UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61307-CIV-SINGHAL/VALLE

VITAL PHARMACEUTICALS, INC., 

d/b/a VPX SPORTS / REDLINE/BANG 

ENERGY, a Florida Corporation, 

Plaintiff,

v. 

CHRISTOPHER ALFIERI, an individual, 

ADAM PERRY, an individual, ANDREW 

LaROCCA, an individual, AMY MAROS, an 

individual and ELEGANCE BRANDS, INC., 

a Delaware corporation,

Defendants. 

___________________________________/ 

OPINION AND ORDER

THIS CAUSE is before the Court upon Plaintiff Vital Pharmaceutical’s (“VPX” or 

“Plaintiff”) Motion for Summary Judgment on Defendants’ Affirmative Defenses, filed on 

February 18, 2022 (the “Motion”) (DE [177]). Defendant Maros filed a Response on March 

4, 2022 (“Maros Response”) (DE [193]).1 Defendants LaRocca and Alfieri filed a 

Response on March 13, 2022 (“LaRocca-Alfieri Response”) (DE [217]). Plaintiff filed 

Replies to both Responses on March 18, 2022 (DE [227, 228]). The Motion is now ripe 

for this Court’s consideration.

I. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is 

appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material 

fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S. 

1 Defendant Maros has since resolved her case through filing a Consent Judgment (DE[270]). A separate 

Order will be entered regarding that filing.

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650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));2 see also Alabama v. 

North Carolina, 560 U.S. 330, 344 (2010). “By its very terms, this standard provides that 

the mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that there 

be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48 (1986). An issue is “genuine” if a reasonable trier of fact, viewing all of the record 

evidence, could rationally find in favor of the nonmoving party in light of his burden of 

proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material” 

if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson 

Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the 

material facts are undisputed and do not support a reasonable inference in favor of the 

non-movant, summary judgment may properly be granted as a matter of law.” DA Realty 

Holdings, LLC v. Tenn. Land Consultants, 631 Fed. Appx. 817, 820 (11th Cir. 2015).

The Court must construe the evidence in the light most favorable to the nonmoving 

party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756 

F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, 

“the nonmoving party must offer more than a mere scintilla of evidence for its position; 

indeed, the nonmoving party must make a showing sufficient to permit the jury to 

reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th 

Cir. 2015). “[T]his, however, does not mean that we are constrained to accept all the 

nonmovant’s factual characterizations and legal arguments.” Beal v. Paramount Pictures 

Corp., 20 F.3d 454, 459 (11th Cir. 1994).

2 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “‘genuine 

issue’ of any material fact.”

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“Partial summary judgment may properly be granted on affirmative defenses.”

Tingley Sys., Inc. v. HealthLink, Inc., 509 F. Supp. 2d 1209, 1218 (M.D. Fla. 2007)

(cleaned up). “Plaintiff has the burden of showing that Defendant cannot maintain these 

defenses by a preponderance of the evidence.” Lebron v. Royal Caribbean Cruises, Ltd., 

2018 WL 5098972, at *2 (S.D. Fla. Aug. 14, 2018) (cleaned up). “[I]t is never enough 

simply to state that the non-moving party cannot meet its burden at trial,” Clark v. Coats 

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991), because “the moving party must point 

to specific portions of the record in order to demonstrate that the nonmoving party cannot 

meet its burden of proof at trial,” United States v. Four Parcels of Real Property in Greene 

and Tuscaloosa Counties in State of Ala., 941 F.2d 1428, 1438 n.19 (11th Cir. 1991).

After the plaintiff makes such a showing, “[t]he defending party must rely on or submit 

record evidence in support of the purported affirmative defenses to create a genuine issue 

of material fact preventing the entry of summary judgment.” Meth Lab Cleanup, LLC v. 

Spaulding Decon, LLC, 2015 WL 4496193, at *7 (M.D. Fla. July 23, 2015).

II. DISCUSSION

A. Waiver of Enforcement of Restrictive Covenants

1. Waiver Based on Public and/or Third Party Disclosure

VPX first argues that it did not waive enforcement of the individual defendants’ 

restrictive covenants. See Motion, at 7. VPX contends that it did not disclose confidential 

or proprietary information to third parties, and such information is not publicly available.

Id. at 8–13. VPX explains that its confidential and proprietary materials include its detailed 

distributor lists, maps detailing business plans and distributor locations, and distributor 

agreements. Id. at 9. VPX asserts this information is highly detailed and includes 

information about each distributor, including account numbers, distributing partner 

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names, addresses, owner names, contact information, and assessments of producer 

performance. Id. at 10. VPX references Defendant LaRocca’s deposition testimony where 

the defendant confirmed that VPX never publicly published its distributor list and that 

VPX’s distributor maps cannot be found on Google. Id. at 10–11. VPX further contends 

that its distributor and cooperative merchandising agreement templates are not disclosed 

to third parties or the public. Id. at 12. Finally, VPX argues that employees not subject to 

the restrictive covenants, who had access to confidential information, were nevertheless 

subject to the employee handbook confidentiality provision. Id. at 12. Moreover, according 

to VPX, there is no authority for the proposition that disclosure of confidential information 

within a company constitutes waiver of a restrictive covenant. Id. at 13.

Defendants respond by arguing that the distributor lists, maps reflecting territories 

of distributors, cooperative merchandising agreement templates, and distribution 

agreement templates are not confidential or proprietary. See LaRocca-Alfieri Response, 

at 5. Defendants explain that the information contained in the distributor lists and maps is 

generally available to the public. Id. Moreover, according to Defendants, the distributors 

cited were no longer existing or prospective customers of VPX at the time of the alleged 

disclosure because VPX had transitioned to an exclusive distributorship with PepsiCo. Id.

Additionally, Defendants add, the cooperative merchandising and distribution agreement 

templates are commonly used throughout the energy drink industry, and any confidential 

or proprietary information contained therein, are waived to the extent they are disclosed 

to third parties—namely the corresponding parties to the agreements. Id. at 6.

To establish waiver under Florida law, a party must show (1) the existence of a 

right at the time of the waiver, (2) actual or constructive knowledge of the right, and (3) 

intention to relinquish the right. Kirschner v. Baldwin, 998 So. 2d 1138, 1142 (Fla. 5th 

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DCA 2008); Mizell v. Deal, 654 So. 2d 659, 663 (Fla. 5th DCA 1995). “Conduct may 

constitute waiver of a contract term, but such an implied waiver must be demonstrated by 

clear evidence.” BMC Industries, Inc. v. Barth Industries, Inc., 160 F.3d 1332, 1333 (11th 

Cir. 1998) (citations omitted). Moreover, “[w]aiver may be implied when a party’s actions 

are inconsistent with continued retention of the right.” Id. (citations omitted).

Applied here, the crux of Defendants’ affirmative defense is to challenge (i)

whether Plaintiff possessed a right in its purported confidential or proprietary materials

and (ii) whether Plaintiff evidenced an intent to relinquish that right. The parties dispute 

the extent to which VPX’s distributor lists, maps reflecting territories of distributors, 

cooperative merchandising agreement templates, and distribution agreement templates 

are publicly accessible or were otherwise disclosed to third parties. Defendants

essentially argue that VPX cannot possess a right in confidential or proprietary materials 

if those materials are publicly accessible or disclosed to third-parties. Based upon the 

conflicting evidence at this stage, this question represents a genuine issue of material 

fact that is not fit for summary judgment. A factfinder must determine, based upon VPX’s 

conduct and practice, whether its purported confidential and/or proprietary materials are 

publicly accessible or disclosed to third parties. Accordingly, summary judgment is 

improper on Defendants’ waiver based on public disclosures affirmative defense.

2. Waiver based on Selective Enforcement

VPX next attacks Defendants LaRocca and Alfieri’s affirmative defense, which 

contends VPX waived enforcement based upon its selective enforcement of its restrictive 

covenants. See (DE [78], at 11; DE [152], at 11). Specifically, Defendants LaRocca and 

Alfieri contend that VPX’s failure to enforce the restrictive covenants against other former 

employees, who possessed access to the same information as did LaRocca and Alfieri, 

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constitutes waiver of the restrictive covenants.

VPX cites Larweth v. Magellan Health, Inc., 2019 WL 11866499, at *9 (M.D. Fla. 

Dec. 17, 2019) (cleaned up) for the proposition that selective enforcement of a restrictive 

covenant does not constitute waiver of a party’s right to enforce a restrictive covenant.

VPX further contends that the restrictive covenants at issue contain a provision stating 

that failure to enforce any provision of the agreement concerning other employees “shall 

not be construed as a waiver of any such provision.” (DE [76-1]; [76-3]; [76-4]). 

Defendants LaRocca and Alfieri, in turn, respond by citing non-Eleventh Circuit precedent 

for the opposite proposition and arguing that “good public policy” supports the same. See

LaRocca-Alfieri Response, at 7. The Defendants then proffer a quite creative argument: 

a jury can infer that VPX’s history of knowingly refusing to enforce restrictive covenants 

against other employees evidences VPX’s knowledge that it cannot be harmed by 

disclosure of its purported confidential or proprietary information. Id. at 8.

As the court recognized in Larweth, and as this Court now recognizes, there is no 

Eleventh Circuit authority for the proposition that failing to enforce restrictive covenants 

against other employees constitutes waiver of that right. That alone would warrant 

summary judgment on this affirmative defense. However, the fact that the employment 

agreement itself explicitly notes that the failure to enforce any provision of the agreement 

concerning other employees “shall not be construed as a waiver of any such provision” 

decisively settles this question. Accordingly, the Court finds that summary judgment in 

favor of VPX is warranted on this affirmative defense.

B. Competition Privilege 

Defendants LaRocca and Alfieri contend in their second affirmative defense that 

VPX’s claims are barred by the competition privilege. (DE [78], at 9–10; [152] at 9–10).

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To establish the competition privilege, Defendants LaRocca and Alfieri must show (1) the 

VPX-Elegance Brands relationship concerned a matter involved in the competition 

between LaRocca/Alfieri and VPX, (2) it did not employ improper means, (3) it did not 

intend to create or continue an illegal restraint of competition, and (4) its purpose was at 

least in part to advance its interest in competing with the plaintiff. Int’l Sales & Service, 

Inc. v. Austral Insulated Products, Inc., 262 F.3d 1152, 1159 (11th Cir. 2001) (citing 

Restatement (Second) of Torts § 768(1) (1977)). VPX cites Yoder v. Shell, 405 So. 2d 

743, 744 (Fla. 2d DCA 1981) for the proposition that the competition privilege defense is 

inapplicable where there has been a “purposeful causing of a breach of contract.” See 

also McCurdy v. Collins, 508 So. 2d 380, 384 (Fla. 1st DCA 1987) (“[T]he privilege does 

not encompass the purposeful causing of a breach of contract.”). Defendants LaRocca 

and Alfieri, in turn, respond that the analysis of whether the competition privilege applies 

is a fact-intensive inquiry that is best left to the jury. See Audiology Distrib., LLC v. 

Simmons, 2014 WL 7672536, at *11 (M.D. Fla. May 27, 2014).

Here, Defendants LaRocca and Alfieri did not address the authority VPX cited that 

prevents the privilege from reaching cases where there has been a “purposeful causing 

of a breach of contract.” Whether this affirmative defense can be maintained as a matter 

of law depends on whether Alfieri purposefully caused a breach of contract. And whether 

Alfieri “intentionally and unjustifiably interfered with VPX’s contractual rights by inducing 

[LaRocca or Maros] to accept employment with Elegance in breach of [their] NonCompete Covenant,” (Amended Compl. (DE [76] 91–92), is one of the central issues in 

this case. Compare VPX’s Amended Compl. (DE [76] ¶¶ 91–92), with Defendant Alfieri’s 

Answer, Affirmative Defenses, and Jury Demand (DE [152] ¶¶ 91–92). Critically, if VPX 

prevails on this issue and proves breach of contract, this affirmative defense cannot be 

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maintained as a matter of law. By contrast, if VPX fails to prove breach of contract, this 

affirmative defense becomes moot. Accordingly, summary judgment in favor of VPX is 

warranted on this affirmative defense.

C. Fraudulent Inducement

Defendants LaRocca, Alfieri, and Maros each allege the affirmative defense of 

fraudulent inducement. See (DE [133] ¶¶ 4, 5); (DE [158] ¶¶ 3, 4). “The elements of 

fraudulent misrepresentation and fraudulent inducement are: (1) a false statement 

concerning a material fact; (2) the representor's knowledge that the representation is 

false; (3) an intention that the representation induce another to act on it; and (4) 

consequent injury by the party acting in reliance on the representation.” Moriber v. 

Dreiling, 194 So. 3d 369, 373 (Fla. 3d DCA 2016). Reliance must be “justifiable,” meaning 

that a plaintiff can “establish that, but for the alleged misrepresentation or omission, the 

plaintiff would not have entered into the transaction at issue.” Saturn Telecommunication 

Services Inc. v. BellSouth Telecommunication, Inc., 2008 WL 11337385, at *7 (N.D. Fla. 

Nov. 25, 2008). The “elements of fraud—particularly including intent and knowledge—

may be, and often are, proven by circumstantial evidence.” Global Quest, LLC v. Horizon 

Yachts, Inc., 849 F.3d 1022, 1030 (11th Cir. 2017) (cleaned up). And “[i]n fraud cases . . 

. summary judgment is rarely proper as the issue so frequently turns on the axis of the 

circumstances surrounding the complete transaction, including circumstantial evidence 

of intent and knowledge.” Id. at 1029 (cleaned up).

“Unless one can show facts and circumstances to demonstrate that he was 

prevented from reading the contract, or that he was induced by statements of the other 

party to refrain from reading the contract, it is binding. No party to a written contract in this 

state can defend against its enforcement on the sole ground that he signed it without 

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reading it.” Allied Van Lines, Inc. v. Bratton, 351 So. 2d 344, 347–48 (Fla. 1977) (cleaned 

up). “Merely stating that [one] does not recall signing the agreement is insufficient to raise 

a genuine dispute of fact.” Donjoie v. Whitestone Gulf, Inc., 2019 WL 4917095, at *2 (S.D. 

Fla. Oct. 4, 2019) (citing Torjagbo v. United States, 285 Fed. App’x 615, 619 (11th Cir. 

2008)).

VPX argues this affirmative defense cannot be maintained for several reasons. 

First, VPX argues Defendants’ counsel retracted this argument and thereby waived this 

defense when he stated that “we are in no way challenging that folks signed these 

documents.” Motion, at 18; (DE [22], at 29:7-11; 29:21–30:12). Second, VPX contends 

that deposition testimony of each Defendant does not support this affirmative defense. 

See Motion, at 18. VPX explains that LaRocca did not testify that he did not have time to 

review the contract or that any term was misrepresented to him. Id. Rather, LaRocca 

testified that he failed to read the Restrictive Covenants. Id. VPX next asserts that Alfieri 

testified that he is familiar with DocuSign, he was required to sign various pages on 

DocuSign, he was able to review the document, and he ultimately signed his Employment 

Agreement by hand, which referenced the restrictive covenant. Id. at 19. VPX finally

asserts that Maros testified that she signed the Restrictive Covenants. Id.

In turn, Defendants respond that they are asserting the defense of fraudulent 

inducement for the manner in which VPX presented the restrictive covenants at issue. 

See LaRocca-Alfieri Response, at 11; Maros Response, at 6–8. According to Defendants, 

VPX never informed any of them that they would be required to execute a restrictive 

employment covenant. Id. Defendants contend the manner and method used by VPX

supports nonfeasance. What is at issue in this case, Defendants argue, is VPX’s 

conduct—specifically, its nonfeasance in omitting to conspicuously inform the Defendants 

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of this condition of employment. Id. According to Defendants, sending a non-descript 

DocuSign email is insufficient to apprise one that they are entering into an extremely 

limiting employment contract. Id. Defendants add that this agreement and method of 

obtaining their signatures is procedurally unconscionable because it is akin to the 

document being “hidden in a maze of fine print and minimized by deceptive sales 

practices.” See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 

1965). According to Defendants, VPX’s deception is evidenced by the fact that the 

covenants were contained among numerous other documents that VPX sent in a nondescript DocuSign email. See LaRocca-Alfieri Response, at 12. Finally, The Defendants 

add the contract is substantively unconscionable because the obligations therein lack 

mutuality of obligation. Id. Defendants assert that parol evidence may be used by a 

defendant to show the existence of unconscionability despite the existence of an 

integration clause. Id. at 13. “[T]he Eleventh Circuit, in reviewing Florida law, stated that 

even where an agreement contains an integration clause, parol evidence may be 

admitted (1) to show that the oral agreement induced the signing of the written contract, 

or (2) to explain a latent ambiguity in the written contact.” MDS (Canada), Inc. v. Rad 

Source Technologies, Inc., 822 F. Supp. 2d 1263, 1302 (S.D. Fla. 2011) (citing Johnson 

Enters. Of Jacksonville v. FPL Grp., 162 F.3d 1290, 1309 (11th Cir. 1998)) (cleaned up).

VPX has the burden to show Defendants cannot maintain this affirmative defense 

by a preponderance of the evidence. As an initial matter, the Court rejects Defendants’ 

attempt to add a new affirmative defense of unconscionability because Defendants failed 

to plead unconscionability as an affirmative defense in the first place. See Capotosto v. 

Fifth Third Bank, 230 So. 3d 891, 893 (Fla. 4th DCA 2017) (“[A] defendant [may not] raise 

an unpled affirmative defense as basis for resisting a motion for summary judgment.”). 

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Accordingly, VPX is entitled to judgment on the unconscionability affirmative defenses.

1. Fraudulent Inducement (based on Signature Process)

The Court next addresses Defendants’ fraudulent inducement (based on signature 

process) affirmative defense. It is undisputed that the signatures of each Defendant are 

genuine and that the defendants executed their respective agreements. Defendants 

argue there exists a genuine issue of material fact as to whether the signature process

fraudulently concealed the restrictive covenants from the signatories. Defendants allege 

that a common DocuSign function of initialing each page to ensure signatory review was 

not utilized. See (DE [220] ¶ 10). Moreover, Defendants add that the restrictive covenant 

was not presented to the Defendants as a separate document for review prior to 

Defendants signing the Offer Letter and Employee Agreement. Id. Defendants further 

allege the DocuSign process would jump over multiple sections to reach a signature line, 

and the physical documents they were provided did not include the entirety of documents 

in the DocuSign process. Id. ¶ 11.

Nevertheless, Defendants do not dispute that they signed the documents and had 

time to review the documents. “It has long been held in Florida that one is bound by his 

contract. Unless one can show facts and circumstances to demonstrate that he was [1] 

prevented from reading the contract, or that he was [2] induced by statements of the other 

party to refrain from reading the contract, it is binding. No party to a written contract in this 

state can defend against its enforcement on the sole ground that he signed it without 

reading it.” E.g., Allied Van Lines, 351 So. 2d at 347–48. And “[m]erely stating that [one] 

does not recall signing the agreement is insufficient to raise a genuine dispute of fact.” 

Donjoie, 2019 WL 4917095, at *2. Defendants do not claim they were prevented from 

reading their contracts or that they were induced to refrain from reading them. Rather, 

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Defendants contend the signature process concealed the restrictive covenants provision. 

The Court is aware of no authority, and Defendants cite none, for the proposition that the 

procedure by which an employee executes an employment contract can constitute 

fraudulent inducement (absent the two conditions mentioned above). So long as 

Defendants were given time to review their contracts, which they were, and were not 

induced to refrain from reading them, which they were not, the signature process is valid. 

The Court is likewise aware of no authority, and Defendants cite none, for the 

proposition that an employer must affirmatively disclose to prospective employees certain 

pertinent provision in their contracts. Similarly, Defendants’ arguments that the contract 

may be invalidated on the basis that the pertinent restrictive covenant was buried in a sea 

of other documents and agreements, that the hardcopy agreements provided to 

Defendants did not constitute the entirety of electronic agreements ultimately executed 

by Defendants, that the DocuSign software jumped from signature line to signature line,

and that the restrictive covenant was not presented to Defendants as a separate standalone document are all unavailing. Defendants do not articulate how any of the foregoing 

prevented them from being able to review the agreements that they signed. VPX has cited 

deposition testimony from each Defendant that unequivocally indicates each Defendant

was neither prevented from reviewing his or her agreement nor induced to refrain from 

reading it by VPX personnel. Therefore, VPX has met its burden by proving that the 

fraudulent inducement (based on signature process) affirmative defense cannot be 

maintained by a preponderance of the evidence. Accordingly, VPX is entitled to summary 

judgment on this defense.

2. Fraudulent Inducement (based on False Statements by VPX) 

Notwithstanding the above, there does exist a genuine issue of material fact as to 

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whether false statements from VPX personnel induced Defendant Alfieri to execute his 

agreement. Defendant Alfieri alleges that upon seeing the restrictive covenant provision 

while reviewing his agreement, he raised the issue with a VPX employee who assured

him it would not be applicable to him. See (DE [220] ¶ 10). Defendant Alfieri additionally

alleges he was assured on other occasions that he would not be required to execute a 

restrictive employment covenant. See (DE [133] ¶ 4). This presents a genuine issue of 

material fact that must be decided by a factfinder. Specifically, a factfinder must determine 

whether (1) a false statement(s) concerning the agreement was made by VPX 

employee(s) to Defendant Alfieri at the time of signing, (2) the VPX employee(s) knew or 

should have known the statement(s) was false, (3) the VPX employee(s) intended to 

induce Defendant Alfieri to act in reliance on the statement(s), and (4) Defendant Alfieri 

acted in justifiable reliance on the statement(s). 

VPX attempts to argue that any pre-existing oral agreements Alfieri may have had 

are barred by his contract’s merger clause. See Motion, at 20 (DE [177]). However, this 

argument is of no avail to VPX because Alfieri alleges his assent to the contract was 

induced by fraud and seeks to introduce evidence of pre-existing oral agreements to 

prove this. Thus, the merger clause cannot apply in this situation because it is a 

fundamental principle of contract law that “a party can not contract against liability for his 

own fraud.” Oceanic Cillas, Inc. v. Godson, 148 Fla. 454, 458 (Fla. 1941) (citations 

omitted). Accordingly, VPX cannot show Defendant Alfieri is unable to maintain this 

affirmative defense by a preponderance of the evidence. Therefore, summary judgment 

is improper on the fraudulent inducement (based on false statements by VPX) affirmative 

defense asserted by Defendant Alfieri. It is hereby

ORDERED AND ADJUDGED that Plaintiff Vital Pharmaceutical’s Motion for 

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Summary Judgment on Defendants’ Affirmative Defenses (DE [177]) is GRANTED in 

part and DENIED in part. Summary judgment in favor of VPX is: 

1. DENIED on Defendants’ Waiver based on Public and/or Third Party Disclosure 

Affirmative Defense. 

2. GRANTED on Defendants’ Waiver based on Selective Enforcement Affirmative 

Defense. 

3. GRANTED on Defendants’ Competition Privilege Affirmative Defense. 

4. GRANTED on Defendants’ Unconscionability Affirmative Defense. 

5. GRANTED on Defendants’ Fraudulent Inducement (based on Signature Process) 

Affirmative Defense.

6. DENIED on Defendant Alfieri’s Fraudulent Inducement (based on False 

Statements by VPX) Affirmative Defense. 

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 27th day of 

July 2022. 

Copies furnished counsel via CM/ECF 

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