20-3039-cv

International Business Machines Corp. v. Rodrigo Kede de Freitas Lima

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

22nd day of January, two thousand twenty-one.

Present: ROSEMARY S. POOLER,

RICHARD C. WESLEY,

WILLIAM J. NARDINI,

 Circuit Judges.

_____________________________________________________

INTERNATIONAL BUSINESS MACHINES CORPORATION,

Plaintiff-Appellee,

v. 20-3039-cv

RODRIGO KEDE de FREITAS LIMA, 

Defendant-Appellant.

_____________________________________________________

Appearing for Appellant: Andrew D. Silverman, Orrick, Herrington & Sutcliffe LLP 

(Elizabeth R. Cruikshank, Michael Delikat, James H. McQuade, 

Katherine E. Munyan, on the brief), New York, N.Y.

Appearing for Appellee: Robert A. Atkins, Paul, Weiss, Rifkind, Wharton & Garrison LLP 

(Liza M. Velazquez, on the brief), New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Halpern, 

J.).
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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the order of said District Court be and it hereby is AFFIRMED. 

Rodrigo Kede de Freitas Lima appeals from the September 3, 2020 preliminary 

injunction entered by the United States District Court for the Southern District of New York 

(Halpern, J.) enforcing a noncompete agreement that barred Lima from taking a job as corporate 

vice president for Latin America for Microsoft Corporation. Int’l Bus. Mach. Corp. v. de Freitas 

Lima, 2020 WL 5261336 (S.D.N.Y. Sept. 3, 2020). We assume the parties’ familiarity with the 

underlying facts, procedural history, and specification of issues for review.

“As a general rule we do not disturb a district court's grant of a preliminary injunction, 

absent an abuse of its discretion.” Fireman’s Fund Ins. Co. v. Leslie & Elliott Co., 867 F.2d 150, 

150–51 (2d Cir. 1989). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when 

(1) its decision rests on an error of law (such as application of the wrong legal principle) or a 

clearly erroneous factual finding, or (2) its decision—though not necessarily the product of a 

legal error or a clearly erroneous factual finding—cannot be located within the range of 

permissible decisions.” Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001). 

(citation omitted). 

To justify the issuance of a preliminary injunction, the plaintiff must show (1) “a 

likelihood of success on the merits,” (2) “that [the plaintiff] is likely to suffer irreparable injury 

in the absence of an injunction,” (3) that “the balance of hardships tips in the plaintiff’s favor,” 

and (4) “that the public interest would not be disserved by the issuance of [the] preliminary 

injunction.” Salinger v. Colting, 607 F.3d 68, 79–80 (2d Cir. 2010) (internal quotation marks 

omitted). 

Under New York law, “negative covenants restricting competition are enforceable only to 

the extent that they satisfy the overriding requirement of reasonableness.” Reed, Roberts Assocs., 

Inc. v. Strauman, 40 N.Y.2d 303, 307 (1976). A restrictive covenant between an employer and 

employee “will only be subject to specific enforcement to the extent that it is reasonable in time 

and area, necessary to protect the employer’s legitimate interests, not harmful to the general 

public and not unreasonably burdensome to the employee.” Id. at 307. New York “strictly 

appl[ies] the rule [of reasonableness] to limit enforcement of broad restraints on competition.” 

BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999). “A violation of any prong renders the 

covenant invalid.” Id. at 389. Yet if a “case specific analysis” indicates that the employer “in 

good faith sought to protect a legitimate busines interest, consistent with reasonable standards of 

fair dealing,” a court may “cure the unreasonable aspect of an overbroad restrictive covenant 

through the means of partial enforcement or severance,” so long as “the unenforceable portion is 

not an essential part of the agreed exchange.” Id. at 394.

On appeal, Lima raises no challenge to the district court’s findings of fact. His primary 

argument is that the district court committed legal error in enforcing an overbroad covenant. In 

light of the standard of review, and considering the reasonableness of the non-compete 

agreement as applied to the unusual circumstances of this case, we affirm. The factual 

conclusions of the district court regarding what job duties were performed by Lima, what Lima

learned as he undertook those duties, as well as whether that information was highly confidential 
3

and how similar his duties were at both jobs, form the basis for the legal conclusions the district 

court drew. de Freitas Lima, 2020 WL 5261336 at *7-9. The district court’s conclusion that 

Lima’s job at IBM provided him with access to IBM’s trade secrets, namely IBM’s confidential 

plans regarding its strategy to acquire new cloud computing clients in Latin America—the exact 

geographic market he would be overseeing at Microsoft—is a factual finding under New York 

law. See Marietta Corp. v. Fairhurst, 754 N.Y.S.2d 62, 66 (3d Dep’t 2003) (setting out the fact 

finding a court must undertake to determine if information is a trade secret). Lima fails to 

demonstrate any of the district court’s findings of fact is clearly erroneous. 

The district court also found, as a factual matter, that Lima would perform substantially 

similar work at Microsoft in an arena where IBM was a direct competitor. Those findings of fact 

also are not clearly erroneous. Therefore, we cannot say that the district court clearly erred in

concluding, as a predictive matter, that Lima would inevitably disclose IBM’s confidential 

information as he undertook his job duties at Microsoft. de Freitas Lima, 2020 WL 5261336 at 

*13. Finally, we agree with the district court’s conclusion that the non-compete agreement does 

not impose undue hardship on Lima, as he is currently on Microsoft’s payroll. Id. at *10. 

We emphasize that the district court’s fact finding leads to our conclusions here. The 

abuse of discretion standard of review requires only that the district court’s answer fall within the 

spectrum of reasonable results. See Zervos 252 F.3d at 169 (“When a district court is vested with 

discretion as to a certain matter, it is not required by law to make a particular decision. Rather, 

the district court is empowered to make a decision—of its choosing—that falls within a range of 

permissible decisions.”). Application of that standard here compels us to affirm. 

We have considered the remainder of Lima’s arguments and find them to be without 

merit. Accordingly, the order of the district court hereby is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk