BioDri of Michigan, LLC, et al, v Blue H20 Solutions, LLC, et al

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

BLISSFIELD MANUFACTURING COMPANY, BIODRI MICHIGAN, LLC D/B/A GREENER PLANET SOLUTIONS, and GREENER PLANET SOLUTIONS OF FLORIDA LLC,

Plaintiffs,

v. BLUE H2O SOLUTIONS, LLC, AARON MAASSEL, ROBERT ROBINSON, EUGENE KOBYLAK, and JAY ROBINSON,

Defendants. /

Case No. _________________ Hon. ____________________

J. Michael Huget (P39150) Deborah J. Swedlow (P67844) Charles W. Duncan, Jr. (P75288) HONIGMAN MILLER SCHWARTZ AND COHN LLP 130 South First Street, Fourth Floor Ann Arbor, Michigan 48104 (734) 418-4268 [email protected] [email protected] [email protected] Attorneys for Plaintiffs

/

COMPLAINT

Plaintiffs Blissfield Manufacturing Company, Greener Planet Solutions of Florida LLC,

and BioDrio Michigan, LLC d/b/a Greener Planet Solutions, by and through their attorneys

Honigman Miller Schwartz and Cohn LLP, hereby provide their Complaint against Defendants

Aaron Maassel, Robert Robinson, Eugene Kobylak, Jay Robinson, and Blue H20 Solutions, LLC.

2:12-cv-15610-JAC-MJH Doc # 1 Filed 12/21/12 Pg 1 of 24 Pg ID 1

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THE PARTIES

1. Plaintiff Blissfield Manufacturing Company (“BMC”) is a Michigan corporation,

with its principal place of business located at 626 Depot Street, Blissfield, Michigan 49228. BMC

manufactures a wide variety of high-tech products for industrial and automotive applications. It

has, among others, a Green Technologies division that manufactures wastewater treatment

products. The primary wastewater treatment product that BMC manufactures is the PRO2 Series

aeration system, which is central to this dispute.

2. Plaintiff BioDri Michigan, LLC d/b/a Greener Planet Solutions (“GPS”) is a

Michigan limited liability company, with a principal place of business located at 30600 Telegraph

Road Suite 2345, Bingham Farms, Michigan 48025. GPS has partnered with BMC to market and

distribute the PRO2 Series aeration system.

3. Plaintiff Greener Planet Solutions of Florida, LLC (“GPS-Florida”) is a Florida

limited liability company with its principal place of business located at 3000 W. 40th Street,

Orlando, Florida 32839. Like GPS, GPS-Florida has partnered with BMC to market and distribute

the PRO2 Series aeration system.

4. Defendant Blue H2O Solutions, LLC (“Blue H2O”) is an Ohio limited liability

company. Its principal place of business is at 733 N. Perry Street, Suite 211, Napoleon, Ohio

43545. On information and belief, Blue H2O has partnered with a company called BlueInGreen

LLC to market a wastewater treatment product called SDOX, a product that is a direct competitor

to Plaintiffs’ PRO2 Series System. On information and belief, SDOX is designed and/or

manufactured by BlueInGreen LLC and marketed and distributed by Blue H2O.

5. On information and belief, Defendant Aaron Maassel (“Maassel”) is a citizen of,

and residing in, Ohio. He is the Chief Executive Officer of Blue H2O Maassel formerly served as a

business development consultant for GPS in Blissfield, Michigan.


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6. On information and belief, Defendant Robert Robinson (“R. Robinson”) is a citizen

of, and residing in Ohio. He is the Vice President of Sales, Marketing, and Strategies of Blue H2O.

R. Robinson formerly served as the Chief Operating Officer and Chief Financial Officer for GPS,

at which time his office was located in Blissfield, Michigan.

7. On information and belief, Defendant Eugene Kobylak (“Kobylak”) is a citizen of,

and residing in Ohio. He is the Vice President of Field Operations of Blue H2O. Kobylak formerly

served as the Vice President of Field Operations for GPS, at which time his office was located in

Blissfield, Michigan.

8. On information and belief, Defendant Jay Robinson (“J. Robinson”) is presently a

citizen of Colorado. He is a Business Development Consultant for Blue H2O. J. Robinson

formerly served as a salesperson for GPS, at which time his lived in Toledo, Ohio and worked in an

office located in Blissfield, Michigan.

JURISDICTION AND VENUE

9. This Court has subject matter jurisdiction over this civil action pursuant to 28

U.S.C. § 1332 because no plaintiff is a citizen of the same state as any defendant. Moreover, the

amount in controversy is greater than $75,000.

10. This Court has personal jurisdiction over Defendants pursuant to Fed. R. Civ. P.

4(k)(1)(A) and M.C.L. § 600.705 because they have, inter alia, transacted business in this state,

done or caused acts or caused consequences in this state resulting in an action for tort, and entered

into contracts for services to be rendered in this state—all of which giving rise to the claims

asserted herein. All Defendants have purposefully availed themselves of this state.

11. Venue is proper in this District pursuant to, inter alia, 28 U.S.C. § 1391(b)(2)

because a substantial part of the events or omissions giving rise to this Complaint occurred here or

a substantial part of property that is the subject of the action is situated here.


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GENERAL ALLEGATIONS

The Pro2 Series System

12. By way of background, Plaintiffs are in the business of manufacturing and selling a

wastewater treatment product known as the Pro2 Series System. The Pro2 Series System is a

groundbreaking, proprietary wastewater treatment system based on targeted, super-saturation of

wastewater with dissolved oxygen.

13. BMC is a family owned business that was founded in 1946 to produce compressors

and condensing units for the commercial refrigeration industry. Since then, BMC has engineered

and manufactured offerings in the automotive, off-highway, industrial, HVAC, commercial &

beverage refrigeration, as well as in the restaurant equipment markets.

14. BMC is also active in the Green Technology movement having developed and

refined technologies that embrace the core principals of energy awareness. BMC developed an

umbrella of environmental solutions that specifically targets energy conservation and renewable

energy solutions. BMC designed, developed and manufactures the proprietary Pro2 Series System

through its Green Technologies division.

15. GPS and GPS-Florida, which share common ownership, provide hi-tech

environmental solutions company commercializing the latest technology in wastewater and

groundwater remediation utilizing ground breaking oxygenation processes. Utilizing the design

and manufacturing capabilities of BMC, and pursuant to a master distributorship agreement, the

GPS plaintiffs have exclusive rights to market, sell, distribute and service the Pro2 Series System

technology. Also pursuant to the master distributorship agreement between GPS and BMC, GPS is

contractually bound to maintain the confidentiality of BMC’s proprietary or confidential

information concerning the Pro2 Series System.


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16. The higher the level of dissolved oxygen in wastewater, the more efficiently

microorganisms in the wastewater are able to consume the organic wastes, rendering them

harmless. In traditional wastewater treatment systems, the speed at which microorganisms are able

to consume waste is limited by the amount of dissolved oxygen in the water, which is in turn

limited by the solubility—or saturation point—of oxygen in water. The Pro2 Series System

product is able to achieve dissolved oxygen levels that far exceed the saturation point of oxygen

under natural conditions, allowing for substantially more efficient wastewater treatment.

17. Additionally, the Pro2 Series System does not just deliver supersaturated dissolved

oxygen to wastewater but does so in a targeted manner. It is able to monitor and precisely control

the level of dissolved oxygen at various locations in the wastewater, allowing it to deliver

dissolved oxygen only when needed and where needed. The result is that the Pro2 Series System is

substantially more energy efficient than traditional wastewater treatment systems.

18. On information and belief, the Pro2 Series System system is unique in the

marketplace. On information and belief, Plaintiffs are the only players in the industry who have

brought to market a system like the Pro2 Series System. Thus, the technology is not widely known,

and is highly proprietary. Aspects of the system have been patented, and others remain trade

secrets of Plaintiffs.

19. As set forth herein, Defendants have misappropriated Plaintiffs trade secrets and

other confidential information and are attempting to use it to sell a product—SDOX—that is

directly competitive to the Pro2 Series System.

Defendant Robert Robinson

20. Defendant R. Robinson served as the Chief Operating Officer and Chief Financial

Officer of GPS from September, 2010 to February, 2012. As COO/CFO, R. Robinson was the


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primary writer of all proposals, draft legal contracts, and presentations on behalf of GPS to private

firms and government entities.

21. During his tenure with GPS, R. Robinson had unrestricted access to all confidential

company information including access to every employee’s individual computer files through

Windows “file sharing” authorization. R. Robinson also managed two salespeople, including

Defendant J. Robinson, and had personal contact with every customer and prospective customer of

GPS. Further in his capacity as COO/CFO, R. Robinson participated in top-level discussions with

BMC regarding, but not limited to, target markets, fields of use, costing, and also observed the

design and building of the Pro2 Series System.

22. Upon information and belief, R. Robinson had no experience in the wastewater and

groundwater remediation industry prior to working with GPS.

23. Every GPS-related document that R. Robinson authored or reviewed was, based on

information and belief, created and stored on R. Robinson’s laptop computer, which he took with

him upon leaving GPS, without having deleted Plaintiffs’ confidential and proprietary

information.

24. On August 11, 2010, R. Robinson entered into a Confidentiality Agreement (the

“Confidentiality Agreement”) with Plaintiff BMC.

25. Under the terms of the Confidentiality Agreement, which was made so that R.

Robinson and BMC could hold discussions concerning the design, engineering, materials, and/or

manufacture of the Pro2 Series System, the parties are mutually bound to maintain the

confidentiality of, and not to use, each other’s confidential information. A true and correct copy of

the Confidentiality Agreement is attached hereto as Exhibit A.


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Defendant Aaron Maassel

26. Defendant Maassel served as a business development consultant for GPS from

November, 2011 to March, 2012. Maassel worked closely with R. Robinson and J. Robinson, who

shared a great deal of information with him to educate him on all aspects of the Pro2 Series System

technology. Maassel was involved in presentations to government entities and was, accordingly,

privy to a great deal of confidential, including trade secret, GPS information.

27. Upon information and belief, Maassel had no experience in the wastewater and

groundwater remediation industry prior to working with GPS

28. On May 4, 2011, Maassel entered into a Non-Disclosure Agreement (the “May

2011 NDA”) with Plaintiff GPS.

29. Under the terms of the May 2011 NDA, Maassel and GPS are mutually obligated to

maintain the confidentiality of, and not to use, each other’s confidential information that was

exchanged pursuant to the Agreement or prior to its execution. A true and correct copy of the May

2011 NDA is attached hereto as Exhibit B.

Defendants Eugene Kobylak and Jay Robinson

30. Defendant Kobylak served as the Vice President of Field Operations for GPS from

January, 2011 to February, 2012. In this role, Kobylak was directly involved with the installation,

servicing, maintenance and repair of the Pro2 Series System. Kobylak has detailed knowledge,

including trade secrets, regarding the functionality, design, components, and programming of the

Pro2 Series System.

31. Kobylak further managed all pilots and trials of the Pro2 Series System. Thus, he is

knowledgeable regarding the customers and industries to which the product is mostly likely to be

successfully marketed.


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32. Finally, Kobylak had access to company “white papers” and other confidential

files and assisted in the data collection and development of many white papers and studies.

33. Upon information and belief, Kobylak had no experience in the wastewater and


34. Kobylak did most of his work for GPS on his laptop computer, which he took with

him upon leaving the company without, based on information and belief, deleting Plaintiffs’

confidential or proprietary information.

35. Defendant J. Robinson served as a sales person for GPS May, 2011 to February,

2012. J. Robinson worked for GPS in Blissfield, Michigan while he learned the technology behind

the Pro2 Series System and how to market and sell the product.

36. J. Robinson was involved in identifying potential customers and establishing

relationships with customers in the hope of selling the Pro2 Series System to them. He had access

to most company files and information related to the technology and also had access to all lists of

prospective GPS customers.

37. Upon information and belief, J. Robinson had no experience in the wastewater and


38. J. Robinson used a laptop for GPS business which he took with him upon leaving

GPS, without, based on information and belief, deleting Plaintiffs’ confidential and proprietary

information.

39. On February 17, 2012, each of Kobylak, J. Robinson, and also R. Robinson,

entered into Non-Disclosure Agreements (the “February 2012 NDAs”) with Plaintiff GPS-Florida.

40. Under the terms of the February 2012 NDAs, Kobylak, J. Robinson, and R.

Robinson are prohibited from using or disclosing any confidential information that GPS-Florida


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disclosed to them. True and correct copies of the February 2012 NDAs are attached hereto as

Exhibit C.

41. Also on February 17, 2012, each of Defendants R. Robinson, Kobylak, and J.

Robinson entered into Non-Competition Agreements (the “February 2012 Non-Competes”) with

Plaintiff GPS-Florida.

42. Under the terms of the February 2012 Non-Competes, R. Robinson, Kobylak, and

J. Robinson are prohibited from, personally or through any business entity, selling any product that

is similar to the Pro2 Series System. They are similarly prohibited from contacting or soliciting

away any of GPS-Florida’s customers. True and correct copies of the February 2012

Non-Competes are attached hereto as Exhibit D.

Defendants’ Acquisition of Plaintiffs’ Confidential Information

43. In the course of his business relationship with GPS, R. Robinson acquired

confidential information, including documents, belonging to GPS-Florida and Blissfield. Such

confidential information and documents included, inter alia, detailed information regarding

customers and potential customers, sales leads, market information, product pricing information,

and technical knowledge regarding the Pro2 Series System.

44. In this course of his business relationship with GPS, Maassel acquired confidential

information, including documents, belonging to GPS-Florida and Blissfield. Such confidential

information and documents included, inter alia, detailed information regarding customers and

potential customers, sales leads, market information, product pricing information, and technical

knowledge regarding the Pro2 Series System.

45. In this course of his business relationship with GPS, Kobylak acquired confidential

information, including documents, belonging to GPS-Florida and Blissfield. Such confidential


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information and documents included, inter alia, detailed information regarding customers and

potential customers, sales leads, market information, product pricing information, and technical

knowledge regarding the Pro2 Series System.

46. In this course of his business relationship with GPS, J. Robinson acquired

confidential information, including documents, belonging to GPS-Florida and Blissfield. Such

confidential information and documents included, inter alia, detailed information regarding

customers and potential customers, sales leads, market information, product pricing information,

and technical knowledge regarding the Pro2 Series System.

47. The information that the Individual Defendants acquired from Plaintiffs went

beyond mere names and contact information for customers and potential customers. Rather, it

included comprehensive, detailed, non-public information regarding Plaintiffs’ actual and

potential customers for Plaintiffs’ wastewater treatment products and their specific product

needs—information which had been compiled by Plaintiffs over an extended time period. It

further included confidential product pricing information and detailed technical information

concerning the Pro2 Series System.

48. Plaintiffs took measures to ensure the confidentiality of their information and trade

secrets, including the use of non-disclosure agreements with relevant staff, contractors, visitors to

Plaintiffs’ facilities, and potential customers (including government entities), as well as the use of

security codes, key access, computer passwords to limit access to physical spaces and electronic

data. Plaintiffs further limited access to their most critical and confidential data to those who

required access.

49. R. Robinson, as COO/CFO of GPS had access to and knowledge of Plaintiffs’ most

critical and most secure confidential information and trade secrets.


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Plaintiffs’ Trade Secrets

50. Some of the confidential information that the Individual Defendants acquired from

Plaintiffs constituted trade secrets. For example, Plaintiffs’ detailed customer and potential

customer and market information, their specifications, programming and other aspects of the Pro2

Series System, as well as product fields of use, lab studies concerning product performance,

technical calculations and cost savings to clients, and future research and development for the Pro2

product constitute trade secrets.

51. This information derives independent economic value from not being generally

known to—and not being readily ascertainable by proper means by—other persons who can obtain

economic value from its disclosure or use.

52. Plaintiffs employ reasonable efforts to maintain the secrecy of this information. For

example, Plaintiffs required the Individual Defendants to sign confidentiality and non-disclosure

agreements concerning the information. Moreover, in connection with the trade secret aspects of

the Pro2 Series System, Plaintiffs limit access to sensitive information only to those persons who

need to have access.

53. Plaintiffs’ detailed customer and potential customer and market information, and

other trade secrets, ensure Plaintiffs’ continued success in the industry. Plaintiffs have devoted

substantial time, money and effort to develop these trade secrets. The trade secrets provide

Plaintiffs an advantage over their competitors and allow them to maintain and increase their

market share.


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Defendants’ Breach of the Agreements

54. On information and belief, when the Individual Defendants’ relationships with

Plaintiffs terminated, they took with them confidential, including trade secret, information and

documents belonging to Plaintiffs, such as potential customer, market, and detailed technical

information.

55. Moreover, as alleged above, several defendants had confidential GPS information

on their laptops, which they took with them upon leaving GPS.

56. In or around April 2012, one or more of the Individual Defendants formed Blue

H20. All of the Individual Defendants are currently employed by Blue H2O.

57. Blue H20 markets and distributes a product called SDOX, which is directly

competitive to Plaintiffs’ Pro2 Series System. On information and belief, Blue H2O markets

SDOX to the identical class of consumers that Plaintiffs market the Pro2 Series System.

58. Each sale of SDOX completed by Blue H2O is a potential lost sale for Plaintiffs.

59. On information and belief, all of the Individual Defendants, in the course of their

employment with Blue H2O, are actively involved in the sale and marketing of SDOX.

60. On information and belief, in connection with the sale and marketing of SDOX, the

Individual Defendants have used and disclosed the potential customer and market information, and

other trade secrets, acquired from Plaintiffs.

61. On information and belief, in connection with the sale and marketing of SDOX,

Blue H2O has induced the Individual Defendants to use and disclose—and has itself used and

disclosed—the potential customer and market information, and other trade secrets, the Individual

Defendants acquired from Plaintiffs.


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62. In connection with the sale and marketing of SDOX, it is inevitable that Defendants

will continue to use and/or disclose the confidential and trade secret information that they acquired

from Plaintiffs. The SDOX and Pro2 Series System products are too similar, there is too much

overlap in the market, and the information acquired from Plaintiffs is too comprehensive for

Defendants to avoid using or disclosing Plaintiffs’ confidential and trade secret information in

connection with Defendants’ competing business.

COUNT I BREACH OF CONTRACT—CONFIDENTIALITY AGREEMENT

BY BMC AGAINST R. ROBINSON

63. Plaintiffs hereby incorporate by reference all of the foregoing paragraphs.

64. The Confidentiality Agreement is valid and enforceable.

65. BMC has performed all of its obligations under the Confidentiality Agreement.

66. The Confidentiality Agreement, attached hereto as Exhibit A, states as follows:

Blissfield Manufacturing Company and Robert A. Robinson agree to maintain in confidence all Confidential Information received from the other party…, and shall refrain from using the same (except for purposes of the Project), or disclosing any part thereof to any third party.”

67. On information and belief, in the course of his employment with Blue H2O, R.

Robinson has used BMC confidential information acquired pursuant to the Confidentiality

Agreement for a purpose not contemplated therein. On information and belief, he has disclosed

BMC confidential information to third parties, including but not limited to Blue H20.

68. Moreover, it is inevitable that, as long as he is employed by Blue H2O, R. Robinson

will continue to use BMC confidential information acquired pursuant to the Confidentiality

Agreement for a purpose not contemplated therein. It is similarly inevitable that R. Robinson will


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continue to disclose BMC confidential information to third parties, including but not limited to

Blue H20.

69. In these ways and others, R. Robinson is in continuous breach of the

Confidentiality Agreement.

70. As a result of the breach, BMC is being damaged through, inter alia, a loss of its

competitive advantage, loss of business, loss of goodwill, loss of income, and damage to its

reputation.

71. BMC is suffering irreparable harm as a result of the breach for which there is no

adequate remedy at law. For example, the Confidentiality Agreement states, “The parties…

acknowledge that failure to comply with the terms of this Agreement would cause irreparable

damage.”

COUNT II BREACH OF CONTRACT—MAY 2011 NDA

BY GPS AGAINST MAASSEL


73. The May 2011 NDA is valid and enforceable.

74. GPS has performed all of its obligations under the May 2011 NDA.

75. The May 2011 NDA, attached hereto as Exhibit B, states as follows:

“PARTY accepts the confidential information only for the purpose of determining or assessing the Market for possible development and agrees not to make use of the confidential information for any other purpose and/or disclose this information to any third-persons….”

76. On information and belief, in the course of his employment with Blue H2O,

Maassel has used GPS confidential information acquired pursuant to the May 2011 NDA for a


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purpose not contemplated therein. On information and belief, Maassel has disclosed GPS

confidential information to third parties, including but not limited to Blue H20.

77. It is inevitable that, as long as he is employed by Blue H2O, Maassel will continue

to use GPS confidential information acquired pursuant to the May 2011 NDA for a purpose not

contemplated therein. It is similarly inevitable that Maassel will continue to disclose GPS


78. In these ways and others, Maassel is in continuous breach of the May 2011 NDA.

79. As a result of the breach, GPS is being damaged through, inter alia, a loss of its

competitive advantage, loss of business, loss of goodwill, loss of income, and damage to its

reputation. GPS is suffering irreparable harm as a result of the breach for which there is no

adequate remedy at law.

COUNT III BREACH OF CONTRACT—FEBRUARY 2012 NDAs

BY GPS-FLORIDA AGAINST R. ROBINSON, KOBYLAK, J. ROBINSON


81. The February 2012 NDAs are valid and enforceable.

82. GPS-Florida has performed all of its obligations under the February 2012 NDAs.

83. The February 2012 NDAs, which are attached hereto as Exhibit C, state, “Recipient

agrees not to use any Confidential Information for any purpose except to provide services to

[GPS-Florida].”

84. The February 2012 NDAs further state, “Recipient agrees not to disclose any

Confidential Information to third parties….”

85. On information and belief, in the course of their employment with Blue H2O, R.

Robinson, Kobylak, and J. Robinson have used GPS-Florida confidential information acquired


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pursuant to the February 2012 NDAs for a purpose other than to provide services to GPS-Florida.

On information and belief, R. Robinson, Kobylak, and J. Robinson have disclosed GPS-Florida


86. It is inevitable that, as long as they are employed by Blue H2O, R. Robinson,

Kobylak, and J. Robinson will continue use GPS-Florida confidential information acquired

pursuant to the February 2012 NDAs for a purpose other than to provide services to GPS-Florida.

It is similarly inevitable that R. Robinson, Kobylak, and J. Robinson will continue to disclose

GPS-Florida confidential information to third parties, including but not limited to Blue H20.

87. In these ways and others, R. Robinson, Kobylak, and J. Robinson are in continuous

breach of the February 2012 NDAs.

88. As a result of the breach, GPS-Florida is being damaged through, inter alia, a loss

of its competitive advantage, loss of business, loss of goodwill, loss of income, and damage to its

reputation.

89. GPS-Florida is suffering irreparable injury as a result of the breach and has no

adequate remedy at law. For example, the February 2012 NDAs state, “Recipient agrees that any

violation or threatened violation of this Agreement will cause irreparable injury to [GPS-Florida].”

COUNT IV BREACH OF CONTRACT—FEBRUARY 2012 NON-COMPETES

BY GPS-FLORIDA AGAINST R. ROBINSON, KOBYLAK, J. ROBINSON


91. The February 2012 Non-Competes are valid and enforceable.

92. GPS-Florida has performed all of its obligations under the February 2012

Non-Competes.


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93. The February 2012 Non-Competes, which are attached hereto as Exhibit D, state as

follows:

“…[F]or the period of two (2) years from on and after the termination of Independent Contractor's contract by Company, Independent Contractor agrees Independent Contractor will not, within the area of the continental United States, … on his own account or through a person, group, partnership or corporation, engage in, invest in, or otherwise be connected with any business, occupation, trade, profession or enterprise which… is selling or offering for sale any products or services of the kind similar to the products or services now being provided or sold by [GPS-Florida].”

94. The February 2012 Non-Competes further state as follows:

“Independent Contractor further agrees that he will not, directly or indirectly, own, manage, operate, join, control… or be employed or connected in any manner with or by any business… which competes in any business similar to that of [GPS-Florida].”

95. Finally, the February 2012 Non-Competes state as follows:

“Independent Contractor further agrees that during the above stated period and within the above stated area he shall not, for himself or on behalf of any other person, group, partnership or corporation, call on any customer of Company for the purpose of soliciting, divesting or taking away any customer of Company.”

96. R. Robinson, Kobylak, and J. Robinson are in continuous breach of the February

2012 Non-Competes through, inter alia, their association Blue H2O, which is marketing a product

that is similar and competitive to GPS-Florida’s Pro2 Series System. On information and belief,

Blue H2O is also contacting GPS-Florida’s customers for the purpose of soliciting their business

away from GPS-Florida.

97. As a result of the breach, GPS-Florida is being damaged through, inter alia, a loss

of its competitive advantage, loss of business, loss of goodwill, and loss of income.

98. GPS-Florida is suffering irreparable injury as a result of the breach and has no

adequate remedy at law. For example, the February 2012 Non-Competes state, “In the event of a


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breach or threatened breach by Independent Contractor…, Independent Contractor acknowledges

that Company will not have adequate remedy at law….”

COUNT V TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONS

BY ALL PLAINTIFFS AGAINST BLUE H2O


100. Blue H2O knows that each Plaintiff has a contract with at least one of the Individual

Defendants.

101. As set forth herein, the Individual Defendants are in continuous breach of their

contracts with Plaintiffs.

102. Blue H2O is tortiously interfering with Plaintiffs’ contractual relations with the

Individual Defendants by improperly inducing the Individual Defendants to breach their contracts

with Plaintiffs. Blue H2O is doing so without justification and with the intent to harm Plaintiffs.

103. Blue H2O’s tortious interference is being accomplished through the intentional

doing of a per se wrongful act and/or the doing of a lawful act with malice and unjustified in law

for the purpose of invading Plaintiffs’ rights and/or relationships.

104. As a result of Blue H2O’s tortious interference, Plaintiffs are being damaged

through, inter alia, a loss of its competitive advantage, loss of business, loss of goodwill, and loss

of income. Plaintiffs are suffering irreparable harm for which there is no adequate remedy at law.

COUNT VI TRADE SECRET MISAPPROPRIATION

UNDER M.C.L. 445.1901 et seq. BY ALL PLAINTIFFS

AGAINST ALL DEFENDANTS



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106. On information and belief, all of the Individual Defendants have (in violation of

M.C.L. 445.1902(b)(ii)), without the consent Plaintiffs, disclosed to third parties, including Blue

H2O trade secret information belonging to one or more of Plaintiffs that was acquired pursuant to

a confidentiality or nondisclosure agreement.

107. At the time of such disclosures, the Individual Defendants were under a duty

pursuant to the confidentiality and nondisclosure agreements to maintain the secrecy of the

information. See M.C.L. 445.1902(b)(ii)(B).

108. It is inevitable that all of the Individual Defendants will continue to make such

disclosures as long as they are employed by Blue H20.

109. Without the consent of Plaintiffs, all of the Individual Defendants have (in further

violation of M.C.L. 445.1902(b)(ii)) used in the course of their employment with Blue H2O trade

secret information belonging to one or more of Plaintiffs that was acquired pursuant to a

confidentiality or nondisclosure agreement.

110. At the time of such use, the Individual Defendants were under a duty pursuant to

the confidentiality or nondisclosure agreements to maintain the secrecy of the information. See

M.C.L. 445.1902(b)(ii)(B).

111. Moreover, it is inevitable that all of the Individual Defendants will continue such

use as long as they are employed by Blue H20.

112. Blue H2O has acquired from the Individual Defendants and used (in violation of

M.C.L. 445.1902(b)(i) and (ii)) trade secret information belonging to Plaintiffs.

113. At the time Blue H20 acquired and used such information, it knew that the

Individual Defendants were under a duty to maintain the secrecy of the information pursuant to

confidentiality and nondisclosure agreements with Plaintiffs and that the Individual Defendants’


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disclosure of the information to Blue H2O was a breach of that duty. See M.C.L. 445.1902(a),

(b)(i), b(ii)(A) and (B).

114. It is inevitable that Blue H2O will continue to use such information as long it

markets or distributes the SDOX—or any substantially similar—product.

115. Blue H2O induced the Individual Defendants to breach their confidentiality and

nondisclosure agreements with Plaintiffs. See M.C.L. 445.1902(a).

116. As a result of Defendants’ use and disclosure of Plaintiffs’ trade secret information,

Plaintiffs are being damaged through, inter alia, a loss of competitive advantage, loss of business,

loss of goodwill, loss of income. See M.C.L. 445.1904.

117. All of Defendants have been unjustly enriched by their use and disclosure of

Plaintiffs’ trade secret information through, inter alia, the diversion of sales from Plaintiffs. See

M.C.L. 445.1904.

118. As a result of the actual and threatened use by Defendants of Plaintiffs’ trade secret

information, Plaintiffs are suffering, and at risk of suffering, irreparable harm for which there is no

adequate remedy at law. See M.C.L. 445.1903(1).

119. Defendants’ trade secret misappropriation was willful and malicious. See M.C.L.

445.1905.

COUNT VII UNJUST ENRICHMENT

BY ALL PLAINTIFFS AGAINST ALL DEFENDANTS


121. By the conduct described above, Defendants have knowingly received a benefit

from Plaintiffs through the unauthorized use and disclosure of Plaintiffs’ confidential information,

including trade secrets. It would be unfair for Defendants to retain such benefit.


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122. Defendants’ conduct has resulted, and will continue to result, in irreparable harm

and damage to Plaintiffs, including, but not limited to, loss of competitive advantage, loss of

business, loss of goodwill, loss of income, and damage to their reputation.

COUNT VIII COMMON LAW UNFAIR COMPETITION

BY ALL PLAINTIFFS AGAINST BLUE H20


124. Blue H2O is a competitor of all of Plaintiffs.

125. Blue H2O’s actions and conduct described above amount to deceptive and

unlawful acts which have damaged Plaintiffs’ businesses.

126. Blue H2O knew or should have known that its actions and conduct would damage

Plaintiffs’ relationships and business expectancies.

127. As a result of Blue H2O’s actions and conduct, Plaintiffs have suffered significant

and damages and irreparable harm, including, but not limited to, loss of competitive advantage,

loss of business, loss of goodwill, loss of income, and damage to their reputation.

COUNT IX TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONSHIP

BY GPS AGAINST R. ROBINSON


129. R. Robinson, on behalf of GPS, had extensive dealings and negotiations with

several potential strategic partners. Some of these potential strategic partners had proposals or

letters of intent from GPS they were reviewing and considering executing at the time R. Robinson

left GPS.


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130. Immediately prior to leaving GPS, R. Robinson stated that he would do his best to

cause the potential strategic partners to not work with GPS. And now, since R. Robinson’s

departure from GPS, none of the potential strategic partners will communicate with GPS.

131. GPS had valid business expectancies with its potential strategic partners, especially

those who had received proposals or letters of intent from GPS.

132. R. Robinson knew about these valid business expectancies because he was

personally involved in creating them.

133. On information and belief, R. Robinson intentionally, improperly, without

justification, and with the intent to harm GPS interfered with GPS’s valid business expectancies by

“doing his best” to cause GPS’s potential strategic partners not to work with GPS.

134. R. Robinson’s tortious interference was accomplished through the intentional

doing of a per se wrongful act and/or the doing of a lawful act with malice and unjustified in law

for the purpose of invading GPS’s rights and/or relationships.

135. As a result of R. Robinson’s tortious interference, GPS is being damaged through,

inter alia, a loss of its competitive advantage, loss of business, loss of goodwill, and loss of

income. GPS is suffering irreparable harm for which there is no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs request entry of judgment in their favor and against Defendants,

and further request that the Court:

A. Preliminarily and permanently enjoin all Defendants from taking part in the

marketing or distribution of the SDOX product—or any product substantially similar thereto—or

otherwise using or disclosing Plaintiffs’ confidential information, including trade secrets;

B. Preliminarily and permanently enjoin R. Robinson, Kobylak, and J. Robinson from

further competing with Plaintiffs in violation of the February 2012 Non-Competes, including


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through continued employment with Blue H20, until two years have passed since the termination

of their contracts with GPS-Florida;

C. Preliminarily and permanently enjoin Blue H2O from further inducing the

Individual Defendants to breach their contracts with Plaintiffs;

D. Enter an order requiring Defendants, and all persons or entities associated with

them, to return to Plaintiffs, through its counsel of record, any and all documents, information, and

any other materials containing Plaintiff’s confidential information, including all originals and

copies thereof, whether in electronic, computerized, handwritten or any other form;

E. Enter an Order directing Defendants to file with the Court and serve upon

Plaintiffs, within ten (10) days after the entry of injunctive relief, a report in writing and under oath

setting forth in detail the manner and form in which they have complied with the injunctive relief

ordered by the Court;

F. Award Plaintiffs such monetary damages as may be proven at trial, including

without limitation, disgorgement, compensatory and exemplary damages, plus interest and costs,

including attorney’s fees;

G. Award Plaintiffs such other and further relief as this Court deems just and

equitable.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiffs demand trial by

jury on all issues present in this civil action.


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Dated: December 20, 2012

Respectfully submitted, HONIGMAN MILLER SCHWARTZ AND COHN LLP Attorneys for Defendants

By: /s/ Deborah J. Swedlow J. Michael Huget (P39150) Deborah J. Swedlow (P67844) Charles W. Duncan, Jr. (P75288) 130 South First Street, Fourth Floor Ann Arbor, Michigan 48104 (734) 418-4268 [email protected] [email protected] [email protected]


BioDri of Michigan, LLC, et al, v Blue H20 Solutions, LLC, et al

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Transcript of BioDri of Michigan, LLC, et al, v Blue H20 Solutions, LLC, et al