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IBM Corp. v. Visentin - 2011 U.S. Dist. LEXIS 15342 (S.D.N.Y. Feb. 16, 2011)


To obtain a preliminary injunction, the moving party must demonstrate: (1) that it will be irreparably harmed if an injunction is not granted, and; (2) either (a) a likelihood of success on the merits, or; (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of the hardships tipping decidedly in its favor. Furthermore, the United States Court of Appeals for the Second Circuit has indicated that where an injunction is mandatory, a movant must demonstrate a substantial likelihood of success on the merits.


Plaintiff International Business Machines Corporation ("IBM"), a leading technology company, filed an action in federal district court seeking a preliminary injunction against defendant Giovanni Visentin, a former IBM executive, to enforce a non-competition agreement by restraining Visentin from working for Hewlett-Packard Company ("HP") for a period of 12 months. HP was a direct competitor of IBM. Early in the morning of Jan. 19, 2011, Visentin notified IBM of his intention to leave IBM to work for HP. On Jan. 20, 2011, IBM filed a complaint including claims for breach of contract and misappropriation of trade secrets. On Jan. 24, 2011, a district court judge entered a temporary restraining order and scheduled a preliminary injunction hearing. The case was later transferred to another district court judge, who heard extensive testimony from five witnesses and reviewed a substantial number of exhibits.


Did IBM demonstrate its entitlement to a preliminary injunction against Visentin?




The court denied IBM's application for a preliminary injunction. The court observed that in a majority of the areas of information that IBM sought to protect as "trade secrets," IBM's fact witnesses failed to provide specific examples of confidential or trade secret information that could actually be used to IBM's detriment if Visentin were allowed to assume his new position at HP. IBM failed to carry its burden of proving that such extraordinary relief as a preliminary injunction was justified based on the specific facts of the case as they related to Visentin. The court found that based on the testimony of witnesses, the exhibits at the hearing, and the declarations of the parties, IBM failed to demonstrate that: (1) it would suffer irreparable harm if Visentin was allowed to begin his work for HP, and; (2) that it was likely that IBM would succeed on the merits of its case. 

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