DECISION AND ORDER Plaintiff Flatiron Health, Inc. (“Flatiron”) brought this action against its former employee, defendant Kenneth Carson, M.D. (“Carson”), to enforce a non-compete agreement.1 Flatiron claimed that Carson anticipatorily repudiated the terms of the parties’ Covenants Agreement (the “Covenants Agreement”) by informing Flatiron that he accepted a job at Tempus Labs, Inc. (“Tempus”) and planned to immediately begin work there. Flatiron sought a declaratory judgment, pursuant to 28 U.S.C. Section 2201, determining that the Covenants Agreement bars Carson from working for Tempus and soliciting Flatiron customers and employees for one year following his separation from employment by Flatiron, and that it also bars Carson from retaining, using, or disclosing any of Flatiron’s trade secrets and confidential information. In addition, Flatiron asked the Court for injunctive relief restraining Carson, until September 26, 2020, from violating the terms of the Covenants Agreement, including by working for Tempus, soliciting Flatiron’s customers, or revealing Flatiron’s trade secrets or confidential information. The Court held a bench trial on January 27, 28, and 30, 2020 to adjudicate Flatiron’s claims. On February 19, 2020, the Court issued a judgment denying Flatiron’s request for a declaratory judgment that the Covenants Agreement bars Carson from, among other things, working for Tempus for one year following his separation from employment by Flatiron. (See Dkt. No. 94.) The Court also denied Flatiron’s request for an injunction restraining Carson, until September 26, 2020, from working for Tempus, soliciting Flatiron’s customers, or revealing Flatiron’s trade secrets or confidential information. The Court indicated that a formal Decision and Order stating the Court’s findings, reasoning, and conclusions would follow. Shortly thereafter, Flatiron filed a motion (the “Motion”), under Federal Rule of Civil Procedure 62(d) (“Rule 62(d)”), asking the Court to enjoin Carson from working for Tempus or, alternatively, from violating certain limitations on the scope of his employment at Tempus, pending appeal of this Court’s decision to the United States Court of Appeals for the Second Circuit. Flatiron also asked the Court to temporarily restrain Carson from working for Tempus while Flatiron’s Rule 62(d) motion was pending. Carson submitted an opposition (“Defendant’s Opposition”) to Flatiron’s requests, and Flatiron submitted a reply (“Plaintiff’s Reply”). On March 20, 2020 the Court issued a decision (the “March 20, 2020 Decision”) setting forth the Court’s findings of fact and conclusions of law in support of its February 19, 2020 judgment as required by Federal Rule of Civil Procedure 52(a). See Flatiron Health, Inc. v. Carson, No. 19 Civ. 8999, 2020 WL 1320867 (S.D.N.Y. Mar. 20, 2020). For the reasons set forth below, the Court now DENIES Flatiron’s request for a temporary restraining order, DENIES Flatiron’s request for an injunction prohibiting Carson from working for Tempus pending appeal of this Court’s decision to the Second Circuit, and GRANTS IN PART Flatiron’s request for an injunction requiring Carson to abide by certain limitations on the scope of his employment at Tempus pending appeal of this Court’s decision to the Second Circuit. I. BACKGROUND A. THE COURT’S MARCH 20, 2020 DECISION As set forth in the Court’s March 20, 2020 Decision, the Court found that “Carson’s role as Vice President of Clinical Solutions at Tempus would not overlap with his former employment at Flatiron.” Flatiron Health, 2020 WL 1320867, at *11. More specifically, the Court found that “Carson’s role at Flatiron involved generating new evidence to assist pharmaceutical companies, while Carson’s role at Tempus is to assist doctors in applying existing evidence to treat individual patients.” Id. (emphasis in original). The Court determined that Carson’s role at Tempus would focus, in particular, on “identifying ways to help physicians use [Tempus's lab reports] more effectively to make informed treatment decisions for their patients.” Id. Thus, “[a]ny data Carson collects and analyzes [at Tempus] will be data regarding physicians’ use of Tempus’s [lab reports]” — for example, “ how often physicians prescribe the drugs that the lab report identifies as potentially appropriate for them.” Id. at *12. The Court determined that “conducting such analyses will not risk the use or disclosure by Carson of any Flatiron trade secrets.” Id. The Court concluded that the non-compete provision (the “Non-Compete”) in the Covenants Agreement was “broader than necessary to protect Flatiron’s legitimate business interests” and therefore unenforceable. Id. at *22. For example, the Non-Compete “would prohibit Flatiron employees from working for companies that provide payroll or human resources ‘software products’ to hospitals” even though Flatiron does not sell such software. Id. at *20. Applying the considerations set forth by the New York Court of Appeals in BDO Seidman v. Hirshberg, 712 N.E.2d 1220, 1223 (N.Y. 1999), the Court further held that Flatiron had not “demonstrated its entitlement to partial enforcement of the Non-Compete.” Id. at *23-24. The Court concluded, in particular, that “the Non-Compete’s overbreadth is so obvious that Flatiron could not, in good faith, require almost all employees to agree to its terms.” Id. at *24. Accordingly, the Court held that Carson had not anticipatorily breached the Non-Compete and denied Flatiron’s request for a declaratory judgment that the Covenants Agreement barred Carson from working for Tempus. Nonetheless, the Court held that the separate nondisclosure provision of the Covenants Agreement remained enforceable and granted Flatiron’s request for a declaratory judgment that Carson is contractually bound not to use or disclose Flatiron’s trade secrets and confidential information. The Court also denied Flatiron’s request for a permanent injunction based on the Court’s conclusion that Flatiron had not demonstrated irreparable harm. Although Flatiron demonstrated that Carson possessed knowledge of certain Flatiron trade secrets, the Court held that Flatiron did not demonstrate a risk that Carson would use or disclose those trade secrets in his role at Tempus. B. THE PARTIES’ ARGUMENTS In its Memorandum in support of its Rule 62(d) Motion (“Plaintiff’s Memorandum”), Flatiron argues that it has shown the requisite possibility of success on appeal with regard to its claim that Carson anticipatorily repudiated the Non-Compete and its argument that Flatiron is entitled to a permanent injunction. (Pl.’s Mem. 7.) Flatiron contends that evidence adduced at trial indicates that: Carson will be working with real-world data at Tempus in a manner that will require him to use Flatiron’s trade secrets, Tempus does not take seriously Carson’s obligations to Flatiron, and Tempus lacks formal mechanisms to ensure Carson is not placed in a position where he could inadvertently disclose Flatiron’s trade secrets. Flatiron argues that, in light of this evidence, its argument that Carson’s role at Tempus will violate the Non-Compete has a substantial possibility of success on appeal. Flatiron asserts that the agreement between Carson and Tempus to limit Carson’s role until the Non-Compete expires presents a novel legal fact pattern. With regard to its anticipatory repudiation claim, Flatiron contends it has shown a possibility of prevailing on appeal based on the theory that the Court should have partially enforced the Non- Compete. Flatiron also argues that it faces a risk of irreparable harm. It asserts that the promised limitations on Carson’s role are unenforceable and not an adequate substitute for an injunction. Flatiron insists that, even if Carson’s role at Tempus is as limited as he has promised, he might somehow unintentionally use or disclose Flatiron’s trade secrets. Flatiron contends that Carson would not be substantially harmed by an injunction prohibiting him from working at Tempus because Tempus paid him six months’ salary and he has alternative employment and investment opportunities. Flatiron similarly argues that Carson would not be substantially harmed by an injunction that requires him to abide by limitations on his role at Tempus to which he testified he will adhere. Flatiron further asserts that, by protecting Flatiron’s confidential information, an injunction would benefit the public interest. In opposition, Carson argues that Flatiron is reiterating arguments that the Court already rejected and thus has not shown the requisite possibility of success on appeal. Carson maintains that Flatiron did not, in fact, demonstrate Carson’s knowledge of its trade secrets at trial. While Carson testified that he gained knowledge of some Flatiron confidential and trade secret information, Carson argues that Flatiron has not demonstrated what specific Flatiron information he knows that has not become stale. Carson also contends that Flatiron ignores testimony at trial demonstrating that the manner in which Carson will be using data at Tempus will differ substantially from his data-related work at Flatiron such that he will not be at risk of using or disclosing Flatiron trade secrets. Relatedly, Carson argues that, in an attempt to identify evidence in its favor, Flatiron has resorted to mischaracterizing testimony and other trial evidence. In particular, Carson asserts that Flatiron mischaracterizes testimony concerning the relevance of real-world evidence to Carson’s role at Tempus. Carson argues that, insofar as Flatiron takes issue with the Court’s findings of fact, which will be reviewed deferentially on appeal, it has not demonstrated a sufficient possibility of success. Carson also points out that this case does not present a novel fact pattern insofar as the Second Circuit has previously considered a non-compete case where the employee and his new employer agreed to limit the scope of his role while the employee was bound by a non-compete. (See Def.’s Opp. 6-7 (citing Int’l Bus. Machs. Corp. v. Visentin, No. 11 Civ. 399, 2011 WL 672025 (S.D.N.Y. Feb. 16, 2011), aff’d, 437 F. App’x 53 (2d Cir. 2011)).) In addition, Carson argues that Flatiron has waived any argument for partial enforcement of the Non- Compete, and, in any event, that Flatiron does not attempt to explain why it would be entitled to partial enforcement. Carson asserts that the Court rejected Flatiron’s arguments as to irreparable harm in denying Flatiron’s request for an injunction and that Flatiron offers no new arguments or facts suggesting a risk that Carson will use or disclose Flatiron’s trade secrets. Moreover, Carson notes that Flatiron ignores testimony and other trial evidence regarding Tempus’s restrictions on Carson’s role and, specifically, his access to Tempus’s data sets. Carson explains that an injunction would cause him considerable harm. He points out that Tempus agreed to pay him only six months’ salary if he were enjoined from working there and that he cannot reasonably be expected to find a job as an oncologist for a six-month term given that oncology is a practice that requires longitudinal care. He notes that he has not been able to identify opportunities to serve as an expert witness prior to 2021 and that the investment opportunity Flatiron refers to would not provide income comparable to his salary at Tempus. Carson further argues that the public has an interest in ensuring that overly broad non-competes are invalidated. According to Carson, granting a further stay would discourage similarly situated employees from challenging unjustifiably broad and anti-competitive non-competes. Carson maintains that the public interest will be harmed by an injunction that would prevent Carson from applying his education and experience to improve the treatment of cancer patients. Finally, Carson argues that, contrary to Flatiron’s representations, the supposedly narrower injunctive terms do not align with the limitations he and Tempus already placed on his role but would, in fact, require Carson to forego working at Tempus entirely. Flatiron replies that it has made an adequate showing of a possibility of success and irreparable harm. (See Pl.’s Reply.) In particular, Flatiron asserts that Carson will be working at Tempus without formal mechanisms to wall him off from Tempus’s business segments that compete with Flatiron. Flatiron argues that Carson never provided the Court with a clear description of his future role at Tempus. Moreover, Flatiron insists that other trial evidence casts suspicion on Carson’s testimony concerning the limits on his role at Tempus. For example, Flatiron emphasizes that Carson will report to Tempus’s Chief Medical Officer, Gary Palmer (“Palmer”); that Palmer did not participate in defining Carson’s responsibilities; and that Palmer expected Carson to work with Tempus’s pharmaceutical clients. Similarly, Flatiron maintains that the description of Carson’s role in his Tempus offer letter indicates that his role will require him to use or disclose Flatiron’s trade secrets. Moreover, Flatiron argues that, unless Carson is prohibited from speaking to Tempus employees who work in business segments that compete with Flatiron, Carson cannot avoid using or disclosing Flatiron trade secrets. Flatiron denies that it waived an argument for partial enforcement. Flatiron maintains that Carson may work as an oncologist, academic, and expert witness. Moreover, Flatiron insists that any marginal economic harm Carson may suffer is not severe enough to tip the balance of hardships in his favor. (See id. at 9.) II. LEGAL STANDARD “While an appeal is pending from [a]…final judgment that…dissolves…an injunction, the court may…grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). To decide whether to grant an injunction pending appeal, courts in the Second Circuit consider: (1) whether there is a substantial possibility, although less than a likelihood, of success on appeal; (2) whether there is a risk of irreparable injury to the movant absent a stay; (3) whether there is substantial harm to the non-movant stemming from the grant of a stay; and (4) any public policy interest that may be affected by the stay. Gulino v. Bd. of Educ. of City Sch. Dist. of City of New York, No. 96 Civ. 8414, 2019 WL 2454094, at *3 (S.D.N.Y. June 12, 2019) (quotations omitted). “The necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the other [stay] factors.” Mohammed v. Reno, 309 F.3d 95, 101 (2d. Cir. 2002) (quotations and citations omitted). Courts may, for example, “grant[] a stay pending appeal where the likelihood of success is not high but the balance of hardships favors the applicant.” Id. At the same time, however, courts are reluctant to grant an injunction pending appeal when doing so would, in effect, give the movant the “fruits of victory whether or not his appeal has merit.” Jimenez v. Barber, 252 F.2d 550, 553 (9th Cir. 1958); 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2904 (3d ed.) (“There is, of course, a considerable reluctance in granting an injunction pending appeal when to do so, in effect, is to give the appellant the ultimate relief being sought.”). III. DISCUSSION A. POSSIBILITY OF SUCCESS ON APPEAL In determining Flatiron’s possibility of success on appeal, the Court is asked to assess the probability that it has erred. See Hayes v. City Univ. of N.Y., 503 F. Supp. 946, 963 (S.D.N.Y. 1980), aff’d, 648 F.2d 110 (2d Cir. 1981). Relevant considerations include “the extent to which the decision is supported by precedent” and “the standard of review that will govern the appeal.” Id. At the outset, the Court observes that Flatiron’s argument appears principally to express disagreement with the Court’s credibility determinations and interpretation of the testimony and other trial evidence. For example, Flatiron maintains that evidence indicates that Carson’s role will entail working with real-world data in a manner that risks Carson using or disclosing Flatiron’s trade secrets. Flatiron focuses, in particular, on: how Carson’s offer letter from Tempus describes Carson’s role; how Tempus did not involve Palmer in defining Carson’s role; Palmer’s testimony that he expected Carson to work with Tempus’s pharmaceutical clients; how Tempus’s lab reports include insights drawn from real-world data; and communications in which Carson expressed his desire to participate in shaping Tempus’s long-term vision and strategy. The Court’s March 20, 2020 Decision, however, thoroughly explained why this evidence does not support an inference that Carson’s role at Tempus will involve using or disclosing Flatiron’s trade secrets. See Flatiron Health, 2020 WL 1320867, at *12-15. Flatiron next contends that Ryan Fukushima (“Fukushima”), Tempus’s Chief Operating Officer, contradicted his own and Carson’s testimony concerning the role of real-world data in Tempus’s clinical lab testing business and how Carson would use real-world data in his role at Tempus. But the Court heard and read this testimony, in full, for itself. As the Court’s March 20, 2020 Decision explained, the Court interprets Fukushima’s testimony that Carson would “be using aggregated data collected from real world settings” as “referring to how Carson would be helping physicians understand Tempus’s lab reports, which occasionally include insights based on realworld data.” Id. at *12 n.14 (quoting Tr. 420:3-5). The Court determined that none of Fukushima’s other statements — namely, that Carson will “help Tempus prioritize solutions that will leverage Tempus’s data to drive better clinical decisions at the point of care” and “make sure Tempus is…providing [doctors with] actionable insights from Tempus’s large library of data” — “in any way suggest[] that Carson himself will be analyzing data from patient records to generate insights that physicians can apply.” Id. (quoting the Jan. 23, 2020 Decl. of Fukushima
