United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION (ECF NO. 7)
V. PARKER U.S. DISTRICT JUDGE.
AFT Michigan, initiated this lawsuit on or about September
28, 2017 in the Third Circuit Court for the County of Wayne,
Michigan. (ECF No. 1 at Pg ID 1.) On October 6, 2017,
Defendants Project Veritas (“Defendant PV”) and
Marisa L. Jorge, a/k/a Marissa Jorge, a/k/a Marissa Perez
(“Defendant Jorge”) filed a Notice of Removal to
this Court. (Id.) Plaintiff filed an Amended
Complaint in state court on October 5, 2017 and, with
Defendants' consent, a Second Amended Complaint in this
Court on October 17, 2017. (ECF No. 1 at Pg ID 2; ECF No. 6.)
alleges Defendant Jorge is a political actor for Defendant PV
and gained access to AFT Michigan by fraudulently
misrepresenting herself as a student at the University of
Michigan. Plaintiff believes Defendant Jorge unlawfully
accessed and transmitted proprietary and confidential
information and engaged in unlawful and unauthorized
surveillance of Plaintiff's employees. (ECF No. 6 at Pg
before the Court is Plaintiff's Motion for Preliminary
Injunction, filed on October 17, 2017. (ECF No. 7.)
Defendants filed a response on October 24, 2017, and
Plaintiff filed a reply on October 30, 2017. (ECF Nos. 24
& 25-1.) On November 30, 2017, the parties filed
supplemental briefs in response to the preliminary
injunction. (ECF Nos. 39 & 40.)
to Plaintiff, Defendant PV is an organization that uses its
employees to infiltrate organizations for the purpose of
securing proprietary information, which it distorts and
publishes in the media. (ECF No. at Pg ID 95.) Plaintiff
believes Defendant Jorge is a political operative for
Defendant PV and gained access to AFT Michigan to advance
Defendant PV's political agenda. (ECF No. 6 at Pg ID 96.)
spring of 2017, Defendant Jorge expressed interest to
Plaintiff for a possible internship. (Id. at Pg ID
93.) Defendant Jorge identified herself as Marissa Perez and
represented that she was a student at the University of
Michigan and interested in teaching the second grade.
(Id.) Plaintiff interviewed Defendant Jorge, and she
began her internship in May 2017. (Id.) Defendant
Jorge was assigned to projects that were aligned with her
interests in charter schools. (Id.) Sometime after
the start of Defendant Jorge's internship, she began to
seek information unrelated to her assignments, including
employee grievances. (Id. at Pg ID 94.) Several of
Plaintiff's employees witnessed Defendant Jorge sitting,
without permission, at the computer terminals of other
employees, accessing files and records without authorization,
and working late in the office without supervision.
(Id.) Also, Defendant Jorge would often ask the
staff questions regarding information not available to the
general public. (Id. at Pg ID 96.) Plaintiff's
employees noticed Defendant Jorge would often carry her
cellular phone wherever she went and believed she was
recording meetings and Plaintiff's employees.
inconsistent statements Defendant Jorge made to various
employees, Plaintiff soon discovered that Defendant Jorge was
never a student at the University of Michigan, and Marissa
Perez was not her real name. (ECF No. 7 at Pg ID 120.)
Believing Defendants to be in possession of proprietary and
confidential information, Plaintiff seeks injunctive relief
to enjoin Defendants from publishing or disseminating any
information Defendant Jorge unlawfully obtained.
initiated this lawsuit on September 28, 2017 in the Third
Circuit Court for the County of Wayne, Michigan. (ECF No. 1.)
On September 29, 2017, Third Circuit Court Judge Brian R.
Sullivan issued a Temporary Restraining Order enjoining
Defendants from publishing or disclosing confidential and/or
proprietary information relating to Plaintiff, its employees,
officers, or affiliates that was taken from Plaintiff without
consent. (ECF No. 23). Defendants filed a Notice of Removal
to this Court, and the case was assigned to Judge Paul D.
Borman. During a teleconference on October 10, 2017, Judge
Borman ordered the parties to brief the Court on the
appropriateness of a temporary restraining order in light of
the potential First Amendment implications. On October 20,
2017, this matter was reassigned to the undersigned. (ECF No.
the conclusion of the parties' briefing, on November 15,
2017, this Court held a hearing on Plaintiff's request
for a preliminary injunction. After hearing testimony from
Plaintiff's forensic computer examiner, Kevin Smith,
about the documents Defendant Jorge allegedly
misappropriated, the Court ordered the parties to file
supplemental briefs. On November 30, 2017, the parties filed
supplemental briefs addressing whether the 221 documents
Plaintiff produced were trade secrets under the Michigan
Uniform Trade Secrets Acts (“MUTSA”). (ECF Nos.
37, 39 & 40.) Defendants further supplemented their brief
on December 12, 2017, and Plaintiff filed a response, also,
on December 12, 2017. (ECF Nos. 43 & 44.)
Preliminary Injunction Standard
must balance four criteria in deciding whether to issue a
(1) whether the movant has a strong likelihood of success on
the merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether the issuance of
the injunction would cause substantial harms to others; and
(4) whether the public interest would be served by the
issuance of the injunction.
Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir.
2013) (quoting Hunter v. Hamilton Cnty. Bd. of
Elections, 635 F.3d 219, 233 (6th Cir. 2011)) (brackets
Applicable Law & Analysis
Plaintiff's Likelihood of Success on the Merits
states that it has a strong likelihood of success with
respect to violations of MUTSA, the Michigan Eavesdropping
Act, and Defendant Jorge's breach of fiduciary
duty. (ECF No. 7 at Pg ID 132-33.)
protects against the misappropriation of trade secrets by
improper means. Plaintiff seeks injunctive relief pursuant to
MUTSA, Mich. Comp. Laws § 445.1903(1), which provides
injunctive relief for actual or threatened misappropriation.
MUTSA defines “misappropriation” as
(i) Acquisition of a trade secret of another by a person who
knows or has reason to know that the trade secret was
acquired by improper means.
(ii) Disclosure or use of a trade secret of another without
express or implied consent by a person who did 1 or more of
(A) Used improper means to acquire knowledge of the trade
(B) At the time of disclosure or use, knew or had reason to
know that his or her knowledge of the trade secret was
derived from or through a person who had utilized improper
means to acquire it, acquired under circumstances giving rise
to a duty to maintain its secrecy or limit its use, or
derived from or through a person who owed a duty to the
person to maintain its secrecy or limit its use.
(C) Before a material change of his or her position, knew or
had reason to know that it was a trade secret and that
knowledge of it had been acquired by accident or mistake.
Comp. Laws § 445.1902(b). “Improper” is
defined as “theft, bribery, misrepresentation, breach,
or inducement of a breach of a duty to maintain secrecy or
espionage through electronic or any other means.” Mich.
Comp. Laws § 445.1902(a).
a court can grant injunctive relief under MUTSA, Plaintiff
must show the alleged misappropriated information is a
“trade secret.” MUTSA defines “trade
information, including a formula, pattern, compilation,
program, device, method, technique, or process, that is both
of the following:
(i) Derives independent economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use.
(ii) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Mich. Comp. Laws § 445.1902(d). Michigan courts apply
the following factors when determining if information is a
trade secret under MUTSA:
(1) extent to which information is known outside of
(2) extent to which information is known by employees and
others involved in business, (3) extent of measures taken to
guard secrecy of information, (4) value of information to
owners and competitors, (5) amount of effort and money
expended in developing information, and (6) ease or
difficulty with which information could be properly acquired
or duplicated by other.
PrimePay, LLC v. Barnes, No. 14-11838, 2015 WL
2405702, at *21 (E.D. Mich. May 20, 2015) (quoting Dura
Global Techs., Inc. v. Magna Donnelly Corp. 662
F.Supp.2d 855, 859 (E.D. Mich. 2009)); see e.g.,
GeoLogic v. Comput. Sys. v. MacLean, No. 10-13569,
2015 WL 5460644, at *2 (E.D. Mich. Sept. 17, 2015);
Stryker Corp. v. Ridgeway, No. 13-cv-1066;
14-cv-889, 2015 WL 8759220, at *10 (W.D. Mich. Dec. 14,
2015); Ajuba ...