                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0637n.06
                              Filed: August 29, 2007

                                         Case No. 06-6107

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



PartyLite Gifts, Inc.,                                :
                                                      :
        Plaintiff-Appellant,                          :    On Appeal From the United States
                                                      :    District Court for the Eastern District of
v.                                                    :    Tennessee at Knoxville
                                                      :
Swiss Colony Occasions a/k/a Access Ventures,         :
Inc., Swiss Colony, Inc., and Kathy Watkins,          :
                                                      :
        Defendants-Appellees.


BEFORE: GIBBONS and SUTTON, Circuit Judges; BECKWITH, District Judge.*

        SANDRA S. BECKWITH, District Judge. PartyLite Gifts, Inc. appeals the district court’s

denial of its motion for a preliminary injunction. PartyLite asserts claims against the Defendants

for misappropriation of trade secrets, breach of contract and fiduciary duty, tortious interference

with contract, and unfair competition, all grounded in Defendants’ solicitation and alleged

recruitment of PartyLite’s sales force. The district court concluded that PartyLite had not

established its entitlement to a preliminary injunction. We affirm.

                                                 I.

        PartyLite is a multi-level direct sales company that sells candles and home fragrance


        *
        The Honorable Sandra S. Beckwith, Chief Judge, United States District Court for the
Southern District of Ohio, sitting by designation.

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products. PartyLite’s independent contractor sales consultants sell company products at home

parties. Individual PartyLite consultants can rise through company ranks by successfully

recruiting new sales representatives, which entitles the recruiter to share in the commissions

earned by their new recruits. Successful consultants can become team leaders, unit/senior unit

leaders, group leaders, district leaders, and regional leaders, each with increasing levels of

recruiting responsibilities and profit-sharing.

       PartyLite promulgated a “Worldwide Code of Conduct” governing business practices,

including compliance issues, conflicts of interest, insider trading, and company secrets and

property. PartyLite required its senior sales consultants to certify yearly their understanding of

and compliance with the Code’s requirements. The Code’s section on “Confidential

Information” prohibits disclosure of confidential and proprietary company information to persons

outside of PartyLite and prohibits any personal benefit derived from use of this information. The

Code describes confidential and proprietary information to include employee, customer and

vendor lists and information regarding customer requirements, preferences, business habits and

plans. (J.A. 110-111)

       Defendant Kathy Watkins started working for PartyLite in August 1990 as a

Development Coordinator. Watkins held different positions over the years, eventually becoming

the Director of Sales Development. PartyLite and Watkins did not have a written non-

competition/non-solicitation contract, although Watkins had certified her familiarity with and

adherence to the Code of Conduct. On February 21, 2006, Watkins gave PartyLite two weeks

notice that she was leaving the company. PartyLite wrote her, reminding her of the Code’s

confidentiality obligations and stating that PartyLite’s “customer, Leader, Regional Vice


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Presidents and Consultant names and contact information, marketing plans and promotions” were

confidential and proprietary information. (J.A. 70) After leaving PartyLite, Watkins became

Senior Vice President of Sales for Access Ventures, Inc., doing business as Swiss Colony

Occasions (“SCO”).

       SCO was established in 2005 to create a home party plan marketing company selling

Swiss Colony products. SCO’s product line includes dinnerware, food, and home decor items.

Prior to SCO’s formation, Swiss Colony products were sold at retail outlets and through catalogs.

SCO’s sales consultants, like PartyLite’s, are independent contractors who are not prohibited

from representing other direct sales companies. Both companies forbid their consultants to sell

competitors’ products at the same home parties at which the companies’ goods are sold.

       SCO also utilizes a “Bridge Agreement” which it describes as a recruiting tool designed

to attract consultants with prior direct sales experience. These Agreements provide a short-term

monthly payment to new sales consultants to offset any temporary loss of earnings caused by

joining a new organization. If the consultant is successful in quickly establishing a “downline”

sales force, the consultant can retain the initially assigned “bridge” sales level within SCO; if the

consultant is unsuccessful, the bridge title and extra economic benefits cease. Watkins’ reply

affidavit states that PartyLite used such “bridge agreements” when she arrived at the company in

1990, a contention that PartyLite vigorously disputes.

       A few weeks after Watkins left PartyLite, its assistant general counsel Renee Baruch

wrote to Watkins. (J.A. 163-164) Baruch stated that PartyLite believed Watkins was contacting

and recruiting PartyLite’s leaders and consultants to encourage them to join SCO, in violation of

Watkins’ duties of confidentiality. Baruch insisted that Watkins cease and desist from any


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communication with anyone Watkins knew from her PartyLite employment and threatened

litigation if Watkins’ conduct continued. Unsatisfied with Watkins’ and SCO’s response,

PartyLite filed a complaint in the district court on May 9, 2006, followed a few days later by a

motion for a preliminary injunction and expedited discovery. The district court set oral argument

for July 10, 2006, and requested the parties to inform the court if an evidentiary hearing would be

necessary. No additional evidence or testimony was presented to the court.

       On August 15, 2006, the district court denied PartyLite’s motion. The district court

concluded that PartyLite had established only a very low likelihood of success on the merits of its

misappropriation of trade secrets claim, because the evidence did not show that Watkins’

personal knowledge of PartyLite sales consultants was a trade secret under Tennessee law.

Regarding PartyLite’s various common law claims premised upon Watkins’ alleged

misappropriation, the court concluded those claims were preempted by the Tennessee Uniform

Trade Secrets Act. The court also rejected PartyLite’s contention that SCO’s Bridge Agreement

amounted to predatory pricing and thus constituted unfair competition. The district court found

that PartyLite established “a modest degree of irreparable harm overall,” but balanced that

against the low likelihood of success, the greater harm caused by imposing a preliminary

injunction, and the public interest disfavoring injunctive relief. Weighing all four factors, the

court denied PartyLite’s motion. PartyLite timely appealed.

                                                 II.

       When considering the district court’s denial of a preliminary injunction, we review its

legal conclusions de novo, and its ultimate conclusion for abuse of discretion. McCreary County,

Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844, 867 (2005). The district court’s


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factual findings “must be clearly erroneous in order for this court to find that it abused its

discretion.” Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). The district court’s

“weighing and balancing of the equities of a particular case is overruled only in the rarest of

cases.” Id. (Internal citations and quotations omitted).

        A district court may grant preliminary injunctive relief after considering and balancing

four factors: (1) whether Plaintiff has demonstrated a strong likelihood of success on the merits;

(2) whether Plaintiff would otherwise suffer irreparable injury; (3) whether the grant of

preliminary injunctive relief would cause substantial harm to others; and (4) whether the public

interest would be served. McPherson v. Michigan High School Athl. Assn., 119 F.3d 453, 459

(6th Cir. 1997) (en banc).

        A.      Likelihood of Success on the Merits.

        The district court correctly noted that this factor is ordinarily satisfied if the moving party

“. . . raised questions going to the merits [which are] so serious, substantial, difficult, and

doubtful as to make them a fair ground for litigation and thus for more deliberate investigation.”

In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1989) (internal citations omitted).

        1.   Trade Secrets. The Tennessee Uniform Trade Secrets Act, Tenn. Code Ann. §47-

25-1701 et seq, recognizes a claim for misappropriation of trade secrets, which are defined as:

                [I]nformation, without regard to form, including, but not limited to,
                technical, nontechnical or financial data, a formula, pattern,
                compilation, program, device, method, technique, process, or plan
                that:

                (A) Derives independent economic value, actual or potential, from
                not being generally known to, and not being readily accessible by
                proper means by other persons who can obtain economic value
                from its disclosure or use; and


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


Tenn.Code Ann. §47-25-1702(4). Several factors are relevant to determining whether

information falls within this statutory definition, including the extent of public knowledge;

measures taken to guard its secrecy; the value of the information both to the business and to its

competitors; money that was spent to develop the information; and the ease or difficulty with

which it could be acquired by outsiders. See generally, Wright Med. Tech., Inc. v. Grisoni, 135

S.W.3d 561, 589 (Tenn. Ct. App. 2001) (internal citations omitted).

        PartyLite contends that Watkins misappropriated the names of its sales consultants, which

PartyLite contends are trade secrets. While admitting that sales consultants’ names were public

knowledge (from business cards and individual agents’ websites, for example), and that PartyLite

would not want its sales consultants’ identities to be a secret, PartyLite argued that the act of

compiling information about its consultants over the years created a trade secret. As the district

court phrased it, “In a sense, plaintiff is arguing that the whole of plaintiff’s sales force

information is worth more than the sum of its parts.” The district court credited Watkins’

affidavit that she used only her personal knowledge of individual sales consultants and

relationships she had developed while at PartyLite. The district court concluded that this

information was likely not a trade secret, as under Tennessee law an employee’s “remembered

information” and relationships with customers are not trade secrets. B&L Corp. v. Thomas and

Thorngren, Inc., 162 S.W.3d 189, 215 (Tenn. Ct. App. 2004).

        PartyLite argues here that the district court erroneously credited Watkins’ declaration

without adequately considering its own evidentiary declarations. PartyLite also argues that the


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TUTSA’s definition of trade secrets is broader than the common law test and that the district

court should not have relied on pre-TUTSA cases to conclude that Watkins’ knowledge was not

a trade secret. And, PartyLite contends that “misappropriation” is broader than mere “use” and

that the district court erred in considering only the information Watkins admitted she was “using”

without adequately considering her misappropriation of the names in the first instance.

       We first note that PartyLite overstates the “conclusive” or “unrebutted” character of its

own witness declarations. For example, Amy Mullen (who worked briefly at SCO with Watkins)

states she saw Watkins “display” a notebook filled with names and information about “hundreds”

of PartyLite salespeople. She also states that Watkins told SCO that it must do business in Texas

because Watkins had lots of names in that state. Mullen disapproved of recruiting sales

consultants from other direct sales companies; she was unhappy with the direction SCO had

chosen, and she left the company shortly after Watkins arrived. Mullen does not specifically

describe the “notebook” in question, and Watkins denies taking or creating any “master list”

from PartyLite. Mullen also admits that she did not see any list of PartyLite consultants to whom

Watkins sent gifts, in an effort to recruit them to SCO. The district court’s credibility assessment

of the competing declarations, and its decision to credit Watkins’ statements, is not clearly

erroneous.

       PartyLite also submitted declarations from several of its sales consultants. Elisa

Froehling asserts that she received an unsolicited gift from Watkins (a package of SCO

products), even though she did not have regular contact with Watkins. But Froehling also

admits that she “worked closely” with Watkins on some occasions. Llonda Putz, who also

received some contact from Watkins, states that she had prior “dealings” with Watkins about her


                                                -7-
own downline sales force. These declarations do not clearly establish that Watkins was

improperly using confidential information, because both women admitted knowing and working

with Watkins before she left the company. Gerri Pletcher, who also received a gift package,

states she had not seen Watkins for several years, and that the package had been sent to an

address where she had not lived for more than six years. The district court did not specifically

refer to this declaration; but the fact that Watkins used an outdated address supports her

contention that the information she used was based on her personal experience, and not

misappropriation of PartyLite’s records before her departure.

       The evidence before the district court regarding the efforts to maintain the secrecy of the

information demonstrates that PartyLite publishes a monthly magazine called “Reflections,”

which is sent to its 30,000 consultants. The January 2006 issue contains list after list of

consultant names, rank in the company, and their sales figures. Lists of top sellers in various

categories (e.g., team, unit, district and regional leaders) as well as the names of newly qualified

consultants are published. (J.A. 294-361) There is nothing in the magazine indicating that any

of this information is confidential or proprietary; SCO obtained several copies on e-Bay. SCO

also submitted the results of an internet web search, conducted prior to the preliminary injunction

hearing, which produced the names of over 300 PartyLite sales consultants and their individual

web sites. PartyLite discounts all of this evidence, contending that ex-PartyLite consultants

improperly sold their materials on e-Bay and that the web sites would not yield information about

consultants’ sales volume or downline recruiting successes. PartyLite also notes that confidential

information can be a trade secret even when independent research would yield the same

information, if that research would be “difficult, costly, or time consuming.” See Wright Med.


                                                 -8-
Tech., 135 S.W.3d at 589.

        Given the apparent widespread distribution of the PartyLite magazine and lack of any

confidentiality protections noted on it, combined with the relative ease in locating sales

consultants via web searches, we cannot say the district court abused its discretion in concluding

the names are not a trade secret.

        PartyLite also contends that the district court erroneously concluded that the Tennessee

trade secrets statute did not completely pre-empt common law concerning the definition of a

“trade secret.” PartyLite argued that the statute completely pre-empts the entire trade secrets

field; the district court disagreed, noting the statute itself expressly pre-empts only conflicting

civil remedies for trade secret misappropriation. See Tenn. Code Ann. §47-25-1708(a). Pre-

statute cases that consider the factors listed in the statute’s definition of “trade secret” are not

invalid simply by virtue of the statute’s passage. We thus need not consider PartyLite’s

invitation to overrule portions of Stratienko v. Cordis Corp., 429 F.3d 592 (6th Cir. 2005), an

invitation we have no power to accept in any event.

        PartyLite cites Princess House, Inc. v. Lindsey, 77 F.3d 486 (8th Cir. 1996) (unpublished

table decision), which affirmed a district court’s issuance of a permanent injunction against two

former sales consultants for Princess House, a multi-level direct sales company. The district

court had enjoined the Lindseys from using confidential information and recruiting Princess

House salespeople. The Eighth Circuit’s opinion provides no facts about the specific relationship

between Lindsey and Princess House, but often refers to a “contract” between those parties. The

opinion is not helpful due to the paucity of facts provided, particularly in light of the absence of a

non-solicitation agreement between PartyLite and Watkins. The result in that case might apply


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here if the parties had a valid non-solicitation agreement, but it appears to have no applicability

to the instant case.

         PartyLite also suggests that the district court erred in denying injunctive relief based

solely on the documentary evidence and before any discovery. The district court’s minute order

of June 23, 2006 plainly states that the court was willing to set an evidentiary hearing if the

parties desired to present testimony. PartyLite waived that opportunity and told the court it

would not present witnesses. It cannot complain here that the district court did not consider

additional evidence that PartyLite chose not to present.

         Finally, we reject PartyLite’s contention that the district court did not adequately consider

whether Watkins “misappropriated” any information. The district court obviously concluded

that the names of the sales consultants was not a trade secret; therefore, Watkins’ possession and

use of the information would not support a claim of misappropriation. The district court

specifically stated its view that knowledge of the identities of particular salespeople has only

marginal economic value and that PartyLite does not conceal those identities for its own obvious

economic reasons. Sales consultants can be readily located through easily available public

means. The district court also left open the possibility that, as discovery proceeds in the case,

PartyLite’s arguments may gain more force, but on the record presented, the district court could

not conclude that PartyLite had a likelihood of success of establishing that the names were a

trade secret. We affirm the district court’s ultimate conclusion, because on our review of the

record, we are not left with the "definite and firm conviction that the trial court committed a clear

error of judgment." Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir.

2000).


                                                  -10-
2.     Tortious Interference with Contract.

       The district court concluded that PartyLite did not establish a likelihood of success on this

claim because it was premised on the allegation that Watkins’ information about PartyLite’s sales

consultants was a trade secret. As we affirm the district court’s conclusion on the issue of trade

secret, we also affirm its conclusion on this claim. PartyLite suggests that it need not establish

misappropriation of trade secrets in order to establish a tortious interference claim, noting that

“several” PartyLite leaders have submitted their resignations, presumably to sell for SCO. The

record before the district court supports the conclusion that PartyLite did not establish the

requisite likelihood of success on the merits on this claim. PartyLite consultants are essentially

at-will contractors, and they are not forbidden from selling other types of products for other

direct sales companies. Moreover, one element of a tortious interference claim is evidence that

the defendant acted maliciously, with an improper motive or means. See Hauck Mfg. v. Astec

Indus., 375 F.Supp.2d 649, 659 (E.D. Tenn. 2004). PartyLite’s argument that Watkins and/or

SCO acted with improper means is clearly premised upon the alleged trade secrets

misappropriation. Given our affirmance of the district court on that issue, the same result is

properly applied to this claim.

3.     Breach of Contract/Fiduciary Duty Claims.

       The district court concluded these claims were pre-empted by the TUTSA. PartyLite has

not appealed this portion of the district court’s order; hence we need not address these claims.

4.     Unfair Competition/Tortious Interference.

       The district court found that these claims were pre-empted by TUTSA to the extent the

claims rest on PartyLite’s trade secrets allegation. We agree with this conclusion. The district


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court relied on Hauck Mfg., which exhaustively surveyed state cases concerning the pre-emptive

effects of the Uniform Trade Secrets Act, and concluded that the statute pre-empted all common

law or other claims that would succeed or fail dependent upon proof of improper use of trade

secrets. Id. at 658. The same conclusion was reached in Vincit Enterprises v. Zimmerman, 2006

U.S. Dist. LEXIS 32323 (E.D. Tenn., May 12, 2006), and ATCO Manufacturing Co. v. Share

Corp., 2007 U.S. Dist. LEXIS 37503 (E.D. Tenn., May 22, 2007). As we noted in Stratienko v.

Cordis Corp., 429 .3d 592, 600 (6th Cir. 2005), “Where the state supreme court has not spoken,

our task is to discern, from all available sources, how that court would respond if confronted with

the issue." Given the well-reasoned Hauck decision, and the absence of any contrary authority

from the Tennessee courts, the district court reasonably concluded these claims were pre-empted.

        The district court also rejected PartyLite’s predatory pricing argument with respect to

SCO’s Bridge Agreements. PartyLite claims these agreements “unfairly” grant advanced status in

the SCO hierarchy based upon the consultant’s PartyLite status and pay more than is justified by

actual sales results. The district court, noting that PartyLite offered no legal support for its

predatory pricing/unfair competition claim, concluded PartyLite had not shown a likelihood of

success. We agree. PartyLite’s arguments about the agreements’ “unfairness” is based on its

own CEO’s opinions. In the absence of any factual data supporting those opinions and any

compelling legal support for the theory, the district court clearly did not err in concluding that

PartyLite had not established a likelihood of success on the merits of this claim for purposes of

injunctive relief.

        B.      Irreparable Harm.

        The district court, assuming arguendo that Watkins used PartyLite’s trade secrets,


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concluded PartyLite had shown “a modest degree of irreparable harm overall.” (J.A. 53)

PartyLite argues that the district court improperly balanced this irreparable harm with the court’s

assessment of the merits of PartyLite’s trade secrets arguments. We reject PartyLite’s contention

because it is clear that the district court found that Watkins and SCO were not using trade secrets.

In view of that finding, the district court’s balancing of the “modest” irreparable harm with the

high unlikelihood of success on the claims was not an abuse of discretion.

       C.      Harm to Others.

       The district court balanced the harm that PartyLite asserted was caused to its own sales

consultants (loss of income) with the harm of forbidding Watkins and SCO from soliciting those

sales consultants. The court concluded that greater harm would result from the restraint on

competition, especially in view of the fact that PartyLite’s sales consultants are independent

contractors and not employees. We cannot conclude that the court’s conclusion was an abuse of

discretion.

       D.      Public Interest.

       Finally, the district court balanced the competing public interests of protecting contracts

and disfavoring restraints of trade and concluded that the former could be protected in the

absence of injunctive relief. The court found the public interest did not favor an injunction, a

conclusion well within the district court’s ample discretion.

                                                IV.

       For all of the foregoing reasons, we affirm the district court’s denial of PartyLite’s motion

for a preliminary injunction.




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