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Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 1 of 22

UNITED STATES DISTRI
SOUTHERN DISTRICT OF NEW YORK

COURT

-------------- ---

---------------X

DEWITT STERN GROUP,

INC.,

Plaintiffs,

- against

RICHARD EISENBERG,

Defendant.

---x

A P PEA RAN C E S:

Att

for Plaintiff DeWitt

13 Civ. 3060

(RWS)

OPINION

GOLDBERG SEGALLA LLP

780 Third Avenue, Suite 3100

New York, NY
By: Peter J.

, Esq.


10017


g

Att

Eisenbe

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.
1745 Broadway, 2
New York, NY

Floor

10019

Aaron Warshaw

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 2 of 22

Sweet, D.J.

aintiff DeWitt Stern Group Inc. ("DeWitt" or "Plaintiff")

moves

r sanctions

Defendant

senberg ("

senberg" or

"

If) and

J. Gallagher & Co.

("AJG")

lectively, the "Defendants"),

s

on Defendant allegedly

vi ating the pre 1

nary injunction issued by this Court on

June 4, 2013. For

reasons set forth below, Plaintiff's

motion for sanct

is denied at this time.

THE PARTIES

DeWitt is a privately held insurance bro

and risk

management firm,

alizing (in part) in

for the

entertainment

try, with its primary place of business

rations and senior management located in New York.

(Memo.

opp. at 4.)

Eisenbe

is an establis

insurance bro

r.

(Affidavit

of Richard Eisenberg ("Ei

Af f. "); <]I 2 8.)

From 2007

until May 6, 2013, Eisenbe

was employed by DeWitt as a

or

Vice Pres

and producer, with his pr

responsibility to

sell film

surance products and oversee

handling of cl

accounts.

(Memo. at 5.) Eisenberg is currently employed by

AJG.

(Id. )

1


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 3 of 22

PRCOEDURAL HISTORY

On May 6, 2012, DeWitt filed a Complaint against Ei

rg

with an order to show cause for a

liminary injunction

prohibiting

s

from violat

s Employment Agreement,

in parti

ar with respect to

confidentiality and non-

solicitation provisions. On June 4, 2013, this court

Plaintiff's motion for a preliminary injunction to the extent it

prohibits De

from future v

ions of his Empl

Agreement

"June 4 Order").

preliminary injunction was

explic

ly modeled on the terms of the Employment

ement.

On June 18, 2013, PIa

iff filed the First

Compla

(the "FAC"). On July 17, 2013, Plaintiff filed an

order to show cause for sanct

This motion was

ard and

mar

ly submitted on Oct

r 2,2013.

FACTS

Prior to Eisenberg's

oyment at DeWitt,

worked at

Aon

S from 2001 until 2007.

(Eisenbe

f. ~~ 3, 10.) When

joined Aon/AGRIS,

was compensated

r

sale of his

bus

ss, client accounts and goodwill in

amount of

$400,000.

(Declarat

of Charles Johnson,

("Johnson Decl."); ~

2

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 4 of 22

5.) His

oyment with Aon/AGRIS t

re

re contained

restrict

covenants preventing him from soli

ting these

clients

r another firm, or competing with them if he were to

terminate his agreement.

(Id.)

In 2007, Eisenberg left Aon

S and joined DeWitt, and

shortly

reafter Aon/AGRIS

a Cross-Complaint against

DeWitt

Eisenberg alleging, among other things, that

Eis

s

had breached the restrict

covenant provisions in

, and that DeWitt

raided and tortuously

r

with its business by convincing customers to abandon

re

ionships with Aon

IS and move instead to

tt.

ng Decl. ~~ 14, 18.)

tt alleges that in order to free

Eis

rg from the restraints imposed by his contract wi

Aon/AGRIS, and to permit Ei

rg to lawfully solicit his

r clients for DeWitt,

tt entered into a settlement with

Aon/AGRIS in which DeWitt

Aon/AGRIS $425,000.

on

. ~ 6.) According to

tt, as a result of

s

settlement, which Eis

signed, Eisenberg was

tted to

solicit the business he

s

to Aon/AGRIS

and

continue cultivating

se relationships on behalf of DeWitt.

(Id. at ~~ 7-8.)

3


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 5 of 22

After Eisenberg joined DeWitt, Plaintiff alleges that

Eisenberg, in his capacity as Senior Vice Presi

and

producer, had access to DeWitt's confi

ial in

rmation and

trade secrets, including names and lists of accounts and

clients, names of key account contacts, account characteristics,

pricing information, and application

ion. Further,

DeWitt asserts that in the course of

s work for DeWitt,

Eisenberg was provided substantial support in his efforts to

make former Aon/AGRIS clients DeW

t clients, thereby building

his book of business, inc

ng:

(1) substant ial compensat ion on

commissions earned on

business;

(2)

two full-time employees

to assist him in servicing any business he could bring in; (3)

offices he could work out of on both coasts; and (4)an apartment

in California, half of whi

was paid for by DeWitt so he could

develop clients on t

west coast.

(Id. at <J[ 8.)

Eisenbe

also s

a series of employment agreements

with DeWitt, incl

s final agreement executed on or about

October 9, 2012

"Employment Agreement") .

(Declaration of

Peter S. Biging, ("Biging Declo ") .) The Employment Agreement in

Paragraph 5(a) states

"by signing this Agreement, Empl

e

acknowledges

s that the restrictive covenants contai

in this Agreement are reasonably necessary to protect

I S

4

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 6 of 22

business interests and that during and after the term of this

Agreement Employee will not use or

sclose, directly or

indirectly, and will keep strictly secret and confident 1 all

Confidential Information and Trade Secrets except as required in
. ) Further,

e's employment by Company."

the course of Empl

raph 5(c) of the Employee Agreement states that,

the term of

r any reason,

two (2) year

riod immediately

Secrets to s

icit, accept, divert, or ta

away,

company, Employee agrees that dur

In consideration of Employee's continued employment with
t
employment, and for t
following termination of employment
Employee will not use Company's Confidential Information or
T
whole or in part, directly or indirectly, any clients or
"Prospect" (as
solicit
indirectly under Employee's supervision, or with whom
Employee had any business relationship, within the two (2)
year period immediately
ior to Employee's termination
employment. For purposes of this Agreement, "Prospect"
shall
contact
termination of employment.

or serviced by Employee or by anyone directly or

defined as a potential customer known and

reinafter defined) of Company who were

by Employee or Company prior to t

date of

(Id. ) 1

The EmploYlT'.ent Agreement defines confidential information in paragraph 5 (a)

as including:

All information (whether or not
fically labeled or identified as

confidential, and whether oral, written, or in any electronic medium)

relating to Company's trade secrets, knowledge, data, financial

information, business methods and techniques, technology, processes,

_nnovations, concepts, names and lists of accounts, employees,

customers, clients, vendors, expiration information, name of

account contacts, account characteristics,
all other information re ating to Company that is unique,

or not in the public domain.


ication information, and


5

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 7 of 22

senberg voluntarily ag

to these provisions, which

an acknowledgement

Paragraph 6 of t

loyment

Agreement that, "[iJn the event

loyee breaches any of its

obligations under Paragraph 5 above the Company will su

r

irrepa

Ie injury, not

ly susceptible of va

tion in

monetary

s." (Id.) Accordingly, Eisenberg

that

DeWitt would be "entitled to injunctive relief aga

any

breach or pro

ive breach" by h

of the "obligations under

Paragraph 5

"

(Id.)

On April 30, 2013, Eisenberg contacted DeWitt and

st

a meeting on May 1, 2013 at DeWitt's corporate headquarters in

New York.

(Memo. at 10.) Eisenbe

canceled the meeting on May

1, and instead met with the Company's President and Chief

Operating

ficer (Charles Johnson) on May 6, 2013, where

announced his resignation.

(Id. ) Dur

this meeting,

Eisenberg has acknowledged that he t

's President

Charles Johnson

he would not

by

Employment

Agreement's non-sol

itation provision because he did not

believe any non-

was enforceable

inst him.

(Eisenbe

:Employ~en~ Agreement §5(a).) Trade Secret, also in Paragraph 5(a), is
defined as naIl information that Company reasonably informs Employee (whether
orally or in writ
other Confidential Information reasonably the
protection. Such information is considered secre~ and is disclosed to

) from time to time is a trade secret, as well as any

ect of trade secret

in confidence. u

(Id.)

6

------------------------- ---------------------------------

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 8 of 22

Aff. ~ 27.) Eisenberg

since stated that he Ie

because he felt undercompen

due to deductions reducing

s

income.

(Eisenberg Aff. ~~ 25-26.)

Within a day of the announcement of Eisenberg's departure,

DeWitt received a Broker of Reco

("BaR") Letter from one of

the clients Eisenberg se

at DeWitt notifying DeWitt of its

move to Gallagher.

(Johnson Decl. ~ 12.) DeWitt has since

received three more such BaR

ers, including one from a

client who had only come to

t

March of this year.

(See

ration of John Hamby,

("Hamby Decl.")i ~ 3.) The record

also shows that Eisenberg,

no later than March 18,

2013,

violating his Employment

reement by sending

con

1 information from his Company e-mail to his personal

e-mail

to Brian Kingman, Managing

rector at Gallagher, a

rect competitor of DeWitt.

(Memo. at 10.) More specifically,

Ei

ginning on April 30, 2013 th

May 4, 2013,

forwa

e-mails containing confidential

rmation and/or

t

secrets to his personal e-mail account,

luding:

(1) an

e-mail

scribing coverage issues for a current DeWitt client;

(2) interact

policy renewal applicat

a different

current

cl

;

(3) a current DeWitt client's movie

script,

, and other confidential in

rmation necessary to

7

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 9 of 22

solicit

liminary insurance quotes and (4) a current movie

client's cast log and medical

rms containing confidential

coverage

other information.

(See Biging Decl. ; Exhibit B.) 2

Additionally, DeWitt has est

ished that Eis

on April 17,

2013 in

s e-mail corre

with Brian Ki

shared

confidential information and/or t

secrets pertaining to a

business opportunity to place insurance on behalf of a client

with respect to a forthcoming fi

(Plaintiff's

r to Show

Cause, Exh. C.)

Immediately upon resigning on May 6, 2013, Eisenberg joined

Gallagher as Area Executive Vice President, where he is

responsible for producing business

his clients and

servicing t

bus

ss. (Eisenberg Aff. q[ 26.) Eis

, s

Employment

does not proh

it him from compet

with

The E:nploynem:

in Paragraph 5(b) states that,

or transferred to any memory storage device, online

Employee shall not retain copies, in any format, of Company
Employee agrees and understand that
time, be
account or person emai_ address that is maintained by or for
Such copying or transferring includes, for example, forwarding enails
or an attachment to a personal emai account, and exceeds the scope of
Employee's authority relating to the use of Co:npany's computer network
and electronic communications.

property shal~ not, at any

oynent Agreenent at § 5(b).) Company

y is defined as incl

but not being limited to, "all files, papers, memoranda, letters, emai sand
attachments, instant messages, handbooks and manuals, facsimile or other
communications that were written, authorized,

received or transmitted

Employee's employment." (Id.)

8

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 10 of 22

DeWitt in this new role so long as he is not using confidential

information obtained during his employment at DeWitt, or

attempting to divert clients

serviced while at DeWitt.

APPLICABLE STANDARD OF LAW

Rule 65(d) states that "[e]very 0

r granting an

injunction and every restraining order must: state the reasons

why it issued; state its terms specifically; and

scribe in

reasonable detail-and not by re

rring to the complaint or other

document-the act or acts retrai

or required." Fed.R.

. P.

65(d). As the Supreme Court noted, this rule "reflects Congress'

concern with the dangers inherent

the threat of a contempt

tation for violation of an order so vague that an enjoined

party may unwittingly and unintentionally transcend its bounds."

Int'l Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine

Tra

Ass'n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236

(1967)). Thus, the cIa

y of the order must be such that it

enables the enjoined party "to ascertain from the four corners

of the order precisely what acts are forbidden." Dry Wall Tapers

and Pointers of Greater New York, Local 1974 v. Local

o of

Operative Plasterers and Cement Masons Int'l Ass'n, 889 F.2d

389, 395 (2d Cir. 1989). Ambiguities are usually resolved in

favor of the party charged with contempt. See e.g., N.Y. Tel.

9

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 11 of 22

Co. v. Commc'ns Workers

Am., AFL-CIO, 445 F.2d 39, 48

(2d

Cir.1971).

A contempt order is a Upotent weapon to which courts should

not resort where there is a fair ground of doubt as to the

wrongfulness of the defendant's conduct. u Tactica Int'l, Inc. v.

Atl. Horizon Int'l, Inc., 154 F.Supp.2d 586, 609 (S.D.N.Y. 2001)

(internal

tations and quotations omitted). Thus, the

prerequisites for a finding of ci

I contempt are as follows;

(1) the order which has been v

lated must be

ear and

unambiguous;

(2) the violation must be proved by clear and

convincing evidence; and (3) the violat

party

s not made a

ligent effort to comply with the terms of the order. See,

e.g., Benham Jewelry Corp. v. Aron Ba

Corp., No. 97 Civ. 384,

1997 WL 639038 at *1 (S.D.N.Y. Oct. 15, 1997) (citing cases);

Paramedics

ectromedicina Comercial, Ltda. v. GE Med. Sys.

Info.

., Inc., 369 F.3d 645, 655 (2d Cir. 2004). A finding

of contempt, however, does not require a court to find

willfulness. Paramedics, 369 F.3d at 655.

The clear and convincing standard urequires a quantum

proof adequate to demonstrate a

'reasonable certainty' that a

violation occurred. u

n v. Tiber Holding Corp., 277 P.3d 243,

10


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 12 of 22

250 (2d Cir.2002) i see also Hart Schaffner & Marx v.

exander's

Dep't Stores, Inc., 341 F.2d 101, 102 103 (2d Cir. 1965)

(per

curiam)

("A civil

empt order will not issue unless t

re is

and convincing' proof of violation of a court

a

bare preponderance of

evidence will not suffice."). The

moving party must demonstrate t

t the enjoi

party "had

knowledge of

disobeyed a clear, expl

it and lawful order of

the court and that the offending conduct prejudiced the right

t

opposing party." Levin, 277 F.3d at 251.

DEFENDANT HAS NOT VIOLATED THE INJUNCTION ORDER AS WRITTEN AND
PLAINTIFF'S MOTION FOR SANCTIONS IS THUS DENIED

The

liminary injunction order clearly and

guously

enjo

senberg from, among

r things,

Violating Paragraph 5(c) of the Employment Agreement which
prohibits Defendant,

the two (2) year peri

tely following termination of employment (to be

extended by a
Defendant al
from using DeWitt's con
secrets to solicit, a

od of time
spent in

1 to the

riod of time
olation of Paragraph 5(c)),
ial information and/or trade

, divert, or take away, in whole

rt, directly or indirectly, any clients or prospect
tt who were solicited or serviced by Defendant or by

anyone directly or indirectly under D e ' s
supervision, or with whom Defendant had any business
relationship, within
prior to Defendant's termination of employment.

two (2) year period immediately

See June 4 Order, at 15. The order

arified t

the

Employment Agreement does not prohibit Ei

rg from

ing

11

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 13 of 22

with DeWitt so long as "

is not using confidential information

during his employment at

tt, or attempting to divert clients

serviced while at DeWitt."

June 4 Order, at 8.

r

stated that this "does not

Eisenberg from soliciting

ients retained through 'pre-existing' relationships or t

s

'own independent efforts, unassisted by the firm.'" June 4

at 6 (citing Barbagallo v. Marcum LLP, -- F. Supp. 2d -

,

2013 WL 132711 , at * 18

( E . D . N . Y . Jan. 10, 20 13) ) .

S

entry of the order, Plaintiff contends that it has

consistently received broker of record ("BOR") letters

indicati

t Eisenberg is conti

ng to "solicit, accept,

divert, or ta

away" clients or

s of DeWitt who were

soli

or serviced by Defendant or by others directly or

indirectly

r his supervision whi

was employed at

DeWitt. Ei

rg, in turn, does not deny that he has continued

to solie

clients despite this order, but rather asserts that

under his inte

tation, the preliminary injunction order does

not prevent or

c

Defendant from engaging in s

icitation

of clients so long as his relationships with

clients

dated his empl

at DeWitt and were not enabl

DeWitt's financial

institutional support.

12

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 14 of 22

disc

cy in the parties' interpretation of the order

turns on whether Eisenberg is capable of having "pre existing N


relationships wi

any clients he servi

while at DeWitt.


Plaintiff maintains

Defendant himself admits that

had no clients when he joined DeW

in 2007, having sold all of

his business relationships to Aon/AGRIS, which DeWitt

subsequently purcha

when they hi

him

$425,000.

(See

Eisenbe Aff., Exhibit C, ~ 15 (Eisenbe

"retained" none of

them) . )

It was only a

r DeWitt pa

Aon/AGRIS $425,000 in

settlement of its claims

inst both DeWitt and Eisenberg

Defendant obtained a release from his covenant not to compete

for these clients and the undisputed right to solicit these

clients, this t

for DeWitt, in his capacity as a DeWitt

employee.

(See Johnson Decl. ~ 6; Ex. Ai ~ 3.) Further,

Eisenberg's development and servicing of these clients, which

DeWitt had purcha

, was a result of DeWitt's substantial

financial, administrat

and logistical support and assistance.

Defendant's knowl

, according to P

intiff, of the clients,

client accounts, key cl

account contacts and so forth

there

re constituted "Confidential Information" as defi

in

the Employment Agreement, and as such Eisenberg is contractually

13

-
. -.~ .......

......

~--~ .....

----------------------­

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 15 of 22

prohibited from soliciting t

e clients

r a period of two

rs.

intiff

further alleged that AJG should equally be

d account

e for De ndant's conduct, in so far as AJG

provided and continues to provi

resources and assistance which

enable Eisenbe

to solicit and service the clients at issue.

AJG has

and should

aware of the Employment Agreement's

non-solicitation

sions,

should be held responsible for

assisting the

oined Defendant.

See

n v.

Hoidi

Corp., 277 F.3d 243, 250 (2d Cir. 2002)

(a

rty that is not

bound by a court

r may

found guilty of civil contempt if

(1) the party bound by the order committed cont

; and (2)

party not bound by the order assisted the enjoined party) .

Defendant, in contrast, has contended that

has not used

any of DeWitt's conf

ial in

rmation or trade secrets to

solicit any accounts or clients, and has only solicited clients

with whom he had pre-existing relationships. DeWitt's BOR

letters confirm this, as all of the clients Defendant has

ched are those with whom Eisenbe

has had a long standing

relationsh

pre-dating DeWitt.

For instance, Pressman

Corporation, which recently switched to

, is run by Mr.

14

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 16 of 22

Pressman with whom Eisenberg has worked for over 23 years.

s

larly, Eisenbe

has worked with t Weinstein Company since

1980s and with the DeLaurentis family since the 1970s.

Defendant has also known Mr. MacKinney, the

ncipal decision

maker for Mosaic's insurance, for other twenty years.

senberg

has established that his recruitment of these clients, and their

subsequent move to AJG, is the result of Defendant's "pre­

existing" personal relationships and reputation as an insurance

broker, and not because he used any confidential information or

trade secrets belonging to DeWitt.

senberg First Aff., ~

31.)

The BOR letters show that

senbe

has solicited clients

with whom he had relation

ps pre-dating DeWitt.

The "use of

information about an employer's customers which is based on

casual memory

.

is not actionable." Buhler v. Micha

P.

Maloney Consult g, Inc., 299 A.D.2d 190, 191 (1st Dep't 2002)

("A contact list prepared by plaintiff based on her knowledge of

the financial services industry and on information that was

publicly available does not qualify as a trade secret and is not

entitl

to protection.") i H. Meer Dental Supply Co. v. Comm'n,

269 A.D.2d 662, 664 (3d Dep't 2000) ("[IJn order to establish

confidential customer i

rmation status, it is incumbent upon

15


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 17 of 22

plaintiff to demonstrate that its customers are not known in

trade and are discoverable only by extraordinary ef rts.

Plaintiff has failed to prove that s

information is not

readily

scoverable through public sources."); TBA Global,

v. Pros

um Events,

No. 6511 71 12 I 2013 WL 1455933 , at * 1

(N.Y. Sup. Ct. Apr. 1 2013) (clients in the film insurance

industry are "large well-known companies rea

ly ascerta

as potential business opportunities" and knowl

of their

ident

ies simply cannot be cons

red conf

ial) .

As a matter of law, Eisenbe

's own recollection of

s

customers or pre-existing relationships cannot constitute

conf

ial information.

See Pure Power Boot Camp, Inc. v.

Warrior

tness Boot Camp, LLC, 813 F. Supp. 2d 489, 510

(S . D . N . Y. 2011 )

(" [ F J0 rme r emp

s can use their recollection

of

tion

customers and such recollected in

rmation

is not considered confidential

purposes of enforcing

rest ctive employment covenants./I); Buhler, 299 A.D.2d at 191

("It is well-settled that an employee's recollection of

in

rmation

aining to

needs and

its of

rticular

customers is not actionable."). Nothing about the names or

ities of accounts or clients, nor

contacts at those

accounts, is confidential or a trade secret belonging to DeWitt.

16


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 18 of 22

Had DeWitt meant to prohibit

senbe

from solicit

any

clients he serviced while at DeWitt, it should have specified as

such in the Employment Agreement.

fendant has not viola

the 0

r or Agreement merely by approaching clients whose names

and identities he knew

or to joining DeWitt, and whi

are

ly accessible to the public.

(Id. ~ 29.); see also Arnold

K. Davis & Co., Inc. v. Ludemann, 160 A.D.2d 614, 615 (1st Dep't

1990)

("[AJn insurance company's customer list is generally not

considered to be a trade secret.").

With respect to Plaintiff's argument that Defendant could

not have had any pre-existing relationships with clients when he

joined DeWitt because

tt purchased the relationships with

t

se clients and Eisenberg's "book of business"

the

settlement

th Aon/AGRIS in 2007, though

DeWitt relea

Defendant from

s non-compete

ause,

ther

Settlement

ement nor the

loyment Agreement state or even refer to an

expl

agreement whereby

tt wou

exclusively own

Eisenbe

's clients.

Settlement Agreement instead states

t

t DeWitt purchased a "compromise" amongst the parties that

"will never be const

as an admission by any of the Parties

of any liability, wrongdoing or respons

lity." (See Settlement

Agreement, ~ 2.) The Employment Agreement does not make any

17


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 19 of 22

re

rence to DeWitt own

Eisenberg's "book of bus

ss" or

s

clients. While later discovery may evidence a more explicit

intention in the Settlement Agreement to est

ish that DeWitt

does own Eisenberg's clients, no such evidence has

t been

adduced. Further, though

has been established, as set forth

above, that Eisenberg transferred the Plaintiffs' confidential

data to his personal computer, it has not been established that

this

ta was used to approach t

former DeWitt clients, nor

has any monetary value

en established for the data.

Accordingly, Eisenbe

is restricted solely by the terms of the

Employment Agreement, which does not prevent solicitation

through non-confidential information or trade secrets of clients

with whom he had a pre-existing relationsh

See, e.g.,

Barbagallo, No. ll-CV-1358, 2013 WL 132711, at *19 (dismissing

breach of restrictive covenant cla

because

rmer employee had

"pre-existing relationships" wi

all the

ients at issue;

"sensib

clients follow the talent they trust, and not the

organizations to which t

talent is temporarily attached.

Clients are not dragged against their will from one firm to

another, but actively choose who they

11 retain for

pro ssional services.") (collecting cases) ; Nebra

land, Inc.

v. Brody, No. 09-CV-9155

(DAB), 2010 WL 157496, at *3 (S.D.N.Y.

Jan. 13, 2010)

("BDO Seimand prevents

Court from enforcing

18

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 20 of 22

the restrictive covenant" to retrain solicitation of customers

with whom defendant had a "pre-existing relationships");

Energy, L.P. v. Kosachuk, 49 A.D. 3d 331, 332

( st

't 2008)

(non-compete clause

e because it prohibited

rmer

employee from working with clients who followed him due to his

"pre-existing relationship"

th them) .

Plaintiff is correct t

t De

is prohibited from

soliciting clients with which

had developed "personal

relationships" based upon the

ial support of his employer,

including a salary, support staff,

expenses. Marsh USA Inc.

v. Karasaki, 2008 U.S. Dist. LEXIS 90986, *51-52 (S.D.N.Y. Oct.

30, 2008); see also Silipos, Inc. v.

, 2006 U.S. Dist.

LEXIS 54946, * 7-18 (S.D.N.Y. Aug. 8, 2006)

(finding protection

of pI

iff's employer's cl

t base to

legitimate interest

where

a

iff employer "shouldered all of the monetary

es" of the former employee's significant sales activities

with clients). Plaintiff, though,

s not adduced any evidence

t

t

clients Eisenberg has solicit were acquired through

his

rmance of services for the firm's clientele during the

course of his employment, and not through his own pre-existing

relati

See FTI Consulting, Inc v. Graves, 2007 U.S.

Dist. LEXIS 55325, at *27 (S.D.N.Y. July 30, 2007)

("Under New

19

Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 21 of 22

York law, FTI may establish a legitimate interest so as to

restrict [former employee's] use of

ient relationships if it

can show that FTI enabled [

rmer empl

] to acquire

relationships with the clients through his performance of

s

ces

firm's clientele during the course of

s

employment."). Because Plaintiff has failed to show evidence of

any solicitation of clients Defendant did not have a pre­

existing relationship with

or to DeWitt's assistance,

Plaintiff

s shown that Defendant has

olat

the terms of his

Employment Agreement and the court's June 4 Order by obtaining

DeWitt's confi

ial data but not for his solicitations.

However, after the order Eisenberg discovered that his

personal email account still contained emails he sent and

recei

in furtherance of his work at DeWitt, and

immediately worked with counsel to delete

se emails or return

them to DeWitt as required by the order.

(Id. ~ 44.) The

olation of the June 4 Order and t

Employment Agreement with

re

ct to the confidential data has thus been ef ctively

resolved.

20


Case 1:13-cv-03060-RWS Document 39 Filed 10/29/13 Page 22 of 22

CONCLUSION

For the reasons set forth above, Plaintiff's motion for

sanctions against Eisenberg is denied.

It is so ordered.

New York, NY
October l- ~, 2013

f

SWEET

ROBERT W.

U.S.D.J.


21