Opinion
No. CV-10-6006194
January 7, 2011
MEMORANDUM OF DECISION
FACTS
The plaintiffs, Webster Bank (Webster) and UVEST Financial Services (UVEST), seek a temporary injunction and a prejudgment remedy against the defendants Michael Ludwin and his current employer Harvest Capital (Harvest) claiming that Ludwin breached an employment agreement prohibiting competition, solicitation and disclosure of confidential information and that Harvest misappropriated the plaintiffs' trade secrets.
Ludwin worked for Webster as a financial consultant. When Webster formed a business relationship with UVEST, a broker dealer, Ludwin was offered a dual employment opportunity with both companies. On or about January 23, 2007, Ludwin was sent a dual employment agreement (Ex. 1) by e-mail (Ex. 16) informing him that he would be receiving an overnight package containing the agreement. The agreement was sent to him on January 23, 2007. On February 7, 2009, Ludwin executed the agreement. (Ex. 1.)
On or about June 2010, the plaintiffs decided to terminate their business relationship with Ludwin. On June 24, 2010, Ludwin emailed a subordinate (Ex. 6) and asked him to print two copies of his "book of business" (customer list). Ludwin's employment with the plaintiffs ended on or about July 1, 2010. On or about July 9, 2010, Ludwin became employed with Harvest, a financial consulting firm with offices in Wethersfield, Connecticut.
On July 9, 2010, the plaintiffs' attorney sent Ludwin a letter (Ex. 14) reciting his obligations under his employment agreement and demanding that he cease and desist from contacting former customers of the plaintiffs, return the customer list and not disclose any confidential information to his new employer. The letter also stated that the illegal use of the information by Ludwin or his employer could be tortuous interference with a business relationship and other violations of law. (Ex. 14.) On the same day, the CEO of Harvest, Ralph Giansianti, mailed approximately one thousand letters to the plaintiffs' customers, formerly assigned to Ludwin (Ex. 8) announcing that Ludwin had joined Harvest. The letters also detailed the services and financial products Harvest offered, noted that Ludwin had joined their team, gave their address, phone number and Ludwin's cell phone number. (Ex. 7.)
This lawsuit followed against both Ludwin and Harvest. The hearing in connection with both prejudgment matters, the temporary injunction and attachment were assigned and heard by the undersigned.
The court finds that the plaintiffs have established, by a fair preponderance of the evidence, that Ludwin signed the employment agreement (Ex. 1) freely and without undue influence or intimidation. Ludwin, a college graduate, and a person who has in excess of eighteen years in the financial service business (Ex. 3 and 7) presented himself at trial as a very intelligent person. The court finds that after the employment agreement (Ex. 1) was first sent to him that he had ample time and review it, read it and comprehend it. If Ludwin did not understand any provision of the agreement he certainly had time to consult legal counsel. The fact that he did not indicates to the court that he understood the agreement. Having executed the agreement, Ludwin became obligated to abide by its terms and conditions. He acknowledged under paragraph ten of the agreement that he carefully read the agreement and understood that any breach could result in irreparable injury which would entitle the plaintiff to enforce the agreement by obtaining an injunction. The court finds that the agreement was fair, reasonable and enforceable.
Under section seven of the agreement (Ex. 1), Ludwin was obligated, for a period of one year after the termination of his employment with the plaintiffs, to not engage in any business activity in competition with the plaintiffs within a twenty-five-mile radius of the plaintiffs' base of operation. He was further obligated not to solicit, by mail or phone, any of the plaintiffs' customers. Under section eight (Ex. 1), Ludwin was obligated to treat as confidential the names and addresses of customers. He agreed not to copy lists of customers, and to return such lists in his possession upon the plaintiffs' request. Under section nine, Ludwin agreed that his employment was at-will and that he could be terminated at any time for any reason.
The court finds that Ludwin breached the agreement with the plaintiffs in the following ways. He took a list of customers, which the court finds were the plaintiffs' customers, from the plaintiffs' offices. He refused to return that list when Wheller demanded its return. The customer list was confidential information, and he violated the confidentiality provisions of the employment agreement by copying and removing it. There was credible evidence, most of which Ludwin does not deny, that he phoned customers and met with them at their homes in Hamden. The court finds that Hamden is in the plaintiffs' base of operation. The court further finds that the letter sent by Giansanti (Ex. 7) was a solicitation on behalf of Ludwin and Harvest and was in violation of Ludwin's employment agreement.
The court finds that neither Webster nor UVEST are signatories of either FINRA (Financial Industry Regulatory Authority) or the Protocol, and therefore the claims of both Ludwin and the compliance officer of Harvest, Marci Negro, that their actions should be governed by those rules is unavailing.
The court finds that the credible evidence presented by the plaintiffs has established that, to date, they have lost $76,000 from former customers who have transferred their accounts to Ludwin or Harvest.
The court finds that in spite of his testimony to the contrary, Giansanti knew or should have known that approximately one thousand letters were sent on his stationary and his company's envelopes to the plaintiffs' customers. In addition, Negro's testimony, that she reviewed Ludwin's employment agreement just before Harvest hired Ludwin, is evidence that Harvest knew or should have known that sending letters to the plaintiffs' customers was interference with the plaintiffs' business relationship and could be a violation of the Connecticut Unfair Trade Practices Act and the Connecticut Uniform Trade Secrets Act. The court finds that the letter sent to the plaintiffs' customers (Ex. 7) was in fact a solicitation.
TEMPORARY INJUNCTION
The purpose of a temporary injunction is to preserve the status quo until there is a final determination of the issues after a hearing on the merits. Rustici v. Malloy, 60 Conn.App. 47, 56, 794 A.2d 541, cert. denied, 254 Conn. 925 (2000). In order to obtain a temporary injunction, the moving party must show (1) irreparable harm or injury; (2) the likelihood of success on the merits; (3) the lack of an adequate remedy at law; and (4) that the balancing of equities favors granting the injunction. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). Where a preliminary injunction is sought to enforce the terms of an restrictive covenant "irreparable injury and lack of an adequate remedy at law is automatically established." Kim's Hair Studio LLC v. Rogers, Superior Court, judicial district of Middlesex, Docket No. CV05 4002444 (July 20, 2005, Aurigemma, J.) [ 39 Conn. L. Rptr. 668], citing Lampson Lumber Co. v. Caporale, 140 Conn. 679, 685 (1954). The court after review of all the exhibits and testimony finds that the plaintiffs have satisfied their burden and a temporary injunction is issued.
As to the first prong, the court finds that if the defendants are allowed to keep soliciting the clients of the plaintiffs, that irreparable harm may result. Once those clients are lost, they will never return.
As to the second prong, the court finds that there is a likelihood of success on the merits. The court finds the restrictive covenants found in the dual employment agreement to be reasonable. By definition, covenants by employees not to compete with their employers after termination of their employment restrain trade in a free market. Consequently, these covenants may be against public policy, and, thus, enforceable only if their imposed restraint is reasonable, an assessment that depends upon the competing needs of the parties as well as the needs of the public. Torrington Creamery, Inc. v. Davenport, 126 Conn. 515, 519, 12 A.2d 780 (1940). In evaluating the reasonableness of a restrictive covenant contained in an employment agreement, the courts in Connecticut consider (1) the employer's need to protect legitimate business interests, such as trade secrets and customer lists; (2) the employee's need to earn a living; and (3) the public's need to secure the employee's presence in the labor pool. Scott v. General Iron Welding Co., 171 Conn. 132, 137, 368 A.2d 111 (1976). In order to be valid and binding, a covenant which restricts the activities of an employee following the termination of his employment must be partial, and restricted in its operation in respect either to time or place and must be reasonable, that is, it should afford only a fair protection to the interest of the party in whose favor it is made and must not be so large in its operation as to interfere with the interests of the public. Id., 137. In this case, Ludwin's obligation under his employment agreement does not prohibit him from competing. It just prohibits him from competing within a twenty-five-mile radius of Hamden and Milford for a period of one year after the termination of his employment. The court finds that restriction, within a twenty-five-mile radius for one year, reasonable. The court therefore finds the restrictions imposed here pass the test set forth in Scott.
As to the third prong, an adequate remedy at law, this court looks to Webster Bank v. Cahill, Superior Court, judicial district of Waterbury, Docket No. CV 09 4018992 (June 16, 2009, Brunetti, J.) [ 48 Conn. L. Rptr. 31], which involved this same plaintiff seeking to enforce a non compete agreement against a former employee with a fact scenario almost identical to the instant matter. In that matter, the court in analyzing the accounts the plaintiff bank lost to the former employee found that "since these accounts involve personal service and relationships which be lost forever, simply paying money would not be an adequate remedy." The testimony of the plaintiffs' representatives is that once a client is lost it is difficult to determine the actual loss of future business that would be generated by that client and what other business that would be lost as a result of that client's departure. The court finds there is no adequate remedy at law.
As to the fourth prong, the court has considered the balancing of the equities as it must do and as agreed by the defendants. As mentioned, the employment agreement does not restrict the defendant from all employment or employment in the financial service industry. It just restricts the defendant from competing with the plaintiffs within a twenty-five-mile radius for a period of one year. The plaintiffs have established that they have expended resources to promote their business in the protected area. The court finds that the equities favor the plaintiffs.
The court therefore will grant the temporary injunction as against the defendants and order:
1) that Ludwin cease and desist from competing with the plaintiffs within a twenty-five-mile radius of Hamden and Milford, Connecticut for a period to end on June 30, 2011;
2) that the defendants shall not mail, phone, or solicit any of the plaintiffs' customers, including the customers that appear on the customer list that Ludwin took from the plaintiffs during the prohibited period;
3) that Ludwin shall return, forthwith, the customer list that he removed from the plaintiffs' office and destroy any copies that were made of that document.
PREJUDGMENT REMEDY
"A prejudgment remedy `means any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment . . .' General Statutes § 52-278a(d). A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false . . . Under this standard, the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits." (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136-37, 943 A.2d 406 (2008).
"[T]he probable cause hearing is not a full-scale trial on the merits. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities . . . [T]his weighing process applies to both legal and factual issues . . . In addition, the trial court has the responsibility, after the adversarial evidentiary hearing, to consider not only the validity of the claim but also the amount that is being sought . . . Stated more succinctly, [p]robable cause for purposes of the [prejudgment remedy] statutes is a flexible common sense standard that does not demand that a belief be correct or more likely true than false." (Citation omitted; internal quotation marks omitted.) Doe v. Rapoport, 80 Conn.App. 111, 116-17, 833 A.2d 926 (2003).
The court finds that the plaintiffs have proved that they have suffered lost profits in the amount of $76,000.00, and that there is probable cause to believe that a judgment will be rendered in favor of the plaintiffs in that amount at a trial on the merits. The court therefore orders an attachment of the defendants' assets in that amount. The defendants can satisfy this order, if they elect, by posting an attachment bond in that amount, with surety from a recognized insurance company. The plaintiff shall also be required to post a similar bond in the amount of $76,000.00 with surety from a recognized insurance carrier to protect the defendants' interest in property that is subject to the prejudgment remedy against damages that may be caused by the prejudgment remedy.
These orders in connection with the injunction and attachment shall issue as of the date of the conclusion of the hearing on December 1, 2010.