ELIOR, INC. v. THOMAS, 2024 NCBC 27

STATE OF NORTH CAROLINA
MECKLENBURG COUNTY
IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
23 CVS 12616
ELIOR, INC.,
Plaintiff,
v.
DENNIS THOMAS,
Defendant.
ORDER AND OPINION
ON MOTION TO DISMISS
1. 	THIS MATTER is before the Court on Defendant’s Motion to Dismiss
the Complaint (the “Motion”) pursuant to Rules 12(b)(1) and 12(b)(6) of the North
Carolina Rules of Civil Procedure (the “Rule(s)”), (ECF No. 12).
2. 	The Court, having considered the Motion, the related briefing, and the
arguments of counsel at a hearing on the Motion held 1 February 2024, concludes for
the reasons stated below that the Motion should be GRANTED in part and
DENIED in part as set forth below.
Littler Mendelson, P.C., by Stephen D. Dellinger and Matthew S.
Brown, for Plaintiff Elior, Inc.
Bell, Davis & Pitt, P.A., by Marc E. Gustafson, for Defendant Dennis
Thomas
Earp, Judge.
Elior, Inc. v. Thomas, 2024 NCBC 27.

I. 	FACTUAL AND PROCEDURAL BACKGROUND
3. 	The Court does not make findings of fact when ruling on a motion to
dismiss. It recites below the factual allegations in the Complaint that are relevant to
the Motion.
A. The Parties
4. 	Plaintiff Elior, Inc. (“Elior”) is a Delaware corporation with its principal
place of business in Charlotte, North Carolina. (Compl. ¶ 6, ECF No. 3.) Elior is the
parent company of multiple subsidiaries operating in the food service management
industry 	for 	public 	and 	private 	K-12 	schools, 	colleges, 	universities, 	hospitals,
correctional 	facilities, 	and 	senior 	living 	facilities 	across 	the 	United 	States.
(Compl. ¶¶ 7, 16.)
5. 	Defendant Dennis Thomas (“Thomas”) is a citizen and resident of the
state of Illinois. 	(Compl. ¶ 8.) 	From August 2021 to October 2022, Thomas was
employed by Elior, first as “Business Development Director of Growth, K-12,” and
then as “Senior Business Development Director.” (Compl. ¶¶ 22, 39, 45.) Thomas is
now employed by OrganicLife, LLC (“OrganicLife”), a direct competitor of Elior.
(Compl. ¶¶ 2, 17, 54.)
B. Elior’s K-12 Schools Food Services Division
6. 	Through its subsidiaries, Elior prepares and delivers meals for primary
and secondary (“K-12”) schools. 	(Compl. ¶ 16.) 	In the educational food service
industry, “school districts typically issue requests for proposals (“RFPs”) for food
service contracts during the ‘bid season’ that begins in early February and continues

through the end of June each year.” 	(Compl. ¶ 18.) 	These service contracts “are
typically signed for a one-year period beginning on July 1 [of one year] and ending on
June 30 [of the following year], with the option for up to four (4) one-year renewals[.]”
(Compl. ¶ 19.) The contracts are usually renewed “unless there are serious concerns
or unless a competitor persuades them to re-open the bidding process.” (Compl. ¶ 19.)
7. 	Contracts are not awarded based solely on price. Customer goodwill and
service play key roles in winning a bid for a K-12 contract. 	(Compl. ¶ 20.) 	For this
reason, Elior alleges that it focuses resources on training its sales and marketing
teams to develop strong relationships with its customers. (Compl. ¶ 50.) Elior uses
the customer relationship management platform, Salesforce, to compile and manage
customer 	information. 	(Compl. 	¶ 	50.) 	In 	addition, 	Elior 	has 	invested 	in 	a
comprehensive cybersecurity infrastructure to ensure the secure storage of client
data, 	project 	details, 	Elior’s 	RFP 	process, 	and 	other 	confidential 	information.
(Compl. ¶ 53.)
C. Thomas’s Employment with Elior
8. 	On 30 August 2021, Thomas began work as Business Development
Director of Growth in Elior’s K-12 food services division. (Compl. ¶¶ 22, 24.) In this
role, Thomas was responsible for “developing, growing, and marketing the K-12
segment by engaging in strategic initiatives to sell products into the self-operated
market of the K-12 industry.” (Compl. ¶ 23.) Thomas was primarily responsible “for
the school sales function, including end user calls, school distributor calls, school
promotional management, trade shows, and bids, and selecting, training, directing

and evaluating possible broker relationships in his assigned region.” (Compl. ¶ 23.)
Thomas’s assigned region included Tennessee, Kentucky, Ohio, Indiana, Illinois, and
Michigan. 	(Compl. ¶ 41.) 	He was permitted to work remotely from his home in
Illinois. (See Dennis Thomas Offer Document [“Offer Letter”] Compl., Ex. 2.)
9. 	Thomas was promoted to Senior Business Development Director on 16
June 2022. 	Throughout his employment Thomas had access to Elior’s confidential
information, including its financial records, payment terms, marketing strategies,
and customer lists. (Compl. ¶¶ 39-40.)
10. 	While employed by Elior, Thomas worked on a number of Elior’s
successful school district bids. 	Specifically, Thomas received a commission for
successful bids he made with two school districts in Illinois, the East Aurora School
District 131 (“EASD 131”) and Cahokia School District 187 (“CSD 187”). Thomas also
submitted a response to a request for proposal (“RFP”) to renew a food services
contract with EASD 131 for the 2022-2023 school year. 	(Compl. ¶¶ 42-44.) 	In
addition, Elior alleges that Thomas solicited business from the Washington D.C.
Public Schools in July 2022, even though it was outside of his assigned region.
(Compl. ¶ ¶ 41, 57.)
D. The Employment Agreement
11. 	Thomas’s offer letter from Elior dated 13 August 2021 stated that he
would 	be 	provided 	with 	the 	details 	of 	the 	non-compete, 	non-solicitation, 	non-
disparagement, 	and 	severance 	terms 	of 	the 	employment 	relationship 	in 	an
Employment Agreement that he would receive “before or on [his] first day of

employment,” 	and 	that 	he 	would 	be 	required 	to 	sign 	the
Employment Agreement “no later than [his] first day of employment.” 	(Compl. ¶ 3,
Offer Letter.) 	However, Elior alleges that Thomas started work on 30 August 2021
and was not actually required to sign the Employment Agreement until 1 October
2021, 	a 	little 	over 	a 	month 	later. 	(Compl. ¶¶ 	24-25, 	Ex. 	1 	[“Employment
Agreement”].)
12. 	On 	17 	December 	2021, 	Thomas 	acknowledged 	the 	Employment
Agreement a second time when he executed Elior’s FY22 Growth Team Commission
Plan (the “Commission Plan”). 	The Commission Plan states, “to be eligible for
earning under this and any prior or future plan, all employees have an executed
Employment Agreement which includes without limitation [Elior’s] Confidentiality,
Non-Competition 	and 	Non-Solicitation 	policies.” 	(Compl. 	¶ 	38; 	Compl. 	Ex. 	3
[“Commission Plan”].)
13. 	The Employment Agreement requires Thomas “to treat all Confidential
Information relating to [Elior] and its Affiliates1 as confidential.” 	Thomas further
agreed 	“not 	to 	disclose 	Confidential 	Information, 	unless 	permitted 	by 	[the
Employment Agreement] or as required by [his] position, both (a) during [his]
employment and (b) for three (3) years thereafter.” (Employment Agreement § 4(c).)
The Employment Agreement defines “Confidential Information” broadly as:
[A]ll trade secrets, designs, ideas, developments, software, methods,
techniques, models, processes and other proprietary rights, disclosures,
inventions, 	creations, 	programs, 	recipes, 	menus, 	financial 	records,
1 “‘Affiliates’ refers to: (a) Elior’s parent company (b) any Elior subsidiary, (c) Elior joint
ventures or (d) any entity owned (in whole or part) by Elior. (Employment Agreement § 1.)

payment terms, marketing strategies, contracts, agreements, customer
lists, employee information, and data collected, created or developed by
or for [Elior] or any of [Elior’s] affiliates or subsidiaries.
(Employment Agreement § 4(c).)
14. 	The 	noncompetition 	provision 	provides 	that 	“[d]uring 	[Thomas’s]
employment and for twelve (12) months after [his] Separation Date2 . . . [Thomas
would] not [] engage in Competitive Activity within the Prohibited Territory.”
(Employment Agreement § 4(a).) “Competitive Activity” is defined to mean:
engaging, 	or 	assisting 	others 	to 	engage 	in 	the 	same 	work, 	or
substantially similar work, that [Thomas] performed on behalf of [Elior]
or an Affiliate during the twelve (12) months’ prior to [Thomas’s]
Separation Date either: (i) for a competitor; (ii) for a[n] [Elior] client, or
(iii) as part of a service offering in competition with [Elior’s] business.
(Employment Agreement § 4(a).) 	“‘Prohibited Territory’ means each: (i) city, (ii)
county, (iii) parish, and (iv) state where, at any time twelve (12) months prior to
[Thomas’s] Separation Date, [Thomas]: (i) was assigned responsibility on [Elior] or
Affiliate’s 	behalf; 	or 	(ii) 	performed 	services 	on 	[Elior] 	or 	Affiliate’s 	behalf.
(Employment Agreement § 4(a).)
15. 	Finally, 	the 	Employment 	Agreement’s 	non-solicitation 	provision
provides that Thomas will not “[d]uring [his] employment and for twenty-four (24)
months after [his] Separation Date:
i. 	Solicit or employ: any [Elior] or Affiliate contractor, consultant,
owner or employee with whom [he]: (A) worked with or (B) became aware
through [his] employment by [Elior];
ii. 	Solicit or provide to any [Elior] or Affiliate customer, services or
goods similar to those provided by [Elior] or Affiliate, where in the
2 “Separation Date” is defined as the last day of employment. (Employment Agreement §
8(d).)

twenty-four (24) months prior to [his] Separation Date, [he]: (A) had
contact, communications, or performed work for that customer; (B)
assisted that customer; or (C) obtained confidential information about
that customer;
iii. 	Solicit or provide to any [Elior] or Affiliate prospective customer,
services or goods similar to those offered by [Elior] or Affiliate, where in
the twenty-four (24) months prior to [his] Separation Date, [he]: (A) had
contact or communication with that prospective customer; (B) assisted
with a proposal to that prospective customer; or (iii)(sic) obtained
confidential information about [Elior’s] sale to the prospective customer;
iv. 	Induce [Elior] or Affiliates supplier to cease being a supplier of
[Elior] or any Affiliate;
v. 	Make disparaging remarks about [Elior] or its Affiliates (except
as permitted by law);
vi. 	Encourage, facilitate or assist another party to engage in the
conduct prohibited by this Section.
(Employment Agreement § 4(b).)
16. 	Elior 	contends 	that 	the 	twenty-four-month 	restriction 	protects 	its
legitimate business interest “because it addresses the cyclical bidding process, the
typical one year school district contract and at least one (1) of the up to four (4) one-
year renewal options.” (Compl. ¶ 32.)
17. 	In addition to the above restrictive covenants, Thomas also agreed: (1)
to provide Elior with thirty days’ prior written notice if he resigned; (2) to return “all
property, documents, data, equipment, access cards, and keys,” to Elior upon his
resignation; and (3) to provide Elior “written notice five (5) days’ prior to commencing
any 	new 	position 	accepted 	within 	twelve 	(12) 	months 	after” 	his 	resignation.
(Employment Agreement § 7.)

18. 	The Employment Agreement states that it “shall be governed by and
construed by the laws of the state (sic) of North Carolina without regard to principles
of conflict of laws.” (Employment Agreement § 12.)
E. Thomas’s Resignation and Subsequent Employment
19. 	Thomas voluntarily resigned from Elior on 10 October 2022, effective
14 October 2022. (Compl. ¶ 45.)
20. 	On 11 October 2022, while still employed by Elior, Elior alleges that
Thomas forwarded emails from his Elior email account to his personal email account.
The emails included correspondence with the Illinois Association of School Boards,
the Illinois Association of School Business Officials, and the Chicago International
Charter Schools. Elior contends these are all “entities with whom Thomas engaged,
solicited, or otherwise performed work” for or on Elior’s behalf. (Compl. ¶¶ 46-47.)
21. 	Elior alleges that Thomas also forwarded certain documents to his
personal 	email 	address, 	including 	the 	Indiana 	Department 	of 	Education’s
Administrative Review Findings for the School City of East Chicago, the School City
of East Chicago’s Financial Audit Report, Elior’s proposals and presentations to the
Memphis 	Community 	School 	District, 	and 	Elior’s 	case 	reimbursement
documentation. (Compl. ¶ 48.)
22. 	Thomas allegedly began working for OrganicLife as a Vice President of
Strategic Development almost immediately after he left work with Elior in October
2022. Elior alleges that Thomas’s territories for OrganicLife include school districts
in Illinois. (Compl. ¶¶ 54, 56.)

23. 	Elior alleges that, on 7 December 2022, Thomas attended a virtual pre-
bid meeting for the Washington D.C. Public Schools on behalf of OrganicLife, despite
having 	worked 	on 	Elior’s 	bid 	to 	the 	same 	entity 	just 	five 	months 	earlier.
(Compl. ¶ 57.)
24. 	Elior alleges that it lost a number of contracts to OrganicLife as a result
of Thomas’s efforts on behalf of his new employer. For example, it claims that CSD
187 declined to renew its contract with Elior and instead entered into a new contract
with OrganicLife. 	(Compl. ¶¶ 58, 59.) 	In addition, Elior alleges that Thomas used
its confidential pricing information on behalf of OrganicLife to undercut Elior on a
proposal to EASD 131. 	OrganicLife won the bid, and Elior lost the contract with
EASD 131, its long-time customer. (Compl. ¶¶ 60-61.)
25. 	On 20 July 2023, Elior initiated this action. The Complaint purports to
assert claims against Thomas for breach of contract, breach of the covenant of good
faith and fair dealing, conversion, violation of the North Carolina Trade Secrets
Protection Act (“NCTSPA”), violation of the North Carolina Unfair and Deceptive
Trade Practices Act (“UDTPA”), and tortious interference with prospective business
advantage. (See generally Compl.).
26. 	The case was designated as a complex business case on 18 August 2023
and assigned to the undersigned the same day. (ECF Nos. 1, 2.)
27. 	Thomas filed the Motion on 4 October 2023. After full briefing, the Court
held a hearing on 1 February 2024. (See Not. Hr’g., ECF No. 40.)
28. 	The Motion is now ripe for disposition.

II. 	LEGAL STANDARD
29. 	Defendant moves to dismiss this action in its entirety pursuant to both
Rule 12(b)(1) and Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. “Rule
12(b)(1) requires the dismissal of any action ‘based upon a trial court’s lack of
jurisdiction over the subject matter of the claim.’” Watson v. Joyner-Watson, 263 N.C.
App. 393, 394 (2018) (quoting N.C. R. Civ. P. 12(b)(1)). “The plaintiff bears the burden
of establishing subject matter jurisdiction.” Lau v. Constable, 2022 NCBC LEXIS 75,
at **10 (N.C. Super. Ct. July 11, 2022).3
30. 	Pursuant to Rule 12(b)(6), dismissal of a claim is proper if “(1) the
complaint on its face reveals that no law supports the plaintiff’s claim; (2) the
complaint on its face reveals the absence of facts sufficient to make a good claim; or
(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”
Corwin v. Brit. Am. Tobacco, PLC, 371 N.C. 605, 615 (2018). Otherwise, “a complaint
should not be dismissed for insufficiency unless it appears to a certainty that plaintiff
is entitled to no relief under any state of facts which could be proved in support of the
claim.” Sutton v. Duke, 277 N.C. 94, 103 (1970) (emphasis omitted).
31. 	When deciding a motion to dismiss, the Court reviews the allegations in
the light most favorable to the nonmoving party. 	Christenbury Eye Ctr., P.A. v.
Medflow, Inc., 370 N.C. 1, 5 (2017). Nevertheless, the Court is not required “to accept
as true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Good Hope Hosp., Inc. v. N.C. HHS, Div. of Facility Servs.,
3 Although Thomas’s motion states that he moves pursuant to both Rule 12(b)(1) and Rule
12(b)(6), Thomas does not reference Rule 12(b)(1) in his briefing.

174 N.C. App. 266, 274 (2005) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.
2002)).
32. 	Furthermore, 	the 	Court 	may 	consider 	documents 	attached 	to 	the
pleadings, to which the Complaint specifically refers, including a contract that forms
the basis of an action. See Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 60-61
(2001).
33. 	Both 	parties 	request 	that 	the 	Court 	consider 	certain 	evidence
extraneous to the Complaint when deciding which State’s law applies to the contract
claims. Our Court of Appeals has stated:
If, on a motion asserting the defense numbered (6), to
dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties shall be given
reasonable 	opportunity 	to 	present 	all 	material 	made
pertinent to such a motion by Rule 56.
N.C. Bar v. Cooper, No. COA22-725, 2024 N.C. App. LEXIS 329 at *8-9 (Apr. 16, 2024)
(quoting Weaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 203-04 (2007)
(citation omitted) (emphasis in original)).
34. 	It is well-established that summary judgment is only appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, show that there is no genuine issue as to any material fact and
that any party is entitled to judgment as a matter of law. 	A “genuine issue” is one
that can be maintained by substantial evidence. When reviewing such a motion, the

Court views the evidence in the light most favorable to the non-moving party. Value
Health Sols., Inc. v. Pharm. Rsch. Assocs., Inc., 385 N.C. 250, 267 (2023).
35. 	Even when a claim cannot be fully adjudicated on motion, the Court
“shall 	if 	practicable 	ascertain 	what 	material 	facts 	exist 	without 	substantial
controversy . . . [i]t shall thereupon make an order specifying the facts that appear
without substantial controversy[.]” N.C. R. Civ. P. 56(d).
III. 	ANALYSIS
36. 	Thomas argues that (1) the restrictive covenants contained in the
Employment Agreement are unenforceable under both Illinois and North Carolina
Law, and (2) Elior fails to allege that Thomas engaged in any other actionable wrong.
(Def.’s Mem. Supp. of Mot. to Dismiss [“Def.’s Br. Supp”] ECF No. 13.) Elior responds
that North Carolina law applies to both the contract and tort claims, and it argues
that the facts alleged are sufficient to state the various claims brought. (Pl.’s Opp. to
Def.’s Mot. to Dismiss [“Pl.’s Br. Opp.”] ECF No. 27.) The Court addresses the claims
seriatim.
A. 	Breach of Contract
37. 	Plaintiff’s 	first 	three 	causes 	of 	action 	are 	for 	breach 	of 	the
confidentiality, noncompetition, and non-solicitation provisions in the Employment
Agreement.
1. Applicable Law
38. 	Despite a choice of law provision providing that the parties selected
North Carolina as the governing state’s law, Defendant argues that the Court should
apply Illinois law to the restrictive covenant claims because Illinois’s interest is

“materially greater” than North Carolina’s interest in those claims. (Def.’s Br. Supp.
4.) Defendant contends because Thomas was and is a resident of Illinois, he received
and executed the contract in Illinois, Thomas worked in Illinois, and the alleged harm
involved Illinois school districts and information regarding Illinois schools, Illinois’s
interest is greater than North Carolina’s interest. 	(Def.’s Br. Supp. 4.) 	This is
important, Defendant maintains, because both the Illinois courts and its General
Assembly “have expressed that it is the fundamental policy of Illinois that, absent
other meaningful consideration, two years of employment is required for a restrictive
covenant to be deemed supported by adequate consideration.” (Def.’s Br. Supp. 5.)
39. 	Plaintiff responds that not only does the contract have a valid choice of
law provision, but also the last act necessary to form the contract—Elior’s signature—
occurred in North Carolina. 	Therefore, Plaintiff contends, it must be interpreted
according to North Carolina law. (Pl.’s Br. Opp. 5.)
40. 	North Carolina has adopted the approach sanctioned by Section 187 of
the Restatement (Second) of Conflict of Laws. 	Behr v. Behr, 46 N.C. App. 694, 696
(1980). Section 187 provides in relevant part:
(2) The law of the state chosen by the parties to govern their contractual
rights and duties will be applied, even if the particular issue is one which
the parties could not have resolved by an explicit provision in their
agreement directed to that issue, unless either
(a) the chosen state has no substantial relationship to the
parties 	or 	the 	transaction 	and 	there 	is 	no 	other
reasonable basis for the parties’ choice, or
(b) application of the law of the chosen state would be
contrary to a fundamental policy of a state which has a
materially greater interest than the chosen state in the

determination of the particular issue and which, under
the rule of § 188, would be the state of the applicable
law in the absence of an effective choice of law by the
parties.
Restatement (Second) of Conflict of Laws § 187. Accordingly, “[t]he parties’ choice of
law is generally binding on the interpreting court as long as they had a reasonable
basis for their choice and the law of the chosen State does not violate a fundamental
policy of the state of otherwise applicable law.” Behr, 46 N.C. App. at 696.
41. 	Before considering whether a public policy exception to the Employment
Agreement’s choice of law provision applies, the Court must first determine whether
another state’s law would be “the state of otherwise applicable law” absent the choice-
of-law provision. 	Wachovia Bank v. Harbinger Cap. Partners Master Fund I, Ltd.,
2008 NCBC LEXIS 6, at **30 (N.C. Super. Ct. Mar. 13, 2008). In this case, the Court
concludes for the reasons below that North Carolina law would be the state of
otherwise applicable law with respect to the contract claims even if a choice of law
provision did not exist. Consequently, the public policy of the State of Illinois is not
relevant.
42. 	North 	Carolina 	“follows 	the 	general 	rule 	that 	the 	validity 	and
construction of a contract are to be determined by the law of the place where the
contract is made.” 	Nytco Leasing Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 640
(1976); see also Clapper v. Press Ganey Assocs., LLC, No. COA23-372, 2023 N.C. App.
LEXIS 697, at **11 (Nov. 7, 2023) (“The initial inquiry . . . depends on where the
contract was entered into.”); Tanglewood Land Co. v. Byrd, 299 N.C. 260, 262 (1980)
(“[T]he interpretation of a contract is governed by the law of the place where the

contract was made.”). 	“Under North Carolina law, a contract is made in the place
where the last act necessary to make it binding occurred.” Tom Togs, Inc. v. Ben Elias
Indus. Corp., 318 N.C. 361, 365 (1986); see also Bundy v. Commercial Credit Co., 200
N.C. 511, 515 (1931) (“[T]he test of the place of a contract is as to the place at which
the last act was done by either of the parties essential to a meeting of the minds.”).
43. 	The 	Employment 	Agreement 	contains 	the 	following 	language
immediately above the signature lines for both “Employee” and “Company”: IN
WITNESS WEREOF, the Parties, intending to be legally bound, execute this
Agreement.” (Employment Agreement 3.) Thus, the Employment Agreement, by its
terms, requires the signatures of both parties, the Employee (Thomas) and the
Company (Elior), to be binding.
44. 	It is undisputed that Thomas signed the Employment Agreement via
DocuSign in Illinois on 1 October 2021. 	(Def.’s Br. Supp. 4; Pl.’s Br. Opp., Ex. 1
[“Williams Aff.”] ¶¶ 3-4, ECF No. 27.2.; Williams Aff, Ex. 2 [“DocuSign Audit Trail”]
ECF No. 27.4.) 	Forty-five seconds later, the Employment Agreement was signed in
North Carolina by Edward Mendoza on behalf of Elior.4 	(Employment Agreement;
4 Williams testified that Thomas signed the Employment Agreement at 9:58:11 a.m. Pacific
Time and that Edward Mendoza subsequently signed it at 9:58:56 a.m. Pacific Time.
(See Williams Aff. ¶ 3.) 	The DocuSign Audit Trail, however, shows that the Employment
Agreement was signed by Thomas at 7:58:11 a.m. Pacific Time and then by Mr. Mendoza at
7:58:56 a.m. Pacific Time. 	Regardless of which time is correct, both the Affidavit and the
accompanying Audit Trail evidence that Mr. Mendoza signed the contract after Thomas.

Williams Aff. ¶ 3; DocuSign Audit Trail.)5 	According to the undisputed evidence,
then, the last act necessary to create a binding contract occurred in North Carolina.
45. 	Defendant relies on the Court of Appeals’ decision in Schwarz v. St. Jude
Med., Inc. for the proposition that an employer’s countersignature is not necessary
for an employment agreement to be binding. (Defs.’ Reply in Supp. of Mot. to Dismiss
1-2, ECF No. 39.) However, unlike the agreement in Schwarz, which did not specify
that the employer’s signature was required to bind the parties, Schwarz v. St. Jude
Med., Inc., 254 N.C. App. 747, 759 (2017), the language immediately above the
signature lines in the Employment Agreement specifies that each signature reflects
that party’s intention to be legally bound to its terms. The Court concludes that this
case is more analogous to the facts of Bundy v. Commercial Credit Co., in which a
contract negotiated in North Carolina was not enforceable until it was signed by the
company’s officials. Bundy, 200 N.C. at 514-15.
46. 	Given that the last act necessary for the Employment Agreement to be
enforceable occurred in North Carolina, Illinois would not be the “state of applicable
law” even in the absence of the choice of law provision. 	Therefore, no basis exists
5 With respect to the issue of where the contract was formed, both parties requested that
extraneous evidence be considered and that this aspect of the Motion be treated as one for
summary judgment. 	(Hr’g Trans. 28:1-18; 46:14-25; 47:1-4, ECF No. 47.) 	See Fowler v.
Williamson, 39 N.C. App. 715, 717 (1979) (“Where extraneous matter is received and
considered on a Rule 12(b)(6) motion to dismiss, the motion should be treated as a motion for
summary judgment and disposed of in the manner and on the conditions stated in [N.C. R.
Civ. P. 56].”). Because the Court has, at the urging of both parties, considered the Williams
Affidavit, and because the Court has concluded that no genuine issue of material fact exists
with respect to a determination that the last act necessary to form the contract occurred in
North Carolina, this aspect of the Court’s Order and Opinion is decided pursuant to Rule
56(d) of the North Carolina Rules of Civil Procedure.

upon 	which 	to 	entertain 	an 	argument 	regarding 	the 	public 	policy 	of 	Illinois.
Accordingly, the Court gives effect to the choice of law provision and analyzes the
restrictive covenants under North Carolina law to determine whether Plaintiff has
stated claims that can withstand Defendant’s Rule 12(b)(6) motion. 	Troublefield v.
Automoney, Inc., 284 N.C. App. 494, 498 (2022) (“When ‘parties to a contract have
agreed that a given jurisdiction’s substantive law shall govern the interpretation of
the contract, such a contractual provision will be given effect.’” (quoting Tanglewood
Land Co., 299 N.C. at 262).)
2. Consideration
47. 	Defendant 	contends 	that 	the 	Complaint 	fails 	to 	allege 	that 	the
Employment Agreement is supported by consideration. 	(See Def.’s Br. Supp. 7-8.)
Specifically, Thomas argues that because he began working for Elior on 30 August
2021 and the Employment Agreement was not executed until 1 October 2021, his
employment 	cannot 	serve 	as 	a 	consideration 	for 	the 	Employment 	Agreement.
(Def.’s Br. Supp. 7.)
48. 	Elior responds that the parties agreed that Thomas would be subject to
restrictive covenants prior to the start of his employment. 	It contends that the fact
that execution of their written agreement did not occur until weeks later has no legal
effect. (Pl.’s Br. Opp. 10-11.) The Court disagrees.
49. 	“[W]hen 	the 	relationship 	of 	employer 	and 	employee 	is 	already
established without a restrictive covenant, any agreement thereafter not to compete
must be in the nature of a new contract based upon a new consideration.” 	Forrest

Paschal Machinery Co. v. Milholen, 27 N.C. App. 678, 686-87 (1975) (quoting Greene
Co. v. Kelley, 261 N.C. 166, 168 (1964)). 	However, “covenants not to compete which
were part of the original verbal employment contract, are founded on valuable
consideration.” Wade S. Dunbar Ins. Agency, Inc. v. Barber, 147 N.C. App. 463, 468
(2001).
50. 	Here, Elior’s offer letter to Thomas specified that he would receive and
be required to execute “[b]efore or on [his] first day of employment,” an Employment
Agreement 	with 	restrictive 	covenants, 	as 	well 	as 	terms 	regarding 	severance.
Importantly, however, the offer letter provided no further details. (See Offer Letter.)
Unlike the facts in Dunbar, nothing in the Complaint suggests that the parties
reached a verbal agreement with respect to the restrictions prior to the start of
Thomas’s employment. See Dunbar, 147 N.C. App. at 468; Stevenson v. Parsons, 96
N.C. App. 93, 97 (1989) (“We hasten to point out . . . that the terms of such an oral
covenant later executed in writing must have been agreed upon at the time of
employment in order for the latter written covenant to be enforceable.”).
51. 	Here, Thomas accepted a written offer of employment and began work.
For reasons not alleged, he did not sign the Employment Agreement until a month
later. Therefore, although restrictive covenants were contemplated in general in the
offer letter and Thomas’s employment was conditioned on his acceptance of an
Employment Agreement detailing those terms, there is no allegation that the
restrictions themselves were even disclosed to Thomas, much less agreed upon, until
a month after Thomas’s employment began, when he signed the Employment

Agreement. Therefore, Thomas’s employment does not provide consideration for the
restrictive covenants.
52. 	However, 	Plaintiff 	alleges 	that 	Thomas 	received 	additional
consideration after he started work that may support the restrictive covenants. The
Employment Agreement not only detailed the confidentiality, noncompetition, and
non-solicitation obligations, but also it provided for three to six months of severance,
depending on the circumstances. 	(Employment Agreement § 8.) 	Furthermore,
Thomas again acknowledged the restrictive covenants in his executed Employment
Agreement when he was presented with, and accepted, Elior’s Commission Plan on
17 December 2021, well before his resignation in October 2022. The Commission Plan
specifies that Thomas’s eligibility to earn commissions was conditioned on “an
executed 	Employment 	Agreement 	which 	includes 	without 	limitation 	[Elior’s]
Confidentiality, Non-Competition and Non-Solicitation policies.” 	(Compl. ¶ 38;
Commission Plan.)
53. 	The Court concludes, therefore, that the Complaint adequately alleges
the existence of consideration to support the restrictive covenants, and Defendant’s
Motion to Dismiss on that basis is DENIED.
3. Breach of Confidentiality Obligations
54. 	Turning 	to 	the 	confidentiality 	obligations 	in 	the 	Employment
Agreement, Defendant argues that Plaintiff fails to state a claim for breach because
Elior does not allege that Thomas emailed to himself the information he allegedly
used to solicit customers in violation of the confidentiality provision. 	Thomas

concludes, therefore, that Elior’s claim for breach must be based on an unrecognized
theory of inevitable disclosure. (See Def.’s Br. Supp. 10-13.) The Court disagrees.
55. 	The Complaint alleges not only that Thomas emailed himself documents
that contained Confidential Information, (Compl. ¶ 68(a)), but also that, upon
information and belief, Thomas used “Plaintiff’s customer lists, financial records
and/or payment terms to undercut Plaintiff’s contract terms with Plaintiff’s then-
current customers, including Cahokia School District 187 and East Aurora School
District 131[.]” (Compl. ¶ 68(b); see also Compl. ¶¶ 58-61.) 	The definition of
“Confidential Information” in the Employment Agreement includes all three types of
information, and the described use of this information is alleged to be a breach of the
confidentiality provisions of the Employment Agreement. 	(Compl. ¶¶ 69-70.) 	The
allegations are sufficient to state a claim for breach.6 Poor v. Hill, 138 N.C. App. 19,
26 (2000) (the elements of a breach of contract claim are “(1) [the] existence of a valid
contract and (2) [a] breach of the terms of that contract.”).
56. 	Accordingly, Defendant’s Motion to Dismiss as to Plaintiff’s claim for
breach of the confidentiality obligations (Count I) is DENIED.
6 Contrary to Defendant’s argument, it does not appear to the Court that Plaintiff relies on
the theory of inevitable disclosure to support a breach of contract claim. Defendant is correct,
however, that such a theory has not been recognized by the appellate courts of this State.
See, e.g., Se. Anesthesiology Consultants v. Charlotte-Mecklenburg Hosp. Auth., 2018 NCBC
LEXIS 137, at *57-59 (N.C. Super. Ct. June 22, 2018) (observing that a federal district court’s
prediction that North Carolina would adopt and apply the inevitable disclosure doctrine
“ha[d] still not come to fruition” nearly twenty-two years later (citing Merck & Co. v. Lyon,
941 F. Supp. 1443, 1459 (M.D.N.C. 1996))); NFH, Inc. v. Troutman, 2019 NCBC LEXIS 66,
at *44 (N.C. Super. Ct. Oct. 29, 2019) (holding that an allegation of inevitable disclosure is
insufficient to state a breach of contract claim); cf. Travenol Labs., Inc. v. Turner, 30 N.C.
App. 686, 693 (1976) (declining to award injunctive relief on the basis of inevitable disclosure
and observing that “North Carolina courts have never enjoined an employee from working
for a competitor merely to prevent disclosure of confidential information.”).

4. Breach of Noncompetition Provision
57. 	“In North Carolina, covenants not to compete are considered restraints
on trade and are closely scrutinized.” Prometheus Grp. Enters., LLC v. Gibson, 2023
NCBC LEXIS 42, at **11 (N.C. Super. Ct. Mar. 21, 2023); see also Washburn v.
Yadkin Valley Bank & Trust Co., 190 N.C. App. 315, 323 (2008) (“Covenants not to
compete restrain trade and are scrutinized strictly.”); ChemiMetals Processing, Inc.
v. McEneny, 124 N.C. App. 194, 197 (1996) (“Our Courts have a long history of
carefully scrutinizing . . . covenants that prevent an employee from competing with
his former employer.”).
58. 	“[F]or a non-competition agreement to be valid and enforceable it must
be: ‘(1) in writing; (2) part of an employment contract; (3) based on valuable
consideration; (4) reasonable as to time and territory; and (5) designed to protect a
legitimate business interest.’ ” Aeroflow Inc. v. Arias, 2011 NCBC LEXIS 21, at **16
(N.C. Super. Ct. July 5, 2011) (quoting Med. Staffing Network, Inc. v. Ridgway, 194
N.C. App. 649, 655 (2009)). 	“Legitimate business interests include, inter alia,
protecting 	the 	goodwill 	that 	arises 	from 	the 	former 	employee’s 	contacts 	with
customers 	and 	safeguarding 	the 	confidential 	information 	to 	which 	the 	former
employee had access.” Prometheus Grp. Enters., LLC, 2023 NCBC LEXIS 42, at **12;
see also United Labs., Inc. v. Kuykendall, 322 N.C. 643, 652-53 (1988) (“When an
employee, during the course of his or her employment, develops or improves customer
relationships, the employee is establishing business goodwill, which is a valuable
asset of the employer[.]” (emphasis in original)).

59. 	Whether a restrictive covenant is reasonable and enforceable is a matter
of law for the Court to decide. See, e.g., Med. Staffing Network, Inc., 194 N.C. App. at
655; Keith v. Day, 81 N.C. App. 185, 193 (1986). 	Therefore, the Court analyzes the
noncompetition provision “keeping in mind that the ultimate determination depends
on whether each restraint is no more restrictive than necessary to protect the
legitimate business interest implicated.” Digit. Realty Trust, Inc. v. Sprygada, 2022
NCBC LEXIS 71, at **24 (N.C. Super. Ct. July 1, 2022).
60. 	Defendant 	contends 	that 	the 	noncompetition 	provision 	in 	his
Employment Agreement is overbroad and therefore unenforceable. 	The Court
disagrees. 	The 	noncompetition 	provision 	limits 	Thomas 	from 	“engag[ing] 	in
Competitive Activity within the Prohibited Territory” for twelve months following his
separation from Elior. 	(Employment Agreement § 4(a).) 	“Competitive Activity” is
limited to the “same” or “substantially similar work” that Thomas performed on
behalf of Elior or an Elior Affiliate. (Employment Agreement § 4(a).) 	An “Affiliate”
refers to “(a) Elior’s parent company[,] (b) any Elior subsidiary, (c) Elior joint ventures
or (d) any entity owned (in whole or in part) by Elior.” (Employment Agreement § 1.)
The “Prohibited Territory” is limited to “each: (i) city, (ii) county, (iii) parish, and (iv)
state where, at any time twelve (12) months prior to [Thomas’s] Separation Date,
[he]: (i) was assigned responsibility on [Elior] or Affiliate’s behalf; or (ii) performed
services on [Elior] or Affiliate’s behalf.” (Employment Agreement § 4(a).)
61. 	Some elasticity exists when analyzing time and territory restrictions
because they are read in tandem to determine their reasonableness. Hartman v. W.

H. Odell & Assocs., 117 N.C. App. 307, 311-12 (1994). Here, the temporal restriction
requires a look-back for twelve months and then extends for twelve months. 	Farr
Assocs., Inc. v. Baskin, 138 N.C. App. 276, 280 (2000) (explaining that the “look-back”
period must be added to the restrictive period to determine the length of the time
limitation). It is still relatively short at two years. Harwell Enters., Inc. v. Heim, 276
N.C. 475, 481 (1970) (upholding a two-year restriction); Dunbar, 147 N.C. App. at 469
(same); Triangle Leasing Co. v. McMahon, 327 N.C. 224, 229 (1990) (observing that
where the activity prohibited is “narrowly confined[,]. . . a two year time restriction
is not improper.”).
62. 	The reasonableness of the territorial restriction is evaluated using six
factors:
(1) the area, or scope, of the restriction; (2) the area
assigned to the employee; (3) the area where the employee
actually worked or was subject to work; (4) the area in
which the employer operated; (5) the nature of the business
involved; and (6) the nature of the employee's duty and his
knowledge of the employer’s business operation.
Hartman, 117 N.C. App. at 312. 	Thomas’s Employment Agreement restricts him
from competing only in the cities, counties, parishes, and states where Thomas was
assigned responsibility or performed services at any time twelve months prior to his
Separation Date. At this stage, the Court does not conclude that such a restriction
is unreasonable, particularly given its relatively short duration.
63. 	As for the scope of the restriction, while our appellate courts have
consistently held that restrictions that purport to prohibit former employees from
associating 	in 	any 	capacity 	with 	businesses 	providing 	similar 	services 	are

unenforceable, noncompetition provisions that restrict a former employee from
engaging in the same or similar work for a competitor that he performed on behalf of
his former employer are generally enforceable. See e.g., Precision Walls, Inc. v. Servie,
152 N.C. App. 630, 638-39 (2002) (enforcing covenant limited to prohibiting employee
from working in an identical position for a direct competitor); cf. Okuma Am. Corp. v.
Bowers, 181 N.C. App. 85, 91-92 (2007) (enforcing covenant allowing employee to
work for a competitor in a capacity unrelated to his former employer’s business). In
this instance, use of the word “similar” does not render the noncompetition provision
unenforceable. The prohibition is on the type of work Thomas performed on behalf of
Elior or its Affiliate, not on any position that he might take with a business that is
similar.
64. 	Use 	of 	the 	word “affiliate” 	can also lead to 	overbreadth 	in 	some
circumstances. 	See e.g., Med. Staffing Network, Inc., 194 N.C. App. at 657 (finding
no “legitimate business interest in preventing competition with . . . an unrestricted
and undefined set of [the employer’s] affiliated companies that engage in business
distinct from the [former employer.]”); Prometheus Grp. Enters., 2023 NCBC LEXIS
42, at **16-17 (refusing to enforce noncompete that attempted to restrict former
employee from joining a “related” business); Digit. Realty Trust, Inc., 2022 NCBC
LEXIS 	71, 	at 	**37-38 (“Defining 	the 	scope 	of 	a noncompete by 	including
unnamed affiliates and subsidiaries . . . is a perilous course.” (citing Rel. Ins. Inc. v.
Pilot Risk Mgmt. Consulting, LLC, 2022 NCBC LEXIS 49, at *35 (N.C. Super. Ct.
May 25, 2022))). 	Indeed, in his brief, Thomas asks the Court to take judicial notice

of the fact that Elior is the parent of at least twelve subsidiaries that service
numerous industries. (Def.’s Br. Supp. fn. 1.)
65. 	Here, however, the reference to “Affiliate” is again linked to Thomas’s
former duties. He must have been assigned responsibility for, or performed work on
behalf of, the Affiliate for it to be relevant to the analysis. Thus, the word “Affiliate”
is used to define the scope of the employee’s former duties, not to limit Thomas’s
ability to take an unrelated position with a business that competes in some capacity
with one of Elior’s Affiliates. 	Used in that context, the reference to Elior’s Affiliate
does not create overbreadth.
66. 	As for breach, Plaintiff has alleged that Thomas is now employed by
OrganicLife—Elior’s direct competitor. 	Elior alleges that Thomas is currently
working as Vice President of Strategic Development for OrganicLife in Illinois, a state
in which Thomas performed services for Elior, and that he is “providing sales,
marketing, and business development services to OrganicLife that are the same or
similar to the function and services he provided to Plaintiff.” (Compl. ¶¶ 77-78, 80.)
As such, Plaintiff has sufficiently stated a claim for breach of contract with respect to
the Employment Agreement’s noncompetition obligations.
67. 	Accordingly, Defendant’s Motion to Dismiss as to Plaintiff’s claim for
breach of the Employment Agreement’s noncompetition provisions (Count II) is
DENIED.
5. Breach of Non-Solicitation Obligations

68. 	Thomas’s 	brief 	does 	not 	speak 	to 	the 	employee 	non-solicitation
provision, so the Court does not address it. 	Instead, Thomas argues that Plaintiff’s
claim for breach of the customer non-solicitation obligations should be dismissed as
overbroad because the provision extends, not to those customers with whom he had
meaningful contacts, but to any customer with whom Thomas had any contact or
communication 	at 	all, 	regardless 	of 	the 	extent 	or 	purpose 	of 	the 	contact 	or
communication. (See Def.’s Br. Supp. 10.)
69. 	Elior responds that “the dispositive factor is not ‘materiality’ of contact
with the customer, but whether the employee had contact with or knowledge about
the customer during their employment.” (Pl.’s Br. Opp. 14 (emphasis omitted).)
70. 	The same requirements used to analyze noncompetition restrictions
apply to non-solicitation restrictions. Wells Fargo Ins. Servs. USA, Inc. v. Link, 2018
NCBC LEXIS 42, at *27 (N.C. Super. Ct. May 8, 2018). 	However, non-solicitation
agreements may be more easily enforced. 	Asheboro Paper & Packaging, Inc. v.
Dickinson, 599 F. Supp. 2d 664 (M.D.N.C. Feb. 19, 2009); Sandhills Home Care,
L.L.C. v. Companion Home Care - Unimed, Inc., 2016 NCBC LEXIS 61, at **36 (N.C.
Super. Ct. Aug. 1, 2016). This is because, in many cases, non-solicitation provisions
are “more tailored and less onerous on employees’ ability to earn a living” than
noncompete restrictions. 	McGriff v. Hudson, 2023 NCBC LEXIS 4, at **17 (N.C.
Super. Ct. Jan. 17, 2023) (quoting Akzo Nobel Coatings, Inc. v. Rogers, 2011 WL
5316772, 2011 NCBC 41 at *10 (N.C. Super. Ct. Nov. 3, 2011)).

71. 	This 	Court 	has 	observed 	that 	“[a] 	customer-based 	restriction 	on
solicitation is analyzed in much the same manner as a geographic restriction, taking
into consideration many of the same factors and, particularly, the time period of the
restriction.” Sandhills Home Care, L.L.C., 2016 NCBC LEXIS 61, at **26 (citing
Dunbar, 147 N.C. App. at 469).
72. 	As for the time period, our Court of Appeals has held that, just as with
noncompetition provisions, the “look-back” rule applies to a customer-based non-
solicitation restriction. 	Sterling Title Co. v. Martin, 266 N.C. App. 593, 599 (2019)
(citing Farr Assocs., Inc., 138 N.C. App. at 280). Applying the look-back rule as stated
above, the restricted period here is either three or four years,7 neither of which is per
se unreasonable.
73. 	However, 	when 	other 	language 	in 	the 	customer 	non-solicitation
provision is considered, the overall result is problematic. Thomas is prohibited from
soliciting or providing services or goods similar to those provided by Elior (or an
Affiliate) if, in the two years prior to his Separation Date, he had any contact,
communications, or performed work for the customer; assisted the customer; or
obtained confidential information about the customer. 	(Employment Agreement
§ 4(b)(ii).) 	Similar language is used to restrict 	the 	solicitation 	of prospective
customers. (Employment Agreement § 4(b)(iii).)
7 The Employment Agreement specifies that the post-employment restriction is twenty-four
(24) months except “where state law prohibits [a post-employment duration of] twenty-four
(24) months, then for the twelve (12) months after [the employee’s] Separation Date.”
(Employment Agreement § 4(b), fn 1.)

74. 	To 	be 	enforceable, 	a 	customer 	non-solicitation 	provision 	should
generally be limited to prohibiting the employee from soliciting customers with whom
the employee “actually had contact during his former employment.” 	Lab. Corp. of
Am. Holdings v. Kearns, 84 F. Supp. 3d 447, 459 (M.D.N.C. Jan. 30, 2015); see also
Aesthetic Facial & Ocular Plastic Surgery Ctr., P.A. v. Zaldivar, 264 N.C. App. 260,
273 (2019) (holding that non-solicitation clause in employment agreement was
unreasonable where it foreclosed solicitation of potential clients “with whom [former
employee] had no relationship”); Farr. Assocs., Inc., 138 N.C. App. at 282 (“[A] client-
based limitation cannot extend beyond contacts made during the period of the
employee’s employment.”); Akzo Nobel Coatings, Inc., 2011 WL 5316772, 2011 NCBC
41 at *11 (“Generally, covenants which seek to restrict a former employee from
competing with future or prospective customers with whom they had no personal
contact during employment fail as unnecessary to protect the legitimate business
interests of the employer.”).
75. 	In Wells Fargo v. Link, this Court observed that, especially when the
customer-based restriction is tied to an affiliate of the former employer, a legitimate
business interest does not arise unless the former employee’s prior contact with the
customer was significant: “[i]f [the defendants] had significant interactions with
customers or prospective customers of affiliate companies of Wells Fargo, Wells Fargo
may 	have 	a 	legitimate 	interest in 	restricting 	them 	from 	soliciting 	those
customers.” 2018 NCBC LEXIS 42, at *16 (N.C. Super Ct. May 8, 2018) (emphasis
added), aff’d per curiam, 372 N.C. 261 (2019); see also Sterling Title Co., 266 N.C.

App. at 598-99 (customer non-solicit covering current or former customers with whom
defendant had “any form of ‘contact’ ” during employment, regardless of extent,
“suggests that the [restriction] is unreasonable.”); Andy-Oxy Co., Inc. v. Harris, No.
COA10-10, 2019 N.C. App. LEXIS 902, at * (Nov. 5, 2019) (“By vaguely referring to
all customers of Andy-Oxy within the restricted area without any limitations in scope
to customers with whom Harris had material contact, the non-solicitation covenant
was overly broad and did not protect a legitimate business interest, rendering it
unenforceable.”); Rel. Ins. Inc., 2022 NCBC LEXIS 49, at *34-35 (holding that
customer-based restriction that could preclude former employee from soliciting
clients or prospective clients with whom they never actually had contact did not
protect the legitimate business interests of the employer); cf. Hejl v. Hood, Hargett &
Assocs., 196 N.C. App. 299, 307 (2009) (finding impermissible a non-solicitation
agreement that included prospective customers for whom defendant had merely
quoted a product or service and extending to areas where plaintiff had no connections
or personal knowledge of customers.).
76. 	Our courts have occasionally found a customer non-solicitation provision
to be enforceable without requiring an allegation that the employee had significant
contact with the customers at issue, but only in situations where the employer’s
customer base was defined such that the employee could easily identify those
customers that were off-limits. 	See e.g., Triangle Leasing Co., 327 N.C. at 229
(upholding a non-solicitation provision where the contract did not “prohibit all
competition 	by 	[Defendant] 	throughout 	North 	Carolina, 	but 	rather 	merely

restrain[ed] him from soliciting the business of plaintiff’s known customers in areas
in which the company operates.”); Dunbar, 147 N.C. App. at 469 (upholding a two-
year prohibition where the employee was prohibited “from soliciting any customers
having an active account with plaintiff at the time of his termination or prospective
customer whom defendant himself had solicited within the six months immediately
preceding his termination.”). No such allegation appears in Elior’s Complaint.
77. 	Relatedly, a prohibition on the solicitation of customers about whom
Thomas had any confidential information is problematic when the term “confidential
information” (lower case) as it applies to customers is left undefined. Cf. Wells Fargo
Ins. Servs. USA, 2018 NCBC LEXIS 42, at *19-20.
78. 	In summary, when, as here, the restriction is written to prevent Thomas
from being able to solicit a customer (or a prospective customer) of Elior (or its
Affiliates) with whom Thomas had even minimal contact, communication, or received
any type of undefined “confidential information,” the provision is too broad to protect
Elior’s legitimate business interests and is therefore unenforceable.
79. 	However, application of the blue pencil doctrine to narrow the restriction
changes the result. 	The doctrine permits North Carolina courts to enforce divisible
or separable sections of restrictive covenants while striking portions that are
unenforceable. Whittaker Gen. Med. Corp. v. Daniel, 324 N.C. 523, 528 (1989) (“If the
contract is separable, however, and one part is reasonable, the courts will enforce the
reasonable provision.” (citing Welcome Wagon, Inc. v. Pender, 255 N.C. 244 (1961)).
The blue pencil doctrine is not a license to rewrite the contract, however. “A court at

most may choose not to enforce a distinctly separable part of a covenant in order to
render the provision reasonable. It may not otherwise revise or rewrite the covenant.”
Hartman, 117 N.C. App. at 317. 	See also Troutman, 2019 NCBC LEXIS 66, at
*33 (North Carolina’s strict blue pencil doctrine allows the court to “avoid scrapping
an entire covenant” by “enforc[ing] the divisible parts of [the] covenant that are
reasonable.”).
80. 	To 	be 	a 	“distinctly 	separable” 	provision, 	other 	restrictions 	in 	the
covenant must not be dependent on the portion to be excised. 	See Sec. Nat'l Invs.,
Inc. v. Rice, No. COA16-215, 2016 N.C. App. LEXIS 1119, at *14 (Nov. 15, 2016).
Ultimately, application of the blue pencil doctrine is within the discretion of the
Court. See McGriff Ins. Servs. v. Hudson, 2023 NCBC LEXIS 4, at **32 (N.C. Super.
Ct. Jan. 17, 2024) (citing Tech. Ptnrs., Inc. v. Hart, 298 F. App'x 238, 243 (4th Cir.
2008) (applying North Carolina law)).
81. 	Here, the provisions of section 4(b)(ii) and 4(b)(iii) are stated in the
disjunctive (using the word “or”), making them separable. 	With respect to section
4(b)(ii), by striking subparts (B) and (C) and limiting subpart (A) to the performance
of work for the customer, one is left with a restriction prohibiting Thomas from
soliciting or providing to any customer of Elior, (or its Affiliate), services or goods
similar to those provided by Elior (or its Affiliate), where in the twenty-four (24)
months 	prior 	to 	Thomas’s 	Separation 	Date, 	Thomas 	performed 	work 	for 	that
customer. 	Narrowed in this way, the provision protects Elior’s legitimate business
interest in its goodwill with the customer and is therefore enforceable.

82. 	As for section 4(b)(iii), by striking subparts (A) and (B)8, one is left with
a restriction prohibiting Thomas from soliciting or providing to any prospective
customer of Elior, (or its Affiliate), services or goods similar to those offered by Elior
(or its Affiliate), where in the twenty-four (24) months prior to Thomas’s Separation
Date, he obtained confidential information about a (proposed) sale to the prospective
customer. 	Again, by limiting the restriction to specific prospective customers about
which Thomas had confidential information, Elior protects a legitimate business
interest.
83. 	Accordingly, with respect to the non-solicitation obligations in the
Employment 	Agreement, 	as 	blue-penciled, 	Defendant’s 	Motion 	to 	Dismiss 	is
DENIED.
B. 	Breach of Covenant of Good Faith and Fair Dealing
84. 	Elior’s claim for breach of the implied covenant of good faith and fair
dealing is based upon Thomas allegedly: (1) taking Plaintiff’s property, including
Plaintiff’s Confidential Information; (2) working for OrganicLife, Plaintiff’s direct
competitor; and (3) soliciting Plaintiff’s customers using, upon information and belief,
Plaintiff’s Confidential Information, all in violation of the Employment Agreement.
(Compl. ¶ 95.)
8 Subpart B is stricken in accordance with the reasoning in Hejl v. Hood Hargett & Associates,
finding a noncompetition restriction unreasonable when it extended to potential clients for
whom the defendant “had merely quoted a product or service.” 196 N.C. App at 307. But see
Dunbar, 147 N.C. App. at 469 (upholding a restriction on prospective customer “whom
defendant 	himself 	had 	solicited 	within 	the 	six 	months 	immediately 	preceding 	his
termination.”)

85. 	North Carolina law has long recognized that a covenant of good faith
and fair dealing is implied in every contract and requires the contracting parties not
to “do anything which injures the rights of the other to receive the benefits of the
agreement.” Bicycle Transit Auth. v. Bell, 314 N.C. 219, 228 (1985) (citation omitted).
It is a “basic principle of contract law that a party who enters into an enforceable
contract is required to act in good faith and to make reasonable efforts to perform his
obligations under the agreement.” 	Maglione v. Aegis Family Health Ctrs., 168 N.C.
App. 49, 56 (2005) (quoting Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 40 N.C.
App. 	743, 	746 	(1979)). 	The 	covenant 	requires 	parties 	to 	avoid 	“arbitrary 	or
unreasonable conduct which has the effect of preventing the other party to the
contract from receiving the [contract’s] fruits.” Wilgus v. Salt Pond Inv. Co., 498 A.2d
151, 159 (Del. Ch. 1985) (interpreting Restatement 2d of Contracts § 205 (1981)).
86. 	The implied covenant of good faith and fair dealing has been called the
“spirit of the contract.” 	Bicycle Transit Authority, Inc., 314 N.C. at 230 (defendant
breached both the “letter and the spirit of the contract.”); accord Allen v. Allen, 61
N.C. App. 716, 720 (1983) (party’s actions were “clear violations of both the letter and
spirit of the contract.”). A material term, the implied covenant is the gap-filler that
guides the parties in the performance of the express terms of the contract. 	Howard
v. IOMAXIS, LLC, 2022 NCBC LEXIS 146, at **15 (N.C. Super. Ct. Dec. 5, 2022).
“‘Evasion of the spirit of the bargain, lack of diligence and slacking off, willful
rendering 	of 	imperfect 	performance, 	abuse 	of 	a 	power 	to 	specify 	terms, 	and
interference with or failure to cooperate in the other party’s performance’ may

constitute breach of the implied covenant.” 	Intersal, Inc. v. Wilson, 2023 NCBC
LEXIS 29, at **67 (N.C. Super. Ct. Feb. 23, 2023) (quoting Restatement 2d of
Contracts § 205 cmt. d (1981)).
87. 	Where, as here, a claim for breach of the implied covenant of good faith
and fair dealing is based upon the same acts as a claim for breach of contract, our
Court of Appeals treats “the former claim as ‘part and parcel’ of the latter.” Cordaro
v. 	Harrington 	Bank, 	FSB, 	260 	N.C. 	App. 	26, 	38-29 	(2018) 	(citing 	Murray 	v.
Nationwide Mut. Ins. Co., 123 N.C. App. 1, 19 (1996), disc. review denied, 345 N.C.
344 (1997)). 	This means that the fate of an implied covenant claim rises and falls
with the fate of the breach of contract claim if it is based on the same underlying
facts. In other words, if the breach of contract claim fails, there can be no breach of
the implied covenant. 	See, e.g., Suntrust Bank v. Bryant/Sutphin Prop., LLC, 222
N.C. App. 821, 833 (2012) (“As the jury determined that plaintiff did not breach any
of its contracts with defendants, it would be illogical for this Court to conclude that
plaintiff somehow breached implied terms of the same contracts.”). 	However, the
converse is also true. 	“Where the breach of contract claim survives, whether the
implied covenant was one of the terms breached remains an issue to be determined.”
Intersal, Inc., 2023 NCBC LEXIS 29, at **68-69.
88. 	In this case, Plaintiff’s breach of contract claim survives. 	Accordingly,
Defendant’s Motion to Dismiss as to Plaintiff’s claim for breach of the implied
covenant of good faith and fair dealing (Count IV) is DENIED.
C. 	Conversion

89. 	In addition to Elior’s contract claims, it asserts tort claims for conversion
and for tortious interference with prospective economic advantage. As our Supreme
Court has stated, “this Court’s jurisprudence favors the use of the lex loci test in cases
involving tort or tort-like claims.” Scigrip, Inc. v. Osae, 373 N.C. 409, 420 (2020). See
also Terry v. Pullman Trailmobile, Div. of Pullman, Inc., 92 N.C. App. 687, 690 (1989)
(citing Boudreau v. Baughman, 322 N.C. 331, 335 (1988)). 	“The law of the place
where the injury occurs controls tort claims, because an act has legal significance only
if the jurisdiction where it occurs recognizes that legal rights and obligations ensue
from it.” Terry, 92 N.C. App. at 690. Accordingly, “under North Carolina law, when
the injury giving rise to a [tort] claim occurs in another state, the law of that state
governs resolution of the substantive issues in the controversy.” Boudreau, 322 N.C.
at 335.
90. 	Elior bases its conversion claim on allegations that Thomas emailed
Elior’s Confidential Information to his personal email account. 	(Compl. ¶¶ 68(a),
100.) The Complaint does not allege whether the resulting injury occurred in Illinois
or North Carolina. However, the Court need not determine which state’s law applies
because Plaintiff has failed to state a claim for conversion under either Illinois or
North Carolina law.
91. 	Under Illinois law, “[t]o prove conversion, a plaintiff must establish that
(1) [it] has a right to the property; (2) [it] has an absolute and unconditional right to
the immediate possession of the property; (3) [it] made a demand for possession; and
(4) the defendant wrongfully and without authorization assumed control, dominion,

or ownership over the property.” Cirrincione v. Johnson, 703 N.E.2d 67, 70 (S. Ct. Ill.
1998).
92. 	Under North Carolina law, conversion “is defined as an unauthorized
assumption and exercise of the right of ownership over goods or personal chattels
belonging to another, to the alteration of their condition or the exclusion of an owner’s
rights.” Addison Whitney, LLC v. Cashion, 2017 NCBC LEXIS 51, at *15 (N.C. Super.
Ct. June 9, 2017) (internal quotation marks and citation omitted).
93. 	In both states, the essence of the tort is deprivation of the property to its
rightful owner. 	Compare id. (“The essence of conversion is not the acquisition of
property by the wrongdoer, but a wrongful deprivation of it to the owner.”), with
Roderick Dev. Inv. Co. v. Cmty. Bank, 282 Ill. App. 3d 1052, 1057 (1 st Dist. 1996) (“The
essence of conversion is the wrongful deprivation of one who has a right to the
immediate possession of the object unlawfully held.”).
94. 	Elior alleges that Thomas forwarded emails and other documents from
his work email address to his personal email address, (Compl. ¶¶ 46-48), but there is
no allegation that the information on Elior’s computer system was deleted or that
Elior was otherwise deprived of access to those emails or documents. As such, Elior
has failed to state a claim for conversion under both North Carolina and Illinois law.9
9 Given the Court’s conclusion, it does not address Defendant’s argument with respect to the
economic loss rule.

95. 	Accordingly, Defendant’s Motion to Dismiss as to Plaintiff’s claim for
conversion 	(Count 	V) 	is 	GRANTED, 	and 	this 	claim 	is 	DISMISSED 	without
prejudice.10
D. 	Violation of the North Carolina Trade Secrets Protection Act
96. 	North Carolina also applies the lex loci delicti rule to misappropriation
of trade secret claims. See SciGrip, Inc. 373 N.C. at 420 (“[T]he proper choice of law
rule for use in connection with our evaluation of [Plaintiff’s] misappropriation of trade
secrets claim is the lex loci test.”).
97. 	As previously discussed, under the lex loci rule, “[t]he law of the place
where 	the 	injury 	occurs 	controls 	tort 	claims[.]” 	Terry, 	92 	N.C. 	App. 	at 	690.
“[O]rdinarily, the state where the last event necessary to make the actor liable or the
last event required to constitute the tort takes place, applies.” Env’t Holdings Grp.,
LLC v. Finch, 2022 NCBC LEXIS 45, at **16 (N.C. Super. Ct. May 16, 2022) (quoting
SciGrip, 373 N.C. at 420); see also RoundPoint Mortg. Co. v. Florez, 2016 NCBC
LEXIS 18, at **57 (N.C. Super. Ct. Feb. 18, 2016) (“In applying the lex loci test, the
plaintiff’s injury is considered to be sustained in the state where the last act occurred
giving rise to the injury.” (cleaned up)).
98. 	Defendant contends that the alleged misappropriation took place in
Illinois, and thus, the North Carolina Trade Secrets Protection Act is inapplicable.
(Def.’s Br. Supp. fn. 11.) 	Elior responds that the Complaint does not contain
10 “The decision to dismiss an action with or without prejudice is in the discretion of the trial
court[.]” First Fed. Bank v. Aldridge, 230 N. C. App. 187, 191 (2013).

“allegations as to locations,” and that the allegations leave open the possibility that
the last act happened in North Carolina. (Pl.’s Br. Opp. 21.)
99. 	But the Complaint fails to allege any fact that would support an
inference that the last act giving rise to the injury occurred anywhere other than in
Illinios. Elior alleges that Thomas is currently a resident of Illinois, that Thomas was
a resident of Illinois during his employment, that Thomas’s position was remote, that
his sales territory included Illinois, and that the alleged misappropriation occurred
in connection with CSD 187 and EASD 131 (two Illinois school districts). (Compl. ¶¶
8, 41, 60-61, 108; Offer Letter.) 	There are no allegations in the Complaint that
Thomas engaged in misconduct in North Carolina, only that Elior, the allegedly
injured 	party, 	maintains 	its 	principal 	place 	of 	business 	in 	North 	Carolina.
(Compl. ¶ 6.)
100. 	Because Elior has not alleged that the last act, or indeed any act
contributing to the alleged misappropriation, occurred in North Carolina, the North
Carolina Trade Secrets Protection Act does not apply. 	Accordingly, Defendant’s
Motion to Dismiss Plaintiff’s claim for violation of the North Carolina Trade Secrets
Protection Act (Count VI) is GRANTED, and this claim is DISMISSED without
prejudice.

E. 	Violation of the North Carolina UDTPA
101. 	To state a claim under the North Carolina UDTPA, a plaintiff must
allege: “(1) defendant committed an unfair or deceptive act or practice, (2) the action
in question was in or affecting commerce, and (3) the act proximately caused injury
to the plaintiff.” Krawiec v. Manly, 370 N.C. 602, 612 (2018).
102. 	Elior’s UDTPA claim is premised upon Thomas’s alleged breach of the
confidentiality provisions of the Employment Agreement and Thomas’s alleged
misappropriation of trade secrets. (See Compl. ¶¶ 118-19.)
103. 	Plaintiff’s claim for misappropriation of trade secrets pursuant to the
NCTSPA fails, and its UDTPA claim premised on the misappropriation of trade
secrets claim fails as well. 	See, e.g., Krawiec, 370 N.C. at 613; Combs & Assocs. v.
Kennedy, 147 N.C. App. 362, 374 (2001); AmeriGas Propane, L.P. v. Coffey, 2015
NCBC LEXIS 98, at **40-41 (N.C. Super. Ct. Oct. 15, 2015).
104. 	Moreover, 	“a 	mere 	breach 	of 	contract, 	even 	if 	intentional, 	is 	not
sufficiently unfair or deceptive to sustain [a UDTPA claim].” 	Branch Banking &
Trust Co. v. Thompson, 107 N.C. App. 53, 62 (1992). 	However, Elior alleges that
Thomas 	engaged 	in 	deceptive 	conduct 	when 	he 	breached 	the 	confidentiality
provisions of the Employment Agreement. While allegations of a simple breach alone
will not support a UDTPA claim, allegations that the breach was accomplished
through fraud or other deceptive conduct will. 	Mosley & Mosley Builders, Inc. v.
Landin, Ltd., 97 N.C. App. 511, 518 (1990) (“A mere breach of contract does not

constitute an unfair or deceptive trade practice. The conduct must be fraudulent or
deceptive.”).
105. 	Even 	so, 	as 	discussed 	above, 	Elior’s 	injury 	for 	breach 	of 	the
confidentiality provisions in the Employment Agreement was sustained in Illinois,
the state where the last act occurred giving rise to the injury. 	Therefore North
Carolina’s Unfair and Deceptive Trade Practices Act does not apply.11 Accordingly,
Defendant’s 	Motion 	to 	Dismiss 	as 	to 	Plaintiff’s 	UDTPA 	claim 	(Count 	VII) 	is
GRANTED, and this claim is DISMISSED without prejudice.
F. 	Tortious Interference with Prospective Advantage
106. 	North 	Carolina 	also 	applies 	the 	lex 	loci 	delicti 	rule 	to 	tortious
interference claims. 	See Soma Tech. v. Dalamagas, 2017 NCBC LEXIS 43, *18-19
(N.C. Super. Ct. May 11, 2017). “North Carolina does not recognize a bright line rule
that a plaintiff suffers its injury at its principal place of business[.]” Id. at *19.
Instead, the Court “must analyze and determine where a plaintiff in fact sustained
its alleged injury to determine choice of law.” Id.
107. 	Elior contends that its alleged injury occurred when Thomas used its
Confidential Information to solicit customers, including CSD 187 and EASD 131 on
behalf of OrganicLife. 	(Compl. ¶ 127.) 	There is no allegation that Thomas has
interfered with prospective or actual customer relationships outside of Illinois, and
Plaintiff’s conclusory allegation that Thomas is interfering in its relationships with
11 The same would be true if the “most significant relationship” test were applied. See Env’t
Holdings Grp., LLC, 2022 NCBC LEXIS 45, at **13 (‘[i]t is currently unsettled in North
Carolina whether a UDTP claim . . . is analyzed under the lex loci test or the most significant
relationship test.”).

“other customers” is not enough. 	Since the named school districts are located in
Illinois, Elior’s alleged injury was in Illinois. See Soma Tech., 2017 NCBC LEXIS 43,
at *21-22 (holding that where defendants’ conduct caused a business to cease doing
business with plaintiff in India, plaintiff’s injury occurred in India). Therefore, under
the lex loci delicti rule, Illinois law applies to Plaintiff’s tortious interference with
prospective (economic) advantage claim.
108. 	To successfully plead tortious interference with prospective economic
advantage under Illinois law, Elior must allege that “(1) [it] had a reasonable
expectancy of a valid business relationship; (2) [Thomas] knew about the expectancy;
(3) [Thomas] intentionally interfered with the expectancy and prevent[ed] it from
ripening into a valid business relationship; and (4) the intentional interference
injured the plaintiff.” 	Boffa Surgical Grp. LLC v. Managed Healthcare Assocs., 47
N.E.3d 569, 577 (1 st Dist. 2015).
109. 	In September 2021, the Illinois First District Court of Appeals held in
an unpublished opinion that “[i]t is not reasonable . . . to expect the existence of a
current renewable service contract to serve as a guarantee that the agreement would
continue indefinitely.” 	CD Consortium Corp. v. St. John Cap. Corp., 2021 Ill. App.
Unpub. LEXIS 1677, at **7 (Sept. 30, 2021). 	The Court determined that alleging a
“mere hope” that customers would not terminate the automatic renewal of their

contracts did not sufficiently allege the “reasonable expectancy” necessary to state a
claim for tortious interference. Id. at **8.12
110. 	Here, 	Elior 	alleges 	that 	EASD 	131 	had 	been 	Elior’s 	“long-time
customer” 	since 	2016—well 	before 	Thomas 	became 	employed 	by 	Elior.
(Compl. ¶¶ 42, 60.) 	It alleges that Elior was awarded a Food Service Management
Contract with EASD 131 in January 2022 “through the rebid process for which
Thomas received a commission.” (Compl. ¶ 42.) It alleges that on or around 26 July
2022, Thomas submitted a proposal to EASD 131 on Elior’s behalf for a contract that
was effective from 21 August 2022 through June 2023. (Compl. ¶ 44.) Elior alleges
that school districts “typically re-new (sic) contracts without re-opening the bidding
process” but it admits that a competitor may persuade them to do so. (Compl. ¶ 19.)
111. 	Elior alleges that on 23 March 2023, Thomas submitted a proposal on
behalf of OrganicLife using Elior’s confidential pricing information for the purpose of
12 In North Carolina, at the summary judgment stage, plaintiff’s evidence of a “mere
expectation” that it would continue a business relationship is insufficient to satisfy the “but
for” causation element of a tortious interference claim. 	See e.g., Beverage Sys. of the
Carolinas, LLC v. Associated Bev. Repair, LLC, 368 N.C. 693, 701 (2016). “Instead, a plaintiff
must produce evidence that a contract would have resulted but for a defendant’s malicious
intervention.” Id. (citing Dalton v. Camp, 353 N.C. 647, 655 (2001)). 	However, when
considering allegations at the Rule 12(b)(6) stage, it is generally sufficient for a plaintiff to
identify a customer by name and to allege that it would have obtained a contract with that
customer but for the acts of the defendant. See Lunsford v. Viaone Servs., LLC, 2020 NCBC
LEXIS 111, at *16 (N.C. Super Ct. Sept. 28, 2020); see also Se. Anesthesiology Consultants,
PLLC v. Rose, 2019 NCBC LEXIS 52, at *36-37 (N.C. Super. Ct. Aug. 20, 2019) (concluding
that plaintiff adequately alleged that it had a reasonable probability of entering into
contracts with specific individuals); cf. Velocity Sols., Inc. v. BSG Fin., LLC, 2016 NCBC
LEXIS 19, at **13 (N.C. Super. Ct. Feb. 22, 2016) (denying motion to dismiss even though
plaintiffs did not identify a “specific contractual opportunity.”).

undercutting Elior’s rebid. 	Elior alleges that shortly thereafter it lost EASD 131 to
OrganicLife as a customer. 	(Compl. ¶¶ 60-61.) 	Nowhere, though, does Elior allege
why its hope that EASD 131 would not require it to rebid in 2023 rose to the level of
a reasonable expectancy, particularly when it recognizes that whether a customer
reopens the bidding process can be influenced by its competitors in the ordinary
course of business. 	Nor does it allege that Thomas’s actions caused it to lose EASD
131 as a customer.
112. 	Even construing the allegations in the light most favorable to Elior, as
the Court must at this stage, under Illinois law, Elior has not sufficiently pled the
elements of a tortious interference with prospective business advantage claim.13
13 In Illinois, as in North Carolina, a privilege exists for lawful competition. “The privilege to
engage in business and to compete allows one to divert business from one’s competitor
generally as well as from one’s particular competitors provided one’s intent is, at least in
part, to further one’s business and is not solely motivated by spite or ill will.” 	Soderlund
Bros. v. Carrier Corp., 278 Ill. App. 3d 606, 615-16 (1st Dist. 1995) (“Acts of competition, which
are never privileged, include fraud, deceit, intimidation, or deliberate disparagement.”); see
also Galinski v. Kessler, 134 Ill. App. 3d. 602, 610 (1st Dist. 1985) (“[T]he right to engage in a
business relationship is not absolute, and must be exercised with regard to the rights of
others.”). Defendant contends that his actions were privileged because, on behalf of his new
employer, he was engaged in lawful competition. 	Elior, on the other hand, contends that
Thomas employed wrongful means including by breaching the confidentiality provisions of
the Employment Agreement, and that “the reasonable inference is that Thomas acted with
malice[.]” (Compl. ¶ 127; Pl.’s Br. Opp. 24.) 	At this stage, Elior’s allegation that Thomas
competed by breaching the confidentiality provisions of the Employment Agreement is
sufficient to allege legal malice. HPI HealthCare Servs., Inc. v. Mt. Vernon Hosp., Inc., 131
Ill. 2d. 145, 156-67 (1989) (“The term ‘malicious,’ in the context of interference with
contractual relations cases, simply means that the interference must have been intentional
and without justification.”).

113. 	Accordingly, Defendant’s Motion to Dismiss as to Plaintiff’s tortious
interference claim (Count VIII) is GRANTED, and this claim is DISMISSED
without prejudice.
IV. 	CONCLUSION
114. 	WHEREFORE, 	Defendant’s 	Motion 	is 	GRANTED 	in 	part 	and
DENIED in part, and the Court ORDERS as follows:
i. 	Defendant’s Motion to Dismiss the First Cause of Action
(Breach of Contract – Breach of the confidentiality obligations)
is DENIED.
ii. 	Defendant’s Motion to Dismiss the Second Cause of Action
(Breach of Contract – Breach of the non-compete obligations)
is DENIED.
iii. 	Defendant’s Motion to Dismiss the Third Cause of Action
(Breach 	of 	Contract 	– 	Breach 	of 	the 	non-solicitation
obligations as blue penciled) is DENIED.
iv. 	Defendant’s Motion to Dismiss the Fourth Cause of Action
(Breach of Covenant of Good Faith and Fair Dealing) is
DENIED.
v. 	Defendant’s Motion to Dismiss the Fifth Cause of Action
(Conversion) is GRANTED, and this claim is DISMISSED
without prejudice.

vi. 	Defendant’s Motion to Dismiss the Sixth Cause of Action
(Violation of the North Carolina Trade Secrets Protection Act)
is 	GRANTED, 	and 	this 	claim 	is 	DISMISSED 	without
prejudice.
vii. 	Defendant’s Motion to Dismiss the Seventh Cause of Action
(Violation of the North Carolina Unfair and Deceptive Trade
Practices Act) is GRANTED, and this claim is DISMISSED
without prejudice.
viii. 	Defendant’s motion to dismiss the Eighth Cause of Action
(Tortious 	Interference 	with 	Prospective 	Advantage) 	is
GRANTED, 	and 	this 	claim 	is 	DISMISSED 	without
prejudice.
SO ORDERED, this the 22nd day of April, 2024.
/s/ Julianna Theall Earp
Julianna Theall Earp
Special Superior Court Judge
for Complex Business Cases