CK Emergency Motion for Temporary Injunction
Content
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 15CA006540
ROCA LABS, INC., a Corporation
,
Plaintiff,
v.
CYNTHIA KOROLL, an Individual,
Defendant.
_____________________________________/
PLAINTIFF’S EMERGENCY VERIFIED MOTION FOR A TEMPORARY
INJUNCTION AND MEMORANDUM OF LAW
Plaintiff, ROCA LABS, INC. (“Plaintiff” and/or “Roca”), by and through undersigned
counsel, and pursuant to Florida Rules of Civil Procedure 1.610 and Florida’s Uniform Trade
Secret Act hereby files this Emergency Verified Motion for a Temporary Injunction and
Memorandum of Law and hereby moves for a temporary restraining order and preliminary
injunctive relief. Roca seeks the immediate entry of a temporary restraining order (TRO) and/or
preliminary injunctive relief to protect itself from the improper, unethical and unfair actions of
Defendant Cynthia Koroll (“Defendant” or “Koroll”) due to her unlawful misappropriation, use,
threatened disclosure and disclosure of Roca’s trade secrets and proprietary business
information.
BACKGROUND
1
1.
Roca filed its Amended Complaint contemporaneously with this Motion which
involves breach of contract, breach of fiduciary duties, legal malpractice, and violations of
Florida’s Uniform Trade Secret Act.
2.
Plaintiff is Florida Corporation with a principal place of business in Sarasota,
Florida and doing business in Hillsborough County, Florida.
3.
Roca manufactures and markets nutraceutical products aimed as nonsurgical
weight loss option for overweight individuals considering Gastric Bypass Surgery and other
bariatric surgeries.
4.
Roca has invested significant sums and years of time in the research and
development of its proprietary products.
5.
Roca has invested millions of dollars in the marketing of its products, building its
trademarked brand name and developing customer lists.
6.
Roca has developed a unique relationship with its clients, and has countless
successful users who have shared their weight loss success online. Roca firmly believes that the
best way for it to market its products is for successful customers to share their weight loss
success stories and Roca has invested heavily in developing a business platform that allows for
these stories to be shared and discovered.
7.
To market its current products and to develop new products, Roca spends
substantial time, effort and expense in developing confidential business information and trade
secrets. Such trade secrets and confidential business information include but are not limited to
information regarding Roca nutraceutical line, product development, research and testing,
2
confidential customer lists, customer weight loss information and data, legal strategies, and
internal business systems and operations.
8.
Roca’s trade secrets and confidential information are not generally known in the
industry or outside of Roca, and could be learned by others, if at all, only through the
expenditure of considerable time, effort and expense. Roca’s trade secrets and confidential
information are critical to its success and future growth in the highly competitive nutraceutical
industry. If Roca’s trade secrets were to fall into the hands of a competitor, Roca’s business
would be severely harmed and its unique position in the marketplace could be crippled and the
competitor would be able to trade on many years of valuable research and knowledge.
9.
Roca has internal mechanisms in place to protect its confidential information and
strives to keep its business information secret.
10.
Rather than utilize a traditional corporate legal department to represent and advise
it in legal matters, Roca retains attorneys as independent contractors to provide legal services to
Roca as needed. Roca has an efficient team of lawyers who work in a virtual environment
providing global legal advice.
11.
Defendant is an attorney who is licensed to practice law in the State of Illinois.
12.
On or about May 12, 2015, the parties entered an Independent Contractor
Agreement under which Koroll would provide legal services and representation to Roca.
13.
Due to the special nature of the attorneyclient relationship, Koroll was placed in
a position of trust. Koroll and Roca share a relationship whereby Roca justifiably reposed its
trust and confidence in Koroll, and Koroll undertook such trust and confidence and assumed a
duty to advise, counsel, and/or protect Roca.
3
14.
Defendant owed Roca the fiduciary duties of privilege, confidentiality, loyalty,
and due care. Defendant’s fiduciary obligations arose under the Florida and Illinois Bar Rules of
Professional Conduct and/or by virtue of the close confidential relationship that existed between
Roca and Koroll as a result of their ongoing business dealings and/or by virtue of the IC
Agreement.
15.
Defendant knew or had reason to know that Roca was placing trust and
confidence in her and that Roca was relying on her obligations and representations to ensure
proper protocol and procedures were followed in all dealings with and relating to Roca, both
during and after her representation.
16.
Based upon her position as legal counsel, Defendant was given access to
confidential and highly sensitive business information and trade secrets.
17.
Defendant was provided with a RocaLabs.com email address for her use and was
provided with login creditials that allwed her to access confidential information that is stored by
the Plaintiff using a cloud service provided by Google.
18.
Defendant was part of a legal team that was involved in complex federal litigation
and as part of that team had virtually unfettered access to information.
19.
Defendant was involved in highly sensitive meetings and gained knowledge of the
Plaintiff’s critical business and legal strategies.
20.
Defendant was part of the legal team involved in handling ongoing litigation
against Opinion Corp. D/B/A pissedconsumer.com and Consumer Opinion Corp. (Collectively
PissedConsumer) (Case No. 8:15cv2096 in the U.S. District Court for the Middle District of
Florida).
4
21.
Defense counsel for PissedConsumer is attorney Marc Randazza. Mr. Randazza
has a history of unethical and unscrupulous behavior and he is presently the subject of multiple
bar complaints in Florida and in Nevada.
22.
Roca is also currently involved in litigation against Mr. Randazza personally.
23.
On or about July 11, 2015, the IC Agreement between the parties was terminated
by Defendant.
24.
Upon termination Defendant demanded payment for thousands of dollars in
improper billing which had been questioned by Roca.
25.
Despite her ethical and fiduciary duties to Roca, Defendant has been threatening
Roca and its Legal Team, including threat to making confidential information about Roca public.
See Affidavit of Don Juravin, attached hereto as Exhibit A.
26.
Immediately upon termination Defendant began communicating with opposing
counsel Marc Randazza in an inappropriate manner.
27.
Upon information and belief Defendant has engaged in improper and unethical
communications with Randazza. Defendant has shared trade secrets and proprietary information
with Randazza to the detriment of Roca.
28.
At the time the IC Agreement was terminated and after the agreement was
terminated, Defendant improperly accessed Roca’s computers and gained access to confidential
business and legal files.
29.
Evidence of Defendant’s misconduct includes:
a. Improperly accessing (hacking) email accounts of other attorneys on the Roca
Labs Legal Team.
5
b. Improperly accessing Roca’s cloud storage system to access trade secrets and
confidential information.
c. Threatening to tweet confidential attorney communications
d. Threatening to disclose emails between members of the Roca Legal Team.
30.
Upon information and belief Defendant may have shared confidential information
about Roca to its business competitors and adversaries.
31.
Indeed, Koroll accessed computer records and threatened to share trade secrets in
violation of Florida Statutes, Chapter 688.
32.
At no time did ROCA give permission to reveal any confidential information
about ROCA with anyone, especially not competitors and attorney Marc Randazza. Koroll
owed
a duty to ROCA to maintain secrecy.
ARGUMENT
Roca seeks injunctive relief from this Court restraining Defendant, from further
accessing, using, disclosing, and/or copying Roca’s Trade Secrets and Confidential Information;
and further enjoining her from contacting or communicating with defense counsel or other third
parties on any matters adverse to Roca.
The purpose of a temporary injunction is to protect the movant from irreparable injury
and to preserve the status quo until the district court renders a meaningful decision on the merits.
See
Liberty Counsel v. Florida Bar Bd. of Governors
, 12 So. 3d 183, n.7 (Fla. 2009)
. A
preliminary injunction is properly entered when the moving party demonstrates:
(1) there is a substantial likelihood of success on the merits;
(2) lack of adequate remedy at law;
(3) irreparable injury if the injunction is not granted; and
(4) the granting of an injunction would not disserve the public interest.
6
As a general rule, trial courts have sound discretion to grant injunctions.
Precision Tune
Auto Case, Inc. v. Radcliff
, 731 So.2d 744, 745 (Fla. 4th DCA 1999). The facts demonstrate that
all of the elements are easily satisfied, and the requested injunction should be issued by this
Honorable Court.
A.
There is Substantial Likelihood of Success on the Merits
Roca seeks injunctive relief under the Florida Uniform Trade Secrets Act (“FUTSA”) for
misappropriation of its trade secrets. FLA. STAT. § 688.001 et seq. In order to prevail on a claim
for misappropriation of trade secrets under FUTSA, a plaintiff must show that: (a) the plaintiff
possessed secret information and took reasonable steps to protect its secrecy, and (b) the secret it
possessed was misappropriated either by one who knew or had reason to know that the secret
was improperly obtained or by one who used improper means to obtain it. Del Monte Fresh
Produce Co. v. Dole Food Co., Inc
., 136 F. Supp. 2d 1271, 1291 (S.D. Fla. 2001) (citing FLA.
STAT. § 688.002)).
a. Roca Possesses Trade Secrets and Takes Reasonable Steps to Protect Them
As discussed more fully above, at considerable time and expense, Roca develops,
compiles, maintains and protects substantial amounts of confidential and proprietary information.
This information is not publicly available or easily developed. If a competitor possessed this
information, the competitor could use it to compete unfairly with Roca. Moreover, Roca legal
strategies could be used against Roca is shared with defense counsel on ongoing matters.
Roca has taken reasonable steps to protect its trade secrets. Moreover as provided in
Florida Statute § 90.502(1)(c) “a communication between lawyer and client is “confidential” if it
is not intended to be disclosed to third persons…” Thus, in addition to the steps taken by Roca,
7
the Defendant had a statutory obligation to keep information confidential. Defendant breached
this statutory requirement.
b. Koroll Misappropriated Trade Secrets
As detailed above, Defendant misappropriated trade secrets from Roca. At the time of her
termination, Defendant accessed computer files and company emails in order to gain control of
information. Defendant’s accessing information occurred at a time when she had no need to be
accessing information as her legal services were terminated.
As an independent attorney for Roca, Defendant has a fiduciary duty to protect Roca’s
confidential trade secrets and information. Defendant knowingly and intentionally violated this
duty for her own benefit.
Florida courts have granted injunctive relief to prevent unfair competition related to the
misappropriation of trade secrets. See, e.g.,
Hatfield v. AutoNation, Inc
., 939 So.2d 155, 157
(Fla. 4th DCA 2006),
East v. Aqua Gaming, Inc.
, 805 So.2d 932, 934 (Fla. 2d DCA 2001),
All
Leisure Holidays Ltd. v. Novello, 2012 WL 5932364, *5 (S.D. Fla. Nov. 27, 2012) .
Under the facts present here and pursuant to relevant Florida law, Roca has a strong
likelihood of succeeding on the merits of its claim for misappropriation of trade secrets.
B.
There is a Substantial Threat of Irreparable Injury if Koroll is Not Enjoined
If the injunction is not granted, Roca will face a substantial threat of irreparable injury.
Roca has already suffered harm by the release of confidential information and will continue to be
injured if Defendant does not immediately cease providing confidential information to
companies and counsel that are adverse to Roca.
8
Irreparable injury is an injury which is of a peculiar nature, so that compensation in
th
money cannot atone for it.
Mullinix v. Mullinix
, 182 So. 2d 268 (Fla. 4
DCA 1966);
First Nat.
nd
Bank n St. Petersburg v. Ferris
, 156 So. 2d 421 (Fla. 2
DCA 1963). There is no way to
compensate Roca for confidential attorneyclient information that may be released by Koroll.
Florida courts have routinely held that irreparable harm is presumed in a case involving
misappropriation of trade secrets. See, e.g.,
Dotolo v. Schouten,
426 So.2d 1013, 1015 (Fla. 2d
DCA 1983) (agreeing with plaintiffs that “irreparable harm and inadequate remedy at law should
be presumed in an action for injunctive relief with respect to the misappropriation of a trade
secret,” and noting that the “misappropriation and continuing use of a trade secret constitutes a
continuing tort”).
You Fit, Inc. v. Pleasanton Fitness, LLC
, 2012 WL 7050984, *3 (M.D. Fla.
Oct. 31, 2012) (“a presumption of irreparable harm exists in cases involving alleged
misappropriation of trade secrets”).
C.
The Granting of an Injunction Would Not Disserve the Public Interest
An injunction is appropriate here to prevent the unlawful use and disclosure of Roca’s
trade secrets. Under Florida law, “an injunction prohibiting a former employee from using trade
secrets to solicit existing customers clearly does not disserve the public interest of protecting
legitimate business interests.”
Aqua Gaming
, 805 So.2d at 934. Indeed, “the existence of
Florida’s trade secret statute illustrates [the] state’s interest in protecting businesses from theft of
confidential information.”
Hatfield
, 939 So.2d at 158.
In addition to trade secrets, there is great interest in preserving confidential
attorneyclient information. Not only is this right codified in Florida Law it is a principal cannon
9
of legal ethics in every state in this nation. Koroll can not dispute that it is not in the public’s
interest to protect the attorneyclient relationship.
D.
Bond
Pursuant to Florida Rule of Civil Procedure 1.610(b), Roca will give a bond for the
injunction in an amount deemed proper by the Court.
WHEREFORE, Roca respectfully requests that this Court temporarily, preliminarily, and
then permanently enjoin Defendant, and all persons in active concert or participation with her,
from making any disclosure prohibited by Florida Statute § 688 et. seq. including, without
limitation, from disclosing any trade secrets, confidential information, attorneyclient
confidential information, and disclose to Roca all information that was released, the date it was
released and the identification of the person/entity to which it was released.
Respectfully submitted this 22nd day of July, 2015.
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
10
I HEREBY CERTIFY that a copy of the foregoing has been furnished via U.S. Mail and
email to
Pro Se Defendant, Cynthia Koroll, 630 North Church Street, Suite 202, Rockford,
nd
Illinois 61103, cindi@klglaw.net, and lisa@klglaw.net, this 22
day of July, 2015.
11
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
EXHIBIT A
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 15CA006540
ROCA LABS, INC., a Corporation
,
Plaintiff,
v.
CYNTHIA KOROLL, an Individual,
Defendant.
_____________________________________/
AFFIDAVIT DON JURAVIN
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
)
)
)
BEFORE ME, the undersigned authority, personally appeared Don Juravin, and upon
being duly sworn, deposes and states:
1. I am over the age of 18 and have personal knowledge of all matters contained in this
affidavit.
2. I am a resident of Sarasota, FL.
3. I am an authorized agent of Roca Labs, Inc. (“Roca”).
4. Roca has invested significant sums and years of time in the research and development of
its proprietary products.
5. Roca has invested millions of dollars in the marketing of its products, building its
trademarked brand name and developing customer lists.
6. Roca has developed a unique relationship with its clients, and has countless successful
1
users who have shared their weight loss success online. Roca firmly believes that the best
way for it to market its products is for successful customers to share their weight loss
success stories and Roca has invested heavily in developing a business platform that
allows for these stories to be shared and discovered.
7. To market its current products and to develop new products, Roca spends substantial
time, effort and expense in developing confidential business information and trade
secrets. Such trade secrets and confidential business information include but are not
limited to information regarding Roca nutraceutical line, product development, research
and testing, confidential customer lists, customer weight loss information and data, legal
strategies, and internal business systems and operations.
8. Roca’s trade secrets and confidential information are not generally known in the industry
or outside of Roca, and could be learned by others, if at all, only through the expenditure
of considerable time, effort and expense. Roca’s trade secrets and confidential
information are critical to its success and future growth in the highly competitive
nutraceutical industry.
9. If Roca’s trade secrets were to fall into the hands of a competitor, Roca’s business would
be severely harmed and its unique position in the marketplace could be crippled and the
competitor would be able to trade on many years of valuable research and knowledge.
10. Roca has internal mechanisms in place to protect its confidential information and strives
to keep its business information secret.
11. On or about May 12, 2015, I engaged the services of attorney Cynthia Koroll on behalf of
Roca.
2
12. Cynthia Koroll was retained by Roca to provide a variety of legal services, including but
not limited to general legal advice as to Roca’s rights and obligations in certain matters,
litigation advice, review and drafting of pleadings, etc.
13. Based upon her position as legal counsel, Cynthia Koroll was given access to confidential
and highly sensitive business information and trade secrets.
14. Cynthia Koroll was provided with a RocaLabs.com email address for use with
Rocarelated work and login creditials that allowed her to access confidential information
that is stored by the Roca using a cloud service provided by Google.
15. Cynthia Koroll was part of a legal team that was involved in complex federal litigation
and as part of that team had virtually unfettered access to information.
16. Cynthia Koroll was involved in highly sensitive meetings and gained knowledge of the
Roca’s critical business and legal strategies.
17. Cynthia Koroll was part of the legal team involved in handling ongoing litigation against
Opinion Corp. D/B/A pissedconsumer.com and Consumer Opinion Corp. (Collectively
PissedConsumer) (Case No. 8:15cv2096 in the U.S. District Court for the Middle
District of Florida).
18. Defense counsel for PissedConsumer is attorney Marc Randazza. Randazza has a history
of unethical and unscrupulous behavior and he is presently the subject of multiple bar
complaints in Florida and in Nevada and recently an arbitration award against him cited
his unethical behavior, including seeking bribes and accessing confidential client
information.
19. Cynthia Koroll also performed legal services on behalf of Roca in the case of Roca Labs,
3
Inc. v. Marc Randazza, (CASE NO.:14CA011251) in Hillsborough County Circuit
Court.
20. Cynthia Koroll also represented Roca in the matter of Jennifer Schaive v. Roca Labs, Inc.
et al (CASE NO.:2015L 2991) in the Circuit Court of Cook County, Illinois.
21. Jennifer Schaive is a defense witness in the Roca Labs, Inc. v. Opinion Corp. and
Consumer Opinion Corp. case being heard in the United States District Court, Middle
District of Florida and was deposed in that case by Cynthia Koroll on behalf of Roca.
22. Jennifer Schaive testified at her deposition that Marc Randazza requested she be a
witness in the case and also retained her attorney in her Illinois state court case against
Roca.
23. On or about July 11, 2015, the IC Agreement between the parties was terminated by
Cynthia Koroll.
24. Upon termination Cynthia Koroll demanded payment for thousands of dollars in
improper billing which was questioned by Roca.
25. Since the termination of her representation of Roca, Cynthia Koroll has been threatening
Roca and its Legal Team, including threats to making confidential information about
Roca public. See Composite Exhibit A, communications from Cynthia Koroll pertaining
to threats to publicize information.
26. Immediately upon termination Cynthia Koroll began communicating with opposing
counsel Marc Randazza in an inappropriate manner. See Composite Exhibit B,
communications from Cynthia Koroll pertaining to communications with Marc
Randazza.
4
27. At the time the IC Agreement was terminated and after the agreement terminated,
Cynthia Koroll improperly accessed Roca’s computers and gained access to confidential
business and legal files.
28. I believe Cynthia Koroll may have shared or will share Roca’s confidential information,
trade secrets, and proprietary information to its business competitors and adversaries,
including Marc Randazza to the detriment of Roca.
29. At no time did I give permission to reveal any confidential information about Roca with
anyone, especially not competitors and attorney Marc Randazza.
30. At no time did I give Cynthia Koroll permission to disclose or publish information,
documents, or work product to Marc Randazza or any other individual or entity outside
of Roca.
31. At all times I expected, and continue to expect, that my communications and the
communications of others working on behalf of Roca with Cynthia Koroll would remain
confidential.
32. At all times I expected, and continue to expect, that the work product of Cynthia Koroll
and the other attorneys representing Roca would remain confidential.
33. I expected, and continue to expect, that Cynthia Koroll would not and will not disclose
any Roca information to anyone without the express permission of Roca.
34. Roca has suffered harm due to the disclosure of information from Cynthia Koroll.
35. Roca is concerned that Cynthia Koroll and Marc Randazza are working in a concerted
effort against Roca.
36. Roca is concerned that both myself and Paul Berger, April Goodwin, and Rachel Hyman,
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via U.S. Mail and
email to
Pro Se Defendant, Cynthia Koroll, 630 North Church Street, Suite 202, Rockford,
nd
Illinois 61103, cindi@klglaw.net, and lisa@klglaw.net, this 22
day of July, 2015.
7
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
COMPOSITE
EXHIBIT A
7/21/2015
Roca Labs Mail Skype
April Goodwin <[email protected]>
Skype
1 message
Cynthia Koroll <cindi@klglaw.net>
To: April Goodwin <[email protected]>
Mon, Jul 20, 2015 at 6:41 AM
Today I might tweet and Facebook all your personal comments about your co workers from our Skype
conversations.
Nothing about Roca of course.
Cannot WAIT to take your depositions in this one. After I call Paul's wife today.
Cynthia Koroll, MS, RN, JD
Koroll Litigation Group, Ltd.
630 North Church Street, Suite 202
Rockford, IL 61103
8153167554
7794232332 (fax)
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&as_from=Cindi%40klglaw.net&as_sizeoperator=s_sl&as_sizeunit=s_smb&as_subset=inbox&a…
1/1
7/21/2015
Roca Labs Mail Third party complaint
April Goodwin <[email protected]>
Third party complaint
1 message
Cynthia Koroll <cindi@klglaw.net>
Tue, Jul 21, 2015 at 2:24 PM
To: April Goodwin <[email protected]>, "Paul Berger Esq." <[email protected]>, Legal 3 Roca Labs
<[email protected]>, Don J <[email protected]>
All in email. All to be
shared.
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&search=inbox&th=14eb1dc5698d2492&siml=14eb1dc5698d2492
1/2
7/21/2015
Roca Labs Mail Third party complaint
I want to litigate this matter to uncover every little detail.
Cynthia Koroll, MS, RN, JD
Koroll Litigation Group, Ltd.
630 North Church Street, Suite 202
Rockford, IL 61103
8153167554
7794232332 (fax)
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&search=inbox&th=14eb1dc5698d2492&siml=14eb1dc5698d2492
2/2
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 15CA006540
ROCA LABS, INC., a Corporation
,
Plaintiff,
v.
CYNTHIA KOROLL, an Individual,
Defendant.
_____________________________________/
PLAINTIFF’S EMERGENCY VERIFIED MOTION FOR A TEMPORARY
INJUNCTION AND MEMORANDUM OF LAW
Plaintiff, ROCA LABS, INC. (“Plaintiff” and/or “Roca”), by and through undersigned
counsel, and pursuant to Florida Rules of Civil Procedure 1.610 and Florida’s Uniform Trade
Secret Act hereby files this Emergency Verified Motion for a Temporary Injunction and
Memorandum of Law and hereby moves for a temporary restraining order and preliminary
injunctive relief. Roca seeks the immediate entry of a temporary restraining order (TRO) and/or
preliminary injunctive relief to protect itself from the improper, unethical and unfair actions of
Defendant Cynthia Koroll (“Defendant” or “Koroll”) due to her unlawful misappropriation, use,
threatened disclosure and disclosure of Roca’s trade secrets and proprietary business
information.
BACKGROUND
1
1.
Roca filed its Amended Complaint contemporaneously with this Motion which
involves breach of contract, breach of fiduciary duties, legal malpractice, and violations of
Florida’s Uniform Trade Secret Act.
2.
Plaintiff is Florida Corporation with a principal place of business in Sarasota,
Florida and doing business in Hillsborough County, Florida.
3.
Roca manufactures and markets nutraceutical products aimed as nonsurgical
weight loss option for overweight individuals considering Gastric Bypass Surgery and other
bariatric surgeries.
4.
Roca has invested significant sums and years of time in the research and
development of its proprietary products.
5.
Roca has invested millions of dollars in the marketing of its products, building its
trademarked brand name and developing customer lists.
6.
Roca has developed a unique relationship with its clients, and has countless
successful users who have shared their weight loss success online. Roca firmly believes that the
best way for it to market its products is for successful customers to share their weight loss
success stories and Roca has invested heavily in developing a business platform that allows for
these stories to be shared and discovered.
7.
To market its current products and to develop new products, Roca spends
substantial time, effort and expense in developing confidential business information and trade
secrets. Such trade secrets and confidential business information include but are not limited to
information regarding Roca nutraceutical line, product development, research and testing,
2
confidential customer lists, customer weight loss information and data, legal strategies, and
internal business systems and operations.
8.
Roca’s trade secrets and confidential information are not generally known in the
industry or outside of Roca, and could be learned by others, if at all, only through the
expenditure of considerable time, effort and expense. Roca’s trade secrets and confidential
information are critical to its success and future growth in the highly competitive nutraceutical
industry. If Roca’s trade secrets were to fall into the hands of a competitor, Roca’s business
would be severely harmed and its unique position in the marketplace could be crippled and the
competitor would be able to trade on many years of valuable research and knowledge.
9.
Roca has internal mechanisms in place to protect its confidential information and
strives to keep its business information secret.
10.
Rather than utilize a traditional corporate legal department to represent and advise
it in legal matters, Roca retains attorneys as independent contractors to provide legal services to
Roca as needed. Roca has an efficient team of lawyers who work in a virtual environment
providing global legal advice.
11.
Defendant is an attorney who is licensed to practice law in the State of Illinois.
12.
On or about May 12, 2015, the parties entered an Independent Contractor
Agreement under which Koroll would provide legal services and representation to Roca.
13.
Due to the special nature of the attorneyclient relationship, Koroll was placed in
a position of trust. Koroll and Roca share a relationship whereby Roca justifiably reposed its
trust and confidence in Koroll, and Koroll undertook such trust and confidence and assumed a
duty to advise, counsel, and/or protect Roca.
3
14.
Defendant owed Roca the fiduciary duties of privilege, confidentiality, loyalty,
and due care. Defendant’s fiduciary obligations arose under the Florida and Illinois Bar Rules of
Professional Conduct and/or by virtue of the close confidential relationship that existed between
Roca and Koroll as a result of their ongoing business dealings and/or by virtue of the IC
Agreement.
15.
Defendant knew or had reason to know that Roca was placing trust and
confidence in her and that Roca was relying on her obligations and representations to ensure
proper protocol and procedures were followed in all dealings with and relating to Roca, both
during and after her representation.
16.
Based upon her position as legal counsel, Defendant was given access to
confidential and highly sensitive business information and trade secrets.
17.
Defendant was provided with a RocaLabs.com email address for her use and was
provided with login creditials that allwed her to access confidential information that is stored by
the Plaintiff using a cloud service provided by Google.
18.
Defendant was part of a legal team that was involved in complex federal litigation
and as part of that team had virtually unfettered access to information.
19.
Defendant was involved in highly sensitive meetings and gained knowledge of the
Plaintiff’s critical business and legal strategies.
20.
Defendant was part of the legal team involved in handling ongoing litigation
against Opinion Corp. D/B/A pissedconsumer.com and Consumer Opinion Corp. (Collectively
PissedConsumer) (Case No. 8:15cv2096 in the U.S. District Court for the Middle District of
Florida).
4
21.
Defense counsel for PissedConsumer is attorney Marc Randazza. Mr. Randazza
has a history of unethical and unscrupulous behavior and he is presently the subject of multiple
bar complaints in Florida and in Nevada.
22.
Roca is also currently involved in litigation against Mr. Randazza personally.
23.
On or about July 11, 2015, the IC Agreement between the parties was terminated
by Defendant.
24.
Upon termination Defendant demanded payment for thousands of dollars in
improper billing which had been questioned by Roca.
25.
Despite her ethical and fiduciary duties to Roca, Defendant has been threatening
Roca and its Legal Team, including threat to making confidential information about Roca public.
See Affidavit of Don Juravin, attached hereto as Exhibit A.
26.
Immediately upon termination Defendant began communicating with opposing
counsel Marc Randazza in an inappropriate manner.
27.
Upon information and belief Defendant has engaged in improper and unethical
communications with Randazza. Defendant has shared trade secrets and proprietary information
with Randazza to the detriment of Roca.
28.
At the time the IC Agreement was terminated and after the agreement was
terminated, Defendant improperly accessed Roca’s computers and gained access to confidential
business and legal files.
29.
Evidence of Defendant’s misconduct includes:
a. Improperly accessing (hacking) email accounts of other attorneys on the Roca
Labs Legal Team.
5
b. Improperly accessing Roca’s cloud storage system to access trade secrets and
confidential information.
c. Threatening to tweet confidential attorney communications
d. Threatening to disclose emails between members of the Roca Legal Team.
30.
Upon information and belief Defendant may have shared confidential information
about Roca to its business competitors and adversaries.
31.
Indeed, Koroll accessed computer records and threatened to share trade secrets in
violation of Florida Statutes, Chapter 688.
32.
At no time did ROCA give permission to reveal any confidential information
about ROCA with anyone, especially not competitors and attorney Marc Randazza. Koroll
owed
a duty to ROCA to maintain secrecy.
ARGUMENT
Roca seeks injunctive relief from this Court restraining Defendant, from further
accessing, using, disclosing, and/or copying Roca’s Trade Secrets and Confidential Information;
and further enjoining her from contacting or communicating with defense counsel or other third
parties on any matters adverse to Roca.
The purpose of a temporary injunction is to protect the movant from irreparable injury
and to preserve the status quo until the district court renders a meaningful decision on the merits.
See
Liberty Counsel v. Florida Bar Bd. of Governors
, 12 So. 3d 183, n.7 (Fla. 2009)
. A
preliminary injunction is properly entered when the moving party demonstrates:
(1) there is a substantial likelihood of success on the merits;
(2) lack of adequate remedy at law;
(3) irreparable injury if the injunction is not granted; and
(4) the granting of an injunction would not disserve the public interest.
6
As a general rule, trial courts have sound discretion to grant injunctions.
Precision Tune
Auto Case, Inc. v. Radcliff
, 731 So.2d 744, 745 (Fla. 4th DCA 1999). The facts demonstrate that
all of the elements are easily satisfied, and the requested injunction should be issued by this
Honorable Court.
A.
There is Substantial Likelihood of Success on the Merits
Roca seeks injunctive relief under the Florida Uniform Trade Secrets Act (“FUTSA”) for
misappropriation of its trade secrets. FLA. STAT. § 688.001 et seq. In order to prevail on a claim
for misappropriation of trade secrets under FUTSA, a plaintiff must show that: (a) the plaintiff
possessed secret information and took reasonable steps to protect its secrecy, and (b) the secret it
possessed was misappropriated either by one who knew or had reason to know that the secret
was improperly obtained or by one who used improper means to obtain it. Del Monte Fresh
Produce Co. v. Dole Food Co., Inc
., 136 F. Supp. 2d 1271, 1291 (S.D. Fla. 2001) (citing FLA.
STAT. § 688.002)).
a. Roca Possesses Trade Secrets and Takes Reasonable Steps to Protect Them
As discussed more fully above, at considerable time and expense, Roca develops,
compiles, maintains and protects substantial amounts of confidential and proprietary information.
This information is not publicly available or easily developed. If a competitor possessed this
information, the competitor could use it to compete unfairly with Roca. Moreover, Roca legal
strategies could be used against Roca is shared with defense counsel on ongoing matters.
Roca has taken reasonable steps to protect its trade secrets. Moreover as provided in
Florida Statute § 90.502(1)(c) “a communication between lawyer and client is “confidential” if it
is not intended to be disclosed to third persons…” Thus, in addition to the steps taken by Roca,
7
the Defendant had a statutory obligation to keep information confidential. Defendant breached
this statutory requirement.
b. Koroll Misappropriated Trade Secrets
As detailed above, Defendant misappropriated trade secrets from Roca. At the time of her
termination, Defendant accessed computer files and company emails in order to gain control of
information. Defendant’s accessing information occurred at a time when she had no need to be
accessing information as her legal services were terminated.
As an independent attorney for Roca, Defendant has a fiduciary duty to protect Roca’s
confidential trade secrets and information. Defendant knowingly and intentionally violated this
duty for her own benefit.
Florida courts have granted injunctive relief to prevent unfair competition related to the
misappropriation of trade secrets. See, e.g.,
Hatfield v. AutoNation, Inc
., 939 So.2d 155, 157
(Fla. 4th DCA 2006),
East v. Aqua Gaming, Inc.
, 805 So.2d 932, 934 (Fla. 2d DCA 2001),
All
Leisure Holidays Ltd. v. Novello, 2012 WL 5932364, *5 (S.D. Fla. Nov. 27, 2012) .
Under the facts present here and pursuant to relevant Florida law, Roca has a strong
likelihood of succeeding on the merits of its claim for misappropriation of trade secrets.
B.
There is a Substantial Threat of Irreparable Injury if Koroll is Not Enjoined
If the injunction is not granted, Roca will face a substantial threat of irreparable injury.
Roca has already suffered harm by the release of confidential information and will continue to be
injured if Defendant does not immediately cease providing confidential information to
companies and counsel that are adverse to Roca.
8
Irreparable injury is an injury which is of a peculiar nature, so that compensation in
th
money cannot atone for it.
Mullinix v. Mullinix
, 182 So. 2d 268 (Fla. 4
DCA 1966);
First Nat.
nd
Bank n St. Petersburg v. Ferris
, 156 So. 2d 421 (Fla. 2
DCA 1963). There is no way to
compensate Roca for confidential attorneyclient information that may be released by Koroll.
Florida courts have routinely held that irreparable harm is presumed in a case involving
misappropriation of trade secrets. See, e.g.,
Dotolo v. Schouten,
426 So.2d 1013, 1015 (Fla. 2d
DCA 1983) (agreeing with plaintiffs that “irreparable harm and inadequate remedy at law should
be presumed in an action for injunctive relief with respect to the misappropriation of a trade
secret,” and noting that the “misappropriation and continuing use of a trade secret constitutes a
continuing tort”).
You Fit, Inc. v. Pleasanton Fitness, LLC
, 2012 WL 7050984, *3 (M.D. Fla.
Oct. 31, 2012) (“a presumption of irreparable harm exists in cases involving alleged
misappropriation of trade secrets”).
C.
The Granting of an Injunction Would Not Disserve the Public Interest
An injunction is appropriate here to prevent the unlawful use and disclosure of Roca’s
trade secrets. Under Florida law, “an injunction prohibiting a former employee from using trade
secrets to solicit existing customers clearly does not disserve the public interest of protecting
legitimate business interests.”
Aqua Gaming
, 805 So.2d at 934. Indeed, “the existence of
Florida’s trade secret statute illustrates [the] state’s interest in protecting businesses from theft of
confidential information.”
Hatfield
, 939 So.2d at 158.
In addition to trade secrets, there is great interest in preserving confidential
attorneyclient information. Not only is this right codified in Florida Law it is a principal cannon
9
of legal ethics in every state in this nation. Koroll can not dispute that it is not in the public’s
interest to protect the attorneyclient relationship.
D.
Bond
Pursuant to Florida Rule of Civil Procedure 1.610(b), Roca will give a bond for the
injunction in an amount deemed proper by the Court.
WHEREFORE, Roca respectfully requests that this Court temporarily, preliminarily, and
then permanently enjoin Defendant, and all persons in active concert or participation with her,
from making any disclosure prohibited by Florida Statute § 688 et. seq. including, without
limitation, from disclosing any trade secrets, confidential information, attorneyclient
confidential information, and disclose to Roca all information that was released, the date it was
released and the identification of the person/entity to which it was released.
Respectfully submitted this 22nd day of July, 2015.
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
10
I HEREBY CERTIFY that a copy of the foregoing has been furnished via U.S. Mail and
email to
Pro Se Defendant, Cynthia Koroll, 630 North Church Street, Suite 202, Rockford,
nd
Illinois 61103, cindi@klglaw.net, and lisa@klglaw.net, this 22
day of July, 2015.
11
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
EXHIBIT A
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 15CA006540
ROCA LABS, INC., a Corporation
,
Plaintiff,
v.
CYNTHIA KOROLL, an Individual,
Defendant.
_____________________________________/
AFFIDAVIT DON JURAVIN
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
)
)
)
BEFORE ME, the undersigned authority, personally appeared Don Juravin, and upon
being duly sworn, deposes and states:
1. I am over the age of 18 and have personal knowledge of all matters contained in this
affidavit.
2. I am a resident of Sarasota, FL.
3. I am an authorized agent of Roca Labs, Inc. (“Roca”).
4. Roca has invested significant sums and years of time in the research and development of
its proprietary products.
5. Roca has invested millions of dollars in the marketing of its products, building its
trademarked brand name and developing customer lists.
6. Roca has developed a unique relationship with its clients, and has countless successful
1
users who have shared their weight loss success online. Roca firmly believes that the best
way for it to market its products is for successful customers to share their weight loss
success stories and Roca has invested heavily in developing a business platform that
allows for these stories to be shared and discovered.
7. To market its current products and to develop new products, Roca spends substantial
time, effort and expense in developing confidential business information and trade
secrets. Such trade secrets and confidential business information include but are not
limited to information regarding Roca nutraceutical line, product development, research
and testing, confidential customer lists, customer weight loss information and data, legal
strategies, and internal business systems and operations.
8. Roca’s trade secrets and confidential information are not generally known in the industry
or outside of Roca, and could be learned by others, if at all, only through the expenditure
of considerable time, effort and expense. Roca’s trade secrets and confidential
information are critical to its success and future growth in the highly competitive
nutraceutical industry.
9. If Roca’s trade secrets were to fall into the hands of a competitor, Roca’s business would
be severely harmed and its unique position in the marketplace could be crippled and the
competitor would be able to trade on many years of valuable research and knowledge.
10. Roca has internal mechanisms in place to protect its confidential information and strives
to keep its business information secret.
11. On or about May 12, 2015, I engaged the services of attorney Cynthia Koroll on behalf of
Roca.
2
12. Cynthia Koroll was retained by Roca to provide a variety of legal services, including but
not limited to general legal advice as to Roca’s rights and obligations in certain matters,
litigation advice, review and drafting of pleadings, etc.
13. Based upon her position as legal counsel, Cynthia Koroll was given access to confidential
and highly sensitive business information and trade secrets.
14. Cynthia Koroll was provided with a RocaLabs.com email address for use with
Rocarelated work and login creditials that allowed her to access confidential information
that is stored by the Roca using a cloud service provided by Google.
15. Cynthia Koroll was part of a legal team that was involved in complex federal litigation
and as part of that team had virtually unfettered access to information.
16. Cynthia Koroll was involved in highly sensitive meetings and gained knowledge of the
Roca’s critical business and legal strategies.
17. Cynthia Koroll was part of the legal team involved in handling ongoing litigation against
Opinion Corp. D/B/A pissedconsumer.com and Consumer Opinion Corp. (Collectively
PissedConsumer) (Case No. 8:15cv2096 in the U.S. District Court for the Middle
District of Florida).
18. Defense counsel for PissedConsumer is attorney Marc Randazza. Randazza has a history
of unethical and unscrupulous behavior and he is presently the subject of multiple bar
complaints in Florida and in Nevada and recently an arbitration award against him cited
his unethical behavior, including seeking bribes and accessing confidential client
information.
19. Cynthia Koroll also performed legal services on behalf of Roca in the case of Roca Labs,
3
Inc. v. Marc Randazza, (CASE NO.:14CA011251) in Hillsborough County Circuit
Court.
20. Cynthia Koroll also represented Roca in the matter of Jennifer Schaive v. Roca Labs, Inc.
et al (CASE NO.:2015L 2991) in the Circuit Court of Cook County, Illinois.
21. Jennifer Schaive is a defense witness in the Roca Labs, Inc. v. Opinion Corp. and
Consumer Opinion Corp. case being heard in the United States District Court, Middle
District of Florida and was deposed in that case by Cynthia Koroll on behalf of Roca.
22. Jennifer Schaive testified at her deposition that Marc Randazza requested she be a
witness in the case and also retained her attorney in her Illinois state court case against
Roca.
23. On or about July 11, 2015, the IC Agreement between the parties was terminated by
Cynthia Koroll.
24. Upon termination Cynthia Koroll demanded payment for thousands of dollars in
improper billing which was questioned by Roca.
25. Since the termination of her representation of Roca, Cynthia Koroll has been threatening
Roca and its Legal Team, including threats to making confidential information about
Roca public. See Composite Exhibit A, communications from Cynthia Koroll pertaining
to threats to publicize information.
26. Immediately upon termination Cynthia Koroll began communicating with opposing
counsel Marc Randazza in an inappropriate manner. See Composite Exhibit B,
communications from Cynthia Koroll pertaining to communications with Marc
Randazza.
4
27. At the time the IC Agreement was terminated and after the agreement terminated,
Cynthia Koroll improperly accessed Roca’s computers and gained access to confidential
business and legal files.
28. I believe Cynthia Koroll may have shared or will share Roca’s confidential information,
trade secrets, and proprietary information to its business competitors and adversaries,
including Marc Randazza to the detriment of Roca.
29. At no time did I give permission to reveal any confidential information about Roca with
anyone, especially not competitors and attorney Marc Randazza.
30. At no time did I give Cynthia Koroll permission to disclose or publish information,
documents, or work product to Marc Randazza or any other individual or entity outside
of Roca.
31. At all times I expected, and continue to expect, that my communications and the
communications of others working on behalf of Roca with Cynthia Koroll would remain
confidential.
32. At all times I expected, and continue to expect, that the work product of Cynthia Koroll
and the other attorneys representing Roca would remain confidential.
33. I expected, and continue to expect, that Cynthia Koroll would not and will not disclose
any Roca information to anyone without the express permission of Roca.
34. Roca has suffered harm due to the disclosure of information from Cynthia Koroll.
35. Roca is concerned that Cynthia Koroll and Marc Randazza are working in a concerted
effort against Roca.
36. Roca is concerned that both myself and Paul Berger, April Goodwin, and Rachel Hyman,
5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via U.S. Mail and
email to
Pro Se Defendant, Cynthia Koroll, 630 North Church Street, Suite 202, Rockford,
nd
Illinois 61103, cindi@klglaw.net, and lisa@klglaw.net, this 22
day of July, 2015.
7
By:
/s/
April S. Goodwin
April S. Goodwin, Esq.
FL Bar No. 502537
Rachel R. Hyman, Esq.
FL Bar No. 70451
Roca Labs, Inc.
P.O. Box 10203
Largo, FL 33777
Tel. (813) 5150755
legal2
@rocalabs.com
legal3
@rocalabs.com
[email protected]
Attorneys for Plaintiff
COMPOSITE
EXHIBIT A
7/21/2015
Roca Labs Mail Skype
April Goodwin <[email protected]>
Skype
1 message
Cynthia Koroll <cindi@klglaw.net>
To: April Goodwin <[email protected]>
Mon, Jul 20, 2015 at 6:41 AM
Today I might tweet and Facebook all your personal comments about your co workers from our Skype
conversations.
Nothing about Roca of course.
Cannot WAIT to take your depositions in this one. After I call Paul's wife today.
Cynthia Koroll, MS, RN, JD
Koroll Litigation Group, Ltd.
630 North Church Street, Suite 202
Rockford, IL 61103
8153167554
7794232332 (fax)
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&as_from=Cindi%40klglaw.net&as_sizeoperator=s_sl&as_sizeunit=s_smb&as_subset=inbox&a…
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7/21/2015
Roca Labs Mail Third party complaint
April Goodwin <[email protected]>
Third party complaint
1 message
Cynthia Koroll <cindi@klglaw.net>
Tue, Jul 21, 2015 at 2:24 PM
To: April Goodwin <[email protected]>, "Paul Berger Esq." <[email protected]>, Legal 3 Roca Labs
<[email protected]>, Don J <[email protected]>
All in email. All to be
shared.
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&search=inbox&th=14eb1dc5698d2492&siml=14eb1dc5698d2492
1/2
7/21/2015
Roca Labs Mail Third party complaint
I want to litigate this matter to uncover every little detail.
Cynthia Koroll, MS, RN, JD
Koroll Litigation Group, Ltd.
630 North Church Street, Suite 202
Rockford, IL 61103
8153167554
7794232332 (fax)
https://mail.google.com/mail/u/0/?ui=2&ik=3b9df32467&view=pt&search=inbox&th=14eb1dc5698d2492&siml=14eb1dc5698d2492
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