United States District Court, D. New Jersey
MCNULTY. U.S.D.J. 
the Court is a renewal of a motion for a temporary
restraining order (DE 56) brought on by an order to show
cause filed by the plaintiff, ADP, LLC ("ADP"). The
defendant, David Trueira, left his employment at ADP and
joined a rival firm, Ultimate Software Group, Inc.
("Ultimate"). While at ADP, Trueira entered into
three agreements containing restrictive employment covenants.
Based on those covenants, ADP asked this Court to enjoin
Trueira, for a period of one year, from providing services
for Ultimate in the same geographic territory he covered for
ADP and from soliciting business from any client of ADP or
encouraging any clients to cease doing business with ADP.
prior decision, I granted the motion in part and denied it in
part, finding that two of the employee agreements (the
"SRA" and the "NDA") were enforceable,
but that a third, more restrictive one (the "RCA")
was not enforceable. (DE 45). Then, in a case involving
another employee named Rafferty, the Third Circuit disagreed,
holding that the RCA was enforceable. In a separate order,
the Third Circuit vacated my prior order and remanded for
further proceedings in light of the Rafferty decision. (DE
remand, ADP has now renewed its motion for an injunction,
citing the restrictions of the now-enforceable RCA. (DE 56) I
heard additional oral argument from counsel, who did not seek
to introduce any further testimony. APD's motion is
GRANTED to the extent stated herein.
ease of reference, I will here reprint from the prior Opinion
my findings of fact, which have not changed.
March 16, 2018, I denied ADP's request for a temporary
restraining order but ordered expedited discovery and
scheduled the matter for a hearing on the preliminary
injunction application. (DE5). On April 18, 2018, I held an
evidentiary hearing. (DE 32). The Court heard live testimony
from two witnesses: David Trueira, who testified on his own
behalf, and Kate Whittier, the Vice President of Sales for
Major Account Services for ADP and Trueira's former
supervisor, who testified on behalf of ADP. I accepted
certifications and declarations from witnesses in lieu of
direct testimony. Trueira and Whittier were cross-examined
and also gave redirect testimony. The parties submitted
documentary exhibits, as well as deposition transcripts.
After the hearing, the parties submitted proposed findings of
fact and conclusions of law. (DE 38 86 39).
course of the hearing, I had the opportunity to observe the
demeanor of the witnesses and assess their credibility. In
doing so, I considered such usual factors as the
witnesses' apparent ability to recall; their general
affect and demeanor; the apparent influence of bias or
interest in shaping the narrative; the inherent plausibility
of the accounts; and the extent to which their testimony fit
with other evidence. I kept in mind that discovery, to date,
has necessarily been limited. I have accepted the bulk of
both sides' factual contentions. Whittier's
testimony, to be sure, had a pro-plaintiff slant. I had more
difficulty, however, with the credibility of Trueira, who
sometimes was evasive (employing such qualifications as
"vaguely") and sometimes selective in what he
following facts emerged from the evidentiary hearing and
Employment before working at ADP
Prior to working at ADP, Trueira had been working as a
salesperson in business marketing and advertising for about
seven years. (Trueira Cert. ¶ 19); see also
(Tr. 50:19-22). He had never before worked in the areas of
payroll and human capital management. (Id. at
of Trueira's knowledge, training, and experience in the
area of payroll and human capital management began with ADP.
(Id. at 50:25-51:2).
is a Delaware limited liability company with its principal
place of business in Roseland. New Jersey. (Compl. (¶
is a provider of "business outsourcing and software
services to clients, including human resources, payroll, tax,
and benefits administration services." (Id. at
offers its services internationally and across the United
States, including in New Jersey. (Id.).
Employment with ADP
August 6, 2012, Trueira began employment with ADP in its
Salem, New Hampshire office. (Trueira Cert. ¶ 2). On
February 9, 2018, he resigned from ADP and immediately began
his employment with Ultimate. (Id. ¶¶ 42
Employment in ADP's Total Source Division
the beginning of his employment with ADP, Trueira sold
ADP's Total Source products and services. (Id. at
Total Source is a professional employer organization program
through which ADP would provide human resource services,
employee benefits administration, and payroll services to
employers. (Id.). Through outsourcing, ADP would
step into the role of co-employer of each client's
personnel for the purposes of payroll, employee benefits, and
other aspects of employee management. (Id.); see
also (Tr. 28:13-17 & 57:20-25).
selling Total Source products and services, Trueira focused
on employers of 25 to 75 employees. (Trueira Cert. ¶ 5).
Trueira recalls that he "rarely proposed and never sold
Total Source products and services to employers with 200 or
more employees." (Id.).
Approximately 70% of Trueira's business (solicitation and
sales) was with existing ADP clients. (Id. ¶
6). The remaining 30% of his business was with new ADP
Trueira solicited clients in two counties in northern
Massachusetts and certain areas of Boston. (Id.
During Trueira's time as a Total Source sales associate,
ADP assigned him an electronic database. (Id.).
Known as the "SalesForce database," the database
contained client and prospective client information,
including a client's name, contact information, number of
employees, and telephone numbers. (Tr.32:16-33:6).
SalesForce database identified approximately two hundred
prospective clients for Trueira. (Trueira Cert. ¶ 7).
Trueira was also referred leads by sales associates in
ADP's Small Business Division and Major Accounts
late June/early July 2015, about three years after Trueira
began employment with ADP as a sales associate, he was
promoted to a Sales Executive position in ADP's Total
Source Division. (Id. ¶¶ 4 & 8;
Whittier Decl. ¶ 3).
about two years, Trueira managed a team of approximately six
sales associates who sold Total Source products and services
to ADP clients and prospective clients in northern
Massachusetts and New Hampshire. (Trueira Cert. ¶ 8).
During this period, Trueira's team "rarely made a
proposal and never sold Total Source products and services to
any employer having 200 or more employees."
(Id. ¶ 9).
Employment in ADP's Comprehensive Services
late June/early July 2017, Trueira was transferred to a Sales
position in ADPs Comprehensive Services
Division. (Id. ¶ 10). Trueira was in
that position for approximately seven months before he left
Trueira's supervisor during his time in Comprehensive
Services was Kate Whittier. (Tr. 29:17-19).
a Comprehensive Services Manager, Trueira was considered an
"overlay" sales representative who worked with
District Managers who sold Workforce Now. (Trueira Cert.
¶ 13; Tr. 29:13-16).
ADPs Workforce Now is a technology platform for software that
provides basic payroll and tax services. (Tr. 29:20-24).
Individual modules can be added to that platform, including
modules for applicant tracking, performance management,
analytics, document storage, human resources, and time and
attendance. (Id. at 29":5-3O:l8). Each module
is an add-on to the basic Workforce Now product.
(Id. at 74:12-14).
Trueira never sold ADP's Workforce Now product and
services. (Trueira Cert. ¶ 17; see also Tr.
ADPs Comprehensive Services division sells such individual
modules and services that function on the WorkForce Now
platform. (Id. at 30:23-31:10). Such
services were sold individually, not as a bundled package.
(Trueira Cert. ¶ 11).
Comprehensive Services therefore required ADP's Workforce
Now as a platoon. (Tr. at 30:19-22; 31:7-9; 59:8-11).
Total Source, however, does not require Workforce Now as a
platform. (Id. at 59:5-7).
Comprehensive Services is similar to Total Source but lacks
the professional employer organization feature. (Trueira
Cert. ¶ 11; see also Tr. 58:18-24 (describing
Comprehensive Services as "people support" without
the professional employee organization structure)).
Comprehensive Services is an outsourcing by the
client/employer of payroll processing and other services.
(Trueira Cert. ¶ 11; see alsoTr. 58:15-59:4;
Whittier Decl. ¶ 3) (describing Comprehensive Services
as "business process outsourcing services")). ADP
would not, however, become a co-employer, as it did with
Total Source. (Trueira Cert. ¶ 11).
Comprehensive Services client would be assigned a
"dedicated person" from ADP to assist it in a
certain area or areas. (Tr. 29:8-11).
After Trueira sold clients Comprehensive Services products,
he did not remain responsible for managing clients. ADP would
"routinely assign a Relationship Manager with whom the
client would deal concerning the Comprehensive Services
provided to it." (Trueira Cert. ¶ 12).
Trueira would, however, interact with Comprehensives Services
clients when they would request assistance with
implementation issues. (Id.).
From July 2017 to December 2017, Trueira worked with four
District Managers, and from January 2018 to early February
2018, he worked with two District Managers. (Id.
Trueira would solicit business from the clients to which he
was directed by the District Managers. (Id. ¶
14; Tr. 32:4-8).
Trueira was not directly assigned a specific geographic
territory. (Trueira Cert. ¶ 16). Rather, his territory
was the territory of the District Managers for whom he served
as an overlay. (Id. ¶¶ 15 & 16).
four District Managers with whom Trueira initially worked
sold Workforce Now in Northern Massachusetts, New Hampshire,
Maine, and the greater Boston area. [Id. ¶ 16;
see also Whittier Decl. ¶ 3).
While working with those District Managers, Trueira sold
Comprehensive Services to two existing ADP clients in New
Hampshire. (Trueira Cert. ¶ 15 & 16).
Trueira did not make any sales of Comprehensive Sources while
working with the two District Managers in January and
February 2018. (Id. ¶ 13).
a Comprehensive Services Manager, Trueira met with
approximately fifty clients. (Id. ¶ 15). The
ADP clients and prospective clients that Trueira solicited
were in Northern Massachusetts, New Hampshire, Maine, and the
greater Boston area. (Id.).
More than 80% of the companies with whom he met were existing
ADP clients. (Id.).
During the sales process for Workforce Now or Comprehensive
Services, District Managers provide demonstrations of the
products and sometimes provide documents with product
information. (Tr. 105:17-106: 1). However, ADP does not
require the potential client to sign a confidentiality
agreement regarding the documents, demonstration, or pricing
information. (Id. at 106:2-17).
After a company signs onto ADP and becomes a client, it is
provided a sales order which incorporates a Master Service
Agreement. (Id. at 120:15-17 & 123:6-10). That
Master Service Agreement includes a section guarding
ADP's confidential and proprietary information.
(Id. at 118:18-119:17).
Trueira did not have a Salesforce database of prospective
clients assigned directly to him. (Trueira Cert. ¶ 14).
Trueira did have access to the Salesforce database (or client
list) of each of the District Managers for whom he acted as
an overlay. (Id. ¶ 38; see also Tr.
32:19, 39:9-10, 65:3-4 & 93:7-10.).
Trueira would access these databases, generally to make a
note about a meeting or discussion with a client. (Trueira
Cert. ¶ 38).
Trueira did not have access to any type of database
identifying all of ADP's clients worldwide or all of
ADP's clients nationwide in one document. (Tr. 93:15-21).
Trueira did not have his own access to a database that
identified all of ADPs clients in a specific state, but did
have access to the state-specific information in his District
Managers' databases. (Id. at 93:22-94:10).
Trueira sat in on feedback and round table discussions that
were open to all of Comprehensive Services' District
Managers. (Id. at 111:10-17).
During his time at Comprehensive Services, Trueira created a
"pipeline," an Excel spreadsheet that tracked and
documented potential sales of Comprehensive Services.
(Id. at 33:7-10 & 38:1-3; see also
Whittier Suppl. Decl. Ex. 1).
pipeline "show[ed] what potential business may or may
not be coming in." (Tr. at 33:17-18).
information in the pipeline was a combination of information
from the District Managers and information from Trueira.
(Id. at 34:22-35:1).
Trueira provided the pipeline to his supervisor, Whittier, on
a weekly or biweekly basis. (Id. at 33:10-11).
pipeline included the following information: company name,
location, contact person, the title of the contact person,
"roll call," employee count, product information,
information on the stage of the sales process, who referred
the company, and whether the company is a prospect or a
client. (Id. at 35:2-14; 36:5-10 & 36:21-37:12).
"Roll call" column referred to the potential
revenue that Trueira expected to generate from that
particular client. (Id. at 35:15-36:4).
pipeline distinguished between "a pure prospect of ADP
Major Accounts or ... a client of ADP Major Accounts."
(Id. at 36:12-14; see also Trueira Dep.
66:6-14 (explaining that the list includes ADP clients that
Trueira considers to be a prospect for Comprehensive
Services, and prospects that may be candidates for
Comprehensive Services that are not existing ADP clients)).
of the companies identified as existing ADP clients on the
last pipeline Trueira prepared were already on Workforce Now.
(Tr. at 36:19-20, 61:10-20).
companies listed in the pipeline were identified not as
existing ADP clients but as "prospects."
(Id. at 61:13-52:3). One prospect company was not an
ADP client. The other was an ADP Total Source client, but not
a Workforce Now client. (Id. at 62:4-10).
"product" column identified the particular product
that Trueira and the District Manager thought they could sell
to the client or prospect. (Id. ¶ 36:21-37:1).
"product" column listings did not include WorkForce
Now. (Id. at 92:19-23).
"stages" column identified the stage of the sales
process, and the "referred by" column identified
the District Manager that Trueira was working with.
(Id. at 37:2-7).
pipeline also included a "month" column which was
an estimate of when the business would come in for ADP,
assuming ADP "won the business." (Id. at
final column of the pipeline, "notes," contained
information on the next steps that were going to be taken and
where Trueira and the District Manager "were in the
process." (Id. at 37:19-25).
top portion of the pipeline identified companies that Trueira
was actively soliciting. (Id. at 86:7-11).
bottom portion of the pipeline identified "leads,"
which were companies that Trueira and the District Manager
considered to be potential clients. (Id. at
Companies would appear on the "leads" list either
because a meeting had been held with that company or because
someone at ADP had recommended going after that account.
(Id. at 60:17-21).
Training While at ADP
When Trueira began working in ADP's Total Source
Division, he received formal and informal new-hire training
in the Total Source product. (Tr. 58:2-11; see also
Trueira Cert. ¶ 19). The formal training consisted of
classes, while the informal training consisted of
Trueira's shadowing other employees who were selling
Total Source. (Tr. 58:2-11).
the Total Source Division, Trueira also had "several
trainings," including a leadership development training
in 2014 which was given by Total Source group. (Id.
at 58:12-14 & 78:18-79:5).
Through Blackboard Integration, a training site that ADP
uses, Trueira attended thirteen or fourteen different courses
while he was selling Total Source. (Id. at 79:9-18).
Every time Trueira's role at ADP changed, he would
receive training specific to the new products and services he
was dealing with. (Trueira Cert. ¶ 19).
When Trueira began to work in the Comprehensive Services
Division, he did not receive any formal training. (Tr.
59:12-14). He recalled receiving informal training by
watching videos and observing demonstrations. [Id.
Whittier testified credibly that Trueira did have formal
training "in certain aspects" of Comprehensive
Services. [Id. at 82:11-13). She explained that she
had instructed Trueira to participate in a series of
trainings that the Vice President of Computer Services had
set up. (Id. at 82:4-10).
also testified credibly that Trueira had formal training in
executive conversations, "a training on gaining access
at the C level and how a CFO thinks and how to be effective
at basically getting them to meet with you and what was on
top of their mind." (Id. at 82:18-20).
to WorkForce Now specifically, Trueira testified that he
never received any formal training. (Id. at
Trueira also acknowledged, however, that when he first began
to work in Comprehensive Services, he had asked Whittier if
he could attend some demonstrations of WorkForce Now, a
request which she granted. (Id. at 31:14-21).
Trueira recalled watching videos and observing live
demonstrations of the WorkForce Now product. (Id. at
31:11-21 & 59:22-25).
Whittier agreed that Trueira had "on-the-job training
like watching demonstrations" of WorkForce Now that were
given to clients, and also observed demonstrations of
WorkForce Now in the office, as per his request.
(Id. at 82:22-83:8).
Whittier did not direct Trueira to get training in
Comprehensive Services or in Workforce Now through the