UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE HUNTER GROUP, INCORPORATED,

Plaintiff-Appellant,

v.

SUSAN M. SMITH; MARTIN W.

REIMER; RENEE Y. CREECH;

CATHERINE COOPER; GAIL E. MANN; No. 97-2218

DELOITTE & TOUCHE, LLP,

Defendants-Appellees,

and

JULIA M. SALTER,

Defendant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-97-1871-AMD)

Argued: June 5, 1998

Decided: September 23, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Stacie Eileen Tobin, PIPER & MARBURY, L.L.P., Baltimore, Maryland, for Appellant. Stephen M. Sacks, ARNOLD &
PORTER, Washington, D.C., for Appellees. ON BRIEF: James D.

Mathias, PIPER & MARBURY, L.L.P., Baltimore, Maryland, for

Appellant. Ronald A. Schechter, Susan E. Huhta, ARNOLD & PORTER, Washington, D.C.; Daniel P. Goldstein, BROWN, GOLDSTEIN & LEVY, L.L.P., Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Hunter Group, Inc. ("Hunter") appeals an order of the district

court denying Hunter's motion for a preliminary injunction. Hunter

seeks to enjoin five of its former employees (the"individual defendants") from competing with Hunter through their employment with

Deloitte & Touche Consulting Group ("Deloitte"), and to prevent the

disclosure and use of Hunter's trade secrets and confidential information by those employees.

We review the denial of preliminary injunctive relief for abuse of

discretion, Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d

802, 814 (4th Cir. 1991), in light of the familiar four-factor test first

announced in Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d

189, 193 (4th Cir. 1977). We affirm.

I

PeopleSoft, Inc., owns and licenses software to companies for use

in financial management, human resources, and personnel functions.

As a "PeopleSoft Partner," Hunter contracts directly with purchasers

to install the software and to teach employees how to use the software. Hunter's implementation consultants perform the installation,

often customizing the software to accommodate a client's particular

needs. Following implementation of the PeopleSoft product, training

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consultants in Hunter's Education Services Group instruct the client's

employees how to use the new software. In teaching clients how to

use the PeopleSoft product, Hunter relies on its own proprietary

"courseware," or written training materials, to explain the functions of

the software and to provide training exercises. The courseware is

written by training consultants in Hunter's Education Services Group.

New consultants hired by Hunter, who often have little or no experience with the PeopleSoft product, participate in a program Hunter

calls "Boot Camp." Hunter conceived of Boot Camp, a one month

internal training program designed and delivered by members of the

Education Services Group, as an alternative to the training classes

offered by PeopleSoft, which often took three to five months to complete.

Hunter employed Martin Reimer, Renee Creech, Catherine Cooper,

and Gail Mann as training consultants in Hunter's Education Services

Group. Each of those individuals had come to Hunter with significant

consulting experience; Creech, Reimer, and Mann had previous experience with the PeopleSoft software. During their employment with

Hunter, the training consultants participated in the development of

courseware and delivered training to new consultants in Hunter's first

Boot Camp in April 1997. Susan Smith managed the Education Services Group and was the direct supervisor of the training consultants.

As a condition of employment with Hunter, each of the individual

defendants executed an Employment Agreement ("Agreement").

Other than the date of execution, the Agreements are identical. Each

Agreement contains several noncompetition provisions, including

covenants: (1) not to perform consulting services for a competitor of

Hunter's for a period of six months following termination, (2) not to

disclose or use Hunter's confidential information or trade secrets at

any time, and (3) not to solicit the employment of any Hunter

employee for one year following termination.

Hunter terminated Smith's employment on January 20, 1997.

Shortly thereafter, Smith accepted the offer of a position at Deloitte

as a supervisor in Deloitte's National Education group. By June 1997,

each of the individual defendants had terminated their employment at

Hunter and joined Deloitte's consulting group. At Deloitte, they have

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been engaged in taking PeopleSoft classes, writing courseware to be

used in delivering PeopleSoft training to Deloitte's implementation

consultants, and developing an internal training program. Several of

the individual defendants are developing courseware on the same

PeopleSoft products for which they wrote courseware at Hunter. For

example, Creech, who developed Hunter's "General Ledger" courseware, is developing a "General Ledger" course at Deloitte. Cooper is

responsible at Deloitte, as she was at Hunter, for creating templates

for the courseware. The use of templates, files that structure the

appearance and layout of a document, ensures that the materials have

a consistent and attractive appearance.

On June 10, 1997, Hunter filed suit against Deloitte and the individual defendants in the United States District Court for the District

of Maryland. The six-count complaint alleged violations of the noncompetition provisions of the Agreements and of the Maryland Uniform Trade Secrets Act, tortious interference with contractual

relations by Deloitte, unfair competition, and a civil conspiracy to

harm Hunter. Upon Hunter's motion, the district court entered a temporary restraining order enjoining the individual defendants from further violating the noncompetition provisions of the Agreements, and

enjoining Deloitte from contacting Hunter employees or using Hunter's confidential information or trade secrets. The defendants later

consented to the entry of a preliminary injunction pendente lite with

respect to the alleged solicitation of Hunter employees.

On July 30 and 31, 1997, the district court conducted a hearing on

Hunter's motion for a preliminary injunction. By order dated August

29, 1997, the district court denied Hunter's request that the defendants

be enjoined from competing against Hunter in their employment at

Deloitte, and from retaining, revealing, or otherwise using Hunter

trade secrets or confidential information. Hunter filed a timely appeal.

II

It is axiomatic that a "clear showing of irreparable harm" is a prerequisite to the issuance of a preliminary injunction. Direx Israel, 952

F.2d at 812; see Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d

353, 360 (4th Cir. 1991) ("To succeed, the [plaintiff] must show that

it will sustain irreparable harm without a preliminary injunction.");

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Faulkner v. Jones, 10 F.3d 226, 237 (4th Cir. 1993) (Hamilton, J., dissenting) (stating that the "inability to establish irreparable harm `is by

itself a sufficient ground upon which to deny a preliminary injunction'") (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418

(8th Cir. 1987)). To satisfy its burden of proving irreparable injury,

the plaintiff must demonstrate a causal connection between the

alleged harm and the actions to be enjoined; a preliminary injunction

will not issue unless it will remedy the alleged injuries. See Faulkner,

10 F.3d at 235-36 ("[A]ny inquiry into the irreparable harm resulting

from the denial of interim relief must necessarily begin with an analysis of the degree to which that particular relief remedies the alleged

injuries.").

Hunter claims that it is threatened with the loss of clients and goodwill as a result of the defendants' violation of the covenants not to

compete contained in their Employment Agreements. In support,

Hunter relies on the testimony given by Mary Weaver, Hunter's

Senior Vice President in charge of the Education Services Group.

Weaver testified that since the individual defendants left, Hunter has

lost one contract because of its inability to produce expert PeopleSoft

consultants. In the absence of sufficient training consultants, Hunter

has been required to staff three existing contracts with implementation consultants. According to Weaver, Hunter no longer expects to

achieve its goals with respect to the number of training consultants to

be hired, the number of new consultants trained, and overall revenue.

Weaver's testimony is persuasive evidence that Hunter has

incurred substantial losses as a result of the departure of five employees, comprising almost half of Hunter's twelve-member Education

Services Group. We conclude, however, that a preliminary injunction

will not remedy the injuries Hunter has identified. Hunter's injuries

are caused by a lack of training consultants with the necessary expertise in PeopleSoft. Enjoining the individual defendants from performing consulting services at Deloitte will not address that harm.

Hunter argues, however, that its injuries are compounded by the

competitive advantage Deloitte enjoys as a result of its employment

of the individual defendants. According to Hunter, the defendants'

defection to Deloitte has permitted Deloitte rapidly to enter the market for PeopleSoft consulting services, while simultaneously handi-

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capping Hunter's ability to compete effectively in the same market.

An injunction would allow Hunter time to restore its consulting group

to full capacity.

We agree with Hunter that enforcement of a covenant not to compete may forestall the type of competitive imbalance Hunter

describes. We decline, however, to issue a preliminary injunction

under the circumstances presented by the instant case. It is undisputed

that the Agreements' six-month restraint on competition expired some

time between July 20, 1997, and December 9, 1997. Therefore, Hunter's contractual right cannot be preserved through the issuance of a

preliminary injunction; the right has expired by its own terms. See,

e.g., Nationwide Mut. Ins. Co. v. Hart, 534 A.2d 999, 1002 (Md. Ct.

Spec. App. 1988) (holding that an employer's request for a preliminary injunction "ha[d] been rendered moot by the passage of time

since the one year period set out in the contract" had terminated). A

preliminary injunction cannot protect Hunter from the injury it claims,

because the injury Hunter sought to prevent by securing its employees' agreement not to compete for six months has already occurred.

We are not unsympathetic to the fact that Hunter has diligently sought

expedient resolution of its claims, or that its contractual right to relief

expired in the midst of the prolonged process of judicial resolution.

And we do not foreclose the possibility that an injunction may be an

appropriate remedy, should it prove impossible for Hunter to prove

damages with any degree of certainty after a full trial on the merits.

Because a preliminary injunction will not prevent Hunter's alleged

injuries, however, we affirm the district court's refusal to enjoin preliminarily the defendants from working in Deloitte's PeopleSoft consulting group.

III

Next, Hunter argues that the district court abused its discretion in

denying Hunter's request that the defendants be enjoined from using

or disclosing Hunter's trade secrets and confidential information. In

denying Hunter's request for preliminary relief, the district court

stated that it did not "find that any of the defendants intentionally or

negligently provided to Deloitte, or have used in their work at

Deloitte, any of the trade secrets that [Hunter] claims." To the extent

that similarities existed between the Hunter courseware that the train-

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ing materials being developed at Deloitte, the district court concluded

that the similarities were traceable to information and materials disseminated by PeopleSoft, Inc., to both companies. After a careful

review of the record, we conclude that the district court's factual findings are fully supported by the evidence, and discern no abuse of discretion in the district court's denial of the preliminary injunction.

IV

Finally, we find no merit to Hunter's contention that the district

court abused its discretion in excluding evidence relating to Smith's

alleged solicitation of the Hunter employees. See Martin v. Deiriggi,

985 F.2d 129, 137 (4th Cir. 1992) ("It is well-settled that decisions

regarding the admission and exclusion of evidence are peculiarly

within the province of the district court, not to be reversed on appeal

absent an abuse of discretion."). The defendants consented before the

hearing to the entry of a preliminary injunction on Hunter's claim of

solicitation. Therefore, the only issues before the district court were

whether the defendants should be preliminarily enjoined from working in Deloitte's consulting group, and from using or disclosing Hunter's trade secrets. The district court found, and we agree, that

evidence of how the defendants came to work at Deloitte was not relevant to those issues.

Therefore, the judgment of the district court is hereby

AFFIRMED.

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