UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

KEYBANK NATIONAL ASSOCIATION, 

 Plaintiff - Appellant, 

v. 

CHARLES H. WILLIAMS; TIMOTHY 

WELDON, 

 Defendants - Appellees. 

No. 20-1384 

(D.C. No. 1:19-CV-03714-CMA-SKC) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, McHUGH, and CARSON, Circuit Judges. 

_________________________________ 

This is an appeal from the denial of a preliminary injunction in a business tort 

case. KeyBank National Association (KeyBank) sued two of its former employees, 

Charles Williams and Timothy Weldon (Appellees), after they left KeyBank to work 

for a competitor, Newmark Knight Frank. KeyBank alleged that Appellees breached 

their non-compete agreements and used its trade secrets and confidential information 

to divert business from KeyBank to Newmark. KeyBank moved for a preliminary 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 10, 2022

Christopher M. Wolpert 

Clerk of Court

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injunction to prevent Appellees from doing business with and soliciting KeyBank’s 

customers and misappropriating its trade secret and confidential information. The 

district court denied the motion, concluding KeyBank failed to show a probability of 

irreparable harm. KeyBank now appeals that order. The underlying litigation is 

ongoing, but we have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district 

court’s denial of the preliminary injunction motion. We affirm. 

BACKGROUND 

Appellees worked in KeyBank’s Commercial Real Estate Division until they 

resigned in January 2019 and immediately began working for Newmark. While 

employed with KeyBank, they each signed confidentiality agreements prohibiting 

them from disclosing any KeyBank trade secrets and providing that upon termination 

of their employment, they would return all documents, data, and information 

containing trade secrets. In addition, at numerous times during their employment, 

they received restricted stock awards for their performance. To accept the awards, 

they electronically accepted the terms and conditions contained in stock award 

agreements, including non-compete provisions prohibiting them from soliciting or 

doing business with any existing or prospective KeyBank customer they interacted 

with or learned of during the course of their employment at KeyBank. The noncompete agreements expired in January 2020—one year after the termination of their 

employment with KeyBank. 

Before accepting the job with Newmark, Williams emailed Newmark to 

facilitate the determination of the sign-on bonus Newmark would offer to Williams 

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and Weldon. Williams’s email included information regarding his, Weldon’s, and a 

colleague’s production at KeyBank. He initially emailed Newmark PDFs of 

production data he had copied and pasted from KeyBank’s 2016, 2017 and 2018 

Pipeline Reports. These reports, which were maintained in Excel spreadsheets, 

contained statistical and financial data on mortgage-specific transactions involving 

numerous KeyBank clients. According to KeyBank, the Pipeline Reports contain 

confidential and trade secret data. The PDFs Williams sent Newmark did not include 

all of the information on the spreadsheet. He later gave Newmark the Pipeline 

Reports in an Excel spreadsheet so it could more easily transfer the information into 

its system for purposes of determining the sign-on bonus amounts. Williams 

attempted to hide numerous columns on the spreadsheet so only those from the PDF 

were revealed in the spreadsheet he gave Newmark. But the hidden columns could 

be unhidden, meaning he unwittingly gave Newmark KeyBank’s full Pipeline 

Reports. 

Appellees both knew the Pipeline Reports were confidential and were not to be 

shared outside of KeyBank. They maintained that they did not know there was 

hidden information in the spreadsheets until it was discovered during the course of 

the litigation. They also maintained that no one at Newmark knew about or saw any 

of the hidden information. During their initial nineteen months of working at 

Newmark, Appellees closed seven deals involving KeyBank clients. 

KeyBank filed its complaint in December 2019, alleging that Appellees 

violated their non-compete and confidentiality agreements and misappropriated its 

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trade secrets.1

 About a month later, KeyBank filed a motion for a preliminary 

injunction pursuant to Fed. R. Civ. P. 65, seeking to enjoin Appellees from (1) doing 

business with or soliciting any KeyBank customers for a period of time 

commensurate with the duration of their alleged noncompliance with their 

non-compete agreements; and (2) misappropriating KeyBank’s trade secret and 

confidential information, by, among other things, soliciting and doing business with 

its customers. 

After a hearing, the magistrate judge issued a report and recommendation that 

the district court grant the motion in part and deny it in part. He found the Pipeline 

Reports were confidential and recommended that the court order Appellees to either 

return them to KeyBank or destroy them, but he recommended that the court 

otherwise deny the motion because KeyBank failed to show it would suffer 

irreparable injury if the injunction were denied. The magistrate judge gave four 

reasons for his irreparable-harm finding. First, there was no evidence Appellees had 

used KeyBank’s confidential information to compete with KeyBank or divert its 

customers to Newmark. The magistrate judge explained that KeyBank and Newmark 

shared common customers, Appellees closed only seven deals for Newmark that 

involved KeyBank customers, and there was no evidence that Appellees used the 

Pipeline Reports to secure those deals. He also found that even if those deals were 

1

 KeyBank asserted claims against both defendants for breach of contract and 

misappropriation of trade secrets, and against Williams for intentional interference 

with a business relationship and breach of the duty of loyalty. 

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the result of misappropriation or unlawful competition, any injury KeyBank suffered 

could be quantified and compensated by money damages after trial. The second 

reason the magistrate judge gave for finding no irreparable harm was that there was 

no evidence of any current or ongoing use or misappropriation of its confidential 

information. Third, there was no evidence that KeyBank lost competitive advantage 

as a result of Appellees’ alleged unlawful competition or misappropriation of 

confidential information—it continued to do business with the customers involved in 

the deals Appellees closed for Newmark, and by at least one measure, its industry 

ranking was below Newmark’s in 2018 but jumped ahead in 2019. Finally, the 

magistrate judge found that KeyBank’s delay in seeking the injunction undercut its 

irreparable-harm claim. He noted that KeyBank learned of Appellees’ possible 

breach of their non-compete and trade secret agreements in early to mid-2019 but did 

not file suit until December 2019 and did not seek injunctive relief until January 

2020—a year after Appellees left KeyBank and just days before their restricted 

periods expired. 

Considering KeyBank’s objections to the report and recommendation and 

reviewing the question de novo, see 28 U.S.C. § 636(b)(1), the district court adopted 

the magistrate judge’s factual findings and agreed that KeyBank failed to show 

irreparable harm. Specifically, the court concluded that KeyBank’s alleged harm was 

“inherently theoretical,” noting that it argued in its objections that the threat of 

Appellees’ solicitation of its customers or use of its confidential information 

warranted injunctive relief, but it presented no evidence that Appellees were 

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“currently using or misappropriating” that information. R., vol. II at 301. The court 

also agreed with the magistrate judge that KeyBank’s delay in seeking relief “heavily 

weighs against the issuance of a preliminary injunction,” because waiting to seek an 

injunction until one year after Appellees started working for Newmark and just days 

before their non-compete provisions expired showed no “sense of urgency.” Id. at 

302 (emphasis and internal quotation marks omitted). 

Based on its determination that KeyBank failed to show irreparable harm, the 

court denied the preliminary injunction motion in its entirety, including the request 

that Appellees be ordered to return or destroy the Pipeline Reports. 

DISCUSSION 

 KeyBank contends the district court’s irreparable-harm determination 

constitutes an abuse of discretion because (1) the court disregarded evidence that 

KeyBank suffered actual and unquantifiable injury in the form of diminished 

customer relations, goodwill, and competitive standing; and (2) the record does not 

support the finding that KeyBank delayed seeking relief. KeyBank also challenges 

the district court’s rejection of the magistrate judge’s recommendation to order 

Appellees to return or destroy the Pipeline Reports. 

Legal Standards 

 “We review the decision to deny a motion for a preliminary injunction for 

abuse of discretion.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 

2005). A district court abuses its discretion when its decision “is premised on an 

erroneous conclusion of law or where there is no rational basis in the evidence for the 

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ruling.” First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1140 (10th Cir. 2017) 

(internal quotation marks omitted). We review the district court’s factual findings for 

clear error and its legal conclusions de novo. Id. at 1140-41. “The district court’s 

discretion in this context is necessarily broad and a strong showing of abuse must be 

made to reverse it.” FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009) 

(internal quotation marks omitted). 

 A preliminary injunction “is an extraordinary remedy” that may be granted 

only when “the right to relief [is] clear and unequivocal.” Schrier, 427 F.3d at 1258 

(internal quotation marks omitted). To obtain an injunction, the moving party must 

show it “will suffer irreparable injury if the injunction is denied.” First W. Cap. 

Mgmt. Co., 874 F.3d at 1141 (internal quotation marks omitted). “To constitute 

irreparable harm, an injury must be certain, great, actual and not theoretical.” 

Schrier, 427 F.3d at 1267 (internal quotation marks omitted). The burden of showing 

irreparable harm is not “an easy burden to fulfill.” Dominion Video Satellite, Inc. v. 

Echostar Satellite Corp., 356 F.3d 1256, 1262 (10th Cir. 2004) (internal quotation 

marks omitted). 

 The purpose of a preliminary injunction is to “preserve the relative positions of 

the parties until a trial on the merits can be held,” Schrier, 427 F.3d at 1258 (internal 

quotation marks omitted), “not to remedy past harm,” id. at 1267. Thus, the movant 

must demonstrate “a significant risk” that it will experience future harm that “cannot 

be compensated after the fact by money damages.” First W. Cap. Mgmt. Co., 

874 F.3d at 1141 (internal quotation marks omitted). In determining whether the 

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movant has shown irreparable harm, a district court may consider “the difficulty in 

calculating damages” and the “existence of intangible harms such as loss of goodwill 

or competitive market position.” Dominion Video, 356 F.3d at 1264. Harm to 

goodwill can be irreparable even where the party seeking relief has not lost the 

customer entirely. See Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191-92 

(10th Cir. 2009). But economic loss, including the loss of business, “usually does 

not, in and of itself, constitute irreparable harm.” Port City Props. v. Union Pac. 

R.R. Co., 518 F.3d 1186, 1190 (10th Cir. 2008) (internal quotation marks omitted); 

see also First W. Cap. Mgmt. Co., 874 F.3d at 1140, 1143 (concluding district court 

abused its discretion by granting preliminary injunction despite finding that any 

damages caused by former employee’s use of plaintiff’s client list to solicit its clients 

would be quantifiable and that money damages “would adequately make the company 

whole” (brackets and internal quotation marks omitted)). 

Application 

 As an initial matter, we acknowledge Appellees’ argument that even if 

KeyBank could establish irreparable injury, it could not obtain the injunctive relief 

sought—essentially, an extension of their expired restrictive periods under the 

non-compete agreements. Addressing this argument would require us to resolve 

choice-of-law and enforceability issues that the parties continue to disagree about in 

the underlying litigation and that KeyBank contends we lack jurisdiction to decide 

because the district court did not address them in the preliminary-injunction order. 

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We need not resolve any of these issues, however, because we find no abuse of 

discretion in the district court’s irreparable-harm determination.2

 

1. Intangible Injury 

 KeyBank first contends the district court’s finding that any injury it suffered 

was either theoretical or could be compensated by money damages ignores 

KeyBank’s evidence that it suffered intangible injury in the form of diminished 

customer relationships, goodwill, and competitive standing. In support, it relies 

primarily on evidence it contends establishes that Appellees took and had unfettered 

access to the Pipeline Reports, solicited and closed deals with KeyBank customers, 

and continue to use KeyBank’s confidential information to divert business to 

Newmark. KeyBank says “[n]one of this is theoretical. It was real.” Aplt. Opening 

Br. at 37 (emphasis omitted). But the question is not whether Appellees’ alleged 

wrongful conduct was real or theoretical. The question is whether their conduct 

caused and will continue to cause actual injury that cannot be compensated with 

money damages. See Dominion Video, 356 F.3d at 1263-64 (recognizing that 

irreparable harm “do[es] not automatically” arise from the breach of exclusivity, 

non-compete, and non-disclosure agreements). 

2

 The choice-of-law and enforceability issues go to whether KeyBank can 

show a likelihood of success on the merits—a preliminary injunction factor the 

district court did not need to reach after concluding KeyBank failed to show 

irreparable harm. See First W. Cap. Mgmt. Co., 874 F.3d at 1141 (explaining that 

“because a showing of probable irreparable harm is the single most important 

prerequisite for the issuance of a preliminary injunction, the moving party must first 

demonstrate that such injury is likely before the other requirements will be 

considered” (internal quotation marks omitted)). 

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 KeyBank’s insistence that Appellees’ past conduct and continued possession 

of the Pipeline Reports necessarily cost it future business and goodwill that cannot be 

measured is insufficient to establish the requisite irreparable harm. See id. at 1264-

65 (district court abused its discretion in granting preliminary injunction where it 

found irreparable harm based solely on defendant’s breach of exclusivity agreement 

and rejected plaintiff’s assertions that it was losing customers, competitive position, 

and goodwill). And contrary to KeyBank’s contention that the district court ignored 

its evidence and arguments, the record shows that the court considered KeyBank’s 

evidence and was simply not persuaded by its argument that it would suffer 

irreparable injury absent injunctive relief. The court found no evidence that 

Appellees are using KeyBank’s confidential information to solicit its customers and 

divert business to Newmark or that KeyBank has suffered or will suffer lost goodwill 

or competitive standing. KeyBank’s disagreement with those findings does not 

establish that the court ignored KeyBank’s evidence or that its findings are clearly 

erroneous. 

 Nor does KeyBank’s disagreement with the court’s ruling support the 

contention that the court “ignore[d] binding” precedent, Aplt. Opening Br. at 36. Our 

precedent recognizes that the loss of competitive standing or goodwill can give rise 

to irreparable injury. But “not all plaintiffs who have already suffered lost 

customers, stolen trade secrets, or intangible injury can show a sufficient probability 

of future irreparable harm to warrant a preliminary injunction.” DTC Energy Grp., 

Inc. v. Hirschfeld, 912 F.3d 1263, 1271 (10th Cir. 2018). The district court 

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concluded that KeyBank failed to make that showing, and we find no abuse of 

discretion in its determination. See id. at 1271-73 (affirming denial of preliminary 

injunction based on loss of customers, loss of goodwill, and erosion of competitive 

position where plaintiff “did not establish a probability of future irreparable harm” 

and the prior loss of customers and “general decline of [plaintiff’s] value as a 

business can be quantified in money damages”); Schrier, 427 F.3d at 1267 (affirming 

denial of preliminary injunction even though plaintiff alleged irreparable harm from 

“loss of prestige, academic reputation[,] [and] professional opportunities,” because it 

failed to identify “evidence in the record showing actual or significant risk” that 

those harms would occur in the future). 

The fact that Appellees’ non-compete and trade secret agreements 

acknowledge that a breach “may cause serious damage and irreparable injury” 

supporting a claim for injunctive relief, see R., vol. II at 289-90 (internal quotation 

marks omitted), does not require a different result. The parties’ recognition that 

irreparable harm could occur does not mean it did. 

2. KeyBank’s Delay in Seeking Relief 

 KeyBank next takes issue with the district court’s finding that its delay in 

seeking injunctive relief undercut its irreparable-harm claim. It disagrees with the 

court’s finding that it learned of Appellees’ possible breach of their noncompete and 

trade secret agreements in early to mid-2019, insisting it “received the first concrete 

evidence that Williams had breached his restrictive covenant” in September 2019. 

Aplt. Opening Br. at 43. But the record indicates that KeyBank believed Weldon was 

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contacting KeyBank customers as early as February 2019, and it sent both Appellees 

correspondence in September and October reminding them of the restrictive 

covenants and obligations to KeyBank, yet waited several more months to file suit 

and seek a preliminary injunction. The district court’s factual finding that KeyBank 

delayed seeking relief was thus not clearly erroneous. 

 Contrary to KeyBank’s contention, the district court did not find that 

KeyBank’s delay was fatal to its irreparable-harm claim. Rather, the court held that 

KeyBank’s failure to seek relief earlier was inconsistent with its irreparable-injury 

claim and was one of several factors that weighed against issuing an injunction. 

Delay in seeking relief does not conclusively refute a showing of irreparable harm, 

but under the circumstances presented here, we find no abuse of discretion in the 

district court’s determination that waiting to file suit until a year after Appellees 

started working for a competitor and days before their non-compete agreements 

expired undermined KeyBank’s assertion that time was of the essence. See Fish v. 

Kobach, 840 F.3d 710, 753 (10th Cir. 2016) (explaining that delay in seeking 

preliminary relief can cut against finding irreparable injury); GTE Corp. v. Williams, 

731 F.2d 676, 679 (10th Cir. 1984) (holding that delay in seeking an injunction can 

be “an important factor in determining irreparable harm”). 

 We are not persuaded otherwise by the fact that KeyBank was engaged in 

settlement negotiations with Appellees for about three months before filing suit. 

Pursuing settlement discussions before seeking injunctive relief is not “fatal to [a] 

claim of irreparable injury.” Kan. Health Care Ass’n, Inc. v. Kan. Dep’t of Soc. & 

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Rehab. Servs., 31 F.3d 1536, 1544 (10th Cir. 1994); see also RoDa Drilling Co. v. 

Siegal, 552 F.3d 1203, 1212 (10th Cir. 2009) (delay in seeking an injunction “was 

not unreasonable and did not alter the irreparable harm analysis” where it stemmed 

from the parties’ attempts to resolve the dispute, not plaintiff’s “decision merely to 

sit on its rights” (internal quotation marks omitted)). But it was not unreasonable for 

the district court to conclude that “the duration of the parties’ settlement efforts 

shows that [KeyBank] is not facing imminent and irreparable harm” because if it had 

been, it likely “would have immediately sought injunctive relief when it discovered 

[Appellees’] alleged wrongdoing” and before their restrictive covenants expired. R., 

vol. II at 302. 

3. Return of Pipeline Reports 

 KeyBank’s final contention is that the district court erred in rejecting the 

magistrate judge’s recommendation that the motion for preliminary injunction be 

granted to the extent it seeks the return or destruction of the Pipeline Reports. That 

recommendation was based on the magistrate judge’s conclusion that the “Pipeline 

Reports are confidential information belonging to KeyBank.” Id. at 279. But the 

possession of confidential information does not justify injunctive relief absent a 

showing of irreparable harm, and because KeyBank failed to show irreparable harm, 

the district court properly denied the motion in its entirety. See First W. Cap. Mgmt. 

Co., 874 F.3d at 1143 (“Without showing irreparable harm, [a plaintiff] cannot obtain 

a preliminary injunction.”). 

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CONCLUSION 

 We affirm the district court’s order denying the motion for preliminary 

injunction. We make permanent our provisional order granting KeyBank’s 

unopposed motion to seal Exhibits 56, 58A, 59A, 60A, 61A, 61B, 61C and 61C1. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

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