This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A16-0010

Dexon Computer, Inc., 

Respondent, 

vs. 

Modern Enterprise Solutions, Inc., 

Appellant,

Timothy Durant, et al., 

Defendants.

Filed August 1, 2016

Affirmed

Jesson, Judge

Hennepin County District Court

File No. 27-CV-15-17171

Scott M. Flaherty, Michael C. Wilhelm, Michael M. Lafeber, Briggs and Morgan, P.A., 

Minneapolis, Minnesota (for respondent)

Christopher J. Harristhal, Daniel J. Ballintine, Andrew David Moran, Larkin Hoffman 

Daly & Lindgren Ltd., Minneapolis, Minnesota (for appellant)

John A. Fabian, Nicholas G. B. May, Fabian May & Anderson PLLP, Minneapolis, 

Minnesota (for defendants Timothy Durant and Andrew Uzpen)

Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and 

Hooten, Judge. 
2

U N P U B L I S H E D O P I N I O N

JESSON, Judge

Appellant Modern Enterprise Solutions Inc. (MES) claims that the district court 

abused its discretion by granting a temporary restraining order. MES argues that the 

district court’s order was based on improper evidence. MES also maintains that

respondent Dexon Computer Inc. is unlikely to prevail on its underlying claims and has 

failed to show that without a restraining order it will suffer irreparable harm. We affirm. 

FACTS

Dexon buys and sells computer equipment. In early 2015 and for several years 

prior, defendants Andrew Uzpen and Timothy Durant worked as sales representatives at 

Dexon. In March of 2015, Uzpen ended his employment with Dexon and took a job with

its competitor, MES. In August of 2015, Durant also left Dexon for a position with MES. 

At the time they left, Dexon was concerned that Uzpen and Durant took Dexon customerleads list information, described further below, with them to MES.

Dexon maintains a list of customer leads that includes company names, contact 

information, and hardware brand preferences for actual and potential Dexon customers. 

Dexon purchases some of this information from Data.com, a service to which MES also 

subscribes. But Dexon also develops the leads list through the research and networking 

of its employees. Dexon’s full customer-leads list includes tens of thousands of contacts. 

Only a few individuals within Dexon have access to this master list. Most employees 

have access only to a portion of the leads list and use it to solicit sales. 
3

The leads list is stored on the Dexon computer network, which can be accessed 

through computers in Dexon’s offices. Although Uzpen and Durant dispute the extent to 

which these policies were enforced, Dexon maintains that it requires employees to have 

usernames and passwords to access Dexon computers and that employees must use keys 

to access its offices.

Dexon instructs employees to back-up their customer-leads list on personal flash 

drives and take them home. Dexon has no written confidentiality policies related to the 

customer-leads list and does not require employees to sign a noncompete agreement. 

When Uzpen went to MES, he kept his flash drive containing the portion of the 

Dexon leads list to which he had access. He considered downloading this information to 

MES’s customer-leads database, but did not because it was not compatible. 

When Durant left Dexon for MES, he also had a copy of the customer-leads list on 

a flash drive. Just days after leaving Dexon, Durant sent a mass email informing 

customers that he was moving to MES and offering to underbid open Dexon orders and 

quotes. Durant admits that the email was sent to contacts on the portion of the Dexon 

customer-leads list that he had access to. A subsequent analysis of his flash drive 

revealed that it contained contact information for 10,056 customers and was organized by 

hardware preference. 

After Durant left, Dexon’s CEO, Stephen O’Neil, received a phone call from an

anonymous MES employee on August 31, 2015. The employee told O’Neil that Durant 

had stolen 11,000 customer leads from Dexon and taken them to MES. The employee 

said that MES had encouraged the theft and was using the leads to steal Dexon’s 
4

customers. The employee also told O’Neil that Uzpen brought customer leads from 

Dexon to MES. 

O’Neil later received a letter from the anonymous MES employee. The letter 

included copies of MES purchase orders for sales completed by Durant in the first several 

weeks after he left Dexon. Some of the purchase orders show that Durant made sales at 

MES to customers he had solicited while at Dexon. 

Shortly thereafter, in September of 2015, O’Neil received a call from a former 

MES employee. The former employee also told O’Neil that he had heard from people 

inside MES that Durant had stolen Dexon’s customer leads and brought them to MES. 

In October 2015, Dexon filed a verified complaint against MES, Uzpen, and 

Durant. Dexon seeks damages for misappropriation of trade secrets and several other 

claims. Dexon also moved for a temporary restraining order, requesting that defendants 

be enjoined from “continued misappropriation of trade secrets” and other tortious activity 

involving use of the customer-leads list. 

In December 2015, the district court issued an order granting Dexon’s request for 

a temporary restraining order. The order prohibits MES, Uzpen, and Durant from using 

or disclosing any “Confidential Dexon Information,” which is defined as “any and all 

information derived from Dexon’s list of customer leads; except for that information 

included on the Dexon list that was already known by Defendant MES prior to obtaining 

the Dexon list; or was . . . obtained by MES from the Data.com subscription.” The order 

also requires MES, Uzpen, and Durant to return the information derived from the flash 
5

drives to Dexon and to delete any “Confidential Dexon Information” from the MES 

computer system or other electronic devices in their possession. This appeal follows. 

D E C I S I O N

A temporary restraining order is an extraordinary equitable remedy used to 

preserve the status quo pending adjudication of the merits of a case. Miller v. Foley, 317 

N.W.2d 710, 712 (Minn. 1982). The decision to grant a temporary restraining order may 

be reversed only for a clear abuse of discretion. Carl Bolander & Sons Co. v. City of 

Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993). The district court’s factual findings 

will not be set aside unless clearly erroneous. LaValle v. Kulkay, 277 N.W.2d 400, 402 

(Minn. 1979). We view the facts alleged in the pleadings and affidavits in the light most 

favorable to the party prevailing in the district court. Pacific Equip. & Irr., Inc. v. Toro 

Co., 519 N.W.2d 911, 914 (Minn. App. 1994), review denied (Minn. Sept. 16, 1994). 

A district court may grant a temporary restraining order if the party seeking the 

order establishes that monetary damages are not adequate and that denial of the order will 

result in irreparable harm. Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 

81, 92 (Minn. 1979). In evaluating whether the district court abused its discretion by

granting a temporary restraining order, we consider five factors: (1) the nature and 

background of the relationship between the parties; (2) the balance of harms suffered by 

the parties; (3) the likelihood that the party seeking the injunction will prevail on the 

merits; (4) public-policy considerations as expressed in statute; and (5) the administrative 

burdens involved in judicial supervision and enforcement of the injunction. Dahlberg 

Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965). 
6

MES argues that, in granting the temporary restraining order, the district court 

erred by relying on Dexon’s verified complaint, including the statements of the 

anonymous and former MES employees. MES further argues that the district court 

abused its discretion by determining that Dexon is likely to succeed against MES on its 

trade secret and other claims and asserts that Dexon failed to show that it would suffer 

irreparable harm in the absence of an injunction. We first address MES’s evidentiary 

arguments and then discuss Dexon’s likelihood of success, irreparable harm, and the 

remaining Dahlberg factors. 

A. MES’s evidentiary claims

MES argues that Dexon’s complaint “was not properly verified and could not 

support injunctive relief as a matter of law.” MES claims that a verified complaint must 

be based only on personal knowledge and that it is unclear what allegations in Dexon’s

complaint are based on “reliable information” and what allegations are based on personal 

knowledge. MES further argues that the statements of the anonymous and former MES 

employees are hearsay and were improperly considered. We disagree. 

A temporary restraining order may be granted based solely on a complaint if the 

complaint makes out a sufficient case, is verified, and contains positive allegations. 

Minn. R. Civ. P. 65.01; Indep. Sch. Dist. No. 35 v. Engelstad, 274 Minn. 366, 369, 144 

N.W.2d 245, 248 (1966). “[E]vidence is ‘positive’ where the witness states that a certain 

thing did or did not happen or exist.” Miller v. Hughes, 259 Minn. 53, 59, 105 N.W.2d 

693, 698 (1960). 
7

MES cites a number of cases stating that injunctive relief cannot be issued on facts 

stated on information and belief alone. See e.g., Armstrong v. Sanford, 7 Minn. 49, 52, 7 

Gil. 34, 40 (1862). But MES’s verified complaint is not based only on information and 

belief. The verification states that the complaint is based on O’Neil’s “personal 

knowledge and reliable information.” Many of the allegations in the complaint are 

positive and are within O’Neil’s personal knowledge as the CEO of Dexon. For example, 

O’Neil would have personal knowledge of when Uzpen and Durant were employed at 

Dexon; of Uzpen and Durant’s job duties and access to the customer-leads list while at 

Dexon; and of how Dexon develops, stores, and uses customer-lead information. O’Neil 

also personally received the mass email Durant sent to Dexon customers shortly after 

leaving for MES. 

Furthermore, as the district court noted, many of the allegations in the complaint 

are supported not just by the complaint but also by the affidavits of Uzpen and Durant. 

Both Uzpen and Durant admitted that they left Dexon for MES and that they took flash 

drives with them containing Dexon’s customer-leads list. Durant admits that he sent out 

the mass email using Dexon’s customer-leads list. Durant also admits that he solicited 

business from customers while at MES that he had previously worked with at Dexon. In 

addition, sales Durant made to Dexon customers shortly after leaving Dexon are 

catalogued in the purchase orders attached to the complaint. 

MES’s arguments that the district court erred by relying on the statements of the 

anonymous MES employee and the former MES employee are also unavailing. Even if 

this information is hearsay, given the haste with which preliminary-injunction decisions 
8

must be made, the United States Supreme Court has said that an injunction is 

“customarily granted on the basis of procedures that are less formal and evidence that is 

less complete than in a trial on the merits.” Univ. of Texas v. Camenisch, 451 U.S. 390, 

395, 101 S. Ct. 1830, 1834 (1981). Many federal courts of appeal have therefore 

permitted hearsay to provide the basis for preliminary injunctive relief. See, e.g., Mullins 

v. City of New York, 626 F.3d 47, 51-52 (2d Cir. 2010) (listing decisions from other 

circuits that allow preliminary injunctive relief to be based on hearsay and adopting that 

position). We find this reasoning persuasive. 

MES points to an unpublished decision of this court stating that a district court 

may not grant a preliminary injunction based on hearsay. Kelley v. Rudd, No. C7-91-

1142, 1992 WL 3651 (Minn. App. Jan. 14, 1992), review denied (Minn. Mar. 26, 1992). 

But unpublished decisions are not precedential. Minn. Stat. § 480A.08, subd. 3 (2014). 

And Kelley denied injunctive relief because the appellant’s affidavit was “based entirely 

on hearsay evidence.” 1992 WL 3651, at *4. In contrast, the district court here granted 

the injunction based not only on the statements of the anonymous and former MES 

employees but also on the facts in the complaint that were within O’Neil’s personal 

knowledge, on the admissions of Uzpen and Durant, and on other documentary evidence. 

B. Likelihood that Dexon will succeed on its claims against MES

We begin our analysis of the Dahlberg factors by discussing Dexon’s likelihood of 

succeeding on the merits of its claims. “If a plaintiff can show no likelihood of 

prevailing on the merits, the district court errs as a matter of law in granting a temporary 
9

injunction.” Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 

226 (Minn. App. 2002), review denied (Minn. Feb. 4, 2002). 

1. Misappropriation of trade secrets

To prevail on a claim under the Uniform Trade Secrets Act, Minn. Stat. 

§§ 325C.01-.08 (2014), the plaintiff must show both the existence and misappropriation 

of a trade secret. Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 897 

(Minn. 1983). The act defines a trade secret as information that (1) is not generally 

known or readily ascertainable; (2) derives independent economic value from secrecy; 

and (3) is the subject of efforts that are reasonable under the circumstances to maintain 

secrecy. Minn. Stat. § 325C.01, subd. 5(i), (ii); Electro-Craft Corp., 332 N.W.2d at 899-

901. If an employee acquires a trade secret without express notice that it is a trade secret,

then the employee must know or have reason to know that the owner expects secrecy. 

Minn. Stat. § 325C.01, subd. 5. 

MES argues that the customer-leads information is not a trade secret because this 

information was either already possessed by MES or readily ascertainable. MES also

argues that Dexon failed to undertake reasonable efforts to keep its customer-leads list

confidential. The district court’s findings on whether information is generally known or 

readily ascertainable and on whether information is the subject of efforts that are 

reasonable under the circumstances to maintain secrecy are findings of fact that we 

review for clear error. Electro-Craft, 332 N.W.2d at 899, 902. 
10

a. Generally known or readily ascertainable

The district court acknowledged that some of the information in the customerleads list was already possessed by MES through its Data.com subscription. The district 

court, however, found that Dexon’s customer-leads list also included information that 

was not from Data.com. The question then is whether the information not included in the 

Data.com subscription was generally known or readily ascertainable. 

We acknowledge that customer-lead lists are generally not trade secrets. See

Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 645 (Minn. App. 1985) 

(holding that a customer list did not constitute a trade secret because “[i]t could be easily 

duplicated from public sources”), review denied (Minn. June 24, 1985). The information 

contained in customer-lead lists is often “‘readily ascertainable by proper means’ over the 

course of time without efforts beyond those ordinarily exerted by salesmen in developing 

customers.” Fleming Sales Co. v. Bailey, 611 F. Supp. 507, 514 (N.D. Ill. 1985). 

However, this case involves a very large amount of information—Durant’s flash 

drive contained data on over 10,000 customers. In Cherne, our supreme court stated that 

“[t]he presence of an alternate means of obtaining the names of [10,000 potential 

customers] . . . without more, is not sufficient to establish that the information is 

generally ascertainable.” 278 N.W.2d at 90. The district court concluded that Dexon’s 

customer-leads list “included information that its employees acquired through their own 

networking and research” and “included relevant sales information specific to individual 

actual and potential customers.” Because it could take MES significant time and effort to 

assemble a customer list containing the large amount of information contained on the 
11

Dexon list, the district court’s finding that the customer-leads list was not generally 

known or readily ascertainable is not clearly erroneous.

b. Efforts that are reasonable under the circumstances to maintain 

secrecy. 

MES argues that every case finding reasonable efforts to maintain the secrecy of 

customer-leads information involves a noncompete or confidentiality agreement 

identifying the information as confidential. See, e.g., Cherne, 278 N.W.2d at 90 (noting

reasonable efforts to maintain secrecy of customer-leads information where employees 

signed a covenant not to compete that prohibited them from disclosing or taking 

confidential information). Here, there was no noncompete or confidentiality agreement 

and no written confidentiality policy. But MES has not cited any decision specifically 

requiring the use of confidentiality agreements or explicit policies. This is because the 

statute does not require any specific actions. Instead, the test is whether the information 

“is the subject of efforts that are reasonable under the circumstances to maintain its 

secrecy.” Minn. Stat. § 325C.01, subd. 5(i) (emphasis added).

MES maintains that the customer-leads list was “unprotected” and cites case law 

stating that reasonable efforts are not made when supposedly trade secret information is 

not “locked up.” Nordale, Inc. v. Samsco, Inc., 830 F. Supp. 1263, 1274 (D. Minn. 1993) 

(citing Gordon Employment, Inc. v. Jewell, 356 N.W.2d 738, 741 (Minn. App. 1984)). 

But the district court found that passwords were necessary to logon to Dexon computers 

and that keys were necessary to access Dexon’s offices. Although Uzpen and Durant 

challenge the extent to which these policies were enforced, the district court’s finding is 
12

based on information in Dexon’s verified complaint, and, on appeal, we must view the 

evidence in the light most favorable to the district court’s order. Toro Co., 519 N.W.2d

at 914. Dexon protected the customer-leads list information by requiring passwords to 

access the computers on which the list was stored and by locking its offices. This is the 

twenty-first century equivalent of keeping the customer-leads list in a locked file and 

provides support for the district court’s finding that Dexon took reasonable efforts to 

maintain the secrecy of the list. 

Dexon never explicitly informed its employees that the customer-leads list 

information was confidential. This, however, does not negate the existence of a trade 

secret as long as, under the circumstances, the employee “knows or has reason to know 

that the owner intends or expects the secrecy of the type of information comprising the 

trade secret to be maintained.” Minn. Stat. § 325C.01, subd. 5. By only allowing 

employees to access a portion of the customer-leads list, requiring passwords to access its 

computer network, and locking its offices, Dexon indicated to employees that the 

information was confidential. Dexon’s security measures were undoubtedly weakened 

by Dexon’s instruction to employees to download the information onto flash drives, but 

its other actions did provide employees with a “reason to know” that Dexon intended the 

information to be confidential. Moreover, district court judges can apply common sense, 

as the court did here, finding that “Durant and Uzpen could not have reasonably believed 

they were permitted to take with them to their new employer a list of over 10,000 

customers . . ., developed by Dexon.” 
13

We acknowledge that this was a close issue for the district court. But in reviewing 

a district court’s findings, it is not our role to ascertain whether we would reach the same 

result. As the reviewing court, our task is only to assess whether the district court’s 

finding is clearly erroneous. See Electro-Craft Corp., 332 N.W.2d at 899, 902. We 

conclude that the district court did not clearly err in finding that Dexon made reasonable 

efforts to maintain the secrecy of the client-leads list, and it did not abuse its discretion by 

determining that Dexon is likely to succeed on its misappropriation-of-trade-secret claim. 

2. Tortious interference with prospective economic advantage

To prevail on a claim of tortious interference with prospective economic 

advantage, a plaintiff must prove: (1) the existence of a reasonable expectation of 

economic advantage; (2) the defendant’s knowledge of that expectation; (3) the 

defendant’s intentional interference with the plaintiff’s reasonable expectation of 

economic advantage in a manner that is tortious or in violation of a state or federal statute 

or regulation; (4) that without the defendant’s interference, it is reasonably probable that 

plaintiff would have realized this economic advantage; and (5) that the plaintiff suffered 

damages. Gieseke ex. rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 

210, 219 (Minn. 2014). Dexon claims that, by soliciting its customers using the 

customer-leads list, MES interfered with Dexon’s reasonable expectation of economic 

advantage. It claims that this interference was tortious because it involved the 

misappropriation of trade secrets and the conversion of Dexon’s customer-leads list.

Given that the leads list was not generally known or readily ascertainable and 

contained information presumably helpful in making sales, Dexon likely did have a 
14

reasonable expectation of economic advantage. By using the likely trade-secret 

customer-leads list, MES may have tortiuously interfered with that expectation. The 

district court’s determination that Dexon is likely to succeed on this claim is not an abuse 

of discretion.

1

 

Because Dexon is likely to succeed against MES on at least some of its claims,

2

the district court did not abuse its discretion by determining that the likelihood-of-success 

factor weighed in favor of granting the injunction. 

C. Irreparable harm

The party seeking a temporary restraining order must establish that the order is 

necessary to prevent irreparable harm and that there is no adequate legal remedy. 

Cherne, 278 N.W.2d at 92. MES argues that Dexon failed to meet this burden. 

Irreparable harm may be inferred from the misappropriation of confidential or 

trade secret information. Creative Commc’ns Consultants, Inc. v. Gaylord, 403 N.W.2d 

654, 657 (Minn. App. 1987). Dexon has established that MES likely misappropriated its 

trade secret customer-leads list. There is also evidence that Durant’s use of the list has 

resulted in Dexon losing customers. Dexon has shown irreparable harm. 

 

1 The district court also concluded that MES is likely to succeed on its claim of unfair 

competition. Unfair competition is not an independent tort and does not have specific 

elements. Rehabilitation Specialists, Inc. v. Koering, 404 N.W.2d 301, 305-06 (Minn. 

App. 1987). Instead, an unfair-competition claim can be based on successful claims of 

tortious interference with prospective economic advantage or misappropriation of trade 

secrets. See United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 632 (Minn. 1982). 

Accordingly, we need not separately address Dexon’s likelihood of success on that claim. 

2 Dexon also brought a conversion claim against MES. The district court found that “[i]t 

is possible that Dexon may prevail on its conversion argument.” Dexon concedes that the 

district court did not base the temporary restraining order on its likelihood of success on 

this claim. For this reason, we do not address it. 
15

MES also argues that the legal remedy of damages would be adequate to 

compensate any harm suffered by Dexon. The district court’s determination that a legal 

remedy would not be adequate is not an abuse of discretion. The list contains more than

10,000 actual and potential customers. It would be very difficult to determine after the 

fact whether Dexon lost those customers to MES as a result of MES obtaining the 

customer-leads list or for some other legitimate reason. Thus causation would be difficult 

to establish, and damages would be speculative. 

D. The nature of the parties’ relationship 

The nature and background of the parties’ relationship is also one of the Dahlberg 

factors. Dahlberg Bros., Inc., 272 Minn. at 274, 137 N.W.2d at 321. The purpose of a 

temporary restraining order is to maintain the status quo of the parties’ relationship until a 

decision on the merits can be reached. Foley, 317 N.W.2d at 712. 

MES argues that the restraining order does not maintain the status quo as of the 

date the district court issued the order, but rather reverts the matter back to the situation 

before Durant took the customer-leads information with him to MES. We disagree. The 

district court’s order does not require MES to abandon any customers it has gained as a 

result of the use of the customer-leads list. It merely requires the company to refrain 

from using the confidential information going forward and to return the information to 

Dexon. This maintains the status quo by preserving fair competition between the parties. 

The district court did not abuse its discretion by determining that this factor 

weighs in favor of granting the temporary restraining order.
16

E. Public-policy considerations 

The fourth Dahlberg factor requires the court to consider whether public-policy 

considerations as expressed in statute favor either party. 272 Minn. at 275, 137 N.W.2d 

at 321-22. The Uniform Trade Secrets Act expresses a desire to eliminate the 

misappropriation of trade secrets. See Minn. Stat. §§ 325C.01-.08. The district court did 

not abuse its discretion by concluding that this factor weighs in favor of an injunction. 

F. Administrative burden

The final Dahlberg factor is the administrative burden of judicial supervision and 

enforcement of the temporary restraining order. 272 Minn. at 275, 137 N.W.2d at 322. 

The district court determined that the administrative burden placed on the court weighed 

neither for nor against granting injunctive relief. 

A report from a computer forensic expert indicated that deleting the information 

the district court termed confidential from MES’s servers would take approximately 8-12

days. After the information is deleted, little to no additional oversight appears necessary. 

While the district court has had to issue one clarifying order, no hearing was held, and 

Dexon did not contest the clarification sought by MES. 

The district court fashioned a common-sense injunction that appears easy to 

understand, implement, and maintain. The district court did not abuse its discretion by 

determining that this factor does not weigh against granting the order.
17

G. Conclusion

The district court considered the evidence presented by both parties and issued a 

thorough and thoughtful order discussing each Dahlberg factor in depth. The district 

court’s temporary restraining order was not an abuse of discretion. 

Affirmed.