Bureau Veritas Technical Assessments LLC et al v. Brosa et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Bureau Veritas Technical Assessments LLC,
et al.,
Plaintiffs,
v.
Blake Brosa, et al.,
Defendants.
No. CV-25-02339-PHX-JJT
ORDER
At issue is Plaintiffs Bureau Veritas Technical Assessments, LLC (“BVTA”) and
Bureau Veritas North America, Inc. (“BVNA”) Motion for Clarification and/or
Reconsideration of 12/01/2025 Order [ECF 71] and Memorandum of Points and
Authorities (“Motion”) (Doc. 72, Mot.), to which Defendant Blake Brosa filed a court-
ordered Response (Doc. 76, Resp.) and Plaintiffs replied (Doc. 82, Reply). The Court finds
this matter appropriate for resolution without oral argument. See LRCiv 7.2(f). For the
reasons set forth below, the Court will grant in part and deny in part the Motion.
I. BACKGROUND1
Plaintiffs provide project management services, building assessment, and code
compliance for multi-site customers. (Doc. 1, Compl., ¶¶ 24–26.) Defendant began
working for Plaintiffs in July 2015 as their Senior Vice President of Sales. (Id. ¶ 37.) In
October 2021, Defendant was promoted to the Executive Vice President of Sales (Id. ¶ 38.)
1 The Court recounts the facts as alleged in Plaintiffs’ original Complaint and procedural
history that are relevant to the dismissal of claims of which Plaintiffs now seek
reconsideration in their Motion.
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As a part of his promotion, Defendant entered a Confidentiality, Non-Competition, Non-
Solicitation, and Assignment of Rights Agreement (“Brosa Agreement”). (Id. ¶¶ 41–48;
Doc. 1-2.) The Brosa Agreement contained four covenants: (1) confidentiality; (2) non-
competition; (3) non-solicitation; and (4) non-recruitment. In November 2024, Defendant
allegedly extracted several files from his work computer to a flash drive and sent customer
communications and documents to his personal email account. (Id. ¶¶ 68–82.) In December
2024, Defendant terminated his employment with Plaintiffs and began working for
Defendant Apex Imaging Services Incorporated as its Director of Business Development
for Multi-Site Retail. (Id. ¶¶ 66–67.)
Plaintiffs sued Defendant on the following claims at issue in the pending Motion:
breach of the confidentiality covenant in the Brosa Agreement (Count Three) and breach
of the non-solicitation and non-recruitment covenants in the Brosa Agreement (Count
Four). (Id. ¶¶ 133–63.) Defendant filed his Motion to Dismiss and supporting
memorandum (Doc. 25, MTD), to which Plaintiffs responded (Doc. 36, MTD Resp.) and
Defendant replied (Doc. 50, MTD Reply). In its Order dated December 1, 2025 (“Prior
Order”) (Doc. 71), the Court dismissed Count Three and the portion of Count Four only
pertaining to the non-solicitation covenant without leave to amend. Plaintiffs timely move
this Court to clarify or reconsider its dismissal of Counts Three and Four.
II. LEGAL STANDARD
Plaintiffs suggest that the Court should clarify its prior Order under Federal Rule of
Civil Procedure 60, which permits it to “correct a clerical mistake or a mistake arising from
oversight or omission whenever one is found in a[n] . . . order.” Fed. R. Civ. P. 60(a) (See
Mot. at 6.) Plaintiffs, however, principally argue that the Court erred in finding the two
covenants of the Brosa Agreement unenforceable, which amounts to more than a mere
clerical mistake, oversight, or omission.
Accordingly, the Court will apply the legal standard delineating its authority to
reconsider rulings that have not resulted in a final judgment under Rule 54(b). Sonoma Cty.
Ass’n of Retired Emples. v. Sonoma Cty., No. C 09-4432 CW, 2015 U.S. Dist. LEXIS
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53081, *9 (N.D. Cal. Apr. 22, 2015). “The District of Arizona adopted Local Rule 7.2(g)
to implement and supplement Rule 54(b), and, thus, a litigant seeking relief under Rule
54(b) must comply with Local Rule 7.2(g)’s requirements.” FTC v. Noland, No. CV-20-
00047-PHX-DWL, 2022 U.S. Dist. LEXIS 55593, at *11 (D. Ariz. Mar. 28, 2022) (internal
quotation marks and citation omitted). LRCiv 7.2(g)(1) sets forth in detail the standard for
a motion for reconsideration:
The Court will ordinarily deny a motion for reconsideration of
an Order absent a showing of manifest error or a showing of
new facts or legal authority that could not have been brought
to its attention earlier with reasonable diligence. Any such
motion shall point out with specificity the matters that the
movant believes were overlooked or misapprehended by the
Court, any new matters being brought to the Court’s attention
for the first time and the reasons they were not presented
earlier, and any specific modifications being sought in the
Court’s Order. No motion for reconsideration of an Order may
repeat any oral or written argument made by the movant in
support of or in opposition to the motion that resulted in the
Order. Failure to comply with this subsection may be grounds
for denial of the motion.
III. ANALYSIS
A. Count Three
In bringing Count Three, Plaintiffs alleged that Defendant breached Section 1(a)
and Section 1(e) of the Brosa Agreement. (Compl. ¶¶ 138–39.) Section 1(a) prohibits an
employee’s use of Plaintiffs’ confidential information, while Section 1(e) mandates the
return of Plaintiffs’ property, including confidential information, upon that employee’s
termination. In dismissing Count Three in its entirety, the Court found that Section 1(a)’s
definition of confidential information was unenforceable and incurable.
Plaintiffs argue that the Court erred when it “interpreted a clause in Section 1(a)’s
definition of ‘Confidential Information’ to include publicly available information.” (Mot.
at 9.) Section 1(a) reads, in relevant part, as follows:
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. . . All documents or information, in whatever form or
medium, regarding the business or affairs of the Company and
its affiliates . . . shall all be deemed ‘Confidential Information,’
except to the extent the same shall have been lawfully and
without breach of obligation made available to the general
public without restriction, or that Employee can prove, by
documentary evidence, was previously known to Employee
prior to Employee’s employment . . .
(Doc. 1-2 ¶ 1(a) (emphasis omitted).) According to Plaintiffs, it was improper for the Court
to interpret the exclusionary clause, “except to the extent the same shall have been lawfully
and without breach of obligation made available to the general public without restriction,”
as including public information on a sua sponte basis. (Mot. at 9–10.)
First, the Court reached its conclusion based on the parties’ briefing on the issue,
not sua sponte. Defendant argued that Section 1(a) included “any and all information
learned during employment, whether confidential or otherwise, it would also include
general know-how, and other large swaths of non-confidential information no business has
a legitimate business interest from restricting.” (MTD at 4.) Defendant pointed the Court
to Orca Communs. Unlimited, Ltd. Liab. Co. v. Noder, 314 P.3d 89 (Ariz. Ct. App. 2013)
(“Orca I”), de-published in part on other grounds, 236 Ariz. 180 (Ariz. 2014) (“Orca II”),
as “directly on point and instructive.” (MTD at 5.)
Plaintiffs responded that Section 1(a)’s definition of confidential information was
properly tempered by the exclusionary clause because it excludes information that was
made public. (MTD Resp. at 11.) Plaintiffs distinguished Section 1(a) from the
confidentiality covenant in Orca I on the grounds that the latter “extended to publicly-
available and non-confidential information.” (Id.) Plaintiffs pointed to other case law that
likewise held that a confidentiality agreement cannot deem public information confidential.
(Id. at 12.) See Williams & Lake LLC v. Genesis Systems LLC, 2017 U.S. Dist. LEXIS
211434, at *29–31 (D. Ariz. Sep. 12, 2017); see also Joshua David Mellberg LLC v. Will,
96 F. Supp. 3d 953, 968 (D. Ariz. 2015). It is from Plaintiffs’ own arguments and both
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parties’ case citations that the Court was drawn to the exclusionary clause of Section 1(a)
and to ask whether it properly excluded public information like Plaintiffs professed it did.
Second, the exclusionary clause plainly defines confidential information to exclude
only that which was (1) “lawfully and without breach of obligation made available to the
general public without restriction,” or (2) “that Employee can prove, by documentary
evidence, was previously known to Employee prior to Employee’s employment.” (Doc. 1-
2 ¶ 1(a).) The first portion of that provision is not qualified by any one person or actor,
while the second portion is. The selective use of a qualifier is of consequence in a contract,
and the lack of a qualifier within the first portion plainly means that it is not limited by who
makes the information public lawfully and without breach of obligation to Plaintiffs. The
express purpose of Section 1(a) supports this conclusion, which is to “prevent
dissemination of Confidential Information beyond those employees entrusted with such
information.” (Id. (emphasis added).) The language and intent of the confidentiality
covenant clearly prohibits Defendant’s use of Plaintiffs’ information that has entered the
public domain. First Am. Title Ins. Co. v. Johnson Bank, 372 P.3d 292, 294 (Ariz. 2016)
(“[Courts] construe provisions in such contracts according to their plain and ordinary
meaning.”); Grosvenor Holdings, L.C. v. Figueroa, 218 P.3d 1045, 1050 (Ct. App. 2009)
(“In order to determine what the parties intended, we first consider the plain meaning of
the words in the context of the contract as a whole.”).
Third, Plaintiffs argue that the Court erred because the exclusionary clause in
Section 1(a) is “ambiguous as to whether it only applies to Brosa, or to other BVTA
employees.” (Mot. at 9.) Plaintiffs misinterpret the Court’s Prior Order, which found that
the exclusionary clause could include information made public by others aside from
Defendant himself due to the lack of a written qualifier, discussed supra, thereby rendering
it overbroad under Orca I. It has not been suggested, by the parties or the Court, that the
Brosa Agreement applies to or is enforceable against anyone other than Defendant. There
is no ambiguity.
. . .
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Fourth, Plaintiffs argue that the Court erred by failing to sever six words from the
exclusionary clause: “lawfully and without breach of obligation.” (Id. at 11.) This is the
first time Plaintiffs identify any particular terms that could be severed to save the covenant
of unreasonableness. Defendant does not disagree that severance of those six words would
cure the covenant. Rather, Defendant responds that “Plaintiffs could have presented this
targeted severance theory earlier but did not.” (Resp. at 4.) But Plaintiffs did raise the
general issue of severance in their responsive memorandum (MTD Resp. at 16 n.4; Reply
at 3), albeit without pinpointing the six words that they presently identify. Upon Plaintiffs’
Motion, the Court now considers which words should be severed to bring the covenant
within compliance of the law—an issue that was introduced in the original motion practice
but not fully and completely briefed until now. The Court agrees with Plaintiffs that those
six words are the precise ones that offend Orca I’s proscription against restricting an
employee’s use of public information and severing them will render the covenant
reasonable.
Defendant’s remaining argument in his original Motion to Dismiss briefing, that
Section 1(a) is overbroad because it includes all information he learned during his
employment (MTD at 4; MTD Reply at 5–6), is unavailing because the exclusionary clause
now properly eliminates information made public or that which he knew prior to
employment from the scope of confidentiality. See Orca I, 314 P.3d. at 95 (holding that an
employer cannot deem all information that an employee learns through employment as
confidential if that information includes that which is publicly available).
Next, Plaintiffs argue that the confidentiality covenant, now rendered enforceable
by the severance of six words, does not fail for lack of temporal or geographic restrictions.
(MTD Resp. at 12–13; Mot. at 12.) Defendant failed to brief this issue previously and
presently; rather, he contends, as he did before, that the confidentiality covenant is still
construed as a non-compete covenant that fails for lack of limitations. (Resp. at 4.)
While it is true that overbroad confidentiality covenants are construed as a non-
compete covenant, Orca I, 314 P.3d at 95, the covenant here is no longer overbroad.
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Therefore, Arizona case law merely requires that confidentiality covenants are reasonably
tailored to protect the employer’s legitimate interest in its confidential information. BioD,
LLC v. Amnio Tech., LLC, No. 2:13-cv-1670-HRH, 2014 U.S. Dist. LEXIS 199784, at *16
(D. Ariz. July 22, 2014); Orca I, 314 P.3d at 95. Under the Restatement (Second) of
Contracts, “[t]he extent of the restraint is a critical factor in determining its reasonableness
. . . What limits as to activity, geographical area, and time are appropriate in a particular
case depends on all the circumstances.” Section 188(d); Cornell v. Desert Fin. Credit
Union, 524 P.3d 1133, 1139 (Ariz. 2023) (following the Restatement). “While a true trade
secret is entitled to protection of indefinite duration,” the same may not be true for
information that is generally known and accessible to competitors. Amex Distrib. Co. v.
Mascari, 724 P.2d 596, 603 (Ariz. Ct. App. 1986).
Plaintiffs allege that the information protected by the confidentiality covenant is, at
least in part, a trade secret. (Compl. ¶¶ 137, 140, 141.) Assuming those allegations are
true—which the Court must do at the motion to dismiss stage—the confidentiality covenant
is not unreasonable because it lacks temporal limitations. Amex, 724 P.2d at 603. Plaintiffs
further allege that they conduct business on an international scale, and Defendant had
access to that information. (Compl. ¶¶ 11, 26, 40, 56, 102.) If true, then it is not
unreasonable that the confidentiality covenant is not tempered by space. At this stage,
Plaintiffs plead sufficient facts that the confidentiality covenant is necessary to protect their
legitimate interest in protecting confidential and trade secret information on a global scale,
and that is not outweighed by the public interest or Defendant’s hardship because the
covenant now properly excludes information that is public or known to Defendant prior to
his employment with Plaintiffs.
The Court hereby severs the terms “lawfully and without breach of obligation” from
the confidentiality covenant of the Brosa Agreement and reinstates Count Three. The Court
need not resolve the remaining issues raised by Plaintiffs as they relate to Section 1(e),
which are rendered moot by the reinstatement of Count Three.
. . .
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B. Count Four
Finally, Plaintiffs move the Court to reconsider its dismissal of Count Four, which
asserted breach of the non-solicitation covenant in the Brosa Agreement. Plaintiffs argue
that the Court erred by failing to sever the words that Plaintiffs now identify for the first
time. Plaintiffs propose severing “or prospective,” “or who the Company or any affiliate
solicited” and “contacted, called on, serviced, or” and leave the following:
. . . Employee shall not directly or indirectly solicit business
from or interfere with, or attempt to solicit business from or
interfere with, any actual customer, service provider, vendor,
or supplier of the Company or any affiliate of the Company
with whom the Company or any affiliate did business within
the eighteen (18) months prior to Employee’s termination from
employment with the Company, and (1) who or which
Employee did business with, on behalf of the Company or any
affiliate of the Company, during Employee’s employment with
the Company, or (2) about whom Employee received
Confidential Information (collectively, “Customers”) . . .
(Mot. at 13.) But even after severing the terms suggested by Plaintiffs, the covenant still
includes customers who “did business” but who may have ended their business with
Plaintiffs prior to Defendant’s termination. See Hilb, Rogal & Hamilton Co. v. McKinney,
946 P.2d 464, 467 (Ariz. Ct. App. 1997) (holding that a non-solicitation covenant cannot
prohibit solicitation of former customers). Further, the term “actual” customer does not
mean the customer was “current,” and the Court cannot add language to clarify that
Plaintiffs meant to prohibit the solicitation of only its current customers at the time of
Defendant’s termination. See Valley Med. Specialists v. Farber, 982 P.2d 1277, 1286 (Ariz.
1999). The Court could sever other language from the covenant, such as each instance of
“did business,” or “within the eighteen (18) months,” but doing so does not ultimately cure
the underlying impermissible prohibition of solicitating customers who no longer did
business with Plaintiffs when Defendant ended his employment. Because the non-
solicitation covenant is unenforceable and incurable, the Court did not err when it
dismissed Count Four without leave to amend.
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IV. CONCLUSION
The Court will reinstate Count Three but finds no error in dismissing Count Four
pertaining to the non-solicitation covenant without leave to amend. The Court notes that
Plaintiffs have already filed their First Amended Complaint in accordance with the Prior
Order. (See Doc. 74, FAC.) Therein, Plaintiffs retained Counts Three and Four as originally
pled in their Complaint. (FAC ¶¶ 173–203.)2
No later than fourteen days from the date of this Order, Plaintiffs may file an amended
complaint that amends the First Amended Complaint. The amended complaint shall retain
Count Three as alleged but shall remove Count Four as it pertains to the non-solicitation
covenant. Plaintiffs shall file a separate Notice of Filing Amended Complaint with an
attached redlined copy showing the changes between the First Amended Complaint and the
amendment. No new claims may be added to an amendment absent leave of court pursuant
to Federal Rule of Civil Procedure 15 and Local Rule 15.1.
IT IS ORDERED granting in part and denying in part Plaintiffs’ Motion for
Clarification and/or Reconsideration of 12/01/2025 Order [ECF 71] and Memorandum of
Points and Authorities (Doc. 72.)
IT IS FURTHER ORDERED severing “lawfully and without breach of
obligation” from Section 1(a) of the Confidentiality, Non-Competition, Non-Solicitation,
and Assignment of Rights Agreement between Defendant Brosa and Plaintiffs (Doc. 1-2
¶ 1(a)).
IT IS FURTHER ORDERED reinstating Count Three as alleged in Plaintiff’s
First Amended Complaint (Doc. 74).
IT IS FURTHER ORDERED that, no later than fourteen days from the date of this
Order, Plaintiffs may file an amended complaint. The amended complaint shall retain Count
Three as alleged in the First Amended Complaint but shall remove Count Four as it pertains
to the non-solicitation covenant. Plaintiffs shall file a separate Notice of Filing Amended
Complaint with an attached redlined copy showing the changes between the First Amended
2 Defendant Apex has since moved to dismiss other claims (see Docs. 79–80) but
reinstatement of Count Three will not affect that pending motion and briefing.
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Complaint and the amendment. No new claims may be added to an amendment absent leave
of court pursuant to Federal Rule of Civil Procedure 15 and Local Rule 15.1.
Dated this 14th day of January, 2026.
Honorable John J. Tuchi
United States District Judge
Case 2:25-cv-02339-JJT Document 84 Filed 01/14/26 Page 10 of 10