ase Number: BC538165    Hearing Date: July 10, 2014    Dept: 46

Posted 7-9-2014 at 12:45 p.m.

Case Number: BC538165
CARQUEST ACQUISITION LLC ET AL VS DAVID ESCOBAR
Filing Date: 03/04/2014
Case Type: Othr Breach Contr/Warr-not Fraud (General Jurisdiction)

07/10/2014
Motion for Preliminary Injunction.

TENTATIVE RULING: Preliminary Injunction is GRANTED. Injunction is ordered in the particulars set forth in paragraph 3 below pursuant to the facts presented and CCP §526(a)(1), CCP §526(a)(2), CCP §526(a)(3), CCP §527(a), B&P Code §16600, B&P Code §16601, and IT Corp. v. County of Imperial (1983) 35 C.3d 63 as well as the facts and discussion set forth below. Plaintiff is ordered to post a bond compliance with CRC 3.1130 pursuant CCP §529(a) or make a deposit pursuant to CCP §995.710(a) in the amount of $5,000 within 10 days. Plaintiff prepare formal order as required by CRC 3.1150(f) and provide proof of undertaking or deposit within 5 court days.

1. On 3/4/14, Carquest Acquision, LLC, et al [“Ps”] filed their complaint for (1) Breach of Stock Purchase Agreement; (2) Fraud; (3) Breach of Employment Agreement; (4) Fraud; (5) Breach of Fiduciary Duty and (6) Injunctive Relief against D David Escobar (hereinafter, “Escobar”) and DOES 1-25. On 4/18/14, D Escobar answered the complaint.

2. In the Complaint, Ps contend that:

2.a. P purchased the CarQuest business from David Escobar [“D”], who thereafter continued to manage the CarQuest business under a written employment agreement.

2.b. CarQuests’ primary business was auto sales to credit union members.

2.c. scobar committed fraud or failed to disclose material information in connection with the sale.

2.d. Escobar failed to properly manage the CarQuest business, and that he diverted CarQuest funds and other business opportunities to his own benefit.

2.e. Ps terminated D Escobar’s employment for cause in January 2014.

2.f. Escobar presently is in violation of a noncompetition agreement given in connection with his sale of the CarQuest business to them.

3. Ps motion is made pursuant to CCP §527 and Ps seek an order preliminarily restraining and enjoining D Escobar from: (1) engaging in a Competitive Business (“Competitive Business” shall mean and refer to “any business directly or indirectly competing with the business of CarQuest Auto Buying and CarQuest Acquisition, including their respective affiliates, to include, without limitation, the business of acting as a broker/dealer with respect to, and/or engaging in, the business of locating and delivering new and/or used vehicles and/or selling products related to such vehicles, and any other activity related thereto, including without limitation, vehicle service contract sales or administration, mechanical breakdown contract sales of administration, and claim adjudication for service contracts”). “Engaging in a Competitive Business” shall mean and include, without limitation, “working for or providing services in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Competitive Business in the following counties: San Luis Obispo, Santa Barbara, Ventura, Kern, Los Angeles, Orange, San Bernardino, Riverside, Inyo and San Diego;” (2) soliciting or encouraging any customer, client, vendor, dealer, or insurance company of CarQuest Auto Buying or CarQuest Acquisition, or any of their affiliates, or any other individual, entity or governmental body having a relationship with CarQuest Auto Buying, CarQuest Acquisition or any of their affiliates, to terminate or diminish such relationship, or seeking to persuade any current or prospective customer, client, vendor, dealer or insurance company of CarQuest Auto Buying, CarQuest Acquisition or any of their affiliates, to conduct with Escobar (or any person, employer or other entity on whose behalf Escobar is then acting) any such business or activity that such customer, client, vendor, dealer or insurance company conducts or could conduct with CarQuest Auto Buying, CarQuest Acquisition or their affiliates. This prohibition is limited to such customers, clients, vendors, dealers and insurance companies that were customers, clients, vendors, dealers or insurance companies of CarQuest Auto Buying, CarQuest Acquisition or their affiliates within the 12 month period before the termination of Escobar’s employment on January 17, 2014, or which were solicited by CarQuest Auto Buying, CarQuest Acquisition or their affiliates, or its or their officers, employees or agents, within the 12 month period before the termination of Escobar’s employment on January 17, 2014, other than by form letter, blanket mailing or general advertisement; (3) (i) hiring or soliciting for hire any employee of CarQuest Auto Buying, CarQuest Acquisition or any of their affiliates, or seeking to persuade any employee of CarQuest Auto Buying, CarQuest Acquisition or any of their affiliates, to discontinue employment, and (ii) soliciting or encouraging any independent contractor or agent providing services to CarQuest Auto Buying, CarQuest Acquisition or any of their affiliates, to terminate or diminish its/his/her relationship with CarQuest Auto Buying, CarQuest Acquisition or their affiliates. This limitation shall apply only to persons who have been employed by or provided services to CarQuest Auto Buying, CarQuest Acquisition or their affiliates, within the 12 month period before the termination of Escobar’s employment on January 17, 2014; and (4) disparaging CarQuest Auto Buying, CarQuest Acquisition, their respective affiliates, and its or their business or management.

Ps additionally seek injunctive relief to compel Escobar’s compliance with non-competition provisions to which he agreed when he sold his business—CarQuest Auto Buying—to P CarQuest Acquisition. As part of the sale, D Escobar became an employee of CarQuest Auto Buying, but that employment was terminated for cause earlier this year. D Escobar now has taken a job with another company—CUAutoLink (with the “CU” standing for “credit union”)—providing automobile services to credit unions, and in doing so seeks to deprive CarQuest Acquisition of the goodwill for which it paid good money when it acquired CarQuest Auto Buying. CarQuest Auto Buying was purchased for the relationships that it and D Escobar had with credit unions.

4. CCP § 526 states, in pertinent part, as follows:

“(a) An injunction may be granted in the following cases:
(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.
(2) When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.
(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
(4) When pecuniary compensation would not afford adequate relief.
(5) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief…”

5. CCP § 527(a) states, in relevant part, as follows:

“A preliminary injunction may be granted at any time before judgment
upon a verified complaint, or upon affidavits if the complaint in the one
case, or the affidavits in the other, show satisfactorily that sufficient
grounds exist therefore..”

6. B&P Code § 16600 states as follows:

“Except as provided in this chapter, every contract by which anyone is
restrained from engaging in a lawful profession, trade, or business of
any kind is to that extent void.”

7. B&P Code § 16601 states, in relevant part, as follows:

“Any person who sells the goodwill of a business, or any owner of
a business entity selling or otherwise disposing of all of his or her
ownership interest in the business entity, or any owner of a business
entity that sells (a) all or substantially all of its operating assets
together with the goodwill of the business entity, (b) all or
substantially all of the operating assets of a division or a subsidiary
of the business entity together with the goodwill of that division or
subsidiary, or (c) all of the ownership interest of any subsidiary, may
agree with the buyer to refrain from carrying on a similar business
within a specified geographic area in which the business so sold, or
that of the business entity, division, or subsidiary has been carried
on, so long as the buyer, or any person deriving title to the goodwill
or ownership interest from the buyer, carries on a like business
therein…” (emphasis added).

8. “’The law is well settled that the decision to grant a preliminary injunction rests in the sound discretion of the trial court.’ (IT Corp. v. County of Imperial (1983) 35 C.3d 63, 69). In exercising its discretion ‘trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the likelihood that the plaintiff will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction were issued.’ (Id. at pp. 69-70).” Id. (emphasis added).

9. “The plaintiff bears the burden of presenting facts establishing the requisite reasonable probability: ‘[T]he drastic remedy of an injunction pendente lite may not be permitted except upon a sufficient factual showing, by someone having knowledge thereof, made under oath or by declaration under penalty of perjury.’ (Ancora-Citronelle Corp. v. Green (1974) 41 C.A.3d 146, 150).” Fleishman v. Superior Court (2002) 102 C.A.4th 350, 356.

10. Ps have shown by admissible evidence that Ps are likely to prevail on the merits of their claims against Escobar. This evidence includes Paragraph 7 of the parties’ “Stock Purchase Agreement” (Declaration of Zareh Baghdasarian [hereinafter, “Baghdasarian”], Exhibit “A,” pp. 8-10) and Paragraph 5 of the parties’ Employment Agreement. (the pertinent portions of these exhibits is set forth at length at the end of this tentative ruling. To the extent that the noncompetition agreement is part of the employment contract, it is nonetheless enforceable. Hilb, Rogal & Hamilton Ins. Services v. Robb (1995) 33 C.A.4th 1812, 1825-1826 [“Nothing in section 16601 requires that the covenant be contained in a particular type of document. The purpose of the statute is served as long as the covenant is executed in connection with the sale or disposition of all of the shareholder’s stock in the acquired corporation. Section 16601 does not prescribe a format for a covenant not to compete, and we can find no reason to impose one.”]

11. Issuance of a preliminary injunction in this case is appropriate under applicable legal authorities.

11.a. “In the case of the sale of the goodwill of a business it is ‘unfair’ for the seller to engage in competition which diminishes the value of the asset he sold. In order to protect the buyer from that type of ‘unfair’ competition, a covenant not to compete will be enforced to the extent that it is reasonable and necessary in terms of time, activity and territory to protect the buyer’s interest. (United States v. Addystone Pipe & Steel Co. [(1898)] 85 F. 271, 282-283, affd. [(1899)] 175 U.S. 211).” Monogram Industries, Inc. v. Sar Industries, Inc. (1976) 64 C.A.3d 692, 698.

11.b. “In brief at common law a restraint against competition was valid to the extent it reasonably provided for the protection of a valid interest of the covenantee. (Corbin on Contracts, § 1387 at pp. 55-56; § 1393 at p. 87; Rest., Contracts, § 516, subd. (a).) Business and Professions Code section 16601 is a codification of this rule of ‘reasonableness’ in connection with the sale of a business. (City Carpet, etc. Works v. Jones [(1894)] 102 Cal. 506). That section permits a covenant not to engage in a business ‘similar’ to the one sold, in the area where the business sold has been carried on, so long as the buyer carries on a like business therein. The buyer’s business need not use the same name or similar organization. (Consolidated etc. Industries Inc. v. Marks [(1952)] 109 CA2d 310). The language of the section insures that the competition is in fact such and not simply insubstantial and infrequent or isolated transactions. (Kaplan v. Nalpak Corp. [(1958)] 158 C.A.2d 197; Swenson v. File [(1970)] 3 C.3d 389; Roberts v. Pfefer [(1970)] 13 C.A.3d 93).” Id. (emphasis added).

12. Escobar objects to the geographical scope of the non-competition language because it seeks to extend outside of Los Angeles County because “CAB CORP never had clients outside of Los Angeles County and was never attempting to expand beyond Los Angeles County Credit Unions.”

12.a. Ps “seek to enforce Escobar’s non-compete obligations . . . within the following Southern California counties: San Luis Obispo, Santa Barbara, Ventura, Kern, Inyo, Los Angeles, San Bernardino, Orange, Riverside and San Diego” (Motion, fn. 1).

12.b. D Escobar’s representation that “CAB CORP never had clients outside of Los Angeles County and was never attempting to expand beyond Los Angeles County Credit Unions.” (D Escobar Declaration, ¶ 5) is simply belied by Schedule 2.5 to the Stock Purchase Agreement, which identifies clients in at least Los Angeles, Orange, San Bernardino, Ventura, and Riverside Counties.

Incidentally, since the Employment Agreement was part and parcel of the Stock Purchase Agreement, the non-competition provisions of the Employment Agreement are not made invalid simply because they appear in an employment agreement. “The validity of that covenant [not to compete] is not affected by its location in the employment contract rather than the merger agreement.

13. Plaintiff has demonstrated harm to result if injunction is not granted. Ps’ President, Baghdasarian, has also attested as to the interim harm that Ps are likely to sustain if the injunction were denied, as follows:

“11. From the time that CarQuest Auto terminated Mr. Escobar’s
employment for cause, and up until early-April, 2014, I understood that
Mr. Escobar was not employed. On about April 30, 2014, I first learned
that Mr. Escobar was working for a company that by its very name
competes directly with CarQuest. Attached as Exhibit C is a true and
correct copy of a business card bearing Mr. Escobar’s name, and
describing him as the ‘Director of Sales’ for ‘CUAutoLink.org.’ Attached
as Exhibit D is a true and correct copy of a print-out of a page from
the ‘California Credit Union Collectors Council,’ www.ccucc.coni/vendors,
which describes CUAutoLink and Mr. Escobar as follows:

CUAutoLink is a Southern California based Car Buying Service
specializing in Credit Union Loan Retention along with exceptional
Member Service and overall Value. For over 25 years, Dave Escobar
has been helping Credit Unions increase their auto loan portfolio via
weekend Tent Sales and an everyday car buying program offering
all makes, all models, competitive pricing and concierge service,
while making sure the auto loan remains with the Credit Union.

12. The business described in paragraph 11 is one that is in direct
competition with CarQuest Auto, whose primary customer base is credit
unions…
13. Mr. Escobar currently is working with at least the Glendale Area
Schools Federal Credit Union. Escobar parks in the Glendale Area
Schools FCU lot, and he has a table in the credit union’s office lobby.
14. The multi-year involvement with credit unions described in paragraph
11, above, is exactly why CarQuest Acquisition purchased CarQuest Auto
Buying from Escobar. It also is why Escobar was retained to continue as
an employee of CarQuest Auto Buying. This is all part of the good will
and relationships that CarQuest Acquisition believed it was acquiring
when it purchased the business from Escobar. CarQuest paid money to purchase a business that it intended to expand using the connections
and relationships established by Escobar. That, unfortunately, has not
happened…” (Baghdasarian Declaration, ¶¶ 11-14).

14. Paragraph 7 of the parties’ “Stock Purchase Agreement” (Declaration of Zareh Baghdasarian [hereinafter, “Baghdasarian”], Exhibit “A,” pp. 8-10) reads as follows:

“7. Noncompetition.

7.1 Consideration. The Parties have negotiated the noncompetition provisions of this Agreement as an integral part of the Contemplated Transactions. Owner acknowledges that he will receive substantial benefits from the payment of the Purchase Price and the performance of other obligations hereunder by Buyer and acknowledges that Buyer is willing to pay the Purchase Price and proceed with the Contemplated Transactions because of the Company’s Customer, employee, and agent relationships, and other prospects, and that such prospects would be severely and irreparably harmed by competition from Owner. Owner further acknowledges that Buyer would not have entered into this agreement and consummated the Contemplated Transactions without the noncompetition provisions contained herein. Owner agrees that the noncompetition provisions are reasonable and are necessary to induce Buyer to enter into this Agreement and consummate the Contemplated Transactions.

7.2 Scope. In consideration of the Closing of this Agreement and the Contemplated Transactions, Owner agrees that Owner shall, directly or
indirectly, for a period of five(S) years following the Closing, or, if longer,
the expiration of the restrictive covenants contained in Section 5 of the Employment Agreement:

7.2.1. Engage in a Competitive Business (as defined in this Section 7.2)
or undertake any planning to engage in a Competitive Business within the United States. Specifically, but. without limiting the foregoing, Owner agrees that Owner will not work or provide services in any capacity, whether as an employee, independent contractor or otherwise, whether with or without compensation, to any Competitive Business in the United States; provided that following termination of Owner’s employment with the Company, such restrictions shall apply only with respect to those states within the United States where the Buyer or any of its affiliates were providing any of the services included in Competitive Business or in active planning to provide such services at any time during the twelve (12) month period immediately preceding the date on which Owner’s employment with the Company is terminated. The foregoing, however, shall not prevent passive ownership by Owner of three percent (3%) or less of the equity securities of any publicly traded company.

#7.2.2 Solicit or encourage any customer, client, vendor, dealer, or insurance company of the Company, Buyer, or any of their respective affiliates or any other individual, entity, or governmental body (collectively, ‘Person’) having a business relationship with the Company, Buyer, or any of its affiliates to terminate or diminish such relationship with the more seek to persuade any current or prospective customer, client vendor, dealer, or insurance company of the Company, Buyer, or any of their respective affiliates to conduct with Owner or any other Person any business or activity that such customer, client, vendor, dealer, or insurance company conducts or could conduct with the Company, Buyer, or any of their respective affiliates; provided that following termination of Owner’s employment with the Company, any such customer, client, vendor, dealer, or insurance company was a customer, client, vendor, dealer, or insurance company of Buyer at any time during the twelve (12) months immediately preceding the date on which Owner’s employment with the Company is terminated, or any such prospective customer, client, vendor, dealer, or insurance company
had been solicited on behalf of Buyer or any of its affiliates by any officer, employee, or agent of Buyer or any of its affiliates at any time during the
twelve (12) months immediately preceding the date on which Owner’s employment with the Company is terminated, other than by form letter,
blanket mailing, or general advertisement:

7.2.3 (a) Hire or solicit for hire any employee of the Company, Buyer, or
any of their respective affiliates or seek to persuade any employee of the Company, Buyer, or any of their respective affiliates to discontinue employment or (b) solicit or encourage any independent contractor or agent providing services to the Company, Buyer, or any of their respective affiliates to terminate or diminish its/his/her relationship with the Company, Buyer, or their respective affiliates; provided that following termination of Owner’s employment with the Company, an ‘employee,’ ‘independent contractor,’ or ‘agent’ of the Company, Buyer, or their respective affiliates shall mean only a person who has provided services to the Company, Buyer, or their respective affiliates at any time during the twelve (12) months immediately preceding the date on which Owner’s employment with the Company is terminated.

7.2.4 Disparage the Company, Buyer, or any of their respective affiliates,
their business or their management.

For the purposes of this Section 7, ‘Competitive Business’ shall mean any business directly or indirectly competing with the business of the Company, Buyer, or their respective affiliates, including, without limitation, the business of acting as a dealer broker with respect to, and/or engaging in, the business of locating and delivering new and/or
used vehicles and/or selling products related to such vehicles, and any other activity related thereto. The obligations of Owner under this Section 7 are referred to herein as the ‘Noncompetition Obligations.’

7.3 Enforceability in Jurisdictions. The Parties intend to and hereby confer jurisdiction to enforce the Noncompetition Obligations upon the courts of any jurisdiction within the United States in which a breach of the Noncompetition Obligations occurred. Each of the Parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objections to venue laid therein. If the courts of any one or more jurisdictions hold the Noncompetition Obligations unenforceable by reason of the breadth of their scope or otherwise, it is the intention of the Parties that such determination not bar or in any way affect Buyer’s right to the relief provided for in this Section 7 in the courts of any other jurisdiction within the United States, as to breaches of the Noncompetition Obligations in such other respective jurisdictions, the Noncompetition Obligations as they relate to each jurisdiction being, for this purpose, severable into diverse and independent obligations. Process in any action or proceeding to enforce the Noncompetition Obligations may be served on any party anywhere in the world.

7.4 Severability. The covenants set forth in this Section 7 shall be deemed and construed as a separate agreement independent of any other provisions of this Agreement or any other agreement between Buyer, the Company, and/or Owner. The existence of any claim or cause of action by Owner, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Buyer or the Company of the covenants of this Section 7.

7.5 Relief. Owner acknowledges that the injury that would be suffered by
the Company and/or Buyer as a result of a breach of the provisions of this Section 7 would be irreparable and that the award of monetary damages for such breach would be an inadequate remedy. Consequently, the Company and Buyer shall have the right, in addition to any other rights they may have, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provision of this Section 7, and neither the Company nor Buyer shall be obligated to post bond or other security in seeking such relief.”

15. ¶ 5 of the parties’ Employment Agreement states as follows:

“5. Restricted Activities. You acknowledge that in your employment
with the Company you will have access to Confidential Information
which, if disclosed, would assist in competition against the Company
and its Affiliates and that you also may have access to the customers,
employees and/or other valuable business relationships of the
Company and its Affiliates in the course of your employment. You agree
that the following restrictions on your activities during and after your
employment are therefore necessary to protect the goodwill,
Confidential Information and other legitimate interests of the Company
and its Affiliates and also acknowledge that your agreement is
supported by good and valuable consideration including, but not limited
to, your employment with the Company in accordance with this
Agreement. You therefore agree as follows:

a. (i) While you are employed by the Company, (ii) during the twelve
(12) months immediately following termination of your employment by
the Company for Cause, (iii) during the twelve (12) months immediately
following termination of your employment by you, and (iv) during the
Option Period (if any), you will not, directly or indirectly, whether as
owner, partner, investor, consultant, agent, employee, co-venturer or
otherwise, engage in a Competitive Business or undertake any planning
to engage in a Competitive Business within the United States.
Specifically, but without limiting the foregoing, you agree that you will not
work or provide services in any capacity, whether as an employee,
independent contractor or otherwise, whether with or without
compensation, to any Competitive Business in the United States. For
purposes of your obligations hereunder following termination of your
employment with the Company, however, these restrictions shall apply
only with respect to those states within the United States where the
Company or any of its Affiliates were providing any of the services
included in Competitive Business or in active planning to provide such
services on the date your employment terminated or at any time during
the preceding twelve (12) months. The foregoing, however, shall not
prevent your passive ownership of three percent (3%) or less of the
equity securities of any publicly traded company. You acknowledge that
you shall be bound by the restrictions of this Section 5.a following
termination of your employment by the Company for Cause and following termination of your employment by you (regardless of the reason for such termination), without further notice (other than as provided in Section 9.b.)
or additional consideration from the Company.

b. To bind you to the restrictions of Section 5.a. during the Option Period,
the Company must give you written notice at the time your employment is terminated, or within ten (10) business days thereafter, that it intends to
bind you to the restrictions of Section 5.&, and during the Option Period you
shall be continuously bound to refrain from the activities restricted by
Section 5.a. for so long as the Company continues to pay you the Option
Period Severance. The Company shall have the option to terminate the
Option Period Severance at any time during the Option Period, and if it
does so, the Option Period shall terminate and you shall be free to engage
in activities that would otherwise violate the provisions of Section 5.a. at
any time after the last day of any payroll period for which you received
payment.

c. You further agree that, while you are employed by the Company and
during the twenty- four (24) months immediately following termination of
your employment (regardless of the reason for such termination or the
timing of such termination) (in the aggregate, the “Non-Solicitation Period),
you will not, directly or indirectly, (i) hire or solicit for hire any employee of
the Company or any of its Affiliates or seek to persuade any employee of
the Company or any of its Affiliates to discontinue employment or (ii) solicit
or encourage any independent contractor or agent providing services to the Company or any of its Affiliates to terminate or diminish its/his/her
relationship with them. For purposes of your obligations hereunder following termination of your employment with the Company, however, an ‘employee,’ ‘independent contractor,’ or ‘agent’ of the Company or any of its Affiliates
shall mean only a person who is providing services to the Company or any
of its Affiliates on the date your employment terminated or at any time
during the preceding twelve (12) months.

d. You further agree that, during the Non-Solicitation Period, you will not,
directly or indirectly, solicit or encourage any customer, client, vendor,
dealer, or insurance company of the Company or any of its Affiliates or
any other Person having a business relationship with the Company or any
of its Affiliates to terminate or diminish its relationship with them or seek to persuade any current or prospective customer, client, vendor, dealer, or insurance company of the Company or any of its Affiliates to conduct with
you or any other Person any business or activity which such customer,
client, vendor, dealer, or insurance company conducts or could conduct
with the Company or any of its Affiliates; provided, however, that such
current customer, client, vendor, dealer, or insurance company was a
customer, client, vendor, dealer, or insurance company at any time during
the twelve (12) months immediately preceding termination of your
employment and such prospective customer, client, vendor, dealer, or
insurance company has been solicited on behalf of the Company or any of
its Affiliates by any of their officers, employees, or agents at any time
during the twelve V (12) months immediately preceding termination of
your employment, other than by form letter, blanket mailing, or general advertisement

e. You further agree that during the Non-Solicitation Period you will not
disparage the Company or any of its Affiliates, their businesses or their management.”