The opinion of the court was delivered by: Buckwalter, S. J.
This opinion is filed because after the court announced its decision denying plaintiff's motion for preliminary injunction on April 30, 2013, plaintiff notified the court that it intended to appeal.
Primarily in the interest of the parties having an expeditious decision, the court had announced earlier that it would not request proposed findings of fact and conclusions of law from either side -- an exercise that would add considerable delay to the determination of the issue of vital importance to both sides.
The following is a combination of findings of fact and conclusions of law.
On August 20, 2000, defendant entered into an Employee Agreement With Restrictive Covenants (P-1).
Defendant terminated his employment with plaintiff on February 10, 2013. Prior to that date, on January 4, 2013, he had accepted an offer to work for CoActiv.
On February 11, 2013, defendant was officially welcomed to CoActiv (P-11). In the February 11, 2013 letter (P-11), CoActiv made it clear that they were aware of the Employee Agreement, stating:
We understand that you are or may be party to an Employment Agreement with your former employer, De Lage Landen Financial Services, Inc., which may include certain restrictive covenants and/or obligations to protect De Lage Landen Trade Secrets and/or Confidential Information.
While we do not believe that the restrictive covenants set forth in your Agreement with De Lage Landen Financial Services, Inc. are enforceable under law for a variety of reasons, we do believe that you should take very seriously and fully comply with your obligations thereunder regarding the protection of De Lage Landen Confidential Information and/or Trade Secrets.
CoActiv Capital Partners, Inc. has hired you not because you may possess any particular information, much less Confidential and/or Trade Secret Information of De Lage Landen or any other prior employer, but rather because of your unique and ample skills developed over time.
CoActiv Capital Partners, Inc. expects that you will not breach any Agreement or obligation that you have to refrain from disclosing or using confidential or proprietary information, and you will not disclose to CoActiv or use on CoActiv's behalf any confidential or proprietary information or material belonging to De Lage Landen. Further, you will not use in your work for CoActiv any property of De Lage Landen. Defendant had already breached paragraph IV of the Employee Agreement on or about January 23, giving plaintiff's laptop and security credentials to CoActiv. He subsequently returned his laptop and Blackberry to plaintiff on or about February 20, 2013, five days after plaintiff had initiated this present lawsuit.
On February 25, 2013, the parties appeared before this court on a TRO hearing, which ultimately resulted in a hearing for a preliminary injunction, before which the parties engaged in extensive discovery. At or about the time of the TRO and subsequently, the court expressed its concern regarding the element of irreparable harm and the difficulty in showing that damages are such that can only be adequately compensated by granting an injunction and are not readily susceptible to reducing to a monetary amount.
Aware of this concern, both parties filed numerous briefs on the subject of irreparable harm.
Before getting to the evidence relative to irreparable harm, it should be noted that while the evidence that defendant has breached paragraph IV and paragraph VII (defendant appears to have encouraged a plaintiff's employee to work for CoActiv), the evidence presented with respect to V (non-compete) and VI (non-solicitation) falls short ...