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holding that Saliterman's analysis of consent was dicta and that consent is not required
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Civ. No. 03-6198 (RHK/AJB)
December 12, 2003
Christopher R. Morris and Laura J. McKnight, Bassford Remele, P.A., Minneapolis, Minnesota, for Plaintiff
Gregg M. Corwin, Gregg M. Corwin Associates Law Office, P.C., St. Louis Park, Minnesota, for Defendant
MEMORANDUM OPINION AND ORDER
Introduction
This matter comes before the Court on Plaintiff Metro Networks Communications's ("Metro") Motion for a Preliminary Injunction. Metro has moved the Court to enjoin Defendant John Zavodnick from breaching his noncompete and confidentiality covenants with Metro, from misappropriating Metro's confidential information and trade secrets, and from breaching his fiduciary duties. For the reasons set forth below, the Court will grant Metro's motion.
Although Metro's motion was styled as a motion for a temporary restraining order, both parties received notice of the motion and were heard by the Court. Therefore, the Court will construe the motion as one for a preliminary injunction. Fed.R.Civ.P. 65(a).
The following constitutes the Court's findings of fact and conclusions of law as required by Rules 52(a) and 65 of the Federal Rules of Civil Procedure.
Background
I. The Parties
Metro is a Delaware limited partnership with its principal place of business in Texas. (Compl. ¶ 1.) It is a successor in interest to Metro Traffic Control, Inc. (Ditmer Aff. ¶ 1.) Metro is in the business of providing traffic reports to radio stations in exchange for advertising time. (Id. ¶ 3.) Metro then sells that advertising time to sponsors and broadcasts the sponsor's advertisements with the traffic reports. (Id. ¶ 3, 6.) It describes its business as "unique" in that it sells "ten-second sponsorships (as opposed to 30 or 60 seconds)." (Id. ¶ 11.) One of Metro's largest customers for their traffic reports is Clear Channel Communications, Inc. ("Clear Channel"), which owns several radio stations in the Minneapolis-St. Paul, Minnesota, metropolitan area. (Ditmer Aff. ¶ 2; Zavodnick Aff. ¶ 18.)
Zavodnick, a Minnesota resident and citizen, was Metro's Director of Marketing from March 1995 until October 2003. (Zavodnick Aff. ¶¶ 4, 25.) In that position, he was responsible for selling Metro's advertising time and was paid on commission for the advertising contracts he brought in. (Id. ¶¶ 9, 12; Ditmer Aff. ¶ 10.) Zavodnick solicited and sold advertising in the Minneapolis-St. Paul market. (Zavodnick Aff. ¶ 13.) He was Metro's top seller in its Minneapolis office and approximately 20% of his business came from the Minneapolis-St. Paul market (Id.: Ditmer Aff. ¶ 14.)
In October 2003, Zavodnick left Metro to become Clear Channel's Regional Sales Manager. (Zavodnick Aff. ¶ 25.) Clear Channel has cancelled its traffic report contract with Metro effective January 1, 2004 and will no longer use outside businesses for its radio stations' traffic reports. (Id.,¶¶ 19, 27.) Clear Channel will now provide its own traffic reports and obtain its own advertising for its radio stations. (Id.) At Clear Channel, Zavodnick will sell advertising for its traffic reports in the Minneapolis-St. Paul metropolitan area. (Id ¶ 26; Ditmer Aff. ¶ 20; Ditmer Reply Aff. ¶ 12.)
II. The Metro-Zavodnick Agreement
In its business, Metro possesses confidential information. (Ditmer Aff. ¶ 8.) Such confidential information includes its sponsor lists, identities of current and prospective clients, sales techniques, training manuals, sales case studies, sales forms, market rates and profit margins. (See Ditmer Aff. ¶¶ 8, 17.) Metro considers this information to be confidential, proprietary and protectable trade secrets. (Id. ¶ 9.) It has taken steps to protect this information, including requiring its employees to execute noncompete and confidentiality covenants. (Id.)
Prior to his employment at Metro, Zavodnick signed a document entitled "Terms and Conditions of Employment" ("the Agreement"). This Agreement contained a covenant not to compete and a covenant to protect trade secrets and confidential information. (Ditmer Aff. ¶ 12, Ex. A (Agreement); see Zavodnick Aff. ¶ 4, Ex. A (Agreement).)
Zavodnick's covenant not to compete provides that Zavodnick will not engage in five enumerated "Restricted Activities" in the Minneapolis-St. Paul metropolitan area for one year after he leaves Metro. (Ditmer Aff. Ex. A (Agreement §§ 5.2-5.4).) The "Restricted Activities" are:
(1) the management and operation of traffic report gathering and broadcast;
(2) soliciting Sponsors [defined as advertisers] and dealing with accounts with respect thereto;
(3) soliciting Affiliates [defined as any person or organization with whom Metro has a contract to provide traffic information] to enter into any contract or arrangement with any person or organization to provide traffic report gathering or broadcast services;
(4) broadcasting traffic reports on television or radio; and
(5) forming or providing operational assistance to any business primarily engaged in the foregoing activities; provided that Restricted Activities shall exclude general newsgathering or general broadcast responsibilities which involve traffic reports only occasionally or incidentally, if rendered as a regular Employee of a television or radio station or network
(Id (Agreement § 5.3).)
Zavodnick's covenant to protect trade secrets and confidential information provides that Zavodnick will not disclose or use any of Metro's trade secrets or confidential information, including information concerning Metro's operations or its agreements with sponsors or affiliates. (Id. (Agreement § VI).) This confidentiality agreement is effective for two years after Zavodnick leaves Metro. (Id.)
Standard of Decision
Whether preliminary injunctive relief should be granted depends on an evaluation of the following factors: (1) the likelihood of the movant's success on the merits; (2) the threat of irreparable harm to the movant in the absence of relief; (3) the balance between that harm and the harm that the relief would cause to the other litigants; and (4) the public interest. Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981); see Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). A preliminary injunction is an extraordinary remedy, and the party seeking injunctive relief bears the burden of proving all the Dataphase factors.Watkins, 346 F.3d at 844.
Analysis
I. Likelihood of Success
Metro has moved for an injunction on the grounds that Zavodnick has breached two separate provisions of his Agreement: (1) the noncompete covenant and (2) the confidentiality covenant. The Court will begin itsDataphase analysis by assessing the likelihood of Metro's success on each of these contract claims in turn
Because the Court finds that Metro has satisfied its burden underDataphase with respect to these grounds, it need not reach Metro's other grounds for an injunction (i.e. misappropriation and breach of fiduciary duties).
A. Covenant Not to Compete
Metro argues that it is likely to succeed on its claim that Zavodnick has breached his noncompete covenant. In general, Minnesota courts disfavor noncompetition covenants. Kallok v. Medtronic. Inc., 573 N.W.2d 356, 361 (Minn. 1998). Noncompetition covenants are enforceable, however, if they serve a legitimate employer interest and are not broader than necessary to protect this interest. Id.; see Bennett v. Storz Broad. Co., 134 N.W.2d 892, 899 (Minn. 1965). Legitimate interests that may be protected include the company's goodwill, trade secrets and confidential information. Roth v. Gamble-Skogmo. Inc., 532 F. Supp. 1029, 1031 (D. Minn. 1982; see Guidant Sales Corp. v. Niebur. Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *7 (D. Minn. Oct. 18, 2001). The use of geographic limits based upon a former employee's sales area and employment restrictions limited to one year have been found to be reasonable. Niebur, Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *7.
While Zavodnick has made a late-breaking attempt to apply Texas law, rather than Minnesota law, to this Motion (see Letters from Corwin to the undersigned of 12/9/03 and 12/11/03), Zavodnick's brief cited no Texas law and he voiced no objection to the Court's stated assumption (at oral argument) that Minnesota law should be applied. In the Court's view, Zavodnick has clearly waived the Agreement's Texas choice of law provision. In any event, differences in the laws of Minnesota and Texas regarding the enforcement of noncompete covenants would not be outcome determinative in this case. See, e.g., Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642, 645-47, 647 n. 14 (Tex. 1994); Curtis v. Ziff Energy Group. Ltd., 12 S.W.3d 114, 118-19 (Tex.App. 1999);Ireland v. Franklin. 950 S.W.2d 155, 157-58 (Tex.App. 1997);Guy Carpenter Co. Inc. v. Provenzale, 334 F.3d 459, 464-66 (5th Cir. 2003); Am. Express Fin. Advisors. Inc. v. Scott 955 F. Supp. 688, 691-93 (N.D. Tex. 1996); (see also Letter from Morris to the undersigned of 12/10/03). Zavodnick's promise not to compete was in exchange for Metro's non-illusory promise to disclose confidential information. (See Ditmer Aff. Ex. A (Agreement § 5.2)); see also Guy Carpenter. 334 F.3d at 466.
Metro argues that the noncompete covenant serves its legitimate business interests in preventing the disclosure of its confidential marketing and sales information and the unfair diversion of its customers' goodwill and patronage. (PL's Mem. in Supp. at 10.) It also argues that its noncompetition covenant is narrowly drawn to meet its interests by restricting Zavodnick from employment relating to traffic report advertising in the Minneapolis-St. Paul metropolitan area for one year. (Id.)
Zavodnick responds with three arguments as to why the noncompete covenant is unenforceable. First, Zavodnick contends that the scope of the covenant's restrictions are too broad. Second, he argues that he did not consent to the covenant's assignment from Metro Traffic to Metro Networks. Finally, he asserts that his employment with Clear Channel does not breach the covenant because Clear Channel is not in direct competition with Metro — Clear Channel will only provide traffic reports for itself, it does not compete with Metro for the traffic report business of other radio stations. (Def.'s Mem. in Opp'n at 9-13.)
After consideration of the record before it, the Court finds that Metro is likely to prevail on its claim that Zavodnick has breached his noncompete covenant. First, Metro has shown that the covenant is enforceable. See Kallok, 573 N.W.2d at 361. The noncompete covenant restricts Zavodnick from:
This conclusion is not intended to provide any opinion as to the ultimate merits of Metro's claim. The Court reaches this conclusion based upon the limited record available in these early stages of the proceeding.
(1) the management and operation of traffic report gathering and broadcast;
(2) soliciting Sponsors [defined as advertisers] and dealing with accounts with respect thereto;
(3) soliciting Affiliates [defined as any person or organization with whom Metro has a contract to provide traffic information] to enter into any contract or arrangement with any person or organization to provide traffic report gathering or broadcast services;
(4) broadcasting traffic reports on television or radio; and
(5) forming or providing operational assistance to any business primarily engaged in the foregoing activities; provided that Restricted Activities shall exclude general newsgathering or general broadcast responsibilities which involve traffic reports only occasionally or incidentally, if rendered as a regular Employee of a television or radio station or network
(Ditmer Aff. Ex. A (Agreement § 5.3).) These restrictions serve Metro's legitimate business interests in protecting its goodwill, its confidential information concerning its traffic report operations, and its sponsors. Roth, 532 F. Supp. at 1031; Bennett, 134 N.W.2d at 898 (finding that employers have an interest in protecting "against the deflection of trade or customers by the employee"). Metro's noncompete covenant also reasonably limits Zavodnick's employment only for one year in the Minneapolis-St. Paul metropolitan area. (Ditmer Aff. Ex. A (Agreement § 5.4)); Niebur, Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *7.
Second, Metro has shown that the noncompete covenant has been breached. Under the covenant, Zavodnick is barred from, inter alia, managing traffic report broadcasts and soliciting Metro's sponsors in the Minneapolis-St. Paul metropolitan area for one year after leaving Metro. (Ditmer Aff. Ex. A (Agreement § 5.3(1), (2).) Simultaneously with his resignation from Metro, however, Zavodnick accepted employment selling advertising for Clear Channel's radio stations in the Minneapolis-St. Paul market. (Zavodnick Aff. ¶¶ 25, 26.) Metro has shown that Zavodnick will be involved in managing Clear Channel's traffic report broadcasts. (Ditmer Aff. ¶¶ 10, 20.) Moreover, Metro has shown that Zavodnick has, in fact, solicited one of Metro's sponsors, Treasure Island Casino, for a Clear Channel traffic report advertisement. (Ditmer Reply Aff. ¶ 12.)
Zavodnick's counterarguments are unpersuasive. First, Zavodnick argues that the noncompete covenant's "Restricted Activities" are too broad. Noncompetition agreements are not enforceable if they are broader than necessary to protect the employer's business interests. Kallok, 573 N.W.2d at 361. The "Restricted Activities" numbered one through four listed above are not broader than necessary to protect Metro's business interests. The record shows that Metro is in the business of providing traffic reports and sells "unique . . . ten-second sponsorships (as opposed to 30 or 60 seconds)." (Ditmer Aff. ¶ 11.) The record also shows that Zavodnick had significant traffic report advertising sales in the Minneapolis-St. Paul area. (Id. ¶ 14; Zavodnick Aff. ¶ 13.) The covenant's "Restricted Activities" only restrict Zavodnick from traffic report related management, solicitation and broadcasting in the Minneapolis-St. Paul metropolitan area for one year. (Id. Ex. A (Agreement §§ 5.3(1)-(4), 5.4).) Zavodnick is not, however, restricted from these activities outside the Minneapolis-St. Paul metropolitan area. Nor is he restricted from soliciting sponsors for advertisements not involving traffic reports within this area. For example, Zavodnick is free to solicit sponsors for a thirty-second advertisement played between songs at Clear Channel's Minneapolis-St. Paul metropolitan area radio stations. Therefore, Metro has shown that these restrictions are not broader than necessary to protect its legitimate interests.
Additionally, "Restricted Activity" number five does not apply to Zavodnick in this case. By the admissions of both sides, Clear Channel is not a business "primarily engaged" in traffic report broadcasting or advertising. (Ditmer Aff. Ex. A (Agreement § 5.3(5); Zavodnick Aff. ¶ 24, 27; Ditmer Aff. ¶ 20-25.) Rather, Clear Channel is primarily engaged in the business of managing radio stations, and has only recently decided to enter the traffic report business. (Zavodnick Aff. ¶ 24, 27; Ditmer Aff. ¶ 20-25.) Therefore, contrary to Zavodnick's claim, the noncompete covenant does not prohibit him from working for companies, such as Clear Channel, that provide traffic reports — so long as the companies are not primarily engaged in the management of traffic reports or solicitation of Metro's sponsors. (See Ditmer Aff. Ex. A (Agreement § 5.3(5).)
Second, Zavodnick argues that the noncompete covenant cannot be assigned without his consent. Zavodnick signed his Agreement with Metro Traffic Control, Inc., but in November 1997 Metro Traffic began operating as Metro Networks Communications. (Zavodnick Aff. ¶ 3, 5, Ex. A (Agreement); Hillman Aff. ¶ 2.) Citing Saliterman v. Finney. 361 N.W.2d 175 (Minn.Ct.App. 1985), Zavodnick contends that Metro Networks cannot enforce the noncompete covenant because he never consented to its assignment from Metro Traffic. (Zavodnick Aff. ¶ 8.) Metro responds that Saliterman does not require Zavodnick's consent and that the change from Metro Traffic to Metro Networks was in name only. (PL's Reply Mem. in Supp. at 2-3; Hillman Aff. ¶ 2.) Metro is correct. The Saliterman court held that "a covenant not to compete in an employment agreement is assignable ancillary to the sale of a business to protect the goodwill of that business." 361 N.W.2d at 178; see also Guidant Sales Corp. v. George. Civ. No. 01-1638 (MJD/JGL), 2001 WL 1491317, at *6 (D. Minn. Nov. 19, 2001) (finding that Saliterman's holding is not limited to the sale of businesses, but also applies in cases of corporate name changes). In dicta, the Saliterman court also found that the employee had consented to the assignment. 361 N.W.2d at 178. Cases subsequent to Saliterman. however, have not required the employee's consent to the assignment of noncompete covenants, see BFI- Portable Servs., Inc. v. Kemple, No. C5-89-1172, 1989 WL 138978, at *2 (Minn.Ct.App. Nov. 21, 1989) (unpublished);George, Civ. No. 01-1638 (MJD/JGL), 2001 WL 1491317, at *6, and the Court declines to do so here.
Finally, Zavodnick asserts that his employment with Clear Channel does not violate the noncompete covenant because Clear Channel is not in direct competition with Metro. (Def.'s Mem. in Opp'n at 12-13.) While it may be true that Clear Channel's radio stations are off the market for Metro's traffic reports, there is likely to be competition between Metro and Clear Channel in the sponsor advertising market. For example, now that Zavodnick is at Clear Channel, Minneapolis-St. Paul area sponsors can choose to spend their advertising dollars on Clear Channel's radio stations, Metro's affiliate radio stations, both company's radio stations, or neither. As such, Clear Channel is very much in competition with Metro for Minneapolis-St. Paul area sponsors' business.
B. Covenant To Protect Trade Secrets and Confidential Information
Metro also asserts that it is likely to prevail on its claim that Zavodnick has violated the covenant to protect trade secrets and confidential information. "A trial court may issue an injunction against a party who has, in violation of an explicit agreement . . . wrongfully used confidential information or trade secrets obtained from his employer." Cherne Indus., Inc. v. Grounds Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979) (citations omitted); see Saliteiman. 361 N.W.2d at 178. "Confidential information is that which an employee knew or should have known was confidential."Jostens. Inc. v. Nat. Computer Sys., Inc., 318 N.W.2d 691, 702 (Minn. 1982) (citation omitted).
Metro contends that Zavodnick had access to its confidential information, such as its sponsor lists and identities of its current and prospective clients. (Ditmer Aff. ¶¶ 8, 17.) Metro asserts Zavodnick knew that this information was confidential because Metro required him to execute a confidentiality covenant. (Id. ¶ 9.) Zavodnick responds that Metro's information is not confidential because anyone listening to the radio would know the identity of Metro's sponsors. (Zavodnick Aff. ¶ 22.) He also contends that he has no intention of using the information he obtained and that Clear Channel has instructed him not to use any of Metro's confidential information. (Id. ¶¶ 22-24, 28, Ex. B.) Zavodnick admits, however, that he knew the identity of Metro's sponsors and their preferred advertising schedules. (Id. ¶ 22.)
Metro has shown that it is likely to succeed in proving that Zavodnick has violated his confidentiality covenant. The covenant provides that Zavodnick shall not disclose or use any of Metro's confidential information, including information concerning Metro's operations or its agreements with sponsors or affiliates. (Ditmer Aff. Ex. A (Agreement § VI).) By requiring the confidentiality covenant, Metro put Zavodnick on notice that information concerning Metro's traffic report operations, including its sponsors' identities and their agreements, was confidential. See Jostens. 318 N.W.2d at 702; Cherne. 278 N.W.2d at 93, 94; Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 92 (Minn.Ct.App. 1985); Aries Info. Sys., Inc. v. Pacific Mgt. Sys. Corp., 366 N.W.2d 366, 369 (Minn.Ct.App. 1985). Metro has shown that Zavodnick has, in fact, breached his confidentiality covenant by soliciting traffic report advertising from Treasure Island Casino, one of Metro's sponsors. (Ditmer Reply Aff. ¶ 12.)
See supra n. 5.
Zavodnick argues that information concerning Metro's sponsors is not confidential because anyone listening to the radio would know their identities. This argument is unpersuasive. "[T]he presence of an alternate means of obtaining the names of [Metro's sponsors] without more, is not sufficient to establish that the information is generally ascertainable." Cherne, 278 N.W.2d at 90. Furthermore, no one listening to the radio would know who at the sponsor is responsible for purchasing advertising, the going rate for traffic report advertisements, or the sponsor's preferred advertising schedules. (See Zavodnick Aff. ¶ 22.) Thus, Metro has shown that its information concerning its arrangements with sponsors is confidential and that it is likely to succeed on its claim that Zavodnick has breached his confidentiality covenant. Because Metro is likely to prevail on its claim that Zavodnick breached the covenant with respect to protecting confidential information, the Court will not reach the issue of whether Zavodnick has also breached the covenant with respect to protecting trade secrets.
II. Irreparable Harm
"The basis of injunctive relief in the federal courts has always been irreparable harm and the inadequacy of legal remedies."Watkins, 346 F.3d at 844 (citation and internal quotations omitted). Irreparable harm may be inferred from the breach of a valid restrictive covenant. See Niebur, Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *8; Medtronic. Inc. v. Gibbons, 527 F. Supp. 1085, 1090-91 (D. Minn. 1981), aff'd 684 F.2d 565 (8th Cir. 1982);Overholt Crop Ins. Serv. Co., Inc. v. Bredesoa, 437 N.W.2d 698, 701 (Minn.Ct.App. 1989) (citing Thermorama. Inc. v. Buckwold, 125 N.W.2d 844, 845 (Minn. 1964)).
The present case need not be based on this inference alone, for Metro has carried the burden of establishing the threat of irreparable harm.See Gibbons, 527 F. Supp. at 1091. Metro has shown that both the noncompete and confidentiality covenants have been violated by Zavodnick's solicitation of Metro's sponsors. (See Ditmer Reply Aff. ¶ 12.) Given Metro's legitimate business interests, if no restraint were to be imposed, then Metro would likely lose valuable business relationships in the traffic report advertising market. See Niebur, Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *8;Thermorama, 125 N.W.2d at 845 (finding irreparable harm where a plaintiff "may well lose a number of customers for whom it has not had a fair opportunity to compete, and may forfeit as well future benefits which are difficult to evaluate"). Some of Metro's sponsors, like Treasure Island Casino, may purchase advertising from Zavodnick. It would be extremely difficult, however, to calculate all the sales Metro may lose over the next year. See Gibbons, 527 F. Supp. at 1092. Therefore, Metro has shown the threat of irreparable harm.
III. Balance of Harms
If an injunction is not issued, Metro has shown that Zavodnick's breach of the noncompete and confidentiality covenants may cause Metro to lose sponsors and have its confidential information disseminated to Clear Channel. If an injunction is issued,
Zavodnick will lose his ability to manage traffic reports and solicit Metro's traffic report sponsors for one year in the Minneapolis-St. Paul metropolitan area. The record shows, however, that Zavodnick is an individual of recognized sales skills and his Agreement does not restrict him from selling advertising outside of traffic reports. Whether or not he ultimately prevails in this matter, his demonstrated abilities in areas outside the scope of the noncompete and confidentiality covenants should not adversely impair his employment opportunities. See Millard v. Elec. Cable Specialists, 790 F. Supp. 857, 863 (D. Minn. 1982). Therefore, the balance of harms favors issuing an injunction.
IV. Public Interest
Finally, the public interest is served by upholding valid restrictive covenants. Id.: see Niebur, Civ. No. 01-1772 (DWF/AJB), 2001 WL 1636502, at *8; George, Civ. No. 01-1638 (MJD/JGL), 2001 WL 1491317, at *8.
Zavodnick also alleges that a preliminary injunction is inappropriate because Metro comes to this Court with unclean hands. Before granting an equitable remedy, the Court must first determine whether "he who seeks equity has done equity." Prow v. Medtronic. Inc., 770 F.2d 117, 122 (8th Cir. 1985) (citations omitted). Under Minnesota law, the doctrine of unclean hands will only be invoked when a party's conduct is unconscionable either by reason of a "bad motive" or in the benefits to that party or in the injury to others. Foy v. Klapmeier. 992 F.2d 774, 779 (8th Cir. 1993). Zavodnick makes several allegations of Metro's unclean hands, (Def.'s Mem. in Opp'n at 17-18; Zavodnick Aff. ¶ 14-17, 21), but none show that Metro's conduct is unconscionable either as a result of a "bad motive" or in the benefits to Metro or injury to others, Foy. 992 F.2d at 779. Therefore, Metro's Motion is not barred by the doctrine of unclean hands.
In summary, Metro has carried its burden under Dataphase, Accordingly, the Court will grant Metro's motion for a preliminary injunction.
Conclusion
Based on the foregoing, and on all of the files, records and proceedings herein, IT IS ORDERED that Plaintiff Metro Networks Communications's Motion for a Temporary Restraining Order (Doc. No. 2), which the Court construes as a Motion for a Preliminary Injunction, is GRANTED as follows:
1. Defendant John Zavodnick is enjoined, for a period of one year after departing Plaintiff and in the Minneapolis-St. Paul metropolitan area, from:
a. Managing or operating traffic report gathering and broadcasting services;
b. Soliciting Plaintiffs sponsors and dealing with accounts with respect thereto;
"Sponsor" is defined as any and all advertisers (including their subsidiaries and affiliates) whose commercial material is to be or is incorporated in any one or more programs or announcements, live or recorded, broadcast over Metro's facilities or by Metro.
c. Broadcasting traffic reports;
d. Using or disclosing Plaintiffs confidential information, including information concerning Plaintiffs operations or its agreements or associations with its sponsors or affiliates.
"Affiliate" is defined as any organization, entity or person with whom Metro has a contract or other arrangement to provide traffic information, whether by broadcast, computer or any other means.
2. Plaintiff shall post bond of twenty-five thousand dollars ($ 25,000.00) for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined. Upon the posting of the bond, the injunction provided for herein will become effective.
If either party disputes the amount of the required bond, it shall apply to the Court, by motion, for a modification.
3. Defendant shall provide a copy of this Memorandum Opinion and Order to his supervisor at Clear Channel Communications.