distributed it to [defendant]”); Waterville Inv., Inc. v.
Homeland Security Network, Inc., No. 08 Civ. 3433, 2010 WL 2695287, at *5 (E.D.N.Y.
25

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3.

Defendants did not tortiously interfere with contracts or business relations
Adecco’s argument that Staffworks, Walser, Rodabaugh, and Standford

tortiously induced breaches of the other Former Employees’ restrictive covenants fails for
several reasons.26 First, as described above, those covenants are unenforceable and thus no
cause of action for tortious interference with them can be maintained.27
Second, Adecco’s factual assertions are incorrect. Gloria, Flint, Fravel, and
Rohde each elected to end their employment relationship with Adecco after a corporate
restructuring and the economic downturn resulted in the loss of their entire leadership team,
pay cuts, layoffs, furloughs, and general dysfunction. Rhode Dec. ¶ 16; Gloria Dec. ¶¶ 14,
20; Flint Dec. ¶¶ 13-14; Fravel Dec. ¶¶ 10-13. None of these employees “sabotaged”
payroll, stole confidential information, or made false statements about Adecco. Gloria Dec.
¶ 15; Flint Dec. ¶ 16; Rohde Dec. ¶ 15. Third, Adecco has not adduced any evidence
suggesting Staffworks, Walser, Rodabaugh, or Standford engaged in “intentional
procurement of the third-party’s breach.” Kirch v. Liberty Media Corp., 449 F.3d 388, 401-02
(2d Cir. 2006) (quoting Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996)).

July 2, 2010) (dismissing claims for misappropriation of trade secrets where defendants
asserted that they did not use any of the alleged trade secrets at issue and plaintiff failed to
“point to any evidence in the record which controvert[ed] defendants’ evidence”).
Adecco cites to Florida case law regarding tortious interference. However, New York law
applies. “[T]he law of the jurisdiction where the tort occurred will generally apply because
that jurisdiction has the greatest interest in regulating behavior within its borders.” Cooney v.
Osgood Machinery, Inc., 81 N.Y.2d 66, 72 (1993). This rule applies even if injury is suffered
elsewhere. See Giacomello v. J.C. Penney Co., 175 F. Supp. 2d 568, 571 (S.D.N.Y. 2001).
26

See DS Parent, Inc. v. Teich, No. 5:13-CV-1489 LEK/DEP, 2014 WL 546358, at *11
(N.D.N.Y. Feb. 10, 2014) (citing Savannah Bank, 261 A.D.2d at 918); see also VoiceStream
Wireless Corp. v. All U.S. Commc’ns, 149 F. Supp. 2d 29, 33 (S.D.N.Y. 2001) (denying
preliminary injunction on tortious interference claim “because there are serious issues going
to whether the provision violated by [a third party] is enforceable”).
27

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 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 30 of 33

Adecco identifies a laundry list of misconduct that it (incorrectly) believes certain
Defendants committed, Dkt. No. 14, at 18-19, but does not identify any basis for finding
that this alleged misconduct was directed by the other Defendants.
Similar defects doom Adecco’s claim that Defendants tortiously interfered
with the business relationships between Adecco and its clients and associates. Adecco does
not claim that any contract was breached between these parties, and thus may only rely on a
theory of interference with business relations.28 Adecco does not suggest that anything
approaching this level of misconduct occurred. Some clients simply switched companies
after being offered better rates and services.
Second, Defendants have not solicited Adecco’s former clients or associates.
Instead, some of the companies that Adecco identifies contacted Defendants after becoming
dissatisfied with Adecco’s services following its corporate reorganization. For example,
Felix Schoeller was upset that the team of individuals he had been working with for many
years were terminated, and approached Walser about transitioning to Staffworks. Walser
Dec.¶ 37; Clement Dec. ¶¶ 3-9. Similarly, the Boral Associates contacted Flint after
suffering through ongoing problems with Adecco unrelated to the Defendants. Flint Dec.
¶¶ 21-22.

See NBT Bancorp, Inc. v. Fleet/Norstar Financial Group, Inc., 87 N.Y.2d 614, 620-21 (1996).
“The wrongful means requirement makes alleging and proving a tortious interference claim
with business relations more demanding than proving a tortious interference with contract
claim.” Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d Cir. 2008). If,
as is indisputably the case here, “defendants’ actions were motivated, at least in part, by
economic self interest” they “cannot be characterized as solely malicious” and a plaintiff
must show “that the means employed by the defendants were wrongful.” Out of Box
Promotions, LLC v. Koschitzki, 55 A.D.3d 575, 577 (2008). “‘Wrongful means’ include
physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and
some degrees of economic pressure” and are generally “acts that would be criminal or
independently tortious.” Carvel Corp. v. Noonan, 3 N.Y.3d 182, 191-92 (2004).
28

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 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 31 of 33

4.

No ongoing conversion of property is at issue in this case
“When issuing an injunction, a district court’s findings should definitively

confirm that injunctive relief is necessitated by current and ongoing plans or activities . . . .”
New York ex rel. Spitzer v. Operation Rescue Nat’l, 273 F.3d 184, 200 (2d Cir. 2001). Adecco
seeks return of certain property, but an injunction to this effect would be improper.
Defendants have already arranged for the return of all Adecco-issued electronic devices.29
They have also shut down the Facebook account that Gloria created without any
involvement by Adecco. Gloria Dec. ¶ 25.
Because it has been unable to find certain documents, Adecco speculates that
Rodabaugh, Gloria, Rohde, and/or Flint removed terms and conditions for certain
unidentified sub-vendors from the Corning office. They did not. Rodabaugh Dec. ¶ 13,
Gloria Dec. ¶29, Rohde Dec. ¶22, Flint Dec. ¶25. Adecco claims that Walser removed
personnel files from the Syracuse office. She did not. Walser Dec. ¶ 26. It is not clear what
other unspecified business records they claim are in the possession of Defendants. Adecco
also seeks return of pens, coffee mugs and the like which went missing over the course of
approximately one month and Adecco claims without evidence were stolen by Walser and
Standford. They were not. Walser Dec. ¶ 27 Standford Dec. ¶ 11.
C.

The balance of hardships tips in favor of Defendants
Adecco forced the Former Employees to sign overreaching, unenforceable

agreements purporting to bar them from continuing to work in their chosen industry. Its
interest in enforcing these agreements in contravention of the public policy of the State of

Walser Dec. ¶ 42; Rodabaugh Dec. ¶ 23; Standford Dec. ¶ 29; Rhode Dec. ¶ 29; Gloria
Dec. ¶ 30; Flint Dec. ¶ 30; Zarlock Dec. ¶¶ 4-5.
29

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 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 32 of 33

New York is not cognizable. Any other potential harm to Adecco of proceeding under the
present state of affairs would be minimal. At worst, Adecco is threatened with the loss of a
small amount of revenue that could be completely remedied by monetary damages.
In contrast, an injunction would work severe harm to the former employee
Defendants. These individuals, some of whom were fired without cause by Adecco, would
be unable to earn a living. Rohde Dec. ¶ 31; Rodabaugh Dec. ¶ 14.30
D.

Adecco’s proposed expedited discovery should be denied for other reasons
As described above, Adecco has not demonstrated that it is likely to prevail

on the merits or that it will suffer irreparable harm. Its request for expedited discovery
should be denied for additional reasons as well. First, Adecco has not demonstrated a
“connection between the expedited discovery and the avoidance of irreparable injury.”
Dentsply Sirona Inc., 2016 WL 3920241, at *9. Adecco seeks a list of past communications
among Defendants and other individuals and companies that have done business with
Adecco and copies of the same. Order to Show Cause (Dkt. No. 13) ¶¶ (d), (f). Yet Adecco
fails to explain how these requests relate to any future injury. Adecco may mistakenly
believe that past communications will assist it in developing a case for damages, but these
exchanges will not impact any potential for irreparable injury in the future.

See Iron Mountain Info. Mgmt., Inc. v. Taddeo, 455 F. Supp. 2d 124, 141 (E.D.N.Y. 2006)
(even if former employer “would lose a competitive advantage and customer relationships”
balance of hardships favored employee who “would be considerably impeded from his
ability to function as a salesman in his region”); Free Country Ltd, 235 F. Supp. 3d at 568
(equities favored former employee because barring contact with clients “would effectively
mean that [employee] could not work for his new employer” which “has implications not
only for [employee’s] personal welfare, but future employment prospects as well”).
30

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 Case 6:20-cv-00744-MAD-TWD Document 28 Filed 07/15/20 Page 33 of 33

Second, the discovery schedule requested by Adecco is unreasonable.'
Adecco seeks production of a significant number of electronic discovery items within five
days. Production of such documents will require substantial time to conduct appropriate
search and review protocols, especially given the large number of Defendants and the broad
scope of materials Adecco requests. These unreasonable demands demonstrate that
Adecco's true motive is to intimidate its competitors and former employees, some of whom
it terminated without cause, rather than protect any legitimate business interests.
CONCLUSION
For the reasons set forth herein, Adecco's Order to Show Cause for expedited
discovery, a temporary restraining order, and a preliminary injunction should be denied.
Dated: Buffalo, New York
July 15, 2020

PHILLIPS LYTLE LLP

By:

,

1L
Preston L.IZarlock
Attorneys for Defendants
Stajcworks, Inc., Anita Vitullo, Karen Walser,
Vicki Rodabaugh, Deborah Rohde,
Maurica Gloria, Brianna Flint, Tayler Fravel
and Karen Standford
One Canalside
125 Main Street
Buffalo, New York 14203
Telephone No. (716) 847-8400
pzarlock@phillipslytle.corn

Doc #8711393

31 See Raza v. City ofNew York, 998 F. Supp. 2d 70, 75 (E.D.N.Y. 2013) (court must assess
whether "proposed [expedited] discovery schedule is reasonable").

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