           Case: 16-11878   Date Filed: 01/12/2017   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 16-11878
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:15-cv-81049-RLR



TRANSUNION RISK AND ALTERNATIVE DATA SOLUTIONS, INC.,

                                              Plaintiff - Appellant,

versus

SURYA CHALLA,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (January 12, 2017)

Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 16-11878     Date Filed: 01/12/2017    Page: 2 of 12


      TransUnion Risk and Alternative Data Solutions, Inc. (“TRADS”) appeals

the district court’s denial of its motion for a preliminary injunction seeking to

enjoin one of its former employees, Surya Challa, from working for a competitor.

The district court concluded that although TRADS was likely to succeed on the

merits of its claim that Challa breached a noncompetition agreement, it could not

demonstrate that it would be irreparably injured absent an injunction. On appeal,

TRADS argues that the district court applied an incorrect legal standard and

reached a clearly erroneous factual determination. After careful review, we affirm

the district court’s denial of a preliminary injunction.

                                I. BACKGROUND

A.    Factual Background

      The following facts were elicited at the district court’s hearing on TRADS’s

motion for a preliminary injunction. TRADS is a “data fusion” company, offering

products that aggregate fragmented information about people, businesses, and

assets. Its core product, TLOxp, enables TRADS’s clients—typically government,

law enforcement, licensed investigators, and corporate fraud divisions—to obtain a

cohesive set of data on identified entities. TRADS was formed in December 2013

when its parent company, TransUnion, purchased a data fusion company called

TLO, LLC (“TLO”), after TLO filed for bankruptcy.




                                           2
               Case: 16-11878   Date Filed: 01/12/2017   Page: 3 of 12


        TRADS is not the only company in the data fusion market. Before TLO

filed for bankruptcy, it acquired Interactive Data, LLC (“Interactive”), another data

fusion company. The acquisition was subsequently unwound in bankruptcy, and

Interactive later was acquired by The Best One, Inc. (“TBO”). Today, both TBO

and Interactive are subsidiaries of IDI, Inc. (“IDI”). IDI—via its basic product, IDI

Basic, and its planned advanced product, idiCORE—is a competitor with TRADS

in the data fusion market. idiCORE is expected to compete directly with TLOxp.

        Challa was an employee of TLO prior to its acquisition by TransUnion.

While employed at TLO, Challa executed a noncompetition agreement extending

for two years following the end of his employment at TLO. Challa subsequently

was employed by TRADS after TransUnion’s acquisition of TLO. As a matter of

good will, TRADS offered Challa the opportunity to enter into its standard

noncompetition agreement, which extended for only one year after the end of his

employment with TRADS. Challa accepted the offer. The new noncompetition

agreement explicitly listed Interactive as a competitor for whom Challa could not

work.

        In November 2014, Challa tendered his resignation at TRADS, informing

the company that he had accepted a position with Bloomberg in New York.

Challa, however, then received an offer from TBO, Interactive’s parent company,

to work on the company’s data fusion platform. Without informing TRADS that


                                          3
                Case: 16-11878       Date Filed: 01/12/2017        Page: 4 of 12


he had changed his plans, Challa accepted the position at TBO. Challa’s last day at

TRADS was December 5, 2014, and he began work at TBO, which eventually

became a subsidiary of IDI, on either December 16 or 18, 2014. Challa

subsequently left IDI on December 15, 2016. 1

       Challa worked in a different capacity at IDI than he did at TRADS. At

TRADS, Challa was directly involved in the development of TLOxp. He was

responsible for writing code for the product, leading data initiatives and integrating

acquired data into the product, and assessing strengths and weaknesses of the

product. As part of his job at TRADS, Challa would interact with data vendors and

occasionally with TRADS’s clients. By contrast, at IDI, Challa had no

responsibility for building or integrating data into IDI’s data fusion software.

Instead, Challa was tasked with building cloud infrastructure to house idiCORE

and IDI Basic, a substantially different task, albeit one that Challa admits

       1
          After this appeal was fully briefed, Challa filed a motion to dismiss the appeal as moot,
informing the Court that he no longer worked at IDI. We deny Challa’s motion. While cessation
of the behavior purportedly subject to a preliminary injunction typically moots a motion for a
preliminary injunction, there is an exception where: “(1) the challenged action was in its
duration too short to be fully litigated prior to its cessation or expiration, and (2) there [i]s a
reasonable expectation that the same complaining party would be subjected to the same action
again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Here, given Mr. Challa’s history—
wherein he immediately violated a noncompetition agreement and failed to inform his former
employer about his new place of work—there is a “reasonable expectation” that Challa will work
for a TRADS competitor in the next year. Moreover, Mr. Challa has provided the Court with
virtually no information about his future plans aside from a bare promise to not work for a
TRADS competitor. See Vencor, Inc. v. Webb, 33 F.3d 840, 844 (7th Cir. 1994) (holding that an
appeal from a district court’s denial of a preliminary injunction was not moot where employee no
longer worked for competitor, but worked in a specialized industry and provided minimal
information about his future employment plans). Consequently, we find that TRADS’ appeal is
not moot, and we will evaluate it on its merits.
                                                4
              Case: 16-11878     Date Filed: 01/12/2017    Page: 5 of 12


contributed to the functionality of a competitive product. Challa had substantial

experience developing infrastructure—including cloud infrastructure—prior to his

employment with TRADS.

      Challa testified that the hardware-centric nature of his job at IDI was

significantly different than his software-focused position at TRADS, such that the

proprietary knowledge he obtained at TRADS was of no use to him at IDI.

Instead, Challa explained that at IDI he relied on his prior training in infrastructure

building, as well as the robust publicly available information on development of

cloud infrastructure. Nonetheless, though Challa was not on the data team at IDI—

Challa worked in Florida while the data team is based out of Seattle—he interacted

with the idiCORE and IDI Basic data team on a regular basis, often traveling to

meet with them. Indeed, IDI’s data fusion products are not wholly separate from

the infrastructure on which they are housed, and Challa recognized that an

understanding of the underlying data fusion products is necessary to build a

competent infrastructure.

      Challa further testified that in addition to the physical separation between

himself and IDI’s data team, he was careful to reveal none of TRADS’s proprietary

information. He explained that he did not participate in—and in fact, intentionally

left the room during—any meetings where the subject may have arisen, and

further, that no one at IDI ever asked him to reveal such information. Moreover,


                                           5
              Case: 16-11878      Date Filed: 01/12/2017   Page: 6 of 12


several witnesses testified that the data fusion industry is rapidly evolving,

suggesting Challa’s proprietary knowledge was of limited usefulness, though other

witnesses disputed that notion.

B.    Procedural History

      Upon discovering that Challa had gone to work for IDI and not Bloomberg,

TRADS filed a diversity action against Challa in the district court alleging breach

of the noncompetiton agreement and seeking injunctive relief under Fla. Stat. §

542.335. TRADS subsequently moved for a preliminary injunction, which the

district court denied after holding a hearing and taking testimony. Although the

district court found that TRADS was likely to succeed on the merits of its claim

that Challa breached the noncompetition agreement, it concluded that TRADS was

unlikely to suffer irreparable harm absent a preliminary injunction. In making this

determination, the district court relied on Challa’s assurances that he had not and

would not share TRADS’s proprietary information with IDI, as well as the

substantial differences between Challa’s position at TRADS and his position at

IDI. The district court found that Challa’s reliance on publicly available

information and skills that he developed prior to working for TRADS or TLO

supported his testimony that he had no need to use TRADS’s proprietary

information at IDI. This appeal followed.




                                           6
              Case: 16-11878     Date Filed: 01/12/2017    Page: 7 of 12




                          II. STANDARD OF REVIEW

      We review the district court’s ruling on a motion for a preliminary

injunction for an abuse of discretion. Jysk Bed’N Linen v. Dutta-Roy, 810 F.3d

767, 773 (11th Cir. 2015). “A district court abuses its discretion if it applies an

incorrect legal standard, follows improper procedures in making the determination,

or makes findings of fact that are clearly erroneous. A district court may also abuse

its discretion by applying the law in an unreasonable or incorrect manner.” Id. at

773-74 (internal quotation marks omitted).

                                III. DISCUSSION

      To obtain a preliminary injunction, the movant must establish: (1) a

substantial likelihood of success on the merits; (2) that irreparable injury will be

suffered unless the injunction is issued; (3) that the threatened injury to the moving

party outweighs whatever damage the proposed injunction might cause the non-

moving party; and (4) that, if issued, the injunction would not be adverse to the

public interest. Id. at 774. This appeal principally concerns the second prong:

whether TRADS will suffer irreparable injury unless the injunction issues.

      TRADS argues that the district court applied an incorrect legal standard in

conducting its irreparable injury analysis because it failed to consider potential

harm to TRADS as a result of Challa’s employment at IDI. In TRADS’s view,


                                           7
              Case: 16-11878    Date Filed: 01/12/2017    Page: 8 of 12


Challa’s mere presence at IDI created an “irreparable injury,” irrespective of the

likelihood that Challa actually would disclose TRADS’s proprietary information or

the imminence of actual disclosure. We disagree.

       The district court found that the noncompetition agreement was enforceable,

and that TRADS had a substantial likelihood of success on the merits of its claim

that Challa breached the agreement. Under Florida law, the district court’s

determination gave rise to “a presumption of irreparable injury to the person

seeking enforcement of a restrictive covenant.” Fla. Stat. Ann. § 542.335(1)(j).

This presumption shifted to Challa the burden of demonstrating that his

employment at IDI did not cause irreparable harm to TRADS. See Proudfoot

Consulting Co. v. Gordon, 576 F.3d 1223, 1231-32 (11th Cir. 2009).

      The district court did not err in finding that Challa met that burden. For an

injury to be irreparable, it must be “neither remote nor speculative, but actual and

imminent.” Ne. Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (“Gen. Contractors”); see also

Siegel v. LePore, 234 F.3d 1163, 1176–77 (11th Cir. 2000) (same). In finding that

TRADS would suffer no irreparable injury absent the injunction, the district court

credited Challa’s testimony that he has not and would not use or disclose any of

TRADS’s proprietary information while working at IDI. In addition, the district

court found credible Challa’s explanation of the nature of his position—which was


                                          8
                 Case: 16-11878       Date Filed: 01/12/2017       Page: 9 of 12


substantially different than his former position at TRADS—as well as his

discussion of the information he relied upon in his day-to-day work at IDI, the

experience he gained outside of his employment at TRADS, and “the reasons why

he ha[d] no need for TRADS’s confidential and proprietary information in his

position at IDI, despite the close relationship between hardware and software in the

data fusion industry.” (Doc. 93 at 13). 2 The district court also found persuasive the

testimony of witnesses presented by both parties indicating that the data fusion

industry is rapidly evolving, minimizing the usefulness of proprietary knowledge

Challa possessed, which at the time of the district court’s decision was at least 14

months old. (Id. at 13–14). TRADS has given us no reason to disturb the district

court’s credibility findings, which we afford substantial deference. Lincoln v. Bd.

of Regents of Univ. Sys. of Ga., 697 F.2d 928, 939 (11th Cir. 1983) (noting that a

clear error “standard of review imposes an especially heavy burden on the

appellant . . . [where] the evidence was largely testimonial, and the district court

had the advantage of observing the witnesses and evaluating their credibility

firsthand.”).3

       2
        Unless otherwise specified, all citations in the form “Doc. __” refer to the district court
docket entries.
       3
         Without citation to any legal authority, TRADS argues that the district court “reached a
clearly unreasonable or incorrect conclusion” because that conclusion would allow employees
subject to noncompetition agreements to avoid enforcement simply by promising not to reveal
proprietary information. That is incorrect. To decide that the former employer will not suffer
irreparable harm absent an injunction, the district court must find—as the district court did
here—that the evidence and testimony presented by the employee is credible. Whether the
                                                 9
               Case: 16-11878       Date Filed: 01/12/2017       Page: 10 of 12


       TRADS argues that it is of no import that the district court found that Challa

was unlikely to reveal any useful proprietary information to IDI. According to

TRADS, the mere possibility that Challa may at any point divulge confidential

information required the district court to find irreparable harm. The authority

TRADS cites does not support the existence of such a requirement. TRADS

principally relies on Proudfoot, where we held that a noncompetition agreement

was enforceable in part because the former employee possessed proprietary

knowledge. 576 F.3d at 1234-36. But that a noncompetition agreement is

enforceable does not necessitate the conclusion that its breach will cause the

former employer to suffer irreparable harm. Indeed, an enforceable agreement is

the bare minimum necessary to meet the first prong of our preliminary injunction

analysis—here, likelihood of success in establishing Challa’s breach of an

enforceable noncompetition agreement. In essence, TRADS maintains that the

“enforceability” and “irreparable harm” analyses are coextensive, collapsing the

first prong of our preliminary injunction analysis into the second. Or, put another

way, TRADS asks the Court to convert the rebuttable presumption of irreparable

harm created by breach of an enforceable covenant into an irrebuttable




employee successfully rebuts the presumption of irreparable harm is a fact-sensitive inquiry that
will vary from case to case.

                                               10
              Case: 16-11878     Date Filed: 01/12/2017   Page: 11 of 12


presumption. This is contrary to the law. Id. at 1231 (noting that the presumption

of irreparable injury is rebuttable).

      The Florida cases TRADS cites are equally unsupportive. As TRADS notes,

Capraro v. Lanier Business Products, Inc., 466 So. 2d 212 (Fla. 1985), and

Environmental Services, Inc. v. Carter, 9 So. 3d 1258 (Fla. Dist. Ct. App. 2009),

indicate in the abstract that the presumption of irreparable harm occasioned by

violation of a noncompetition covenant includes “potential” harm. But this

indication does not confront the circumstance here, where the district court

credited testimony establishing that the “potential” injury to TRADS was unlikely

to materialize. Indeed, in Carter, the court explicitly noted that “it was the former

employees’ responsibility to demonstrate the absence of irreparable injury, which

they failed to do.” 9 So.3d at 1266. Here, Challa established that the possibility he

would pass on TRADS’s propriety information was remote, rebutting the

presumption of irreparable injury.

      TRADS’s proposed rule fundamentally conflicts with the law of this circuit

that “irreparable” injuries must be “actual and imminent.” Gen. Contractors, 896

F.2d at 1285. Were the virtually per se rule that TRADS advances adopted, a court

would be forced to find irreparable harm even if it reasonably reached the factual

determination that there was no chance whatsoever that the former employee

would divulge proprietary information to a competitor. In essence, it would


                                          11
               Case: 16-11878       Date Filed: 01/12/2017       Page: 12 of 12


require a finding of irreparable injury even where the putative harm is prospective

and wholly speculative. We have held that such harm is not “actual and

imminent.” See Siegel, 234 F.3d at 1176–77 (holding that there was no irreparable

injury where the harm was “wholly speculative”). Consequently, the district court

did not err in finding that Challa successfully rebutted the presumption of

irreparable harm. 4

                                   IV. CONCLUSION

       For the foregoing reasons, we affirm the district court’s order denying the

motion for a preliminary injunction.

       AFFIRMED.




       4
          Because we hold that the district court did not err in finding that TRADS would not
suffer irreparable harm absent a preliminary injunction, we need not consider TRADS’s
additional arguments concerning the third and fourth preliminary injunction prongs.
                                               12
