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,

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 has come before the Court on Defendants LaRocca and Alfieri’s 

(“Defendants”) Motion for Summary Judgment, filed on February 18, 2022 (the “Motion”) 

(DE [182]). Defendants filed a Statement of Undisputed Material Facts on February 18, 

2022 (“Defendants’ SOF”) (DE [183]). Plaintiff Vital Pharmaceuticals, Inc. (“Plaintiff” or 

“VPX”) filed a Response on March 5, 2022 (DE [201]). Plaintiff was directed to refile its 

Response to comply with the Court’s Notice of Court Practice Order. Plaintiff refiled its

Amended Response on April 27, 2022 (DE [253]). Plaintiff filed an Opposing Statement 

of Material Facts (“VPX’s SOF”) on March 5, 2022 (DE [202]). Defendants filed their 

Reply on March 28, 2022 (DE [237]). 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 

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

650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));1 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 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 

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

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

II. DISCUSSION

A. Legitimate Business Interest 

Defendants first argue that VPX cannot establish a protectable legitimate business 

interest to justify its restrictive covenants. See Motion, at 5–9. According to Defendants, 

information contained in VPX’s distributor lists is neither confidential nor proprietary and 

can easily be obtained from public sources. Id. at 6. Moreover, Defendants assert, VPX 

cannot identify a single customer (distributor) that was obtained by Elegance. Id. at 7.

Furthermore, Defendants argue that VPX has proffered no evidence that either LaRocca 

or Alfieri ever used VPX’s purported confidential or proprietary information. Id. at 8.

Finally, Defendants contend that VPX has not sought to enforce the applicable provision 

of the employment agreements pertaining to disclosure of confidential or proprietary 

information. Id. at 8.

The Court already determined this issue in its Opinion and Order denying 

Defendant Maros’ Motion for Summary Judgment. See (DE [261]). Specifically, the Court 

found that VPX’s business plans, negotiated agreement templates with specific thirdparties, product formulas and design, business strategy, and any other work product that 

represents an investment by the proponent that would cause unfair competition if 

misappropriated by a competitor, likely qualify as confidential business information to 

which VPX has a protectable legitimate business interest. Id. at 9–10. Accordingly, as 

this Court held in that decision, and as it now reiterates, there are, at the very least, 

genuine issues of material fact whether VPX has a protectable legitimate business 

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interest in its confidential business information that justifies its restrictive covenants. 

Accordingly, summary judgment is improper on this issue.

B. The Law-of-the-Case Doctrine

Defendants argue that the Eleventh Circuit decision in this case (DE [175]) controls 

the disposition of their Motion. However, here too the Court addressed and rejected this 

argument in its Opinion and Order denying Defendant Maros’ Motion for Summary 

Judgment. See (DE [261]). Thus, summary judgment is not warranted on this basis.

C. Tortious Interference and Non-Solicitation Covenant

To prevail on a claim of tortious interference with a business relationship, a party 

must show (1) the existence of a business relationship, (2) knowledge of the relationship 

on the part of defendant, (3) an intentional and unjustified interference with the

relationship by the defendant, and (4) damage to the plaintiff because of the breach of 

that relationship. Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985). 

Defendant Alfieri argues that he had no knowledge of the restrictive covenants at issue 

and thus could not have had the requisite knowledge required by the second element. 

See Motion, at 12. The second element refers to knowledge of the business relationship 

by the defendant, not knowledge of contract terms between the parties to that business

relationship. Moreover, the Tamiami court specifically noted the business relationship 

need not be “evidenced by an enforceable contract.” 463 So. 2d at 1127. Accordingly, 

Alfieri’s lack of knowledge of the restrictive covenants has no bearing on whether he had 

knowledge of the business relationship between the other defendants and VPX—he did. 

It is undisputed he was aware that the other defendants were employed at VPX and thus 

had a business relationship with VPX.

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Second, Defendants argue VPX cannot show Defendant Alfieri manifested a 

specific intent to interfere with the business relationship because Elegance Brands 

entered into employment agreements with individual Defendants only with the knowledge 

that Defendants could likely not honor their prior contracts. See Motion, at 13. Defendants 

cite Martin Petroleum Corp. v. Amerada Hess Corp. for the proposition that “[o]ne does 

not induce another to commit a breach of contract with a third person under the rule stated 

in this Section when he merely enters into an agreement with the other with knowledge 

that the other cannot perform both it and his contract with the third person.” 769 So. 2d 

1105, 1107 (Fla. 4th DCA 2000) (quoting Restatement (Second) of Torts § 766 (1977)).

For one, Defendants’ argument does not follow because Elegance Brands, not Defendant 

Alfieri, is the one who entered into agreement with the other defendants. Second, it is, at 

the very least, a disputed question of fact whether Alfieri knew the other defendants were 

bound by the restrictive covenants that they would be breaching by leaving VPX for 

Elegance Brands. See VPX’s SOF ¶ 11 (DE [202]). If a factfinder concludes in the 

affirmative, Alfieri would have had much more than simply the “knowledge that the 

[defendants] cannot perform both [their VPX contract] and [their] contract with [Elegance 

Brands].” See Martin Petroleum, 769 So. 2d at 1107. He would have had the knowledge 

that the other defendants were affirmatively breaching the non-compete provisions in their 

restrictive covenants. And, if a factfinder concludes Alfieri was aware of his own restrictive 

covenant, Alfieri would have had the knowledge that he was breaching the non-solicitation 

provision in his own restrictive covenant. Accordingly, this argument does not warrant

summary judgment in favor of Defendants.

Third, Defendants argue they did not take any confidential information with them 

to Elegance, Elegance has not seen any of VPX’s confidential information as confirmed 

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by Raj Beri’s testimony, and VPX cannot prove causation because all Defendants stated 

they would leave VPX in any case. See Motion, at 14. As an initial matter, whether 

Defendants took confidential information with them to Elegance and whether Elegance 

has seen VPX confidential information is not relevant to the issues of whether Defendant 

Alfieri committed tortious interference or violated his non-solicitation covenant. And in 

any case, whether any of the Defendants did, in fact, take VPX’s confidential business 

information with them and whether Elegance obtained this information from them are, at 

the very least, disputed questions of fact not fit for summary judgment. See VPX SOF ¶¶ 

8, 12, 16 (DE [202]). Whether Defendants planned to leave VPX, independent of 

Elegance Brands, is also a disputed question of fact. See VPX SOF ¶ 6 (DE [202]).

Fourth, Defendants argue Alfieri did nothing proactive to tortiously damage or 

attempt to damage VPX. See Motion, at 14 (DE [182]). According to Defendants, there 

is no evidence Alfieri influenced, induced, or coerced the other defendants to breach their 

employment contracts. Id. However, whether Alfieri influenced or induced the other 

defendants to “jump ship” is again, at the very least, a disputed question of material fact. 

See VPX’s SOF ¶ 15 (deposition testimony of Alfieri where he confirms his efforts to bring 

the other defendants over to Elegance). Therefore, summary judgment is not warranted 

on the issues of whether Alfieri committed tortious interference or breached his nonsolicitation covenant.

D. Liquidated Damages Provision

Defendants contend the liquidated damages provision contained in their 

employment agreements violate Florida law because it is punitive in nature and in 

terrorem by its nature. See Motion, at 15–17 (DE [182]). The provision states that breach 

of the non-disclosure of confidential information covenant requires payment of the greater 

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of $50,000 per occurrence or the sum of 40% of the Company’s gross annual sales. (DE 

[76-1, 76-3 ¶ 7(b)(ii)]). The provision provides that breach of the non-compete covenant 

requires the payment of the greater of $25,000 per occurrence or the sum of 50% of the 

Employee’s first year gross earnings. Id. The provision provides that breach of the nonsolicitation covenant requires the payment of the sum of $100,000 per party. Id.

Defendants assert that, by VPX’s calculations, LaRocca owes $400,000 in damages and 

Alfieri owes $300,000 in damages. See Motion, at 16 (DE [182]). Finally, Defendants

assert VPX cannot credibly contend it suffered any loss of sales or other business 

damages. Id. at 17.

“Florida law recognizes that where damages are not clearly ascertainable, parties 

to a contract may agree to a predetermined amount of damages that will flow from a 

breach of their contract.” Gables v. Choate, 792 So. 2d 520, 522 (Fla. 3d DCA 2001) 

(citing Hyman v. Cohen, 73 So. 2d 393 (Fla. 1954)). Under Florida law, “[l]iquidated 

damages arising from breach of contract are appropriate when (1) damages from the 

breach are not readily ascertainable, and (2) the sum stipulated is not grossly 

disproportionate to the damages reasonably expected to follow from the breach.” Resnick 

v. Uccello Immobilien GMBH, Inc. 227 F.3d 1347, 1350 (11th Cir. 2000) (citations 

omitted). Critically, “liquidated damages are inappropriate when they serve only to punish 

the breaching party.” Id. (citations omitted). “The fact that the liquidated damages may 

be excessive at the time of breach does not lead to the conclusion that the liquidated 

damages clause is a penalty and therefore not enforceable.” Secrist v. Nat’l Service 

Industries, Inc., 395 So. 2d 1280, 1283 (Fla. 2d DCA 1981) (citations omitted). Where a 

liquidated damages provision contains “two separate and distinct parts,” any one of which 

is excessive, a court may properly enforce the provision found not to be excessive. Id.

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Applied here, the Court finds the first element is easily met because the 

approximate loss in sales and market share from the disclosure of confidential business 

information or loss of valuable employees is highly indeterminate. However, whether the 

second element is met requires a determination of the damages reasonably expected to 

follow from a breach. VPX asserts that damages flowing from the disclosure of its 

confidential business information or loss of valuable employees could potentially create 

severe consequences and catastrophic dilution of market share. See Amended 

Response, at 21–22 (DE [253]). But, the Court is left to guess exactly how to approximate 

VPX’s reasonably expected damages. Thus, whether the liquidated damages provision 

meets the second element creates questions of fact that cannot be resolved at this stage. 

The Court notes that the liquidated damages provisions regarding the non-disclosure of 

confidential information covenant and non-compete covenant contain alternative 

liquidated damages amounts. These undoubtedly qualify as having “two separate and 

distinct parts,” allowing this Court to award the alternate amount if the other is found 

excessive. However, this is not the case with the non-solicitation covenant, which 

imposes a flat $100,000 amount per party. Nevertheless, because the record does not 

contain sufficient undisputed facts to determine VPX’s reasonably expected damages, 

summary judgment is improper on this issue.

E. Proof of Damages

Defendants contend that summary judgment is warranted because VPX cannot 

prove any damages. See Motion, at 17–18 (DE [182]). According to Defendants, VPX 

cannot show any concrete injury. Id. VPX’s contention that competitors could acquire 

protected information giving them an unfair competitive advantage is, according to 

Defendants, remote and speculative. Id. at 18.

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“It is well established in Florida that where the allegations of a complaint show the 

invasion of a legal right, the plaintiff on the basis thereof may recover at least nominal 

damages . . . .” Hutchison v. Tompkins, 259 So. 2d 129, 132 (Fla. 1972) (citations 

omitted). If breach is proven, VPX can at least recover nominal damages under Florida 

law. VPX also has numerous other avenues to potentially assert and recover damages. 

First, VPX could seek reimbursement for any amount of wages paid out to employees 

while they were breaching their contracts and working simultaneously for the benefit of a 

competitor. Second, VPX could enforce its liquidated damages provisions against 

defendants for breaches of the non-disclosure of confidential information covenant, the 

non-solicitation covenant, and the non-compete covenant. Third, VPX could seek 

recovery of any costs associated with replacing employees lost due to the solicitation 

activity by Alfieri. Fourth, VPX could seek attorney fees incurred as a result of enforcing

its restrictive covenants, which are awardable pursuant to defendants’ employment 

agreements. Accordingly, the Court finds Defendants are not entitled to summary 

judgment on the issue of proof of damages. Therefore, it is 

ORDERED AND ADJUDGED that Defendants LaRocca and Alfieri’s Motion for 

Summary Judgment (DE [182]) is DENIED.

DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 9th day of May

2022.

Copies furnished counsel via CM/ECF

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