James Turnell v. Centimark Corporation , 796 F.3d 656 ( 2015 )


Menu:
  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 14-2758
    JAMES TURNELL,
    Plaintiff-Appellant,
    v.
    CENTIMARK CORPORATION,
    Defendant-Appellee.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 13 C 2660 — Virginia M. Kendall, Judge.
    ____________________
    ARGUED JANUARY 23, 2015 — DECIDED JULY 29, 2015
    ____________________
    Before WOOD, Chief Judge, and KANNE and TINDER, Circuit
    Judges.
    KANNE, Circuit Judge. After losing his job at CentiMark
    Corporation, Appellant James Turnell went to work for one
    of its competitors. That created a problem, as Turnell’s em-
    ployment contract contained restrictive covenants barring
    him from competing with CentiMark or soliciting its cus-
    tomers for two years after termination. The district court is-
    sued a preliminary injunction partially enforcing the restric-
    2                                                 No. 14-2758
    tive covenants, but only to the extent the court deemed nec-
    essary to protect CentiMark’s legitimate interests. Turnell
    challenges the preliminary injunction on appeal. We affirm.
    I. BACKGROUND
    CentiMark is a large, nationwide roofing company that
    primarily sells and installs flat, single-ply roofing for com-
    mercial and industrial customers. CentiMark hired Turnell
    as a laborer in its Chicago office in 1978, when he was eight-
    een years old. Over the course of thirty-five years with the
    company, Turnell worked his way up the ranks. In 1988
    CentiMark promoted him to Chicago District Operations
    Manager and increased his salary from $45,000 to $50,000
    per year. In return, CentiMark required him to sign an em-
    ployment agreement (the “Agreement”).
    Turnell’s new role would give him access to CentiMark’s
    proprietary information and trade secrets, including sales
    methods and materials, customer accounts, and pricing data.
    So, in return for his promotion and salary increase, Turnell
    agreed to a non-disclosure provision (§ 4.01 of the Agree-
    ment) requiring him to maintain the confidentiality of
    CentiMark’s information.
    He also agreed to two restrictive covenants that Centi-
    Mark regularly requires its management-level employees to
    execute. The first is a non-compete clause (§ 4.05) prohibiting
    Turnell from “engag[ing] … in any Competing Business”
    during the period of his employment and for two years af-
    terward in any of the “regions and/or divisions and/or terri-
    tories” in which he “operated” as a CentiMark employee.
    “Competing Business” includes any company that “sells or
    No. 14-2758                                                  3
    attempts to sell any products or services” that are “the same
    as, or similar to,” CentiMark’s.
    The second restrictive covenant is a non-solicitation pro-
    vision (§ 4.06) providing that Turnell “shall not … solicit the
    trade of, or trade with,” any of CentiMark’s “customers or
    suppliers, or prospective customers or suppliers” during his
    employment and for two years afterward. “Prospective cus-
    tomer” is defined broadly to include anyone “contacted by
    [CentiMark] during the restrictive periods mentioned in this
    Agreement.” But the Agreement does not prohibit all contact
    with customers or prospective customers—only those that
    “would constitute [Turnell’s] engaging in a competitive
    business, as described in [the non-compete clause].”
    After his promotion in 1988, Turnell’s ascent within the
    company continued. He rose from operations manager to
    branch manager to regional manager and, finally, to Senior
    Vice President and Regional Manager for the Midwest Re-
    gion, which encompasses western Michigan, northwest Indi-
    ana, central and northern Illinois, Wisconsin, Minnesota, and
    North and South Dakota. This region is one of CentiMark’s
    largest and most productive, generating over $25 million in
    annual revenue. Turnell was responsible for all regional sales
    (including pricing, marketing, and customer relationships)
    and operations (including staffing, personnel, and financial
    performance). He had regular contact with customers, re-
    viewed all major proposals, and had access to a password-
    protected intranet portal containing information on pro-
    posals, leads, quotes, financial performance, and other data.
    He also participated in monthly conference calls with senior
    executives on company-wide financial projections and strat-
    egy. As regional manager, Turnell earned over $250,000 per
    4                                                 No. 14-2758
    year in base salary and bonuses; in addition, CentiMark
    compensated him with shares in the company worth more
    than $3 million.
    The relationship between Turnell and CentiMark came to
    an end when the company fired him on January 8, 2013. The
    reason, according to CentiMark, is that Turnell had misap-
    propriated company resources and covered up fraudulent
    billing by Vacuum Resources, a subcontracting company
    owned by his wife. According to Turnell, this was a pretext;
    the real reason for his termination had to do with his age, his
    health (he has diabetes and high blood pressure), and his
    high level of compensation.
    Within a week after being fired, Turnell interviewed with
    Windward Roofing and Construction, Inc., a smaller, more
    local roofing company in Chicago. Commercial roofing ac-
    counts for about half of Windward’s business and makes it a
    competitor of CentiMark. But Windward also does other
    work that CentiMark does not, such as shingled residential
    roofing and masonry. CentiMark caught wind of Turnell’s
    discussions with Windward and demanded that he cut them
    off. Turnell testified that he was aware of his contractual ob-
    ligations but did not care whether he was competing with
    CentiMark because he “needed a job.” Turnell made little
    effort to find a job outside commercial roofing.
    Instead, he accepted an offer from Windward and began
    selling commercial roofing for his new employer on or about
    March 1, 2013. He was hired not to service existing accounts
    but to develop new business. To that end, Turnell contacted
    numerous customers or former customers of CentiMark,
    some of whom he had personally worked with during his
    tenure there. He sold services to at least one of those cus-
    No. 14-2758                                                     5
    tomers. And he submitted two bids in head-to-head compe-
    tition with CentiMark, winning one of those jobs for Wind-
    ward.
    CentiMark demanded that Turnell stop working for its
    competitor. After an unfruitful exchange of letters, the par-
    ties took their dispute to court. Turnell and Windward sued
    first, on March 11, 2013, seeking a declaration from the Cir-
    cuit Court of Cook County, Illinois that the Agreement’s re-
    strictive covenants were unenforceable. CentiMark removed
    that lawsuit to the federal district court for the Northern Dis-
    trict of Illinois on April 9. The following day, CentiMark filed
    its own separate action in the Northern District of Illinois
    against Turnell, Windward, and Vacuum Resources to en-
    force the restrictive covenants and to obtain other relief. The
    district court consolidated the two actions.
    CentiMark moved for a preliminary injunction against
    Turnell under Fed. R. Civ. P. 65. After expedited discovery
    and an evidentiary hearing, the district court granted
    CentiMark’s motion on July 10, 2014. But the court found
    Turnell’s restrictive covenants too broad, so it enforced them
    only to the extent it judged “reasonably necessary for the
    protection of CentiMark.” The preliminary injunction reads:
    James Turnell shall not sell, attempt to sell, or help
    sell any products or services, or any combination
    thereof, related to commercial roofing to any per-
    son or entity who was a customer of Centimark
    Corporation as of January 8, 2013 and who is locat-
    ed in Illinois, Indiana, Michigan, Minnesota, North
    Dakota, South Dakota, or Wisconsin.
    The court provided that “[t]his injunction shall remain in ef-
    fect until the earlier of a decision on the merits … or two
    6                                                 No. 14-2758
    years from the date of this order.” The court counted from
    the date of the order rather than the date of Turnell’s termi-
    nation because Turnell’s breach tolled the running of the re-
    strictive periods under the Agreement. Finally, the court re-
    quired CentiMark to post a $250,000 bond.
    The preliminary injunction is narrower than the contrac-
    tual covenants in three respects. First, whereas Turnell’s non-
    compete clause bans all competing business (i.e., sales of
    products or services similar to CentiMark’s), the injunction
    does not. It allows Turnell to remain in commercial roofing,
    subject to restrictions on his ability to sell to CentiMark’s
    customers.
    Second, the injunction only forbids commercial roofing
    sales to actual customers of CentiMark as of Turnell’s termi-
    nation date. Unlike the non-solicitation provision, the injunc-
    tion does not extend to prospective CentiMark customers or to
    persons who were customers in the past.
    Third, the injunction is geographically narrower. There is
    no geographical limitation in the non-solicitation provision,
    and the non-compete covers any region where Turnell “op-
    erated” as a CentiMark employee. But the district court lim-
    ited the injunction’s reach to the Midwest—the region where
    Turnell primarily worked throughout his career and which
    he managed at the time of his departure.
    The district court rejected CentiMark’s request to enjoin
    Turnell from working at Windward altogether. So long as he
    abided by the terms of the preliminary injunction, he was
    free to remain in his new job. The court also rejected Centi-
    Mark’s separate claim that Turnell had violated the non-
    disclosure provision, as there was no evidence of breach.
    No. 14-2758                                                     7
    Nevertheless, Turnell took exception to the court’s order and
    filed a timely notice of appeal.
    We have subject matter jurisdiction based on diversity of
    citizenship under 28 U.S.C. §§ 1441(a)-(b) and 1332. And alt-
    hough this is an interlocutory appeal, we have authority to
    decide it under 28 U.S.C. § 1292(a)(1).
    II. ANALYSIS
    Federal courts sitting in diversity “apply state substan-
    tive law and federal procedural law” under the eponymous
    Erie doctrine. Hanna v. Plumer, 
    380 U.S. 460
    , 465 (1965) (citing
    Erie R.R. v. Tompkins, 
    304 U.S. 64
    (1938)). The district court
    here applied Pennsylvania law, pursuant to a choice-of-law
    clause in the parties’ Agreement, to determine the enforcea-
    bility of the restrictive covenants; and it looked to federal
    law for the standard governing the availability of a prelimi-
    nary injunction. Both parties agree with the first decision,
    and neither party contests the second. (They simply do not
    address the Erie issue). Choice-of-law arguments are normal-
    ly waivable, see Vukadinovich v. McCarthy, 
    59 F.3d 58
    , 62 (7th
    Cir. 1995), so we need not analyze these issues here; we will
    instead follow the same course as the district court.
    A preliminary injunction is an extraordinary equitable
    remedy that is available only when the movant shows clear
    need. Goodman v. Ill. Dep’t of Fin. and Prof’l Regulation, 
    430 F.3d 432
    , 437 (7th Cir. 2005). In our circuit, a district court
    engages in a two-step analysis to decide whether such relief
    is warranted. Girl Scouts of Manitou Council, Inc. v. Girl Scouts
    of USA, Inc., 
    549 F.3d 1079
    , 1085-86 (7th Cir. 2008). In the first
    phase, the party seeking a preliminary injunction must make
    a threshold showing that: (1) absent preliminary injunctive
    8                                                   No. 14-2758
    relief, he will suffer irreparable harm in the interim prior to a
    final resolution; (2) there is no adequate remedy at law; and
    (3) he has a reasonable likelihood of success on the merits. 
    Id. at 1086;
    see also Cooper v. Salazar, 
    196 F.3d 809
    , 813 (7th Cir.
    1999).
    If the movant makes the required threshold showing,
    then the court proceeds to the second phase, in which it con-
    siders: (4) the irreparable harm the moving party will endure
    if the preliminary injunction is wrongfully denied versus the
    irreparable harm to the nonmoving party if it is wrongfully
    granted; and (5) the effects, if any, that the grant or denial of
    the preliminary injunction would have on nonparties (the
    “public interest”). Girl 
    Scouts, 549 F.3d at 1086
    ; 
    Cooper, 196 F.3d at 813
    ; Roland Mach. Co. v. Dresser Indus., Inc., 
    749 F.2d 380
    , 386-88 (7th Cir. 1984). The court weighs the balance of
    potential harms on a “sliding scale” against the movant’s
    likelihood of success: the more likely he is to win, the less
    the balance of harms must weigh in his favor; the less likely
    he is to win, the more it must weigh in his favor. Girl 
    Scouts, 549 F.3d at 1086
    ; 
    Roland, 749 F.2d at 387-88
    .
    On appeal, we review the issuance of a preliminary in-
    junction for abuse of discretion. 
    Cooper, 196 F.3d at 813
    .
    “[B]ecause preliminary injunctions are an unusual remedy
    requiring the application of a definite set of standards, we
    subject them to ‘effective, and not merely perfunctory, appel-
    late review.’” 
    Id. (quoting Roland,
    749 F.2d at 389). A district
    court may abuse its discretion by making a clear factual er-
    ror or a mistake of law. 
    Id. But we
    give substantial deference
    to the court’s weighing of evidence and balancing of the var-
    ious equitable factors. Id.; Girl 
    Scouts, 549 F.3d at 1086
    .
    No. 14-2758                                                    9
    Only two of the preliminary injunction factors are at is-
    sue in this appeal: CentiMark’s likelihood of prevailing in its
    effort to enforce the restrictive covenants (factor 3), and the
    balance of potential harms to the parties (factor 4).
    A. CentiMark’s Likelihood of Success on the Merits
    The district court concluded that CentiMark would likely
    prevail in its action to enforce Turnell‘s non-compete and
    non-solicitation covenants, but only to the extent reasonably
    necessary for CentiMark’s protection. Pennsylvania law dis-
    favors restrictive covenants because it views them as re-
    straints on trade and impediments to an employee’s ability
    to earn a living. Hess v. Gebhard & Co., 
    808 A.2d 912
    , 917 (Pa.
    2002). But Pennsylvania also recognizes restrictive covenants
    as “important business tools.” See 
    id. at 917-18;
    cf. Outsource
    Int’l, Inc. v. Barton, 
    192 F.3d 662
    , 669-70 (7th Cir. 1999) (Pos-
    ner, J., dissenting) (discussing the economic benefits of cove-
    nants not to compete). Pennsylvania courts will therefore en-
    force a restrictive covenant so long as it is “incident to an
    employment relationship between the parties; the re-
    strictions imposed by the covenant are reasonably necessary
    for the protection of the employer; and the restrictions im-
    posed are reasonably limited in duration and geographic ex-
    tent.” 
    Hess, 808 A.2d at 917
    .
    If the covenant’s restrictions are too broad, “a court of
    equity may grant enforcement limited to those portions of
    the restrictions that are reasonably necessary for the protec-
    tion of the employer.” 
    Id. at 920.
    Partial enforcement in these
    circumstances is sometimes called “blue penciling” (appar-
    ently a throwback to the days when lawyers edited written
    work with a blue pencil). The Supreme Court of Pennsylva-
    nia has “repeatedly held” that courts have discretion to use
    10                                                   No. 14-2758
    the blue pencil. 
    Id. “The reason
    for this policy is a refusal to
    allow the employee to profit, at the expense of his former
    employer, from his wrongful and inequitable conduct.” Sidco
    Paper Co. v. Aaron, 
    351 A.2d 250
    , 255 (Pa. 1976).
    There is a limit, however, to Pennsylvania courts’ will-
    ingness to reform a restrictive covenant. If the restrictions are
    so “gratuitous[ly]” overbroad that they “indicate[] an intent
    to oppress the employee and/or to foster a monopoly,” a
    court of equity may refuse to enforce the covenant at all. 
    Id. at 257.
    The leading case is Reading Aviation Service, Inc. v. Ber-
    tolet, 
    311 A.2d 628
    (Pa. 1973). Bertolet left his job at Reading
    Aviation and went to work for a competitor located 600 feet
    away from his former employer. He was subject to a non-
    compete agreement lacking both a temporal limitation and a
    geographical one—even though Reading Aviation operated
    entirely within Pennsylvania. 
    Id. at 629.
    The lower court re-
    fused to enforce the non-compete even in part. 
    Id. at 630.
    The
    Pennsylvania Supreme Court affirmed because it found the
    “open-ended restrictions” to be “far greater than … reasona-
    bly necessary” and “unconscionable.” 
    Id. The court
    in Reading was concerned about the “possible
    adverse consequences” of partially enforcing an oppressive
    covenant: such enforcement tends to encourage employers
    with superior bargaining power to overreach. 
    Id. at 630-31.
    That is a valid concern. If such a practice became wide-
    spread, it would chill lawful activity. Although judges could
    pare down the restrictions in the cases that make it to court,
    in the many cases that never go to court, or where the em-
    ployee is deterred from even trying to leave, the employer
    would unfairly benefit from “the in terrorem effects of the
    oppressive and overly broad covenants.” Tradesman Int’l, Inc.
    No. 14-2758                                                             11
    v. Black, 
    724 F.3d 1004
    , 1018 (7th Cir. 2013) (Hamilton, J., con-
    curring).
    Not every overbroad covenant is oppressive, though. In
    many cases, overbreadth has a more benign cause (such as
    poor drafting), and to some extent overbreadth is unavoida-
    ble given the imprecision of our language. Thus, “absent bad
    faith, Pennsylvania courts do attempt to blue pencil cove-
    nants before refusing enforcement altogether.” Victaulic Co. v.
    Tieman, 
    499 F.3d 227
    , 238 n.7 (3d Cir. 2007); see also 
    Sidco, 351 A.2d at 260
    (Pomeroy, J., concurring) (characterizing “strik-
    ing down such covenants in their entirety” as an “extraordi-
    nary sanction”).
    In the case before us, the district court wielded the blue
    pencil. In our view, the court could have narrowed Turnell’s
    restrictive covenants even further than it did. The prelimi-
    nary injunction’s prohibition on certain sales of “commercial
    roofing” is too broad, as CentiMark sells a more specific of-
    fering—commercial, flat, single-ply roofing. And the injunc-
    tion need not cover all of Michigan, Indiana, and Illinois be-
    cause only portions of those states were within the region
    that Turnell managed at CentiMark. 1
    But Turnell does not challenge the scope of the
    preliminary injunction on appeal. Instead, he argues that the
    district court should not have enforced the restrictive cove-
    1 The district court should take these issues into account when and if it
    issues a permanent injunction following a final determination on the
    merits, and the court may also wish to modify the preliminary injunction
    in the interim. CentiMark’s counsel stated at oral argument that his client
    has no objection to appropriately modifying the types of roofing and the
    geographic area covered by the injunction.
    12                                                   No. 14-2758
    nants at all—even in blue-penciled form—because, like the
    covenants in Reading, they are overbroad and oppressive.
    We disagree. The covenants are incident to an employ-
    ment relationship, and two years post-employment is a rea-
    sonable duration. See CentiMark Corp. v. Vitek, No. 08 C 7323,
    
    2010 WL 5490662
    , at *7 (N.D. Ill. Dec. 29, 2010). The cove-
    nants further CentiMark’s legitimate interest in preventing a
    former regional manager from using its customer relation-
    ships and proprietary business information, including its
    pricing models, for a competitor’s benefit. See 
    Sidco, 351 A.2d at 254
    , 257 (holding that “Sidco clearly has a protectible in-
    terest in customer goodwill” and “properly used a restrictive
    covenant to protect its customer relationships”); see also Bim-
    bo Bakeries USA, Inc. v. Botticella, 
    613 F.3d 102
    , 112-14 (3d Cir.
    2010) (noting that Pennsylvania law protects non-technical
    trade secrets); CertainTeed Corp. v. Williams, 
    481 F.3d 528
    , 530
    (7th Cir. 2007) (recognizing that under Pennsylvania law
    employers have a legitimate interest in “[k]eeping a business
    executive with a wealth of information from taking an
    equivalent position at a rival”). And while the district court
    found the scope of prohibited activity and the geographic
    reach of the restrictions broader than necessary, the cove-
    nants are not gratuitously or oppressively overbroad.
    1. The Non-Compete Covenant
    Turnell’s non-compete clause prohibits him from engag-
    ing in competing business, defined as selling products or
    services the same as or “similar” to CentiMark’s. This lan-
    guage might benefit from more precision (what counts as
    similar?) or a narrower focus (similar products do not neces-
    sarily compete, see, e.g., Am. Med. Sys., Inc. v. Med. Eng’g
    Corp., 
    794 F. Supp. 1370
    , 1388-90 (E.D. Wisc. 1992) (finding
    No. 14-2758                                                   13
    that two different medical devices for treating impotence
    were not serious competitors), rev’d in part on other grounds, 
    6 F.3d 1523
    (Fed. Cir. 1993)). But that is beside the point. The
    provision reflects a good-faith attempt to tie the scope of the
    prohibitions to CentiMark’s protectable interests.
    Pennsylvania courts and others applying Pennsylvania
    law have enforced comparable restrictions, sometimes in
    their entirety, e.g., 
    CertainTeed, 481 F.3d at 529
    (involving re-
    striction on developing products “competitive with or simi-
    lar to” the employer’s products); Vitek, 
    2010 WL 5490662
    , at
    *2 (enforcing covenants almost identical to Turnell’s), and
    sometimes with recourse to the blue pencil, e.g., CertainTeed
    Ceilings Corp. v. Aiken, No. 14-cv-3925, 
    2014 U.S. Dist. LEXIS 152446
    , at *8 (E.D. Pa. Oct. 27, 2014) (involving restriction on
    products “competitive with or similar to” the employer’s).
    Nor does the non-compete cross the line with respect to
    its geographic reach. It applies only in the regions where
    Turnell “operated” as a CentiMark employee. This language
    is vague, at least at the margins: if Turnell placed a telephone
    call from Chicago to a customer in California, for example,
    does that mean he “operated” in California? What if he trav-
    eled there a few times on business? The answer is unclear.
    Turnell claims he “worked in” twenty-four different states
    during his thirty-five years at the company, but CentiMark
    agrees only that he operated in the seven states covered by
    the injunction. Their dispute illustrates the vagueness of the
    term “operate.” Perhaps the parties should have defined it
    more precisely. But they could not have foreseen in 1988
    what positions Turnell would later hold or where he would
    work. To some extent, the geographic language had to be
    14                                                  No. 14-2758
    open-ended given the national scope of CentiMark’s busi-
    ness.
    None of this suggests deliberate or oppressive overreach-
    ing. Where the employer’s business was sufficiently wide-
    spread, courts have enforced restrictive covenants with even
    greater geographic reach than Turnell’s. Sometimes they
    have done so without even modifying the covenants, see, e.g.,
    Mohr v. Bank of NY Mellon Corp., 393 F. App’x 639, 644-45
    (11th Cir. 2010) (per curiam) (applying Georgia law); Quaker
    Chem. Corp. v. Varga, 
    509 F. Supp. 2d 469
    , 476-77 (E.D. Pa.
    2007); other times they have blue penciled first, see, e.g., Cer-
    tainTeed Ceilings, 
    2014 U.S. Dist. LEXIS 152446
    , at *31-36 (re-
    stricting enforcement to the employee’s former sales territo-
    ry).
    Turnell invokes Reading, but the employer in that case
    was a one-state company trying to enforce a restrictive cove-
    nant with no geographic 
    limit. 311 A.2d at 629
    . There is no
    similar mismatch here. The other case on which Turnell re-
    lies, Fres-Co System USA, Inc. v. Bodell, is distinguishable on
    similar grounds. No. Civ.A. 05-3349, 
    2005 WL 3071755
    (E.D.
    Pa. Nov. 15, 2005) (applying Pennsylvania law). The employ-
    ee in Fres-Co sold coffee packaging in the southeastern Unit-
    ed States and the Caribbean, but his non-compete forbade
    him from selling packaging material in at least four indus-
    tries having little to do with coffee, and on at least three con-
    tinents. 
    Id. at *4,
    7. There were also other indicia of oppres-
    sive intent in Fres-Co, including a lack of consideration for
    the restrictive covenant, and a requirement that all employ-
    ees, no matter how junior, agree to the same restrictions. 
    Id. at *5.
    Turnell’s non-compete, by contrast, reflects an attempt
    to tailor his restrictions to the products and services he sold
    No. 14-2758                                                   15
    (commercial roofing) and the areas where he sold them,
    leaving him free to work in other product and geographical
    markets.
    2. The Non-Solicitation Covenant
    Turnell’s non-solicitation provision presents a closer call.
    It prohibits marketing not only to CentiMark’s actual cus-
    tomers but also to any “prospective customers” it has “con-
    tacted” during the restrictive periods. This language is too
    vague (what kinds of contact count?), too broad (what rela-
    tionship can CentiMark legitimately seek to safeguard with a
    prospect it merely called a few years ago?), and impractica-
    ble (Turnell cannot know everyone his former employer con-
    tacted)—which is why the district court excised it.
    The non-solicitation provision also contains no geograph-
    ic limitation. It applies wherever CentiMark’s customers or
    prospective customers happen to be located. That reaches
    too widely. Although Turnell was a management-level em-
    ployee with access to customer data, proposals, and custom-
    ers themselves, he did not have relationships with all cus-
    tomers across the country. While the parties could not easily
    have predicted in 1988 where Turnell would operate, they
    still could have written a narrower restriction—for example,
    by limiting it to customers contacted by Turnell himself. Cf.
    Mohr, 393 F. App’x at 642.
    But there is no reason to suspect any more sinister cause
    of these shortcomings than poor drafting. It is reasonable for
    an employer to seek protection for budding customer rela-
    tionships as well as established ones. And it is difficult to de-
    fine in advance which relationships will warrant protection.
    (You cannot simply list the customers, for example, because
    16                                                 No. 14-2758
    the list will change over time.) CentiMark invested time, ex-
    pertise, and money in developing its customers and poten-
    tial customers. Turnell was directly involved in those efforts;
    for instance, he reviewed significant proposals before they
    went out the door. That is reason enough for the restrictions
    on solicitation here. There is no evidence that CentiMark was
    actually trying to oppress Turnell or to somehow foster a
    monopoly. Cf. Outsource 
    Int’l, 192 F.2d at 670
    (Posner, J., dis-
    senting) (noting that a non-compete in in an employment
    contract is unlikely to impair the vitality of competition).
    Other courts have enforced similar agreements barring
    solicitation of prospective customers. See, e.g., Mohr, 393 F.
    App’x at 642, 645-46 (reversing district court’s denial of pre-
    liminary injunction and enforcing covenant under Georgia
    law); Diodato v. Wells Fargo Ins. Servs., USA, Inc., 
    44 F. Supp. 3d
    541, 549, 570 (M.D. Pa. 2014) (blue penciling under Penn-
    sylvania law); Pulse Techs., Inc. v. Dodrill, No. CV-07-65-ST,
    
    2007 U.S. Dist. LEXIS 18520
    , at *6-7, 20-23 (D. Or. Mar. 14,
    2007) (same).
    We conclude that Turnell’s restrictive covenants are over-
    broad but not oppressively so. The district court therefore
    properly exercised its equitable discretion under Pennsylva-
    nia law to blue pencil the restrictions. And the court proper-
    ly concluded that CentiMark has a strong chance of enforc-
    ing them, as narrowed, in a final resolution of this action.
    B. The Balance of Harms
    The district court found that “an injunction would weigh
    more heavily on Turnell than the status quo would [on] Cen-
    timark.” Nevertheless, using the sliding scale approach, see
    Girl 
    Scouts, 549 F.3d at 1086
    , the court concluded that Centi-
    No. 14-2758                                                   17
    Mark’s strong likelihood of success outweighed the harm to
    Turnell.
    We agree. Both parties claim that they will suffer mone-
    tary harm: lost income in Turnell’s case, and lost customer
    relationships and proprietary information in CentiMark’s.
    Neither party has quantified those harms. But in neither case
    do they seem likely to be crippling. Even under the prelimi-
    nary injunction, Turnell is still able to work: he can remain at
    Windward and sell commercial roofing, just not to Centi-
    Mark customers in seven states; or he can sell other types of
    roofing without restriction. As a successful salesperson, he
    may also be able to work in another field. In short, the in-
    junction does not prevent him from earning a living. On the
    other hand, CentiMark has no proof that it has lost custom-
    ers or suffered any economic loss because of Turnell’s
    breaches. The harms are pretty evenly balanced, perhaps
    tipping in Turnell’s favor, as the district court thought.
    But that is not the end of the analysis. The kind of harm
    we are concerned about when deciding whether to issue a
    preliminary injunction is not harm tout court but rather irrep-
    arable harm. See 
    Roland, 749 F.3d at 387
    . Turnell’s harm seems
    largely reparable. If he prevails in a trial on the merits, it
    should be possible to quantify his losses and compensate
    him fully with damages. Moreover, the bond posted by
    CentiMark ensures that any damages would be recoverable
    (at least up to $250,000). See FED. R. CIV. P. 65(c). Turnell has
    not explained why these remedies would be insufficient.
    There is no reason to think the preliminary injunction will
    consign him to poverty or bankrupt him: he earned a high
    salary at CentiMark, has at least $3 million in assets, and has
    income from his wife’s company, in addition to what he can
    18                                                   No. 14-2758
    earn on his own. Cf. 
    Roland, 749 F.3d at 386
    (discussing vari-
    ous scenarios when damages after-the-fact would be inade-
    quate).
    The potential damage to CentiMark, on the other hand, is
    a canonical form of irreparable harm. The injuries that flow
    from the violation of a non-compete are difficult to prove
    and quantify. See 
    CertainTeed, 481 F.3d at 529
    (“[I]t may be
    very difficult to show that the ex-employee has used confi-
    dential information.”); John G. Bryant Co. v. Sling Testing and
    Repair, Inc., 
    369 A.2d 1164
    , 1167 (Pa. 1977) (characterizing
    such damage as “incalculable”). That is what makes restric-
    tive covenants prime candidates for injunctive relief. Tur-
    nell’s breaches, if left unchecked, might cause little harm to
    CentiMark, or they might cause great harm. But either way,
    the magnitude and even the existence of the injury will be
    difficult to discern. Injunctive relief is therefore the best, and
    probably the only, adequate remedy.
    On the whole, then, we think the balance of harms favors
    Turnell, if at all, only slightly. It is not enough to overcome
    CentiMark’s likelihood of success on the merits.
    III. CONCLUSION
    The district court’s order granting a preliminary injunc-
    tion in CentiMark’s favor is AFFIRMED.