UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BIOMET 3i, LLC, et al., )

)

Plaintiffs, )

)

v. ) No. 1:16-cv-00125-TLS-SLC

)

HEATHER LAND, )

)

Defendant. )

REPORT AND RECOMMENDATION

Before the Court is a motion for preliminary injunction filed by Plaintiffs Biomet 3i,

LLC, and Zimmer US, Inc. (together, “Zimmer Biomet”). (DE 8). In its motion, Zimmer Biomet

requests a preliminary injunction that enjoins Defendant Heather Land from continuing to work

for Keystone Dental and from making any further breaches of the Confidentiality, NonCompetition and Non-Solicitation Agreement for Sales Managers and Representatives (the “2015

Agreement”) entered into by Zimmer Biomet and Land on November 12, 2015. Zimmer Biomet 

filed a brief with affidavits and exhibits in support of its motion for preliminary injunction. (DE

9, DE 10, DE 11, DE 12). Land filed a response in opposition. (DE 47). This matter was

referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B). (DE 25). An evidentiary hearing was held on July 11-12, 2016. (DE 49, DE 50). 

Both Zimmer Biomet and Land have filed post-hearing briefs (DE 58, DE 60, DE 62) and 

replies (DE 65, DE 66). For the following reasons, I will RECOMMEND that Zimmer Biomet’s

motion for preliminary injunction be GRANTED.

I. FINDINGS OF FACT

Zimmer Biomet is a company that makes musculoskeletal products, with multiple
divisions within the company, including a dental division. (Transcript (“Tr.”) 10-11). In June 1

of 2015, the formerly separate companies merged when Zimmer U.S.A., Inc., acquired Biomet,

Inc. (Tr. 11). Biomet 3i, LLC, the division of Biomet that focused on dental implants and oral

reconstructive surgery, was owned by Biomet, but is now owned by Zimmer Biomet. (Tr. 11). 

Zimmer Biomet is headquartered in Warsaw, Indiana. (Tr. 21). Biomet 3i, LLC, was

headquartered in Palm Beach Gardens, Florida, prior to the Zimmer Biomet merger. (Tr. 247). 

Zimmer Biomet’s dental offices are now based in Palm Beach Gardens, Florida. (Tr. 247). 

Zimmer Biomet’s dental division has competitors in the industry that also sell dental implants,

including Keystone Dental, Nobel Biocare, Straumann, and Dentsply. (Tr. 15). Zimmer Biomet

uses a system of territory sales representatives, regional managers, and corporate sales managers

to sell its products to customers. (Tr. 13-15). 

Land was hired by Implant Innovations, Inc., the predecessor to Biomet 3i, LLC, in 2005. 

(Tr. 266). Land served as the territory sales manager for the San Diego County area for Implant

Innovations, Inc., for about two years. (Tr. 266-67). Land then took a similar position with a

company called Osteohealth, where she received training about regenerative products. (Tr. 267). 

Land worked for Osteohealth for a little over a year. (Tr. 267). Land’s next job was with a

dental software company for a short period of time, before she was recruited to come back to

Biomet 3i, LLC. (Tr. 267). Land returned to Biomet 3i, LLC, in 2008 as a territory sales

manager for the lower part of western Washington. (Tr. 267-68). After about a year and a half

or two years, Land added the rest of western Washington as well as Alaska to her territory. (Tr.

 The unredacted transcript from the July 11-12, 2016, evidentiary hearing has been filed 1

in the record in two parts, with one part for each day of the hearing. (DE 72, DE 73). A redacted

version of the transcript has also been filed in the record in two parts. (DE 81, DE 82). 

2
268). During that time, Land also served as a field training manager, which required her to

mentor and teach new hires. (Tr. 268). 

In 2011, Land was promoted to a regional sales manager position with Biomet 3i, LLC. 

(Tr. 268-69). Land’s territory as regional sales manager initially consisted of only southern

California, but her territory later expanded to include Arizona and Hawaii. (Tr. 269). Land was

employed as a regional sales manager for Biomet 3i, LLC, until October 31, 2015. (Tr. 269). 

Her duties as regional sales manager included coaching and mentoring her direct reports, going

into the field, working and meeting with customers to help them grow their practices, and

developing relationships with the customers. (Tr. 26). 

Land became a corporate sales manager for the newly merged Zimmer Biomet in

November 2015. (Tr. 39). Land’s geographical territory changed to include Alaska, Arizona,

California, Colorado, Hawaii, Idaho, Minnesota, Montana, Nevada, North Dakota, Oregon, South

Dakota, Washington, Wisconsin, and Wyoming. (Tr. 39). As a corporate sales manager, Land

handled institutional accounts for Zimmer Biomet, including accounts for the military,

universities, dental service organizations (“DSO’s”), and group dental practices. (Tr. 293). Part

of Land’s job as a corporate sales manager was to interface directly with executive officers for

these institutional accounts in order to understand their preferences and work with them on their

businesses. (Tr. 28). 

Zimmer Biomet provided Land with “key accounts, a list of customers, what they

purchase, when they purchase, what type of products they purchase, how many units of a product

they purchase throughout a year,” as well as information about Zimmer Biomet “products as it

pertains to selling versus other competitive products, coming out with education strategies,

3
marketing campaigns, strategic planning,” the development of new products, and both general

pricing and pricing specific to each account. (Tr. 45-46). All of this information is information

that is valuable to Zimmer Biomet and is not available to the public, and a competitor’s access to

this information would be harmful to Zimmer Biomet. (Tr. 46-47). Land also would have had

access to non-written confidential information through meetings and trainings she attended,

through speaking with other people within Zimmer Biomet, and through speaking with Zimmer

Biomet’s customers. (Tr. 47).

Land has been subject to a non-competition, non-solicitation, and non-disclosure

agreement with Biomet 3i, LLC, since 2008. (Tr. 138). When Land accepted the corporate sales

manager position with Zimmer Biomet in November 2015, Land signed a new non-competition,

non-solicitation, and non-disclosure agreement (“the 2015 Agreement,” as previously defined). 

(Tr. 142; Pl. Ex. 18). Under the 2015 Agreement, Land agreed that: (1) for a period of 18

months after termination of her employment with Zimmer Biomet, she would not compete by

working for a competitor in the same geographic territory she covered at any time during her last

two years of employment (Pl. Ex. 18 ¶ 7(b)(1)); (2) for a period of 18 months after termination of

her employment with Zimmer Biomet, she would not directly or indirectly solicit Zimmer

Biomet’s customers or prospects with whom she worked or for whom she held supervisory or

managerial responsibilities during the last two years of her employment (Pl. Ex. 18 ¶ 7(b)(2)); (3)

she would not disclose confidential information that she was exposed to through her work at

Zimmer Biomet (Pl. Ex. 18 ¶ 2); and (4) Indiana law would apply to any dispute arising out of

the 2015 Agreement (Pl. Ex. 18 ¶ 13). 

Land was recruited to interview with Keystone Dental in January 2016, just a few months

4
after beginning her corporate sales manager role with Zimmer Biomet. (Tr. 142). The recruiter

sent Land’s resume to Keystone Dental in mid-January 2016. (Tr. 143). On February 10, 2016,

Land had a formal interview with Keystone Dental in Irvine, California, with Keystone Dental’s

Vice President of Sales, Steve Wright, the Director of Human Resources, the Vice President of

Marketing, and the Director of Corporate Sales. (Tr. 143). Land had a followup call with Wright

a day or two later. (Tr. 143). During mid-February, Land was working with Wright to schedule

a final interview with Keystone Dental’s President, Mike Kehoe. (Tr. 144). On February 15,

2016, Wright emailed Land stating that “[Keystone Dental’s] lawyer says as long as you were

living in California when you signed the Non-compete Agreement, it will not hold up in court. 

California is a right to work state. So they will make noises, but you have the right to work for

whomever you wish.” (Pl. Ex. 25; Tr. 144). 

On February 16, 2016, the next day, Land transferred 5,948 Zimmer Biomet files onto a

flash drive, including information that Land admits was confidential. (Tr. 153-54, 204). Land

created the flash drive of Zimmer Biomet files within a few days of when she was told by

Keystone Dental that it was going to offer her a job. (Tr. 155). Land states that she created the

flash drive as part of a backup process that she did on a regular basis. (Tr. 154). However, Land

does not have any other flash drives on which she previously backed up her Zimmer Biomet files,

and she had never previously backed up files on that particular flash drive. (Tr. 155-56). 

Land received a formal written job offer for a position as a Regional Sales Manager with

Keystone Dental on February 23, 2016. (Tr. 145; Pl. Ex. 33). Land sent a response accepting the

position within four hours, as she had been previously told by Keystone Dental that she was

going to receive an offer, so she was expecting it. (Tr. 146). Land gave her notice of resignation

5
to Zimmer Biomet the next day, on February 24, 2016, when she called Jim Gerson, who was her

team lead. (Tr. 147; Pl. Ex. 36). Gerson told Land to send a formal letter of resignation, and to

speak with Adam Larkin, who was her direct supervisor at the time. (Tr. 118, 147). Gerson

asked Land if she would be calling on institutional accounts in her new job, and Land informed

him that she had already informed Keystone Dental that she could not work on those accounts. 

(Tr. 298). 

Land also spoke with Zimmer Biomet’s general manager for North America, Brian

Burke, as well as Brett Deaver, Zimmer Biomet’s Vice President of Global Marketing and

Education, whom Land considered to be a close friend. (Tr. 300-01). During her conversation

with Burke, Land could tell he was “very disappointed,” but “he really didn’t say a whole lot.” 

(Tr. 302). Gerson then got back to Land and let her know that Zimmer Biomet wanted her to stay

on an additional 8 or 9 days, until March 1st, to allow time to transition. (Tr. 302). During this

transition period, Zimmer Biomet did not put any restrictions on what activities Land could do or

what information she could access. (Tr. 303-04). Land completed an exit interview with Sandi

Thompson in Zimmer Biomet’s human resources department. (Tr. 305-06). 

Land did not ask anyone at Zimmer Biomet whether she had their approval to work for

Keystone Dental. (Tr. 151-52). Land inferred from her conversations with Zimmer Biomet

employees that Zimmer Biomet did not have a problem with Land working for Keystone Dental

as long as Land did not work on the institutional accounts. (Tr. 151-52). However, no one at

Zimmer Biomet ever told Land that Zimmer Biomet had no problem with her taking the position

at Keystone Dental. (Tr. 149). When Land spoke with Burke, she never asked him if it was okay

for her to take the job at Keystone Dental, and she never asked if Zimmer Biomet would enforce

6
the non-compete agreement against her. (Tr. 63). Land believed that the non-compete agreement

was unenforceable in California because she had spoken to Biomet’s director of human

resources, Thea Bosio, during her time as a regional manager for Biomet. (Tr. 287-88). During

Land’s work as a regional manager, Biomet had not enforced non-compete agreements against

some of Land’s territory sales representatives in California. (Tr. 288). 

On February 25, 2016, Adam Larkin sent an email to Zimmer Biomet’s Human

Resources department with Land’s resignation letter attached. (Pl. Ex. 37). In his email, Larkin

stated that “Heather has taken a position with Keystone Dental as a manager/director over a sales

team. I don’t know if this is an issue or not with Heather’s recently signed Non-Compete

Agreement, but I believe we should at least look into it.” (Pl. Ex. 37). Zimmer Biomet also got

legal counsel involved into looking into whether Land’s new position at Keystone Dental

violated her non-compete agreement. (Tr. 62). 

Land began working for Keystone Dental on March 3, 2016. (Tr. 307). On March 5,

Land opened several Excel files from the flash drive, including a June 2015 discount calculator

and an “Acquire, Expand, Retain” (“AER”) business strategy form. (Tr. 205; Pl. Ex. 81). Land

admits to having transferred some files from the flash drive to her personal computer for use at

Keystone Dental as templates. (Tr. 171, 312). Soon after she began working for Keystone

Dental, on March 14, 2016, Land received an email from Jason Hyland, Keystone Dental’s

corporate sales manager who was responsible for institutional accounts. (Tr. 186-88). In that

email, Hyland stated that he was sending Land reports regarding her representatives’ sales for

DSO accounts. (Tr. 187-88; Pl. Ex. 44 at 2). Hyland further stated in the email that he looked

forward to meeting with Land later that week at the corporate office, when he could break down

7
the national account numbers even more for her. (Pl. Ex. 44 at 2).

Within weeks of starting her job with Keystone Dental, Land started telling her

representatives to specifically target Zimmer Biomet accounts. (Tr. 174). On March 15, 2016,

Land sent an email to her team of sales representatives stating: 

Zimmer Biomet is losing Miami Tissue Bank. Miami tissue bank

has obtained an orthopedic contract that is more profitable and

thus, is leaving the dental market. Many of these products are now

on backorder with legacy Biomet customers and no longer

available. This is an opportune time to go after this business as

they will need another bone provider. It is doubtful that many of

these doctor[s] will want to switch to Puros due to its higher price

point. Go find these accounts and convert this business! Happy

Hunting!

(Tr. 174; Pl. Ex. 45). Land sent another email to her sales team on March 18, 2016, stating:

Please direct your sales efforts to going after BIOMET 3i accounts

for implants and biomaterials. These accounts are highly frustrated

with the Zimmer merger and product issues of late: 

Rep: 

*May have lost their BIOMET rep in the territory realignment. 

Most customers not happy with Zimmer rep replacement.

Education:

BIOMET education has drastically changed and will no longer

support customer programs as they had in the past. Customers are

very upset over this if they were part of their education programs. 

We can pick up where BIOMET left off. Let’s strategize if you

come across this customer.

Product issues/recalls on the following:

*Entire Restorative product line recalled due to package sterility

issue.

*EndoBon recalled due to FDA requirement that they move to 1 1⁄2

yr shelf life vs 3 yr shelf life without more studies.

*Provide abutment impression and protective cap recall due to

negative tissue response.

*Miami Tissue Bank going away.

8
Now is the time to strike on these accounts. I am happy to meet

with any of these accounts you can get a meeting with. Just let me

know.

(Tr. 178; Pl. Ex. 48).

On March 24, 2016, Land sent an email to a Biomet customer, Dr. Polyakov, which

stated: 

I hope you’re doing well. I wanted to update you and let you know

I’ve moved to Keystone Dental. They remind me of 3i in the old

days. Keystone can do a lot with education that ZB can no longer

do. Let me know if you would be interested in meeting. If nothing

else we have some proprietary products that could supplement

what you’re already doing.

(Pl. Ex. 52). Dr. Polyakov responded to Land the next day, on March 25, 2016. He wrote: 

Good to hear from you. I am sorry to hear that you left Biomet 3i, I

think that they lost a great employee and an amazing person as

well. I am not ready to consider any other implant company at this

time, but, please, keep in touch and keep me updated on your

career. 

(Pl. Ex. 52). Land responded with a final email, stating: 

I appreciate your kind words. It was a difficult decision to leave

but ultimately it was a very good move for me. The people and

company ethics are very high quality with a family like

environment. 

I will keep in touch and hope you do the same. I will miss working

with you all. Hopefully I will see you at AAOMS this year. If you

go, please stop by the booth.

(Pl. Ex. 52). 

Also on March 25, 2016, Zimmer Biomet’s counsel sent Land a letter informing her that

they were concerned her employment with Keystone Dental may be in violation of her noncompete agreement. (Tr. 151, 306). No one at Zimmer Biomet had previously expressed

9
concerns to Land about her new job at Keystone Dental. (Tr. 306). Land responded, through

Keystone Dental’s counsel, on April 4, 2016. (Pl. Ex. 57). In the letter, Keystone Dental’s

counsel stated that California law would apply to the case, and thus the 2015 Agreement would

be unenforceable; the letter also stated that the 2015 Agreement was unenforceable because it

was obtained under duress. (Pl. Ex. 57). At that point, Zimmer Biomet initiated this action

against Land by filing its complaint on April 12, 2016. (DE 1). 

On April 11, 2016, Land emailed Steve Wright regarding a request from another

Keystone Dental employee to permit a specific physician, Dr. Craig Thiede, to attend a

symposium. (Tr. 182; Pl. Ex. 58). In her email, Land noted that Dr. Thiede was “on a major

growth rate from last year as he has switched from BIOMET to Keystone as his primary

implant,” and thus she expected that Dr. Theide would be “a good growth account” if Keystone

Dental builds loyalty with his referrals. (Pl. Ex. 58). 

On April 12, 2016, Jason Hyland sent Land another email, thanking her for the input she

had provided. (Pl. Ex. 44 at 1). Hyland also attached the national account revenue numbers for

each representative during 2015 and 2016, as well as a file that would permit Land to determine

the name of the national account for each association number. (Pl. Ex. 44 at 1). 

II. DISCUSSION

“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (internal citations omitted). “In assessing

whether a preliminary injunction is warranted, we must consider whether the party seeking the

injunction has demonstrated that ‘1) it has a reasonable likelihood of success on the merits; 2) no

adequate remedy at law exists; 3) it will suffer irreparable harm if it is denied; 4) the irreparable

10
harm the party will suffer without injunctive relief is greater than the harm the opposing party

will suffer if the preliminary injunction is granted; and 5) the preliminary injunction will not

harm the public interest.’” St. John’s United Church of Christ v. City of Chi., 502 F.3d 616, 625

(7th Cir. 2007) (quoting Linnemeir v. Bd. of Trs. of Purdue Univ., 260 F.3d 757, 761 (7th Cir.

2001)). The district court must exercise its discretion to arrive at a decision “based on a

subjective evaluation of the import of the various factors and a personal, intuitive sense about the

nature of the case.” Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1436 (7th Cir. 1986).

The decision-making process also involves a “sliding scale” analysis, at least to the extent

that “the more likely it is the plaintiff will succeed on the merits, the less the balance of

irreparable harms need weigh toward its side; the less likely it is the plaintiff will succeed, the

more the balance need weigh towards its side.” Abbott Labs. v. Mead Johnson & Co., 971 F.2d

6, 12 (7th Cir. 1992) (citations omitted). “The sliding scale approach is not mathematical in

nature, rather ‘it is more properly characterized as subjective and intuitive, one which permits

district courts to weigh the competing considerations and mold appropriate relief.’” Ty, Inc. v.

Jones Grp., Inc., 237 F.3d 891, 895-96 (7th Cir. 2001) (quoting Abbott Labs., 971 F.2d at 12). 

But there is still a threshold to be met. A total failure to meet any one of the test’s requirements

cannot be compensated by a strong showing with respect to another. See, e.g., East St. Louis

Laborers’ Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 703 (7th Cir. 2005)

(holding that, if a moving party cannot show that there is irreparable harm and no adequate

remedy at law, “a court’s inquiry is over and the injunction must be denied”); Jolivette v. Husted,

694 F.3d 760, 765 (6th Cir. 2012) (“Although no one factor is controlling, a finding that there is

simply no likelihood of success on the merits is usually fatal.”). 

11
Land raises two preliminary arguments, lack of standing and estoppel, in her post-hearing

brief in opposition to Zimmer Biomet’s motion for preliminary injunction. The Court will turn

to these arguments first, before considering Zimmer Biomet’s likelihood of success on the merits

and other requirements for a preliminary injunction to issue.

A. Standing

Land’s first initial argument is that neither Plaintiff has standing to enforce the 2015

Agreement. Land contends that the parties to the 2015 Agreement are Plaintiff Zimmer US, Inc.,

and Land herself, not Plaintiff Biomet 3i, LLC. Because Land, Gerson, and Burke testified at the

evidentiary hearing that their current employer remained Biomet 3i, LLC, even after the merger,

Land believes that the Plaintiffs in this case do not have standing to enforce the 2015 Agreement,

as Biomet 3i, LLC, was not a party to the 2015 Agreement, and Zimmer US, Inc., was not her

employer. Land argues that covenants not to compete will not be enforced unless they are

“ancillary to an employment relationship,” and thus contends that Zimmer US, Inc., does not have

standing to enforce the 2015 Agreement because it was not her employer. (DE 62 at 13 (citing

Ohio Valley Commc’ns v. Greenwell, 555 N.E.2d 525 (Ind. Ct. App. 1990))). 

“In Indiana, ‘only the parties to a contract, those in privity with the parties, and intended

third-party beneficiaries under the contract may seek to enforce the contract.’” Benefit Resource

Grp., Inc. v. Westfield Ins. Co., No. 2:11-CV-64, 2013 WL 1813963, at *4 (N.D. Ind. Apr. 26,

2013) (quoting Harold McComb & Son, Inc. v. JP Morgan Chase Bank, NA, 892 N.E.2d 1255,

1258 (Ind. Ct. App. 2008)). Here, the 2015 Agreement was signed by Heather Land as the

“Employee,” and by Matthew Wilson for the “Company.” (Pl. Ex. 18 at 11). The “Company”

was defined in the 2015 Agreement to include Zimmer US, Inc., Zimmer, Inc., as well as each of

12
their affiliates, parents, and both direct and indirect subsidiaries, specifically including Biomet,

Inc., and its affiliates, parents, and both direct and indirect subsidiaries, as well as any

successors-in-interest. (Pl. Ex. 18 ¶ A). Furthermore, the 2015 Agreement states that “[t]he

Company has offered Employee employment, contingent upon Employee’s entering into this

Agreement.” (Pl. Ex. 18 ¶ B). Thus, the 2015 Agreement was most certainly “ancillary” to her

employment relationship with Zimmer Biomet, as it was a requirement of her job offer for the

corporate sales manager position. Based on the clear language of the 2015 Agreement, both

Zimmer US, Inc., and Biomet 3i, LLC, are parties to the contract, and they each have standing to

enforce the 2015 Agreement. 

B. Estoppel

Land’s second initial argument is that Zimmer Biomet is equitably estopped from

enforcing the non-competition covenant in the 2015 Agreement against her, because she

contends that Zimmer Biomet’s actions and silence induced her to believe that Zimmer Biomet

had no objection to her acceptance of the position with Keystone Dental. Land argues that her

reliance on Zimmer Biomet’s actions and silence was both reasonable and to her detriment, and

accordingly contends that Zimmer Biomet should be estopped from enforcing the noncompetition covenant. 

Land focuses on the following “actions and silence” by Zimmer Biomet: (1) Land’s

conversations with Biomet’s human resources manager, Thea Bosio, who told her that noncompete agreements were not enforceable in California; (2) Land’s contention that Biomet “had

never previously enforced non-compete agreements against employees in California,” and Land

“had no reason to think Biomet’s views on this had changed”; (3) Land’s conversation with

13
Gerson, who only expressed a concern about her working on institutional accounts, not about her

taking a job at Keystone Dental; (4) no one else at Zimmer Biomet (Burke, Deaver, Larkin, and

Thompson) had expressed concern about her taking the job at Keystone Dental; (4) Zimmer

Biomet’s “hid[ing] the ball” via communications between executives at Zimmer Biomet

regarding their intent to enforce the non-competition covenant against her, without informing her

of that intent, “despite multiple opportunities before she resigned”; and (5) Zimmer Biomet’s

delay in contacting Land to question her right to work for Keystone Dental until after she had

been working at Keystone Dental for three weeks. (DE 62 at 15-16). 

Land argues that Zimmer Biomet acted in a way that made Land believe it did not intend

to enforce the non-competition restriction, and Zimmer Biomet therefore was obligated to inform

Land that she could not rely on its prior actions and silences. Land contends that it is the duty of

the individual holding a right to assert that right if someone is about to infringe upon it, citing to

a more than 20-year-old, unpublished Northern District of Illinois case, TIC United Corp. v.

Lisowski, No. 93 C 6365, 1994 WL 577255, at *6 (N.D. Ill. Oct. 18, 1994), in support. Land also

cites to a “conceptually similar case” from the District of Oregon, which she states stands for her

position that an employer is equitably estopped from asserting its rights under a non-competition

agreement where the employer induced its former employees to believe that they could work for

a competitor without fear of violating the agreement. (DE 62 at 17 (quoting Ikon Office Sols.,

Inc. v. Am. Office Prods., Inc., 178 F. Supp. 2d 1154, 1165 (D. Or. 2001))). Land states that “this

case is why equitable estoppel exists.” (DE 62 at 17). 

In response, Zimmer Biomet contends that it never waived its rights under the 2015

Agreement. Zimmer Biomet argues that it never had intent to waive its contractual rights, and

14
cites to case law supporting its argument that the intent of the non-breaching party is a key

element of waiver. (DE 65 at 8). Zimmer Biomet also brings the Court’s attention to Land’s

strategic—and perhaps misleading—citation to Ikon Office Sols., a case in which the employer

“expressly informed the employee that there was no such agreement” when the employee had

asked the employer for a copy of his non-competition agreement. (DE 65 at 9). Zimmer Biomet

distinguishes that case, where the employer told the employee there was no non-compete

agreement, and then sought to enforce the agreement after the employee left to work for a

competitor, from this one, where Land was never told she did not have a non-competition

agreement. Zimmer Biomet notes that Land “knew she had [a non-competition agreement] and

provided a copy of it to Keystone.” (DE 65 at 9). Zimmer Biomet also argues that Land did not

resign based on any action by it or its employees; rather she resigned on her own volition. 

Zimmer Biomet also distinguishes the instant case from TIC United Corp., which Land cited to,

on the basis that it involved “a situation where the employee had not already set the course to

breach an agreement,” where “an employer causes a breach rather than reacts to one.” (DE 65 at

9). Here, Zimmer Biomet states that Land “committed to her breach by accepting a role with

Keystone before [Zimmer Biomet] was able to assess its rights with respect to her new role.” 

(DE 65 at 9). Zimmer Biomet emphasizes that the difference between the cases cited by Land

and Land’s own case is that Land accepted a position with Keystone Dental before she resigned

from Zimmer Biomet, and she never inquired about Zimmer Biomet’s position regarding her new

employment with Keystone Dental. 

Under Indiana law, “[t]he elements of equitable estoppel are: (1) a representation or

concealment of a material fact, (2) made by a person with knowledge of the fact and with the

15
intention that the other party act upon it, (3) to a party ignorant of the fact, (4) which induces the

other party to rely or act upon it to his detriment.” Clark v. Crowe, 778 N.E.2d 835, 840 (Ind. Ct.

App. 2002) (citing Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind. Ct. App. 1998)). 

Here, Land’s acceptance of the position at Keystone Dental and resignation from her position at

Zimmer Biomet occurred prior to almost all of the “actions and silence” by Zimmer Biomet on

which she relies. As correctly pointed out by Zimmer Biomet, “Land is unable to provide this

Court with any legal authority in support of her argument that, having already accepted a position

with a competitor, she ‘detrimentally relied’ on any [Zimmer Biomet] act or omission.” (DE 65

at 10). Indeed, common sense dictates that Land could not rely upon something that had not yet

happened at the time Land made her decision to accept Keystone Dental’s offer and resign from

Zimmer Biomet. 

The only actions by Zimmer Biomet listed by Land that took place before her decision

were her conversations with Biomet’s human resources manager while she was a regional

manager, in which she was told that non-competition agreements were not enforceable in

California. During the hearing, Land testified that “through the course of [her] regional manager

position, [she] had heard numerous times that corporate understood that non-competes were not

enforceable in California.” (Tr. 288). Land also testified that, based on her conversations with

Thea Bosio when some of Land’s California sales representatives had left Biomet, “[i]t was

[Land’s] understanding that the company felt that they were not enforceable in California, that

they, as a blanket policy, had everyone sign them, but they knew there was very little that they

could do with California employees.” (Tr. 288). It is of note that Land only discusses actions

taken by Biomet and conversations with Biomet’s human resources manager, all prior to

16
Biomet’s merger with Zimmer. Land does not address the fact that she signed the 2015

Agreement after the merger. She does not explain why she thought that Biomet’s actions prior to

the merger would dictate Zimmer Biomet’s actions in enforcing the new, post-merger noncompetition agreement. Additionally, she based her belief that Zimmer Biomet would not

enforce its non-competition covenant against her on Biomet’s actions for sales representatives in

California, despite the fact that Land worked in many more states than only California. 

Furthermore, Gerson’s question to Land, at the time of her resignation from Zimmer

Biomet, regarding whether she would be working on institutional accounts for Keystone Dental,

was a sign to Land that Zimmer Biomet was concerned about her role with Keystone Dental. 

Land’s clear response that she had let Keystone Dental know that she could not work on those

accounts was also a sign that she recognized she had a duty not to compete. There is nothing in

the record to explain how anything other than the 2015 Agreement was the basis for Land’s

belief that she could not work on institutional accounts; absent the 2015 Agreement, there would

be nothing stopping Land from working on institutional accounts for Keystone Dental. 

Additionally, Land had forwarded the 2015 Agreement to Keystone Dental, which had its

legal team review the contract. Land received an email from Keystone on February 15, 2016—an

entire week before she resigned from Zimmer Biomet—which informed her that Keystone

Dental’s lawyer had said that Zimmer Biomet could not enforce the non-compete agreement

against her. (Pl. Ex. 25). This fact, in particular, discredits Land’s argument that she relied on

Zimmer Biomet’s acts and omissions to her detriment. While Land may not have thought that

Zimmer Biomet would enforce the 2015 Agreement against her, nothing Zimmer Biomet did

induced Land to that belief. In fact, it seems more likely that Land relied upon Keystone

17
Dental’s representation in reaching her belief that Zimmer Biomet would not enforce the 2015

Agreement against her.

Accordingly, Zimmer Biomet is not equitably estopped from enforcing the 2015

Agreement against Land.

C. Reasonable Likelihood of Success on the Merits

At this stage of the proceedings, the court need not be certain about the outcome of the

case. See S.E.C. v. Lauer, 52 F.3d 667, 671 (7th Cir. 1995) (“The case is before us on an appeal

from the grant of a preliminary injunction, and as is too familiar to require citation such a grant is

proper even if the district judge is uncertain about the defendant’s liability.”); Ross-Simons of

Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (trial court “need not predict the

eventual outcome on the merits with absolute assurance” at preliminary injunction stage). The

plaintiff need only show a “reasonable likelihood” of success. See St. John’s, 502 F.3d at 625. 

To assess the likelihood of success, the court looks to “standards provided by the substantive

law.” Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir. 2011) (quoting Roho, Inc. v. Marquis, 902

F.2d 356, 358 (5th Cir. 1990)). The courts agree that a plaintiff must present a prima facie case

according to those substantive standards. See 11A Charles Alan Wright et al., Federal Practice

& Procedure § 2948.3 (3d ed.) (collecting authorities). Additionally, while the degree of

likelihood of success a plaintiff needs to show may vary from case to case depending on the

balance of harms, see Abbott Labs., 971 F.2d at 12, a plaintiff must in all cases show some

reasonable chance of success on the merits as a threshold matter, or its claim fails. 

18
The substantive law governing this case is the law of the State of Indiana. In the 2015 2

Agreement, the parties agreed to submit to Indiana law regardless of any forum’s choice-of-law

rules to the contrary. (Pl. Ex. 18 ¶ 13). That agreement is consistent with legal principle. See

generally Restatement (2d) of Conflict of Laws § 187 (1971). In Indiana, “[n]oncompetition

agreements or covenants not to compete are in restraint of trade and are not favored by the law.”

Gleeson v. Preferred Sourcing, LLC, 883 N.E.2d 164, 172 (Ind. Ct. App. 2008) (citing Cent. Ind.

Podiatry, P.C. v. Krueger, 882 N.E.2d 723, 729 (Ind. 2008); Titus v. Rheitone, Inc., 758 N.E.2d

85, 91-92 (Ind. Ct. App. 2001)). Such a covenant will only be enforced where “the employer has

asserted a legitimate interest that may be protected,” and where “the scope of the agreement is

reasonable in terms of time, geography, and types of activity prohibited.” Id. (citations omitted). 

The parties dispute the likelihood that the 2015 Agreement will meet these requirements. 

1. Legitimate Protectible Interest

All that Zimmer Biomet must do here is show that it has “some reason why it would be

unfair to allow the employee to compete with the former employer.” Unger v. FFW Corp., 771

N.E.2d 1240, 1244 (Ind. Ct. App. 2002) (citing Titus, 758 N.E.2d at 92). The 2015 Agreement is

designed to prevent an employee from using his or her knowledge of Zimmer Biomet’s

confidential information to solicit business from Zimmer Biomet’s customers or active prospects

in competition with Zimmer Biomet. (Pl. Ex. 18 ¶ 7). To allow an employee to leave

employment with Zimmer Biomet and then do those things immediately as an employee of a

 In the Report and Recommendation issued regarding Land’s motion to transfer, or to 2

dismiss in the alternative (DE 83), I found that the forum-selection clause in the 2015 Agreement

is valid and enforceable, and thus Indiana law applies. That discussion is incorporated here by

reference to avoid needless repetition.

19
competitor would be unfair to Zimmer Biomet. Accordingly, this is a legitimate, protectible

interest. See Zimmer, Inc. v. Masters, No. 3:14-CV-312 RLM, 2014 WL 1317090, at *4 (N.D.

Ind. Mar. 31, 2014) (finding that the defendants’ “advantageous personal contacts with Zimmer

customers amount to protectable goodwill”); Krueger, 882 N.E.2d at 729 (“Indiana courts have

held that ‘the advantageous familiarity and personal contact which employees derive from

dealing with an employer’s customers are elements of an employer’s “good will” and are a

protectible interest which may justify a restraint.’” (citation omitted)); Gleeson, 883 N.E.2d at

173 (finding that the employer had “established a protectible interest in its customer

relationships”); MacGill v. Reid, 850 N.E.2d 926, 929 (Ind. Ct. App. 2006) (“In Indiana, the law

recognizes a protectible interest in the good will generated between a customer and a business.”

(quoting Norlund v. Faust, 675 N.E.2d 1142, 1154 (Ind. Ct. App. 1997))).

Land’s main argument that Zimmer Biomet lacks a protectible interest in the 2015

Agreement is that her employment at Keystone Dental does not place either Zimmer Biomet’s

confidential information or customer relationships at risk. Land focuses her arguments on her

contention that Zimmer Biomet has not shown that she has any “confidential” documents, as she

states that Zimmer Biomet failed to take reasonable steps to protect its information, which

defeats its claim that the information is “confidential.” (DE 62 at 19-22). Land’s arguments are

irrelevant to whether Zimmer Biomet has a legitimate protectible interest; under Indiana law,

Zimmer Biomet has a legitimate interest in preventing Land from stealing its clients or lending

an unfair competitive advantage to Keystone Dental no matter what information she uses to do

so, and the 2015 Agreement seeks to protect that broad interest. See Zimmer US, Inc. v. Keefer,

No. 3:12-CV-395-JD-CAN, 2012 WL 5268550, at *8 (N.D. Ind. Oct. 23, 2012) (citing Hahn v.

20
Drees, Perugini & Co, 581 N.E.2d 457, 460 (Ind. Ct. App. 1991)). Zimmer Biomet is therefore

reasonably likely to succeed on this point.

2. Reasonable Temporal Scope

Indiana courts have upheld time restrictions equal to and longer than the 18-month

restriction contained in the 2015 Agreement. See Standard Register Co. v. Cleaver, 30 F. Supp.

2d 1084, 1098 (N.D. Ind. 1998) (finding that a two-year restriction was reasonable); Coffman v.

Olson & Co., P.C., 906 N.E.2d 201, 208 (Ind. Ct. App. 2009) (same); Gleeson, 883 N.E.2d at

174 (finding an eighteen-month restriction to be reasonable). “The fact that [the 2015]

Agreement contains a provision tolling this period during any violation by [Land] does not

change this result . . . .” Gleeson, 883 N.E.2d at 174 (citing Century Pers., Inc. v. Brummett, 499

N.E.2d 1160, 1162 (Ind. Ct. App. 1986)). Thus, the 2015 Agreement’s 18-month restriction is

reasonably likely to succeed.

3. Reasonable Geographic Scope

The 2015 Agreement limits Land’s ability to compete with Zimmer Biomet within the

“Restricted Territory,” defined as

(i) any Customer-specific or geographic territory assigned to, or

covered by, Employee during Employee’s last two (2) years of

employment with Company; (ii) any state or portion of any state

assigned to Employee by Company for purposes of any sales or

service activities or responsibilities at any time during the two (2)

years preceding the termination of Employee’s employment with

Company; or (iii) any county, municipality or parish of any state or

commonwealth assigned to Employee or in which Employee

engaged in any sales or service activities on behalf of Company at

any time during the two (2) years preceding termination of

Employee’s employment with Company.

(Pl. Ex. 18 ¶ 7(a)(4)). During the last two years of her employment with Zimmer Biomet, Land’s

21
assigned geographic territory included Alaska, Arizona, California, Colorado, Hawaii, Idaho,

Minnesota, Montana, Nevada, North Dakota, Oregon, South Dakota, Washington, Wisconsin,

and Wyoming. (Tr. 39, 269). Thus, Land’s “Restricted Territory” under the 2015 Agreement

included a geographic restriction for the 15 states which she was assigned during the last two

years of her employment with Zimmer Biomet. 

Land, in her post-hearing briefing, does not dispute that the geographic region specified

in the 2015 Agreement is reasonable. Nevertheless, I have considered the reasonableness of the

scope of the geographic restriction, and Zimmer Biomet is reasonably likely to succeed on this

issue as well. “Whether a geographic scope is reasonable depends on the interest of the employer

that the restriction serves.” Buffkin v. Glacier Grp., 997 N.E.2d 1, 13 (Ind. Ct. App. 2013)

(quoting Krueger, 882 N.E.2d at 730). Indiana courts have found certain geographic restrictions

to be unreasonable, including restrictions barring work for competitors in the entire continental

United States, id.; barring work for competitors anywhere in the entire United States, when the

employee’s “contacts were in a limited number of states,” Dicen v. New Sesco, Inc., 839 N.E.2d

684, 689 (Ind. 2005); and barring work for a specific competitor in any state in which that

competitor does business, Clark’s Sales & Serv., Inc. v. Smith, 4 N.E.3d 772, 783 (Ind. Ct. App.

2014). Geographic restrictions have been found reasonable by Indiana courts where they include

the region where the employee established relationships, specifically where the legitimate interest

is to protect the employer’s existing and prospective customer relationships. See Krueger, 882

N.E.2d at 730-31 (finding that a geographic restriction was reasonable as to the counties where

the employee had worked for the employer during the two years preceding his termination, but

was “unreasonable to the extent it reaches contiguous counties”); Gleeson, 883 N.E.2d at 175

22
(finding that a 150-mile restriction was reasonable because it covered the area that the employee

had solicited business for the former employer); Zimmer, Inc. v. Sharpe, No. 3:09-cv-00117-

RLM-CAN, at 7-8 (N.D. Ind. Mar. 31, 2009), ECF No. 16 (finding a provision restricting “the

territory . . . in which the Employee was responsible for cultivating or maintaining competitive

advantages on Company’s behalf” to be reasonable under Indiana law). While this Court

previously found unreasonable a geographic restriction in an agreement between Zimmer and

two employees, Masters, 2014 WL 1317090, at *7-8, that case involved employees who were not

assigned to any particular territory, but rather handled certain client accounts. 

Here, Land was assigned to and responsible for a certain geographic territory, and the

2015 Agreement’s geographic restriction prohibited her from working for a competitor in only

that same geographic territory. Zimmer Biomet is thus reasonably likely to succeed on this point.

4. Reasonable Types of Activity Prohibited

Land does not argue in her post-hearing briefing that the 2015 Agreement is unreasonable

regarding the types of activity it prohibits. The 2015 Agreement does not prohibit Land from

working for a competitor in any capacity, but only from working in a directly competitive

capacity analogous to the one in which she worked for Zimmer Biomet. See Gleeson, 883

N.E.2d at 175-76 (holding that provisions are reasonable if they restrict future employment with

a competitor to services provided during former employment). The 2015 Agreement does not

prevent Land from working for a competitor in a different capacity from the one in which she

worked for Zimmer Biomet during her last two years of employment. Zimmer Biomet is also

reasonably likely to succeed on this issue. 

23
5. Conclusion

For the reasons stated above, I find that Zimmer Biomet has shown a reasonable

likelihood of success on the merits, in that the 2015 Agreement is enforceable because its terms

are reasonable. Zimmer Biomet has asserted a legitimate protectible interest covered by the 2015

Agreement, and the scope of the 2015 Agreement is “reasonable in terms of time, geography, and

types of activity prohibited.” Gleeson, 883 N.E.2d at 172 (citations omitted). A reasonable

likelihood of success on the merits is just one part of the analysis, however. Zimmer Biomet

must still show that there are no adequate remedies at law; that it will suffer irreparable harm if

the preliminary injunction is denied; that its irreparable harm without injunctive relief is greater

than the harm Land will suffer if the preliminary injunction is granted; and that the preliminary

injunction will not harm the public interest.

B. Inadequacy of Remedies at Law

“Like other equitable remedies, injunctions were designed to offer relief when legal

remedies were unavailable or inadequate to protect the parties’ rights.” Roland Mach. Co. v.

Dresser Indus., Inc., 749 F.2d 380, 397 (7th Cir. 1984) (Swygert, J., dissenting). Here, there is

no adequate remedy at law, because money damages will be both very difficult to calculate, and

will almost certainly be inadequate to remedy the harm caused to Zimmer Biomet by Land’s

employment with Keystone Dental. The Indiana Supreme Court has held that it is “virtually

impossible to quantify” the damage caused by an employee’s breach of a non-competition

agreement. Krueger, 882 N.E.2d at 733. For the same reasons, the Indiana Court of Appeals has

consistently found that a preliminary injunction is the appropriate remedy for any such breach or

threatened breach. Id. (collecting cases). Because it is unlikely that Zimmer Biomet will be able

24
to determine the full extent of harm resulting from Land’s employment with its competitor, and

because any attempt to calculate a monetary amount of damages will be largely speculative, it is

evident that there is no adequate remedy at law in this case.

C. Irreparable Harm

Land argues that no irreparable harm will occur to Zimmer Biomet if the preliminary

injunction is denied. Land states that she has been working at Keystone Dental for several

months, during which Zimmer Biomet has “not suffered any demonstrable or quantifiable harm,”

and there was no evidence presented at the hearing “that the future will be any different from the

past.” (DE 62 at 18). Land contends that Zimmer Biomet’s “speculative fear that irreparable

harm will occur is not enough to obtain a preliminary injunction.” (DE 62 at 19). Land argues

that Zimmer Biomet is not aware of a single customer they have lost due to Land, nor is Zimmer

Biomet aware of a single piece of confidential information that Land has used or disclosed to

Keystone Dental. (DE 62 at 19). 

The irreparable harm requirement “does not mandate that the party demonstrate specific

losses in its business.” AGS Capital Corp., Inc. v. Prod. Action Int’l, LLC, 884 N.E.2d 294, 312

(Ind. Ct. App. 2008) (citing Norlund, 675 N.E.2d at 1149). If that was the requirement, then an

injunction would rarely be appropriate, since the party harmed could quantify and ask for

monetary relief. Id. Much of the harm that Land’s employment for Keystone Dental will cause

to Zimmer Biomet is “necessarily intangible—a loss of goodwill, a need to start over again on

building personal relationships . . . , etc.—but that does not make it any less real. The fact that it

cannot be quantified in a dollar amount is an argument in favor of equitable relief, not against it.” 

Keefer, 2012 WL 5268550, at *12. Land is currently working for Zimmer Biomet’s competitor,

25
and she has brought her knowledge of Zimmer Biomet’s practices, customers, and strategy with

her. Land’s continued employment with a competitor in violation of the 2015 Agreement will

cause irreparable harm to Zimmer Biomet. 

D. Balance of Harms

The potential harm to Zimmer Biomet if the preliminary injunction is not issued is great. 

Land is already working for a direct competitor, Keystone Dental, because she believed that the

2015 Agreement was not enforceable against her. She has contacted and offered Keystone

Dental products to at least one customer she had interacted with while employed by Zimmer

Biomet. (Pl. Ex. 52). Land also directed the Keystone Dental sales representatives who report to

her to target Zimmer Biomet customers in two different emails. (Tr. 174; Pl. Ex. 45; Tr. 178; Pl.

Ex. 48). Additionally, Land created a flash drive with 5,948 Zimmer Biomet files on

it—including information that she admits was confidential—within a few days of Keystone

Dental offering her a job, and she later accessed and used at least some of these documents

during her employment with Keystone Dental. (Tr. 153-55, 171, 204-05, 312). The 15-state

region that Land covered for Zimmer Biomet, which is a large portion of Zimmer Biomet’s

business in the United States, directly overlaps with the region she is now covering for Keystone

Dental. Her knowledge of Zimmer Biomet’s products and operations, combined with her

experience and reputation within the community, could create a significant competitive

advantage for Keystone Dental (indeed, this was likely part of the reason why Keystone Dental

hired Land). 

At the same time, enforcing the 2015 Agreement against Land would cause her

significant harm, as she would not be able to continue her employment with Keystone Dental—at

26
least not in her current role and territory. However, at least to some extent Land can be said to

have assumed this risk, since she signed the 2015 Agreement and brought it to Keystone Dental’s

attention prior to her resignation from Zimmer Biomet, even though she did not believe it was

enforceable against her. 

When balancing the harms, it is useful to refer back to the plaintiff’s likelihood of success

on the merits. See Abbott Labs., 971 F.2d at 12 (“the more likely it is the plaintiff will succeed

on the merits, the less the balance of irreparable harms need weigh towards its side; the less

likely it is the plaintiff will succeed, the more the balance need weigh towards its side”). Here,

Zimmer Biomet has a strong case and will likely succeed on the merits, so the balance of harms

need not weigh heavily in its favor for a preliminary junction to issue. 

The harm to Zimmer Biomet absent an injunction is likely to continue. Land argues that

she has not targeted Zimmer Biomet customers for Keystone Dental and has not used her

knowledge of Zimmer Biomet’s confidential information or strategy to give Keystone Dental a

competitive advantage, and thus contends that she is not a threat to Zimmer Biomet. The

evidence presented at the hearing, however, contradicts this. Additionally, when asked at the

evidentiary hearing whether she was “willing to commit that [she] won’t personally solicit any of

the accounts” for Zimmer Biomet customers, Land replied, “[i]f that’s what’s deemed by the

Court, a hundred percent.” (Tr. 324). Thus, it appears that a preliminary injunction issued by the

Court is necessary for Land to comply with the terms of the 2015 Agreement. I find that the

balance of harms weighs in favor of Zimmer Biomet. 

27
E. The Public Interest

The last question to be considered is whether the preliminary injunction will harm the

public interest. See St. John’s, 502 F.3d at 625. Non-competition agreements—at least when

they are governed by Indiana law—are disfavored because they go against the public’s interest in

unrestrained trade. See Gleeson, 883 N.E.2d at 172 (“[n]oncompetition agreements or covenants

not to compete are in restraint of trade and are not favored by the law”). But that concern is

alleviated where “the employer has asserted a legitimate interest that may be protected[,]” and

where “the scope of the agreement is reasonable in terms of time, geography, and types of

activity prohibited.” Id. In other words, where a non-competition agreement passes the legal

tests and is enforceable, it is no longer against the public interest to enforce it. Furthermore,

“there is a generalized public interest in enforcing contracts.” Turnell v. Centimark Corp., No.

13 C 2660, 2014 WL 3396490, at *5 (N.D. Ill. July 10, 2014) (citing Bimbo Bakeries USA, Inc.

v. Botticella, 613 F.3d 102 (3d Cir. 2010)). Accordingly, a preliminary injunction in this case

would be consistent with the public interest.

III. CONCLUSION

For these reasons, I RECOMMEND that Zimmer Biomet’s Motion for Preliminary

Injunction (DE 8) be GRANTED and that Land be preliminarily ENJOINED from continuing to

work for Keystone Dental in her current role and territory and from making any further breaches

of the 2015 Agreement. 

The Clerk is directed to send a copy of this Report and Recommendation to counsel for

the parties. NOTICE IS HEREBY GIVEN that within 14 days after being served with a copy of

this recommended disposition, a party may serve and file specific, written objections to the

28
proposed findings or recommendations. Fed. R. Civ. P. 72(b). FAILURE TO FILE

OBJECTIONS WITHIN THE SPECIFIED TIME WAIVES THE RIGHT TO APPEAL THE

DISTRICT COURT’S ORDER.

Entered this 10th day of January 2017. 

/s/ Susan Collins 

Susan Collins,

United States Magistrate Judge

29