Bureau Veritas Technical Assessments LLC et al v. Brosa et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Bureau Veritas Technical Assessments LLC,
et al.,
Plaintiffs,
v.
Blake Brosa, et al.,
Defendants.
No. CV-25-02339-PHX-JJT
ORDER
Before the Court is Plaintiffs Bureau Veritas Technical Assessments, LLC and
Bureau Veritas North America, Inc.’s Motion for Preliminary Injunction (Doc. 17, Mot.),
to which Defendants Apex Imaging Services, Inc. (“Apex”), Blake Brosa, and Todd
Tankersley filed a collective response (Doc. 44, Resp.), and Plaintiffs replied (Doc. 53,
Reply). The Court held an evidentiary hearing on the Motion on January 27, 2026. Having
considered the briefing and all evidence and testimony presented by the parties, the Court
denies the Motion.
I. BACKGROUND
Plaintiffs provide project management services for multi-site customers. (Doc. 18,
Susi Decl., ¶ 9.) Apex provides general construction services for multi-site customers.
(Doc. 44-1, Cardona Decl., ¶ 6.) Both companies use project management software;
Plaintiffs’ software is known as “ProTrack” (Doc. 19, McNeice Decl., ¶ 14), while Apex’s
software is branded “Apexview” (Cardona Decl. ¶ 20).
. . .
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Mr. Tankersley worked as Plaintiffs’ Senior Product Developer for several years
and helped develop and operate ProTrack. (McNeice Decl. ¶¶ 12–14; Doc. 44-2,
Tankersley Decl., ¶ 8.) As a part of his employment, Mr. Tankersley entered into a
Confidentiality Agreement (“Tankersley Agreement”) that prohibited the copying,
removal, use, or disclosure of Plaintiffs’ confidential information without permission.
(Doc. 17-9 at 2–3.)
Mr. Brosa worked as Plaintiffs’ Executive Vice President of Sales and was involved
in, inter alia, planning annual sales, leading Plaintiffs’ emergence into the electric vehicle
charging (“EVC”) market, and preparing large responses to Requests for Proposals
(“RFPs”). (Susi Decl. ¶¶ 23–24; Hr’g Tr. at 65:19–66:24.) As a part of his employment,
Mr. Brosa entered a Confidentiality, Non-Competition, Non-Solicitation, and Assignment
of Rights Agreement (“Brosa Agreement”). (Doc. 17-8; Hr’g Tr. at 55:8–57:18.) As
relevant here, the Brosa Agreement prohibited the use or disclosure of Plaintiffs’
confidential information and retention of Plaintiffs’ company property and confidential
information. (Doc. 17-8 at 2–3.)
In September 2024, Mr. Brosa met Apex’s Chief Operating Officer Dan Cardona
while attending an event in Scottsdale, Arizona. (Hr’g Tr. at 68:6–13.) Subsequently,
Mr. Cardona extended him an offer of employment. (Id. at 68:17–69:2, 71:11–17.) As
Mr. Brosa recalls, Mr. Cardona expressed to him that there was an “immense opportunity”
for Apex to become a “total turn-key solution” and “world-class one-firm-firm,” and
together they could “kick some ass.” (Id. at 68:22–70:19, 74:20–75:19.) Mr. Brosa
accepted the job offer on October 17, 2024. (Id. at 77:2–78:5.)
On November 19, 2024, Mr. Brosa informed Plaintiffs that he “will be transitioning
[his] career back to [his] roots as a self-perform general contractor.” (Doc. 17-1 at 2.) Over
one month later, after apparently learning that Mr. Brosa began working with Apex,
Plaintiffs sent Mr. Brosa and Apex a letter reminding Mr. Brosa of his post-employment
obligations set forth in the Brosa Agreement. (Doc. 17-2.) Around this time, Mr. Brosa still
possessed his work laptop for the purpose of ensuring that Plaintiffs would pay him his last
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commission check. (Hr’g Tr. at 63:8–23; 107:12–21.) While in possession of the laptop,
Mr. Brosa acknowledged that he accessed his “contacts list one time.” (Id. at 63:24–25.)
In April 2025, Mr. Tankersley terminated his employment with Plaintiffs and began
working as Apex’s Director of Systems the following month. (Tankersley Decl. ¶¶ 2–3,
10.) It is unclear whether Mr. Tankersley’s responsibilities included working with
ProTrack at the time he stopped working for Plaintiffs. (Compare Tankersley Decl. ¶¶ 4, 9
with Hr’g Tr. at 50:25–51:24.)
At some point, Mr. Brosa returned the laptop to Plaintiffs. Plaintiffs subsequently
retained Mr. David Greetham, a digital forensic examiner, to examine the laptop. (Doc. 20,
Greetham Decl., ¶¶ 11–13.) Mr. Greetham prepared a forensic image of the laptop that
revealed Mr. Brosa had repeatedly connected an external WD Elements 2621 USB device
(“External Drive”) to the laptop. (Id. ¶ 16.) According to Mr. Greetham, Mr. Brosa
accessed or created “a substantial number of files and folders” on the External Drive. (Id.)
On July 3, 2025, Plaintiffs sued Defendants asserting—as relevant here—
misappropriation of trade secrets under federal and state law and breach of the Brosa and
Tankersley Agreements.1 According to Mr. Cardona, Apex instructed Mr. Brosa to deliver
the External Drive to Apex’s legal counsel soon after the lawsuit was filed. (Cardona Decl.
¶ 12.) Mr. Brosa did so and had no access to the External Drive since. (Hr’g Tr. at 109:18–
111:21.)
On August 1, 2025, Plaintiffs moved for a preliminary injunction against
Defendants. While briefing was ongoing, the parties nominated two forensic consultants to
conduct an examination of the External Drive (Doc. 45) and the Court appointed Mr. Brian
J. Halpin. (Doc. 52). Mr. Halpin’s examination of the External Drive revealed that it
contained hundreds, perhaps thousands, of files. (See Doc. 66, Halpin Decl.) Plaintiffs now
1 Originally, Plaintiffs moved for injunctive relief based on their claims that Mr. Brosa
breached the confidentiality, non-recruitment, non-solicitation and non-compete covenants
contained in the Brosa Agreement, but the claims pertaining to the latter two have since
been dismissed. (See Docs. 71, 84; Hr’g Tr. at 18:4–6.) At the evidentiary hearing,
Plaintiffs’ counsel clarified that they no longer seek injunctive relief based upon Mr.
Brosa’s alleged recruitment of Ms. Lynelle Grimes. (Hr’g Tr. at 130:11–132:7.)
Accordingly, the only breach of the Brosa Agreement before the Court is based upon the
confidentiality covenant.
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move the Court to enjoin Defendants “from disclosing, accessing, uploading, downloading,
copying, printing, or transferring or otherwise using any of Plaintiffs’ confidential or trade
secret information,” return (Doc. 17-10; Hr’g Tr. at 139:12–140:9.) Additionally, Plaintiffs
request that Defendants be ordered to return Plaintiffs’ property and confidential and trade
secret information, identify all devices or accounts that were used to access the confidential
or trade secret information, and submit those devices or accounts to a third-party forensic
examiner of Plaintiffs’ choosing. (Doc. 17-10; Hr’g Tr. at 139:12–140:9.)
II. LEGAL STANDARD
In order to obtain a preliminary injunction, Plaintiffs must show that “(1) [they are]
likely to succeed on the merits, (2) [they are] likely to suffer irreparable harm in the absence
of preliminary relief, (3) the balance of equities tips in [their] favor, and (4) an injunction
is in the public interest.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (citing
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 9 (2008)).
III. ANALYSIS
A. Evidentiary Objections
In setting the evidentiary hearing, the Court ordered that only the declarations,
affidavits, and exhibits submitted as of September 12, 2025 would be considered. (Doc. 71
at 26–27.) At issue here, Plaintiffs request the Court to accept and consider evidence
submitted after the September 12th cutoff date that includes: (1) Mr. Halpin’s declaration
filed on October 3, 2025 (Doc. 66); (2) Mr. Greetham’s supplemental declaration filed on
October 3, 2025 (Doc. 67); and (3) a document entitled “3Q 2023 PM Sales Update”
offered at the evidentiary hearing (“Sales Document”) (Hr’g Tr. at 118:7–23).
Plaintiffs argue that the declarations arise from the Court-sanctioned expedited
discovery and appointment of Mr. Halpin to analyze the External Drive and were filed and
served with sufficient time for Defendants to prepare a response. (Doc. 86 at 3.) Plaintiffs
offer no argument as to the Sales Document. Defendants object to the introduction of
evidence submitted after the cutoff date. According to Defendants, they were unaware of
Plaintiffs’ intention to rely on the two declarations until the first prehearing statement draft
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was circulated on the eve of the deadline to file it. (Id. at 6.) Had they known, Defendants
maintain that they would have prepared a rebuttal expert report to meet that of
Mr. Greetham. (Id.) As to the Sales Document, it too was submitted long after the cutoff
date. Notably, Plaintiffs do not even list it as an exhibit in the Joint Pre-Hearing Statement.
(See Doc. 86 at 4–5.)
The Court will overrule Defendants’ objection as to Mr. Halpin’s declaration. As
the third-party neutral appointed by the Court, Mr. Halpin generated a ninety-three-page
report of the contents of the External Drive and, insofar as the Court is aware, timely shared
it with both parties in accordance with the Court’s minute entry dated August 25, 2025.
(See Halpin Decl. ¶ 2.) The information contained in Mr. Halpin’s declaration and report
is bereft of interpretive gloss or endorsement. Because the forensic report and
accompanying declaration were neutral, court-ordered, and presented to both sides long
before the hearing took place, the Court finds no prejudice or hardship to either party in
considering Mr. Halpin’s declaration.
Defendant’s objection as to the other evidence is sustained. Unlike Mr. Halpin’s
declaration, the supplemental declaration of Mr. Greetham is far from neutral. In it,
Mr. Greetham analyzes Mr. Halpin’s report to extrapolate conclusions that favor Plaintiffs.
The merit of those conclusions is not for the Court to decide now. Rather, the Court
observes that Plaintiffs knew of the cutoff date as early as December 1, 2025 when the
Court entered its order setting the evidentiary hearing (see Doc. 71 at 26–27) and could
have requested leave to use the supplemental declaration any time thereafter. They did not.
Instead, they delayed notice of using Mr. Greetham’s supplemental declaration until the
eve of the prehearing statement deadline. As for the Sales Document, it was not only
submitted after the cutoff date, but it was not properly noticed as an exhibit in the Pre-
Hearing Statement. This trial-by-ambush exercise is the kind that the Court attempted to
avoid in setting the cutoff date. Accordingly, the Court will not consider Mr. Greetham’s
supplemental declaration, the Sales Document, or counsel’s oral arguments related thereto.
. . .
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B. Likelihood of Success on the Merits
Under the first Winter element, Plaintiffs must show that they are likely to succeed
on the merits of their claims. This factor is the most important of the Winter elements.
Garcia, 786 F.3d at 740. “Because it is a threshold inquiry, when a plaintiff has failed to
show the likelihood of success on the merits, we need not consider the remaining three
Winter elements.” Id. (citation modified). The Ninth Circuit employs a sliding scale
approach in which “serious questions going to the merits and a hardship balance that tips
sharply toward the [movant] can support issuance of an injunction, assuming the other two
elements of the Winter test are also met.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,
1078 (9th Cir. 2013) cert. denied, 134 S. Ct. 2877 (2014) (citation modified).
The standard required by the first Winter element becomes “doubly demanding”
when a movant seeks a mandatory injunction rather than a prohibitory injunction. Id. The
former injunction mandates a party to take action, while the latter restrains a party from
action. See id. When mandatory relief is sought, the movant must meet a heightened burden
by demonstrating that the facts and law “clearly favor” the movant. Id. Neither party briefed
whether Plaintiffs’ injunctive relief is of the prohibitory or mandatory variety. The Court
will assume that the relief sought is prohibitory and declines to apply a heightened standard
to Plaintiffs’ burden of showing a likelihood of success on the merits.
1. Trade Secret Misappropriation
Plaintiffs move for injunctive relief based on two claims for trade secret
misappropriation under the Defend Trade Secrets Act and its state law counterpart Arizona
Uniform Trade Secrets Act. Courts in this district analyze these claims together because
the elements are identical. See ReBath LLC v. HD Sols. LLC, No. CV-19-04873-PHX-JJT,
2020 U.S. Dist. LEXIS 223194, *2–3 (D. Ariz. Sep. 18, 2020). To establish a claim for
trade secret misappropriation, a plaintiff must show: “(1) that the plaintiff possessed a trade
secret[;] (2) that the defendant misappropriated the trade secret; and (3) that the
misappropriation caused or threatened damage to the plaintiff.” InteliClear, LLC v. ETC
Glob. Holdings, Inc., 978 F.3d 653, 657–58 (9th Cir. 2020) (citing 18 U.S.C. § 1839(5)).
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a. Trade Secrets
Trade secrets are defined broadly and include three components: “(1) information,
(2) that is valuable because it is unknown to others, and (3) that the owner has attempted
to keep secret.” Id. at 657; see also 8 U.S.C. § 1839(3); A.R.S. § 44-401(4). Even though
trade secrets are defined broadly, “[t]he plaintiff should describe the subject matter of the
trade secret with sufficient particularity to separate it from matters of general knowledge
in the trade or of special knowledge of those persons . . . skilled in the trade.” Inteliclear,
978 F.3d at 658 (citation and internal quotation marks omitted).
At the evidentiary hearing, Mr. Brosa confirmed that he copied files from his work
laptop to the External Drive. (Hr’g Tr. at 84:3–89:2.) He testified that he would not be
surprised if ninety percent of the files contained on the External Drive were business-
related. (Id. at 64:23–65:3.) Of those files, Plaintiffs tendered three. The first is an executed
project proposal that contains the client’s contact information, the scope of the work and
services, and project pricing. (Susi Decl. ¶ 36; Doc. 57-1.) The second is spreadsheet that
includes 2024 year-to-date project data for active projects. (Doc. 57-2.) The third document
depicted notes from an executive meeting that identified, inter alia, “Must Wins,”
including upcoming program rollouts and projects set to open in 2025. (Doc. 57-3.) The
Court refers to these three documents collectively as the “Business Documents.”
Plaintiffs also submitted two emails that Mr. Brosa forwarded from his work
account to a personal account. The first was forwarded on November 27, 2024 and
contained a RFP he received from a client who was soliciting services for an EVC project.
(Doc. 57-4.) The last email was forwarded on December 2, 2024—Mr. Brosa’s last day of
work with Plaintiffs—and contained the payment history of that same EVC client. (Doc.
57-6.) The Court refers to these two emails collectively as the “EVC Emails.”
Additionally, Mr. Greetham declared that Mr. Brosa accessed Outlook files named
“Client Emails” and “BV Stock Emails” on November 25, 2024 and “BV Stock contacts”
on December 20, 2024, (Greetham Decl. ¶¶ 26, 28.) Mr. Greetham suspects these files
“likely contain a substantial number of BVTA emails, calendar invites, and contacts,” and
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“contact information in relation to BV stock.” (Id. at ¶ 27.) The Court refers to these files
as the “Outlook Files.”
Plaintiffs contend that ProTrack, the three Business Documents, the Outlook Files,
and the EVC Emails are trade secrets. 2 (Reply at 4–6; Doc. 54, Supp. Susi Decl., ¶¶ 5–10).
There is sufficient evidence in the record to show that ProTrack, the Business Documents
and EVC Emails are valuable by virtue of not being known to others. According to
Mr. McNeice, Plaintiffs’ Vice President of Digital Product Innovation, ProTrack was
transformed from a base software into its current form through the work of Mr. Tankersley
and others over the course of years. (McNeice Decl. ¶ 19.) Mr. McNeice also declared that
ProTrack is “often a determinative factor for customers in deciding which proposal to an
RFP is successful,” demonstrating just how valuable the software is to Plaintiffs’ business.
(McNeice Decl. ¶ 17.) As for the Business Documents, the content of those documents
clearly reveals Plaintiffs’ weaknesses, strategies, and current streams of revenue, and
would allow a competing company to capitalize off Plaintiffs’ shortcomings or divert
potential business if known. Lastly, the EVC Emails contain a RFP from a client and related
payment history. This information exposes how lucrative this account is for Plaintiffs and
could inspire a competitor to seek out that client’s business knowing what kinds of services
it seeks and for what price.
There is also sufficient evidence to show that ProTrack, the Business Documents
and EVC Emails were subject to Plaintiffs’ efforts to maintain their secrecy. Ms. Joanne
Susi, Plaintiffs’ current Vice President of Business Development, testified that the
Business Documents and EVC Emails are not accessible outside of Plaintiffs’ business
(Supp. Susi Decl. ¶ 10) and are protected by confidentiality agreements, internal code of
ethics, and password protection. (Susi Decl. ¶¶ 19–21.) ProTrack is also protected by
confidentiality covenants. (Doc. 17-8 at 2; Doc. 17-9 at 2.) There are additional markers of
2 Separately, Plaintiffs submitted five other emails that Mr. Brosa forwarded to himself on
November 25, 2024. (Docs. 57-9–57-13.) Each email contained Plaintiffs’ marketing
materials and related content. Plaintiffs submitted these emails to support their claim that
Mr. Brosa violated the non-solicitation covenant (Reply at 9), which has since been
dismissed. See footnote 1, supra at 3. Plaintiffs do not identify the Outreach Emails as a
trade secret (see Reply at 4–6), so the Court will not analyze them as such.
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confidentiality made apparent through other testimony and the documents themselves. One
of the Business Documents was an executed response to an RFP that, according to Mr.
Brosa himself, is typically treated as confidential and would have been accompanied by a
non-disclosure agreement. (Hr’g Tr. at 66:25–67:11.) One of the EVC Emails evinced clear
instructions that it was to be treated as confidential. (See Doc. 57-4.) Other Business
Documents were clearly internal files prepared for “executive meetings” that identified
future “must-win” accounts, set out future sales goals and areas of improvement (Doc. 57-
3), and contained active client names and related project and financial information (Doc.
57-2). The revealing nature of the information contained in these documents, combined
with the measures undertaken by Plaintiffs to maintain their secrecy, sufficiently
demonstrates that they are trade secrets.
The Outlook Files, however, are far more abstract. Based solely on the file names,
Mr. Greetham speculates that the Outlook Files contain a “substantial number of BVTA
emails, calendar invites, and contacts,” and potentially “contact information in relation to
BV stock.” (Greetham Decl. ¶¶ 26–28). Mr. Greetham’s speculation does not assist the
Court in determining whether the content of these files derive their value by virtue of being
unknown to others or that Plaintiffs attempted to keep these files secret. For instance, a
calendar invite, email, or contact could be sent to or from anyone in the world with an email
account. Without more evidence to place the Outlook Files in context, they cannot be
deemed a trade secret.
b. Misappropriation
Misappropriation can occur: (1) by acquisition through improper means; or (2) by
disclosure or use of a trade secret with knowledge or with reason to know that it was
acquired through improper means. 18 U.S.C § 1839(5); A.R.S. § 44-401(2). Improper
means includes “theft, bribery, misrepresentation, breach or inducement of a breach of a
duty to maintain secrecy, or espionage.” 18 U.S.C § 1839(6); A.R.S § 44-401(2). While
improper means include several kinds of conduct, “[m]ere possession of trade secrets by a
departing employee is not sufficient to establish misappropriation or show injury.” Cutera,
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Inc. v. Lutronic Aesthetics, Inc., 444 F. Supp. 3d 1198, 1207 (E.D. Cal. 2020) (analyzing
misappropriation under the California state law counterpart of the DTSA). Rather, the
purported misappropriation must extend beyond mere possession. See id. at 1207–08
(allegations that the defendant deployed a sales method claimed to be a trade secret were
sufficient to plead misappropriation); see also Early Warning Servs. LLC, 2025 LEXIS
89594, at *12–13 (allegations that the defendant published previously unknown
information without the plaintiff’s consent were sufficient to plead misappropriation); Fire
Sec. Elecs. & Commc’ns Inc. v. Nye, No. CV-23-02730-PHX-DLR, 2024 U.S. Dist. LEXIS
25575, at *10–11 (D. Ariz. Feb. 13, 2024) (evidence of a former employee coordinating
with a current employee to copy files supported misappropriation).
Plaintiffs argue that Mr. Brosa misappropriated Plaintiffs’ trade secrets “by making
copies of them on his Elements USB Device and forwarding them to his personal Gmail
account at or around the time of his departure from BVTA.” (Mot. at 11.) Mr. Brosa does
not contest that he did, in fact, acquire these documents and emails without Plaintiffs’
permission. (Hr’g Tr. at 81:13–82:9.)
Mr. Brosa’s motivations for his conduct vary. In a letter sent in July 2025, Apex’s
attorney explained that Mr. Brosa’s “intent of keeping these was not nefarious, but an
attempt to be helpful after he left . . . he downloaded a number of files so that if/when
someone reached out, he had basic information to remind himself about the client or the
project . . .” (Doc. 17-7 at 6.) In his declaration, Mr. Brosa stated that he copied files to the
External Drive “to have access to forms [he] had developed, and to have access to personal
information unrelated to [his] work for BVTA.” (Doc. 44-3 ¶ 6.) At the hearing, Mr. Brosa
testified that he copied files to the External Drive because he feared that Apex would
“crash” and “wasn’t a for sure bet,” and these files would be something he would need if
he returned to work for Plaintiffs. (Hr’g Tr. at 86:6–12.) He acknowledged that his conduct
was ultimately done with “poor judgment.” (Id.) As for sending the EVC Emails, Mr. Brosa
testified that he sent them to himself “[o]ut of being a pure nerd.” (Id. at 107:8–11.) He
“was wildly excited to see how [the client] is doing this” and “was curious about it.” (Id.)
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And, in the event Plaintiffs asked Mr. Brosa about the project later, he “could go back and
look at the RFP.” (Id.)
No matter which, or if any, of these theories constitute Mr. Brosa’s true motivations,
the evidence plainly shows that he did not merely possess the information passively.
Rather, he actively copied and stored the Business Documents and sent himself the EVC
Emails without permission. This is precisely the kind of conduct that falls within the
inscription of trade secret law and amounts to misappropriation.
As to Mr. Tankersley, Plaintiffs argue he misappropriated ProTrack simply by
having knowledge of that software and working in a “nearly identical role” with Apex that
uses the same QuickBase platform. (Mot. at 12.) Defendants argue, and the Court agrees,
that Plaintiffs’ theory primarily relies upon the inevitable disclosure doctrine. “The
rationale underlying the inevitable disclosure doctrine is that a plaintiff may establish
threatened misappropriation simply by the fact that the defendant’s new employment will
inevitably lead that defendant to rely on plaintiff’s trade secrets . . . it constitutes a narrow
avenue for courts to provide injunctive relief for threatened misappropriation of trade
secrets.” Kinship Partners, Inc. v. Embark Veterinary, Inc., No. 3:21-cv-01631-HZ, 2022
U.S. Dist. LEXIS 2804, at *17–19 (D. Or. Jan. 3, 2022) (citation modified). This doctrine
is not recognized in the Ninth Circuit or the State of Arizona and the Court declines to
apply it here. Agency Solutions.Com, LLC v. TriZetto Grp., Inc., 819 F. Supp. 2d 1001,
1027 (E.D. Cal. 2011) (“[A] court cannot presume that such disclosure is inevitable based
only on the fact of a business association between the defendant and the plaintiff’s rivals.”);
Liss v. Exel Transp. Servs., No. CIV-04-2001-PHX-SMM, 2007 U.S. Dist. LEXIS 20555,
at *27 (D. Ariz. Mar. 20, 2007); Kinship Partners, Inc., 2022 U.S. Dist. LEXIS 2804, at
*19.
Even if an inference of disclosure or use was permissible—which it is not—Apex
and Mr. Tankersley testified that he does not work with Apexview “on a day-to-day-basis”
in his current role. (Cardona Decl. ¶ 22; Tankersley Decl. ¶¶ 13–14.) Plaintiffs’ witness
Mr. McNeice did not dispute this, and he confirmed that any suspicions he has regarding
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Mr. Tankersley’s use or disclosure of ProTrack are pure speculation. (Hr’g Tr. at 48:8–
49:5.)
In the absence of evidence, Plaintiffs instead parse Mr. Tankersley’s declaration—
that he “currently” does not work with Apexview “day-to-day”—to mean that he works on
Apexview infrequently or did so in the past. (Reply at 8 n.5.) But Mr. Tankersley avers that
he has “not used any information [he] learned during [his] time with BVTA or BVNA to
make any changes, revisions, additions or deletions to Apexview. It operates in the same
manner in which it operated when [he] joined Apex.” (Tankersley Decl. ¶ 14; see also
Cardona Decl. ¶¶ 20–23.) This dispels Plaintiffs’ theory that Mr. Tankersley “copied” or
led others to copy ProTrack, and Plaintiffs show no evidence to suggest otherwise.
Plaintiffs’ evidence shows that Mr. Tankersley possessed knowledge of ProTrack but
nothing more.
Finally, Plaintiffs argue that Apex misappropriated trade secrets by hiring Mr. Brosa
and Mr. Tankersley. (Mot. at 11.) During oral argument, Plaintiffs contend that Apex
poached Mr. Brosa and Mr. Tankersley with the goal of becoming a greater competitor of
Plaintiffs. (Hr’g Tr. at 67:25–71:10.) This may be true, but “merely recruiting another
company’s employees does not meet the knowledge requirement for trade secret
misappropriation,” Bombardier Inc. v. Mitsubishi Aircraft Corp., 383 F. Supp. 3d 1169,
1182 (D. Wash. 2019), and the Court declines to make an inference that Apex will
inevitably rely on purported trade secrets purely on account of employing Plaintiffs’ former
staff. See Agency Solutions.Com, LLC, 819 F. Supp. 2d at 1027 (rejecting the inevitable
disclosure doctrine). Furthermore, the evidence in the record demonstrates that Apex had
no knowledge that Mr. Brosa possessed the Business Documents or EVC Emails until
Apex received Plaintiffs’ letter on July 7, 2025. (Cardona Decl. ¶ 11.) According to
Mr. Cardona, Mr. Brosa mailed the External Drive directly to Apex’s legal counsel; Apex
never had possession or access to it. (Id. ¶¶ 12–14.)
For the first time in reply, Plaintiffs advance that Apex is vicariously liable for
Mr. Brosa’s misappropriation under a theory of respondeat superior. (Reply at 7–8.) “A
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business entity may be liable for intentional torts committed by an agent or employee, such
as misappropriation of trade secrets, even if the business has not authorized the activity, so
long as the activity falls within the scope of the agency or employment.” Gordon Grado
M.D., Inc. v. Phx. Cancer & Blood Disorder Treatment Inst. PLLC, 603 F. Supp. 3d 799,
811 (D. Ariz. 2022). “Whether an employee’s tort is within the scope of employment is
generally a question of fact. It is a question of law, however, if the undisputed facts indicate
that the conduct was clearly outside the scope of employment.” Engler v. Gulf Interstate
Eng’g, Inc., 258 P.3d 304, 309–10 (Ariz. Ct. App. 2011), aff’d, 280 P.3d 599 (Ariz. 2012).
Arizona courts follow the Restatement (Third) of the Law of Agency
(“Restatement”) for evaluating whether an employee acts within the scope of his
employment. Id. at 309. According to § 7.07 of the Restatement, “[a]n employee acts within
the scope of employment when performing work assigned by the employer or engaging in
a course of conduct subject to the employer’s control.” See also comment (f) to
Restatement, § 7.07; Restatement § 1.01(f)(1) (“An essential element of agency is the
principal’s right to control the agent’s actions.”). “A relationship of agency is not present
unless the person on whose behalf action is taken has the right to control the actor,” which
is a “narrower and more sharply defined concept than domination or influence more
generally.” Restatement § 1.01(f)(1). While “[c]onduct is considered within the scope of
employment when it is performed, at least in part, to benefit the employer,” Gordon Grado
M.D., Inc., 603 F. Supp. 3d at 811–12, it is not within the scope of employment when the
act “occurs within an independent course of conduct not intended by the employee to serve
any purpose of the employer,” Restatement § 7.07.
Here, Plaintiffs contend that Apex is liable “because part of Brosa’s theft occurred
during the scope of Brosa’s employment while he was employed as Apex’s Director of
Business Development.” (Reply at 7.) Based on the evidence in the record,3 there are two
3 Plaintiffs make several new allegations in their First Amended Complaint that Mr. Brosa
accessed other documents on the External Drive while he was employed by Apex. (See
Doc. 74, FAC, ¶¶ 97–104.) But a preliminary injunction “may only be awarded upon a
clear showing of evidence that supports each relevant preliminary injunction factor. This
clear showing requires factual support beyond the allegations of the complaint . . .”
Medcursor Inc. v. Shenzen KLM Internet Trading Co., 543 F. Supp. 3d 866, 870 (C.D. Cal.
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instances of misappropriation that occurred while Mr. Brosa was an Apex employee: (1)
he sent one of the EVC Emails containing the payment history to himself on December 2,
2024 (Susi Decl. ¶¶ 42–43; see Doc. 57-6); and (2) he accessed one of the Outlook Files
titled “D:\Outlook EMAILS\BV Stock contacts.pst” on December 20, 2024 (Greetham
Decl. ¶ 28). As to the first occurrence, Mr. Brosa testified—and Plaintiffs have not
disputed—that Apex is not in the business of building or managing EVC projects. (Hr’g
Tr. at 106:12–107:11.) Plaintiffs fail to show how this act, even if it occurred while
Mr. Brosa was an Apex employee, benefits Apex or was done at Apex’s instruction such
that it occurred within the scope of employment. See Restatement § 7.07; Gordon Grado
M.D., Inc., 603 F. Supp. at 811–12. As to the second occurrence, the Court already
determined that the Outlook Files do not constitute trade secrets, so there is no
misappropriation for which Apex could be vicariously liable. Plaintiffs have failed to put
forth sufficient evidence that shows a likelihood of success on their claim that Apex
misappropriated their trade secrets.
c. Actual or Threatened Harm
The misappropriation, if established, must also cause or threaten to cause harm to
the holder of the trade secret. “Damages are an essential element of a misappropriation of
trade secret claim, and a claim fails as a matter of law without a cognizable theory of
proximately caused damages.” W.L. Gore & Assocs. v. GI Dynamics, Inc., 872 F. Supp. 2d
883, 888 (D. Ariz. 2012) (citation modified).
While Plaintiffs demonstrate a likelihood of success on their claim that Mr. Brosa
misappropriated the Business Documents and EVC Emails, evidence of harm or threatened
harm is severely lacking. On this point, the parties sharply contest whether Apex is a true
competitor of Plaintiffs. During her cross-examination, Ms. Susi discussed two broad
categories of services: general contracting services and stand-alone project management
services. (Hr’g Tr. at 31:3–33:4.) The difference between these services is “an added layer
2021); see also S.F. Veteran Police Officers Ass’n v. City & Cty. of S.F., 18 F. Supp. 3d
997, 1006 (N.D. Cal. 2014) (“[A] motion for a preliminary injunction must be supported
by evidence that goes beyond the unverified allegations of the pleadings . . .”).
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of management between the owner and the general contractor.” (Hr’g Tr. at 32:19–22.)
Plaintiffs provide that added layer of management as a “third-party independent provider”
(id. at 32:8–18), whereas Apex primarily acts as a general contractor that manages and
performs the work itself (id. at 33:2–4). The distinction is insignificant for the purposes of
this analysis. At the core of both parties’ services is project management, and that is one
of the several commodities both parties sell to multi-site customers. In this sense, Apex
competes with Plaintiffs.
Though the two companies compete to provide project management services, the
harm of Mr. Brosa’s misappropriation is highly speculative. Plaintiffs offer no evidence
that the misappropriation negatively affected them, such as a downward trend in customer
generation, loss of revenue, or loss of market share. Even where Plaintiffs offer testimony
that Apex submitted responses to the same three RFPs as them, there is no suggestion that
they lost those business opportunities or suffered other harm as a result. Rather, Plaintiffs’
theory of harm arises from the threat of it. But the evidence demonstrates that the Business
Documents existed nowhere else but on the External Drive that Mr. Brosa has not accessed
since July 2025.4 To the extent that the EVC Emails are still in Mr. Brosa’s possession,
they pertain to an industry that Apex takes no part in. (Id. at 106:12–107:11.) Having failed
to establish harm or threat of harm, Plaintiffs fail to demonstrate a likelihood that they will
succeed on the merits of their trade secret misappropriation claim against Mr. Brosa.
2. Breach of Contract
Plaintiffs argue that Mr. Brosa and Mr. Tankersley breached the confidentiality
covenants contained in their respective Agreements. To establish a breach of contract
claim, a plaintiff must show (1) a contract, (2) breach, and (3) damages. Thunderbird
Metallurgical, Inc. v. Ariz. Testing Lab., 423 P.2d 124, 126 (Ariz. 1967). Plaintiffs
introduce the Brosa and Tankersley Agreements into evidence and sufficiently establish
the first element. (See Docs. 17-8, 17-9.)
4 The Court again observes that Plaintiffs make new allegations in their First Amended
Complaint that Mr. Brosa copied other documents to a device while he was still in
possession of it (see, e.g., FAC ¶¶ 97–104), but unverified allegations are insufficient to
justify the extraordinary award of injunctive relief. See footnote 3, supra at 13.
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a. Breach
While the parties originally briefed Plaintiffs’ breach of contract claims related to
the non-solicitation, non-recruitment, and non-compete covenants contained in the Brosa
Agreement, Plaintiffs conceded at the hearing that they no longer seek injunctive relief as
to those covenants. (Hr’g Tr. at 18:4–6, 130:11–132:7.) Accordingly, the Court will only
address the likelihood of success on the merits of Plaintiffs’ claims relating to the
confidentiality covenants in both Agreements.
The confidentiality covenants prohibit Mr. Brosa and Mr. Tankersley from using or
disclosing Plaintiffs’ confidential information and mandate them to return it and other
company property to Plaintiffs upon termination. (Doc. 17-8 at 2–3; Doc. 17-9 at 2–3.)
Based on the content of the Business Documents and EVC Emails, they likely fall within
the Brosa Agreement’s definition of confidential information that includes “all documents
or information, in whatever form or medium, regarding the business or affairs of the
Company.” (Doc. 17-8 at 2.) Mr. Brosa testified that he understood that the confidentiality
covenant prohibited him from taking confidential information and from retaining
Plaintiffs’ property, such as the work laptop, but he retained the information and property
anyway after his termination date. (Hr’g Tr. at 62:1–64:4.) His retention of the work laptop,
External Drive that contained at least some confidential information, and the EVC Emails
without Plaintiffs’ permission is a clear-cut breach of the Brosa Agreement.
Plaintiffs’ other theory of breach—that Mr. Brosa used or disclosed confidential
information (Mot. at 13; Reply at 7–8)—is not so clear-cut. Plaintiffs cite one case for the
proposition that they need only show that Mr. Brosa “accessed and removed confidential
materials around the time of [his] departure” to demonstrate that he used or disclosed
information in breach of the confidentiality covenant. (See Mot. at 13.) In Colwell
Consulting LLC v. Papageorge, the former employee entered a confidentiality agreement
that prohibited him from using the employer’s “proprietary information” to his benefit. No.
2:24-cv-01824-JCG, 2024 LX 208401, at *18–19 (D. Ariz. Aug. 14, 2024). The employee
downloaded numerous documents shortly before he terminated his employment. Id. at *8.
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This case is distinguishable upon one critical fact: the employee started his own company
in the same industry immediately after his termination. It was from this very fact that the
court could “discern no other logical reason for these business files to have been accessed
and transferred . . . other than for [his] use in a new competing business.” Id. at *21.
Here, Mr. Brosa left his employment to join a company that was already established
in its industry. Apex avers that it had “its own business strategies, processes, marketing
plans and way of doing business that it has developed since it began doing full-scale general
contractor rollouts nearly 40 years ago.” (Cardona Decl. ¶ 16.) Mr. Brosa also presents
several explanations for why he copied or forwarded himself confidential information,
none of which are completely devoid of reason or as “fantastical” as Plaintiffs urge.5 Based
on the evidence in the record, it cannot be said that the only logical inference that can be
made from Mr. Brosa’s acquisition of Plaintiffs’ information is to use or disclose it.
Plaintiffs otherwise advance no other evidence aside from speculation that Mr. Brosa used
or disclosed information protected by the confidentiality covenant.
As for Mr. Tankersley’s breach, Plaintiffs assert that he “is believed to have violated
his confidentiality covenant by duplicating BVTA’s confidential computer information for
Apex.” (Mot. at 13.) As discussed supra, Plaintiffs offer nothing more than speculation
that Mr. Tankersley has “duplicated” anything for Apex. In this State and Circuit, the
inference that Mr. Tankersley will inevitably use his knowledge based solely on him
working for Apex is impermissible. Plaintiffs fail to establish a likelihood of success on
the merits of breach as to Mr. Tankersley.
b. Damages
Now, having established the scope of breach shown by Plaintiffs, the Court turns to
whether the damages element has been satisfied. Neither party addressed this element at
all in their briefing or oral argument. The Court is weary to do so further. Rather, it merely
5 The Court agrees with Plaintiffs that Mr. Brosa’s explanations varied over time and that
those explanations may ultimately be self-serving. However, the Court observes that his
explanations—helping the incoming team after the transition, fearing his jump in
employment would fall through, wanting to secure his personal files—can all be true no
matter how misguided they may have been.
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observes the plain language of the Brosa Agreement that asserts “the unauthorized use or
disclosure of [confidential information] will cause irreparable harm, substantial injury, and
loss of profits and goodwill” and “that a breach of Employee’s obligations hereunder will
result in irreparable and continuing damage to the Company, for which money damages
may not provide adequate relief.” (Doc. 17-8 at 2, 6.) But these clauses do not relieve
Plaintiffs from their burden of setting forth evidence of damages, which is an essential
element of their breach of contract claim. See Graham v. Asbury, 540 P.2d 656, 657 (Ariz.
1975); see also Thomas v. Montelucia Villas, Ltd. Liab. Co., 302 P.3d 617, 621, 621 (Ariz.
2013) (holding that a party must prove it sustained actual damages from breach of a
contract that contained a liquidated damage provision). Having presented no such evidence,
Plaintiffs fail to show a likelihood of success on their claim that Mr. Brosa’s breach of the
confidentiality covenant caused them damages.
C. Irreparable Harm
Plaintiffs repeatedly argue that, at a minimum, they raise serious questions regarding
the merits of their misappropriation and contract breach claims. (Mot. at 12, 15.) If true,
then the Court would apply the Ninth Circuit’s sliding scale approach in which a strong
showing of hardship to the movant may rebalance a weak showing of the merits, but this
assumes that “the other two elements of the Winter test are also met.” Jewell, 747 F.3d at
1078 (citation modified). The Court now addresses the second Winter element to resolve
any doubt that a preliminary injunction is not warranted here.
The Supreme Court has repeatedly recognized the “basic doctrine of equity
jurisprudence that courts of equity should not act . . . when the moving party has an
adequate remedy at law and will not suffer irreparable injury if denied equitable relief.”
Younger v. Harris, 401 U.S. 37, 43–44 (1971). In other words, irreparable harm is one that
cannot be remedied by monetary damages. Cutera, 444 F. Supp. 3d at 1208.
Even where the injury is irreparable, the movant “must still rely on evidence to
establish this type of irreparable harm, not mere speculation of such harm.” Luminate Home
Loans, Inc. v. Better Mortg. Co., No. 24-cv-02251-BAS-MSB, 2025 U.S. Dist. LEXIS
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22733, *13-14, at *13-14 (S.D. Cal. Feb. 7, 2025). “[C]onclusory statements and
theoretical arguments are insufficient to meet the standard.” Medcursor Inc., 543 F. Supp.
3d at 877. While “[e]vidence of threatened loss of prospective customers or goodwill
certainly supports a finding of the possibility of irreparable harm,” Stuhlbarg Int’l Sales
Co. v. John D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001), evidence of an economic
injury alone is insufficient. Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental,
Inc., 944 F.2d 597, 603 (9th Cir. 1991).
Plaintiffs assert three irreparable harms: (1) loss of confidential and trade secret
information; (2) loss of customer goodwill; and (3) loss of competitive advantages. (Mot.
at 15.) The case law of this Circuit is clear that these harms may be irreparable in some
circumstances. See id.; Fujikura Composite Am., Inc. v. Dee, No. 24-CV-782 JLS (MSB),
2024 U.S. Dist. LEXIS 115959, at *15 (S.D. Cal. June 28, 2024) (collecting cases).
That harm, though, must be forthcoming and likely, not just possible, absent
injunctive relief. Garcia, 786 F.3d at 740; All. For The Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). Plaintiffs argue that irreparable harm is likely because
Defendants misappropriated the trade secret information and Mr. Brosa and Mr. Tankersley
each agreed that a breach of their agreements would result in irreparable harm to Plaintiffs.
(Mot. at 15; see also Reply at 10.) Not so.
The Court has already detailed the ways in which Plaintiffs failed to show that
Mr. Tankersley or Apex misappropriated or threatened to misappropriate ProTrack. And
while there is evidence showing that Mr. Brosa acquired the Business Documents, there is
no evidence that Mr. Brosa still possesses them after returning the External Drive such that
he could use or disclose them. See Sitrus Tech. Corp. v. Quynh Le, 600 F. Supp. 3d 1106,
1111 (C.D. Cal. 2022) (declining to find irreparable harm where, based on the forensic
evidence, “neither Plaintiff nor the Court can determine whether Defendant did transfer or
copy files onto other devices he is still withholding”). To the extent Mr. Brosa retains
access to the External Emails—which Plaintiffs did not establish but Defendants did not
contest (see Hr’g Tr. at 127:24–129:16)—the evidence demonstrates that Apex is
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“strategically not” in the EVC industry (id. at 107:5–6). This suggests that neither Apex
nor Mr. Brosa could use that information to harm Plaintiffs’ competitive advantage or
goodwill built in that industry and among those customers.
Based on the record, the Court cannot find that irreparable harm is likely to occur
based on Defendants’ misappropriation of trade secrets. The case law cited by Plaintiffs
counsels no differently. In Nye, a company’s employee downloaded twenty-two company
reports that included unique client and project data. 2024 U.S. Dist. LEXIS 25575, at *2–
3. Once he began working for a competing business, the employee’s access to the other
reports was revoked. Id. at *3–5. The company lost three clients after the employee’s
departure but otherwise grew in both its customer base and revenue. Id. The court found
irreparable harm existed due to the immediate risk that the employee would continue to use
or disclose the twenty-two reports he downloaded and still retained. Id. at *19. But there
was no immediate risk that the company would suffer loss of goodwill and reputation
“given [the company’s] healthy financial state and breadth of customers.” Id. at *19–20.
Here, Plaintiffs present no evidence that Mr. Brosa continues to possess the Business
Documents, or that the EVC Emails that may be in his possession risk Plaintiffs’ goodwill
or reputation in the EVC industry.
In Tribal Behavioral Health LLC v. Reeves, the court determined that an emerging
company was likely to be irreparably harmed when its consultant refused to turn over the
company’s client list and a confidential report that the company paid for to secure a specific
business deal. No. CV-22-00926-PHX-SPL, 2022 U.S. Dist. LEXIS 112186, at *32–35,
37–38 (D. Ariz. June 24, 2022). The company was able to show that, as a new entrant in a
highly niche industry without a book of business, the consultant’s ongoing possession of
those documents and continued work in that industry threatened the competitive advantage
it obtained by compiling the customer list and paying for the report. Id. at *38. Here,
Plaintiffs are neither emerging nor niche. As Plaintiffs themselves pronounce, they are a
long-time “leader” in providing numerous technical services to “large, national or
multinational companies” (Susi Decl. ¶¶ 8–10), so the Court is not convinced that the EVC
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Emails, assuming they are in Mr. Brosa’s possession, are the proverbial key to Plaintiffs’
success as the confidential report was to the emerging company in Reeves to support a
claim for loss of competitive advantage.
In Papageorge, a company demonstrated that its clients were requesting that their
files be transferred to its former employee who absconded with business information and
started a new competing company. 2024 U.S. Dist. LEXIS 144503 at *26. The court
determined that evidence of actual loss of clients was sufficient to demonstrate a threatened
loss of goodwill with those clients and irreparably harmed the company. Id. Here, Plaintiffs
set forth no evidence of client or revenue loss to support a claim for loss of goodwill.
These cases demonstrate that, while the acts underlying a misappropriation may
ultimately be relevant to an analysis of irreparable harm, Plaintiffs still must “demonstrate
immediate threatened injury as a prerequisite to preliminary injunctive relief.” Caribbean
Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
The fact that Mr. Brosa and Tankersley agreed that their breach of the Agreements
would cause irreparable injury does not change this outcome. It is well-established that “[a]
preliminary injunction is an extraordinary remedy never awarded as of right,” Winter, 555
U.S. at 24. In light of this precedent, the Court is not convinced that contracting parties can
obviate an independent judicial determination of irreparable harm. Courts in other circuits
have reached the same conclusion. See, e.g., Flex-Plan Servs. v. Evolution1, Inc., No. C13-
1986-JCC, 2013 U.S. Dist. LEXIS 201868, at *22 (W.D. Wash. Dec. 31, 2013) (noting
similar a contractual provision and making an independent determination that irreparable
harm will occur); Pliteq, Inc. v. Mostafa, 775 F. Supp. 3d 1231, 1261 (S.D. Fla. 2025)
(holding that a similar contractual provision “does not bind the Court’s analysis as to
whether Plaintiffs have satisfied their burden of showing irreparable harm”); Hodnett v.
Medalist Partners Opportunity Master Fund II-A, L.P., No. 1:21-cv-00038-MKV, 2021
LX 43518, at *20 (S.D.N.Y. Feb. 12, 2021) (collecting Second Circuit cases holding that
such contractual provisions are not dispositive in proving irreparable harm). Plaintiffs offer
no authority to persuade the Court otherwise.
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While the Court may look to the Agreements to support a finding of irreparable
harm, that contractual language does not supplant the lack of evidence in the record that
irreparable harm will ensue absent injunctive relief. At most, Plaintiffs speculate that they
will be injured. But “[s]peculative injury does not constitute irreparable injury sufficient to
warrant granting a preliminary injunction.” Caribbean Marine Servs. Co. v. Baldrige, 844
F.2d 668, 674 (9th Cir. 1988). As a result, Plaintiffs do not satisfy the second Winter
element.
IV. CONCLUSION
Injunctive relief is an extraordinary remedy not granted lightly. Starbucks Corp. v.
McKinney, 602 U.S. 339, 346 (2024). Here, Plaintiffs fail to meet the first two Winter
elements and are not entitled to injunctive relief.
IT IS ORDERED denying Plaintiffs’ Motion for Preliminary Injunction (Doc. 17).
Dated this 18th day of February, 2026.
Honorable John J. Tuchi
United States District Judge
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