Red Sense LLC v. Bohuslavskiy, 2025 WL 3539968, No.
25cv12281 (EP) (AME) (D.N.J. Dec. 10, 2025)
This case illustrates that tortious interference has a small
remaining scope—where there’s no “commercial advertising or promotion” because
of the failure to solicit a substantial number of the relevant consumers in the
context of the relevant industry, targeting specific consumers with false
claims can still constitute tortious interference. The preliminary injunction
bars both targeting and certain public statements, which the court warns it
will treat as targeting. I’ll ignore the trade secret claims, but they are also
present.
RedSense offers cybersecurity threat monitoring and
reporting services. Bohuslavskiy was RedSense’s former Chief Research Officer;
Red Sense targeted his acts both before and after his resignation. (The
principals left another company to found RedSense and recruited him from there,
which probably makes their trade secret claims seem bitterly ironic to their former
employers.) [Information about clients redacted.] RedSense alleged that, for cybersecurity
companies—which have intimate knowledge of their customers’ vulnerabilities—a
“rumor regarding impropriety, ethical concerns, or a similar vulnerability is
enough to ruin the service provider’s reputation and cause a customer to seek
their threat intelligence from another more reputable source that they can
trust.”
Bohuslavskiy agreed to provide “ ‘in kind funding’ in the
form of Threat Intelligence and Intellectual Property for [RedSense’s] benefit
and use by [RedSense] in lieu of the $100,000 seed funding contribution.” Bohuslavskiy
represented to RedSense to that he had ownership rights in this IP as a
co-founder of the previous employer.
Bohuslavskiy allegedly promised multiple customers an
AI-driven search and report generation tool that would allow RedSense to
provide more targeted threat intelligence reporting, but did not deliver. Key
customers such as [Redacted] allegedly “have questioned the value of the
RedSense deliverables absent this automation tool.”
Bohuslavskiy disputed RedSense’s account and argued that he
was developing the AI tool on the side, and delivered a different product as
promised. He alleged that a key principal attacked Bohuslavskiy’s ethnicity and
immigration status, and that his complaints were ignored: After Bohuslavskiy
“confided” in a different principal about his concerns as an immigrant in light
of the new administration, the other one implied via text that he would report
Bohuslavskiy and his family if Bohuslavskiy did not “do [his] job.” At an
emergency partner meeting, another principal allegedly stated that RedSense was
“in the zone of insolvency” and suspended all partner distributions. Bohuslavskiy’s
position was rendered an “unpaid job,” and Bohuslavskiy and his team went weeks
without pay. He ultimately resigned, with his brother, “[d]ue to the unilateral
and arbitrary use of company finances by the CEO—actions [they] perceive as
coercion against our subordinates—as well as breaches of signed contracts and
unresolved financial disputes.”
However, he argued that he resigned only as CRO and retained
his partnership interests. Via email, he stated that, “as a partner of
RedSense,” he would “be informing each customer about this illegal action
tomorrow, as well as what lead [sic] to it. With all screenshots and evidence
attached.”
As promised, despite a C&D from RedSense’s counsel, Bohuslavskiy
began contacting many of RedSense’s existing and prospective customers—at least
a dozen. In emails to at least two customers, Bohuslavskiy stated he “recently
resigned from RedSense due to ethical and contractual concerns” and that
despite his resignation, he remains a co-founder, partner, and shareholder of
RedSense, and therefore, will continue to honor his obligations to ensure
“seamless intel provision and continuity.” In some follow-up emails,
Bohuslavskiy also provided threat intelligence reports and offered to schedule
a briefing with a client “consistent with [his] previous briefings.” He also
made a public LinkedIn post regarding his resignation as CRO from RedSense.
According to Red Sense, customers are not sure who is
responsible for providing the contracted-for services—RedSense or Bohuslavskiy—and
some customers have even asked whether Bohuslavskiy’s emails are part of a scam
or from an individual pretending to be Bohuslavskiy. Some customers were unsure
of Bohuslavskiy’s status with RedSense given his representations that he is
still operating as a representative of RedSense. Several previously satisfied customers
“informed RedSense this ongoing issue with Bohuslavskiy has stained RedSense’s
reputation and has undermined the otherwise high quality of services customers
have received from RedSense.” [Redacted]—RedSense’s largest customer—has
directly expressed disappointment and has yet to pay past due subscription fees
to RedSense. The Director of Cyber Intelligence and Threat Engineering at
[Redacted]–“a strategically important client of RedSense”—told RedSense that it
needed to “work it out” with Bohuslavskiy. [Wonder what they’ll think of this
result.] A prospective client also supposedly halted discussions with RedSense
when Bohuslavskiy made public comments regarding his resignation.
RedSense’s Lanham Act false advertising arguments centered
on the emails to “a handful” of RedSense customers. In previous cases allowing claims based on a
few contacts to proceed, “the fact the defendant reached a significant portion
of the target audience with its statements was key to the determination that
the sharing of information even with a small number of individuals was
sufficiently disseminated to be actionable under the Lanham Act.” Here,
however, the numerator was “slightly more than a dozen,” and the denominator
was a market that is “large and highly competitive … across various industries,”
including healthcare. The relevant purchasing public thus included “entire
industries, and therefore, is comprised of at least hundreds, if not thousands
of companies.” Thus, the emails were not sufficient to constitute advertising
or promotion.
But tortious interference succeeded! The court found “a
clear intention to maliciously interfere with RedSense’s current contracts.” He
badmouthed RedSense and offered to “honor” its obligations to customers, and
provided one with a bespoke report that included analysis for [Redacted] on its
particular vulnerabilities.
“Bohuslavskiy knew or (at the very minimum) should have
known that sending emails directly to known RedSense customers could lead to
interference with RedSense contracts.” What is wrongful about the underlying
behavior? The court isn’t entirely clear, mentioning falsity but not identifying
anything specifically as false. It might be more trade secret-y, since the
court also quoted another case stating that the “taking of plaintiff’s
confidential and proprietary properly and then using it effectively to target
plaintiffs’ clients, is contrary to the notion of free competition that is fair.”
“His emails make clear he resigned due to ethical and contractual concerns and
that RedSense cut his access to corporate channels of communication, but he
also referenced ‘we’ and an intent to ensure seamless integration and
continuity.” Thus, “by reaching out to known RedSense clients and providing
them with bespoke information and data relevant to their specific needs, he
knew or was substantially certain that he would be maliciously interfering with
RedSense’s contracts.”
What about loss causation and damages? [Redacted 1’s]
complaints were apparently “rooted in product and service-related issues.” [Not
what I’d want in an opinion giving me injunctive relief.] Even if those
concerns traced back to Bohuslavskiy’s alleged failure to deliver the new AI
product, that was separate from whether he has tortiously interfered with
RedSense’s contract with [Redacted] by sending them emails.
But [Redacted 2] also apparently informed RedSense that it
would not be renewing its subscription service, citing “Bohuslavskiy’s actions
as a primary concern” because, despite blocking “Bohuslavskiy’s personal Gmail
address ... Bohuslavskiy continued to make contact on non-blocked platforms,
including on Signal using an alias.” [Redacted 2] also “articulated security
concerns about Bohuslavskiy, including that it feels vulnerable due to
Bohuslavskiy’s knowledge of the customer’s cybersecurity concerns.” Thus, RedSense
did show causation and damages from that contract.
What about tortious interference with prospective economic
advantage? RedSense also showed that it was engaged in “serious discussions
with [Redacted], and an executive at [Redacted] told Miller that unless
RedSense resolves its issues with Bohuslavskiy, [Redacted] would not retain
RedSense’s services.” [Is that caused by defendant’s tortious behavior, or
caused by the split? The court does express desire for more detail, presumably
as we move on from the PI stage.]
Even if a defendant did not know of a specific contract, he
may still be liable for tortious interference if he intended to harm a specific
plaintiff, had knowledge of a particular “category of contracts,” and “the
resulting consequential damage to that plaintiff was a proximate result of the
defendant’s conduct.” This meant that Bohuslavskiy’s LinkedIn post could
constitute tortious interference. But, at this stage, that wasn’t enough.
While Bohuslavskiy’s LinkedIn post states that he resigned
from RedSense due to “ethical and contractual concerns”—which the court called “a
concerningly vague and ominous remark”—that was not the type of conduct that is
generally actionable under a claim for tortious interference: there was no
trade secret misappropriation or other wrongful attempt to lure away customers.
Plus, it wasn’t even clear that RedSense’s contracts with customers should be
considered one “category.” It was not clearly reasonably foreseeable that
prospective clients like [Redacted] would decide not to enter agreements with
RedSense based on Bohuslavskiy’s LinkedIn post.
But he could still have interfered with prospective contract
renewals with existing customers, so the same evidence above justified finding
likely success on the merits with respect to the emails.
Although economic loss isn’t irreparable harm, RedSense
showed irreparable harm because Bohuslavskiy reached out to over at least a
dozen other RedSense clients in a similar manner to how he contacted [Redacted]
“It is entirely reasonable for RedSense to fear that Bohuslavskiy’s others may
terminate their current contracts or decide not to renew their contracts the
way [Redacted] did.” Lost goodwill was also sufficient for irreparable harm.
Bohuslavskiy maintained that his outreach to customers was
solely in his capacity as a RedSense partner—not as part of a competing
venture. “If that is true, then Bohuslavskiy has no competing venture that
faces a potential loss of business from an injunction, and given his position
that he is a partner in RedSense, he has a strong interest in limiting
reputational and financial harm to RedSense.”
Thus, the court enjoined Bohuslavskiy from: (1) publicly or
privately soliciting and/or contacting RedSense’s current customers and known
prospective customers; (2) publicly or privately denigrating the quality of
RedSense’s cybersecurity services to RedSense’s current customers and known
prospective customers; and (3) publicly or privately making statements about
RedSense and/or its products and services for the purpose of stealing business
away from RedSense. The court limited (1) to “customers Bohuslavskiy
specifically knows RedSense was soliciting. Given wide swaths of companies
could potentially be RedSense customers, the Court will not prohibit
Bohuslavskiy from seeking to do business with companies he is not aware
RedSense sought to do business with.”
Comment: Why is (2) ok? Some of this would be
nonfalsifiable, and we have no finding that any of it is untrue. Shouldn’t the
remedy be limited to prohibiting him from soliciting known customers? Seems
like a First Amendment problem, especially if he’s not engaging in competing
commercial activities. Indeed, in a footnote, the court specifically says: “With
respect to enjoining Bohuslavskiy from making false statements publicly or
privately about RedSense, RedSense failed to establish a violation of the
Lanham Act.” So why is it ok to enjoin an even broader category of
statements—negative statements, regardless of truth or falsity? In another
footnote, the court justified its restriction on public statements because “RedSense
has shown that prospective clients have seen Bohuslavskiy’s LinkedIn post, and
that the post has already caused one prospective client to not move forward
with RedSense at this time,” so the court warned the defendant that “future public statements may further interfere
with RedSense’s business expectancies.” But why would public, untargeted statements, if not false or not falsifiable, be tortious?
Is “gag one party to prevent him from speaking” really the
resolution that RedSense’s clients and potential clients wanted to bring them confidence?
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