United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay United States District Judge.
the court is Plaintiff Le-Vel Brands, LLC’s Motion for
Preliminary Injunction (Doc. 14), filed February 9, 2019. The
court determined that a hearing was necessary to assist in
the resolution of this matter, and on February 26-27, 2019,
the court held a hearing on the motion. After careful
consideration of the motion, response, reply, evidence,
record, testimony, arguments at the hearing, and applicable
law, the court grants in part and denies in
part Plaintiff’s Motion for Preliminary
Injunction (Doc. 14).
Factual and Procedural Background
January 1, 2019, Le-Vel (“Plaintiff” or
“Le-Vel”) filed its Original Petition and
Verified Application for Temporary Restraining Order,
Temporary Injunction, and Permanent Injunction (Doc. 1-3)
(“Petition”) in the 68th Judicial District Court
of Dallas County, Texas. In its Petition, it alleges several
causes of action against Defendant Dustin Bland
(“Defendant” or “Mr. Bland”): (1)
breach of contract; (2) business disparagement; (3)
defamation; (4) tortious interference with existing
contracts; and (5) tortious interference with prospective
business relations. These claims stem from Defendant’s
alleged violation of the restrictive covenants provided in an
agreement between the parties, referred to as the Promoter
Agreement (“Agreement”). On January 11,
2019, Associate Judge Monica Purdy granted Plaintiff’s
Application for a TRO, which expired on January 28, 2019.
January 18, 2019, Defendant removed the action based on
diversity jurisdiction. On January 23, 2019, Plaintiff asked
the court to extend the TRO (Doc. 4), but the court denied
its request (Doc. 10). On February 9, 2019, Plaintiff filed a
Motion for Preliminary Injunction (Doc. 14). In its motion,
Plaintiff contends that Defendant became a promoter in April
2017 “by affirmatively agreeing to the terms of the
Promoter Agreement.” Section 3.19 of the Agreement
(“Non-Solicitation Provision”) states:
During the term hereof and for a period of twelve (12) months
after the termination or expiration of the relationship
between a Promoter and Le-Vel, for any reason whatsoever, the
Promoter shall not on his/her own behalf or on behalf of any
other person, partnership, association, corporation or other
entity, directly or indirectly:
a) Attempt to obtain the withdrawal from Le-Vel or its
affiliates of any of their respective employees, independent
contractors or Promoters[;]
b) Hire any employee, independent contractor or Promoter of
Le-Vel or its affiliates[;]
c) Approach or solicit any customer/client, potential
customer/client, maturing business opportunity, manufacturer
or supplier of Le-Vel or any of its affiliates, in order to
attempt to direct any of the same away from Le-Vel or its
d) Induce or persuade any customer/client, potential
customer/client, maturing business opportunity, manufacturer
or supplier of Le-Vel or any of its affiliates, agent or
other person under contract or otherwise associated or doing
business with Le-Vel or its affiliates to reduce or alter any
such association or business with Le-Vel or its affiliates;
e) Solicit or divert any business away from Le-Vel or its
f) Otherwise interfere or attempt to interfere with any of
the contractual business or economic relationships of Le-Vel
or its affiliates with other parties.
agreed that this provision shall survive the termination or
expiration of the Agreement.
by agreeing to the Policies and Procedures and, thus,
assenting to section 1.2, a Promoter agrees that “under
no circumstance [will he or she] disparage or infringe upon
the LeVel name, image or reputation in connection with the
promotion of Le-Vel products or misappropriate any
confidential or proprietary information or trade secrets
(including Customer and Promoter names and address lists) for
use by the Promoters or others.”
December 28, 2018, at 12:49 p.m., Le-Vel sent Mr. Bland an
e-mail, informing him that it “received complaints from
the field that [he had] gone (or [was] planning to go) to
another direct sales company (Isagenix), ” and asked
him to provide information related to these allegations so
the company could investigate the claims. Approximately three
hours later, Le-Vel sent Mr. Bland a second e-mail, titled
“Termination/Cease and Desist – Violation of
Le-Vel’s Non-Solicitation Agreement, ” stating
that the company believed “with reasonable certainty,
that [he was] engaging in blatant violations of the
Non-Solicitation Agreement by contacting Le-Vel Promoters in
[an] attempt to direct them away from Le-Vel and over to
Isagenix [a competing health and wellness company] via Zoom
Video Conference meetings and other written and verbal
communications.” Further, Le-Vel warned Mr. Bland that
failure to cease and desist his conduct would result in legal
action, but, despite this warning, Plaintiff contends that he
continued to solicit its Promoters and customers.
February 21, 2019, Defendant filed his Motion to Dismiss
Complaint (Doc. 22), asserting that Plaintiff’s
Petition should be dismissed pursuant to the following: (1)
Federal Rule of Civil Procedure 12(b)(2) for a lack of
personal jurisdiction; (2) Federal Rule of Civil Procedure
12(b)(3) for improper venue; (3) Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim as it relates
to all alleged counts asserted in Plaintiff’s Petition;
and (4) the Texas Anti-Slapp Act as it relates to Counts Two
through Five of Plaintiff’s Petition. On February
26-27, 2019, the court held a hearing regarding
Plaintiff’s request for a preliminary injunction.
During this two-day hearing, the court heard testimony from
Le-Vel corporate representatives, Promoters, and Mr. Bland.
contends that it received communications from other
Promoters, including text messages and social media posts,
supporting its allegation that Defendant violated the
Non-Solicitation Provision. During the preliminary injunction
hearing, Defendant testified that he has thousands of
followers on social media and uses these platforms to expand
his downline team. Prelim. Inj. Hr’g Tr. 242:31-243:13
(Feb. 26, 2019) (Doc. 33). He also admits to using Zoom as a
method for recruiting individuals for his downline team.
Specifically, Mr. Bland testified that he did not solicit
anyone to join Isagenix before his termination from Le-Vel.
Instead, on December 26, 2018, “he talked to two
girls” in his Le-Vel downline team via Zoom to discuss
the benefits and compensation at Isagenix. Prelim. Inj.
Hr’g Tr. 4:28-5:9 (Feb. 27, 2019) (Doc. 32). At the
time, he had not joined the Isagenix team. Although one of
the individuals did not join Isagenix, he testified that he
was trying to convince her to make the move. On December 30,
2018, Mr. Bland joined Isagenix and testified that within
three days of joining, 150 of his downline team members at
Le-Vel joined his team at Isagenix.
his termination from Le-Vel, Mr. Bland admits he created
Facebook posts to encourage Le-Vel Promoters to reach out
about his role at Isagenix but asserts there was no need to
solicit them, as these individuals sought him out for more
information. On June 3, 2019, a few months after the hearing,
he posted a Facebook video discussing his termination from
Le-Vel and transition to Isagenix in detail, allegedly
attempting to clear the air regarding rumors surrounding his
departure from Le-Vel and his current business status.
Legal Standard for Preliminary Injunction
are four prerequisites for the extraordinary relief of a
preliminary injunction. A court may grant a preliminary
injunction only when the movant establishes that:
(1) there is a substantial likelihood that the movant will
prevail on the merits; (2) there is a substantial threat that
irreparable harm will result if the injunction is not
granted; (3) the threatened injury [to the movant] outweighs
the threatened harm to the defendant; and (4) the granting of
the preliminary injunction will not disserve the public
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987)
(citing Canal Auth. of the State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974) (en
banc)). The party seeking such relief must satisfy a
cumulative burden of proving each of the four elements
enumerated before a preliminary injunction can be granted.
Mississippi Power & Light Co. v. United Gas
Pipeline, 760 F.2d 618, 621 (5th Cir. 1985);
Clark, 812 F.2d at 993. Otherwise stated, if a party
fails to meet any of the four requirements, the
court cannot grant the preliminary injunction.
primarily seeks to enforce the Non-Solicitation Provision
outlined in section 3.19 of the Agreement. Pl.’s Br.
¶ 2. Specifically, it requests that the court enjoin Mr.
Bland from breaching the Non-Solicitation Provision of the
Agreement and order him to cease any solicitation of its
Promoters and customers for the twelve-month period
established in the Agreement. Id. at 1-2.
Additionally, Le-Vel requests that the court enjoin Mr. Bland
from making any statements, written or verbal, that
“defame, disparage, or in any way criticize Le-Vel . .
. .” Id. at 2.
Substantial Likelihood of Success on the Merits
analyzing Le-Vel’s substantial likelihood of success on
the merits, the court must first determine which law applies
to the Non-Solicitation Provision. As the court noted in its
September 27, 2019 memorandum opinion and order (Doc. 60),
Indiana law applies in determining whether a contract existed
between the parties, given Mr. Bland’s dispute about
the existence of a contract. Upon careful consideration, the
court determined that there was an agreement between Le-Vel
and Mr. Bland by way of his agent, Chris Casey, and,
accordingly, Mr. Bland was bound by the terms of the
Agreement. The Agreement, however, contains a choice-of-law
provision, which provides that Texas law should govern
“without regard to choice of law or conflicts of law
principles.” Defendant challenges the choice-of-law
provision and asserts that Indiana law, not Texas, should
govern the parties’ dispute. Thus, the court must
determine which applicable state law applies before
addressing Plaintiff’s request for injunctive relief.
the court is exercising diversity jurisdiction, the
applicable law of the forum state, which, in this case, is
Texas, governs the choice-of-law analysis. Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under
Texas law, parties have the autonomy to agree that
contractual disputes shall be governed by the law of another
state. Cardoni v. Prosperity Bank, 805 F.3d 573, 580
(5th Cir. 2015) (citing Exxon Mobil Corp. v.
Drennen, 452 S.W.3d 319, 324 (Tex. 2014)). Texas courts
tend to permit choice-of-law agreements and the position that
they are enforceable; however, “it is not uncommon for
a party to overcome them.” Cardoni, 805 F.3d
at 581 (citations omitted).
render a choice-of-law provision unenforceable, a party must
satisfy the standards outlined in Section 187(2) of the
Restatement (Second) of Conflict of Laws, which provides
(2) The law of the state chosen by the parties to govern
their contractual rights and duties will be ...