                                                                        FILED
                                                                   Oct 13 2017, 10:54 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kevin W. Betz                                              Adam Arceneaux
Sandra L. Blevins                                          Derek R. Molter
Benjamin C. Ellis                                          Kaitlyn J. Marschke
Betz + Blevins                                             Ice Miller LLP
Indianapolis, Indiana                                      Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Craig Vickery,                                             October 13, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1702-PL-330
        v.                                                 Appeal from the Marion Superior
                                                           Court, Indiana Commercial Court
Ardagh Glass Inc.,                                         The Honorable Heather A. Welch,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49D01-1606-PL-23465



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                  Page 1 of 28
[1]   Craig Vickery appeals the trial court’s order granting Ardagh Glass, Inc.’s

      (Ardagh), motion for a preliminary injunction. Vickery raises the following

      arguments on appeal: (1) the trial court erred in granting a temporary

      restraining order when allegedly insufficient notice was provided to Vickery;

      and (2) the trial court erred in entering a preliminary injunction preventing

      Vickery from going to work for one of Ardagh’s competitors.


[2]   We find that Vickery received insufficient notice of the temporary restraining

      order proceeding, but that he has waived the right to seek relief on the issue.

      We further find that the trial court did not err by entering the preliminary

      injunction. We affirm and remand for further proceedings.


                                                      Facts     1




[3]   Ardagh is a manufacturer of glass containers and bottles; it sells its products to

      companies in the food and beverage industries. It is the North American

      business unit of the international holding company Ardagh Group.


[4]   Through a share purchase agreement executed in January 2013 and closed in

      April 2014, Ardagh Glass Containers, Inc., purchased 100% of the stock of

      Saint-Gobain Containers, Inc. (SGCI), which is a wholly-owned subsidiary of




      1
       We held oral argument in Indianapolis on September 25, 2017. We thank counsel for both parties for their
      able written and oral presentations.

      Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                    Page 2 of 28
      Saint-Gobain Corporation (SGC). Following the purchase, the two companies

      merged and became known as Ardagh Glass, Inc.


[5]   Vickery began working for SGCI on September 8, 2004, as a temporary

      employee. Two days later, he was hired by SGCI as a full-time mould

      engineer. That day, September 10, 2004, Vickery signed a Noncompete

      Employee Agreement (the Noncompete). The Noncompete explicitly states

      that Vickery signed it “‘in consideration of my employment, continued

      employment, increased compensation, change in responsibility, or other

      benefit . . . .’” Prelim. Inj. Order p. 5 (quoting Noncompete). Among other

      things, the Noncompete provided that Vickery could not work for a competitor

      for one year following his departure from SGCI:


              “I shall not, without written consent signed by an officer of the
              Company, directly or indirectly (whether as owner, partner,
              consultant, employee or otherwise), at any time during the one-
              year period following termination of my employment with the
              company, engage in or contribute my knowledge to any work or
              activity that involves a product, process, apparatus, service or
              development (i) which is then competitive with or similar to a
              product, process, apparatus, service or development on which I
              worked or (ii) with respect to which I had access to Confidential
              Information while at the Company at any time during the period
              prior to such termination.”


      Id. (same). The Noncompete also required Vickery to protect the company’s

      trade secrets and confidential information.




      Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 3 of 28
[6]   In 2012, Vickery was promoted to Senior Mould Engineer; he held that position

      until he left the company in June 2016. As part of his responsibilities, Vickery

      designed mould equipment for the company’s manufacturing process, designed

      replacement moulds, and designed moulds for new products. He supplied

      mould vendors with detailed engineering drawings; the vendors would then

      create equipment to match the drawings. Vickery was also involved in “trouble

      shooting,” or coming up with remedies for problems with the company’s mould

      designs. Id. at 9. Additionally, he interacted with manufacturing plants and the

      product design department, and was involved with the implementation of

      Ardagh’s European design engineering standards and best practices throughout

      its North American plants.


[7]   After Vickery was passed over for a promotion in February 2016, he began

      looking for a new employer. His uncle works for Owens-Illinois, one of

      Ardagh’s primary competitors. Vickery interviewed with Owens-Illinois for the

      position of Mould Design Specialist and provided Owens-Illinois with a copy of

      the Noncompete in advance. On June 1, 2016, he was offered and accepted

      that position with Owens-Illinois. That position would include duties that are

      substantially similar to Vickery’s duties at Ardagh.


[8]   On June 6, 2016, Vickery tendered his resignation letter to Ardagh; he omitted

      the fact that he was going to work for Owens-Illinois. He then engaged in

      additional communications with Owens-Illinois employees, including his uncle,

      regarding the potential impact of the Noncompete. On June 16, 2016, Vickery

      disclosed to Ardagh’s upper management that he was going to work for Owens-

      Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 4 of 28
       Illinois. Ardagh advised Vickery to review his Noncompete to ensure he would

       remain in compliance and worked to persuade Vickery to stay with Ardagh.

       On June 22 or June 23, Ardagh informed Vickery it intended to enforce the

       Noncompete. On June 23, Ardagh gave Vickery a letter from outside counsel

       requesting that Vickery provide the details of his new position at Owens-Illinois

       and threatening a lawsuit that would include a request for injunctive relief.

       Vickery never responded.


[9]    On the morning of June 30, 2016, the last day of Vickery’s employment with

       Ardagh, Ardagh’s counsel notified Vickery via email that it would be filing suit

       with the Commercial Court later that day, requesting a temporary restraining

       order (TRO) and injunction, and attached the pleadings it intended to file.

       Vickery did not respond, instead emailing his uncle that “things just got serious

       on the legal front as of 11:00 a.m. today.” Id. at 28.


[10]   On June 30, 2016, Ardagh filed a complaint against Vickery to enforce the

       Noncompete and to protect its trade secrets. That same afternoon, without

       holding a hearing, the trial court issued an ex parte TRO directing Vickery to

       cease and desist from “using Ardagh’s trade secrets and confidential

       information to compete against Ardagh;” to refrain from “communicating with

       or recruiting any of Ardagh’s employees;” and to cease and desist from

       “participating or working on mould engineering, bottle design, or similar roles

       on behalf of Ardagh’s main competitor, Owens-Illinois, Inc.” Appellant’s App.

       Vol. II p. 48. The trial court scheduled a hearing for July 8, 2016.



       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 5 of 28
[11]   On July 5, 2016, Vickery’s counsel entered an appearance and requested an

       extension on all TRO deadlines. The trial court granted the request, noting that

       Vickery “agrees to a continuance of the TRO entered by the Court on June 30,

       2016 until the preliminary injunction hearing and to combining the hearing on

       the TRO with a hearing on the request for a preliminary injunction.”

       Appellee’s App. Vol. II p. 32. The order scheduled the combined

       TRO/preliminary injunction hearing for a full day on July 27, 2016, and a half-

       day on July 28, 2016.2


[12]   On July 27, 2016, Vickery filed a motion to vacate the TRO and to dismiss the

       complaint. Among other things, Vickery argued that he did not receive

       sufficient notice of the TRO proceeding and that Ardagh did not have standing

       to enforce the Noncompete. On August 12, 2016, Ardagh filed a motion for

       partial summary judgment, seeking judgment as a matter of law that it has

       standing to enforce the Noncompete. The trial court granted Ardagh’s motion

       for partial summary judgment and denied Vickery’s motion to dismiss on

       November 15, 2016. On January 13, 2017, the trial court issued a detailed

       sixty-three-page order granting Ardagh’s motion for preliminary injunction.

       Vickery now brings this interlocutory appeal.




       2
        The hearing ultimately spanned multiple days: July 27-29; August 23; September 2, 7, and 9; and
       November 17.

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                    Page 6 of 28
                                     Discussion and Decision
                                I. Indiana Commercial Court
[13]   On September 25, 2017, the day on which we held oral argument, Vickery filed

       a motion to dismiss the entire lawsuit for lack of constitutional jurisdiction. He

       raises the following arguments in his motion: (1) our Supreme Court exceeded

       its authority by establishing the Commercial Court; (2) our Supreme Court

       lacks the authority to appoint the Commercial Court judges; (3) the

       Commercial Court bestows unconstitutional privileges on business entities; and

       (4) the Commercial Court permits corporate plaintiffs to compel individual

       defendants to distant venues, creating an extreme hardship.


[14]   Vickery acts as though litigating in the Commercial Court is compulsory if the

       plaintiff files a complaint there. That, however, is patently untrue. Our

       Supreme Court has promulgated Interim Commercial Court Rules, and Interim

       Rule 4(D)(3) plainly states that if a party to litigation that was filed in a

       Commercial Court files a Refusal Notice within thirty days of being notified

       that the case was filed in Commercial Court, then the clerk “shall transfer and

       assign the case to a non-Commercial Court Docket . . . .” (Emphasis added).

       Indeed, the Commentary to Interim Rule 4 even emphasizes that “every other

       party has an absolute veto” of the placement of a case on the Commercial

       Court docket. Interim Rule 4 cmt. 1. Only where, as here, no Refusal Notice is

       timely filed will the case be permanently assigned to a Commercial Court

       docket.


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017      Page 7 of 28
[15]   In this case, Vickery did not file a Refusal Notice within thirty days. And not

       until now did he object to the jurisdiction of the Commercial Court. He

       attempts to argue that he is raising questions regarding the subject matter

       jurisdiction of the Commercial Court, which can be raised at any point in time,

       but that is not what he is actually challenging. The Commercial Court is (in

       this case) part of the Marion Superior Court, which unquestionably has subject

       matter jurisdiction over this litigation. See Ind. Code § 33-29-1-1.5 (providing

       that all standard superior courts have original and concurrent jurisdiction in all

       civil cases). Despite Vickery’s attempt to reframe the issue otherwise, he is

       actually challenging the Commercial Court’s personal jurisdiction over him,

       which is a waiveable argument. E.g., Harris v. Harris, 31 N.E.3d 991, 995 (Ind.

       Ct. App. 2015). And here, indeed, he has consented to the Commercial Court’s

       personal jurisdiction over him by failing to object to it and by failing to file a

       Refusal Notice. Under these circumstances, Vickery has waived the right to

       challenge the Commercial Court’s jurisdiction or authority and we deny his

       motion to dismiss by separate order.


                                                    II. TRO
[16]   Vickery first argues that the preliminary injunction should be reversed because

       it is based upon a TRO that he claims violated Indiana Trial Rule 65(B) and his

       constitutional right to due process.


[17]   Initially, Ardagh responds that the propriety of the TRO is not properly before

       this Court and we should not even consider it. A TRO is not appealable as of


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 8 of 28
       right. Witt v. Jay Petroleum, Inc., 964 N.E.2d 198, 203 (Ind. 2012). Here,

       Vickery did not request that the trial court certify the TRO for a discretionary

       interlocutory appeal. Furthermore, Ardagh notes that the TRO was superseded

       by the preliminary injunction, meaning that any issues with respect to the TRO

       are moot. Nordman v. N. Manchester Foundry, Inc., 810 N.E.2d 1071, 1073 n.2

       (Ind. Ct. App. 2004). We acknowledge the issues surrounding the reviewability

       of the TRO, but elect to consider the process that took place in this case because

       it is an issue of utmost public importance that is likely to recur in the future.


[18]   Generally, a party taking action in a legal proceeding against another party

       must provide notice to the adverse party. See Ind. Trial Rules 3

       (commencement of an action), 4-4.17 (process and summons), 5 (service of

       pleadings and other papers). Under certain exceptions, however, a TRO may

       be granted without notice to the adverse party. Indiana Trial Rule 65(B) sets

       forth the requirements for the notice exception to apply:


               A temporary restraining order may be granted without written or
               oral notice to the adverse party or his attorney only if:


                        (1)      it clearly appears from specific facts shown by
                                 affidavit or by the verified complaint that immediate
                                 and irreparable injury, loss, or damage will result to
                                 the applicant before the adverse party or his
                                 attorney can be heard in opposition; and


                        (2)      the applicant’s attorney certifies to the court in
                                 writing the efforts, if any, which have been made to
                                 give notice and the reasons supporting his claim that
                                 notice should not be required.
       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017     Page 9 of 28
        Every temporary restraining order granted without notice shall be
        indorsed with the date and hour of issuance; shall be filed
        forthwith in the clerk’s office and entered of record; shall define
        the injury and state why it is irreparable and why the order was
        granted without notice; and shall expire by its terms within such
        time after entry, not to exceed ten [10] days, as the court fixes,
        unless within the time so fixed the order, for good cause shown,
        is extended for a like period or unless the whereabouts of the
        party against whom the order is granted is unknown and cannot
        be determined by reasonable diligence or unless the party against
        whom the order is directed consents that it may be extended for a
        longer period. The reasons for the extension shall be entered of
        record. In case a temporary restraining order is granted without
        notice, the motion for a preliminary injunction shall be set down
        for hearing at the earliest possible time and takes precedence of
        all matters except older matters of the same character; and when
        the motion comes on for hearing the party who obtained the
        temporary restraining order shall proceed with the application for
        a preliminary injunction and, if he does not do so, the court shall
        dissolve the temporary restraining order. On two (2) days’ notice
        to the party who obtained the temporary restraining order
        without notice or on such shorter notice to that party as the court
        may prescribe, the adverse party may appear and move its
        dissolution or modification and in that event the court shall
        proceed to hear and determine such motion as expeditiously as
        the ends of justice require.


Our Supreme Court has noted that when a TRO is sought, “the basic

safeguards provided by Trial Rule 65(B) are essential to due process and must

be followed.” In re Anonymous, 43 N.E.3d 568, 570 (Ind. 2015) (noting that

both attorneys and judges have ethical obligations to ensure compliance with

Trial Rule 65(B)).




Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 10 of 28
[19]   Here, at 11:00 a.m. on June 30, 2016, Ardagh’s counsel notified Vickery via

       email that it would be filing a lawsuit with the Commercial Court later that day

       and attached the pleadings it intended to file. While the attachments indicated

       that the lawsuit would be filed in a Commercial Court in Marion County, they

       did not indicate the date, time, or specific location of a hearing. Indeed, the

       trial court issued the TRO at 4:12 p.m. that same day without holding a hearing

       at all. TRO Order p. 5.


[20]   We cannot conclude that notice of an intent to file a lawsuit amounts to

       sufficient notice enabling the adverse party to appear in court in opposition to

       the proceeding. Furthermore, serving pleadings via email only complies with

       the Indiana Trial Rules under specific circumstances that were not present in

       this case, and counsel for Ardagh conceded as much at oral argument. See T.R.

       4.1(A) (summons and complaint may not be served via email), 5(B) (party may

       serve another party via email only when the party being served has consented to

       service by email). We can only conclude, therefore, that to meet the

       requirements of due process and the Indiana Trial Rules, this proceeding had to

       have qualified for the notice exception provided for by Indiana Trial Rule

       65(B).


[21]   As noted above, Trial Rule 65(B) provides that a TRO may be granted without

       notice to the adverse party only if (1) the affidavit or verified complaint aver

       that immediate and irreparable injury, loss, or damage will result to the

       applicant before the adverse party or his attorney can be heard in opposition;

       and (2) the applicant’s attorney certifies to the court in writing the efforts made

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 11 of 28
       to give notice and the reasons supporting the claim the notice should not be

       required. Ardagh’s verified complaint does not make the showing required by

       Trial Rule 65(B)(1). Appellee’s App. Vol. II p. 2-13. And the attorney

       certificate does not include reasons supporting a claim that notice should not be

       required. Appellant’s App. Vol. II p. 128. Therefore, this TRO litigation does

       not meet any of the Trial Rule 65(B) requirements for proceeding without

       notice to the adverse party.


[22]   After the TRO was granted without legally sufficient notice to Vickery, he

       could have objected, demanded a hearing, and/or sought to dissolve the TRO

       altogether. See T.R. 65(B) (if TRO is granted without notice, adverse party

       “may appear and move its dissolution or modification and in that event the

       court shall proceed to hear and determine such motion”) (emphasis added).

       Had he done so, the outcome on appeal may have been different. Instead,

       however, Vickery’s counsel entered an appearance and requested an extension of

       the TRO and agreed to combine the preliminary injunction and TRO hearings.

       Appellee’s App. Vol. II p. 32. By taking this course of action, Vickery waived

       any objection he may have had to the TRO process, including the lack of legally

       sufficient notice.


[23]   On July 27, 2016, the first day of the TRO/preliminary injunction hearing,

       Vickery filed a motion to vacate the TRO. At oral argument, counsel for

       Vickery argued that this action kept the issue alive and reviewable. We cannot

       agree. A party may not un-waive an issue by attempting to revive it after it has

       been waived. In this case, by requesting to extend the TRO and agreeing to

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 12 of 28
       combine the TRO and preliminary injunction hearings, Vickery waived any

       arguments related to the TRO and we will not dispose of the appeal in this

       fashion.


[24]   That said, we caution attorneys and trial courts around the state to be mindful

       of the notice requirements surrounding TROs. There are circumstances in

       which a TRO must truly be granted immediately without affording time to the

       adverse party to respond, but those circumstances must strictly meet the

       requirements set forth by Trial Rule 65(B). In all other cases, both the applicant

       party and the trial court are required by due process and the trial rules to ensure

       that the adverse party was given legally sufficient notice before final action is

       taken.


                                   III. Preliminary Injunction
                                      A. Standard of Review
[25]   To obtain a preliminary injunction, the movant must show (1) a reasonable

       likelihood of success on the merits; (2) the remedies at law are inadequate and

       there will be irreparable harm during the pendency of the action; (3) the

       threatened injury to the movant from denying the motion outweighs the

       potential harm to the nonmovant from granting the motion; and (4) the public

       interest would not be disserved by granting the injunction. E.g., Hannum Wagle

       & Cline Eng’g, Inc. v. Am. Consulting, Inc., 64 N.E.3d 863, 873 (Ind. Ct. App.

       2016).



       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 13 of 28
[26]   In reviewing a trial court’s ruling on a motion for preliminary injunction, we

       must determine whether the evidence supports the trial court’s factual findings

       and whether the findings support the judgment. Id. at 874. In considering the

       findings of fact, we must determine whether they were clearly erroneous; in

       other words, when a review of the record leaves us with a firm conviction that a

       mistake has been made. Id. We will consider only the evidence favorable to

       the judgment and all reasonable inferences to be drawn therefrom, and will

       neither reweigh the evidence nor reassess witness credibility. Id. We apply a de

       novo standard of review to the trial court’s conclusions of law. Avemco Ins. Co.

       v. State ex rel. McCarty, 812 N.E.2d 108, 115 (Ind. Ct. App. 2004).


           B. Likelihood of Success on the Merits: Noncompete
                              1. Right to Enforce Noncompete
[27]   Vickery first contends that because Ardagh is not a party to the 2004

       Noncompete and because the Noncompete is not assignable, Ardagh may not

       enforce it against Vickery.3


[28]   Under the Noncompete’s choice of law provision, Pennsylvania law applies to

       the document. Appellee’s App. Vol. II p. 17. The Pennsylvania Supreme

       Court has held that when, as here, there is no assignability provision in a



       3
         Vickery also initially argues that Ardagh has never established that it was his employer. But from the
       outset, both sides agreed that Vickery worked for Ardagh. Vickery took that position in his counterclaim, his
       summary judgment motion, and his proposed order for the preliminary injunction. Appellee’s App. Vol. III
       p. 14, 51; Appellant’s App. Vol. VI p. 2-6. Consequently, he has waived the right to make any argument to
       the contrary.

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                      Page 14 of 28
       restrictive covenant not to compete, the covenant is not assignable. Hess v.

       Gebhard & Co., 808 A.2d 912, 922 (Pa. 2002). Pennsylvania has also, however,

       held that “when an individual, group of individuals or company purchases

       some or all of the stock in a corporation, the corporation’s shareholders change,

       but the corporation itself remains the same legal entity as it was prior to the

       stock purchase.” Missett v. Hub Int’l Pa., LLC, 6 A.3d 530, 535 (Pa. Super. Ct.

       2010). In other words, unlike a sale of assets, a sale of stock does not alter the

       identity of the employer holding the restrictive covenant and, therefore, does

       not require an assignment of the restrictive covenant to a new entity. Id. at 536-

       38.


[29]   In this case, the relevant timeline of events and parties is as follows:


             • In September 2004, Vickery was hired by SGCI and signed the
               Noncompete. The “Company” that was the other party to the agreement
               was SGC and/or its affiliates, including SGCI.4 Appellee’s App. Vol. II
               p. 15.
             • In January 2013, Ardagh Glass Containers, Inc., purchased 100% of the
               stock of SGCI.
             • Following that purchase, Ardagh Glass Containers, Inc., and SGCI
               merged and became known as Ardagh.

       Ardagh, Ardagh Glass Containers, Inc., and SGCI are/were organized under

       the laws of the state of Delaware, so Delaware law governs issues related to




       4
        Although Vickery argues that only SGC was a party to the Noncompete, the plain language of the
       agreement includes SGC’s affiliates. Appellee’s App. p. 15. And in the Noncompete itself, SGCI is
       explicitly named as an SGC affiliate. Consequently, SGCI was a party to and had the right to enforce the
       agreement.

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                    Page 15 of 28
       their corporate form and governance. Pursuant to Delaware law, when Ardagh

       Glass Containers, Inc., acquired 100% of the outstanding shares of SGCI’s

       common stock, it acquired all of SGCI’s rights associated with the stock,

       including contractual rights held by SGCI before the stock purchase. E.g., Del.

       Code tit. 8, § 302; Viking Pump, Inc. v. Century Indem. Co., 2 A.3d 76, 99 (Del.

       Ch. 2009).


[30]   Consequently, under Delaware law, Ardagh Glass Containers, Inc., which

       became Ardagh, acquired all of SGCI’s contractual rights following the stock

       purchase. Under Pennsylvania law, a stock purchase does not alter the

       corporate identity of the employer holding the restrictive covenant. In other

       words, Ardagh stepped into the shoes of SGCI and acquired all of its rights,

       including those related to the Noncompete. Therefore, the trial court did not

       err by finding that Ardagh may enforce the Noncompete.


                                2. Noncompete Requirements
[31]   Vickery argues that even if Ardagh has the right to enforce the Noncompete, the

       Noncompete itself fails to comply with the requirements for such an agreement:


               Restrictive covenants are not favored in Pennsylvania, but have
               long been held to be enforceable if: (1) they are incident to an
               employment relationship between the parties; (2) they are
               supported by adequate consideration; (3) the restrictions imposed
               by the covenant are reasonably necessary for the protection of
               legitimate interests of the employer; and (4) the restrictions
               imposed are reasonably limited in duration and geographic
               extent.


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 16 of 28
       Pulse Techs., Inc. v. Notaro, 67 A.3d 778, 784 (Pa. 2013). Vickery argues that the

       Noncompete fails to satisfy each of the three latter requirements.


                                            a. Consideration
[32]   Vickery contends that the Noncompete is unenforceable because it was imposed

       by SGC after Vickery’s employment had already begun, without the provision

       of additional consideration. He notes that he began his employment on

       September 8, 2004, but was not asked to sign the Noncompete until September

       10. Pulse Technologies, however, explicitly holds that


               a restrictive covenant need not appear in an initial employment
               contract to be valid; rather, it has been long held that, if a
               restrictive covenant “is an auxiliary part of the taking of
               employment and not a later attempt to impose additional
               restrictions on an unsuspecting employee, a contract of
               employment containing such a covenant is supported by valuable
               consideration and is thereby enforceable.”


[33]   67 A.3d at 784-85 (quoting Modern Laundry & Dry Cleaning Co. v. Farrer, 536

       A.2d 409, 411 (Pa. Super. 1988)).


[34]   Ardagh notes that the trial court observed Vickery’s “lack of candor to the

       Court” regarding his employment timeframe and noted that as a result, it

       afforded greater weight to Ardagh’s testimony on this issue. Prelim. Inj. Order

       p. 41. Specifically, while Vickery did begin working for SGC on September 8,

       he began as a temporary employee; it was only on September 10—the day on

       which he signed the Noncompete—that he became a full-time, permanent


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 17 of 28
       employee. Under these circumstances, the trial court did not err by finding that

       Vickery’s employment was sufficient consideration to support the Noncompete.


                                       b. Protectable Interests
[35]   Vickery argues that Ardagh has failed to identify any protectable interest to

       justify keeping him from beginning work at Owens-Illinois. In support of this

       argument, he highlights and discusses some, but not all, of the proprietary or

       confidential information found by the trial court to constitute a protectable

       interest. Specifically, Ardagh notes that Vickery omits many of the trial court’s

       findings with respect to Ardagh’s protectable interests:


               Vickery does not address the remaining confidential and trade
               secret information that the trial court discussed. [Prelim. Inj.
               Order p. 8-9.] (discussing Vickery’s work designing mould
               equipment and replacement moulds, supplying vendors with
               detailed engineering drawings of Ardagh’s moulds, trouble
               shooting Ardagh’s mould designs, and interacting with Ardagh’s
               manufacturing and product design departments); id. [at 13-14]
               (discussing Vickery’s role in a rapid prototyping project); id. [at
               14-15] (discussing Vickery’s role in pursuing more business from
               Customer A, which is a customer of both Ardagh’s and Owens-
               Illinois); id. [at 17-18] (discussing Vickery’s role in servicing
               Customer C, which is an Ardagh customer that Owens-Illinois is
               pursuing); id. [at 18-19] (discussing Vickery’s role on a team
               working to reduce the incidents of a glass defect known as
               “birdswing”); id. [at 19-20] (discussing Vickery’s role in
               developing a new product).


       Appellee’s Br. p. 50-51.




       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 18 of 28
[36]   It is apparent that Vickery’s arguments on this issue amount to a request that

       we reweigh the evidence. The trial court considered the evidence and found

       that, as a senior mould engineer, “Vickery participated in meetings where he

       learned of new drawings and designs, discussed new business opportunities,

       discussed which business required further focus to retain, and discussed product

       lines to be updated.” Id. at 49 (citing Prelim. Inj. Order p. 22). Vickery was

       also involved in discussions about Ardagh’s best practices in the engineering

       department, including implementing standards and practices imported from

       Ardagh’s European operations. See Prelim. Inj. Order p. 50-51 (finding sixteen

       categories of information in Vickery’s possession that constitute trade secrets).


[37]   Additionally, and more generally, the trial court found that “protecting trade

       secrets and confidential information, and preventing a competitor from

       profiting from an employee’s specialized training and skills” are protectable

       interests. Id. at 43. We agree, and find that the trial court did not err by

       concluding that Ardagh had established that it had protectable interests at stake.


                                    c. Geographic Restriction
[38]   Vickery argues that the Noncompete has no geographic restriction whatsoever.

       Instead, the Noncompete is “overwhelmingly and unjustifiably broad . . . .”

       Appellant’s Br. p. 42.


[39]   The trial court held that, “[h]aving weighed the evidence presented during the

       hearing,” the Noncompete does contain a geographic scope—North America.

       Prelim. Inj. Order p. 44. Specifically, the trial court found as follows:

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 19 of 28
               Here, the Noncompete Agreement included the text “Policies
               and Procedures for North America” in the header and “United
               States” in the footer. Based on the inclusion of this language,
               coupled with the fact that Vickery worked in Muncie, Indiana,
               which would fall within the United States and North America, it
               is reasonable to assume that the parties were not careless in
               including “United States” and “North America” in the
               agreement. Thus, the Court finds that the Noncompete
               Agreement is limited to Ardagh’s North American division,
               which includes the United States but does not include Canada or
               Mexico.


       Id. We find the evidence sufficient to support the trial court’s conclusion that

       the Noncompete is limited in geographic scope to North America. Vickery’s

       arguments to the contrary amount to a request that we reweigh the evidence,

       which we decline to do.


[40]   Courts applying Pennsylvania law have readily enforced nationwide—and even

       global—restrictive covenants where, as here, the former employer’s business

       was itself nationwide or global. E.g., Quaker Chem. Corp. v. Varga, 509 F. Supp.

       2d 469, 476-77 (E.D. Pa. 2007) (applying Pennsylvania law and noting that

       “the notion of a too-broad geographic scope has become ‘antiquated’ in light of

       the increasingly global economy”); Voluntary Firemen’s Ins. Servs., Inc. v. CIGNA

       Prop. & Cas. Ins. Agency, 693 A.2d 1330, 1338 (Pa. Super. Ct. 1997) (enforcing

       nationwide noncompete). In this case, Ardagh has fifteen manufacturing plants

       located throughout the United States and provides goods and services to

       customers throughout the country. Ardagh competes directly with Owens-

       Illinois for business from major customers throughout the United States.


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 20 of 28
       Therefore, Vickery’s work for Owens-Illinois would involve the same

       geographic scope as his work for Ardagh. Under these circumstances, the

       nationwide scope of the Noncompete is reasonable.5


[41]   In sum, we find that the trial court did not err by concluding that Ardagh has

       established a likelihood of success on the merits of its breach of contract claim

       based on the Noncompete.


            C. Likelihood of Success on the Merits: Trade Secrets
                                    Act
[42]   The trial court also found that Ardagh was entitled to injunctive relief under the

       Indiana Trade Secrets Act.6 Vickery contends that Ardagh has not showed a

       reasonable likelihood of success on the merits of this claim.


[43]   Indiana Code section 24-2-3-3(a) provides that actual or threatened

       misappropriation of trade secrets may be enjoined. “Trade secret” is defined as

       follows:


                  information, including a formula, pattern, compilation, program,
                  device, method, technique, or process, that:




       5
         We find a nationwide scope reasonable in this particular case, given the nature of Ardagh’s business and the
       limited number of competitors it faces. It may be that in other cases, a national scope would be
       unreasonable; for example, a nationwide noncompete might be unreasonable for a dentist’s office. Each case
       must be evaluated on its own facts.
       6
           Ind. Code ch. 24-2-3.


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017                      Page 21 of 28
               (1)      derives independent economic value, actual or potential,
                        from not being generally known to, and not being readily
                        ascertainable by proper means by, other persons who can
                        obtain economic value from its disclosure or use; and


               (2)      is the subject of efforts that are reasonable under the
                        circumstances to maintain its secrecy.


       I.C. § 24-2-3-2. “Misappropriation” includes, in relevant part, the “disclosure

       or use of a trade secret of another without express or implied consent by a

       person who . . . knew or had reason to know that his knowledge of the trade

       secret was . . . acquired under circumstances giving rise to a duty to maintain its

       secrecy or limit its use[.]” Id.


[44]   Initially, we note that at oral argument, counsel for Vickery conceded that

       Vickery may not share Ardagh’s trade secrets. Counsel also noted that multiple

       Ardagh employees have stated in the record that they do not question Vickery’s

       trustworthiness. According to counsel, the problem is that Ardagh has never

       identified or described what trade secrets it contends are in Vickery’s

       possession.


[45]   As discussed above, the trial court found sixteen general categories of

       information that qualify as trade secrets to which Vickery had access. Prelim.

       Inj. Order p. 50-51. The trial court was reasonable in concluding that these

       general categories of information may constitute trade secrets.


[46]   As for Ardagh’s efforts to maintain the secrecy of this data, the trial court made

       the following findings: (1) a key fob and passcode is required to enter Ardagh’s

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 22 of 28
       corporate offices; (2) its computers and emails are password protected;

       (3) Ardagh limits access to certain files; and (4) the code of conduct and the

       Noncompete require employees to protect Ardagh’s intellectual property, trade

       secrets, and confidential information. We decline Vickery’s invitation to

       second-guess the trial court’s findings that these steps amount to efforts that are

       reasonable under the circumstances to maintain the secrecy of Ardagh’s

       information.


[47]   Vickery also argues that there is no evidence of actual or threatened

       misappropriation of this data. The trial court found that Vickery’s future

       employment with Owens-Illinois “threatens misappropriation of Ardagh’s trade

       secrets because it risks disclosure or use of Ardagh’s trade secrets, which

       Vickery acquired under circumstances giving rise to a duty to maintain its

       secrecy or limit its use.” Prelim. Inj. Order p. 53. While it may be that Vickery

       had no intent to misappropriate any trade secrets, we cannot say that the trial

       court’s conclusion that his employment with Owens-Illinois bore a risk of

       disclosure of those trade secrets was erroneous.


[48]   We note, again, that Vickery is amenable to an agreement not to disclose any

       trade secrets in his possession. But if this case proceeds to a permanent

       injunction, Ardagh and the trial court will have to set forth in specific detail

       what, precisely, Vickery is restrained from disclosing. General categories of

       information will not suffice—there must be clear, explicit guidelines included in

       any permanent injunction.



       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 23 of 28
           D. Adequacies of Remedy at Law/Irreparable Harm
[49]   Vickery directs our attention to well-settled authority that if an award of post-

       trial damages is sufficient to make the movant whole for its economic injury,

       then a preliminary injunction is not warranted. Daugherty v. Allen, 729 N.E.2d

       228, 234 (Ind. Ct. App. 2000). Vickery argues that because Ardagh represented

       to the trial court that its injuries are strictly economic and its damages are

       calculable, it has an adequate remedy at law.


[50]   At the outset, we note that a breach of a covenant not to compete is prima facie

       evidence of irreparable harm justifying injunctive relief. E.g., Central Ind.

       Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 732-33 (Ind. 2008). Additionally, it is

       undisputed that Vickery would be unable to satisfy a multi-million-dollar

       judgment; consequently, the trial court did not err by concluding that Ardagh

       has no adequate remedy at law. See Jay Cty. Rural Elec. Membership Corp. v.

       Wabash Valley Power Ass’n, 692 N.E.2d 906, 909 (Ind. Ct. App. 1998) (holding

       that a “judgment for damages . . . is rendered meaningless when the collection

       of damages by the injured party is impossible, uncertain, or unusually

       difficult”).


        E. Threatened Injury to Ardagh v. Threatened Injury to
                               Vickery
[51]   Vickery argues that Ardagh has identified no more than a marginal interest, and

       no significant business secrets, that are at risk if Vickery goes to work for

       Owens-Illinois. Vickery, on the other hand, has been out of work for over a


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 24 of 28
       year, and states that the harm he and his family have suffered is “devastating.”

       Appellant’s Br. p. 47.


[52]   Ardagh observes that the trial court found that if an injunction were not issued,

       Ardagh would be denied the benefit of the Noncompete into which Vickery

       voluntarily entered as a condition of his employment and that Vickery “would

       be allowed to work for Ardagh’s direct competitor armed with knowledge of

       Ardagh’s confidential and proprietary information and trade secrets as well as

       Ardagh’s strategic plan for growing its business.” Prelim. Inj. Order p. 56.


[53]   As for the harm to Vickery, the trial court found that much of it was self-

       imposed. He freely entered into the Noncompete, he was aware Ardagh might

       enforce it, he took steps to hide his employment with Owens-Illinois from

       Ardagh, and he has made no efforts to find other employment. Moreover,

       while Vickery initially testified that he was “completely cut off from all income”

       after the TRO was entered, he later told the court that “he had actually been

       placed on paid leave” by Owens-Illinois. Id. at 32 n.2. The trial court noted

       that it could not “ignore Vickery’s lack of candor to the Court in regards to his

       ‘paid leave’ status with [Owens-Illinois] when weighing the credibility of

       Vickery’s testimony on other matters.” Id.


[54]   Further undercutting Vickery’s claimed harms is the fact that he has not

       pursued his case expeditiously. He repeatedly sought continuances in the trial

       court, asked the trial court to delay ruling on the preliminary injunction, took

       all thirty days available to him to file his notice of appeal, did not seek to


       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 25 of 28
       expedite the preparation of the record or the transcript, and obtained multiple

       extensions of time from this Court to file his appellant’s brief. Indeed, Ardagh

       emphasizes that Vickery waited so long “that the remedy he focuses his brief

       on—vacating the injunction against working for Owens-Illinois—is now moot

       because that provision of the Noncompete and the related injunction provision

       expires the day the appellee’s brief is due.” Appellee’s Br. p. 60.


[55]   Under these circumstances, we find that the trial court did not err in weighing

       the potential harm to Vickery against the potential harm to Ardagh.


                                            F. Public Interest
[56]   Finally, Vickery argues that the Noncompete is against the public interest

       because it further consolidates a non-competitive, $5 billion industry “by

       increasing one of the barriers to entry—the availability of skilled labor.”

       Appellant’s Br. p. 47. Additionally, Vickery contends that enforcement of the

       Noncompete would intimidate other Ardagh employees who may be

       considering leaving the company.


[57]   The trial court disagreed, first noting the strong public interest in enforcing

       contracts that represent the freely bargained-for interests of the contracting

       parties. Prelim. Inj. Order p. 58. It further found that enforcement of the

       Noncompete would not disserve the public interest in allowing parties to an

       employment contract to freely terminate employment with or without cause:


               a.       First, whether the Court decides to issue a preliminary
                        injunction enforcing Vickery’s Noncompete Agreement

       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 26 of 28
                        against him has nothing to do with other Ardagh
                        employees’ decisions to terminate their employment with
                        the company.


               b.       Second, even with a noncompete agreement, employees
                        are still free to terminate employment-at-will; they would
                        just need to make sure that their subsequent employment
                        complies with the terms of the noncompete agreement, if
                        any, that the employee signed with the company.


       Id. at 58-59. Finally, the trial court noted that the enactment of the Indiana

       Trade Secrets Act shows a public interest in protecting trade secrets from

       misappropriation. We find no error in the trial court’s analysis, and decline to

       reverse on this basis.


                                                  Conclusion
[58]   In sum, we find that, while the notice procedure in the underlying TRO was

       insufficient, Vickery has waived the right to make the argument on appeal. We

       also find that the trial court did not err when it concluded that (1) Ardagh has

       the right to enforce the Noncompete; (2) Ardagh has established a reasonable

       likelihood of success on the merits of its breach of contract claim based on the

       Noncompete; (3) Ardagh has established a reasonable likelihood of success on

       the merits of its claim under the Indiana Trade Secrets Act; (4) Ardagh has

       established that its remedies at law are inadequate and it would suffer

       irreparable harm during the pendency of the action; (5) the threatened harm to

       Ardagh outweighs the threatened harm to Vickery; and (6) the public interest



       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017    Page 27 of 28
       would not be disserved by granting the injunction. In short, the trial court did

       not err by issuing the preliminary injunction.


[59]   The judgment of the trial court is affirmed and remanded for further

       proceedings.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1702-PL-330 | October 13, 2017   Page 28 of 28
