LORETTA A. PRESKA, Chief Judge:
This action concerns numerous claims, counterclaims, and third-party claims arising out of Defendant Jeffrey Miner's ("Miner") departure from employment with Plaintiff USI Insurance Services LLC ("USI") on October 20, 2010, to begin work for USI's business competitor, Insurance Office of North America ("IOA"). The parties now move for partial summary judgment on a number of discrete issues. USI seeks rulings that, as a matter of law: (1) Miner failed to comply with the Notice-of-Breach provision of Section 4.2 of his September 30, 2003 Employment Agreement ("Employment Agreement") with USI; (2) Miner solicited his former USI clients in violation of Section 7.1 of the Employment Agreement; and (3) Miner failed to give proper notice of the termination of his employment pursuant to Section 8.3 of the Employment Agreement. In turn, Miner and IOA ("Defendants") seek rulings that, as a matter of law: (1) the restrictive covenants contained in the Employment Agreement and Miner's September 30, 2003 Asset Purchase Agreement ("APA") with USI are unenforceable and that USI has failed to show irreparable harm; (2) the information Miner allegedly misappropriated was not confidential; (3) USI is not entitled to injunctive relief because of its delay in seeking such relief; and (4) USI breached the Employment Agreement. Additionally, Defendants cross-move for a ruling that Miner did not solicit USI clients. By Orders dated July 1, 2011, and July 5, 2011, the Court GRANTED in part and DENIED in part
Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing language of previous Rule 56(c)). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; see also FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). When making this determination, a court must review the record in the light most favorable to the non-moving party and draw all reasonable inferences in his or her favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253 (2d Cir.2002). An issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Lucente, 310 F.3d at 253 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
To survive summary judgment "the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 586 n. 11, 106 S.Ct. 1348 (quoting Fed.R.Civ.P. 56(e)). "Conclusory allegations, conjecture, and speculation, however, are insufficient to create a
On cross-motions for summary judgment "neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it.... [A] district court is not required to grant judgment as a matter of law for one side or the other." Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993).
USI asserts that Miner cannot allege that USI breached the Employment Agreement with regard to Miner's compensation because Miner failed to comply with the notice provision contained in Section 4.2 of the Employment Agreement. While acknowledging that he did not strictly comply with the notice requirement, Miner asserts that New York law only requires substantial compliance, and he asserts he did so. For the following reasons, USI's motion for partial summary judgment is GRANTED.
Section 4.2 of the Employment Agreement governs Miner's compensation, including annual "true-ups,"
Generally, "[s]uch written notice requirements are fully enforceable." Art of War Music Publ'g, Inc. v. Andrews, No. 98 Civ. 6034, 2000 WL 245908, at *2 (S.D.N.Y. Mar. 3, 2000). Notice provisions, such as the one here, "serve the valuable function of allowing the purportedly breaching party to distinguish between minor complaints or posturing by its contractual partner and an actual threat of termination." Id. Under New York law, where no notice was given as set forth under the Employment Agreement, there can be no breach of the Employment Agreement because defendant was not afforded the opportunity to cure the defect. See, e.g., Needham v. Candie's, Inc., No. 01 Civ. 7184, 2002 WL 1896892, at *3 (S.D.N.Y. Aug. 16, 2002) (holding that no notice, or chance to cure, was provided as required under the agreement, and thus there was no breach); Point Prods. A.G. v. Sony Music Entm't, Inc., No. 93 Civ. 4001,
The Court of Appeals has cautioned, however, that in certain limited circumstances, courts should not "construe the notice provision as if it were a common law pleading requirement under which every slip would be fatal." See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918, 925 (2d Cir.1977) (holding that where a party had provided written notice of a material breach as to one contract provision that was not the ultimate basis for recovery, it would be "hypertechnical to upset the verdict on the ground that the notice was insufficient").
Here, Miner concedes that he did not satisfy the formal notice requirements under the Employment Agreement. Instead, Miner proffers that his course of conduct was adequate to place USI on notice that he believed it had breached the Employment Agreement. Accordingly, the Court now turns to Miner's contention that he substantially complied with the notice provision by sending emails and having conversations with Jonathan D'Elia, the President of USI Northeast; Rosaleen Pizarro, USI Northeast's Regional Accounting Manager; Mike Voltaggio, USI's Regional CFO; and Jim Butler, USI's Regional CEO. After a careful review of the record, the Court finds that Miner failed to satisfy the notice provision under Section 4.2 of the Employment Agreement.
Miner first relies upon a limited number of emails to show that he substantially complied with the Section 4.2's notice requirement.
Miner also proffers deposition testimony from Mr. D'Elia, Mr. Voltaggio, Ms. Pizarro, and Mr. Butler to demonstrate that USI was on actual notice that Miner believed the Agreement was breached. Miner asserts that the testimony shows that USI knew that Miner was owed commissions and that USI was afforded the opportunity to cure the defects and refused to do so. Miner's characterization of the testimony is inaccurate.
At Mr. D'Elia's deposition, counsel asked, "[a]nd did you understand at the time that [Miner] was upset about the way his true-ups were calculated?" He answered "No. At that time I wouldn't have characterized my understanding of [Miner's] view of things as being upset. I'd been there a month, but I would characterize it as being concerned." (Miner June 28 Opp. Letter re: 4.2 Notice, Kohn Decl., Ex. G, D'Elia Dep. 35:3-9.) Further, Mr. D'Elia testified repeatedly that he was unable to comment on the details of the actual accounts because Miner never sent the information to USI that USI required to complete the evaluation. (Id. 69:2-6; 70:12-19.) Similarly, Ms. Pizarro testified that she did not believe Miner was upset or angry concerning his true-ups. (Miner June 28 Opp. Letter re: 4.2 Notice, Kohn Decl., Ex. H, Pizzaro Dep. 60:18-20.) Mr. Voltaggio testified only that he became aware that Miner had "disputed issues with the numbers in his true-up." (Miner June 28 Opp. Letter re: 4.2 Notice, Kohn Decl., Ex. I, Voltaggio Dep. 68:19-20.) Mr. Butler testified that sometime in 2009 he first became aware that there were issues related to Miner's true-up and that the finance department was working through those issues. (Miner June 28 Opp. Letter re: 4.2 Notice, Kohn Decl., Ex. J, Butler Dep. 27: 10-13.) He also testified that he heard rumors that Miner may have been contemplating leaving USI. (Id. 88:2-10.) Mr. Butler spoke to Miner sometime in the summer of 2010, and Miner told Mr. Butler he was unhappy about his prospects to receive more equity in the firm. Further, Mr. Butler testified that he remembered Miner's describing his difficulties with his true-up calculations as a "nuisance." (Id. 89:5-16.)
None of this testimony, even taken together, supports Miner's argument that USI was aware that Miner considered any alleged discrepancies to be a breach of the Employment Agreement. To the contrary, the record reveals that USI and Miner were cooperatively working to determine Miner's true-ups. At no point did Miner ever mention that he believed a "breach" had occurred or that he would "sue" USI. Instead, the conversations are cordial and constitute the normal to-ing and fro-ing of working through complaints as to specific clients and commissions. As the emails demonstrate, Miner was satisfied to wait more than a month to meet
Furthermore, the Court must give effect to all of the provisions of a contract, and an interpretation that renders a term superfluous or meaningless is avoided if possible. LaSalle Bank N.A. v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir.2005). Miner's position would render superfluous the notice provision under Section 4.2.
This holding does not require an overly formulistic application of the notice provision. See Contemporary Mission, Inc., 557 F.2d at 925. In Contemporary Mission, plaintiff sent a letter to defendant stating that it considered the contract to have been materially breached and directed defendant to "Paragraph 12, among others" of the contract. Id. Ultimately, paragraph 12 was not the basis for plaintiffs recovery, and defendant argued that notice was therefore insufficient because plaintiff failed to cite to the exact provision of the contract. Id. The Court of Appeals rejected this "hypertechnical" argument. Id. This is far different from the facts proffered here. The record here is devoid of any statements by Miner to USI indicating that Miner believed there was a breach of the Employment Agreement or that he was triggering the provisions under the Employment Agreement that would allow USI an opportunity to cure any alleged defects. At no point did Miner inform anyone that he believed USI was in breach of Section 4.2. Nor did Miner indicate that he was prepared to sue USI or otherwise pursue a legal, as opposed to an amicable, remedy for his complaints.
For all these reasons, the Court concludes that Miner failed to provide adequate notice under Section 4.2 of the Employment Agreement. Accordingly, USI's motion for a ruling that Miner failed to give proper notice under Section 4.2 of the Employment Agreement is GRANTED.
Next, Miner seeks a ruling that USI breached Section 4.2 of the Employment Agreement. Miner asserts that USI breached the Employment Agreement (1) by failing to provide him true-ups as required under the Employment Agreement and (2) by failing to pay him the commissions owed with regard to the North Beach account. As discussed above, Miner failed to provide notice under Section 4.2, which is required to trigger the contractual remedy under Section 4.2. Because he failed to provide notice, USI never had the opportunity to cure the alleged defect, and therefore could not have breached Section 4.2. Accordingly, Miner's motion is DNIED. Miner's counterclaims against USI based upon alleged violations of Section 4.2 of the Employment Agreement are DISMISSED with prejudice.
USI similarly seeks a ruling that Miner breached the Employment Agreement. It argues that he resigned on October 20,
In New York, the terms of a written contract define the rights and obligations of the parties to the contract unless public policy or statutory authority dictates otherwise. Abiele Contracting, Inc. v. N.Y. City Sch. Constr. Auth., 91 N.Y.2d 1, 666 N.Y.S.2d 970, 689 N.E.2d 864, 867 (1997). A court's fundamental objective in interpreting contract terms is to give effect to the intention of the parties as expressed in the unambiguous language of the agreement. Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir.2000) (citing Breed v. Ins. Co. of North Am., 46 N.Y.2d 351, 413 N.Y.S.2d 352, 385 N.E.2d 1280 (1978)).
Section 8.3 of the Employment Agreement unequivocally required Miner to give USI "not less than thirty (30) days prior written notice" of his intent to terminate his employment. It is undisputed that on October 20, 2010, Miner sent an email to Jim Butler and Jonathan D'Elia of USI in which he stated, "I hereby formally tender my resignation effective immediately." (See USI June 28 Letter re: Solicitation, Ex. D (emphasis added).) Miner commenced working for IOA on the same day. Miner asserts, however, that summary judgment is inappropriate because an issue of fact remains regarding whether USI breached the Employment Agreement first by failing to pay him his earned commissions in a timely manner or by providing his true-ups. It is Miner's theory that in the face of the alleged breach, he had no obligation to honor Section 8.3's thirty-day notice provision. (See Miner June 29 Opp. Letter re: Solicitation at 2-3.) Miner is mistaken. As discussed above, because Miner failed to provide notice under Section 4.2 of the Employment Agreement, USI never had the opportunity to cure any alleged defects and therefore could not have breached Section 4.2.
Moreover, Miner's argument does not raise an issue of material fact sufficient to defeat summary judgment. Even if USI had failed to pay Miner his commissions or true-ups in a timely manner, as a matter of law neither breach would be material. Unless a breach is material, the obligations of a counterparty to a contract remain effective. As the Court of Appeals made clear, for a breach to be material under New York law it must be "willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract." Septembertide Pub., B.V. v. Stein and Day, Inc. 884 F.2d 675, 678 (2d Cir.1989) (quoting Callanan v. Powers, 199 N.Y. 268, 92 N.E. 747, 752 (1910)). At most, USI's limited failure to credit Miner some commissions on time or provide him with timely true-ups constituted a miscalculation on USI's part and cannot, in any light, be viewed as a breach that went to the "root of the agreement between the parties." Id. (citing Canfield v. Reynolds, 631 F.2d 169, 178 (2d Cir.1980)). Rescission is an extraordinary remedy that is clearly unwarranted here. Miner has made no showing that USI's alleged failure to make payments was in any way willful. Therefore, Miner cannot escape his obligations under the Employment Agreement.
Because no issue of material fact exists as to the materiality of any alleged USI breach, summary judgment is appropriate. Cf. Hosel & Anderson, Inc. v. ZV II, Inc., No. 00 Civ. 6957, 2001 WL 392229, at *1 (S.D.N.Y. Mar. 21, 2001) (summary judgment appropriate when there is no issue of material fact as to an affirmative defense). Miner had the obligation to provide notice of his termination irrespective of USI's alleged non-material breach. Given Miner's
The Court next addresses whether the restrictive covenants contained in the Employment Agreement are unenforceable. Defendants challenge the enforceability of the restrictive covenants on four grounds: (1) USI's restrictive covenants do not protect any legitimate interests; (2) the covenants are overly broad; (3) Miner has not misappropriated any trade secrets or confidential information; and (4) Miner's services are not unique or extraordinary. Additionally, Defendants seek a ruling that USI suffered no irreparable harm. USI asserts that the covenants are valid and that it is entitled to injunctive relief. For the following reasons, Miner's motion on these issues is DENIED.
At issue here are three restrictive covenants in which Miner agreed that he would refrain from: (1) soliciting former and active prospective USI clients ("Non-Solicitation Agreement"); (2) using or willfully disclosing confidential information ("Confidentiality Agreement"); and (3) soliciting or hiring USI employees ("Employee Non-Solicitation Agreement").
Section 7.1 of the Employment Agreement provides in part:
Finally, Section 6.3 of the Employment Agreement provides in part:
BDO, 690 N.Y.S.2d 854, 712 N.E.2d at 1223 (emphasis in original). In applying this standard, "[c]ourts must weigh the need to protect the employer's legitimate business interests with the employee's concern regarding the possible loss of livelihood, a result strongly disfavored by public policy in New York." Estee Lauder Cos. Inc. v. Batra, 430 F.Supp.2d 158, 177 (S.D.N.Y.2006) (citation omitted). "Trade secrets and confidential information count among employer interests courts recognize as `legitimate.'" IBM Corp. v. Visentin, No. 11 Civ. 399, 2011 WL 672025, at *8 (S.D.N.Y. Feb. 16, 2011) (citing Reed, Roberts Assocs., Inc., 386 N.Y.S.2d 677, 353 N.E.2d at 593). "In addition injunctive relief may be available where an employee's services are unique or extraordinary and the covenant is reasonable." Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 386 N.Y.S.2d 677, 353 N.E.2d 590, 593 (1976). The Court discusses each of the three prongs in order to determine whether the restrictive covenants at issue here are unenforceable.
Miner asserts generally that the restrictive covenants do not serve a legitimate purpose because the "primary purpose of [USI's] restrictive covenants is to retain employees." (See Miner June 24 Letter at 8, n. 5.) USI in turn seeks to enforce the Non-Solicitation, Employee Non-Solicitation, and Confidentiality Agreements contained in the Employment Agreement and the APA.
Under New York law, an employer "has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer's expense, to the employer's competitive detriment." BDO, 690 N.Y.S.2d 854, 712 N.E.2d at
Miner next asserts that the Non-Solicitation Agreement is overbroad because it "would prohibit Miner for 24 months from accepting business from former clients who voluntarily and without any solicitation choose to continue to do business with Miner." See Miner June 24 Letter at 8.
Similarly, USI has a legitimate interest in seeking the return of any trade secrets or confidential information as defined in the Employment Agreement.
Finally, Miner asserts that his own skills are neither unique nor extraordinary. See Miner June 24 Letter, at 8. In Section 9.1 of his Employment Agreement, however, Miner specifically acknowledged that his services "are of a special, unique and extraordinary character and that it would be extremely difficult or impracticable to replace such services." (Employment Agreement, Section 9.1.) This alone creates a factual issue about the uniqueness of his services. Even if this were not the case, the question of whether one's services are unique is case-specific. In Ticor Title, the Court of Appeals made clear that "[a]n employer has sufficient interest in retaining present customers to support an employee covenant where the employee's relationship with the customers is such that there is a substantial risk that the employee may be able to divert all or part of the business." 173 F.3d at 72 (citing Service Sys. Corp. v. Harris, 41 A.D.2d 20, 341 N.Y.S.2d 702, 705-06 (N.Y.App.Div. 1973) (further noting that "[c]ustomer relationship is a very important factor in determining whether the covenant will be supported by the courts")); see also Unif. Rental Div., Inc. v. Moreno, 83 A.D.2d 629, 441 N.Y.S.2d 538, 539 (N.Y.App.Div. 1981) (upholding a two-year restrictive covenant as reasonable where an employee was held to be a "star" salesman). That certain customers of USI have moved with Miner to IOA is some evidence that Miner's relationship with USI's customers posed a "substantial risk" that he could divert USI business. Also, to the extent that USI can demonstrate that Miner was indeed a "top producer,"
Although the parties do not specifically focus on undue hardship, as noted above, USI is not seeking to preclude Miner from working as an insurance producer for IOA. USI instead seeks only to preclude Miner from soliciting or servicing former USI clients. USI does note, however, that Miner's employment agreement with IOA guarantees him a salary and an equity stake in the business. Accordingly, the Court finds that this prong favors USI.
Finally, the parties only minimally discussed the public policy implications of the enforcement of this agreement. Accordingly, the Court finds that this factor does not cut in favor of either party, although New York courts generally disfavor broad restraints on competition. See BDO, 690 N.Y.S.2d 854, 712 N.E.2d at 1223.
Because the Court concludes that Miner has failed to carry his burden of demonstrating that there are no material issues of fact regarding the reasonableness of USI's restrictive covenants, Miner's motion is DENIED.
USI also seeks partial summary judgment on the issue of whether Miner improperly solicited USI clients to transfer their business to Miner's new employer, IOA. Defendants cross-moved for partial summary judgment on the same issue, contending that as a matter of law Miner did not solicit any former USI clients. For the reasons set forth below, USI's motion is GRANTED, and Defendants' cross-motion is DENIED.
Pursuant to the September 30, 2003 APA between Miner and USI, Miner sold to USI the business and goodwill of fifty-seven insurance clients as set forth in Schedule A of the APA. (See APA ¶ 1; Schedule A.) Furthermore, in the APA, Miner explicitly agreed that he would not:
(APA ¶ 13(B).) As discussed above, Miner's Employment Agreement contained a nearly identical Non-Solicitation Agreement.
New York law recognizes the enforceability of nonsolicitation covenants in employment agreements, so long as they are necessary to prevent disclosure of trade secrets or confidential information or where an employee's services are unique
Here, Section 7.1 of the Employment Agreement expressly prohibited Miner from soliciting various USI accounts for twenty-four months after the termination of the Employment Agreement.
In Bessemer Trust Co. the Court of Appeals discussed what constituted improper solicitation under New York law. 16 N.Y.3d at 557-59, 925 N.Y.S.2d 371, 949 N.E.2d 462. The Court held that solicitation could be found where a seller initiated contact with his former clients or where a
The Court of Appeals did note, however, that "absent an express or restrictive covenant not to compete," advertising to the general public should not be considered solicitation, so long as such advertisements are not specifically aimed at the seller's former clients. Id.
Here, on October 25, 2010, Miner sent an email to "everybody [he] knew that [he] had in [his] contact list," including USI clients and industry consultants. (USI June 28 Letter re: Solicitation, Ex. A, Miner Dep. 278:5-6, 280:3-8.)
(USI June 28 Letter re: Solicitation, Ex. B.)
First, by sending this email, Miner initiated contact with his former clients just days after he arrived at IOA. (See USI
Second, Miner's email reflects active solicitation of former USI clients. In his email, Miner described the accomplishments and attributes of his new company, IOA, implying that it would be advantageous for the former USI clients who received this email to transfer their business from USI to IOA. (See USI June 28 Letter re: Solicitation, Ex. B.) Although the email was sent to a number of recipients, including some personal contacts, also included were USI clients and other industry consultants whose contact information Miner had taken from USI and sent to his personal email account. (USI June 28 Letter re: Solicitation, Ex. A, Miner Dep. 278:5-6; Miner June 29 Opp. Letter re: Solicitation, Declaration of Patrick M. Collins, dated June 29, 2011 ("Collins Decl."), Ex. 1, D'Elia Dep. 153: 5-11.)
Of particular importance is Miner's parting stanza: "IOA is firmly committed to providing you with exceptional service and as always I value our relationship." This language indicates that the email was not just "bragging", as Miner contends, but that it was in fact a targeted mailing to former customers informing them of Miner's new business ventures and therefore constituted an improper solicitation of USI clients. See Bessemer Trust Co., 16 N.Y.3d at 557-59, 925 N.Y.S.2d 371, 949 N.E.2d 462. Although clients may have been free on their own to approach Miner with mere inquiries about IOA (see, e.g., Miner June 29 Opp. Letter re: Solicitation, Collins Decl., Ex. 4, Ardire Decl. ¶ 4), Miner's email did significantly more than simply answer clients' questions; by expounding that "IOA is firmly committed to providing you with exceptional service," Miner was blatantly touting the merits of his new firm to former clients.
Thus, the Court concludes that Miner improperly solicited former USI clients by sending an email to these clients informing them of his move to IOA, describing the accomplishments of IOA, and stating IOA's commitment to providing them with exceptional service. As a matter of law this email constituted solicitation. Accordingly, USI's motion for partial summary judgment on this issue is GRANTED, and Defendants' cross-motion for partial summary judgment is DENIED.
In his June 28 Letter re: Conf. Info., Miner asserts that as a matter of law the information contained in the emails he forwarded from his USI email account to his personal email address—which on their
As previously discussed, Miner's employment at USI was governed by the Employment Agreement. Paragraph 6.3 of the Employment Agreement states:
(Id. ¶ 6.3.)
Under the Employment Agreement, "Confidential Information" means "any proprietary information of a specified Person, determined as of a specified date, that is not already generally available to the public (unless such information has entered the public domain and become available to the public through no fault on the part of the Party to be charged hereunder)...." (Id. ¶ 1.1.) Examples of Confidential Information include:
(Id. 1.1(a)-(c), (f)-(i), (k), (n).)
As previously noted, New York law governs the Employment Agreement. (Id. ¶ 14.) "In New York, properly scoped noncompetition agreements are enforceable to protect an employer's legitimate interests so long as they pose no undue hardship on the employee and do not militate against public policy." Visentin, 2011 WL 672025, at *8 (citing BDO, 690 N.Y.S.2d 854, 712 N.E.2d at 1223). "Trade secrets and confidential information count among employer interests courts recognize as `legitimate.'" Id. (citing Reed, Roberts Assocs., Inc., 386 N.Y.S.2d 677, 353 N.E.2d at 593). "Only that confidential information or those trade secrets that the employee misappropriates or will inevitably disclose is protectable." Id.; see also N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 43-44 (2d Cir.1999).
Whether information constitutes a trade secret is "generally a question of fact." Medtech Prods. Inc. v. Ranir, LLC, 596 F.Supp.2d 778, 787 (S.D.N.Y.2008) (citing Ashland Mgmt., 604 N.Y.S.2d 912, 624 N.E.2d at 1013). New York courts consider the following factors when determining whether certain information constitutes a trade secret:
N. Atl. Instruments, 188 F.3d at 44 (quoting Ashland Mgmt., 604 N.Y.S.2d 912, 624 N.E.2d at 1013). "Despite these factors, the most important question before the trier of fact is whether or not the information is in fact secret." Derven v. PH Consulting, Inc., 427 F.Supp.2d 360, 371 (S.D.N.Y.2006) (citing Lehman v. Dow Jones & Co., Inc., 783 F.2d 285, 298 (2d Cir.1986)).
Consideration of the relevant factors indicates that the information Miner forwarded to his personal e-mail account is protectable as a trade secret. The information at issue consists of, among other things, documents purportedly containing lists of USI clients and revenue associated with USI clients (see, e.g., USI June 29 Opp. Letter re: Conf. Info., Ex. G) and documents concerning USI clients' coverage and insurance policies (see, e.g., id. Exs. H, I). While the record is insufficiently developed to allow the Court to make a determination with respect to the second, fourth, or fifth factors, consideration of the first, third, and sixth factors show that there are genuine issues of material fact as to whether the information Miner e-mailed himself should be treated as a trade secret.
With respect to the first factor, the record shows that USI treated confidentially all information about the identity of its clients (Miner June 28 Letter re: Conf. Info., Ex. 9, Butler Dep. at 28:7-30:22), the type of insurance purchased by clients (Miner June 28 Letter re: Conf. Info., Declaration of Patrick M. Collins re: Confidential Information ("Collins Conf.
With respect to the fifth factor, USI undertook a significant effort to ensure the secrecy of client information by requiring all employees to sign confidentiality agreements (USI June 29 Opp. Letter re: Conf. Info., Exs. A, B), implementing measures to secure electronically stored information (USI June 29 Opp. Letter re: Conf. Info., Ex. C, Porreca Dep. at 9:7-11:25), and issuing a compliance manual for safeguarding confidential information (USI June 29 Opp. Letter re: Conf. Info., Ex. D). Nothing in the record suggests that USI was lax in observing these procedures. Thus, the fifth factor favors USI. Cf. N. Atl. Instruments, 188 F.3d at 45 (discussing "numerous measures" used to prevent disclosure of client information).
With respect to the sixth factor, it would take "significant effort" to obtain the client information at issue. (Miner June 28 Letter re: Conf. Info., Collins Conf. Decl., Ex. 8, D'Elia Dep. at 171:5-172:10.) Indeed, Miner himself admits that the reason why he did not compile the information on his own was because he was "lazy." (Miner June 28 Letter re: Conf. Info., Collins Conf. Decl., Ex. 3, Miner Dep. 302:15-18.) Thus, the sixth factor favors USI. Cf. N. Atl. Instruments, 188 F.3d at 45-46 (affirming extension of trade secret protection where confidential information could only be duplicated "with great difficulty").
Finally, on balance, the record shows that USI endeavored to treat all client information, including the information Mr. Miner sent to himself, confidentially (Miner June 28 Letter re: Conf. Info., Collins Conf. Decl., Ex. 9, Butler Dep. 26:8-32:15), and USI has proffered exhibits suggesting that some of the documents Miner emailed himself did, in fact, contain confidential information (See, e.g., USI June 29 Opp. Letter re: Conf. Info., Exs. G-I).
Finally, the Court addresses briefly whether USI should be precluded from seeking injunctive relief due to any undue delay. Miner baldly asserts that
The Court has considered all other arguments and finds them to be without merit. For the foregoing reasons, the Court concludes as follows:
------------------------------------------------------------------------------------------- Plaintiffs motion for a ruling that Miner did not comply with the Notice-of- GRANTED Breach provision of Section 4.2 of the Employment Agreement ------------------------------------------------------------------------------------------- Defendants' motion for a ruling that the restrictive covenants contained in the DENIED Employment Agreement are unenforceable and that USI has failed to show irreparable harm ------------------------------------------------------------------------------------------- Plaintiffs motion for a ruling that Miner solicited USI clients GRANTED ------------------------------------------------------------------------------------------- Defendants' cross-motion for a ruling that Miner did not solicit USI clients DENIED ------------------------------------------------------------------------------------------- Defendants' motion for a ruling that Miner did not misappropriate confidential DENIED information ------------------------------------------------------------------------------------------- Defendants' motion for a ruling that USI engaged in undue delay DENIED ------------------------------------------------------------------------------------------- Plaintiffs motion for a ruling that Miner did not comply with Section 8.3 of the GRANTED Employment Agreement -------------------------------------------------------------------------------------------- Defendants' motion for a ruling that USI breached the Employment Agreement DENIED --------------------------------------------------------------------------------------------
Miner's counterclaims against USI based upon alleged violations of Section 4.2 of the Employment Agreement are also DIMISSED with prejudice.
SO ORDERED.
