UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MLIVE MEDIA GROUP, an 

unincorporated Division of THE 

HERALD PUBLISHING COMPANY, 

LLC, 

Plaintiff,

Case No. 14-cv-13148

HON. GERSHWIN A. DRAIN

vs.

KATHRYN WEBBER, 

Defendant.

_________________________________/

ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION [#2]

AND FINDING EMERGENCY MOTION FOR ALTERNATE SERVICE [#8] MOOT 

I. INTRODUCTION

On August 14, 2014, MLive Media Group (“MLive”), filed the instant action against its

former employee, Kathryn Webber, alleging that Webber misappropriated MLive’s trade secrets in

violation of the Michigan Uniform Trade Secrets Act, MICH.COMP.LAWS § 445.1901 et seq. MLive

also asserts claims of tortious interference with business and contractual relationships, common law

conversion, statutory conversion in violation of MICH.COMP.LAWS § 600.2919a, breach of fiduciary

duty and unjust enrichment. 

On August 15, 2014, MLive filed an Emergency Ex Parte Motion for Temporary Restraining

Order and Preliminary Injunction. On the same day, the Court entered an Order Granting MLive’s 

Emergency Ex Parte Motion for Temporary Restraining Order and set a hearing on MLive’s Motion

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for Preliminary Injunction. Webber filed her Response in Opposition to MLive’s Motion for

Preliminary Injunction on August 28, 2014, and MLive filed its Reply in Support of Preliminary

Injunction on September 2, 2014. A hearing was held on September 4, 2014. For the reasons that

follow, the Court will grant MLive’s Motion for Preliminary Injunction. 

II. FACTUAL BACKGROUND

 MLive is a digital media company that owns numerous local newspapers, as well as owns

and operates MLive.com, a web-based news site serving readers and businesses in Michigan. On

March 25, 2013, Webber began her employment with MLive as an Account Executive working in

MLive’s Detroit office, located in Southfield, Michigan. As an Account Executive, Webber was

responsible for managing customer relationships, meeting with customers and potential customers

to solicit their business, selling customized digital and print advertising campaigns, and training

customers and employees on the capabilities and use of MLive’s products. 

Through her position at MLive, Webber had intimate knowledge of MLive’s digital product

offerings, product strengths and weaknesses in comparison to competitors’ offerings, customer

pricing, budgets, and margins, customers’ needs, the terms of customer contracts, training for

customers, customer contact and personnel information, prospective customer information,

marketing strategies, sales plans, sales forecasts, referral-source information, access to valuable

reporting and campaign delivery data, and prospective customer pipeline information and plans.

Webber claims she was the top revenue producer for MLive. 

In order to protect its confidential information, MLive uses password-protected security,

retains customer information in a restricted area on the company’s secure server, strictly limits such

access to certain personnel on a need-to-know basis and now requires Account Executives to execute

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non-solicit agreements. MLive also requires its employees to abide by its policies, including but not

limited to, policies regarding the confidentiality of information, the distribution of sensitive material,

information security, electronic communications, and internet usage. MLive also follows strict

protocols when an employee leaves the company in order to protect its confidential information. 

On May 7, 2014, Webber received an oral warning for tardiness and on July 3, 2014, she was

given a written warning for her continued attendance and punctuality problems. On July 31, 2014,

MLive terminated Webber’s employment due to her failure to demonstrate improvement with regard

to her attendance issues. 

Upon Webber’s termination from employment, she returned her company issued cellular 

phone. A review of Webber’s phone revealed text messages from Webber in which she claimed to

have copied all of her MLive data on her computer to a USB device. Her text messages further show

that she copied the material knowing that she would start working at Gannett, one of MLive’s largest

competitors, on August 18, 2014, and that she planned to shift her clients over to Gannett one by

one. Indeed, the day before Webber’s termination, she submitted a thirty-day cancellation notice

for one of her larger customers. 

On August 4, 2014, MLive sent Webber a cease and desist letter, requesting that Webber

return MLive’s property and allow an inspection of her computer equipment. On August 5, 2014,

Webber responded to the cease and desist letter. Webber claimed that she only downloaded personal

files and photos. The next day, MLive’s counsel contacted Webber again requesting inspection of

Webber’s personal computer equipment to confirm that she only downloaded personal items. That

same day, Webber contacted MLive’s counsel stating that she would agree to an inspection of her

computer equipment once she returned from her Florida vacation. However, to date, Webber has

failed to make any efforts to turn over her computer equipment. 

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MLive also retained a forensic computer expert to perform an analysis of Webber’s work

computer. The analysis revealed that Webber downloaded numerous MLive files, including

customer related information. The forensic study also uncovered Webber’s use of two USB devices

with her work computer in July of 2014 and the use of a cloud-based drop-box to store work files. 

On August 13, 2014, MLive received another cancellation notice from one of its clients that worked

with Webber. MLive claims that it will be irreparably harmed if preliminary and permanent

injunctive relief is not granted. 

III. LAW & ANALYSIS 

A. MLive’s Motion for Preliminary Injunction 

MLive seeks injunctive relief enjoining Webber from continuing to use MLive’s trade

secrets, as well as non-solicit relief. MLive seeks to preclude Webber from soliciting the customers

she worked with while employed at MLive, and the prospective customers about which she gained

confidential information during her employment at MLive. 

Temporary restraining orders and preliminary injunctions are extraordinary remedies

designed to protect the status quo pending final resolution of a lawsuit. See University of Texas v.

Camenisch, 451 U.S. 390 (1981). Whether to grant such relief is a matter within the discretion of

the district court. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,

540 (6th Cir. 2007). The same factors are considered in determining whether to grant a request for

either a temporary restraining order or a preliminary injunction. See Sandison v. Michigan High

School Athletic Assoc., 64 F.3d 1026, 1030 (6th Cir. 1995). 

The four factors that must be balanced and considered before the court may issue a

temporary restraining order or preliminary injunction include: (1) the likelihood of the plaintiff’s

success on the merits; (2) whether the plaintiff will suffer irreparable injury without the injunction;

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(3) the harm to others which will occur if the injunction is granted; and (4) whether the injunction

would serve the public interest. Certified Restoration, 511 F.3d at 542; In re Eagle-Pitcher

Industries, Inc., 963 F.2d 855, 858 (6th Cir. 1992); and N.A.A.C.P. v. City of Mansfield, Ohio, 866

F.2d 162, 166 (6th Cir. 1989). “None of these factors, standing alone, is a prerequisite to relief;

rather, the court should balance them.” Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.

1996). Preliminary injunctive relief “is an extraordinary measure that has been characterized as ‘one

of the most drastic tools in the arsenal of judicial remedies.’” Bonnell v. Lorenzo, 241 F.3d 800, 808

(6th Cir. 2001). 

1. Likelihood of Success on the Merits

Contrary to Webber’s argument, MLive has demonstrated a likelihood of success on the merits

of its misappropriation of trade secrets claim. The three elements of an action for misappropriation of

trade secrets under Michigan law include: (1) the existence of a trade secret; (2) its acquisition in

confidence; and (3) the defendant’s unauthorized use of it. Aerospace America, Inc. v. Abatement

Technologies, Inc., 738 F. Supp. 1061, 1069 (E.D. Mich. 1990); see also Henkel Corp. v. Cox, 386 F.

Supp. 2d 898, 903 (E.D. Mich. 2005). “Under Michigan law, a court may enjoin actual or threatened

misappropriation of a trade secret and may compel affirmative acts to protect a trade secret.” Henkel

Corp., 386 F. Supp. 2d at 903. 

Specifically, the Act states: 

Actual or threatened misappropriation may be enjoined. Upon application to the court

of competent jurisdiction, an injunction shall be terminated when the trade secret has

ceased to exist, but the injunction may be continued for an additional reasonable period

of time in order to eliminate commercial advantage that otherwise would be derived

from the misappropriation. 

***

In appropriate circumstances, affirmative acts to protect a trade secret may be

compelled by court order. 

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MICH. COMP. LAWS § 445.1903(1), (3). The Act defines a trade secret as:

[I]nformation, including a formula, pattern, compilation, program, device, method,

technique, or process, that is both of the following: 

(i) Derives independent economic value, actual or potential, from not being

generally known to, and not being readily ascertainable by proper means by, other

persons who can obtain economic value from its disclosure or use.

(ii) Is the subject of efforts that are reasonable under the circumstances to

maintain its secrecy. 

MICH. COMP. LAWS § 445.1902(d). Here, Webber took information from MLive which constitutes

trade secrets. The information taken by Webber includes, but is not necessarily limited to: customer,

financial, and training material, including a document entitled “key account growth plan.” This

information derives independent economic value from not being known by the public. 

Furthermore, the Court rejects Webber’s contention that MLive made “no effort whatsoever to

maintain the confidentiality of the customer information and advertising strategies at issue.” See Dkt.

No. 14 at 3. Rather, MLive has taken reasonable steps to protect its information. MLive uses

password-protected security; keeps customer information in a restricted area on its company server, and

strictly limits access to certain personnel on a need-to-know basis. Additionally, MLive requires its

employees to abide by its policies, including but not limited to, policy directives for confidential

information and distribution of sensitive material, information security, electronic communications,

information and internet usage. See Dkt. No. 15, Ex. A. 

Lastly, MLive follows specific protocols when an employee leaves the company in order to

protect confidential data. Reasonable measures to protect trade secret information include:

[E]ither an express agreement between the employer and employee restricting or

prohibiting disclosure by the latter to third parties; a disclosure by an employer to

employee in confidence or with a tacit understanding, inferable from the attendant

circumstances, that the information is confidential; or security precautions utilized by

the employer to insure that only a limited number of authorized individuals have access

to the information.

Wysong Corp. v. M.I. Indus., 412 F. Supp.2d 612, 626 (E.D. Mich. 2005). 

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Webber argues that the information she downloaded does not constitute “trade secrets” within

the meaning of the Act because MLive made no effort to keep the information confidential. Webber

relies on the fact that she never signed either a non-compete or a confidentiality agreement. Webber

relies on the case of McKeeson Medical - Surgical, Inc. v. Micro-Bio-Medics, 266 F. Supp. 2d 590

(E.D. Mich. 2003), wherein the court held:

In this Court’s opinion, customer lists developed by the employee are not protectable

‘trade secrets.’ To the extent that the list of customers accumulated by the employee

includes ‘needs of customers’ as learned by the employee during the course of his

employment, such information is not protectable as a ‘trade secret.’ It is, however,

protectable under an agreement in which the employee agrees not to disclose such

information.

Id. at 596-97. However, this holding is distinguishable from the facts present here. The customer list 

at issue in McKeeson Medical “was not a list [the employer] kept itself, nor was it compiled from any

. . . trade secret source; rather, it was compiled from personal and public sources available to [the

defendant].” Id. at 594. While this case is similar because there is no non-compete or confidentiality

agreement, the information taken by Webber was not compiled from personal and public sources. 

Moreover, other courts have enjoined similar conduct without an express non-compete

agreement or with an unenforceable non-compete agreement. See Ackerman v. Kimball, 652 N.E. 2d

507 (Ind. 1995); Barilla v. Wright, No. 4-02-cv-90267, 2002 U.S. Dist. LEXIS 12773 (S.D. Iowa Jul.

5, 2002); Elm City Cheese Co. v. Federico, 251 Conn. 59; 752 A.2d 1037 (1999) (barring employee

from working in entire industry devoted to the areas where he misappropriated trade secrets despite the

absence of a non-compete agreement); Pepsico, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995). 

The Court also concludes that MLive has a likelihood of success on the merits of its tortious

interference with contractual and business relationships claim. The elements for this claim are: (1)

existence of a business relationship with a third party; (2) defendant’s knowledge of the business

relationship; (3) intentional and/or improper interference by the defendant that causes a breach,

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disruption, or termination of the business relationship; and (4) damage to the plaintiff, whose business

relation has been breached, disrupted, or terminated. Liberty Heating & Cooling, Inc. v. Builders

Square, Inc. 788 F. Supp. 1438, 1447 (E.D. Mich. 1992). Here, Webber has intentionally and

improperly interfered with MLive’s business relationship with its customers evidenced by the loss of

two customers that worked with Webber during her employment with MLive, as well as her text

messages, and the forensic analysis of her work computer. This factor favors the issuance of a

preliminary injunction. 

2. Irreparable Harm

The Court further concludes that MLive has demonstrated it will suffer irreparable harm if

preliminary injunctive relief is not granted. To satisfy this prong of the test, a party must demonstrate

that unless the injunction is granted, it will suffer “‘actual and imminent harm’ rather than harm that

is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). “Loss

of customer goodwill and fair competition can support a finding of irreparable harm. Such losses often

amount to irreparable injury because the resulting damages are difficult to calculate.” Superior

Consulting Co. v. Walling, 851 F. Supp. 839, 847 (E.D. Mich. 1994) (concluding that the use of

confidential information concerning the “specific needs and service provided to the plaintiff’s clients”

would enable the defendant “effectively to solicit [the plaintiff’s] clients, and to undercut [the

plaintiff]’s rates while providing the same services provided by [the plaintiff].”). Webber offers no

argument concerning irreparable harm. Based on the foregoing considerations, the Court concludes that

MLive has demonstrated irreparable harm. This factor also supports the issuance of preliminary

injunctive relief. 

3. Harm to Others

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MLive argues that the harm it will suffer outweighs the harm to Webber if preliminary

injunctive relief is not granted. Webber likewise offers no argument on this factor. MLive maintains

that Webber will not be harmed if she is enjoined from soliciting her prior and prospective customers

because she may still work for Gannett. MLive’s loss of customer goodwill and its trade secrets greatly

outweighs any harm to Webber if the preliminary injunction is granted. As such, the Court concludes

that without preliminary injunctive relief, Webber will continue to raid MLive’s customers by using

its confidential, proprietary, and trade secret information. This factor likewise favors granting

preliminary injunctive relief. 

4. Public Interest 

Lastly, MLive argues that the public interest supports the issuance of a preliminary injunction

because of the public’s interest in protecting businesses’ confidential and trade-secret information. 

Webber fails to address this factor in her Response. The Court concludes that this factor also favors

the issuance of a preliminary injunction. 

B. MLive ’s Emergency Motion for Alternate Service 

On August 20, 2014, MLive filed an Emergency Motion for Alternate Service. In its

Motion, MLive argues that Webber has avoided service of the pleadings and Temporary Restraining

Order and requests that the Court deem service via email on Webber proper, or alternatively,

permitting MLive to serve Webber at her home by leaving the Court filings in a sealed envelope

in her door or mailbox. On August 22, 2014, counsel for Webber sent correspondence to the Court

and opposing counsel indicating that his office will accept service on behalf of Webber. A review

of the docket in this matter demonstrates that the Certificate of Service was returned executed on

August 22, 2014. As such, Plaintiff’s Emergency Motion for Alternate Service is moot. 

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IV. CONCLUSION 

All four factors this Court must consider when determining the propriety of preliminary

injunctive relief favor issuance of a preliminary injunction. Plaintiff’s Motion for Preliminary

Injunction [#2] is therefore GRANTED. The Court will enter a separate Preliminary Injunction

Order. Plaintiff’s Emergency Motion for Alternate Service [#8] is MOOT. 

SO ORDERED.

Dated: September 4, 2014 /s/Gershwin A Drain________________

GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE 

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