United States District Court, D. Maine
ORDER ON PLAINTIFF'S EMERGENCY EX PARTE MOTION FOR A TEMPORARY RESTRAINING ORDER
JON D. LEVY, District Judge.
This matter comes before the court on Pla-Fit Franchise, LLC's ("Planet Fitness") emergency ex parte motion for a temporary restraining order (ECF No. 3).
In considering a request for a temporary restraining order, the court must determine: "(1) the movant's likelihood of success on the merits; (2) whether and to what extent the movant would suffer irreparable harm if the request were rejected; (3) the balance of hardships between the parties; and (4) any effect that the injunction or its denial would have on the public interest." Diaz-Carrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014) (citing Corporate Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013)).
I. FACTUAL BACKGROUND
At this point, the court has only the materials submitted by Planet Fitness. From those materials I can glean the following facts: Since July 22, 2014, Jason Cole has been employed by Planet Fitness as its payroll manager. ECF No. 4 at 1. During the course of his employment, Cole executed several employment agreements, including Planet Fitness' Confidentiality, Inventions, and Non-Competition Agreement ("Confidentiality Agreement") (ECF No. 4-3), its Security Awareness & Acceptable Use Policy ("Security Policy") (ECF No. 4-4), and its Acceptable Use Policy-Administrator Rider ("Administrator Rider") (ECF No. 4-5). By signing the Confidentiality Agreement, Cole agreed to "never, directly or indirectly, use or disclose any Confidential Information, " and promised not to "copy any Documents or remove any Documents or copies or derivatives thereof from the premises of the Company." ECF No. 4-3 at 2-3. By signing the Security Policy, Cole agreed that he was prohibited from "effecting security breaches, " which were defined as "accessing data of which the employee is not expressly authorized to access." ECF No. 4-4 at 4. Additionally, by signing the Administrator Rider, Cole agreed that "[a]ny breach of... trust, by misusing privileges or failing to maintain the highest level of professional integrity will be considered gross misconduct by the company[.]" ECF No. 4-5 at 3.
On June 3, 2015, Cole erroneously received an attorney-client privileged email from Planet Fitness' Chief Administrative Officer and General Counsel, Richard Moore. ECF No. 4 at 3. In fact, Moore's email was intended for an outside attorney named Jason E. Cole. Id. Realizing that he was not the intended recipient, Cole forwarded the email to Planet Fitness' Human Resources Director, Karen Avery, who asked Cole to "completely delete" the email and to ensure that it was thoroughly deleted from his mailbox system. ECF No. 4-6 at 2. Cole replied that he had deleted the email and that he had stopped reading it after the first line. Id.
Avery subsequently instructed the Planet Fitness Information Technology ("IT") department to check Cole's computer to ensure that the email had, in fact, been deleted. ECF No. 4 at 3. The IT department confirmed that Cole had deleted the email as discussed, and Avery considered the matter resolved. Id.
Approximately two months later, on July 30, 2015, Avery attended a meeting with Cole and Planet Fitness' Associate General Counsel, Alison Johnson. Id. According to Avery's account, Cole was agitated over the recent termination of another Planet Fitness employee, Laura Shaw, with whom Avery believes Cole is in a romantic relationship and with whom he allegedly resides. Id. In addition to Shaw's termination, Cole also expressed concern that he would soon be terminated, and, apparently apropos of nothing, told Avery that he had downloaded the June 3 email from General Counsel Moore and saved it on his home computer. Id. Cole described the email as "damning, " both politically and from a business perspective, and threatened to release it to the public immediately before Planet Fitness' impending initial public offering ("IPO"). Id. at 3-4.
Planet Fitness disputes Cole's characterization of Moore's email, describing it instead as "a communication of legal strategy by Planet Fitness and legal counsel." ECF No. 3-1 at 7. Nevertheless, Avery states that Cole's comments were "particularly concerning" to her because she recently became aware of Cole's alleged misuse of other privileged information. ECF No. 4 at 4. For example, Avery cites an instance in which Cole forwarded an email to Shaw that was restricted to members of the Planet Fitness Human Resources management team. Id. Avery also noted that Shaw, upon being notified of her termination, asked why she had not been placed on a performance management plan, and named other employees on such plans. Id. According to Avery, Shaw could only have learned of these other employees through a wrongful disclosure by Cole. Id.
Avery states that Planet Fitness intends to terminate Cole's employment based upon his alleged "disrespect for company policies related to confidential information, history of poor follow through on assignments, and attendance issues[.]" Id. at 4.
II. LEGAL ANALYSIS
A. Likelihood of Success On the Merits
Having considered all materials submitted and having heard argument from Plaintiff's counsel, I conclude at this extremely preliminary stage that Planet Fitness has demonstrated a likelihood of success on the merits related to its claims for breach of contract, conversion, and violation of the Computer Fraud and Abuse Act, 18 U.S.C.A. § 1030(a)(2) (2015). Based upon Cole's alleged admissions at the July 30 meeting with Avery and Johnson, there is a reasonable probability that he has downloaded other confidential information. Furthermore, based upon ...