Filing # 198421840 E-Filed 05/15/2024 08:06:21 PM
`
`IN THE CIRCUIT COURT IN AND FOR THE
`ELEVENTH JUDICIAL CIRCUIT IN AND
`FOR MIAMI-DADE COUNTY, FLORIDA
`
` CASE NUMBER: 2023-026899-CA-01
`
`
`
`
`
`
`
`Defendants
`
`OSPA BEHAVIOR THERAPY
`SERVICES, INC.,
`
`
`
`
`Plaintiffs,
`
`vs.
`
`MAUREEN DIAZ CABRERA
`AND LUCILENE CATALDO;
`
`
`
`___________________________________/
`
`
`LUCILENE CATALDO’S BENCH MEMORANDUM
`OF LAW REGARDING THE ABSENCE OF A LEGITIMATE
`BUSINESS INTEREST IN ADVANCE OF THE INJUNCTION HEARING
`
`Lucilene Cataldo (“Cataldo”) provides the Court with her bench memorandum regarding
`
`
`
`
`OsPa Behavior Therapy Services, Inc.’s (“OsPa”) inability to demonstrate the existence of one or
`
`more legitimate business interests needed to sustain enforcement of any relevant restrictive
`
`covenant provisions against Cataldo in advance of the May 18, 2024 hearing on OsPa’s Verified
`
`Motion for Temporary Injunction (the Motion).
`
`A.
`
`OsPa must prove it has at least one legitimate business interest justifying enforcement
`of its alleged restrictive covenant provisions against Cataldo.
`
`The law presumes every restraint on trade is unlawful with limited exception. Fla. Stat. §
`
`542.18 (“Every contract, combination, or conspiracy in restraint of trade or commerce in this state
`
`is unlawful.”). To satisfy the limited exception, the proponent of a restrictive covenant must plead
`
`and prove the existence of a legitimate business interest justifying the covenant. Fla. Stat. §
`
`542.335(1)(b) (“The person seeking enforcement of a restrictive covenant shall plead and prove
`
`the existence of one or more legitimate business interests justifying the restrictive covenant.”). As
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel:954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`a result, “[s]ection 542.335 does not protect covenants ‘whose sole purpose is to prevent
`
` CASE NO.: 2023-026899-CA-01
`
`
`
`competition per se’ because those contracts are void against public policy.” White v. Mederi
`
`Caretenders Visiting Services of Se. Florida, LLC, 226 So. 3d 774, 785 (Fla. 2017) (emphasis
`
`supplied) (quoting Capelouto v. Orkin Exterminating Co. of Fla., Inc., 183 So.2d 532, 534 (Fla.
`
`1966)). “For an employer to be entitled to protection, ‘there must be special facts present over and
`
`above ordinary competition’ such that, absent a non-competition agreement, ‘the employee would
`
`gain an unfair advantage in future competition with the employer.’” White, 226 So. 3d at 785
`
`(quoting Passalacqua v. Naviant, Inc., 844 So.2d 792, 795 (Fla. 4th DCA 2003)).
`
`OsPa claims it “has numerous business interests justifying enforcing the restrictive
`
`covenants”, which include “OsPa’s trade secrets, training, policies and procedures, sales
`
`techniques, pricing, valuable business information that does not otherwise qualify as trade secrets,
`
`substantial relationships with specific prospective or existing customers, and customer goodwill.”
`
`Verified Complaint for injunctive Relief and Damages at ⁋⁋ 34-35, 43-44. However, the discovery
`
`exchanged in this lawsuit and the evidence that will be presented at the injunction hearing
`
`demonstrates none of OsPa’s alleged interests justify enforcement of the restrictive covenants.
`
`OsPa does not have substantial relationships with prospective or existing customers, did not
`
`provide Cataldo with extraordinary or specialized training, and does not have any trade secrets or
`
`other confidential information. OsPa’s Verified Motion should be denied as a result.
`
`B.
`
`interests justifying
`legitimate business
`Past customer relationships are not
`enforcement of a restrictive covenant because the relationship already terminated
`and good will does not exist thereafter.
`
`No legitimate business interest can exist between the plaintiff and its customer when the
`
`customer refuses to conduct business with the plaintiff. This is why the customer relationship
`
`legitimate business interests defined within Florida’s Valid Restraints on Trade or Commerce
`
`
`
` 2
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`Statute are limited to “substantial relationships with specific prospective or existing customers,
`
` CASE NO.: 2023-026899-CA-01
`
`
`
`patients, or clients.” See Fla. Stat. § 542.335 (1)(b)(1)-(4) (emphasis supplied). Former customers
`
`are omitted from the statute because there is no relationship to protect.
`
`Enforcing a restrictive covenant based on past customer relationships is tantamount to
`
`preventing lawful competition, and thus void against public policy pursuant to Florida’s Supreme
`
`Court. White, 226 So. 3d at 785. Cataldo provides a list of authorities below substantiating this
`
`well-established point of law.
`
`
`
`IDMWORKS, L.L.C. v. Pophaly, 192 F. Supp.3d 1335, 1340-42 (S.D. Fla 2016) (finding
`
`that the plaintiff had no legitimate business interest because the former customer
`
`terminated the existing business relationship after confronting the plaintiff).
`
` Properties of Villages, Inc. v. Kranz, No. 19cv647, 2020 WL 6270932, at *1 (M.D. Fla.
`
`Oct. 7, 2020) (“The evidence reflected customers that Plaintiff hoped to contract with in
`
`the future but that is insufficient.”)
`
` Evans v. Generic Solution Engineering, L.L.C., 178 So. 3d 114, 117 (5th DCA 2015)
`
`(holding that the plaintiff had no legitimate business interest in a former client that could
`
`have renewed a contract with the plaintiff but chose not to).
`
` Env’t Services, Inc. v. Carter, 9 So. 3d 1258, 1265 (5th DCA 2009) (Reaffirming “that the
`
`protection of former customers generally does not qualify as a legitimate business interest
`
`where no identifiable agreement exists with such customers establishing that they would
`
`return with future work.”) (entering an injunction on different gourds).
`
`
`
`
`
`
`
` 3
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`
`
`
` CASE NO.: 2023-026899-CA-01
`
` Variable Annuity Insurance Company (VALIC) v. Fawn Laeng, Case 2013 WL 499982
`
`(M.D. Fla. January 2, 2013) (denying the injunction motion because, inter alia, “[c]lients
`
`should be free to deal with broker of their choosing and not subjected to the turnover of
`
`their accounts to brokers associated with the firm but unfamiliar to the client, unless the
`
`client gives informed consent to the turnover.”) (quoting Prudential Securities Inc. v.
`
`Plunkett, 8 F. Supp. 514, 520 (E.D. Va. 1998)).
`
`Cataldo will present evidence demonstrating OsPa’s alleged customers terminated their
`
`relationship with OsPa and refuse to conduct future business with OsPa.
`
`C.
`
`OsPa’s training, policies, procedures, and sales techniques do not qualify as legitimate
`business interests because they are not extraordinary or specialized within the field
`of behavioral health services.
`
`All training does not qualify as extraordinary or specialized training. “To constitute a
`
`protectible interest,… the provi[sion] of training or education must be extraordinary.” Hapney v.
`
`Cent. Garage, Inc., 579 So. 2d 127, 132 (Fla. 2d DCA 1991), reh'g denied and opinion modified,
`
`(Fla. 2d DCA May 15, 1991). Therefore, the training must go “beyond what is usual, regular,
`
`common, or customary in the industry in which the employee is employed. Id. This is because
`
`extraordinary training allows employees to gain unique skills or an enhanced sophistication that
`
`makes it unfair for those employees to use the new skills to compete. Id.
`
`Most authorities reject the plaintiff’s claim of possessing extraordinary or specialized
`
`training justifying enforcement of a restrictive covenant because the training provided is
`
`commonplace for that particular industry. IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335
`
`(S.D. Fla. 2016) is an example because the court refused to find the plaintiff’s training to be
`
`extraordinary or specialized for three reasons. First, the training provided by the former employer
`
`to the former employee was typical of most industries because the plaintiff failed to produce
`
`
`
` 4
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`evidence demonstrating the training went beyond industry norms. Id. at 1342 (“The only testimony
`
` CASE NO.: 2023-026899-CA-01
`
`
`
`about training within the industry came from the Defendant, who testified that the training he
`
`received was not different from training he would expect to receive at other companies in the
`
`industry.”). Second, the former employer’s provision of a database containing training materials
`
`did not create a legitimate business interest because the evidence established that many other
`
`companies can access the same database for those same training materials. Id. 1342-43. Third, the
`
`evidence revealed that the training materials provided by the employer were optional. Id at 1343;
`
`see also Autonation, Inc. v. O'Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004) (“O'Brien testified that
`
`he was not required to attend the various training seminars and only ‘popped in and out’ of the
`
`meetings. Accordingly, AutoNation has not demonstrated any specialized training exceeding what
`
`would be common or typical in the industry.”).
`
`D.
`
`Trade secrets
`
` trade secret is defined as:
`
` A
`
`
`
`information, including a formula, pattern, compilation, program, device,
`method, technique, or process that:
`
`(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.
`
`
`Fla. Stat. § 688.002 (4). OsPa failed to produce any document that could be considered a trade
`
`secret or valuable confidential business that otherwise does not qualify as trade secret. OsPa cannot
`
`present new documents at the hearing on the Motion that were not disclosed during discovery
`
`because it would violate the Supreme Court of Florida’s edict requiring full disclosure prior to an
`
`
`
` 5
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`evidentiary hearing. See Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981)
`
` CASE NO.: 2023-026899-CA-01
`
`
`
`(indicating courts should exercise their discretion to prohibit evidence when introduction would
`
`prejudice the objection party due to surprise regardless of the nature of the evidence).
`
`
`
`
`
`
`
`
`
`
`
` 6
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`

`

`CATALDO’S BENCH MEMORANDUM
`IN ADVANCE OF INJUNCTION HEARING
`
`
`
`
` CASE NO.: 2023-026899-CA-01
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that the foregoing document was served on all parties of record via
`e-mail through Florida’s ePortal E-filing System on May 15, 2024.
`
`
`Respectfully submitted,
`
`Mavrick Law Firm
`Attorneys for Defendant Lucilene Cataldo
`1620 West Oakland Park Boulevard, Suite 300
`Fort Lauderdale, Florida 33311
`Telephone: (954) 564-2246
`Peter T. Mavrick, Esq.
`E-mail: peter@mavricklaw.com
`Jacob M. Resnick, Esq.
`E-mail: jacob@mavricklaw.com
`Olivia Retenauer, Esq.
`E-mail: olivia@mavricklaw.com
`
`
`
`
`
`By: /s/ Jacob M. Resnick
`
` Peter T. Mavrick
` Florida Bar No.: 0083739
` Jacob M. Resnick
` Florida Bar No.: 0085314
` Olivia Retenauer
` Florida Bar No.: 0101402
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 7
`
`
`MAVRICK LAW FIRM, 1620 W. Oakland Park Blvd., Suite 300, Fort Lauderdale, FL 33311 Tel: 954-564-2246
`
`