Jerry Powers, the founder of Miami’s successful magazine, Ocean Drive, has sued the purchaser of the business and now-publisher of the magazine, Niche Media Holdings, LLC (“Niche Media”) seeking a declaratory judgment that the non-compete restrictions contained in the parties’ asset purchase agreement (“APA”) and the employment agreement he entered into following the sale do not (a) prevent Powers from helping inner-city youth publish their own magazine (Inspire, Enrich & Empower or IE2) as part of a non-profit effort and (b) prevent Powers from working in the luxury magazine world after November 1, 2009. In the 126-page complaint, including exhibits, Powers alleges that there are inconsistencies in the provisions of the APA and his employment agreement, but that under the APA, his restrictive covenants cease as of November 1, 2009. Niche Media, according to the complaint, contends that the restrictive covenants last until February 17, 2011 — a rather significant difference in time. In support of his theory, Powers points to the provision in the employment agreement that says that terms of the APA are controlling if there is any conflict between the APA and the employment agreement.
In the complaint, Powers claims that he filed suit based on the “intermeddling” of Niche Media in his efforts to publish IE2. Indeed, Powers claims that Niche Media threatened to sue to stop the publication of IE2.
The parties’ dispute has attracted some media attention with the Miami Herald and Law360 reporting on it. The interest may derive in part from the charity involved in publishing IE2, Overtown Youth Center, is supported by Alonzo Mourning Charities. Alonzo Mourning is a retired NBA star who played for the Miami Heat.
Yet, without so much as an opposing brief being filed by Niche Media, the day after filing, the Court denied Powers’s request for emergency relief. The Court rejected the emergency nature of the brief, saying
the Complaint and Motion fail to set out in detail good cause of the necessity of expedited procedures, as required in an emergency motion. Finally, the Court notes that the Complaint does not clearly allege a case or controversy that is ripe for adjudication, specifically as to the request for declaratory and injunctive relief regarding the expiration of the non-competition and non-solicitation provisions.
This early of a set-back in a case of this sort may not bode well for Powers. And, solely in my opinion (of course), Powers may need to be considering amending his complaint to avoid a motion to dismiss based on the Court’s statements in her order.