Vital Pharmaceuticals, Inc. v. Christopher Alfieri

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14217
____________________
VITAL PHARMACEUTICALS, INC.,
a Florida corporation d.b.a.
VPX Sports/Redline/Bang Energy,
Plaintiff-Appellee-Cross Appellant,
versus
CHRISTOPHER ALFIERI,
an individual,
ANDREW LAROCCA,
an individual,
ELEGANCE BRANDS, INC.,
a Delaware corporation,
Defendants-Cross Appellees,
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2 Opinion of the Court 20-14217
ADAM PERRY,
an individual,
Defendant,
AMY MAROS,
an individual,
Defendant-Appellant-Cross Appellee.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-61307-AHS
____________________
Before WILLIAM PRYOR, Chief Judge, GRANT, and ANDERSON, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal and cross-appeal involve the partial grant and
partial denial of a motion for a preliminary injunction to enforce
several restrictive covenants against the former employees of a pro-
ducer of energy drinks. One former employee argues on appeal
that she should not have been enjoined. The producer argues on
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20-14217 Opinion of the Court 3
cross-appeal that the district court should have enjoined additional
former employees.
Many, but not all, of the restrictive covenants—and the cor-
responding provisions in the preliminary injunction—have ex-
pired. So, we dismiss as moot the portions of the former em-
ployee’s appeal that challenge the expired provisions. We also dis-
miss as moot the entire cross-appeal, which concerns only the ex-
pired covenants. But we have jurisdiction over—and reach the
merits of—the former employee’s appeal from the unexpired pro-
visions in the preliminary injunction. And we vacate those provi-
sions because the producer failed to prove its entitlement to pre-
liminary relief.
I. BACKGROUND
Vital Pharmaceuticals, Inc., a Florida corporation, produces
and sells energy-drink products under the brand name “BANG.” It
views itself as a competitor of “[c]ompanies such as . . . Red Bull,
Rock Star[,] and Monster Energy.” And it considers itself “a recog-
nized leader in the energy drink and sports nutrition markets.”
In 2019, Vital made four hires relevant here. It hired Chris-
topher Alfieri as vice-president of sales and distribution. It hired
Adam Perry as director of sales and distribution. It hired Andrew
LaRocca as director of distribution strategy. And it hired Amy Ma-
ros as senior supply chain manager.
When they accepted the job offers, these individuals signed
employment agreements containing three restrictive covenants.
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4 Opinion of the Court 20-14217
They agreed not to work for “a [c]ompeting [c]ompany” “[d]uring
the term of [their] employment with [Vital] . . . and for a period of
one . . . year from [their] termination or cessation date.” They
agreed not to solicit Vital employees to join a competing company,
a provision that was also valid for one year from termination. And
they agreed “never to disclose” or “to utilize for [their] own benefit,
or for any third party’s benefit” any of Vital’s confidential infor-
mation, including its product formulae and its marketing and sales
information.
The new hires did not remain at the company for long. Vital
terminated Alfieri in March 2020 when its business plans changed.
Alfieri then joined Elegance Brands, Inc., a Delaware corporation,
as its chief revenue officer. Elegance principally sells alcoholic bev-
erages, but in 2019 it developed a cannabidiol-infused caffeinated
drink called “Gorilla Hemp.” LaRocca and Perry left Vital in May
2020 and accepted jobs with Elegance. Maros resigned from Vital
effective June 17, 2020, but it appears that she began working for
Elegance in early June.
Vital sued Alfieri, LaRocca, Maros, Perry, and Elegance. It
alleged that the individuals violated their non-compete covenants
by working for Elegance within a year after leaving Vital; that Al-
fieri violated the employee non-solicitation covenant by encourag-
ing LaRocca, Maros, and Perry to join Elegance; and that Elegance
and Alfieri engaged in tortious interference with Vital’s contractual
relationships with the other former employees. Vital sought in-
junctive relief and damages.
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20-14217 Opinion of the Court 5
Vital then moved for a preliminary injunction. It asked the
district court to enjoin its former employees from violating their
non-compete covenants by working for Elegance or another com-
petitor during the one-year term of those covenants, “as such pe-
riod may be extended due to tolling.” It also sought to enforce Al-
fieri’s employee non-solicitation covenant. And it asked that Ele-
gance be enjoined from interfering with the former employees’ re-
strictive covenants and from using any confidential information be-
longing to Vital. Perry settled with Vital before the district court
ruled on the motion.
After a two-day evidentiary hearing, the district court
granted the motion in part. It first determined that the restrictive
covenants were valid and enforceable under Florida law. See FLA.
STAT. § 542.335. Specifically, it concluded that the covenants were
justified by Vital’s “legitimate business interests” in its product for-
mulae, in its other confidential information, and in its customer re-
lationships. See id. § 542.335(1)(b). And it rejected the argument
that Vital was required to “identify specific customers” to establish
a legitimate business interest in its customer relationships.
The district court then concluded that Vital “ha[d] shown a
substantial likelihood of succeeding on its claims against Maros . . .
but not [against] Alfieri or LaRocca.” It explained that Vital had
“presented . . . more than sufficient evidence . . . that Maros ha[d]
breached the [agreement] she signed” because the evidence estab-
lished that “Maros accepted a position at Elegance while still em-
ployed [by] and collecting [a] salary from [Vital].” And it reasoned
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6 Opinion of the Court 20-14217
that it could infer a likelihood of success from the breach of the
restrictive covenant. But, crediting the testimony of Elegance’s
chief executive officer, the district court found that “there [was] ab-
solutely no evidence that Alfieri or LaRocca took any information
with them from [Vital] to Elegance” or that Elegance had seen any
of Vital’s confidential information. So, Vital could not “make a
prima facie showing that Alfieri or LaRocca breached their [agree-
ments].”
The district court also determined that Vital had satisfied the
other elements necessary to secure a preliminary injunction against
Maros. Under Florida law, the district court explained, Vital was
entitled to a “presumption of irreparable injury” because it had
proved “[t]he violation of an enforceable restrictive covenant,” id.
§ 542.335(1)(j), and Maros had not rebutted the presumption. The
balancing of harms favored Vital because the district court was un-
able to “consider any individualized economic or other hardship
that might be caused to the person against whom enforcement is
sought.” See id. § 542.335(1)(g)(1). The public interest favored the
enforcement of the restrictive covenants. And Maros’s defenses to
enforcement failed.
The preliminary injunction contained five operative provi-
sions. First, Maros was “enjoined for a period of twelve . . .
months,” “calculated from” the date Vital posted a bond, “from
working for Elegance” or other competitors of Vital. Second, Ele-
gance was also prohibited during the same period from employing
Maros or using any of Vital’s confidential information. Third,
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20-14217 Opinion of the Court 7
Maros was “further enjoined from working for any other competi-
tor” and from soliciting Vital employees “for a period of twelve[
]months as set forth in the [employment] [a]greement,” to be
“tolled until the date that Maros and Elegance c[a]me into compli-
ance with the non-competition restriction of the agreement.”
Fourth, although the district court had suggested in its opinion that
Alfieri and LaRocca would not be enjoined, it prohibited the two
men, along with Maros, from soliciting “current [Vital] energy
drink customer[s] or prospective customers about whom [they]
had” confidential information belonging to Vital. Finally, it stated
that the three individuals “shall not use, permit to be used, disclose,
or transmit for any purpose any of [Vital’s] [c]onfidential and
[p]roprietary information.”
Vital posted a bond on October 16, 2020. Maros timely ap-
pealed the preliminary injunction against her. See 28 U.S.C.
§ 1292(a)(1). And Vital timely cross-appealed the partial denial of
preliminary injunctive relief against Alfieri and LaRocca. See id.Vital moved to supplement the record on appeal. Vital asked
this Court to take notice that “Alfieri and LaRocca were terminated
[by Elegance] on October 12, 2020, and Maros was terminated on
October 16, 2020.” We carried the motion with the case.
In the light of this new information, we directed the parties
to file supplemental briefs explaining when and whether the one-
year-long provisions in the employment agreements and prelimi-
nary injunction had expired. We also directed the parties to discuss
whether any aspect of the appeal or cross-appeal was moot. The
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8 Opinion of the Court 20-14217
parties agreed that the two time-limited provisions in the prelimi-
nary injunction had expired, and that the prohibition against using
Vital’s confidential information had not expired because there was
no applicable time limit. But Maros argued that her appeal was not
moot. And Vital argued the same as to its cross-appeal.
II. STANDARDS OF REVIEW
Two standards govern our review. “We review de novo
questions of our jurisdiction.” United States v. Amodeo, 916 F.3d
967, 970 (11th Cir. 2019). And we review for abuse of discretion a
ruling on a motion for a preliminary injunction. See Jysk Bed’N
Linen v. Dutta-Roy, 810 F.3d 767, 773 (11th Cir. 2015). “A district
court abuses its discretion if it applies an incorrect legal standard
. . . or makes findings of fact that are clearly erroneous.” Id. at 773–
74 (internal quotation marks omitted).
III. DISCUSSION
We divide our discussion in two parts. We first explain why
the appeal is partially moot and the cross-appeal is moot in its en-
tirety. We then explain why the district court abused its discretion
when it entered the unexpired portions of the preliminary injunc-
tion against Maros.
Before addressing these issues, we grant the motion to sup-
plement the record. “Although we generally do not consider evi-
dence that the parties did not submit in the district court, we have
the power to do so” in exceptional circumstances. See Ouachita
Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006).
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20-14217 Opinion of the Court 9
Because the supplemental material contains facts that “illuminate
the mootness issue,” id. at 1171, we conclude that supplementation
of the record is appropriate here.
A. The Appeal is Partially Moot and the Cross-Appeal is
Completely Moot.
We turn first, as we must, to our own jurisdiction. See Pep-
pers v. Cobb Cnty., 835 F.3d 1289, 1296 (11th Cir. 2016) (“[W]e are
obliged first to consider our power to entertain the claim.”). The
constitutional command that the federal judiciary hear only
“Cases” and “Controversies,” see U.S. CONST. art. III, § 2, applies
with as much force to courts of appeals as it does district courts, see
Amodeo, 916 F.3d at 971. And because a case or controversy “must
exist throughout all stages of litigation,” id. (internal quotation
marks omitted), we must ensure—up until the moment our man-
date issues—that intervening events have not mooted the appeal
by preventing us from “grant[ing] any effectual relief whatever in
favor of the appellant,” United States v. Sec’y, Fla. Dep’t of Corr.,
778 F.3d 1223, 1228 (11th Cir. 2015) (internal quotation marks omit-
ted); see also Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114,
1119 (11th Cir. 1995) (“An appellate court simply does not have ju-
risdiction under Article III to decide questions which have become
moot by reason of intervening events.” (internal quotation marks
omitted)); Key Enters. of Del., Inc. v. Venice Hosp., 9 F.3d 893, 899
(11th Cir. 1993) (en banc) (dismissing an appeal “[b]ecause the case
became moot after the panel published its decision but before the
mandate issued”).
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10 Opinion of the Court 20-14217
“One such intervening event is the expiration of a prelimi-
nary injunction that is being challenged in an interlocutory appeal.”
Sec’y, Fla. Dep’t of Corr., 778 F.3d at 1228–29. “If the preliminary
injunction has expired, it no longer has legal effect on the parties,
and a decision by this court affirming or vacating the defunct in-
junction cannot affect the rights of the litigants.” Id. at 1229 (alter-
ation adopted) (internal quotation marks omitted). Similarly, we
have “consistently held that the appeal of a preliminary injunction
is moot where the effective time period of the injunction has
passed.” Brooks, 59 F.3d at 1119. And an appeal from the denial of
a preliminary injunction is moot if “the end-date of the requested
injunction,” id., has come and gone before the court of appeals is-
sues its mandate.
Maros’s appeal is moot to the extent it challenges the por-
tions of the preliminary injunction prohibiting her from working
for Vital’s competitors or soliciting Vital’s employees. The twelve-
month prohibition against working for competitors began on Oc-
tober 16, 2020, when Vital posted bond, and ended a year later. And
the prohibition against soliciting Vital’s employees also expired Oc-
tober 16, 2021, a year after “Maros and Elegance c[a]me into com-
pliance with the . . . agreement” through Elegance’s termination of
Maros.
Maros’s efforts to save those portions of her appeal from
mootness are unavailing. She argues that “[t]he injunction bond
undercuts the notion that” those portions of the appeal are moot.
But “any issue preserved by [that] bond . . . must be resolved in a
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20-14217 Opinion of the Court 11
trial on the merits,” not “on appeal of [the] preliminary injunction.”
Univ. of Tex. v. Camenisch, 451 U.S. 390, 396 (1981). She also con-
tends that “the [d]istrict [c]ourt may afford law-of-the-case status to
its prior clear legal conclusions reached at the preliminary injunc-
tion stage.” But, as the district court acknowledged in its order, “the
findings of fact and conclusions of law made by a court granting a
preliminary injunction are not binding at trial on the merits.” Id. at
395. And although Maros is correct that we may review “disputes
that are capable of repetition, yet evading review” as an “exception
to the mootness doctrine,” Sec’y, Fla. Dep’t of Corr., 778 F.3d at
1229 (internal quotation marks omitted), the moot issues here are
not capable of repetition. Because the non-compete and employee
non-solicitation covenants in Maros’s employment agreement
have already expired, there is no “reasonable expectation or a
demonstrated probability” that Vital will seek or obtain another
preliminary injunction to enforce those covenants. Id. (internal
quotation marks omitted).
By contrast, Maros’s appeal is not moot to the extent it chal-
lenges the portions of the preliminary injunction relating to solici-
tation of Vital’s customers and the disclosure of confidential infor-
mation. Those portions of the injunction—like the non-disclosure
provisions they enforce—have no end date. So, neither the non-
disclosure covenant nor the corresponding portions of the prelim-
inary injunction have expired.
Vital’s cross-appeal of the partial denial of preliminary in-
junctive relief against Alfieri and LaRocca is moot in its entirety.
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To be sure, the employment agreements toll the duration of the
twelve-month-long non-compete and employee non-solicitation
covenants for as long as “the [e]mployee is found to have been in
violation of such restriction[s].” But it is undisputed that the men
were terminated from Elegance on October 12, 2020. And Vital
concedes that “the record does not establish whether [the men
have] been employed in violation of [their] restrictive covenant[s]
since that date.” On the current record, then, the twelve-month pe-
riod of the non-compete and employee non-solicitation covenants
in Alfieri’s and LaRocca’s agreements came to an end no later than
October 2021. Because “the effective time period of the injunction
has passed,” the appeal of the partial denial of preliminary relief is
moot. Brooks, 59 F.3d at 1119.
Vital argues that the cross-appeal “is not moot, because [Vi-
tal] is entitled to the benefit of its contractual agreement.” That is,
if Vital succeeded on its cross-appeal, “the one-year restrictive pe-
riod” in Alfieri’s and LaRocca’s agreements “should begin after the
Court issues its decision.” In support, Vital relies on the holding of
a Florida court that, “[w]here there has been a delay in the entry of
a non-compete injunction . . . , the party seeking to enforce the
non-compete clause is entitled to receive the benefit of its bargain,
which is the enforcement of the full non-compete period specified
in the agreement between the parties.” Anakarli Boutique, Inc. v.
Ortiz, 152 So. 3d 107, 109 (Fla. Dist. Ct. App. 2014).
We rejected the same argument in Tropicana Products
Sales, Inc. v. Phillips Brokerage Co., another appeal involving the
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20-14217 Opinion of the Court 13
enforcement of a non-compete covenant under Florida law. 874
F.2d 1581, 1582 (11th Cir. 1989). We recited the general rule that
“an appeal from the denial of a motion for [a] preliminary injunc-
tion is mooted when the requested effective end-date for the pre-
liminary injunction has passed.” Id. And we acknowledged that the
employer “may have a substantive right under Florida law to an
injunction of the length specified in [the restrictive covenant] to
begin upon entry of final judgment if it prevails at a trial on the
merits.” Id. at 1583. But we held that this substantive right to a post-
trial remedy did not alter our conclusion “that the denial of [the]
preliminary injunction [was] . . . mooted by the passing of the spe-
cific end-date of the requested preliminary relief.” See id.We reach the same conclusion here. “[A] preliminary injunc-
tion is meant to keep the status quo for a merits decision, not to
replace it.” Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4
F.4th 1220, 1225 (11th Cir. 2021). So, setting aside its potential en-
titlement to permanent relief, Vital is entitled at this stage to no
more than its “requested preliminary relief,” Tropicana, 874 F.2d
at 1583—enforcement of the non-compete and employee non-so-
licitation covenants “during each such covenant’s applicable re-
strictive period as such period may be extended due to tolling.” Be-
cause there is no evidence that Alfieri or LaRocca violated those
covenants after October 12, 2020, the twelve-month restrictive pe-
riods (including tolling) have, for purposes of this appeal, ended
and the “effective end-date for the preliminary injunction has
passed.” Id. at 1582. The cross-appeal is moot.
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To be clear, we hold only that the cross-appeal and portions
of the appeal are moot. We do not hold that the entire case is moot.
Vital’s complaint requests money damages, and “[s]uch claims, if
at all plausible, ensure a live controversy” in the district court. Mis-
sion Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652,
1660 (2019). Vital also asserts a right under Florida law to a perma-
nent injunction enforcing the “full . . . period” of even the expired
covenants, although we express no opinion as to whether Vital is
entitled to that purported right.
B. Vital Did Not Prove Its Entitlement to the Rest of the Prelimi-
nary Relief it Obtained Against Maros.
A party seeking “a preliminary injunction must establish that
(1) it has a substantial likelihood of success on the merits; (2) irrep-
arable injury will be suffered unless the injunction issues; (3) the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if is-
sued, the injunction would not be adverse to the public interest.”
Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032, 1039
(11th Cir. 2011) (internal quotation marks omitted). “A preliminary
injunction is an extraordinary and drastic remedy not to be granted
unless the movant clearly establishes the burden of persuasion as
to the four requisites.” Id. (internal quotation marks omitted).
When considering whether Vital has satisfied these require-
ments, we are guided by Florida law, “which contains a compre-
hensive framework for analyzing, evaluating and enforcing restric-
tive covenants contained in employment contracts.” Proudfoot
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20-14217 Opinion of the Court 15
Consulting Co. v. Gordon, 576 F.3d 1223, 1230–31 (11th Cir. 2009)
(internal quotation marks omitted). “For a restrictive covenant to
be valid, ‘the person seeking enforcement of the restrictive cove-
nant shall plead and prove the existence of one or more legitimate
business interests justifying the restrictive covenant.’” Id. at 1231(alterations adopted) (quoting FLA. STAT. § 542.335(1)(b)). Florida
law also provides that “[t]he violation of an enforceable restrictive
covenant creates a presumption of irreparable injury to the person
seeking enforcement of a restrictive covenant.” FLA. STAT.
§ 542.335(1)(j).
Of the four provisions in the preliminary injunction that op-
erated against Maros, we have jurisdiction to review only two: the
prohibitions against soliciting Vital’s current or prospective “en-
ergy drink customers . . . about whom [Maros] had [Vital’s] [c]on-
fidential and [p]roprietary information” and against using “for any
purpose any of [Vital’s] [c]onfidential and [p]roprietary infor-
mation.” These prohibitions give effect to the non-disclosure cov-
enant in Maros’s employment agreement. But because Vital never
alleged a breach of that covenant, it is unclear why the district court
considered the prohibitions warranted. And the district court
abused its discretion by including the prohibitions in the prelimi-
nary injunction.
As an initial matter, Vital did not establish a legitimate busi-
ness interest in its customer relationships. Florida law treats rela-
tionships with customers as legitimate business interests only when
those relationships are “[s]ubstantial” and with “specific
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16 Opinion of the Court 20-14217
prospective or existing customers.” Id. § 542.335(1)(b)(3) (emphasis
added). It follows from the statutory text that a party seeking en-
forcement of a restrictive covenant cannot rely on customer rela-
tionships as a legitimate interest unless the party “plead[s] and
prove[s]” the identity of specific customers and the substantiality of
the relationship with those customers. Id. § 542.335(1)(b); see also
Evans v. Generic Sol. Eng’g, LLC, 178 So. 3d 114, 117–18 (Fla. Dist.
Ct. App. 2015) (holding that the record was “insufficient to support
the trial court’s finding of a substantial business relationship” be-
cause “the record d[id] not even contain enough information to
meaningfully discuss the relationship”); Passalacqua v. Naviant,
Inc., 844 So. 2d 792, 796 (Fla. Dist. Ct. App. 2003) (vacating a pre-
liminary injunction predicated on the defendants’ solicitation of the
plaintiff’s customers because “not one such customer was named
in the complaint, the motion[,] or any exhibits filed”). Vital failed
to name and prove a substantial relationship with specific clients.
So, it cannot rely on its customer relationships to establish a legiti-
mate business interest. And the district court abused its discretion
when it held otherwise.
Even if we assume that some legitimate business interest ex-
ists, Vital did not prove that it would suffer irreparable injury unless
Maros was enjoined from violating the non-disclosure covenant—
the only covenant that could have justified the two prohibitions.
Vital contends that the district court correctly applied the state-law
rule that “[t]he violation of an enforceable restrictive covenant cre-
ates a presumption of irreparable injury.” FLA. STAT.
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§ 542.335(1)(j). This contention raises a knotty choice-of-law ques-
tion. See Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1448
(11th Cir. 1991) (holding that “federal procedure,” including “tradi-
tional federal equity practice,” applies in diversity cases “to deter-
mine whether [a] preliminary injunction was properly issued”);
Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (ex-
plaining that presumptions of irreparable harm are “contrary to tra-
ditional [federal] equitable principles”). But we need not resolve
that question here because Vital has not proved its entitlement to
the statutory presumption in any event.
As the statutory language suggests, see FLA. STAT.
§ 542.335(1)(j), the presumption applies only to the “enforceable re-
strictive covenants that have been violated,” Medco Data, LLC v.
Bailey, 152 So. 3d 105, 106 (Fla. Dist. Ct. App. 2014); cf. Proudfoot,
576 F.3d at 1229, 1232 (treating non-compete, non-solicitation, and
“client non-compete” provisions, and “a clause concerning confi-
dential information” in the same agreement as four separate restric-
tive covenants and permitting a universal presumption of irrepara-
ble harm because the defendant “breached all four [r]estrictive
[c]ovenants”). The district court found that Maros had violated the
non-compete covenant by working for Elegance. But Vital did not
plead in its complaint or argue in its motion for a preliminary in-
junction that Maros had breached the non-disclosure covenant by
disclosing confidential information or soliciting Vital’s clients
about whom she held confidential information. Nor did the district
court make findings to that effect. To the contrary, the district
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18 Opinion of the Court 20-14217
court credited the “unequivocal” testimony of Elegance’s chief ex-
ecutive officer that “Elegance has not seen and is not privy to any
of [Vital’s] allegedly confidential trade secret information.” The dis-
trict court abused its discretion when it applied the presumption of
irreparable harm to the non-disclosure covenant.
Without the benefit of a presumption, Vital did not estab-
lish, as it was required to, that it was “likely to suffer irreparable
harm in the absence of preliminary relief” prohibiting Maros from
disclosing or using its confidential information. Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). In response to Maros’s ar-
gument that Vital “could not identify any actually confidential and
specific [Vital] information that is being or could be utilized by [her]
. . . to unfairly compete,” Vital asserts only that the rebuttable pre-
sumption relieved the company of this evidentiary obligation and
that Maros has not rebutted that presumption. Vital has the same
response to Maros’s explanation—supported by the record—that
confidential information about the prices Vital pays to its suppliers
is of no use to Elegance because Vital “benefits from economies of
scale . . . and has developed in-house capabilities that smaller drink
companies, like Elegance, simply do not have.” But again, Vital is
not entitled to a presumption of irreparable harm with respect to
the non-disclosure provision.
Vital also asserts that “[i]f competitors acquire[d] [its] pro-
tected information, they would gain an unfair competitive ad-
vantage in the market.” But this asserted injury is “remote [and]
speculative,” not “actual and imminent.” See Siegel v. LePore, 234
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20-14217 Opinion of the Court 19
F.3d 1163, 1176 (11th Cir. 2000) (internal quotation marks omitted).
As already explained, Vital did not plead or argue that Maros
breached the non-disclosure provision. And the evidence estab-
lished that much of this information would be of little use to Vital’s
smaller competitors. In short, Vital failed to prove that the prohi-
bitions against violation of the non-disclosure provision were nec-
essary to prevent irreparable harm.
IV. CONCLUSION
We GRANT the motion to supplement the record. We
DISMISS AS MOOT Vital’s cross-appeal and the portions of Ma-
ros’s appeal relating to the non-compete and employee non-solici-
tation provisions of the preliminary injunction. And we VACATE
the portions of the injunction that prohibit Maros from soliciting
Vital’s clients and disclosing Vital’s confidential information.
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 20 of 34
WILLIAM PRYOR, Chief Judge, concurring:
I write separately to address the “knotty choice-of-law ques-
tion” that the panel opinion properly does not resolve. Panel Op.
at 17. Florida law provides that “[t]he violation of an enforceable
restrictive covenant creates a presumption of irreparable injury to
the person seeking enforcement of a restrictive covenant.” FLA.
STAT. § 542.335(1)(j). But, in federal court, presumptions of irrepa-
rable harm are ordinarily disfavored in the context of a preliminary
injunction. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
544–45 (1987) (rejecting a presumption of irreparable harm as “con-
trary to traditional equitable principles”); Snook v. Tr. Co. of Ga.
Bank of Savannah, N.A., 909 F.2d 480, 486 (11th Cir. 1990) (“The
plaintiff’s success in establishing a likelihood it will prevail on the
merits does not obviate the necessity to show irreparable harm.”
(internal quotation marks omitted)). The question is whether a fed-
eral court considering a motion for a preliminary injunction in a
diversity case must apply the state-law presumption or follow fed-
eral equity practice.
Although “the answer is surprisingly evasive,” David
Crump, The Twilight Zone of the Erie Doctrine: Is There Really a
Different Choice of Equitable Remedies in the “Court A Block
Away”?, 1991 WIS. L. REV. 1233, 1242, the better case is that a fed-
eral court must apply the federal standard and not the Florida pre-
sumption. Traditionally, federal courts have applied uniform
standards to the award of equitable relief, even in the face of con-
trary state rules. And the modern choice-of-law analysis for
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2 WILLIAM PRYOR, C.J., concurring 20-14217
diversity cases—once described as a “muddled soup of inconsistent
principles,” id. at 1241—does not require the traditional approach
to yield to the Florida rule.
Since the ratification of the Constitution, the scope of the
federal “judicial Power” has “extend[ed] to all Cases, in Law and
Equity, . . . between Citizens of different States.” U.S. CONST. art.
III, § 2. The first Congress gave “cognizance” to the newly created
federal courts “of . . . suits of a civil nature at common law or in
equity, where . . . the suit is between a citizen of the State where
the suit is brought, and a citizen of another State.” Judiciary Act of
1789, ch. 20, § 11, 1 Stat. 73, 78. The first Congress also enacted
rules governing proceedings in law and in equity, which were dis-
tinct legal systems at the time.
Federal courts first used state procedures for common-law
proceedings. “[I]n suits at common law,” Congress provided that
“the forms of writs . . . and modes of process” were to be those
“used or allowed in the supreme court[] of the” state in which the
federal court sat. Process Act of 1789, ch. 21, § 2, 1 Stat. 93, 93. And
“the laws of the several states . . . [were to] be regarded as rules of
decision in trials at common law . . . in cases where they apply.”
Judiciary Act § 34.
By contrast, “Congress provided that ‘the forms and modes
of proceeding in suits of equity’ would conform to the settled uses
of courts of equity.” Guar. Tr. Co. v. York, 326 U.S. 99, 104–05
(1945) (alteration adopted) (quoting Process Act of 1792, ch. 36, § 2,
1 Stat. 275, 276). That is, the procedure that applied to equitable
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20-14217 WILLIAM PRYOR, C.J., concurring 3
remedies in federal court was “not limited by the chancery system
adopted by any State,” but instead conformed to “[t]he usages of
the High Court of Chancery in England” at the time of the Found-
ing. Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13
How.) 518, 563 (1851). And it became “settled doctrine . . . that the
remedies in equity [were] to be administered, not according to the
state practice, but according to the practice of courts of equity in
the parent country.” Boyle v. Zacharie, 31 U.S. (6 Pet.) 648, 658
(1832); accord Atlas Life Ins. Co. v. W.I. S., Inc., 306 U.S. 563, 568
(1939).
“Consequently, a federal court could issue an injunction in
a diversity case that would have been unavailable in state court,
while denying injunctive relief that a state court would have
granted.” Michael T. Morley, The Federal Equity Power, 59 B.C.
L. REV. 217, 238–39 (2018). Consider, for example, Guffey v. Smith,
a diversity suit involving an Illinois lease. See 237 U.S. 101, 109, 114
(1915). There, the Supreme Court permitted the award of an in-
junction to a lessee whose lease contained a “clause giving the les-
see an option to surrender [the lease],” even though the Illinois Su-
preme Court had held “that the presence of such a clause in the
lease operates to prevent the lessee from . . . enforcing [the lease]
in equity.” Id. at 114. The Court explained that, “[b]y the legislation
of Congress and repeated decisions of this court[,] it has long been
settled that the remedies afforded . . . in the Federal courts, sitting
as courts of equity, are not determined by local laws or rules of
decision, but by general principles, rules[,] and usages of equity.”
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4 WILLIAM PRYOR, C.J., concurring 20-14217
Id. The “common law of chancery” that developed to elucidate
these general equitable principles, Wheeling & Belmont Bridge
Co., 54 U.S. (13 How.) at 563, mirrored the “general principles of
commercial law” that federal courts applied in diversity actions at
law in the place of “the decisions of the [relevant] state tribunals,”
see Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842); Guar. Tr., 326 U.S.
at 102–03 n.1 (explaining that, in the nineteenth century, “the same
views” of federal power “governed both” “law and equity” “and
that Swift v. Tyson was merely another expression of the ideas put
forth in the equity cases”).
In Erie Railroad Company v. Tompkins, the Supreme Court
“disapprov[ed]” the general-principles approach to commercial law
in diversity cases “declared in Swift v. Tyson.” 304 U.S. 64, 79
(1938). The Court reasoned that Swift “rest[ed] upon the assump-
tion . . . that federal courts have the power to use their judgment
as to what the rules of common law are; and that in the federal
courts the parties are entitled to an independent judgment on mat-
ters of general law.” Id. (internal quotation marks omitted). This
“fallacy” was “an unconstitutional assumption of powers by courts
of the United States.” Id. (internal quotation marks omitted). The
Court held that “[t]here is no federal general common law. Con-
gress has no power to declare substantive rules of common law ap-
plicable in a State whether they be local in their nature or ‘general,’
be they commercial law or a part of the law of torts.” Id. at 78. In-
stead, “the law to be applied in any [diversity] case is the law of the
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 24 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 5
State[,] . . . whether [that law is] declared by its Legislature in a stat-
ute or by its highest court in a decision.” Id.The abrogation of the common law of chancery soon fol-
lowed. Days after it issued Erie, the Supreme Court confirmed that,
“in a suit in equity,” questions of substantive state law were “now
to be governed, even in the absence of state statute, by the deci-
sions of the appropriate state court.” Ruhlin v. N.Y. Life Ins. Co.,
304 U.S. 202, 205 (1938). And in Guaranty Trust Company v. York,
the Court explained that “Congress never gave . . . federal courts
. . . the power to deny substantive rights created by State law or to
create substantive rights denied by State law.” 326 U.S. at 105. And
it announced a test for determining whether a state law is substan-
tive: “does it significantly affect the result of a litigation for a federal
court to disregard a law of a State that would be controlling in an
action upon the same claim by the same parties in a State court?”
Id. at 109.
This abrogation came with an important qualification: the
repudiation of the common law of chancery “d[id] not mean that
whatever equitable remedy is available in a State court must be
available in a diversity suit in a federal court, or conversely, that a
federal court may not afford an equitable remedy not available in a
State court.” Id. at 105. “State law cannot define the remedies
which a federal court must give simply because a federal court in
diversity jurisdiction is available as an alternative tribunal to the
State’s courts.” Id. at 106. Instead, “[e]quitable relief in a federal
court” remained “subject to restrictions,” including the
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 25 of 34
6 WILLIAM PRYOR, C.J., concurring 20-14217
requirement that the suit “be within the traditional scope of equity
as historically evolved in the English Court of Chancery.” Id. at 105;
accord Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc.,
527 U.S. 308, 318–19 (1999).
Guaranty Trust was not a model of clarity, and later deci-
sions of the Supreme Court have refined the choice-of-law analysis
in three important respects. First, in Hanna v. Plumer, the Supreme
Court acknowledged that, “in [a] sense[,] every procedural varia-
tion” between state and federal law “is outcome-determinative.”
380 U.S. 460, 468 (1965) (internal quotation marks omitted). So, it
directed courts applying “[t]he ‘outcome-determination’ test” an-
nounced in Guaranty Trust to consider “the twin aims of the Erie
rule: discouragement of forum-shopping and avoidance of inequi-
table administration of the laws.” Id. As modified, the outcome-de-
termination test requires courts “to determine whether failure to
apply the state law would lead to different outcomes in state and
federal court and result in inequitable administration of the laws or
forum shopping.” Carbone v. Cable News Network, Inc., 910 F.3d
1345, 1349–50 (11th Cir. 2018) (internal quotation marks omitted).
Second, the Supreme Court concluded “that the Guaranty
Trust ‘outcome-determination’ test was an insufficient guide in
cases presenting countervailing federal interests.” Gasperini v. Ctr.
for Humanities, Inc., 518 U.S. 415, 432 (1996). When such a coun-
tervailing interest exists, a federal court should consider whether
the state rule is “merely a form and mode of enforcing” a state sub-
stantive right or “bound up with the definition of the [substantive]
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 26 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 7
rights and obligations of the parties.” Byrd v. Blue Ridge Rural Elec.
Coop., 356 U.S. 525, 536 (1958). If the state rule is “not bound up
with [state-created] rights and obligations,” the court must deter-
mine “whether the federal policy” at issue “should yield to the state
rule in the interest of furthering the objective that the litigation
should not come out one way in the federal court and another way
in the state court.” Id. at 538.
Finally, the Supreme Court clarified “the appropriate test for
resolving conflicts between state law and the Federal Rules [of Civil
Procedure].” Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4 (1987).
“The initial step is to determine whether, when fairly construed,
the scope of [the federal rule] is sufficiently broad to cause a direct
collision with the state law or, implicitly, to control the issue before
the court, thereby leaving no room for the operation of that law.”
Id. at 4–5 (internal quotation marks omitted). “The Rule must then
be applied if it represents a valid exercise of Congress’[s] rulemak-
ing authority, which originates in the Constitution and has been
bestowed on this Court by the Rules Enabling Act.” Id. at 5; accord
Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393,
398 (2010). A court need reach the next step—the outcome-deter-
mination test—only if “the Federal Rule is inapplicable or invalid.”
Shady Grove, 559 U.S. at 398; accord Carbone, 910 F.3d at 1349.
The Supreme Court has declined to resolve whether federal-
or state-law standards govern preliminary injunctions in diversity
cases, see Grupo Mexicano, 527 U.S. at 318 n.3, but our Court has
decided this issue. In Ferrero v. Associated Materials Inc., we
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 27 of 34
8 WILLIAM PRYOR, C.J., concurring 20-14217
reviewed a preliminary injunction granted to enforce a “covenant
not to compete” governed by Georgia law. 923 F.2d 1441, 1444
(11th Cir. 1991). Because “Georgia law presume[d] that [prelimi-
nary] injunctions . . . should issue except in limited cases”—the
converse of the federal approach—we “confront[ed] the threshold
question of whether, under Erie, the [district] court should have
applied federal or state law to determine the appropriateness of is-
suing the preliminary injunction.” Id. at 1448. We reasoned that
“Federal Rule of Civil Procedure 65 incorporate[d] traditional fed-
eral equity practice” “by reference.” Id. And because Rule 65 “is
both constitutional and within the scope of the rules’ enabling act,”
we “appl[ied] federal procedure to determine whether the prelimi-
nary injunction was properly issued.” Id.If Ferrero still binds us, it is dispositive of the choice-of-law
issue. It “makes no difference” that this appeal involves Florida law
instead of Georgia law. See Shady Grove, 559 U.S. at 409 (plurality
opinion) (emphasis omitted). “[I]t is not the substantive or proce-
dural nature or purpose of the affected state law that matters, but
the substantive or procedural nature of the Federal Rule.” Id. at
410. In the light of Ferrero’s holding that Rule 65 is a valid proce-
dural rule that incorporates the federal standard for preliminary in-
junctions, that standard will always apply in diversity cases, regard-
less of the provisions of state law. See id. at 409 (“A Federal Rule of
Procedure is not valid in some jurisdictions and invalid in others—
or valid in some cases and invalid in others . . . .”).
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 28 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 9
To be sure, an intervening decision of the Supreme Court
calls into question part of our reasoning in Ferrero. In Grupo Mex-
icano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., the Court
stated that “[t]he substantive prerequisites for obtaining an equita-
ble remedy as well as the general availability of injunctive relief are
not altered by Rule 65 and depend on traditional principles of eq-
uity jurisdiction.” 527 U.S. at 318–19 (alterations adopted) (internal
quotation marks omitted). This statement has been read to mean
that “Rule 65 . . . does not . . . address the standards governing any
form of injunctive relief.” Morley, supra, at 254–55. And in the light
of this statement, it is arguable that our Court was incorrect to rea-
son that Rule 65 “incorporates traditional federal equity practice.”
See Ferrero, 923 F.2d at 1448. But Ferrero’s holding—that the fed-
eral standard applies to preliminary injunctions in diversity cases—
remains valid even if Rule 65 does not incorporate those standards.
This conclusion is consistent both with the outcome-determina-
tion test first announced in Guaranty Trust and with the apparent
exception for equitable remedies also announced in that decision.
Guaranty Trust and other precedents postdating Erie sug-
gest that the award of equitable relief in diversity cases remains
governed by traditional equitable principles and not by state law.
See Sonner v. Premier Nutrition Corp., 971 F.3d 834, 842–44 (9th
Cir. 2020). For example, the Supreme Court has stated that these
principles inhere in the congressional grant to federal courts of ju-
risdiction over equitable actions. Atlas Life Ins. Co., 306 U.S. at 568(“The jurisdiction . . . conferred on the federal courts to entertain
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 29 of 34
10 WILLIAM PRYOR, C.J., concurring 20-14217
suits in equity is an authority to administer in equity suits the prin-
ciples of the system of judicial remedies which had been devised
and was being administered by the English Court of Chancery at
the time of the separation of the two countries.” (internal quota-
tion marks omitted)). It has explained that this grant of authority
“prescribes the body of doctrine which is to guide [courts’] deci-
sions and enable them to determine whether . . . [to] exercise . . .
the extraordinary powers of a court of equity.” Id. It has confirmed
that the “body of doctrine” for equitable relief “remain[s] unaf-
fected” by “the fusion of law and equity [in] the [Federal] Rules of
Civil Procedure.” Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368,
382 n.26 (1949) (internal quotation marks omitted). And it has con-
firmed that state law “cannot remove these fetters from the federal
courts . . . in diversity jurisdiction.” Guar. Tr., 326 U.S. at 106.
Some circuit courts and commentators have inferred from these
statements “that state law cannot” “change the nature of . . . [or]
circumscribe a federal court’s equitable powers[,] even when state
law affords the rule of decision.” Sonner, 971 F.3d at 842–43; see
also, e.g., id. at 843 (collecting decisions); Morley, supra, at 220
(“Guaranty Trust requires federal courts to apply a uniform body
of equitable principles tracing back to the English Court of Chan-
cery . . . when deciding whether to grant equitable relief, regardless
of whether the underlying claim arises under federal or state law.”);
John T. Cross, The Erie Doctrine in Equity, 60 LA. L. REV. 173, 174
(1999) (similar).
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 30 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 11
Nevertheless, it is unlikely that equitable exceptionalism
alone can justify a federal court’s departure from state law, espe-
cially when it comes to the final object of the suit. Guaranty Trust
was clear that, “[i]n giving federal courts ‘cognizance’ of equity
suits in cases of diversity jurisdiction, Congress never gave . . . the
power to deny substantive rights created by State law.” 326 U.S. at
105. And later decisions have defined a substantive rule as a rule
that would cause “the character or result of a litigation materially
to differ,” Hanna, 380 U.S. at 467—a definition that is broad enough
to encompass some equitable relief. For example, the extent of a
court’s power to award a permanent injunction undoubtedly af-
fects the character—if not the result—of the litigation. See 19
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 4513 (rev. 3d ed. 2021) (“Permanent injunctions . . . may be
granted in a diversity case only if authorized by the relevant state
law” because “[r]ights and remedies are closely interrelated con-
cepts; to deviate from the state’s definition of the latter often also
would change the former.”); see also Crump, supra, at 1235 (“Eq-
uitable remedies . . . seem to be substantive because they are the
‘business end’ of the rights that they enforce, and thus they deter-
mine outcomes.”).
Although there is reason to believe that “the practice of bor-
rowing state rules of decision does not apply with equal force to
determining . . . equitable remedies, as it does to defining actiona-
ble rights,” Davilla v. Enable Midstream Partners L.P., 913 F.3d
959, 973 (10th Cir. 2019), Guaranty Trust and later precedents
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 31 of 34
12 WILLIAM PRYOR, C.J., concurring 20-14217
nonetheless require federal courts to assess whether the federal in-
terest in applying traditional equity rules for a preliminary injunc-
tion must give way to a contrary state rule, see Crump, supra, at
1273; cf. Chambers v. NASCO, Inc., 501 U.S. 32, 44–45, 52–55
(1991) (applying the Hanna v. Plumer test to determine the extent
to which a court sitting in diversity could exercise its inherent pow-
ers, which are derived in part from historic equitable powers). And
that assessment counsels our application of the federal standard for
preliminary relief because, unlike permanent injunctions, prelimi-
nary injunctions “are not final awards in any sense.” 11A WRIGHT
ET AL., supra, § 2943.
Because “a preliminary injunction is meant to keep the sta-
tus quo for a merits decision, not to replace it,” Brown v. Sec’y,
U.S. Dep’t of Health & Hum. Servs., 4 F.4th 1220, 1225 (11th Cir.),
vacated as moot, __ F.4th __, No. 20-14210 (11th Cir. Dec. 29,
2021), the Florida presumption (at least in the context of a prelimi-
nary injunction) cannot be said to be “bound up with the definition
of the rights and obligations of the parties,” see Byrd, 356 U.S at
536; S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991)
(treating a preliminary injunction as procedural because its purpose
“is merely to preserve the relative positions of the parties until a
trial on the merits can be held” (quoting Univ. of Tex. v. Came-
nisch, 451 U.S. 390, 395 (1981))); accord Cap. Tool & Mfg. Co. v.
Maschinenfabrik Herkules, 837 F.2d 171, 172–73 (4th Cir. 1988). In-
deed, Florida courts treat “the standard for granting [a] temporary
injunction” as “procedural,” not “substantive,” for choice-of-law
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 32 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 13
purposes because the standard does not “prescribe[] duties and
rights,” but “concerns [only] the means and methods to apply and
enforce those duties and rights.” Quirch Foods LLC v. Broce, 314
So. 3d 327, 338 (Fla. Dist. Ct. App. 2020) (internal quotation marks
omitted).
The federal standard also need not “yield to the state rule in
the interest of furthering the objective that the litigation . . . not
come out one way in the federal court and another way in the state
court.” See Byrd, 356 U.S. at 538. To be sure, there is some possi-
bility that the failure to apply the presumption of irreparable harm
will lead to the denial of a preliminary injunction that would have
been granted in state court. But this possibility does not result in a
“certainty . . . or even the strong possibility that” “a different result
would follow” at the preliminary-injunction stage, much less in the
litigation as a whole—the inquiry that matters. See id. at 539; Guar.
Tr., 326 U.S. at 109 (focusing on whether a statute “significantly
affect[s] the result of [the] litigation” (emphasis added)).
Aside from the presumption of irreparable harm, the stand-
ards for a preliminary injunction under Florida and federal law are
similar. Florida courts and federal courts will issue a preliminary
injunction only if they conclude, among other things, that the
plaintiff has a substantial likelihood of succeeding on the merits,
that the plaintiff will suffer irreparable harm without the prelimi-
nary injunction, and that injunctive relief is in the public interest.
See Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,
1039 (11th Cir. 2011); Quirch, 314 So. 3d at 338. And, in both
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14 WILLIAM PRYOR, C.J., concurring 20-14217
jurisdictions, a preliminary injunction is treated as an extraordinary
remedy not to be awarded as a matter of course. See Forsyth Cnty.,
633 F.3d at 1039; Scott v. Trotti, 283 So. 3d 340, 343 (Fla. Dist. Ct.
App. 2018). Because the standards are similar overall, the outcomes
at the preliminary-injunction stage are likely to be similar, too.
Moreover, a plaintiff who succeeds on the merits at trial is
entitled under Florida law to a permanent injunction for the full
duration of the restrictive covenants, including the restrictive cov-
enants that have expired. See Quirch, 314 So. 3d at 331 n.1. If fed-
eral courts are bound to apply this rule in diversity cases, it will be
the rare case that “come[s] out one way in the federal court and
another way in the state court if the federal court failed to apply”
the Florida presumption at the preliminary-injunction stage. See
Byrd, 356 U.S. at 536–37.
In short, because “there is little chance that” resolution of a
motion for a preliminary injunction using the federal standard “ul-
timately will interfere seriously with the goals or policies of the
state-created right that is being litigated,” 11A WRIGHT ET AL., su-
pra, § 2943, “the federal practice” need not “yield to the state rule,”
see Byrd, 356 U.S. at 540. And because the federal standard will
have little impact on outcomes, application of that standard will
not “result in inequitable administration of the laws or forum shop-
ping.” See Carbone, 910 F.3d at 1349–50 (internal quotation marks
omitted); Michael Steven Green, The Twin Aims of Erie, 88
NOTRE DAME L. REV. 1865, 1875 (2013) (“[I]nequity is generated by
substantially different rules applying to a state law action solely by
USCA11 Case: 20-14217 Date Filed: 01/20/2022 Page: 34 of 34
20-14217 WILLIAM PRYOR, C.J., concurring 15
virtue of the accident of diversity of citizenship.” (internal quota-
tion marks omitted)); Cross, supra, at 193 n.144 (Under Hanna,
“[f]orum-shopping is objectionable when undertaken for the pur-
pose of obtaining a different result.”).
In my view, under Erie, the Florida standard for obtaining a
preliminary injunction is a matter of procedure, not of substance.
Federal courts must apply the federal standard in cases involving
Florida law. And under the federal standard, a plaintiff must prove
irreparable harm without the presumption afforded by Florida law.
See Snook, 909 F.2d at 486. So, our precedent in Ferrero remains
good law.