Memorandum of Law

Ryan T. Quigley, Esq., Florida Bar No.: 0030558.

Plaintiff, ERHM ORTHOPEDICS, INC. (hereinafter “Plaintiff”, in support of its Motion for
Temporary Injunction against Defendant, TODD EDWARDS, an individual (hereinafter referred
to as “Defendant”), and to supplement the evidence presented and the testimony heard by the
Court on June 14, 2016 (the “Hearing”), hereby files this Memorandum of Law, and states:
PLAINTIFF IS ENTITED TO INJUCTION UNDER SECTION 542.335 OF THE
FLORIDA STATUTES
The Florida Second District Court of Appeals has held that, in order for Plaintiff to be entitled to
a temporary injunction in a restrictive covenant case, Plaintiff must show that it has: (1) a
contract; (2) the former employee's intentional breach of the contract; and (3) the existence of no
adequate remedy except injunctive relief, recognizing that irreparable harm is presumed. 
Sarasota Beverage Co. v. Johnson 551 So.2d 503 (Fla. 2d DCA 1989). Plaintiff provided
evidence and testimony at the Hearing which met all elements that are required, thus Plaintiff is
entitled to the entry of a Temporary Injunction. The Florida Legislature codified in Section
542.335(1)(a) Fla.Stat (2016) that the Court will only enforce a restrictive covenant if it is set
forth in writing and signed by the person against whom enforcement is sought.
VALID CONTRACT
In the instant case, it is undisputed that Plaintiff and Defendant signed an Employment
Agreement which was admitted as evidence as Plaintiff's Exhibit #5 (“Employment
Agreement”). Defendant's Employment Agreement contained three (3) restrictions in the form of
l).a confidentiality covenant as enumerated in section 13 on page 6, 2). a covenant not to
compete as enumerated in section 14 on page 7, and 3). a covenant not to solicit as enumerated in
section 15 on page 8.(See Plaintiff Exhibit “5”). Defendant wrote to Plaintiff in an email on July
13, 2012 (See Plaintiff's Exhibit 1, 2nd paragraph) and Defendant also testified that before being
hired by Plaintiff in 2012 that he had to be released from a non-compete agreement from his
previous employer. Defendant acknowledged in writing and also testified the he knowingly and
voluntarily entered into the Employment Agreement with full knowledge of the restrictive
covenants contained in the agreement. (See Plaintiff's Exhibit “4” 2nd paragraph). Defendant
testified that he tendered written notice of his resignation and then worked the additional thirty
(30) days as requested by George Etheridge pursuant to the terms of his Employment
Agreement. In the instant case, both the evidence submitted to the Court and the testimony of
witnesses prove that Defendant had a valid signed contract with Plaintiff that contained
restrictive covenants, and as such, Plaintiff has demonstrated to this Court that the Employment
Agreement complies with Section § 542.335(1)(a) Fla.Stat (2016).
Legitimate Business Interest
With regard to Plaintiff having a legitimate business interest that warrants protection by this
Court through the enforcement of the restrictive covenants contained with the Employment
Agreement, the Court received stipulated facts as contained in section 4, page 3 of the Joint Pre-
Hearing Conference Report that:
(a) Precision Orthopedics, Inc. (“Precision”) is a Florida corporation formed in 1986 that
engages in the sale of orthopedic products and services to hospitals, orthopedic surgeons, and
surgical centers within Southwest and Central Florida; and
(b) that the restricted sales territory as listed in Section 14 of the Employment Agreement (see
Plaintiff's Exhibit #5 were the Florida counties of Alachua, Charlotte, Citrus, Collier, De Soto,
Glades, Hardee, Hendry, Hernando, Highlands, Hillsborough, Lake, Lee, Levy, Manatee,
Orange, Osceola, Pasco, Pinellas, Polk, Sarasota, Seminole, Sumter and Volusia County Florida
(the “Restricted Territory”)).
At the Hearing, Plaintiff's President, George Etheridge, testified that; over the thirty (30) years
that his companies have done business in the Restricted Territory, the companies have developed
an orthopedic sales organization that is one of the top sales distributors of orthopedic products
and supplies in the United States. In addition, over the thirty (30) years his companies have
developed strong relationships with their customers which he testified were doctors, hospitals,
and surgical centers within the Restricted Territory. George Etheridge testified that all aspects of
his business were dedicated to the selling of orthopedic products and services, and that his
company did not manufacture any products, but only sold products and supplies. Plaintiff's
employees, including Defendant, were encouraged to develop personal relationships with the
surgeons located within Restricted Territory. Plaintiff's employees work very closely with the
surgeons, and they develop close relationships with surgeons during their employment,
including, but not limited to, obtaining knowledge relating to the surgeon's preference regarding
products, surgical procedures or techniques, instruments as well as becoming familiar with the
surgeon's families and hobbies so that these personal relationships would generate additional
sales for the orthopedic products, supplies and services sold by, or provided by, Plaintiff. George
Etheridge testified that these customers were a vital part of his company's business, and that
some of the customers have been with his company since he started in the orthopedic sales
business.
With regard to the Plaintiff being the employer for the Defendant as opposed to Precision
Orthopedic, George Etheridge testified that after a massive orthopedic product recall where
Precision was named as Defendant in hundreds of product liability lawsuits, he and his business
partners formed ERHM Orthopedics, Inc. (“Plaintiff”) in 2001. Plaintiff signed a Management
Agreement with Precision in January 2002 that has been admitted to evidence as Plaintiff's
Exhibit #9. Pursuant to the terms of the Management Agreement, Plaintiff's duties included
managing the sales staff of the Business (page 2, section 1(A) 7), wherein Business was defined
as Precision's orthopedic sales company. At the time the Management Agreement was signed,
Precision was under contract with Centerpulse Orthopedics (“Centerpulse”) which was acquired
by Zimmer in 2003, and Precision entered into an agreement with Zimmer in April 2004. George
Etheridge testified all sales employees hired after 2001 were hired as employees of Plaintiff and
not Precision. On cross-examination at the Hearing, George Etheridge testified that Plaintiff had
several other orthopedic manufacturers that were under contract to Plaintiff, and named several
that are also listed on Exhibit B, page 14, of Defendant's Employment Agreement (See Plaintiff's
Exhibit #5). George Etheridge also testified that Plaintiff managed all of the day-to-day
operations of the business including managing the sales force, leasing of office, payroll for all
employees, employee benefits, and all other business matters were conducted through Plaintiff.
Through the evidence submitted to the Court in the form of documents admitted to evidence as
well as the testimony of the parties, Plaintiff has shown and therefore proven to this Court that
Plaintiff has legitimate business interest as defined § 542.335(1)(b) 3 and 4 Fla.Stat (2016) to
protect through the use of the restrictive covenants as contained in the Defendant's Employment
Agreement.
To the contrary, the Defendant has presented multiple lists of doctor's names that were received
into evidence as Defendant's Exhibits A through E, and presented Defendant's testimony to the
Court that the contact information or surgeons' names were all generally available from a public
source (as the information about surgeons and products are available online). Additionally,
Defendant testified that all surgeons are required by law to use the products that best serve the
needs of their patients, and surgeons are not required to use any particular orthopedic
manufacturer. Some surgeons use products from different orthopedic manufacturers, and
Plaintiff does not have any contracts with the surgeons. Based upon the evidence submitted to
the Court, Defendant has argued that Plaintiff does not have legitimate business interests to
protect in its customers or its territory through the use of restrictive covenants as contained in
Defendant's Employment Agreement. Defendant's argument is contrary to Florida law on this
issue. In DePuy Orthopaedics,  Inc. v.  Waxman, 95 So.3d 928, 938 (Fla. 1st DCA 2012), the
Court found that DePuy Orthopaedics had legitimate business interests to protect which justified
the use of the non-compete covenants that DePuy Orthopaedics was seeking to enforce against
its former sales representatives. The First District Court of Appeal determined that DePuy
Orthopaedics had developed substantial relationships with surgeons and hospital administrators
through the sale and use of its product as well as through promotion and advertising of the
products, and had therefore developed a legitimate business interest in its customers within its
territory through sales of orthopedic products to those customers in southern Florida for thirty
(30) years.
In the instant case, Plaintiff shares many similarities with DePuy Orthopeadics as it has
developed substantial relationships with its customers over a long protracted period of time by
selling and distributing orthopedic products with the Restricted Territory. Applying the First
DCA's analysis and ruling in DePuy  Orthopaedics, Inc. v. Waxman, this Court should find that
Plaintiff has a legitimate business interest that warrants protection though the use and
enforcement of the restrictive covenants as contained in the Defendant's Employment
Agreement.
As evidence at the Hearing shows, Plaintiff has legitimate business interests in its substantial
relationships with specific existing customers, and legitimate business interests with customer,
patient, or client goodwill associated within a specific geographic area, Plaintiff has legitimate
business interests as defined in Section § 542.335(1)(b) 3 and (4)c. As such, the restricted
covenants of the Employment Agreement are necessary to protect said legitimate business
interests.
Contractually Specified Restraint Is Reasonably Necessary To Protect a Legitimate Business
Interest
Section § 542.335(1)(c) Fla.Stat (2016) requires Plaintiff to plead and prove that the restricted
covenants in the Employment Agreement are reasonably necessary to protect Plaintiff's
legitimate business interest. A review of the Employment Agreement shows that the restrictive
covenants contained therein are reasonably necessary to protect Plaintiff's legitimate business
interest.
As each of the restricted time periods as contained in the Covenant Not to Compete and
Covenant Not to Solicit sections of the Employment Agreement are two (2) years, then
according to § 542.335(1)(d) 1 Fla.Stat (2016) the time periods of each restrictive covenant are
deemed to be reasonable. See Plaintiff's Exhibt “5”, Sections 14 and 15 pages 7 and 8 of the
Employment Agreement. Furthermore, Defendant at the Hearing did not present any evidence
that rebuts the presumption that the two (2) year time period restriction is unreasonable, so the
two (2) year period is deemed reasonable.
George Etheridge testified at the Hearing that Plaintiff's employees have relationships with
surgeons located in each of the counties listed in the Restricted Territory. (SeeExhibit A page 13
of the Employment Agreement, Plaintiff's Exhibit 5). Additionally, George Etheridge testified
that Plaintiff's employees make sales to hospitals, orthopedic surgeons, and surgical centers in
each county located within the Restricted Territory, make sale presentations within each county,
and provide case coverage within each county of the Restricted Territory. George Etheridge went
on to testify that Defendant was hired to help grow sales within every county of the Restricted
Territory by helping to sell orthopedic products, making product presentations, providing
services to Plaintiff's customers, and covering orthopedic surgical cases. Dining Defendant's
testimony at the Hearing, Defendant admitted that he had provided services and surgical case
coverage throughout the Restricted Territory. In Plaintiff's Exhibit “8” dated January 14, 2016,
Defendant states in the third paragraph: “I've been doing cases in our entire area, from
Gainesville to Naples and Orlando”. As the Restricted Territory is limited to areas wherein
Defendant actually provided services and developed relationship in, the restriction is reasonably
necessary to protect Plaintiff's legitimate business interests in the Restricted Territory that
Plaintiff developed over the last thirty (30) years.
§ 542.335(1)(b) Fla.Stat (2016) and Florida case law have made it clear that there is little
question under Florida law that an employer has a legitimate business interest in prohibiting
solicitation of its customers with whom the employee has a relationship. Hilb Rogal & Hobbs of
Fla., Inc. v. Grimmel, 48 So.3d 957, 962 (Fla. 4th DCA 2010). George Etheridge during his
testimony at the Hearing explained that cultivating a relationship with surgeons was a top
priority for all of Plaintiff's employees, and while some surgeons were easy to get to convert to
Plaintiff's products, it might take years to make a sale to other surgeons. George Etheridge
testified that, even though it is hard work, Plaintiff (through Precision) has maintained some
relationships for thirty (30) years, while others were new relationships, but Plaintiff found each
relationship to be equally important. The specific language of the Covenant Not to Compete as
well as the Covenant Not to Solicit are narrowly tailored to protect Plaintiff's legitimated
business interest. Defendant, testified at the Hearing, that he provided surgical case coverage for,
and communicated with, Plaintiff's customers in each county located in the Restricted
Territory. Defendant has admitted that, during his employment with Plaintiff, he has met with
Plaintiff's customers, provided services to Plaintiff's customers, covered orthopedic surgical
cases, and developed relationships with Plaintiff's customers throughout the Restricted Territory.
As such, there is no doubt that preventing Defendant from soliciting Plaintiff's customers is
reasonably necessary to protect Plaintiff's legitimate business interest.
As the evidence and testimony presented at the Hearing demonstrated that Plaintiff and
Defendant had a valid contract with restrictive covenants that are reasonably necessary to protect
the legitimate business interest of Plaintiff, Plaintiff would assert that the first element of 
Sarasota Beverage Co. v. Johnson 551 So.2d 503 (Fla. 2d DCA 1989) has been met by the
Plaintiff in the instant action.
INTENTIONAL BREACH OF THE CONTRACT
It is undisputed that Defendant entered the Employment Agreement with full knowledge of the
restrictive covenants contained therein. Defendant also testified that he received and read the
letter sent to him by Plaintiff's attorney, Frederick Mills, on March 14, 2016, reminding him of
the restrictive covenants of the Employment Agreement. See Plaintiff's Exhibit “6”. During the
Hearing, Defendant in his own words stated that he “will stipulate” that:
a) Defendant voluntarily resigned from his position with Plaintiff on March 4, 2016.
b) Defendant's last day of employment with Plaintiff was April 3, 2016.
c) Defendant is an independent contractor of Orthopedic Resources of Florida Inc. (“Orthopedic
Resources”);
d) On March 18, 2016, Defendant signed the Independent Contractor Agreement with
Orthopedic Resources entered into evidence as Plaintiff's Exhibit “7” at Hearing;
e) Defendant's first day as independent contractor for Orthopedic Resources was April 4, 2016;
f) Orthopedic Resources is a sales representative, agent, and distribution company for the
following four (4) orthopedic product manufacturers: Corin Group, Lima Corporate, United
Orthopedic Corporation, and ConforMIS, Inc. (See Paragraph 1 page 1 of the_Independent
Contractor Agreement, Plaintiff's Exhibit 7);
g) Corin Group is a direct competitor with Zimmer;
h) United Orthopedic Corporation is a direct competitor of Zimmer;
i) ConforMIS, Inc. is a direct competitor of Zimmer;
j) Lima Corporate is a direct competitor of Zimmer;
k) Orthopedic Resources is a direct competitor of Plaintiff;
l) Defendant's territory as an independent contractor for Orthopedic Resources is Hernando,
Citrus, Pasco, Pinellas, Pasco, Pinellas, Hillsborough, Manatee, Sarasota, Charlotte, Marion,
Sumter, Lake, Polk, Orange and Osceola County Florida (“Defendant's Territory”).
(See Schedule C pages 15 and 16 of the Independent Contractor Agreement, Plaintiff's Exhibit
7);
m) All counties in Defendant's Territory are located within the Restricted Territory
(See Schedule C pages 15 and 16 of the Independent Contractor Agreement, Plaintiff's Exhibit 7,
and Exhibit A page 13 of the Employment Agreement, Plaintiff's Exhibit 5).;
n) Defendant as an independent contractor for Orthopedic Resources is selling Corin Group,
Lima Corporate, United Orthopedic Corporation, and ConforMIS, Inc. within the Restricted
Territory,(See Paragraph 1, Page 1 of the Independent Contractor Agreement, Plaintiff's Exhibit
7); and
o) Defendant has provided surgical case coverage on behalf of Orthopedic Resources to Dr.
David Chasen, Dr. Alan L. Valadie, and Dr. Sam Messiah; and
p) Dr. David Chasen, Dr. Alan L. Valadie, and Dr. Sam Messiah were customers of Plaintiff
during the time of his employment with Plaintiff.
Based upon Defendant's own testimony, it is undisputed that Defendant is working for a
orthopedic sales company that is a competitor of Plaintiff and that Defendant had intentionally
breached the restrictive covenants as contained in his Employment Agreement. Therefore
Plaintiff has proven the second element of  Sarasota Beverage Co. v. Johnson 551 So.2d 503
(Fla. 2d DCA 1989), an intentional breach of a restrictive covenant agreement. See Section 14 G,
I, J and K and Section 15 on pages 7 and 8 of the Employment Agreement, Plaintiff's Exhibit 5.
NO ADEQUATE REMEDY
Florida Supreme Court has held that Temporary Injunctions are favored when there is a breach
of a restrictive covenant as it is inherently a difficult task to determine just what damage actually
is caused by the employee's breach of the restrictive covenant. Miller Mechanical, Inc. v. Ruth,
300 So.2d 11 (Fla. 1974). Furthermore, the Florida Second District Court of Appeals has stated
that injunctions are favored “in order to maintain long standing relationships and preserving the
goodwill of a company built up over the course of years of doing business.” Variable Annuity
Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA2006).
Defendant testified he began working for Orthopedic Resources on April 4, 2016. Defendnat
testified that he is working with three (3) doctors, namely, Dr. David Chasen, Dr. Alan L.
Valadie, and Dr. Sam Messiah that were customers of Plaintiff. Discovery is still outstanding and
will be ongoing so as to determine if there are other customers being solicited, so it would be
impossible to determine at this time the actual extent of the damage caused to Plaintiff as result
of Defendant's breach of the Employment Agreement. In addition, if a Temporary Injunction is
not granted, Defendant will continue breaching the Employment Agreement which will cause
Plaintiff to continue to suffer damage to long standing relationships and goodwill. Lastly, the
underlying reasoning for a Temporary Injunction to be issued is to maintain or preserve the
status quo. A Temporary Injunction is the only remedy that will maintain the status quo,
consequently Plaintiff has no adequate remedy at law except injunctive relief and has proven the
final element of  Sarasota Beverage Co. v. Johnson 551 So.2d 503 (Fla. 2d DCA 1989).
As Plaintiff has presented evidence that: (1) it has a valid contract with Defendant; (2) Defendant
intentionally breached the contract; and (3) Plaintiff has no adequate remedy except injunctive
relief. Plaintiff would again assert and argue that Plaintiff is entitled to Temporary Injunction. 
Sarasota Beverage Co. v. Johnson 551 So.2d 503 (Fla. 2d DCA 1989).
PLAINTIFF IS ENTITLED TO TEMPORARY INJUCTION PURSUNT TO FLORIDA
RULE OF CIVIL PROCEDURE 1.160
Plaintiff in order to be entitled to a temporary injunction must show: (1) the likelihood of
irreparable injury: (2) the unavailability of an adequate remedy at law: (3) a substantial
likelihood of success on the merits; and (4) that a temporary injunction will serve the public
interest. DePuy Orthopaedics, Inc.  v. Waxman, 95 So.3d 928, 938(Fla. 1st DCA 2012).
THE LIKELIHOOD OF IRREPARABLE INJURY
At the Hearing, Plaintiff presented evidence that it had a valid agreement that complied with §
542.335 Fla. Stat (2016). Plaintiff has also presented undisputed evidence that Defendant has
breached the Employment Agreement. § 542.335 (1) (j) Fla. Stat (2016) provides that, once
Plaintiff has shown a violation of an enforceable restrictive covenant, it creates a presumption of
irreparable injury to the person seeking enforcement of a restrictive covenant. This presumption
is rebuttable, but at no time did Defendant present any evidence claiming that Plaintiff would not
suffer irreparable harm by the breach of the Employment Agreement by Defendant.
UNAVAILABILITY OF AN ADEQUATE REMEDY
As previously stated in this Memorandum of Law, and due to the nature of the inherently
difficult task of determining just what damage Plaintiff will actually suffer as a result of
Defendant's intentional breach of the Employment Agreement, temporary injunction is the only
adequate remedy at law.
SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
In DePuy Orthopaedics,  Inc. v. Waxman, 95 So.3d 928, 938 (Fla. 1st DCA 2012), the First
District Court of Appeal found that, once DuPuy Orthopaedics had established that the restrictive
covenants were reasonably necessary to protect its legitimate business interest and Appellees had
intentionally breached said restrictive covenants, DePuy Orthopaedics had met its burden of
establishing that it is substantially likely to succeed against Appellees. In the instant case,
Plaintiff has submitted evidence to this Court at the Hearing that the restrictive covenants
contained in the Employment Agreement are reasonably necessary to protect its legitimate
business interests. Defendant's intentional breach of the restrictive covenants contained in the
Employment Agreement are not in dispute, therefore, Plaintiff is substantially likely to succeed
on the merits of this case.
PUBLIC INTEREST
Public interest favors entry of a temporary injunction to enforce a restrictive covenant agreement
as the public has a cognizable interest in the protection and enforcement of contractual rights.
“This interest is particularly strong with respect to non-compete agreements, as the Florida
Legislature has determined that the enforcement of such agreements are in the public's best
interest.” Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So.3d 957, 962 (Fla. 4th DCA 2010).
At the hearing Defendant did not present any public interest argument against the entry of a
temporary injunction. Florida courts and the Florida Legislature favor injunctions for the
enforcement of restrictive covenants, and Defendant failed to provide any public interest
argument against the entry of the Temporary Injunction. Accordingly public interest favors the
entry of a Temporary Injunction in this matter.
DEFENDANT'S ARGUMENTS
As it is undisputed that a valid agreement exist between the parties and Defendant is in breach of
said agreement, Defendant's arguments that were presented are: (1) Plaintiff does not have a
legitimate business interest; and (2) Defendant was not a sales representative for Plaintiff and is
now a sale representative Orthopedic Resources, so the restrictive covenants are not necessary
because of the differences in Defendant's position with Plaintiff and his position with Orthopedic
Resource.
The issue of Plaintiff's legitimate business interest has been previously addressed in this
Memorandum of Law. As to Defendant's second point listed above, George Etheridge testified at
the Hearing that all of Defendant's duties and obligations during his employment with Plaintiff
were all related to the goal of selling the orthopedic products. Defendant was hired for the
purpose of developing strategies to convert surgeons or doctor groups from using their existing
orthopedic product manufacturers to orthopedic product manufacturers represented by
Plaintiff. See Plaintiff's Exhibit “3” Proposed Sale Strategies for Precision Orthopedics and
Section 4 B and C on page 2 and 3 of the Employment Agreement, Plaintiff's Exhibit
“5”. Defendant moved to Florida from North Carolina almost four (4) years ago, and at that time
he had no relationships with customers and no knowledge about the customers in the Restricted
Territory. See Plaintiff's Exhibit 2. During his employment with Plaintiff, Defendant traveled
throughout the Restricted Territory wherein he developed relationships with Plaintiff's
customers, and learned information that was not readily available to the general public.
If the restrictive covenants are not enforced, then Defendant is now able to use the information
he gained and the relationships he developed while employed by Plaintiff, which allows
Defendant the ability to skip to the front of the line thus providing Defendant with an unfair
advantage when competing against Plaintiff. Simply stated, the information garnered and
relationships developed by Defendant while employed by Plaintiff provides Defendant with the
ability to use Plaintiff's legitimate business interests against Plaintiff in the Restricted Territory,
therefore the Motion for Temporary Injunction should be granted.
WHEREFORE, for all of the foregoing reasons, Plaintiff respectfully requests that this Court
grant Plaintiff's Motion for Temporary Injunction thereby enjoining Defendant from:
a) working for a competitor of the Plaintiff within the Restricted Territory;
b) soliciting business from any of Plaintiff's customers;
c) communicating with or calling on Plaintiff's customers with the intent of diverting or
attempting to divert business away from Plaintiff to Defendant and/or a competitor of Defendant;
d) using Plaintiff's confidential information in Defendant's business operations or from disclosing
Plaintiff's confidential information to a third party;
e) award Plaintiff reasonable attorneys' fees and costs incurred in bringing this action and filing
and prosecuting this Motion for Temporary Injunction; and
f) grant any other such or further relief that this Court deems just and proper.
Ryan Quigley
RYAN T. QUIGLEY, ESQ.
Florida Bar No.: 0030558