FINDINGS OF FACT & CONCLUSIONS OF LAW
c. IBM's Non-competition Program
d. Mr. Visentin's Employment at IBM
e. The Non-competition Agreements
f. Mr. Visentin's Employment at HP
g. Purported IBM Trade Secrets and Confidential Information.
ii. I&VT Task Force on Business Analytics
vii. Knowledge of Potential IBM Acquisition
a. Preliminary Injunction Standard
b. Application to the Present Motion
b. I&VT Task Force on Business Analytics
d. New Service Offerings Other Than Cloud
e. Potential Acquisition Target
g. Strategic Business and Marketing Plans
h. Operation Finances of ITS
k. IBM Strategies to "Attack HP"
a. Near Identity of Positions
b. Value of Purported Trade Secrets to HP
ii. Likelihood of Success on the Merits
1. Whether the Agreement Is Greater Than Necessary to Protect a Legitimate Interest
2. Whether the Agreement Imposes an Undue Hardship
iii. Sufficiently Serious Questions Going to the Merits
LORETTA A. PRESKA, Chief United States District Judge:
Plaintiff International Business Machines Corporation ("Plaintiff" or "IBM") seeks a preliminary injunction against Defendant Giovanni Visentin ("Defendant" or "Mr. Visentin"), a former IBM executive, to enforce a non-competition agreement by restraining Mr. Visentin from working for Hewlett-Packard Company ("HP") for a period of twelve months. Early in the morning of January 19, 2011, Mr. Visentin notified IBM of his intention to leave IBM to work for HP. On January 20, 2011, IBM filed a complaint including claims for breach of contract and misappropriation of trade secrets. On January 24, 2011, the Honorable Cathy Seibel entered a temporary restraining order and scheduled a preliminary injunction hearing. Due to a scheduling conflict, the case was subsequently transferred to the undersigned. Beginning on February 1, 2011, the Court heard extensive testimony from five witnesses and reviewed a substantial number of exhibits.*fn1 For the reasons set forth below, IBM's application for a preliminary injunction is DENIED.
a. IBM IBM is a leading technology company, with approximately 400,000 employees and operations in more than 170 countries. (Tr. 273:17, 579:4-10.)*fn2 IBM is organized into several principal business segments, including Global Technology Services ("GTS") (Tr. 25:3-7.) GTS assists companies in assessing, designing, implementing, and running their computer infrastructure and network systems. (Tr. 25:20-27:12; Kerin Decl. ¶¶ 11-12) GTS has four business segments, including Strategic Outsourcing ("SO"), Integrated Technology Services ("ITS"), Maintenance, and Global Processing Services. (Tr. 20:22-22:8.) The SO group deals mostly with technology services. Through the SO group, IBM can provide infrastructure, networking, and end-user support. (Tr. 16:3-17:23.) IBM either provides the technology platform only or it also takes over and runs clients' servers, storage, or networks under long-term contracts. (Id.; Kerin Decl. ¶ 13.) ITS provides clients with nearly 180 different infrastructure technology services, including services to improve data storage capabilities, provide business continuity and recovery services, protect networks from viruses, design new cloud computing infrastructures, and implement data security systems. (Tr. 34:21-36:4, 455:16-25, 529:21-530:20; Kerin Decl.
b. Hewlett-Packard HP is a global technology provider and a major IBM competitor. (Tr. 261:19-24; IBM Ex. 208 at 2-3.) HP operates in more than 170 countries and has about 300,000 employees worldwide. (IBM Ex. 208 at 2-3.) HP is organized into several principal business segments, including Enterprise Services ("ES"). HP's ES group includes three segments: Application Services, Business Process Outsourcing, and Infrastructure Technology Outsourcing ("ITO"). (Tr. 46:9-19, 547:6-10.)
c. IBM's Non-competition Program IBM requires over 1700 employees to sign non-competition agreements. (Tr. 577:11-14.) More than 300 IBM employees are required to sign a form non-competition agreement identical to the one signed by Defendant. (Tr. 577:19-21.) IBM did not negotiate the terms of these agreements, and historically the agreements were not modified. (Tr. 577:22-578:5, 592:24-593:7.) IBM's non-competition program works in tandem with a "clawback" mechanism. (Tr. 589:22-24.) If an employee violates the non-competition agreement, IBM can choose to invoke the clawback mechanism and cancel all of that employee's unvested and unexercised equity grants. (Tr. ...