Opinion
Civil Action No. 00-3373, Section: D/3
November 14, 2000.
ORDER AND REASONS
Plaintiff Merrill Lynch, Pierce, Fenner Smith Inc. ("Merrill Lynch") filed a complaint this date against defendant Roland Doubleday ("Doubleday") seeking injunctive relief for breach of contract, misappropriation of trade secrets, conversion of confidential business information, breach of fiduciary duty and duty of loyalty, and unfair competition. Doubleday is a former financial consultant of Merrill Lynch's New Orleans, Louisiana office. He resigned his employment on November 10, 2000 and began working for Salomon Smith Barney, Inc., on November 11, 2000.
Merrill Lynch seeks a temporary restraining order prohibiting the defendant Doubleday from using, disclosing, or transmitting for any purpose, including the solicitation of Merrill Lynch customers, information contained in the records of Merrill Lynch, soliciting any business from Merrill Lynch customers, and destroying any records in his possession from Merrill Lynch, based upon certain non-competition and non-disclosure agreements he signed while employed by Merrill Lynch.
Because the district judge to whom this case was assigned was unavailable to consider this request for a temporary restraining order, this matter was temporarily allotted to the undersigned. A review of the complaint, request for temporary restraining order, and opposition, and a brief review of the Louisiana jurisprudence on non-competition clauses convinces the Court that the temporary restraining order in the form presented should be denied. As stated by the court in Swat 24 Shreveport Bossier, Inc. v. Bond, 759 So.2d 1047 (La.App. 2d Cir. 2000):
A covenant not to compete contained in an employment agreement is disfavored in Louisiana because it may function to deprive a person of his livelihood. Such a covenant will be enforced only if it meets narrowly drawn criteria. . . .759 So.2d at 1050. Thus, the likelihood of success on the merits, a prerequisite to the issuance of a temporary restraining order, is not assured. Accordingly,
IT IS ORDERED that the plaintiff's motion for a temporary restraining order be and is hereby DENIED; IT IS FURTHER ORDERED that discovery may commence immediately;
IT IS FURTHER ORDERED that the defendant Roland Doubleday shall provide immediately to plaintiff a list of customers he serviced at Merrill Lynch to whom he sent the November 11, 2000 letter on Salomon, Smith Barney letterhead;
IT IS FURTHER ORDERED that a preliminary injunction hearing will be held before United States District Judge A.J. McNamara on November 22, 2000 at 10:00 a.m., or on any other date assigned by Judge McNamara, should he be unable to hear the matter on that date.