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CPI Card Group, Inc. v. Dwyer

United States District Court, D. Minnesota

December 29, 2017

CPI Card Group, Inc., and CPI Card Group-Minnesota, Inc., Plaintiffs,
John Dwyer, Multi Packaging Solutions, Inc., John Searfoss, and Ken Glinert, Defendants.

          Redacted Date 2/20/2018

          Karen D. McDaniel, James J. Long, and Lisa Colburn, Briggs & Morgan, PA, for Plaintiffs.

          Ryan A. Olson, Richard R. Voelbel, and Scott D. Blake, Felhaber, Larson, Fenlon & Vogt, PA, for Defendant John Dwyer.

          Brian T. Benkstein, Gina K. Janeiro, and Janet M. Olawsky, Jackson Lewis P.C., for Defendants Multi Packaging Solutions, Inc., John Searfoss, and Ken Glinert.



         Currently before the Court are the Motion for a Preliminary Injunction (“Pls.' PI Mot.”) [Doc. No. 143] filed on November 7, 2017 by Plaintiffs CPI Card Group, Inc. and CPI Card Group-Minnesota, Inc. (collectively, “CPI” or “Plaintiffs”), and the Motion for Partial Dismissal [Doc. No. 48] filed by Defendants Multi Packaging Solutions, Inc. (“MPS”) and John Searfoss (“Searfoss”). For the reasons set forth below, CPI's Motion for a Preliminary Injunction is granted and MPS and Searfoss's Motion for Partial Dismissal is granted in part and denied in part as detailed herein.

         I. BACKGROUND

         Before CPI filed its Motion for a Preliminary Injunction, the parties engaged in some expedited discovery. In support of their respective positions on the motion, each party submitted evidence, including affidavits, deposition testimony and exhibits. Based on that record, and oral argument held on November 27, 2017, the Court recites below its preliminary findings of fact relevant to this motion. See Calvin Klein Cosmetics Corp. v. Parfums de Coeur, Ltd., 824 F.2d 665, 667 (8th Cir. 1987) (noting the district court's use of supporting materials, including affidavits and depositions of experts, to rule on the motion for a preliminary injunction). The Court notes, however, that the facts recited herein are not final determinations of disputed matters binding in later stages of litigation. It is a “general rule that ‘the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.'” Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir. 1995) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

         A. Parties

         Plaintiff CPI Card Group, Inc. is incorporated in Delaware and has a principal place of business in Colorado. (Am. Complaint [Doc. No. 11] ¶ 3.) Plaintiff CPI Card Group-Minnesota, Inc. is incorporated in Minnesota and also has its principal place of business here. (Id.) CPI asserts that it is a leader in the business of “transaction cards, ” which include credit and debit cards, prepaid cards, phone cards, rebate or reward cards, and transit cards. (see Id. ¶ 13; see also Ex. A of Decl. of Mira Vats-Fournier (“Vats-Fournier Decl.”) [Doc. No. 163], Dep. of John Dwyer (“Dwyer Dep.”) at ¶ 66/14.[1]) In the transaction card industry, cards may be categorized as “open loop” or “closed loop.” (Decl. of Margaret O'Leary (“O'Leary Decl.”) [Doc. No. 158] ¶ 27.) “Open loop” cards are those which can be used at any location, e.g., Visa or American Express. (Id.) In contrast, “closed loop” cards can only be used at a singular retailer, such as Starbucks or Home Depot. (Id.) CPI also asserts that it is focused on both closed loop and open loop cards because “[t]here is significant overlap in customers, ” and the needs of those customers are similar. (Id.)

         Defendant MPS, which is incorporated in Delaware and has its principal place of business in New York, (Am. Compl. ¶ 5), is also involved in the transaction card industry, (Decl. of Ken Glinert (“Glinert Decl.”) [Doc. No. 174] ¶ 4). MPS is a “print and packaging company” and “manufactures and designs folding cartons, labels, rigid packaging, displays, inserts, and transaction cards.” (Id. ¶ 2.) As part of its transaction card business, MPS also provides closed loop and open loop cards. (Id. ¶ 5). MPS and CPI are fierce competitors in what is a very competitive transaction card industry. (O'Leary Decl. ¶ 3.)

         Defendants Searfoss and Kenneth Glinert (“Glinert”) are currently Senior Vice Presidents of Sales at MPS. (Ex. A of Vats-Fournier Decl., Dep. of John Searfoss (“Searfoss Dep.”) at A38/13; Id., Dep. of Kenneth Glinert (“Glinert Dep.”) at A3/11.) Searfoss has worked for MPS for approximately one year. (Searfoss Dep. at A37/12.) His position for MPS involves “strategy, operation, and technology.” (Id. at A38/13.) Glinert has been employed by MPS since approximately 2006 and is currently responsible for transaction card sales. (Glinert Dep. at A3-4/11-13.) Searfoss and Glinert work together building strategies for the technologies that MPS will bring to market in 2018. (Searfoss Dep. at A39/19-20.)

         Defendant John Dwyer (“Dwyer”) has worked in the transaction card industry since 2004 and currently works for MPS. (Dwyer Dep. at A66/14.) Immediately before that, he worked for CPI for a period of thirteen years. (Id. at A66/13.) Although his last day of employment at CPI is heavily disputed, [2] as are many of the events leading up to his resignation, Dwyer voluntarily resigned from CPI in late spring of 2017. (See Third Decl. of John Dwyer (“Third Dwyer Decl.”) [Doc. No. 170] ¶ 4.) Even before resigning from CPI, however, he signed an employment agreement with MPS. (Id. ¶ 3.)

         At CPI, Dwyer was a Senior Account Executive. (Dwyer Dep. at A66/15.) In that role, his responsibilities included “managing client relationships, prospecting new clients and customers, ” as well as heavy involvement in production and servicing of accounts. (Id.) While at CPI, Dwyer had a “steady group of base customers, ” whom Dwyer would “call on, ” or meet with personally, to sell them new and existing transaction card products. (Id. at A66-67/16-18.)

         At least as related to these clients, Dwyer was exposed to a slew of information which CPI categorizes as CPI confidential. He knew the pricing of the CPI products he sold, as well as the pricing “strategy” for certain products; information that, as “a general rule, ” Dwyer acknowledges was CPI confidential information. (Id. at A67-68/19-22.) In addition to confidential pricing schemes, Dwyer was also exposed to design specifications and strategic plans at CPI, certain aspects of which Dwyer acknowledges were deemed CPI confidential. (Id. at A68/24, A69/25.) He was also exposed to information related to revenue and profits as well as information about products in development and not yet released to market-information which Dwyer again understands to have been CPI confidential information. (Id. at A69/26-27.)

         Now, at MPS, Dwyer's duties are primarily focused on WestRock, the entity that recently purchased MPS. (Third Dwyer Decl. ¶ 14.) These responsibilities include: “serving as a liaison between MPS and WestRock's enterprise group focusing on key enterprise accounts; . . . assessment of potential synergies between MPS and WestRock; retail management and data analytics associated with merchandising displays; and development of new product opportunities focused on connected packaging, consumer promotions, and products focused on the insurance industry; . . . sale activities related to merchandising display sales, and closed-loop product sales with MPS's current customers and prospects in the closed-loop space.” (Id.) Dwyer maintains that his current job duties “are substantially different” from his prior duties at CPI. (Id. ¶ 15.)

         B. Dwyer's Employment Agreements with CPI

         Because of the confidential nature of many aspects of CPI's business, as well as the heavy competition in the field, CPI protects its confidential and trade secret information, in part, through the use of contractual agreements with its employees. (O'Leary Decl. ¶ 8.) As relevant here, Dwyer signed three such employment agreements: (1) a “Confidentiality and Nonsolicitation Agreement” (“Confidentiality Agreement”), (see Am. Compl., Ex. A [Doc. No. 11-1]); (2) an Option Award Agreement (“Option Agreement”), (see id., Ex. B [Doc. No. 11-2]); and (3) a Restricted Stock Unit Agreement (“Unit Agreement”), (see id., Ex. C [Doc. No. 11-3]), (collectively, the “Original Agreements”). Generally speaking, these agreements imposed on Dwyer confidentiality, non-solicitation, and non-compete obligations, as explained below.

         1. Confidentiality

         The confidentiality, or non-disclosure, obligations imposed on Dwyer by the Confidentiality Agreement are quite extensive. The Confidentiality Agreement prohibits Dwyer from misusing or disclosing any CPI confidential information as defined therein. (See Confidentiality Agreement ¶¶ 1-2.) Specifically, the agreement prohibits Dwyer, during and after his employment, from using, disclosing, duplicating, recording, or reproducing confidential information “except as ordinarily necessary” for the performance of his work duties or unless CPI expressly directs him to do so. (Id. ¶ 2.) These confidentiality obligations are further reinforced by the Option Agreement, which also prohibits Dwyer from disclosing or using CPI confidential information, except as related to and required by Dwyer's performance duties at CPI. (Option Agreement ¶ 10(a).) The Option Agreement also tasks Dwyer with safeguarding and protecting CPI confidential information against disclosure, misuse, espionage, loss, and theft. (Id.)

         2. Non-Solicitation

         The Original Agreements also imposed non-solicitation obligations on Dwyer. The Confidentiality Agreement prohibited Dwyer-for 1 year following termination of employment-from “directly or indirectly solicit[ing], on [his] own behalf or on behalf of another, (a) any of [CPI's] then-current customers, or (b) any of [CPI's] potential customers for whom [he] had contact or provided services, either directly or indirectly.” (Confidentiality Agreement ¶ 7.) This clause covered “products in development, developed, manufactured or sold” by CPI before Dwyer left CPI. (Id.)

         The Option Agreement's non-solicitation provisions, effective for two years after Dwyer left CPI, prohibited Dwyer from “call[ing] on, solicit[ing] or servic[ing] any customer, supplier, licensee, licensor or other business relation of [CPI] in order to induce or attempt to induce any such [p]erson to cease doing business with [CPI], or in any way interfere with the relationship between” CPI and any of these third parties. (Option Agreement ¶ 10(c).) The Unit Agreement also prohibited Dwyer, inter alia, for one year after leaving CPI, from soliciting, among others, customers, former customers, and active prospects of the “Business” of CPI within the “Restricted Territory, ” as well as from selling products or services for any business that competes with the “Business” of CPI, again within the “Restricted Territory” as defined in the agreement. (Unit Agreement ¶¶ 6(a)(i)(B), (C).)

         3. Non-Compete

         Finally, the Original Agreements also included strict non-compete provisions. The Option Agreement required Dwyer to abstain from working for a competitor for two years after leaving CPI. (See Option Agreement ¶ 10(b).) Specifically, this agreement provided that “[Dwyer] shall not, directly or indirectly, either for himself or for or through any other [p]erson, participate in any business or enterprise in a ‘Competitive Business, '” a term defined to “include any company, person or entity that is involved in, seeks to become involved in or competes with the Business in the Restricted Territory.” (Id. ¶ 10(b).) “Business, ” in turn, is defined through an extensive list of the many aspects of the transaction card industry. (See id.)

         The Unit Agreement also prohibited Dwyer, for one year after leaving CPI, from “enter[ing] into or engag[ing] in any business that competes with the Business within the Restricted Territory, ” or “counsel[ing], promot[ing] or assist[ing], financially or otherwise, any person engaged in any business that competes with the Business within the Restricted Territory.” (Unit Agreement ¶¶ 6(a)(i)(A), (D).) This agreement again defines the terms “Business” and “Restricted Territory.” (Id. ¶ 6(b).)

         C. Dwyer Leaves CPI to Work for MPS

         Dwyer contends that, at some point, he became frustrated with the compensation plan at CPI and communicated that frustration-and intent to leave CPI if his compensation did not improve-to his supervisor, Margaret O'Leary (“O'Leary”), in January of 2016. (Third Dwyer Decl. ¶ 1.) Dwyer claims that O'Leary told him to “give her one year to fix the compensation plan, ” but that the new plan she presented to him more than a year later was, in his view, even worse. (Id. ¶¶ 1-2.)

         Meanwhile, according to Searfoss, at least by December 2016, “there was word on the street that [Dwyer] was not happy” at CPI. (Searfoss Dep. at A43/33.) At that time, Searfoss approached Dwyer about a position with MPS, (Id. at A42/32), and the two began to negotiate Dwyer's eventual employment with MPS, (see Ex. A of Vats-Fournier Decl. (Ex. 19 (Dec. 23, 2016 email from Searfoss to Dwyer)) at A200-10.) In February of 2017, Searfoss sent Dwyer the outline of an offer for employment. (Id. (Ex. 18 (Feb. 8, 2017 email from Searfoss to Dwyer)) at A197.) At some point, the now-President of MPS, Marc Shore, also became involved in recruiting and hiring Dwyer. (Searfoss Dep. at A43/33-34.) Shore reviewed details of Dwyer's eventual compensation offer as well as the non-compete covenants to which Dwyer was bound before passing the information on to MPS's attorneys for review. (Id.) Finally, on March 27, 2017, Dwyer signed an employment agreement with MPS. (See Ex. A of Vats-Fournier Decl. (Ex. 20 (MPS-Dwyer Employment Agreement)) at A202-15.) Per the employment agreement, Dwyer was to start work for MPS in April of 2017. (Id. at A203.)

         On March 29, 2017-two days after he signed his employment agreement with MPS-Dwyer sent O'Leary an email tendering his resignation from CPI. (Id. (Ex. 33 (Mar. 29, 2017 email from Dwyer to O'Leary)) at A303.) He did not, however, state that he had already signed an employment agreement with MPS. (Id.) Instead, Dwyer represented to O'Leary that he needed to take some time to figure out his future plans, implying he did not have another opportunity already lined up. (Id.) Dwyer wrote to O'Leary, “It is time for me to decide what the next chapter of my career will look like and I am looking forward to taking a little time to figure this out.” (Id.)

         After Dwyer resigned, O'Leary asked him to remain at CPI for a temporary period to assist with transitioning his clients. (O'Leary Decl. ¶ 9; Third Dwyer Decl. ¶ 5.) Dwyer obtained MPS's agreement to postpone his start date, and then agreed to stay at CPI temporarily. (Third Dwyer Decl. ¶¶ 6-7.) Dwyer contends that in exchange for staying on longer, he asked to have certain provisions of the Original Agreements renegotiated and revised. (Id. ¶ 6; O'Leary Decl. ¶ 9.) Though the circumstances surrounding the negotiations are heavily disputed, CPI and Dwyer ultimately executed an amendment (the “Amendment”) to the Original Agreements, as described below. At no time throughout these negotiations did Dwyer disclose the fact that he had already signed an employment agreement with CPI's competitor MPS.

         D. The Amendment with CPI

         On May 12, 2017, Dwyer and CPI signed the Amendment, which made significant changes to Dwyer's non-compete and non-solicitation obligations to CPI. (See Am. Compl., Ex. D, Amendment [Doc. No. 11-4].) The Amendment, however, did not alter Dwyer's confidentiality obligations under the Original Agreements. (See id.). The Amendment appears to release Dwyer of the non-compete obligations he had under the Original Agreements. In relevant part, the Amendment provides that “Sections 10(b) and (c) of the Option Award Agreement” and “Section[s] 6(i) and (ii) of the Restricted Stock Unit Agreement”-sections imposing both non-compete and non-solicitation obligations-“shall be deleted in their entirety and replaced” by narrower non-solicitation provisions-but no non-compete provisions-effective until March 29, 2018. (See Amendment ¶¶ 4, 8.) In relevant part, the replacement non-solicitation language in the Amendment prohibits Dwyer from “directly or indirectly, either for himself or any other [p]erson, solicit[ing]” two categories of CPI clients:

“(1) clients producing revenue for CPI Holdings, Inc. on or before March 29, 2017 that [Dwyer] directly managed or consulted on in the areas of card fulfillment and eServices, and
(2) clients producing revenue for CPI Card Group - Minnesota, Inc. on or before March 29, 2017 in the business segment of open loop prepaid retail packaging.”

(Id. ¶ 4(b) (replacing non-compete & non-solicitation provisions of the Option Agreement), ¶ 8 (doing same as to Unit Agreement).) The non-solicitation provision of the Confidentiality Agreement was also replaced by identical language. (See Id. ¶ 7.) In short, the Amendment appears to remove Dwyer's non-compete obligations under the Original Agreements, leaves unaltered his confidentiality obligations, and significantly narrows his non-solicitation restrictions.

         CPI was unaware of Dwyer's employment agreement with MPS while it negotiated the Amendment with Dwyer. (O'Leary Decl. ¶ 9.) In fact, O'Leary states that CPI would never have negotiated the Amendment, or asked Dwyer to continue working for CPI for a transitional period, had Dwyer disclosed that he had already accepted a position with MPS. (Id.) MPS, on the other hand, was aware of Dwyer's negotiation of the Amendment, as Dwyer kept MPS closely informed on the progress of negotiations. (See, e.g., Ex. A of Vats-Fournier Decl. (Ex. 39 (May 5, 2017 email thread between Dwyer, Searfoss, and Glinert)) at A346-48.) In fact, the evidence suggests that Dwyer, Glinert, and Searfoss contemplated steps to keep details about Dwyer's future employment plans hidden from CPI at least until Dwyer signed the Amendment. For instance, on May 5, 2017, Dwyer forwarded to Glinert and Searfoss an email that Dwyer had sent to CPI with his “final offer” for language for the Amendment. (Id. at A346.) Glinert responded, “[John Dwyer], if you are pressed for time I would have it signed in current form below as I'm concerned about them pulling the rug out. Better to have closed than no card industry at all.” (Id.) Glinert was concerned that “rumors are heating up” such that time was “key.” (Id.) To this, Dwyer responded that “[t]o provide some breathing room, ” he had asked a friend who worked for a CPI customer to ask O'Leary if that customer could hire Dwyer. (Id.) Dwyer stated that his request to his friend was designed “to throw a little smoke.” (Id.)

         Searfoss had a similar exchange with Dwyer. On May 1, 2017, Searfoss texted Dwyer, “Just sat down with Adam DeMalignon and he told me you were coming to work for MPS! He wouldn't tell me who told him but I think Sev knows. I hope you get your document signed before anyone finds this out.” (Ex. A of Vats-Fournier Decl. (Ex. 24 (text messages)) at A240, row 1679.) Presumably, the “document” Searfoss referred to was the Amendment.

         The Amendment contains apparently contradictory language regarding its effective date. On one hand, the Amendment states that it is “made effective on the 12thday of May, 2017.” (Amendment at 2.) On the other hand, it states, “Provided the SATISFYING EVENT defined in Paragraph 3 of this Amendment is met, this Amendment shall become effective on June 17, 2017, ” but “[i]n the event the SATISFYING EVENT . . . is not met, this Amendment shall be null and void.” (Id. ¶ 2.) The “satisfying event” would be met if: (1) “Dwyer w[ould] continue providing services to [CPI] up to and including June 16, 2017”; (2) Dwyer physically reported to work “up to and including May 16, 2017, after which, he w[ould] receive payment for accrued vacation . . . until such accrued vacation is exhausted on or about June 16, 2017”; and (3) between May 13, 2017 and June 16, 2017, inclusive, Dwyer-although not required to physically report to CPI-“w[ould] make himself available by phone, email, or in-person, on an as needed basis to assist in addressing any job-related issues incident to his employment with [CPI].” (Id. ¶ 3.)

         E. The Alleged Trade Secret Misappropriation & Violation of Confidentiality, Non-Compete, and Non-Solicitation Obligations

         In the months before and after his resignation from CPI, but before officially starting work for MPS, [3] Dwyer engaged in behavior which CPI characterizes as the misappropriation of CPI trade secrets and confidential information and chronic violations of Dwyer's confidentiality, non-compete, and non-solicitation obligations to CPI. (Pls.' Mem. Supp. Mot. Prelim. Inj. (“Pls.' PI Mem.”) [Doc. No. 154] at 6-10.) Dwyer and the MPS Defendants heavily dispute these characterizations. (See Def. Dwyer Opp'n Mot. Prelim. Inj. (“Dwyer's Opp'n”) [Doc. No. 166]; MPS Defs.' Opp'n Mot. Prelim. Inj. (“MPS Defs.' Opp'n”) [Doc. No. 172].) Although CPI's contentions are summarized here, the parties' arguments are more fully described in Section II.A, infra.

         CPI first points to an email entitled “Opportunity” which Dwyer sent to Searfoss on January 9, 2017 while negotiations for Dwyer's employment with MPS were underway. (Ex. A of Vats-Fournier Decl. (Ex. 22 (Decl. of John Searfoss (“Searfoss Decl.”) Ex. A)) at A224.) This email described a “fulfillment opportunity” for (Xxxxx), contained (Xxxxx) 's contact information, and included a suggestion by Dwyer to Searfoss that MPS should “get right on this as it could be your foot in the door.” (Id.) According to CPI, this email constitutes a breach of Dwyer's confidentiality and non-compete obligations under the Original Agreements long before the Amendment. (Pls.' PI Mem. at 6-7.)

         Next, CPI points to two emails which Dwyer sent in March of 2017 related to a (Xxxxx) CPI was developing for (Xxxxx) . (Id. at 8-9.) On March 10, 2017, Dwyer emailed Searfoss from his personal Gmail account, attaching a document labeled (Xxxxx), ” and telling Searfoss: “Check out this patent…(Xxxxx) ” (Id.; Ex. A of Vats-Fournier Decl. (Ex. 37 (Mar. 10, 2017 email from Dwyer to Searfoss)) at A330.) The patent in question was then under licensing negotiations between (Xxxxx) and CPI-negotiations that Dwyer was in fact spearheading on behalf CPI. (O'Leary Decl. ¶ 19; Dwyer Dep. at A84/85-86.) Then, on March 21, 2017, about a week before resigning from CPI, Dwyer sent another email to Searfoss, telling Searfoss that Dwyer needed to talk to him about a PowerPoint presentation attached to the email titled (Xxxxx) (Ex. A of Vats-Fournier Decl. (Ex. 40 (March 21 email from Dwyer to Searfoss)) at A349-355.) Dwyer had apparently received that presentation from a (Xxxxx) after the two had discussed it the day before. (O'Leary Decl. ¶ 16.) CPI claims that these emails constitute a breach of Dwyer's confidentiality and non-compete obligations and also constitute the misappropriation of trade secrets and confidential information, again long before the Amendment was in effect. (Pls.' Reply Supp. Mot. Prelim. Inj. (“Pls.' PI Reply”) [Doc. No. 184] at 1, 3.)

         The next set of evidence that CPI points to is a series of emails that Dwyer forwarded from his CPI email account to his personal Gmail account on March 29, 2017, minutes before he emailed his resignation to O'Leary. (Pls.' PI Mem. at 6-7.) These emails contained attachments to various presentations and CPI documents, many of which are marked as CPI confidential. (See Ex. A of Vats-Fournier Decl. (Exs. 33-36 (March 29 emails from Dwyer to Dwyer)) at A304-29.) Again, CPI contends that Dwyer misappropriated trade secrets and breached his duty of confidentiality by forwarding these emails to his personal account. (Pls.' PI Reply at 1-2.)

         Finally, CPI points to two PowerPoint presentations that Dwyer prepared and sent to Searfoss and Glinert on May 18th and June 1st, respectively, while he was still providing as-needed services to CPI. (Pls.' PI Mem. at 7.) Dwyer first forwarded these presentations from his CPI email account to his personal Gmail account, and then within a few minutes forwarded those same presentations to Searfoss and Glinert from Gmail. (Compare Ex. A of Vats-Fournier Decl. (Ex. 7 (May 18 email from Dwyer to Dwyer)) at A133-37, and Id. (Ex. 10 (June 1 email from Dwyer to Dwyer)) at A146-57, with Id. (Ex. 8 (May 18 email from Dwyer to Searfoss and Glinert)) at A138-42, and Id. (Ex. 11 (June 1 email from Dwyer to Searfoss and Glinert)) at A158-77.) CPI contends that these presentations include CPI trade secrets and confidential information, as well as information on CPI products not yet released to market. (O'Leary Decl. ¶¶ 14-15.)

         F. Forensic Investigation and Procedural Posture

         At some point after these events, CPI conducted a forensic examination of Dwyer's CPI email account and learned about the emails Dwyer had forwarded to his personal Gmail account, including the May 18th and June 1st emails. (Am. Compl., Ex. E (litigation hold letter from CPI to Dwyer) [Doc. No. 11-5] at 2.) On July 13, 2017, the law firm of Winston & Straw (“Winston”), then counsel for CPI, sent Dwyer a litigation hold letter. (Id.) This letter also demanded that Dwyer cooperate with CPI's computer forensic vendor, FTI Consulting (“FTI”), “to accomplish removal and remediation of all electronic copies of CPI's materials from all [his] personal electronic devices, email accounts, external drives and cloud based storage sites where they may reside.” (Id. at 2, 4.)

         On July 18, the law firm of Kramer Levin, who was then representing Dwyer, responded to Winston's demand letter. (Am. Compl., Ex. F (Dwyer response to litigation hold letter) [Doc. No. 11-6] at 18.) A few days later, the parties began an email discussion and reached an agreement (the “ESI Agreement”) pursuant to which FTI would locate and forensically remove CPI's materials from Dwyer's personal electronic devices, email accounts, external drives, and cloud-based storage devices. (Dwyer's Opp'n at 8.) FTI conducted this forensic examination and deleted CPI-related information and documents from Dwyer's devices. (Id.)

         Following the FTI forensic examination, attempts between the parties to reach an out-of-court resolution broke down, and on August 25, 2017, local counsel Briggs and Morgan (“Briggs”) initiated this lawsuit on behalf of CPI, alleging claims against Dwyer, MPS, Searfoss, and Glinert.[4] (Compl. [Doc. No. 1].)[5] On September 15, 2017, Dwyer filed a Motion to Disqualify CPI's counsel [Doc. No. 27]. Dwyer argued that both Winston and Briggs should be disqualified from representing CPI because they had deliberately breached the parties' ESI Agreement, intentionally reviewed attorney-client privileged information, and violated the Minnesota Rules of Professional Conduct. (See Dwyer's Mem. Supp. Mot. Disqualify Pls.' Counsel [Doc No. 29] at 1.) A hearing date before the magistrate judge was set for October 2, 2017. (Sept. 21, 2017 Order [Doc. No. 54].)

         Meanwhile, on September 21, 2017, both sides filed motions before this Court. Defendants MPS and Searfoss moved to dismiss two counts of the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b). (See MPS and Searfoss Mot. Partial. Dismissal.) First, MPS and Searfoss urge the Court to dismiss CPI's claim for Fraudulent Inducement of the Amendment as against the two of them, [6]arguing that the claim does not meet the heightened pleading requirement under Rule 9(b). (MPS and Searfoss Mem. Supp. Partial Dismissal (“MPS and Searfoss Dismissal Mem.”) [Doc. No. 50] at 1, 5-8.) Second, MPS and Searfoss ask this Court to dismiss CPI's claim for Unfair Competition, (see Am. Compl. ¶¶ 173-78 (Count IX)), for failure to state a claim, (MPS and Searfoss Dismissal Mem. at 1-2, 8-10).

         For its part, CPI moved for a preliminary injunction [Doc. No. 55]. Winston alone submitted and signed CPI's motion, (see Id. at 4), and it alone signed CPI's memorandum in opposition to the Motion for Partial Dismissal filed by MPS and Searfoss.

         On October 27, 2017, Magistrate Judge Franklin L. Noel issued an Order disqualifying Winston-but not Briggs-from representing CPI. (See Oct. 27, 2017 Magistrate Judge Order (“MJ Order”) [Doc. No. 124].)[7] In light of the magistrate judge's order disqualifying Winston, this Court ordered that Winston withdraw CPI's motion for a preliminary injunction. (See Oct. 30, 2017 Order [Doc. No. 132].) Given the magistrate judge's finding of no impropriety by Briggs, this Court permitted Briggs to file a new motion for a preliminary injunction on behalf of CPI-cured of any impropriety-and directed CPI to re-file a response to MPS and Searfoss's Motion for Partial Dismissal. (See Min. Entry for Nov. 2, 2017 Teleconference [Doc. No. 136].)

         On November 7, 2017, Briggs filed the instant Motion for a Preliminary Injunction on behalf of CPI [Doc. No. 143]. CPI urges the Court to enjoin all Defendants from “deliberate and extensive misappropriation of CPI's trade secrets and other confidential business information.” (Pls.' PI Mot. at 1.) CPI further seeks to enjoin Dwyer from working, directly or indirectly, in MPS's transaction card industry during the pendency of this lawsuit. (CPI Proposed Order [Doc. No. 152] at 2.) Finally, CPI ...

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