                                 NO. COA13-964

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 4 March 2014


HORNER INTERNATIONAL COMPANY,
     Plaintiff,

       v.                                   Wake County
                                            No. 13 CVS 7131
BILL M. MCKOY,
     Defendant.


       Appeal   by   Plaintiff   and   cross-appeal      by   Defendant    from

preliminary injunction entered 14 June 2013 by Judge G. Bryan

Collins in Wake County Superior Court.            Heard in the Court of

Appeals 8 January 2014.


       Wallace & Nordan, L.L.P., by John R. Wallace and Joseph A.
       Newsome, for Plaintiff.

       Robinson Bradshaw & Hinson, P.A., by J. Dickson Phillips
       and Brian L. Church, for Defendant.


       STEPHENS, Judge.


                Procedural History and Factual Background

       This case concerns the grant in part and denial in part of

a motion for a preliminary injunction in a dispute between a

company and its former employee.           Plaintiff Horner International

Company manufactures flavor materials for use in tobacco and

food    products.      Defendant    Bill    M.   McKoy    was   employed     by
                                               -2-
Plaintiff from May 2006 until October 2012.                          In 2006, Defendant,

who had worked in the food processing and flavor industry since

the    early       1980s,     assisted        Plaintiff      with     setting         up    a    new

manufacturing            plant   in     Durham    and     served      as     plant         manager

thereafter.             In May 2006, Defendant signed a Non-Competition

Agreement (“NCA”) and Agreement Not to Disclose Trade Secrets

(“ANDTS”)          as    conditions      of     his    employment          with       Plaintiff.

Defendant          resigned      from    Plaintiff       on     8    October        2012        and,

thereafter,         began     employment        with    Teawolf,          LLC,    a    Delaware

Limited Liability Company with its principal place of business

in     New     Jersey.           Defendant’s          work    for         Teawolf      involves

installing, maintaining, and optimizing equipment used in the

production of new flavor products.                      Both Plaintiff and Teawolf

sell    flavor          materials     derived    from     cocoa,      chocolate,           coffee,

tea, fenugreek, ginseng, and chamomile.

       On 20 May 2013, Plaintiff filed (1) a complaint; (2) a

motion       for    temporary       restraining         order       (“TRO”),      preliminary

injunction, and permanent injunction; and (3) a motion for an

order allowing expedited discovery of Defendant.                                  The motions

for TRO and expedited discovery were allowed on 22 May 2013, and

Defendant      was        restrained     from    violating          the    NCA    and       ANDTS.

Following a hearing on the motion for preliminary injunction in
                                  -3-
early June 2013, the trial court entered an order on 14 June

2013, nunc pro tunc, to 4 June 2013, which enjoined Defendant

from disclosing Plaintiff’s confidential information and trade

secrets, but denied the motion as to the NCA.           On 27 June 2013,

Plaintiff filed notice of appeal from the trial court’s denial

of the preliminary injunction as to the NCA.            On 8 July 2013,

Defendant filed notice of cross-appeal from the grant of the

preliminary    injunction    as     to    Plaintiff’s          confidential

information and trade secrets.

                   Grounds for Appellate Review

    Preliminary    injunctions      are   “interlocutory         and   thus

generally not immediately reviewable.       An appeal may be proper,

however, in cases, including those involving trade secrets and

non-compete   agreements,   where   the   denial   of    the    injunction

deprives the appellant of a substantial right which he would

lose absent review prior to final determination.”                VisionAIR,

Inc. v. James, 167 N.C. App. 504, 507, 606 S.E.2d 359, 361

(2004) (citations and internal quotation marks omitted).

         The purpose of a preliminary injunction is
         ordinarily   to  preserve   the  status  quo
         pending trial on the merits.    Its issuance
         is a matter of discretion to be exercised by
         the hearing judge after a careful balancing
         of the equities.     Its impact is temporary
         and lasts no longer than the pendency of the
         action.    Its decree bears no precedent to
                                -4-
         guide the final determination of the rights
         of the parties.       In form, purpose, and
         effect, it is purely interlocutory.        Thus,
         the   threshold   question   presented    by   a
         purported appeal from an order granting a
         preliminary    injunction   is   whether     the
         appellant    has   been    deprived    of    any
         substantial right which might be lost should
         the order escape appellate review before
         final judgment.

A.E.P. Indus., Inc. v. McClure, 308 N.C. 393, 400, 302 S.E.2d

754, 759 (1983) (citation and internal quotation marks omitted).

Our Supreme Court went on to hold that

         where time is of the essence, the appellate
         process is not the procedural mechanism best
         suited for resolving the dispute.           The
         parties would be better advised to seek a
         final determination on the merits at the
         earliest   possible   time.       Nevertheless,
         [where   a]   case   presents   an    important
         question affecting the respective rights of
         employers   and   employees   who   choose   to
         execute agreements involving covenants not
         to   compete,   [appellate    courts    should]
         address the issues.

Id. at 401, 302 S.E.2d at 759.        We believe the same reasoning

applies to agreements between an employer and employee regarding

protection   of   the   employer’s       alleged   trade    secrets.

Accordingly, we address the merits of both Plaintiff’s appeal

and Defendant’s cross-appeal.

                           Discussion
                                      -5-
       In its appeal, Plaintiff argues that the trial court erred

in denying its motion for a preliminary injunction as to the

NCA, contending that (1) a non-compete agreement can be properly

enforced by means of a preliminary injunction and (2) the NCA is

valid and enforceable.           In his cross-appeal, Defendant argues

that   the     court   erred   in   enjoining     him   from   disclosure    of

Plaintiff’s       confidential      information     and      trade   secrets,

contending that (1) Plaintiff failed to sufficiently identify

the    trade    secrets    allegedly    at   risk       of   disclosure,    (2)

Defendant’s mere “opportunity to misappropriate” cannot support

the court’s determination of Plaintiff’s likelihood of success

on the merits of its claims, and (3) the preliminary injunction

entered was too “broad and nebulous.”              As discussed herein, we

affirm.

I. Standard of Review

             As a general rule, a preliminary injunction
             is an extraordinary measure taken by a court
             to preserve the status quo of the parties
             during litigation.    It will be issued only
             (1)   if  a   plaintiff   is  able   to show
             likelihood of success on the merits of his
             case and (2) if a plaintiff is likely to
             sustain   irreparable    loss    unless  the
             injunction is issued, or if, in the opinion
             of the Court, issuance is necessary for the
             protection of a plaintiff’s rights during
             the course of litigation.
                                         -6-
Id. at 401, 302 S.E.2d at 759-60 (citations, internal quotation

marks, and emphasis omitted).

       “The standard of review from a preliminary injunction is

essentially de novo.”           VisionAIR, Inc., 167 N.C. App. at 507,

606    S.E.2d    at    362    (citation     and      internal    quotation     marks

omitted).       Thus, “on appeal from an order of a superior court

granting or denying a preliminary injunction, an appellate court

is not bound by the findings, but may review and weigh the

evidence and find facts for itself.”                  A.E.P. Indus., Inc., 308

N.C.    at      402,    302     S.E.2d      at       760   (citation     omitted).

“Nevertheless[,]       a     trial   court’s     ruling    on    a   motion    for   a

preliminary injunction is presumed to be correct, and the party

challenging      the   ruling    bears    the     burden    of   showing      it   was

erroneous.”      VisionAIR, Inc., 167 N.C. App. at 507, 606 S.E.2d

at 362 (citation and internal quotation marks omitted).

II. Plaintiff’s Appeal

       Plaintiff argues that the trial court erred in denying its

motion for a preliminary injunction as to the NCA, contending

that   (1)   non-compete       agreements      may    be   properly    enforced      by

means of a preliminary injunction and (2) the NCA is valid and

enforceable.      While Plaintiff’s first contention is correct, we

disagree with the second.
                                      -7-
      Plaintiff asserts that this Court should reverse the denial

of its motion and remand for entry of a preliminary injunction

as   to   the   NCA,   citing   the   following   discussion   from   A.E.P.

Indus., Inc.:

            [T]here are two important aspects of this
            case which distinguish it substantively and
            procedurally from the more usual case in
            which a preliminary injunction is sought.
            The first is that the ultimate relief [the]
            plaintiff seeks is enforcement of a covenant
            not to compete. The promised performance by
            the employee is forbearance to act and the
            remedy is one for specific performance of
            the contract in the nature of an injunction
            prohibiting any further violation of it.

            The second distinguishing feature of this
            case is that the decision made at the
            preliminary     injunction     stage      of   the
            proceedings     becomes,     in      effect,     a
            determination on the merits.          This is so
            because   the    validity   of     the    covenant
            depends, among other things, on the duration
            of the time limitation which, in order to be
            reasonable, must be brief.          The case is
            clothed with immediacy. Frequently the time
            limitation will have expired prior to final
            determination.        Moreover,     because    the
            primary relief sought by the plaintiff is a
            permanent     injunction,     many       of    the
            considerations involved in the decision to
            grant or deny the preliminary injunction
            parallel    those    involved     in    a    final
            determination on the merits.        Specifically,
            the court must decide whether the remedy
            sought   by   the    plaintiff    is    the   most
            appropriate for preserving and protecting
            its rights or whether there is an adequate
            remedy at law.
                                          -8-
A.E.P.     Indus.,    Inc.,   308   N.C.      at   405-06,    302    S.E.2d   at   762

(citations omitted; emphasis in original).                     Thus, our Supreme

Court held:

             Because of the need for immediacy of
             appropriate relief in cases dealing with
             covenants not to compete, as for example in
             the present case where [the] defendant
             contracted not to engage in a competitive
             business for only eighteen months, the law
             as stated above is particularly applicable.
             We hold that where the primary ultimate
             remedy sought is an injunction; where the
             denial of a preliminary injunction would
             serve effectively to foreclose adequate
             relief to [the] plaintiff; where no “legal”
             (as   opposed  to   equitable)   remedy will
             suffice; and where the decision to grant or
             deny a preliminary injunction in effect
             results in a determination on the merits,
             [the] plaintiff has made a showing that the
             issuance of a preliminary injunction is
             necessary for the protection of its rights
             during the course of litigation.

Id.   at    410,     302   S.E.2d   at     764.       Thus,    valid    non-compete

agreements     can    be   enforced      by   a    preliminary      injunction,    and

Defendant freely concedes this point.                 What is not discussed in

A.E.P. Indus., Inc., but forms the central question                           in this

appeal, is the second prong of Plaintiff’s appellate argument:

whether the NCA is valid.

             Covenants not to compete between an employer
             and employee are not viewed favorably in
             modern law.   To be valid, the restrictions
             on the employee’s future employability by
             others must be no wider in scope than is
                                           -9-
           necessary to protect the business of the
           employer.   If a non-compete covenant is too
           broad to be a reasonable protection to the
           employer’s business it will not be enforced.
           The courts will not rewrite a contract if it
           is too broad but will simply not enforce it.

VisionAIR,     Inc.,   167    N.C.    App.       at   508,   606   S.E.2d    at    362

(citations and internal quotation marks omitted).                     In that case,

this   Court   observed      that    the    non-compete      clause    in   question

provided that the defendant

           may not “own, manage, be employed by or
           otherwise   participate    in,   directly   or
           indirectly,   any    business     similar   to
           Employer’s . . . within the Southeast” for
           two years after the termination of his
           employ with VisionAIR.    Under this covenant
           [the   defendant]   would    not   merely   be
           prevented from engaging in work similar to
           that which he did for VisionAIR at VisionAIR
           competitors;   [the   defendant]     would  be
           prevented from doing even wholly unrelated
           work at any firm similar to VisionAIR.
           Further, by preventing [the defendant] from
           even “indirectly” owning any similar firm,
           [the defendant] may, for example, even be
           prohibited from holding interest in a mutual
           fund invested in part in a firm engaged in
           business similar to VisionAIR.       Such vast
           restrictions on [the defendant] cannot be
           enforced.

Id. at 508-09, 606 S.E.2d at 362-63 (footnote omitted; emphasis

added).

       The NCA here is quite similar to the non-compete covenant

in   VisionAIR,   Inc.       The    NCA     purports    to   bar   Defendant      from
                                           -10-
“directly or indirectly”             being employed by or acting “as an

advisor,      consultant,       or     salesperson        for,     or   becom[ing]

financially interested, directly or indirectly, in any person,

proprietorship, partnership, firm, or corporation engaged in, or

about    to   become   engaged       in,    the   business    of   selling      flavor

materials” for a period of 18 months after his employment with

Plaintiff ended.       (Emphasis added).

       We perceive no meaningful distinction between the NCA here

and the non-compete covenant held to be overbroad in VisionAIR,

Inc.     The duration of time is slightly shorter (18 months here

versus two years in VisionAIR, Inc.).                However, the NCA contains

no     geographical    limitation,         unlike   the      restriction     of    the

VisionAIR,      Inc.       covenant    to     similar     businesses       in     “the

Southeast.”     More importantly, just as, “[u]nder th[e] covenant

[the    defendant     in    VisionAIR]      would   not   [have]    merely      be[en]

prevented from engaging in work similar to that which he did for

VisionAIR at VisionAIR competitors; [the defendant] would [have]

be[en] prevented from doing even wholly unrelated work at any

firm similar to VisionAIR[,]” the NCA purports to bar Defendant

from doing wholly unrelated work for any firm that sells “flavor

materials[,]” even if that firm’s products do not compete with

those of Plaintiff.          Finally, the NCA purports to bar Defendant
                                       -11-
from   having     even     an   indirect     financial     interest      in    such     a

business,    a    condition      specifically    rejected     by   the        Court   in

VisionAIR, Inc.         See id. at 509, 606 S.E.2d at 362-63 (“Further,

by preventing [the defendant] from even ‘indirectly’ owning any

similar     firm,       [the    defendant]    may,   for     example,         even    be

prohibited from holding interest in a mutual fund invested in

part in a firm engaged in business similar to VisionAIR.                             Such

vast restrictions on [the defendant] cannot be enforced.”).

       Plaintiff further cites Precision Walls, Inc. v. Servie,

152 N.C. App. 630, 568 S.E.2d 267 (2002) and Okuma Am. Corp. v.

Bowers, 181 N.C. App. 85, 638 S.E.2d 617 (2007) in support of

its position.       These cases are distinguishable.

       In Okuma Am. Corp., this Court observed:

            When considering the time and geographic
            limits outlined in a covenant not to
            compete, we look to six overlapping factors:

            (1) the area, or scope, of the restriction;
            (2) the area assigned to the employee; (3)
            the area where the employee actually worked
            or was subject to work; (4) the area in
            which the employer operated; (5) the nature
            of the business involved; and (6) the nature
            of the employee’s duty and his knowledge of
            the employer’s business operation.

Id. at 89, 638 S.E.2d at 620 (citation and internal quotation

marks omitted; emphasis added).              In Precision Walls, this Court

considered       only    “the    reasonableness      of    time    and    territory
                                                  -12-
restrictions”         and        a     bar        on        employment      with     competitors.

Precision Walls, Inc., 152 N.C. App. at 637, 639, 568 S.E.2d at

272,   273.      As     noted         supra,           it    is    the    broad    sweep       of   the

activities      covered          by    the        NCA       which      renders     the   agreement

overbroad and thus unenforceable.                             Accordingly, these cases are

largely inapposite.              However, we do find it instructive that the

Court in Okuma Am. Corp. noted that “a covenant not to compete

is overly broad [when], rather than attempting to prevent [the

former employee] from competing for []business, it requires [the

former      employee]       to       have    no        association        whatsoever      with      any

business that provides [similar] services . . . .”                                         181 N.C.

App. at 91, 638 S.E.2d at 621 (citations and internal quotation

marks omitted).         We believe this is the situation presented by

the NCA here.

       In     sum,     because              the        NCA        is     overbroad       and        thus

unenforceable, Plaintiff cannot                             demonstrate likely success on

the merits.          See VisionAIR, Inc., 167 N.C. App. at 508, 606

S.E.2d at 362.         We conclude that the trial court did not err in

denying Plaintiff’s motion for a preliminary injunction as to

the    NCA,    and,     accordingly,               that        portion      of     the   order        is

affirmed.

III. Defendant’s Cross-Appeal
                                           -13-
    In his cross-appeal, Defendant advances two bases for his

argument that the trial court erred in granting the preliminary

injunction      as   to    confidential      information        and    trade     secrets

obtained   by    Defendant        during    his    employment        with     Plaintiff:

that Plaintiff failed to show a likelihood of success on the

merits of its claim for violations of the North Carolina Trade

Secrets    Protection       Act    (“TSPA”)       and   that    the    trial     court’s

injunction was too broad and nebulous.                  We disagree.

    A. Specificity of allegations

    Defendant        first    contends      that    the      trial    court    erred   in

concluding that Plaintiff showed a likelihood of success on the

merits of its claim for violations of the TSPA because Plaintiff

failed to plead the trade secrets at risk of disclosure with

sufficient   particularity           and   alleged      only   the    opportunity      to

misappropriate       the     trade    secrets.          We     disagree       with   both

contentions.

    The TSPA

            provides that the owner of a trade secret
            shall have remedy by civil action for
            misappropriation of the secret.

            “Trade secret” means business or technical
            information, including but not limited to a
            formula,     pattern,     program,   device,
            compilation     of    information,   method,
            technique, or process that:
                                    -14-
             a. Derives independent actual or potential
             commercial value from not being generally
             known   or  readily    ascertainable    through
             independent     development      or     reverse
             engineering  by    persons   who    can  obtain
             economic value from its disclosure or use;
             and

             b. Is the subject of          efforts that    are
             reasonable   under   the      circumstances    to
             maintain its secrecy.

             “Misappropriation”      means     acquisition,
             disclosure, or use of a trade secret of
             another without express or implied authority
             or consent, unless such trade secret was
             arrived   at  by    independent   development,
             reverse engineering, or was obtained from
             another person with a right to disclose the
             trade secret.    The TSPA also provides that
             actual or threatened misappropriation of a
             trade secret may be preliminarily enjoined
             during the pendency of the action and shall
             be   permanently    enjoined   upon   judgment
             finding misappropriation . . . .

Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C. App. 315,

326,   660    S.E.2d   577,   585   (2008)   (citations    and   internal

quotation marks omitted), disc. review denied, 363 N.C. 139, 674

S.E.2d 422 (2009).

             To determine what information should be
             treated as a trade secret, a court should
             consider the following factors:

             (1) the extent to which information is known
             outside the business;

             (2) the extent    to which it is       known to
             employees and     others  involved      in  the
             business;
                                           -15-


            (3) the extent of measures taken to guard
            secrecy of the information;

            (4) the value of information to the business
            and its competitors;

            (5) the amount of effort or money expended
            in developing the information; and

            (6) the ease or difficulty with which the
            information could properly be acquired or
            duplicated by others.

Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App.

520, 525, 586 S.E.2d 507, 511 (2003) (citations and internal

quotation marks omitted).              “[A] complaint that makes general

allegations    in    sweeping        and     conclusory         statements,         without

specifically        identifying           the     trade          secrets          allegedly

misappropriated,       is        insufficient          to     state       a     claim     for

misappropriation of trade secrets.”                    Washburn, 190 N.C. App. at

327, 660 S.E.2d at 585-86 (citation and internal quotation marks

omitted).      Rather,      to    successfully         plead     misappropriation         of

trade secrets, “a plaintiff must identify a trade secret with

sufficient     particularity         so     as    to        enable    a       defendant   to

delineate that which he is accused of misappropriating and a

court to determine whether misappropriation has or is threatened

to occur.”     VisionAIR, Inc., 167 N.C. App. at 510-11, 606 S.E.2d

at   364    (citation       and     internal       quotation          marks       omitted).
                                             -16-
Regarding specificity of those trade secrets allegedly at risk,

for example, allegations that an employee “acquired knowledge of

[the     employer’s]        business     methods;       clients,           their     specific

requirements         and    needs;     and     other     confidential            information

pertaining      to    [the    employer’s]       business”       are        too    “broad    and

vague” to allege a TSPA claim.                 Washburn, 190 N.C. App. at 327,

660 S.E.2d at 586.

       Here, in contrast, the verified amendment to Plaintiff’s

complaint       alleges       with    great         detail     and     specificity          the

information      Defendant        has     allegedly          provided        to     his     new

employer, describing, inter alia, various raw materials and raw

material    treatments;         extraction,          filtration,       separation,          and

distillation techniques; and methods for compounding of flavors,

packaging, and plant utility.                   Further, the amendment alleged

that these processes and methods were used in the production of

flavor    materials         derived     from    seven        specifically          identified

substances, such as cocoa, ginseng, and chamomile.                               Accordingly,

we     reject   Defendant’s          assertions       that     Plaintiff           failed    to

properly plead its claims under the TSPA.

       Regarding           allegations         supporting            the         threat      of

misappropriation, Defendant contends that the trial court erred

in granting the preliminary injunction because Plaintiff could
                                -17-
only show “opportunity” for misappropriation.         As noted supra,

the TSPA provides that “actual or threatened misappropriation of

a trade secret may be preliminarily enjoined during the pendency

of the action and shall be permanently enjoined upon judgment

finding misappropriation . . . .”       N.C. Gen. Stat. § 66-154(a)

(2013) (emphasis added).   Further,

            [m]isappropriation of a trade secret is
            prima facie established by the introduction
            of substantial evidence that the person
            against whom relief is sought both:

               (1) Knows or should     have   known   of   the
            trade secret; and

               (2) Has had a specific opportunity to
            acquire it for disclosure or use or has
            acquired, disclosed, or used it without the
            express or implied consent or authority of
            the owner.

            This prima facie evidence is rebutted by the
            introduction of substantial evidence that
            the person against whom relief is sought
            acquired the information comprising the
            trade secret by independent development,
            reverse engineering, or it was obtained from
            another person with a right to disclose the
            trade secret.    This section shall not be
            construed to deprive the person against whom
            relief is sought of any other defenses
            provided under the law.

N.C. Gen. Stat. § 66-155 (2013) (italics added).             Courts have

upheld grants of a preliminary injunction where plaintiffs have

presented    some   evidence   that    former    employees       have   or
                                            -18-
necessarily will use trade secrets.                       Compare Barr-Mullin, Inc.

v. Browning, 108 N.C. App. 590, 597-98, 424 S.E.2d 226, 230-31

(1993) (finding a prima facie case for misappropriation existed

which    supported      a       preliminary      injunction    where    the    defendant

helped develop software while working for the plaintiff and then

began producing identical software after leaving the plaintiff’s

employment); Analog Devices, Inc. v. Michalski, 157 N.C. App.

462,    467,   579     S.E.2d       449,    453    (2003)     (upholding      denial   of

preliminary injunction where product design differences between

the defendant’s former and new employers “render[ed] the alleged

trade secrets largely non-transferable”).

       Here, unlike in Analog Devices, Inc., there are no product

design    differences           which    would    render    “non-transferable”         the

trade     secrets          of     Plaintiff        which      Defendant       possesses.

Defendant’s         strenuous       assertions       on     appeal     that   Plaintiff

produced       no     direct        or     circumstantial         evidence      of     his

“acquisition, use, or disclosure of [Plaintiff’s] information”

is misplaced.         The TSPA permits preliminary injunctions where a

prima facie case for “actual or threatened misappropriation of a

trade    secret”      is    established.           N.C.    Gen.   Stat.   §   66-154(a)

(emphasis added).           In turn, that prima facie case is established

by showing that a defendant “(1) [k]nows or should have known of
                                           -19-
the trade secret; and (2) [h]as had a specific opportunity to

acquire it for disclosure or use or has acquired, disclosed, or

used it without the express or implied consent or authority of

the     owner.”      N.C.        Gen.     Stat.   §   66-155     (emphasis      added).

Defendant’s knowledge of trade secrets and opportunity to use

those    in   his   work    for     his    new    employer     create   a   threat    of

misappropriation,          and     thus     the   trial      court’s    grant    of   a

preliminary injunction during the pendency of the action was

proper.1

      B. Specificity of the preliminary injunction

      Defendant also argues that the court’s injunction was too

broad and nebulous, citing Travenol Labs., Inc. v. Turner, 30

N.C. App. 686, 228 S.E.2d 478 (1976).

      In Travenol Labs., Inc., the plaintiff-employer

              sought and the trial court . . . granted an
              injunction to prevent [the employee] from
              revealing   “all  information   regarded  as
              confidential . . . including but not limited
              to information concerning the mechanical
              modification of the Westphalia centrifuge
              . . .” and to prevent [the new employer]
              from receiving the same.   Again [the Court]
              weigh[ed]   the  factors  relevant   to  the

1
  Defendant also identifies two e-mails, the contents of which
Defendant asserts were improperly proved by testimony. However,
the court did not rely on the e-mails to support its conclusions
of law. Accordingly, we need not consider the admissibility of
this evidence.
                    -20-
likelihood of disclosure in determining the
appropriateness    of    injunctive    relief.
Ordinarily, mere employment by a competitor
alone will not create a likelihood of
disclosure    sufficient    to   support    an
injunction.    An employee may take from his
employment general knowledge and skills.
[The plaintiff-employer] has clearly shown
that it is probable that at trial it will
establish that the mechanical modification
of the Westphalia centrifuge is a trade
secret.     This modification has been the
subject of research and development and
would be of current use to [the new
employer] in its production process.      [The
employee] has worked in the production field
for 22 years.    Since this is precisely the
field in which [the employee] will be
employed by [the new employer], not merely
as a worker but at a high level supervisory
position, the possibility of disclosure is
high even absent any underhanded dealing in
the circumstances of his termination of
employment with [the plaintiff-employer].

[The plaintiff-employer] has also presented
evidence showing that several competitors
have tried without success to make a similar
modification.      The   disclosure of   this
modification would cost       [the plaintiff-
employer] a competitive advantage worth many
thousands   of    dollars.       We  f[ou]nd,
therefore,   that    with   respect  to   the
modification of the Westphalia centrifuge,
the trial court was correct in issuing a
preliminary injunction in [the plaintiff-
employer’s] favor.

We [did] not agree, however, that [the
plaintiff-employer] made an adequate showing
to support that part of the injunction
broadly   prohibiting  disclosure   of  “all
information regarded as confidential.” This
                                     -21-
          provision presents         problems       of   scope      and
          nebulosity.

          The showing made with respect to the
          centrifuge modification rested upon its use
          in production, [the employee’s] high level
          position in production, and the failure of
          competitors to make a similar modification.
          These factors have no bearing to the more
          broadly phrased part of the injunction . .
          . .    Sub judice, [the plaintiff-employer]
          apparently considers its entire production
          process as secret and confidential.     Yet it
          appears that [the plaintiff-employer, the
          new    employer,]    and    other    competing
          enterprises use the standard . . . process
          in their plasma fractionation operations.
          Though there may be some variation in the
          production   process   among   the   competing
          enterprises, [the plaintiff-employer] has
          failed to show unique processing, other than
          the modified Westphalia centrifuge, the
          disclosure   of   which   would    result   in
          irreparable damage.

Id. at 694-95, 228 S.E.2d at 485 (citations omitted).                          This

Court went on to “emphasize that the facts and circumstances of

each case dictate the propriety of injunctive relief[.]”                    Id. at

695, 228 S.E.2d at 485.

      Here, looking at the individual facts and circumstances of

the   matter,        the    enjoining      of     Defendant    from       “[u]sing,

disclosing,     or    transmitting   for    any    purpose    any    confidential

information obtained by [Defendant] from [Plaintiff]”                       plainly

applies to the methods, processes, and techniques described as

trade secrets in the preliminary injunction’s findings of fact
                               -22-
and conclusions of law.    As discussed supra, those trade secrets

are described with sufficient specificity that Defendant will

not be prevented from working with any “standard processes” with

his new employer.   Accordingly, we overrule this argument.

    The trial court’s order is

    AFFIRMED.

    Judge DAVIS concurs.

    Judge    STEELMAN     concurs     in   a   separate   opinion.
                                  NO. COA13-964

                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 4 March 2014


HORNER INTERNATIONAL COMPANY,
          Plaintiff,

    v.                                         Wake County
                                               No. 10 CVS 7131
BILL M. McKOY,
          Defendant.


    STEELMAN, Judge, concurring.

    I fully concur with the legal reasoning and result set

forth in the opinion, but write separately to again express

concern over the state of our law of restrictive employment

covenants in the context of our increasingly integrated global

economy.

    At     the   time    that    our    law   in   the    area    of   restrictive

employment covenants was developed, much of our commerce was

local, and restrictive covenants were imposed only to protect

specific    local      interests.      Any    covenants    that    attempted     to

protect broader commercial interests were held to be invalid as

an improper restraint of trade. Today’s economy is global in

nature.    In    the    instant     case,      plaintiff     conducts     a    very

specialized niche type of business, but its scope is worldwide,

rather than being focused upon a few counties in North Carolina.
                                    -2-
Our   Supreme   Court   should   re-evaluate   the   law   of   restrictive

covenants in the context of changed economic conditions to allow

restrictions upon competing business activities for a specific

period of time, limited to a specific, narrow type of business,

but with fewer geographic limitations.
