UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION 

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.

CASE NO: 0:20-cv-61307-AHS

DEFENDANTS’ MOTION TO DISMISS COMPLAINT

Defendants Christopher Alfieri, Adam Perry, Andrew LaRocca, Amy Maros, and Elegance 

Brands, Inc., through undersigned counsel and pursuant to Federal Rule of Civil Procedure 

12(b)(6) and Local Rule 7.1, file this Motion to Dismiss Plaintiff Vital Pharmaceuticals, Inc., d/b/a 

VPX Sports/Redline/Bang Energy’s Complaint (DE 1), and in support state: 1

INTRODUCTION

In Florida, it is virtually impossible for companies to hire talent because Florida has 

normalized the rampant misuse and abuse of non-compete agreements. In this case, Plaintiff VPX 

has sued several former employees and their new employer, Elegance. Plaintiff’s Complaint is 

shockingly generic. It consists of several pages of boilerplate allegations and legal conclusions. 

1 Defendants Christopher Alfieri (“Alfieri”), Adam Perry (“Perry”), Andrew LaRocca 

(“LaRocca”), Amy Maros (“Maros”) are referred to as “Individual Defendants.” The Individual 

Defendants and Defendant Elegance Brands, Inc. (“Elegance”) are collectively referred to as 

“Defendants”. Plaintiff Vital Pharmaceuticals, Inc. d/b/a VPX Sports/Redline/Bang Energy is 

referred to as “VPX” or “Plaintiff.” 

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The only actual facts alleged are that Elegance hired four former VPX employees who were subject 

to non-compete agreements. But non-compete agreements are only enforceable where necessary 

to protect a legitimate business interest. The Complaint does not allege sufficient facts to support 

the existence of such an interest. Instead, the Complaint makes only generic references to 

confidential and proprietary information—without actually identifying what specific information 

is supposedly at issue. Because Plaintiff has failed to adequately plead a legitimate business 

interest, the breach of contract claims should be dismissed. The claims for tortious interference 

against Elegance and Alfieri are equally deficient. Those claims merely allege Elegance hired 

certain individuals who were subject to non-compete agreements. It does not allege anything 

further regarding tortious conduct. Because the non-compete claims have not been properly plead 

and the tortious interference claims do not allege tortious or wrongful conduct, those claims also 

should be dismissed. Plaintiffs in non-compete cases should not be afforded special treatment. 

They should be required to satisfy Rule 8 and Twombly like all other plaintiffs. In this case, 

Plaintiff simply does not satisfy that standard. 

I. BACKGROUND

From the late summer of 2019 through the early summer of 2020, the Individual 

Defendants were employed by Plaintiff, a sports nutrition, dietary supplement and beverage 

manufacturing and distribution company. DE 1 at ¶¶ 14, 17, 23, 29, 35. Included in the products 

offered by Plaintiff is its line of products called BANG—an energy drink. Id. at ¶ 41.

During this period of a little less than a year, the Individual Defendants were employed as 

part of Plaintiff’s sales, marketing, and distribution team. Id. Each Individual Defendant executed 

an Employment Agreement that contained both non-compete covenants as well as non-solicitation 

covenants. Id. at ¶¶ 18, 24, 30, 36. The Employment Agreements contained a one-year restriction 

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on working for a competing company in a similar capacity. Id. at ¶ 48. The Employment 

Agreements also contained a one-year restriction against soliciting any VPX employees to leave 

their employment. Id. at ¶ 63. 

Plaintiff alleges that the Individual Defendants had access to proprietary, confidential, and 

trade secret information. Id. at ¶¶ 21, 27, 33, 39. But Plaintiff makes no specific allegations as to 

what supposedly proprietary, confidential, and trade secret information the Individual Defendants 

had access to. Likewise, Plaintiff makes no allegations that the Individual Defendants improperly 

shared or utilized this information beyond the scope of their employment with Plaintiff. See 

generally DE 1. Even as it relates to Elegance, Plaintiff does not allege that the Individual 

Defendants shared, utilized, relied on, or in any way made reference to Plaintiff’s supposedly 

proprietary, confidential, and trade secret information. Id. 

In the early summer of 2020, the Individual Defendants separated from VPX and joined 

Elegance. Id. at ¶ 42–43. Elegance is a start-up beverage company that focuses on bringing “a 

range of hemp and CBD infused” products to the beverage market.2 Id. at Ex. 2-A. One of 

Elegance’s products is its Gorilla Hemp Energy Drink—a novel energy drink that combines the 

traditional concept of an energy drink with 20mg of CBD. Id. Elegance markets itself as entering 

this new CBD segment of the beverage market. Plaintiff does not allege that it sells a competing 

Hemp CBD infused drink. See generally DE 1. 

On July 1, 2020, Plaintiff filed a lawsuit against the Individual Defendants as well as 

Elegance for the Individual Defendant’s alleged breaches of the non-compete covenants, Alfieri’s 

alleged breach of his non-solicitation agreement, and Elegance’s as well as Alfieri’s alleged 

2 Elegance also offers a line of premium spirit vodka called Elegance Vodka, which is a craft 

small batch vodka. See Complaint. at Ex. 2-A. 

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tortious interference with Plaintiff’s contracts. See generally DE 1. The basis of Plaintiff’s claims 

against Defendants is that by their employment with Elegance, the Individual Defendants have 

breached their restrictive covenants. Id. This notwithstanding, Plaintiff fails to provide the 

necessary facts to substantiate these claims. Indeed, Plaintiff’s Complaint only contains three 

allegations that reference a legitimate business interest, paragraphs forty-seven, forty-eight, and 

sixty-two, which state, in pertinent part:

Paragraph forty-seven: “Each of the aforesaid Individual Defendants entered into his/her 

own agreement with Plaintiff that contained restrictive covenants protective of VPX’s 

legitimate business interests.” Id. at ¶ 47.

Paragraph forty-eight: “Each of the Individual Defendants therein agreed with VPX to be 

bound by the terms of a non-compete covenant, which was as is reasonably drawn to protect 

VPX’s legitimate business interests, including, but not limited to, protection of VPX’s 

proprietary and confidential business information, trade secrets, and goodwill.” Id. at ¶ 48. 

Paragraph sixty-two: “Alfieri entered into an agreement with Plaintiff that contained 

restrictive covenants protective of VPX’s legitimate business interests.” Id. at ¶ 62.

II. MEMORANDUM OF LAW

A. Legal Standard.

To survive a Rule 12(b)(6) motion to dismiss, Plaintiff’s “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” and must “state a claim to relief that 

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible 

on its face when the plaintiff alleges enough facts to “allow[ ] the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009). The mere recitation of the elements of a claim is not enough, and a court need not give 

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any credence to legal conclusions that are not supported by sufficient factual material. Id.; Altman 

Contractors, Inc. v. Crum & Forster Specialty Ins. Co., 2014 WL 1154075, at *1 (S.D. Fla. Mar. 

14, 2014) (“[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires

more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.”). In determining whether to dismiss a pleading under Rule 12(b)(6), a court accepts 

well-pleaded allegations as true and construes them in a light most favorable to the non-moving 

party. Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1312 (11th Cir. 2015) (citations 

omitted). 

B. Plaintiff’s Breach of Contract Claims (Counts I–II) Must Be Dismissed.

In the non-compete context, a plaintiff alleging breach of contract must do more than allege 

the standard elements of a contract, breach, and damages. In addition to those elements, “[a] person 

seeking enforcement of a restrictive covenant also shall plead and prove that the contractually 

specified restraint is reasonably necessary to protect the legitimate business interest or interests 

justifying the restriction.” Florida Statutes § 542.335(1)(c) (emphasis added). By its plain 

language, the operative Statute raises the pleading burden. Generally, a legitimate business interest 

takes the form of confidential information or trade secrets, substantial relationships, goodwill, or 

extraordinary training. Id. See also Envtl. Servs., Inc. v. Carter, 9 So. 3d 1258, 1262 (Fla. 5th DCA 

2009) (listing commonly recognized legitimate business interests). The Complaint fails to satisfy 

that pleading burden. 

1. Plaintiff Fails to Plausibly Allege Competition.

VPX makes the popular energy drink Bang. The Complaint alleges that Elegance’s product 

Gorilla Hemp Energy Drink necessarily competes with Bang solely because the website for that 

product mentions energy drinks such as Red Bull, Monster, and Rock Star. Per the Complaint:

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Elegance is a relatively new company that has publicly announced its launch, or

imminent launch, of an energy drink product branded "Gorilla Hemp Energy 

Drink," which Elegance's own website acknowledges competes (or will imminently 

compete) against the energy drink products sold by Red Bull, Rock Star and 

Monster Energy. By extension, Elegance, via its own website, acknowledges that 

"Gorilla Hemp Energy Drink" competes (or will imminently compete) against 

VPX's BANG® energy drink products.

DE 1 at ¶ 41. But that is not what Elegance’s website actually advertises. Plaintiff filed actual 

screenshots from Elegance’s website with its Complaint. See DE 1 at Ex. 2-A. Elegance advertises 

that its Gorilla Hemp drink differentiates itself from other typical energy drinks and is one of the 

only CBD-infused energy drinks on the market. The Elegance website states point blank, “A 

notable energy drink combined with Hemp CBD does not currently exist.” With respect to its 

references to Red Bull, Monster, & Rockstar, the Elegance website mentions these brands as 

examples of lucrative energy drink brands for comparison by investors, not as examples of its 

competitors. The Complaint does not allege that Elegance (through its nascent CBD energy drink) 

competes with VPX (through Bang). Instead, the Complaint alleges that, by inference, based on 

its strained interpretation of the Elegance website, the companies and products must be 

competitive. This is too clever by half. If VPX considers CBD energy drink products competitors, 

then VPX can say so in a public federal court filing and stand by that assertion. But, as it stands, 

VPX has not alleged that it makes a CBD energy drink product, or that it regards Elegance as a 

competitor in the same market space as its energy drink Bang. 

2. Plaintiff Parrots Statutory Language Rather Than Alleging Facts.

With respect to a legitimate business interest, the Complaint alleges that the restrictive 

covenants are necessary to protect “VPX’s proprietary and confidential business information, trade 

secrets, and goodwill.” DE 1 at ¶ 48. This allegation was copied and pasted from Florida Statutes 

§§ 542.335(b)(1), 542.335(b)(2), and 542.335(b)(4). Plaintiff makes no additional factual 

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allegations regarding the existence of any legitimate business interest. As such, Plaintiff has not 

gone beyond conclusory statements and recitation of statutory language. As the United States 

Supreme Court recognized in Iqbal, the tenet that a court must accept a plaintiff’s allegations as 

true does not apply to “legal conclusions” and “threadbare recitals of the elements of a cause of 

action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In numerous other contexts, trial courts have 

dismissed complaints built on conclusory allegations that merely parrot statutory language. See, 

e.g., Recreational Design v. Wiss, Janney, Elstner Assocs., 867 F. Supp. 2d 1234, 1241 (S.D. Fla. 

2011) (dismissing a negligent representation claim that merely parroted language from relevant 

statutes and case law). Plaintiffs in Florida non-compete cases should not be afforded special 

treatment and should be held to the same standards as all other litigants. On this basis alone, the 

breach of contract claims should be dismissed. 

3. Plaintiff Fails to Sufficiently Plead Confidential Information.

Plaintiff has failed to plead a legitimate business interest in confidential information. As 

addressed supra, on this point, the Complaint goes no further than the boilerplate allegation of 

“proprietary and confidential business information”. Florida law provides that confidential 

information can constitute a legitimate business interest only where that information is valuable, 

confidential, unique to the company, not available to other competitors in the market, and of a type 

that would allow for unfair competition if misappropriated. See, e.g., Anich Indus., Inc. v. Raney, 

751 So. 2d 767, 771 (Fla. 5th DCA 2000) (information commonly known in the industry and not 

unique to the company does not constitute a protectable interest); Lucky Cousins Trucking v. QC 

Energy, 223 F. Supp. 3d 1221, (M.D. Fla. 2016) (generic allegations regarding confidential 

information does not establish a legitimate business interest); Passalacqua v. Naviant, Inc., 844 

So. 2d 792, 796 (Fla. 4th DCA 2003) (no legitimate business interest in confidential information 

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where plaintiff failed to articulate how its methods were unique and how defendant could use that 

information against her in the market to gain unfair advantage). 

Here, Plaintiff fails to even identify what specific confidential information is at issue. 

Likewise, Plaintiff makes no allegations regarding how that information is unique to VPX and how 

Elegance—which makes a CBD energy drink—could use that information to engage in unfair 

competition. At a minimum, VPX must allege what specific confidential information it is seeking 

to protect through enforcement of the restrictive covenants. Plaintiff has failed to satisfy even that 

minimal burden. The Complaint cannot be sustained on the basis of boilerplate claims regarding 

confidential information. 

4. Plaintiff Fails to Sufficiently Plead Trade Secrets.

Under Florida law, protection of trade secrets “as defined in [Florida Statutes §] 

688.002(4)” can justify enforcement of a restrictive covenant. See Florida Statutes § 

542.335(1)(b)(1). Here, VPX’s attempt at alleging the existence of trade secrets goes no further 

than the naked assertion that they have trade secrets. The claim fails for two reasons. First, Plaintiff 

fails to identify the actual, specific trade secrets at issue. See Am. Registry, LLC v. Hanaw, 2013 

WL 6332971, at *3 (M.D. Fla. Dec. 5, 2013) (dismissing non-disclosure and trade secret claims 

where plaintiff merely alleged a generic list of supposed trade secrets including “software”, 

“financial data”, “lists”, “information and records”, etc.). Even in Hanaw, where the court 

dismissed the complaint, the plaintiff alleged more than what VPX has alleged here. Second, 

Plaintiff fails to allege that it took reasonable steps to maintain the secrecy of the alleged trade 

secrets. See, e.g., Taxinet, Corp. v. Leon, 2018 WL 3405243, at *3 (S.D. Fla. July 12, 2018) 

(dismissing trade secret claims for failure to allege reasonable efforts to maintain secrecy). As 

such, Plaintiff has failed to plead any legitimate business interest in trade secrets.

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5. Plaintiff Fails to Plead a Legitimate Business Interest in Goodwill.

Plaintiff has failed to plead a legitimate business interest in goodwill. With respect to 

goodwill, the Complaint literally does nothing more than state that the restrictive covenants are 

necessary to protect VPX’s goodwill. DE 1 at ¶ 48. Florida Statutes § 542.335 indicates that a 

legitimate business interest may take the form of customer, patient, or client goodwill. The most 

widely accepted definition of goodwill is the expectation of continued patronage. See Newark 

Morning Ledger Co. v. U.S., 507 U.S. 546 (1993). Plaintiff utterly fails to explain how its goodwill 

could plausibly be harmed by Elegance—with its nascent CBD energy drink product—hiring four 

of its former employees. Plaintiff has not alleged the loss of any client, customer, or other 

relationships. Plaintiff has not alleged that, as a result of such hiring, it has suffered or even may 

suffer a decline in patronage. Plaintiff has failed to sufficiently plead a legitimate business interest 

in goodwill. 

C. Plaintiff’s Tortious Interference Claim Against Elegance (Count III) Must Be 

Dismissed. 

1. Plaintiff Parrots Elements, but Fails to Allege Facts Sufficient to State a Claim.

Under Florida law, “[t]he elements of tortious interference with a contract or business 

relationship are: (1) the existence of a business relationship, not necessarily evidenced by an 

enforceable contract, under which the plaintiff has legal rights; (2) the defendant’s knowledge of 

the relationship; (3) an intentional and unjustified interference with the relationship by the 

defendant; and (4) damage to the plaintiff as a result of the interference.” Salit v. Ruden, McClosky, 

Smith, Schuster & Russell, P.A., 742 So. 2d 381, 385–86 (Fla. 4th DCA 1999) (citing Tamiami 

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

Here, VPX’s claim against Elegance provides only rote recitations of the above listed 

tortious interference elements. VPX has a habit of filing boilerplate claims. Just over six months 

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ago, in a separate matter, this Court dismissed a tortious interference claim brought by VPX for 

failure to allege adequate facts in support of its claim. ThermoLife Int'l LLC v. Vital Pharm. Inc., 

No. 19-CV-61380, 2020 WL 409594, at *3 (S.D. Fla. Jan. 24, 2020) (dismissing tortious 

interference claim for failure to plead sufficient factual allegations). 

Here, the only allegations that Elegance did anything at all “intentional and unjustified” is 

contained in paragraphs 76–79 of the Complaint, in which VPX alleges that Elegance 

“intentionally and unjustifiably interfered” with VPX by hiring the Individual Defendants and 

allegedly “inducing Alfieri to breach his Employee Non-Solicitation Agreement.” There is no 

explanation of how Elegance's hiring of these individuals was tortious. There are no allegations as 

to how or when Alfieri allegedly solicited Perry, LaRocca, or Maros, or how he did so at 

Elegance’s behest. Similarly, and as described above, there are not even allegations that the Gorilla 

Hemp Energy Drink is competitive with Plaintiff’s products, which is the entire predicate for the 

alleged illegality of Elegance’s hiring of the Individual Defendants in the first place. As such, VPX 

has done no more than “list[] legal conclusions,” which are not cloaked with an assumption of

truth, even at this stage of litigation. See, e.g., Coach Servs., Inc. v. 777 Lucky Accessories, Inc., 

752 F. Supp. 2d 1271, 1273–74 (S.D. Fla. 2010) (“In analyzing motions to dismiss, it is the duty 

of the Court to separate legal conclusions, that are not entitled to the assumption of truth, 

from factual allegations that are.”). 

VPX’s inclusion of Defendants Perry, LaRocca, and Maros in this claim does nothing to 

strengthen its claim. Taking the allegations as true, the hiring of these individuals, regardless of 

the existence of allegedly enforceable restrictive covenants, does not establish a plausible basis for 

a tortious interference claim. See, e.g., Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 

3d 836, 838 (Fla. 2nd DCA 2009) (“One does not induce another to commit a breach of contract 

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with a third person [...] 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.” ) (quotation omitted). 

VPX fails to meet its burden of pleading that Elegance intended to interfere with Plaintiff’s 

business relationships. See Martin Petroleum Corp., 769 So.2d at 1107 (“Thus, even if the 

defendant is aware of the existing business relationship, the defendant will not be liable for tortious 

interference with that relationship unless there is evidence that the defendant intended to procure 

a breach of the contract.”). Count III must be dismissed. 

D. Plaintiff’s Tortious Interference Claim Against Alfieri (Count IV) Must Be 

Dismissed. 

1. VPX Improperly Incorporates Count I Into This Claim. 

VPX’s entire Complaint is shotgun pleading. Among other things, it realleges and 

reincorporates all general allegations into all counts and the bulk of Counts I and II into Count III. 

But the problems with the Complaint’s shotgun style are particularly acute in Count IV against 

Alfieri. There, VPX has incorporated all of its allegations in Count I (Breach of Contract against 

all the Individual Defendants, which includes Alfieri). As it stands, this means that Count IV 

against Alfieri for tortious interference is to a certain degree predicated upon a contract to which 

he is a party. But one cannot interfere with his own business relationship. Menudo Int'l, LLC v. In 

Miami Prod., LLC, 2018 WL 1745395, at *3 (S.D. Fla. Apr. 11, 2018). In other words, 

a tortious interference claim cannot ordinarily survive where the contractual relations allegedly 

interfered with are one’s own. Id. That is what VPX has alleged. This alone warrants dismissal of 

Count IV. 

2. Plaintiff Parrots Elements, but Fails to Allege Facts Sufficient to State a Claim.

Just as with Count III, Count IV contains “labels and conclusions” and a “formulaic 

recitation of the elements of a cause of action” without anything more. See Iqbal, 556 U.S. 662 

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(2009) (quotation omitted). As a result, it should suffer the same fate as Count III. There is no 

indication of how Alfieri allegedly interfered beyond the legal conclusions that he “solicited” 

former VPX employees and that those employees now work for Elegance. This is not a request for 

a heighted pleading standard; Alfieri simply seeks to be adequately placed on notice of what he is 

being accused of. VPX does not so much as allege that Alfieri initiated any contact with Perry, 

LaRocca, or Maros, let alone that that he explicitly or implicitly offered them positions at Elegance, 

or that he even had authority to hire them. Simply put, there are no allegations present that 

transform VPX’s conclusory allegations regarding Alfieri into a properly pleaded claim for 

tortious interference.

III. CONCLUSION

Plaintiff’s Complaint contains only boilerplate allegations and legal conclusions. Plaintiff 

has not pleaded any specific facts related to (1) what legitimate business interest are issue or (2) 

how Elegance is its competitor. Additionally, Plaintiff’s claims for tortious interference against 

Elegance and Alfieri are both facially deficient. Plaintiff has not established that it is entitled to 

any relief in its Complaint. The Complaint should be dismissed in total. 

Dated: July 27, 2020 Respectfully submitted,

By: /s/ Christopher Prater

Christopher S. Prater

Florida Bar No.: 105488

cprater@pollardllc.com 

Jonathan Pollard

Florida Bar No.: 83613

jpollard@pollardllc.com

Michael Boehringer

Florida Bar No.: 1018486

mboehringer@pollardllc.com

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Pollard PLLC

100 SE 3rd Ave., Ste. 601 

Fort Lauderdale, Florida 33394

Telephone: (954) 332-2380

Fax: (866) 594-5731

Attorneys for Defendants 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via 

ECF to all counsel of record in this action on July 27, 2020.

By: /s/ Christopher Prater

Christopher S. Prater

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