United States District Court, E.D. Pennsylvania
Catalyst Outdoor Advertising, LLC (Catalyst) moves for a
preliminary injunction enjoining its former employee,
Jennifer Douglas, from continuing her employment with an
alleged competitor. It seeks to enforce the non-compete and
non-solicitation provisions in her employment
agreement. Central to the dispute is the
agreement's failure to define the geographic area where
Douglas may not compete and solicit. The dispositive issue is
whether she works for a company that actually competes in the
same market with Catalyst.
who now sells advertising space in New York City, argues that
the absence of a geographic limitation on the non-competition
bar renders the agreement unreasonably broad. She contends
that even if the non-compete agreement were enforceable,
Catalyst and her new employer, City Outdoor, LLC (City
Outdoor), do not compete in the same market. She maintains
that City Outdoor operates exclusively in Manhattan and the
Bronx, and Catalyst does not.
reviewing the parties' submissions and after a hearing,
we shall deny the motion for a preliminary injunction. City
Outdoor operates exclusively in New York City. Catalyst, on
the other hand, operates billboards in Southeastern
Pennsylvania and one in New Jersey. It has limited plans to
develop in New York and no plans to develop in New York City.
Because we find the two companies do not compete in the same
market, we shall not enjoin Douglas from working for City
Outdoor in New York.
Catalyst, an outdoor advertising company that acquires and
rents billboard space, hired Douglas in February 2016 to grow
its business nationally, she signed an employment agreement
containing non-competition and non-solicitation
clauses. Both provisions have a time limit of two
years. Neither has a geographic limitation. The
noncompetition provides in part:
[F]or the period of two (2) years following the voluntary or
involuntary termination of Employee's [Douglas']
employment with Employer [Catalyst], the Employee [Douglas]
agrees and covenants not to engage in Prohibited Activity
within the out of home media industry.
Activity is defined as:
[A]ctivity in which the Employee [Douglas] contributes her
knowledge, directly or indirectly, in whole or in part, as an
employee, employer, owner, operator, manager, advisor,
consultant, agent, partner, director, stockholder, officer,
volunteer, intern or any other similar capacity to an entity
engaged in the same or similar business as the Employer
is prohibited from working for anyone engaged “in the
same or similar business” as Catalyst, except three of
the largest advertising companies, Clear Channel Outdoor,
Lamar, and Outfront. The non-solicitation clause bars Douglas
from “directly or indirectly” soliciting,
contacting, and attempting to contact or meet with
Catalyst's current or prospective
customers. Douglas is allowed to contact present or
former Catalyst customers if employed by either of the three
excepted companies. However, the exception does not extend to
trade secrets, customer lists, or proprietary or confidential
information. She cannot share that information with
was terminated from Catalyst in November 2017. One month later,
she began working for City Outdoor, another outdoor
advertising company. City Outdoor does not sell any
advertising space in Pennsylvania or New
Jersey. Nor does it have plans to develop
advertising space in those states through 2019.
to enforce the non-compete and non-solicitation provisions,
Catalyst filed a motion for a preliminary injunction to
enjoin Douglas from working at City Outdoor. It contends
that, because City Outdoor also sells billboard space within
the same Designated Market Area (DMA) as Catalyst,
Douglas is prohibited from working there.
does not contend Douglas has any confidential documents or
has disclosed trade secrets. Rather, it maintains that she
possesses knowledge of Catalyst's business and its
development plans that could be used by City Outdoor.
determining whether preliminary injunctive relief is
available, we consider four factors: (1) the likelihood that
Catalyst will succeed on the merits; (2) the threat of
irreparable harm to Catalyst if an injunction is not granted;
(3) whether granting an injunction will result in greater
harm to Douglas than Catalyst; and (4) whether injunctive
relief will be in the public interest. Reilly v. City of
Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017); N.J.
Retail Merchants Ass'n v. Sidamon-Eristoff, 669 F.3d
374, 385-86 (3d Cir. 2012).
moving party demonstrates that it can succeed on the merits
and it will more than likely suffer harm if preliminary
relief is not granted, then we consider and balance the
remaining factors to determine if equitable relief is
warranted. Mazurek v. Armstrong,520 U.S. ...