Woodbolt Distribution LLC et al v. Thomas et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WOODBOLT HOLDINGS, LLC, et al.,
Plaintiffs,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 4:26-CV-01669
KYLE THOMAS, et al.,
Defendants.
MEMORANDUM & ORDER
Before the Court is Plaintiff’s Motion for a Temporary Restraining Order and Preliminary
Injunction (ECF No. 22) (“Preliminary Injunction Motion”). For the reasons that follow, the Court
DENIES the Motion and ENTERS the stipulations proposed by the individual defendants.
I. 	BACKGROUND
a. 	Factual Background
While the parties disagree on much, the following facts are undisputed except where
otherwise noted.
Plaintiffs in this case are Woodbolt Holdings, LLC and Woodbolt Distribution, LLC, doing
business 	as 	Nutrabolt 	(collectively, 	“Nutrabolt” 	or 	“Plaintiff”). 	Nutrabolt 	is 	a 	leading
manufacturer, developer, distributor, and marketer of dietary and sports nutrition supplements,
protein powders, protein drinks, energy drinks, and so-called functional beverages, which “refers
to the category of drinks that provide health benefits or performance enhancements beyond basic
nutrition and hydration.” ECF No. 1 (“Complaint”) at ¶¶ 23, 33. Most relevant here is Nutrabolt’s
Bloom product line, which consists of Bloom Sparkling Energy, an energy drink that “promotes
United States District Court
Southern District of Texas
ENTERED
May 27, 2026
Nathan Ochsner, Clerk
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mental focus without the crash, with ingredients like natural caffeine derived from green coffee
bean and the amino acid l-theanine” and Bloom Pop, “a ‘better-for-you’ soda offering a healthier
alternative to traditional soft drinks.” Id. at ¶ 35.
Defendants 	are 	Kyle 	Thomas, 	T.J. 	Moore, 	and 	Madison 	Mathews 	(“the 	Former
Employees”), and DrinkRecess, Inc. (“Recess”). Thomas, Moore, and Mathews are former
employees of Nutrabolt who now work at Recess. Recess is a beverage company that develops,
manufactures, and sells non-alcoholic relaxation beverages, including sparkling waters infused
with CBD1 and magnesium and mocktails. Witte Decl. at ¶¶ 9-10.
Thomas worked at Nutrabolt from May 2021 through October 17, 2025. ECF No. 22 at 6.
He served as Nutrabolt’s Global Chief Commercial Officer (CCO). Id. Thomas has worked in the
beverage industry for over twenty-five years, including at Coca-Cola, where he helped scale
multiple beverage lines including Topo Chico, Honest Tea, Zico and Huberts. Thomas Decl. at ¶¶
3-4. Moore and Mathews worked at Nutrabolt from June 2019 through November 3, 2025 and
May 2018 through November 5, 2025, respectively. Brown Decl. at ¶¶ 16; 25. Moore served as
Vice President of Strategic Insights and Mathews served as Vice President of Commercial
Operations. At the time of Thomas’ departure, Moore and Mathews were supervised by Thomas.
Cantelli Decl. at ¶ 10.
All three Former Employees signed two sets of agreements containing restrictive
covenants: 	(1) 	the 	Non-Disclosure, 	Non-Competition, 	and 	Non-Solicitation 	Agreements
(“NDAs”) and (2) the Incentive Unit Grant Agreements (“Grant Agreements”). See Brown Decl.,
Exs. 1, 9, 15 (hereinafter “NDAs”); Exs. 3-7, 11-13, 17-18 (hereinafter “Grant Agreements”).
1 CBD, short for cannabidiol, is a non-psychoactive component of the cannabis and hemp plants
with relaxation properties. Witte Decl. ¶ 7.
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These agreements contained prohibitions on certain types of competitive employment and
solicitation of Nutrabolt employees and customers for a period of twelve months as well as
prohibitions on disclosure or retention of confidential Nutrabolt information.
On September 16, 2025, Thomas notified Nutrabolt CEO Doss Cunningham that he had
accepted a position as co-CEO of Recess and provided his two-weeks’ notice. Thomas Decl. at ¶
14. According to Thomas, Nutrabolt initially congratulated him on this opportunity and raised no
concerns about his work at Recess violating his noncompete agreement. Id. At Cunningham’s
request, Thomas agreed to remain at Nutrabolt through October 17, 2025 in order to assist with
the transition. Id. at ¶ 16. Thomas notified the commercial leadership team, which included Moore
and Mathews, of his departure for Recess in an email dated September 24, 2025. See Thomas
Decl., Ex. A.
Soon thereafter, Moore and Mathews also accepted offers to join Recess. Mathews
accepted an offer from Recess on October 11 and submitted her resignation to Nutrabolt on
October 17. Mathews Decl. at ¶ 12-14. Moore accepted his offer on October 15 and resigned on
October 21. Moore Decl. at ¶ 8-9. According to Mathews and Moore, they saw Thomas as a mentor
and were dissatisfied with his replacement at Nutrabolt, leading them to approach Thomas about
potential roles at Recess. Mathews Decl. at ¶ 11; Moore Decl. at ¶ 8. Nutrabolt’s position is that
Thomas solicited Mathews and Moore, in violation of his contractual obligations, including at a
dinner that took place on October 15, 2025.
In January 2026, Nutrabolt conducted a forensic investigation of the Former Employees’
Nutrabolt email accounts. Through this investigation, Nutrabolt discovered that Thomas had
forwarded fourteen attachments to himself or his wife between September 18, 2025 and October
14, 2025, three of which he sent to his Recess email account. See Green Decl. Exs. 12-26. Nutrabolt
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argues that these documents contain trade secrets and/or confidential information, including
Nutrabolt’s confidential financial information, sales strategies for major retailers, and 2026
beverage assortment and pricing plans. Nutrabolt also discovered that Moore emailed two
allegedly confidential documents to his personal email address before leaving Nutrabolt and that
a presentation sent to Thomas by Mathews while both were still employed at Nutrabolt was
incorporated into a presentation that Thomas later gave to Recess executives. ECF No. 22 at 24.
b. 	Procedural History
Nutrabolt filed this lawsuit on February 27, 2026. It brings claims for violations of the
Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. (DTSA) and the Texas Uniform Trade Secret
Act (TUTSA) (against all Defendants); breach of contract (against the Former Employees); breach
of fiduciary duties (against Thomas and Moore); tortious interference with contractual obligations
(against Recess); and knowing participating in breaches of fiduciary duty (against Recess). See
ECF No. 1 (Complaint). Relevant to the Preliminary Injunction are Nutrabolt’s claims against the
Former Employees for violations of state and federal trade secret law and breach of contract.
On March 18, Nutrabolt filed the instant Motion for a Temporary Restraining Order and
Preliminary Injunction (ECF No. 22) and a Motion for Expedited Discovery and Hearing (ECF
No. 23). Nutrabolt initially requested that all the Former Employees be enjoined from: (1)
employment with Recess “in any capacity that would cause them to compete with Nutrabolt or
assist Recess to compete with Nutrabolt,” (2) using or disclosing any confidential Nutrabolt
information, (3) soliciting Nutrabolt employees and customers, (4) using or disclosing any of
Nutrabolt’s trade secrets; and (5) “[d]estroying, transferring, concealing or otherwise altering any
documents, records, or electronic data” related to Nutrabolt’s confidential information or the
Former Employees contact with Recess. See ECF No. 22-5 (“Proposed Order”).
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The case was reassigned to this Court on March 20. See ECF No. 27 (Notice of
Reassignment). Because Nutrabolt had waited approximately two months from its discovery of the
alleged trade secret violations and approximately five months from its knowledge of the alleged
breaches of the noncompete and non-solicitation agreements before moving for a Temporary
Restraining Order (TRO), the Court was unwilling to move forward ex parte or adopt the ambitious
discovery and briefing schedule proposed by Nutrabolt. Based on all parties’ availability, the Court
scheduled a hearing on the Preliminary Injunction Motion for April 15. The Court held a hearing
on the Motion for Expedited Discovery on March 31. At this hearing, the Court gave Nutrabolt the
options of either narrowing its discovery requests or delaying the April 15 hearing and ordered the
parties to confer regarding the scope and timeline of discovery. See Minute Entry of April 15,
2026. The parties agreed to proceed with the April 15 hearing without additional discovery. See
ECF No. 50 (Stipulation). The Preliminary Injunction Motion became fully briefed on April 14,
2026.2
The Court heard argument on the Motion on April 15. At the hearing, the Court expressed
skepticism that Nutrabolt had shown it was entitled to the extensive preliminary relief it sought,
particularly as to the restrictions on the Former Employees’ employment at Recess. Additionally,
Defendants described the steps already taken by Recess and the Former Employees to remove
Nutrabolt’s confidential information from Defendants’ devices through a process known as
“ringfencing,” which they argued made much of Nutrabolt’s requested relief moot. For its part,
2 The Former Employees and Recess responded separately to the Preliminary Injunction Motion.
Nutrabolt has argued that because the Motion nominally involves the Former Employees only, the
Court should not consider Recess’ response to the Motion or arguments made by counsel for
Recess. But given Recess is a defendant in this lawsuit and given the relief requested by Nutrabolt
would have serious implications for Recess, the Court concludes that Recess has standing to
oppose the Motion.
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Nutrabolt argued that the ringfencing process undertaken by Recess was insufficient. At the close
of the hearing, the Court and took the Motion under advisement and ordered the parties to confer
and attempt to come to an agreement as to at least some of the requested relief. On May 1, the
parties informed the Court that they were unable to agree and submitted their respective proposals
to the Court.
Nutrabolt proposed similar relief to that which it originally requested, but with more
tailored restrictions on the Former Employee’s employment at Recess. Specifically, Nutrabolt
requested that Moore and Mathews be enjoined from any work at Recess “[t]hat would reasonably
be expected to result in the use or disclosure of Plaintiffs’ Confidential Information (as that term
is defined in the [NDAs]) . . . and/or Trade Secrets” and from work “[r]elating to any new Recess
product offerings.” ECF No. 74. It requested that Thomas be more broadly enjoined “from
providing services (as an employee, contractor, advisor, or in any other capacity) to Recess, or any
of its subsidiaries or affiliates or otherwise in violation of his NDA or Incentive Unit Agreement.”
Id. Nutrabolt also proposed additional remedial measures, including sworn affidavits from the
Former Employees and 	a Recess corporate representative affirming that Defendants had
“conducted a diligent search” for confidential Nutrabolt information including searches of “all
personal and work electronic devices, external storage devices, email accounts, cloud storage
accounts, messaging platforms, social media, and physical copies,” and that this information is no
longer within their custody or control. Id.
The Former Employees proposed that the Court enter an order recognizing four stipulations
as binding on the individual defendants and otherwise deny the Preliminary Injunction Motion.
The Former Employees agreed to stipulate as follows:
1. Non-Disclosure & Non-Use: The Individual Defendants agree and stipulate they
will not use or disclose any confidential or proprietary documents, records, or
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electronic data belonging to Nutrabolt, including the documents identified as
allegedly containing confidential and trade secret information in the Declarations
of Gwen Greene (Dkt. 22-1) and Jason Cantelli (Dkt. 22-3) as Exhibits 12-26
(collectively, 	“Nutrabolt 	Confidential 	Information”). 	Nutrabolt 	Confidential
Information shall not include any documents, data, or information that (i) is, or has
become, publicly known through no fault of the Individual Defendants; (ii) is
lawfully acquired by, or known to, the Individual Defendants independent of
Nutrabolt; or (iii) was previously produced, disclosed, and/or provided by Nutrabolt
without an obligation of confidentiality and not by inadvertence or mistake;
2. Kyle Thomas Employment: Individual Defendant Kyle Thomas agrees and
stipulates that, in providing services (as an employee, contractor, advisor, or in any
other capacity) to Recess, he shall not access, disclose, or use any Nutrabolt
Confidential Information;
3. Remedial Measures: Upon identification by Nutrabolt of additional specific
documents or data containing Nutrabolt Confidential Information that Nutrabolt
reasonably believes may remain in any Individual Defendant’s possession, the
Individual Defendants stipulate that they will confer with Nutrabolt in good faith
to attempt to develop a protocol for further remediation efforts; and
4. Preservation of Evidence: No provision herein obviates any obligations to
preserve evidence, as consistent with the Federal Rules of Civil Procedure and all
applicable law.
ECF No. 75 at 3. Given these stipulations and the remedial measures already undertaken
by Recess, Defendants argued that Nutrabolt could not demonstrate the likelihood of irreparable
harm necessary for a preliminary injunction. They further argued that Nutrabolt’s proposed
employment restrictions were overbroad and would effectively result in a prohibition on the
Former Employees’ employment at Recess.
II. 	LEGAL STANDARD
A preliminary injunction is an “extraordinary and drastic remedy.” Holland Am. Ins. Co.
v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). A party seeking a preliminary injunction
“must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4]
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that an injunction is in the public interest.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7,
20 (2008). To issue such relief, a court “must balance the competing claims of injury and must
consider the effect on each party of the granting or withholding of the requested relief.” Id. at 24
(quoting Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542 (1987)). Only when the
movant has “clearly carried the burden of persuasion” should a court grant preliminary injunctive
relief. Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009).
III. 	DISCUSSION
Nutrabolt’s request for a preliminary injunction is based the Former Employees’ alleged
breaches of their noncompete agreements, breaches of their non-solicitation agreements, breaches
of their confidentiality/nondisclosure agreements, and violations of state and federal trade secret
law. While Nutrabolt initially argued that the Former Employees should be enjoined from
employment with Recess on the basis of the noncompete agreements, Nutrabolt argued at the
hearing and in its post-hearing briefing that restrictions on the Former Employees’ employment at
Recess were justified on the basis of its trade secret claims. The Court will therefore address both
potential bases for relief.
Because the Court’s analysis differs with respect to each of Nutrabolt’s claims against
Defendants, the Court will address the claims in turn.
A. Breach of Noncompete Agreements
Nutrabolt has not shown that it is likely to succeed on the merits of its claims that the
Former Employees breached their noncompete agreements by working at Recess. Assuming
without deciding that the agreements are valid and enforceable, the Court finds that Nutrabolt has
not demonstrated that working at Recess constitutes a breach of the agreements.
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To establish a claim for breach of contract under Texas law, a plaintiff must demonstrate
(a) the existence of a valid contract; (b) performance or tendered performance by the plaintiff; (c)
defendant’s breach; and (d) damages. Smith Int’l, Inc. v. Egle Grp., LLC, 490 F.3d 380, 387 (5th
Cir. 2007). Here, the NDAs prohibit work on behalf of “any business that competes with the
Company’s business.” NDAs at ¶ 5(b). The “Company’s business” is defined as “the business of
developing, manufacturing, distributing and/or marketing dietary or sports nutrition supplements,
protein powders, bars, and drinks, and other produced related to the fitness industry in North
America and throughout the world.” NDAs at ¶ 2(a). The Grant Agreements prohibit employment
or other work for any companies in the “business of manufacturing, developing, distributing or
marketing dietary and sports nutrition supplements, convention food and drink products, including
but not limited to energy drinks.” Grant Agreements at ¶ 6(b).
The Court agrees with Defendants that Recess is not a “business that competes with the
Company’s business” as that business is defined in the agreement. Recess has four product lines:
“(a) the Original Recess beverage line with CBD derived from hemp; (b) the Recess Mood
beverage line with magnesium; (c) the Recess Mood powder products; and (d) the Recess Zero
Proof craft mocktail beverage line. Witte Decl. at ¶ 9. Recess’ website markets its beverages with
slogans such as “Relax & Unwind with Recess” and “Calm for Every Occasion.” Id. at ¶ 10. Given
Recess’ focus on relaxation-oriented beverages, the Court finds that Recess is not in “the business
of 	developing, 	manufacturing, 	distributing 	and/or 	marketing 	dietary 	or 	sports 	nutrition
supplements, protein powders, bars, and drinks, and other produced related to the fitness industry.”
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Recess is also not in the business of “dietary and sports nutrition supplements [or] convention food
and drink products, including but not limited to energy drinks.” 3
Plaintiff argues that Recess should be understood as a competitor of Nutrabolt—
specifically the Bloom product line—because both companies’ products operate in the “functional
beverage” market and compete for similar health-conscious customers and shelf space with
retailors. But true as this may be, this is not how Nutrabolt chose to define competition in the
noncompete provisions of the NDAs and Grant Agreements.4 Indeed, term “functional beverage”
does not appear anywhere in the noncompete agreements that Nutrabolt drafted—despite
Nutrabolt’s heavy reliance on this concept in its briefing. The Court therefore finds that Nutrabolt
3 Nutrabolt changes the language of “convention” to “convention[al]” in their briefing, presumably
suggesting that “convention” is a typo. The term is not defined in the Grant Agreements. The Court
therefore interprets the term using the only example provided in the contract, energy drinks, and
assumes that “convention” food and drinks are products similar to energy drinks, such a protein
drinks and powders and other sports drinks. This is consistent with the definition of Nutrabolt’s
business in the NDAs.
4 At points, Nutrabolt appears to argue that the restriction on “convention food and drink products”
encompasses all companies that manufacture, develop, distribute or market any food and drink
product that competes for a similar customer base as Nutrabolt. See, e.g., Complaint at ¶ 126 (“The
restriction expressly encompasses any competitive “food and drink products,” not just energy
beverages.”). But this argument contradicts the plain meaning of the noncompete provision. First,
the provision does not prohibit work for any company that is “competitive” with Nutrabolt. Rather,
it prohibits work for certain businesses, including those that make “convention food and drink
products, including but not limited to energy drinks.” Grant Agreements at ¶ 6(b). To the extent
that Nutrabolt is arguing that this provision prohibits work for any company that makes any food
and drink products whatsoever, it is clearly overbroad and unenforceable. See Wright v. Sport
Supply Grp., Inc., 137 S.W.3d 289, 298 (Tex. App. 2004) (“A covenant not to compete that
contains an industry-wide exclusion from subsequent employment is unenforceable.”). Rather, as
discussed in the previous footnote, the Court interprets “convention food and drink” in the context
of the reference to energy drinks as an example and in terms of the definition of Nutrabolt’s
business in the NDAs and concludes it refers to products such as sports supplements, protein drinks
and powders, and other food and drink products related to the fitness industry, not sparking waters
and mocktails.
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is unlikely to succeed on the merits of its breach of noncompete agreement claims and declines to
order injunctive relief on this basis.5
B. Breach of Non-Solicitation Agreements
Nutrabolt also argues that the Former Employees should be enjoined from all forms of
solicitation that are prohibited in the non-solicitation agreements. The Court disagrees. It
concludes that Nutrabolt has not met its burden to show that it is likely to prevail on the merits of
these claims and has not demonstrated that it is likely to suffer irreparable harm related to the non-
solicitation agreements in the absence of a preliminary injunction.
i. 	Likelihood of Success on the Merits
Although Nutrabolt treats the three Former Employees as interchangeable for the purposes
of its requested injunctive relief, the evidence does not support this approach. In fact, there is no
evidence that either Moore or Mathews engaged in any solicitation of Nutrabolt employees,
customers, or vendors. As far as the Court can discern, Nutrabolt has not even alleged that Moore
or Mathews are in breach of their non-solicitation agreement. See ECF No. 1 (Complaint) at ¶¶
149-50 (alleging that “Thomas materially breached Section 6(c) [of the incentive unit grant
agreements] by soliciting Nutrabolt’s employees, including his Executive Assistant, Moore, and
Mathews” but making no mention of solicitation by Moore or Mathews). The Court therefore finds
that Plaintiff is unlikely to succeed on the merits of its non-solicitation breach of contract claims
against Moore and Mathews.
5 In its post-hearing submissions, Nutrabolt requests that Moore and Matthews be enjoined from
working on “any new Recess product offerings,” with the justification that this language serves to
hold Defendants to their word that their work at Recess does not violate their noncompete
agreements. See ECF No. 74. But a preliminary injunction is an “extraordinary and drastic
remedy,” Holland Am. Ins. Co., 777 F.2d at 997, and the Court will not presume without evidence
that Recess plans to expand into a category that would place it within the purview of the
noncompete agreement.
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The Court also finds that, at this juncture, Nutrabolt has not “clearly carried [its] burden of
persuasion” to show that it is likely to succeed on the merits of its non-solicitation claims against
Thomas. Anderson, 556 F.3d at 360. Nutrabolt alleges that Thomas solicited at least three
Nutrabolt employees to join Recess: Moore, Mathews, and Thomas’ Executive Assistant.
Defendants have denied these allegations except as to Thomas’ Executive Assistant (who is not a
defendant in this case), which they do not address. However, Nutrabolt has presented no evidence
of Thomas’ solicitation of his Executive Assistant beyond the allegations in its Complaint, which
is insufficient to meet its burden of persuasion.6
Nutrabolt’s contention that Thomas solicited Moore and Mathews is primarily based on
timing. Thomas announced his resignation on September 24, 2025. Moore Decl. at ¶ 6; Mathews
Decl. at ¶ 8. On October 15, 2025, Thomas, Moore, and Mathews had dinner together in Chicago
at the National Association of Convenience Stores trade show, skipping the Nutrabolt team dinner.
See Greene Decl., Ex. 29; Cantelli Decl. at ¶ 22. Both Moore and Mathews resigned less than a
week later. Nutrabolt contends that this dinner “was a recruitment meeting orchestrated by Thomas
to finalize the plan to bring Moore and Mathews to Recess.” ECF No. 22 at 19. Nutrabolt also
points to the fact that Thomas emailed himself two spreadsheets containing confidential
compensation information for senior Nutrabolt employees, including Moore and Mathews on
October 13, 2025, as evidence that Thomas used this salary information to “poach” Nutrabolt’s
employees. See Greene Decl. Exs. 25-26.
The Former Employees paint a very different picture of these events. According to
Mathews, she felt undervalued by Nutrabolt in part because she did not receive a promotion or
6 While it is possible that Nutrabolt may eventually succeed on its non-solicitation claims against
Thomas on this basis, the Court will not order preliminary injunctive relief on the basis of an
allegation for which the Nutrabolt has presented no evidence.
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salary 	increase 	between 	May 	2018 	and 	January 	2022, 	despite 	her 	perception 	that 	her
responsibilities expanded during that time. Mathews Decl. at ¶ 5. Mathews began working with
Thomas in May of 2021 and came to view him as a mentor. Id. at ¶ 6. Thomas successfully
advocated for Mathews to receive promotions and salary increases, and she was reassigned to
report directly to him in June of 2022. Id. After Thomas announced his departure, Jason Cantelli,
who was transitioning into Thomas’ role, informed Mathews that her team was going to be
reassigned to another employee. Id. at ¶ 9. Mathews was discouraged by these developments and
began to consider leaving Nutrabolt. Id. at ¶ 10. She spoke with Thomas about her concerns and
asked him if there were any openings at Recess for which she could apply. Id. at ¶ 10. Thomas
referred her to Recess’ CEO, Ben Witte, who reached out to Mattews to set up a conversation. Id.
at ¶ 12. On October 11, 2025, Witte offered Mathews a position at Recess which she accepted.
Moore’s portrayal of events is similar. Moore states that he became dissatisfied with his
role at Nutrabolt over the course of 2025 after eight of his colleagues departed in quick succession.
Moore Decl. at ¶ 5. He began looking for other positions and interviewed at other companies
besides Recess. Id. Moore’s dissatisfaction grew when he learned that Cantelli was transitioning
into Thomas’ former role, because he did not have a good working relationship with Cantelli. Id.
at ¶ 7. Like Mathews, he approached Thomas to inquire about potential openings at Recess, and
Thomas similarly referred him to Recess’ CEO, who interviewed Moore and offered him a
position. Id. at ¶ 8. Moore accepted on October 15, 2025. Id. Both Moore and Mathews deny that
the October 15 dinner was a solicitation event, as they had already accepted offers to join Recess
when it occurred. Mathews Decl. at ¶ 13; Moore Decl. at ¶ 27. Thomas also denies approaching
Moore or Mathews about employment at Recess. Thomas Decl. at ¶ 20-21. Thomas further denies
using the spreadsheets containing salary information for solicitation, stating that he retained these
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documents to provide [him]self a reference point for compensation for various roles in the
industry.” Id. at ¶ 32.
The Court understands why the timing of Moore’s and Mathews’ departures raised concern
at Nutrabolt. But viewing the full records before it, the Court has no reason to disbelieve the
Former Employees’ sworn statements that Moore and Mathews approached Thomas to inquire
about potential roles at Recess, rather than the other way around. Nutrabolt has not presented any
evidence that rebuts these statements and did not address them in its reply.7 See ECF No. 60. While
Moore and Mathews do not dispute that they became interested in working for Recess in part
because Thomas, a supervisor who they liked and admired, had accepted a position there, this is
not unusual and does not constitute solicitation by Thomas. Moore and Mathews were at-will
employees, and they were free to inquire with Thomas about openings at Recess. The fact that
Thomas put them in contact with Recess’ CEO after they inquired about open positions and
perhaps even vouched for them to Recess also does not constitute a breach of his non-solicitation
obligations. While the Court agrees with Nutrabolt that Thomas likely violated his contractual
obligations when he retained confidential Nutrabolt salary information, there is no evidence that
he used this information to solicit Moore or Mathews. At this time, therefore, the Court finds
Nutrabolt’s evidence insufficient to show that it is likely to succeed on the merits of its non-
solicitation claims on the basis of solicitation of Moore and Mathews.
7 Nutrabolt has objected to the statements in each Former Employee’s declaration that use the word
“solicit” (Thomas Decl. at ¶ 20; Moore Decl. at ¶¶ 25, 26; Mathews Decl. at ¶ 23) as improperly
stating legal conclusions and improper lay opinion. See ECF No. 62. But the Court gives no weight
to the cited testimony insofar as it states disputed legal conclusions. Rather, the Court relies on
Defendants’ factual allegations that Thomas did not affirmatively approach Moore or Matthews
about working at Recess or otherwise attempt to persuade them to do so.
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Nutrabolt also 	alleges 	that Thomas’ 	emails 	with other Nutrabolt employees after
announcing his departure constituted solicitation in violation of his contractual obligations.
Nutrabolt points to statements such as “Beverage is a small bubble. . . let’s stay connected along
the way, you never know when the next opportunity is to make beverage history!!!” and “the phone
call will come in the near future and you will get to decide if you want to make beverage history
again!” and argues they are “not innocent well wishes” but rather “thinly veiled solicitations laying
the groundwork for future recruitment.” ECF No. 22 at 20 (citing Green Decl., Exs. 30-36). But
Nutrabolt does not present these statements in their full context. A review of the record reveals
that Thomas sent these emails as replies to employees who reached out to wish him well and
express gratitude for his contributions in response to his resignation announcement. Thomas
appears to have used the same or very similar language in response to everyone who reached out
to congratulate him. Additionally, there is no evidence before the Court that Thomas actually
offered any of these employees positions at Recess or incentivized them to leave Nutrabolt. Indeed,
Thomas’ original email announcing his resignation contains numerous statements like “[t]he future
here at Nutrabolt is so bright for all of us, and our business has massive momentum” and “[y]ou
will be in great hands.” Green Decl., Ex. 30. These emails, without more, do not constitute
evidence of solicitation sufficient to support a preliminary injunction.
Finally, the Court sees no basis in the evidence for Nutrabolt’s request that the Former
Employees be enjoined from “soliciting or inducing any of Plaintiffs’ customers to cease doing
business with Plaintiffs or to reduce the amount of business it conducts with any of Plaintiffs” or
“soliciting or inducing any of Plaintiffs’ vendors to cease doing business with Plaintiffs or to
reduce the amount of business it conducts with any of Plaintiffs.” ECF No. 74. Nutrabolt has
neither alleged nor presented evidence that any Former Employee has or intends to solicit any of
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Nutrabolt’s customers or vendors. Even taking all of Nutrabolt’s allegations as true, Nutrabolt
would not be entitled to relief of this scope.
ii. 	Irreparable Harm
In addition to finding that Nutrabolt is not likely to succeed on the merits of its non-
solicitation claims, the Court also concludes that Nutrabolt has not demonstrated that it “is likely
to suffer irreparable harm in the absence of preliminary relief” on this basis. Winter, 555 U.S. at
20. Nutrabolt has not presented any evidence of additional solicitation or other employees who
have departed Nutrabolt for Recess in the six months since Mathews’ and Moore’s departures.
Additionally, Nutrabolt did not move for a TRO until approximately four months after it became
aware of Mathews’ and Moore’s departures. This delay weighs against granting preliminary
injunctive relief on the non-solicitation claims.8 See, e.g., Embarcadero Techs., Inc. v. Redgate
Software, Inc., No. 1:17-CV-444-RP, 2017 WL 5588190, at *3 (W.D. Tex. Nov. 20, 2017)
(“Plaintiffs’ delay in seeking injunctive relief is fatal to their request for a preliminary injunction.);
A-76 Techs., Inc. v. Mass Mgmt., LLC, 2021 WL 6202654, at *2 (S.D. Tex. 2021) (finding no
irreparable harm in trademark infringement case based solely on a 6 month delay between cease
and desist letter and motion for PI); BCOWW Holdings, LLC v. Collins, No. SA-17-CA-00379-
FB, 2017 WL 3868184, at *17 (W.D. Tex. Sept. 5, 2017) (finding “that Plaintiffs did not act with
the sense of urgency consistent with a finding of irreparable harm” where they “waited almost four
months to file the instant lawsuit” after finding out about the underlying conduct). 	The Court
therefore denies Nutrabolt’s requested relief.
C. Trade Secret Violations and Breach of Confidentiality Agreements
8 The same analysis applies to Nutrabolt’s breach of noncompete agreement claims.
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Finally, Nutrabolt alleges that the Former Employees misappropriated Nutrabolt trade
secrets and violated their confidentiality agreements. At the Preliminary Injunction Hearing,
Nutrabolt argued that even if the noncompete agreements were inapplicable to employment at
Recess, restrictions on the Former Employee’s employment were justified on the basis of the
alleged trade secret violations and breaches of confidentiality agreements.
Because there are wide factual differences in the alleged conduct of the three Former
Employees, the Court addresses these claims separately as to each defendant.
i. 	Mathews
The sole basis for Nutrabolt’s trade secret and breach of confidentiality claims against
Mathews is that Mathews sent a copy of a presentation to Thomas on October 2, 2025—while both
were still employed by Nutrabolt—which Thomas later included in the “Agenda for NYC” slide
deck that he shared with Recess. See Green Decl., Exs. 10; 20. But Nutrabolt’s arguments that this
action constituted anything more than an employee performing a task requested by her manager
are mere speculation, and the Court is unwilling to order injunctive relief against Mathews without
additional evidence. Nutrabolt has not alleged that Mathews sent any confidential information to
a non-Nutrabolt email address nor that she retained any confidential information after leaving
Nutrabolt. See Mathews Decl. at ¶ 18 (“Following my employment at Nutrabolt, I no longer have
access to my Nutrabolt email.”). The Court therefore concludes that Nutrabolt is unlikely to
succeed on its trade secret or breach of confidentiality agreement claims against Mathews.
ii. 	Moore
Nutrabolt alleges that Moore breached his confidentiality agreements and violated trade
secret law when he emailed two documents to his personal email address prior to leaving Nutrabolt
but after accepting an offer from Recess: (1) “QT Progression Exception”—an overview Moore
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had sent to Jason Cantelli discussing a request to deviate from Nutrabolt’s OOE (Optimal
Operating Environment) standards at QuikTrip and (2) “Circle K - Latest version of OOE POG”—
Nutrabolt’s “planogram” showing product placement and merchandising strategy for Circle K
convenience stores.9 Cantelli Decl. at ¶ 16, Green Decl. Ex. 28-29.
Given Moore’s contractual obligation not to retain any confidential Nutrabolt information
after ceasing employment there, it is likely that forwarding these emails constituted breach of
contract. But the mere fact that Moore admittedly retained these documents is insufficient to
support a preliminary injunction. Assuming without deciding that the documents contained
confidential trade secrets, Nutrabolt has not shown that Moore has disclosed these documents to
Recess or is likely to do so in the future, which is required to demonstrate both irreparable injury
and likelihood of success on the merits of the trade secret claim.10 See Cardoni v. Prosperity Bank,
805 F.3d 573, 590 (5th Cir. 2015) (affirming district court’s denial of preliminary injunction in
trade secret case based on the court’s “individualized assessment of whether disclosure had
occurred or was likely to occur”); Gen. Univ. Sys., Inc. v. HAL, Inc., 379 F.3d 131, 149-50 (5th
Cir.2004) (noting that in order to establish trade secret misappropriation under Texas law, the
plaintiff must show that the defendant “used the trade secret without authorization”).
9 In its Complaint, Nutrabolt also alleges that Moore forwarded an email entitled “Jason’s Treasure
Chest.” Complaint at ¶ 88. The parties dispute the contents of this document, whether the document
belonged to Nutrabolt, and Moore’s reasons for forwarding the document. However, Nutrabolt
does not mention this document in its Preliminary Injunction Motion and does not produce it as an
exhibit for the Court’s consideration, so the Court does not consider it as part of its analysis.
10 To the extent Nutrabolt argues that it need not independently prove irreparable harm because
the NDAs contained a stipulation that Nutrabolt would suffer “immediate and irreparable damage
. . . for which it would have no adequate remedy” in the event of a breach, the Court disagrees. See
W&T Offshore, Inc. v. Endurance Assurance Corp., 2025 WL 2492478, at *4 (S.D. Tex. June 25,
2025) (collecting cases and holding that such a stipulation it is not “sufficient without more to
meet the requirements of injunctive relief”).
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Nutrabolt has presented no evidence that Moore disclosed the information in these emails
to Recess or that he is using it in his current work. Moore sent the emails to his personal email, not
a Recess email account. Moreover, Moore has provided a convincing explanation of why he
forwarded these emails to himself that has nothing to do with use of confidential Nutrabolt
information. Moore states that he did not get along with Jason Cantelli, who was transitioning into
Thomas’ role, and found his management style “dismissive and demeaning.” Moore Decl. at ¶ 7.
Moore alleges that after he tendered his resignation on October 21, Nutrabolt’s CEO became
hostile and accused Thomas of soliciting Moore. Id. at ¶ 10. Moore heard rumors that the CEO
attempted to persuade Recess to rescind Moore’s job offer.11 Id. at ¶ 11. Moore explains that he
forwarded himself the emails in question as examples of instances where Moore felt that Cantelli
had been dismissive of Moore’s contributions to “document why [he] did not want to continue
working at Nutrabolt.” Id. ¶ 13. Since both emails contain comments by Cantelli that could be
interpreted as critical of Moore, the Court credits Moore’s explanation and finds it more likely
than not that Moore retained the emails for personal reasons and has not disclosed confidential
Nutrabolt information to Recess.
While Nutrabolt “need not show actual use of trade secrets [in order to be entitled to a
preliminary injunction,] . . . it must show that [Moore] is ‘in a position to use’ trade secrets.” CAE
Integrated, L.L.C. v. Moov Techs., Inc., 44 F.4th 257, 263 (5th Cir. 2022). Since the Court finds
that Moore retained these documents for reasons unrelated to disclosure of confidential
11 Nutrabolt objects to this portion of Moore’s declaration as hearsay. See ECF No. 62 at 16. This
objection is overruled. First, the Federal Rules of Evidence do not apply in a preliminary injunction
proceeding. Sierra Club, Lone Star Chapter v. F.D.I.C., 992 F.2d 545, 551 (5th Cir. 1993) (“[A]t
the preliminary injunction stage, the procedures in the district court are less formal, and the district
court may rely on otherwise inadmissible evidence, including hearsay evidence.”). Second, the
proffered statement is offered for its effect on the Moore, not for the truth of what it asserts.
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information, it concludes that Moore’s future use of Nutrabolt’s purported trade secrets is unlikely.
Moreover, Recess has hired an outside company to conduct a “ringfencing” procedure intended to
identify and remove the confidential information identified by Nutrabolt from Defendants’ devices
and accounts. See Bandemer Decl. (describing ringfencing process). This process included a search
of the Former Employees’ and Witte’s Recess laptops, personal iPhones, iCloud accounts, and
Recess Google Workspace accounts. Bandemer Decl. at ¶ 16. The digital forensics expert who led
this process stated that to a reasonable degree of technical certainty, none of the identified
documents “is accessible to anyone using those devices or accounts or Recess’s Google
Workspace.” Id. at ¶ 7. Recess has also offered to supplement these remediation efforts at
Nutrabolt’s request.12 Finally, Moore has offered to stipulate that he “will not use or disclose any
confidential or proprietary documents, records, or electronic data belonging to Nutrabolt,”
including the documents at issue here. ECF No. 75 at 3.
Under these circumstances, Nutrabolt cannot show that it is likely to succeed on the merits
of its trade secret claims against Moore, nor that it will suffer irreparable harm based on Moore’s
actions.13 See Cardoni, 805 F.3d at 589-90 (affirming denial of preliminary injunction on trade
12 Nutrabolt argues that the measures taken by Recess are insufficient because (1) Defendants’
personal laptops were not searched, (2) the declaration does not establish whether Defendnats’
personal email accounts were searched and (3) the search process would not identify documents
that were excerpted or altered (though it would capture files that had been renamed). See ECF No.
77. The Court understands the search of Defendants’ iCloud accounts as addressing Nutrabolt’s
concern regarding Defendants’ personal computers and accounts. To the extent Nutrabolt believes
additional remediation is necessary, Nutrabolt can accept Recess’ offer to suggest additional
remediation steps. If Recess is unwilling to conduct additional searches, Nutrabolt may raise this
issue with the Court at that time. At this point, however, the Court is persuaded that Recess’
remediation 	efforts 	in 	combination 	with 	Moore’s 	stipulation 	render 	future 	disclosure 	of
confidential information unlikely.
13 Nutrabolt additionally alleges that Moore sent an email to Thomas on October 6 containing
“detailed consumer metrics for Recess in the mocktail and sparkling water markets” from
Numerator, a consumer data company. Cantelli Declaration at ¶ 15. Nutrabolt alleges that Moore
subsequently deleted the email from his “sent” messages and from his trash folder, suggesting a
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secret misappropriation and breach of nondisclosure agreement claims where plaintiff “only made
a speculative showing that [the former employees] have disclosed or used [plaintiff’s] confidential
information”).
iii. 	Thomas
Nutrabolt’s allegations against Thomas are more serious. Most troubling, Nutrabolt alleges
that Thomas prepared a slide presentation for Recess which contained confidential Nutrabolt
information and trade secrets, including brand strategy plans for C4 and Bloom, account-specific
strategies for eight Nutrabolt retailers such as Target and Walmart, and other similar information.
See Greene Declaration, Ex. 20. Some of the slides are Recess-branded, whereas the slides
containing Nutrabolt’s information have Nutrabolt branding. Thomas emailed this presentation
from his Nutrabolt email to his Recess email on October 5, 2025, using the file name “Agenda for
NYC.” Id. The presentation is dated October 6-8, 2025. Id. Nutrabolt contends that these dates
correspond to a trip Thomas took to New York while employed by Nutrabolt, which it now
believes Thomas used as an opportunity to meet with Recess’ CEO.14
In addition to the slide deck, Thomas also sent two other Nutrabolt documents to his Recess
email address (Green Decl., Exs. 21-22) and eleven documents to his or his wife’s personal email
addresses. (Green Decl., Exs. 12-19, 22-26). Nutrabolt alleges that all of these documents contain
confidential information and trade secrets.
i. 	Likelihood of Success on the Merits
consciousness of guilt. Id. But even if this is the case, Recess’ consumer metrics are not Nutrabolt’s
trade secrets. While Nutrabolt may be able to show that Moore violated a duty to Nutrabolt by
using its resources for a non-work-related purpose, this injury can be compensated by monetary
damages. Injunctive relief against Moore on this basis is therefore inappropriate.
14 Nutrabolt also alleges that Thomas fraudulently billed this trip to Nutrabolt as a business
expense. Brown Declaration, Ex. 8. To the extent Nutrabolt argues it is entitled to relief on this
basis, this claim is compensable by money damages.
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“To state a claim for trade secret misappropriation under Texas law, a plaintiff must (1)
establish that a trade secret existed; (2) demonstrate that the trade secret was acquired by the
defendant through a breach of a confidential relationship or discovered by improper means; and
(3) show that the defendant used the trade secret without authorization from the plaintiff.” Gen.
Univ. Sys., Inc. v. HAL, Inc., 379 F.3d 131, 149-50 (5th Cir.2004). The elements of a federal trade
secret misappropriation claim are similar. See Winsupply E. Houston v. Blackmon, No. 21-cv-
01387, 2021 WL 5504756, at *5 (S.D. Tex. Nov. 22, 2021) (“[A] plaintiff must show that it owns
a trade secret; its trade secret was misappropriated; and the misappropriated trade secret is related
to a product or service used in, or intended for use in, interstate or foreign commerce [to establish
misappropriation under federal law].”) The Texas Supreme Court has stated that “a trade secret is
any formula, pattern, device or compilation of information which is used in one's business and
presents an opportunity to obtain an advantage over competitors who do not know or use it.” In re
Bass, 113 S.W.3d 735, 739 (Tex. 2003). At the preliminary injunction stage, “the trial court
determines whether the applicant for preliminary injunction has established that the information is
entitled to trade secret protection until a trial on the merits.” Anadarko Petroleum Corp. v. Davis,
No. CIV.A. H-06-2849, 2006 WL 3837518, at *15 (S.D. Tex. Dec. 28, 2006) (quoting Fox v.
Tropical Warehouses, Inc., 121 S.W.3d 853, 858 (Tex.App.-Forth Worth 2004, no pet.).
Additionally, to establish a claim for breach of contract under Texas law, a plaintiff must
demonstrate (a) the existence of a valid contract; (b) performance or tendered performance by the
plaintiff; (c) defendant’s breach; and (d) damages. Smith Int’l, Inc., 490 F.3d at 387. In this case,
Thomas agreed “not to disclose any such Confidential Information, directly or indirectly, to any
person or entity or use such Confidential Information for his or her own personal benefit or for the
benefit of any third party.” NDAs at ¶ 4(a)-(b). The NDAs defined “Confidential Information” as
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“(i) technical information such as trade secrets, know-how, . . . products, product plans, product
formulations and specifications, research, analyses, designs, design drawings, design, analysis,
predictions[;]” and “(ii) business information, such as customer and prospective customer lists and
preferences, vendor lists, the identity of distributors, manufacturers and suppliers, client goodwill,
pricing information and strategies, costs, profit margins, marketing strategies and materials, sales
plans, sales proposals and techniques, marketing or business plans, fee schedules, financial
information, processes, testing, data and compilations of information, analyses, procedures and
results[.]” NDAs at ¶ 2(b).
Defendants dispute that the information contained in Thomas’ emails constitutes protected
trade secrets under state or federal law. But even if this is the case, the Court concludes that at least
some of the documents, including portions of the “Agenda for NYC” presentation, clearly contain
confidential information as that term is defined in the NDAs. It appears to be undisputed that
Thomas shared the “Agenda for NYC” presentation with Recess. In his declaration, Thomas does
not deny that he prepared this presentation for Recess or that he presented it to Recess executives
during his trip to New York in October of 2025. Nutrabolt is therefore likely to succeed on the
merits of its claim that Thomas breached his confidentiality agreement.15 Assuming without
deciding that the presentation contained confidential trade secrets, the Court also concludes that
Nutrabolt’s evidence is sufficient to show that Thomas acquired the purported trade secrets through
a breach of a confidential relationship given his contractual nondisclosure obligations and that
15 Thomas states in his declaration that he “never got the impression [Nutrabolt] was a company
that considered its marketing or corporate growth strategies to be proprietary or secret” and notes
that “company leaders frequently discussed corporate strategy publicly on social media, in press
releases, and other public platforms.” Thomas Decl. at ¶ 31. If true, this may have relevance to
whether Nutrabolt’s documents are entitled to trade secret protections, but it is irrelevant to
Thomas’ obligations under the confidentiality agreement.
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Thomas used at least some of the trade secrets without Nutrabolt’s authorization. Thomas has not
denied that he shared the “Agenda for NYC” presentation with Recess, which would constitute
unauthorized use of any trade secrets contained therein. While Nutrabolt has not shown direct use
or disclosure of any of the other documents that Thomas sent to his Recess or personal email
addresses, it is reasonably likely that Thomas intended to use these documents in some way while
employed at Recess, particularly those documents sent directly to his Recess email.
In short, Nutrabolt has shown it is likely to succeed on the merits of its breach of contract
claims based on the series of Nutrabolt documents that he emailed to himself in September and
October of 2025. The Court will also assume for the purposes of the Preliminary Injunction Motion
that Nutrabolt is likely to succeed on at least some of its trade secret misappropriation claims
against Thomas.
ii. 	Irreparable Harm
The Court next turns to the question of whether Nutrabolt will be irreparably harmed in the
absence of a preliminary injunction against Thomas. While the Court agrees with Nutrabolt that it
could be irreparably harmed if Thomas were to retain access to confidential Nutrabolt trade secrets
while employed at Recess, it concludes that the proper remedy is to enjoin use and disclosure of
Nutrabolt’s trade secrets, not to further restrict Thomas’ employment. In light of the stipulations
offered by the Former Employees and the remediation already undertaken by Recess, the Court is
not persuaded that injunctive relief is necessary to prevent irreparably injury to Nutrabolt.
Nutrabolt 	argues 	that 	Thomas’ 	“continued 	possession 	and 	use 	of 	Nutrabolt’s
misappropriated trade secrets to compete in the same functional beverage market poses an
imminent 	and 	ongoing 	threat 	of 	irreparable 	harm 	to 	Nutrabolt’s 	competitive 	position,
advantageous business relationships with its customers, and the confidentiality and secrecy of its
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proprietary business information.” ECF No. 22 at 9. The Court agrees that were Thomas to retain
access to documents containing Nutrabolt’s confidential information and trade secrets, the threat
of irreparable harm to Nutrabolt could be significant. See Sunbelt Rentals, Inc. v. Holley, No. 3:21-
cv-3241-n, 2022 WL 1049468, at *6 (N.D. Tex. Apr. 7, 2022) (“[T]he disclosure of trade secret
information constitutes irreparable injury as a matter of law.”); Daily Instruments Corp. v. Heidt,
998 F.Supp.2d 553, 570 (S.D. Tex. 2014) (holding that a former employee’s “disclosure of
confidential information satisfies the irreparable injury prong for purposes of a preliminary
injunction”).
But “when a former employee misappropriates his employer’s trade secrets, the appropriate
remedy is to enjoin use and disclosure of those secrets, not to enjoin work in competition with the
former employer.”16 Anadarko Petrol. Corp., 2006 WL 3837518, at *24. In Anadarko, the
defendant—a former employee of Anadarko—downloaded the equivalent of approximately 1.5
million pages of Anadarko data onto a USB drive before leaving to work at a competing oil
company. Id. at *6. These files included a confidential report containing Anadarko’s internal
assessment of the value of its oil wells. Id. at *7. The defendant also admitted that he used one
piece of information from Anadarko’s report to draft a report for his new employer, who was
seeking to purchase some of Anadarko’s oil wells. Id. at *9. For its part, Anadarko asserted that
the defendant extensively relied on confidential information in producing the report for his new
employer and could not have prepared the report as quickly as he did without it. Id. at *16-17. It
requested a preliminary injunction prohibiting the defendant from working for any competitor of
16 While Nutrabolt cites trade secret cases in which courts have enjoined or seriously restricted a
defendant employee’s employment with a new employer, (the vast majority?) of these cases also
involved findings that the defendant employee had violated a noncompete agreement. CITE. The
Court has concluded this is not the case here.
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Anadarko—including his new employer. Id. The court found that Anadarko was likely to succeed
on the merits of its trade secret and breach of confidentiality agreement claims and that it was
entitled to some form of injunctive relief, but concluded that any relief beyond enjoining the
defendant’s use or disclosure of trade secrets was overbroad. Id. at *23-24.
This reasoning is consistent with the plain language of the DTSA. While the DTSA permits
a court to enter an injunction “to prevent any actual or threatened [trade secret] misappropriation,”
such an injunction must not “prevent a person from entering into an employment relationship” and
“conditions 	placed 	on. 	. 	. 	employment 	shall 	be 	based 	on 	evidence 	of
threatened misappropriation and not merely on the information the person knows.” 18 U.S.C. §
1836(b)(3)(A)(i). The TUTSA contains similar language. Tex. Civ. Prac. & Rem. Code Ann. §
134A.003 (West 2025) (“Actual or threatened [trade secret] misappropriation may be enjoined.”).
While Nutrabolt no longer seeks to enjoin Thomas from working for Recess entirely, the
relief it requests would effectively prohibit him from fulfilling in the core functions of his role as
co-CEO of Recess. This goes beyond what is necessary to prevent irreparable harm to Nutrabolt
on the basis of its trade secret and confidential information claims, particularly since Nutrabolt has
not shown it is likely to succeed on the merits of its breach of noncompete agreement claims. It is
true that Thomas, like the defendant in Anadarko, transmitted confidential Nutrabolt information
outside the company and disclosed at least some of this information to Recess. But this merely
restates the conclusion that Nutrabolt is likely to succeed on the merits of some of its claims against
Thomas—it does not warrant more extensive limitations on Thomas’ role at Recess. Indeed, the
defendant’s misconduct in Anadarko was more severe than even the strongest version of
Nutrabolt’s allegations against Thomas—and resulted in more tangible harm to Anadarko in that
it assisted a competitor in obtaining funding for an offer to purchase Anadarko’s oil wells. Even
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so, the court concluded that Anadarko “ha[d] not shown that it w[ould] suffer irreparable harm of
a nature that supports a broader injunction” than the defendants’ existing agreement to return all
confidential Anadarko information. Anadarko Petrol. Corp., 2006 WL 3837518, at *24. This
Court concludes that the same is true here. Any broader restrictions on Thomas’ employment
would cross the line from protecting Nutrabolt’s confidential and trade secret information to
infringing on Thomas’ right to rely on the general knowledge gained during his decades of
experience in the beverage industry.
Nutrabolt also points to various statements by Thomas and Recess CEO Benjamin Witte
as evidence that Recess hired Thomas specifically to gain access to his confidential knowledge
about Nutrabolt. For example, it points to an employment proposal Thomas sent to Recess in which
he stated that he could give Recess “access to better data and insights that could be utilized for
growth” and help create a “build to invest model” leveraging “industry expertise, innovative
strategies, and data-driven insights.” Greene Decl. at Ex. 2. It also points to an interview in which
Witte stated that he reached out to Thomas about the co-CEO role because he “looked at like
Honest [Tea] and Topo Chico. . . and C4 Energy and Bloom and . . . realized Kyle [Thomas] was.
. . responsible for scaling. . . some of the best platform brands to ever exist.” ECF No. 22, Ex. 2 at
5:24. The Court is unpersuaded. Rather, these statements suggest that Recess hired Thomas
because of his extensive experience in the beverage industry and his success in launching popular
new beverage lines—presumably the same reason why Nutrabolt hired him back in 2021.
“[A]lthough [Thomas] may not use confidential information or trade secrets in his new
employment, ‘a former employee may use the general knowledge, skill, and experience acquired
during the employment relationship.’” Dresser-Rand Co. v. Schutte & Koerting Acquisition Co.,
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No. CIV.A. H-12-184, 2012 WL 460275, at *9 (S.D. Tex. Feb. 13, 2012) (quoting Anderson Chem.
Co. v. Green, 66 S.W.3d 434, 442 (Tex. App. 2001).
Finally, to the extent that Nutrabolt argues that Thomas’ disclosure of trade secrets is
inevitable because he is employed in a similar role at a company also in the functional beverage
industry, the Court disagrees. In Cardoni v. Prosperity Bank, the Fifth Circuit rejected the notion
that Texas law has adopted the so-called “inevitable disclosure” doctrine—the idea that when a
former employee possesses knowledge of their former employer’s trade secrets or other
confidential information and accepts a similar role with a competitor, the employee will inevitably
rely on that information. 805 F.3d 573, 589–90 (5th Cir. 2015).17 Thomas is entitled to rely on the
twenty-five years of beverage industry experience he has acquired over the course of his career
and can do so without disclosing Nutrabolt’s confidential information.
For all of these reasons, the Court concludes that the proper remedy for Thomas’ potential
disclosure of additional Nutrabolt trade secrets is to enjoin him from using or disclosing any these
trade secrets—not to otherwise restrict his employment at Recess. The Court further concludes
that, in this case, the Former Employees’ proffered stipulations and the remediation already
undertaken by Recess render any additional injunctive relief unnecessary.
As previously discussed, the Former Employees have proposed that the Court enter an
order recognizing four stipulations as binding on the Defendants—including an agreement by
17 Nutrabolt cites Daily Instruments Corp. v. Heidt for the proposition that “[a]n employee who
possesses trade secrets belonging to a former employer and accepts employment with one of its
competitors, even if acting in good faith, will have difficulty preventing his knowledge from
infiltrating his work.” 998 F.Supp.2d at 569. But Daily Instruments was decided prior to the Fifth
Circuit’s opinion in Cardoni and is not binding on this Court. Additionally, the Daily Instruments
court found that, in addition to misappropriation of trade secrets, the defendant had violated his
noncompete agreement by working for his new employer. Id. at 568. Nutrabolt has not shown that
is the case here.
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Thomas that he will not “access, disclose, or use any Nutrabolt Confidential Information” while
providing services to Recess in any capacity. ECF No. 75 at 2. They define “Nutrabolt Confidential
Information” as “any confidential or proprietary documents, records, or electronic data belonging
to Nutrabolt, including the documents identified as allegedly containing confidential and trade
secret information in the Declarations of Gwen Greene and Jason Cantelli.” Id. Additionally, all
three Former Employees have agreed that they “will not use or disclose” any Nutrabolt
Confidential Information. Thomas—as well as Moore and Mathews—have also submitted sworn
declarations stating that to the best of their knowledge, they can no longer “access, use, or delete”
the confidential files identified by Nutrabolt because of the ringfencing protocols employed by
Recess’ IT vendor. Thomas Decl. at ¶ 34; see also Moore Decl. at ¶ 16; Mathews Decl. at ¶ 18-19.
In light of the remediation efforts undertaken by Recess and the stipulations offered by the
Former Employees, the Court concludes that Nutrabolt “has not shown that it will suffer
irreparable harm of a nature that supports a broader injunction than is already in place.” Anadarko
Petrol. Corp., 2006 WL 3837518, at *24; see also Embarcadero Techs., Inc. v. Redgate Software,
Inc., No. 1:17-CV-444-RP, 2017 WL 5588190, at *3 (W.D. Tex. Nov. 20, 2017) (“[T]o the extent
that Plaintiffs could suffer irreparable harm from [defendant’s] retention of the documents
belonging to Plaintiffs on his Google Drive, his agreement to delete all such documents and turn
them over to Plaintiffs negates the potential for any such harm.”). Any harm that Nutrabolt suffered
as a result of Thomas’ past disclosure of confidential information is compensable by money
damages after trial. See Winsupply E. Houston v. Blackmon, No. 4:21-CV-01387, 2021 WL
5504756, at *8 (S.D. Tex. Nov. 22, 2021) (noting that “irreparable harm ‘must be based on future
harm arising from future activity if not enjoined’”) (quoting Amid Inc v Medic Alert Foundation
United States Inc, 241 F Supp 3d 788, 824 (S.D. Tex. 2017)).
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While Nutrabolt has raised concerns about the scope and effectiveness of Recess’
ringfencing procedures, the Court is persuaded that they are sufficient in combination with the
Former Employees’ binding stipulations to refrain from use or disclosure of any confidential
Nutrabolt information. Nutrabolt has also argued that the Former Employees generally and
Thomas specifically cannot be trusted to abide by their agreed stipulations because of their past
dishonesty toward Nutrabolt. But the Court disagrees that this supposition is supported by the
evidence and, in any case, the same concern would apply to a preliminary injunction order crafted
by the Court. Indeed, the proffered stipulations go beyond the injunctive relief to which the Court
has concluded Nutrabolt is entitled to in that they enjoin all three Former Employees from use and
disclosure of confidential information, rather than Thomas only.
IV. 	CONCLUSION
The Court therefore DENIES Nutrabolt’s Motion for Temporary Restraining Order and
Preliminary Injunction (ECF No. 22). The Court further recognizes the following stipulations as
binding on Defendants.
1. Non-Disclosure & Non-Use: The Individual Defendants agree and stipulate they
will not use or disclose any confidential or proprietary documents, records, or
electronic data belonging to Nutrabolt, including the documents identified as
allegedly containing confidential and trade secret information in the Declarations
of Gwen Greene (Dkt. 22-1) and Jason Cantelli (Dkt. 22-3) as Exhibits 12-26
(collectively, 	“Nutrabolt 	Confidential 	Information”). 	Nutrabolt 	Confidential
Information shall not include any documents, data, or information that (i) is, or has
become, publicly known through no fault of the Individual Defendants; (ii) is
lawfully acquired by, or known to, the Individual Defendants independent of
Nutrabolt; or (iii) was previously produced, disclosed, and/or provided by Nutrabolt
without an obligation of confidentiality and not by inadvertence or mistake;
2. Kyle Thomas Employment: Individual Defendant Kyle Thomas agrees and
stipulates that, in providing services (as an employee, contractor, advisor, or in any
other capacity) to Recess, he shall not access, disclose, or use any Nutrabolt
Confidential Information;
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3. Remedial Measures: Upon identification by Nutrabolt of additional specific
documents or data containing Nutrabolt Confidential Information that Nutrabolt
reasonably believes may remain in any Individual Defendant’s possession, the
Individual Defendants stipulate that they will confer with Nutrabolt in good faith
to attempt to develop a protocol for further remediation efforts; and
4. Preservation of Evidence: No provision herein obviates any obligations to
preserve evidence, as consistent with the Federal Rules of Civil Procedure and all
applicable law.
IT IS SO ORDERED.
Signed at Houston, Texas on May 27, 2026.
_______________________________
Keith P. Ellison
United States District Judge
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