docwe represent Avicom Marketing communications (the ,`company
download 
Report Transcription
we represent Avicom Marketing communications (the ,`company
Rodney W. Carter (262) 860-0860 [email protected] October 24,2008 CPRTIFIED MAIL _ RPTURN RECEIPT REOUESTED Mr. Karl James Robe S88 W32500 Prairie Lane Mukwonago, WI 53149 Re: Confi dentiality A$eement, Non-Compete Agreement and Misrepresentation/Avicom Marketing Communic ations Dear Mr, Robe: represent Avicom Marketing communications (the ,'company"). As you know, you executed a Confidentiality Agreement and a Non-Compete Agreement with the Company, both of which were dated October 1.7 ,2007 (the "Agieemenis"). Pursuant to the Agreements, you agreed not to compete with the business of the Company by providing advertising or marketing services with any person or entity who was a client of the Company during the last year of your employment with the Company. ln addition, the Agreements prohibit you from providing advertising or marketing services to any prospect of the Company which, within 6 months of your departure from the Company, was given a presentation by you or requested information from you conceming the Company. we In addition to your non-solicitation obligations, you also ageed that you would not disclose any confidential information of the Company to any individual. iou further agreed that you would not utilize any confidential information for any non-Company purpose. You also agreed that upon termination of your employment with the Company, you would deliver to the Company all documents, records, files, computer information or other information, in any form, that constitutes or is related to confidential information. The Company has learned that you have contacted severai actual and prospective customers of the Company to solicit business that is competitive to the Company's business since your employment with the Company was terminated. These are customers, or prospective customers, with whom you have had contact since the October 17, 2007 date of the Agreement. The customers and prospective customers are listed below: 16655WBluernoundRd.. Suite270. Brookfield,V/I 53005. Phone (262)SZ7-1700. A Wisconsin Sertice Corporation Fa Mr. Karl James Robe October 24,2008 Page2 Waste Management RecYcle America Jeffrey Frielkow Cooper Power Systems Steve Weinstein Evans Transportation Services Donald R. Cox Thomas Hofbauer McCoy & Hofbauer, s.c. Leonard Lamberg Dedicated Computing Ravmond James Financial Kenneth Wolfe Your contact with these actual and prospective customers is a violation of your confidentiality and non-solicitation obligations under the Agreement. If we are incorrect regarding your activities, or if you are prepared to cease contact with all Company customers or prospective customers, please contact the undersigned immediately. If we do not hear from you, we will assume that you intend to continue to violate your obligations under the Agreements. The Company is also concerned that you have retained records, documents and other materials that contain confidential and proprietary information of the Company, including customer and prospect lists. We know, for example, that you were provided new business research on lighting companies and Wisconsin construction unions. In addition, we are aware that you retained ciient prospect files, as well as Outlook information in the form of a Company calendar and e-mail communications. Your Company office was left completely empty, with all the computer records and Outlook entries which you maintained both deleted and comrpted within the Company's computer system. A11 of these documents are property of the Company, and you are obligated to retum them (and not to have destroyed them), as well as forebear from using them for your personal purposes. Retention of such documents and information is in violation of the Agreements. We, therefore, request that you either return such items or immediately contact the undersigned to confirm that you have returned all of the Company's confi dential information and documents, The Company is further aware of certain misrepresentations which you have rnade and posted on the intemet. Based upon these very public misrepresentations, we can only assume that you have made other less public misrepresentations concerning your role with the Company. Specifically, the Company has reviewed your listing on Linkedin.com. Your Linkedin.com biography is revealing in that the Company terminated you due to a failure to produce clients in your 11 months of employment with the Company; however, your biography on Linkedin.com indicates that you had been running your own business, Karl James & Company LLC, since 1999 (despite Linkedin,com indicating it has been operating since 2002). Accordingly, the Company can make no other conclusion than that you were running a competing business with the Mr. Karl James Robe October 24,2008 Page 3 Company simultaneous to your employment with the Company' The .Company's positiol in this regard is only strengthened by virtue of the fact that you failed to produce and uny ,n.ur*able 6usiness for the Company, Uut have now posted multiple client ,u.rrgs stories at Karl James & Co. tiC wittrin a month of your termination from the Company, The Company is aware, and finds it suspicious, that all of your new business prospect'meetings foi ttte Company were conducted outside of the Company's office and either at a Starbucks or any numbei of local restaurants. Such business prospect meetings is were not even conducted at the offices of client prospects. Further, the Company Company, aware that you engaged in a pattern of overbidding projects for clients of the which now appear to be clients of Karl James & Co. LLC. Further examples of misrepresentation contained in your Linkedin'com biography F: Dohman to Company include the representation that you procured DDN, AirStrip these new business initiating for as clients. As you are aware, you were not responsible you opportunities with the Company. Your Linkedin.com biography indicrltes that dlveloped Wispundits.com. As you are well aware, you did not develop on Linkedin'com and cease Wispundits."o*. Please immediately revise your biography i'srrrc"tses" which you maintain and desist from any further misrepresentationof allegid that occurred during thi course of your employment with the Company' W9 allo demand from you delete any recortmendations for actual or potential customers of the Company your Linkedin biography and abide by the terms of the Agreements. *{ The Company continues to investigate this matter and evaluate enforcement you under options necessary to obtain our compli*.. *ith the obligations imposed on concerning made the Agreements and address the misrepresentations which you have your employment with the Company. This investigation will include the Company and Lontacting iis selected clients and client prospects to verify your levels of service -o*patty. this of Obviously, the results invoicinipractices while employed by the investig;tion could lead to ttti Co*pany maintaining claims against you for conversion and other monetarY damages, Finally, it has come to the Company's attention that you are initiating contact with the Company;s employees during regular business hours. Given nature of those contacts, the circumstances'surrounding yorri termination from the Company, and the facts set forth in this letter, the Compiny is directing you to refrain from contacting any-of its job-duties for the employees during the hours ln which they aie engaged in performing Company, StroUA it be necessary for you to iontact the Company during normal business hours, you should direct such contact to Shelley Panos at either (262) 547-8000 or shelley.panos@avicomdirect. com. Mr. Karl James Robe October 24,7A08 Page 4 at 262-860-0860 upon receipt of this letter to: (1) return all Company information *d materials, (2) affirm you will take no fuither action to breach your obligations under the agreement, and (3) provide the necessary assurance that you will cease and desist making any misrepresentations concerning Company, including a revision of your Linkedin.com biography. Please contact the undersigned Very truly yours, scHoltT, BUB RWCA1(r cc: Mr. Timothy Kubina & ENGEL, s.c. STATE OF WISCONSIN WAUKESHA COUNTY CIRCUIT COURT FiLED IN CIRCUTT AVICOM, INC. 2120 Pewaukee Road, Suite 200 Waukesha, Wisconsin 531 88, I 2 2008 DEC WAUKESHA CO. WI CIViL DIVISION Plaintiff, .VS.- Case No: KARL JAMES ROBE SBB W32500 Prairie Lane Mukwonago, Wisconsin 531 49 0t cvt{ab? Case Classification: MONEY JUDGMENT I -and- I Case eorle: 3030r"" . ''- .- CLERK ()F CDuilTS i ji' Nov262009 KARL JAMES & COMPANY, LLC 1233 Wegner Drive Mukwonago, Wisconsin 53149, Defendants. COURT l - -.r _,__.. _ riis i5 AN AUTTEIITCA:trr) ,. -': {-11)v,.-.ut)r-Y ul-'A\ ^, ORTGTNA,L focu,.,g^,f -' ' rtEcLrF{ or co.inis ;;F,;=',;'-::^i, ,' I 1 COMPLAINT Plaintiff, Avicom, lnc. ("Avicom"), by its attorneys, Schott, Bublitz & Engel, s,c., as and for its Complaint against defendants Karl James Robe ("Robe") and Karl James & Company, LLC ("Karl James Company") alleges as follows: Article 1. l. PARTIES Avicom is a Wisconsin corporation that conducts business at 212A Pewaukee Road, Suite 200, Waukesha, Wisconsin 53188, 2. Upon information and belief, Robe is an adult resident of the State of Wisconsin, residing at SBB W32500 Prairie Lane, Mukwonago, Wisconsin 53149. 3. Upon information and belief, Karl James Company is a Wisconsin corporation with its registered agent office and principal office located at 1233 Wegner Drive Mukwonago, Wisconsin 53149. Karl James Company is a direct competitor of Avicom. JURISDICTION AND VENUE 4. Jurisdiction over Robe is proper according to Wis' Stat' SS 801 ,05(1)(a), 801 .05(1 Xb) and/or 801 .05(1 Xd). 5. Jurisdiction over Karl James Company is proper pursuant to Wis. Stat. S BO1.O5(1Xd) because it is engaged in substantial and not isolated activities within this State. 6. SS 801 Venue is proper in waukesha county according to wis. stat' .s0(2Xc) and/or 801 .50(2Xd). Article ll. BACKGROUND FACTS r. 7. AVlcoM Avicom is in the business of, among other things, providing marketing and public relations services, including but not limited to: media relations and coaching, pubtic relations strategy, issues management, creative development, editorial writing, and related professional services. B. Since at least the year 2001, Avicom has devoted significant effort and resources to building and retaining its customer base' 9. Since at least the year 2001, Avicom's directors have been charged with the duty of developing and maintaining customer relationships during their employment with Avicom, 10. Since at least the year 2001, Avicom has depended on the efforts and loyalty of its employees and directors to market and sell its products on a continuing basis to its new and existing customers. 11. Avicom devoted and expended substantial funds and resources to develop successful and profitable business relationships with its customers and maintain the confidentiality of its confidential business information. II. 12. ROBE On or around October 15,2007, Robe began employment with Avicom as its Public Relations Director. 13, ln conjunction with the commencement of his employment with Avicom, and as a condition of his Avicom employment, Robe executed an "Avicom Marketing Communications Non-Compete Agreement (the "NonCompete Agreement") and "Avicom Marketing Communications Employee Confidentiality Agreement" (the "Confidentiality Agreement"). Avicom provided Robe with copies of the Agreements for his signature. 14. On Octobet 17,2007 Robe executed the Non-Compete Agreement and Confidentiality Agreement. 15. The Non-Compete Agreement contains non-solicitation and non- solicitation clauses, which read: 1. For a period of twelve (12) months following [Robe's] departure from [Avicom], whether [Robe's] leaving is voluntary or involuntary, [Robe] will not offer or provide advertising or marketing services to any person or entity who was a client of [Avicom] at any time during the last year of my employment; nor will lRobe] own, participate in or be employed by an advertising or marketing firm or its affiliate which provides such services to an existing Avicom client' 2. For a period of six (6) months following [Robe's] Ieaving [Avicom], whether [Robe's] leaving is voluntary or involuntary, [Robe] will not offer or provide advertising or marketing services to any prospect of [Avicom], such prospect being defined as an entity which, within six (6) months of [Robe's] departure from [Avicom], requested information or was given a presentation by [Avicom]' For that same period, [Robe] will also not own, participate in or be emptoyed by, any advertising or marketing firm or its affiliate which provides such services to any prospect of [Avicom]. The Non-Disclosure Agreement contains a non-disclosure clause, to. which reads: /6 [Robe] shall not, during the term of [his] employment and for a period of two (2) years after the termination [his] employment, disclose any secrets or confidential technology, proprietary information, customer lists, marketing plans or trade secrets of [Avicom] or [Avicom] clients, or any matter or thing ascertained by [Robe] through [Robe's] association with [Avicom], the use or disclosure of which might reasonably be construed to be contrary to the best interest of [Avicom]. [Robe] further agree[s] that should [his] employment terminate [he] will neither take nor retain any papers, customer lists, records, files, computer programs and software, other documents or copies thereof, or other confidential information of any kind belonging [Avicom]' possible to remedies other Without limiting [Avicom] for breach of this covenant, [Robe] agree[s] that injunctive or other equitable relief shall be available to enforce this covenant, such relief to be without the necessity of [Avicom] posting a bond, of to 17. Throughout his employment, Robe worked closely with many to:Waste Avicom customers and prospective customers, including but not limited Management Recycle America, Cooper Power Systems, Evans Transportation Services, McCoy & Hofbauer, S.C., Dedicated Computing, Raymond James Financial, Wisconsin WaterAssociation, Wisconsin Ground WaterAssociation, and hundreds more, and was in many cases a primary and/or sole contact between Avicom and its customers and customer prospects. ,18, Throughout his employment, Robe had access to confidential information of Avicom, including but not limited to: pricing strategies, profit data, business operations data, customer lists, and customer requirements' 1g. ln or around September of 2008, relations between Avicom and Robe began to sour. At that time, Robe had failed to produce any measurable business for Avicom, despite his job title of Public Relations Director and his primary job duty being new business development for Avicom. Despite office accommodations at Avicom for meeting with new and prospective clients, Robe met with clients at offsite locations, including frequent meetings at Starbucks coffee shops. He was evasive with his schedule and client meetings to other Avicom employees, and he was unable to provide business quotes which were competitive and could generate business, despite Avicom's success in attracting new clients and secure existing client proposals through other Avicom employees whose job duties were not focused upon new business development' 20. employment. On September August 29, 2008 Avicom terminated Robe's 21. Robe's termination from employment by Avicom was justified and based, in large part, upon his failure to generate business for Avicom' 22. After terminating his employment, Avicom allowed Robe the opportunity to clean out his office at Avicom, Robe left his Avicom office completely void of Avicom property, other than furniture, and Robe deteted all Outlook calendaring and e-mait communications, as well as other stored computer data, from Avicom's computer system. Robe also removed numerous Avicom paper files and other material from his office at Avicom. 23. After his termination from Avicom, it came to Avicom's attention that Robe has been engaged with Karl James Company since before he became employed at Avicom. Upon information and belief, the nature of Robe's employment with Karl James Company is in the area of public relations, Avicom was not aware that Robe was an owner of and/or employed by Karl James while employed by Avicom, and Avicom would not have hired Robe had it known he held simultaneous employment positions in the area of public relations, 24. After his termination from Avicom, it came to Avicom's attention that Robe had ongoing business contacts with several of Avicom's customers and potential customers with whom Robe has had contact during his employment with Avicom, to solicit and perform business that is competitive to Avicom's business. Upon information and belief, Robe was soliciting and performing business for Avicom's customers and prospective customers both during and after his emploYment at Avicom. 25. Upon information and belief, Robe has retained valuable records, documents and/or other materials that contain Avicom's confidential information, including customer lists and potential customer lists. Robe has refused to return this information. 26. Upon information and belief, Robe is Public Relations Counsel with Karl James Company, a business that directly competes with Avicom. 27. Upon information and belief, Robe has made certain misrepresentations concerning his professional credentials, as well has his professional accomplish ments at Avicom. 28. ln a letter dated October 24,2A08, Avicom reminded Robe of the terms of the Non-Compete Agreement and Confidentiality Agreement, as well as its concerns over Robe's conduct with respect to his departure from Avicom and in regard to his employment with Karl James Company. Robe never addressed the issues contained in Avicom's letter of October 24,2008. III. 29. KARL JAMES & COMPANY, LLC Upon information and belief, Karl James Company is Robe's current employer, and operates in direct competition with Avicom, providing public relations services to the same and/or similar clients as Avicom. 30, Upon information and belief, Karl James Company is aware that Robe was engaged with Karl James Company at the same time in which Robe was employed by Avicom. ln addition to knowing Robe was formerly employed by Avicom, Karl James Company is aware, on information and belief, that Robe has signed the Non-Compete Agreement and Confidentiality Agreement with Avicom. 31, Upon information and belief, Karl James Company has induced Robe to reveal Avicom's confidential information to be used for the benefit of Karl James Company, 32. Upon information and belief, Karl James Company has induced Robe to contact Avicom's current and potential customers in an attempt to win their business, and to othenvise compete with Avicom. G,AUSES oF ACTT9N AGATNST ROBE: COUNT I BREACH OF CONTRACT 33. Avicom realleges and incorporates paragraphs 1 through 31 above as if set forth fully herein. 34, Under the Non-Compete Agreement, Robe agreed, among other things, that for a period of one year from his termination, he would not in any manner engage in any activity and/or business that is competitive, directly or indirectly, with Avicom, nor would he soticit any of Avicom's customers, nor would he own pafiicipate in or be employed by any marketing firm which provides services for an existing Avicom client. 35. Under the Non-Compete Agreement, Robe agreed, among other things, that for a period of six months from his termination, he would not own, participate in or be employed by any advertising or marketing firm that provided services to any Avicom prospective customer. 36, Under the Confidentiality Agreement, Robe agreed, among other things, that for a period of two years after the termination of his employment, he would not disclose any secrets or confidential information, including proprietary information, customer lists, marketing plans, or trade secrets of Avicom. 37. The Non-Compete Agreement and Confidentiality Agreement both provided consideration to Robe in the form of his employment with Avicom, and the Non-Compete Agreement and Confidentiality Agreement are reasonable as to time, scope, clientele, and other restrictions. 38. Robe's conduct has violated the Non-Compete Agreement and Confidentiality Agreement, and his breach has caused substantial injury to Avicom. GOUNT II BREACH OF DUTY OF LOYALTY 39. Avicom realleges and incorporates paragraphs '1 through 37 above as if set forth fully herein. 40. As an employee of Avicom, Robe owed Avicom a duty of loyalty to be honest in his dealings with Avicom, not to be concurrently employed by or own a business competing with Avicom while employed by Avicom, not to divulge Avicom's confidential and proprietary information, not to compete with Avicom while under contract with Avicom, not to solicit the business of Avicom's current or prospective customers, and not to otherwise breach his duty of loyalty to Avicom. 41. Robe breached his duty of loyalty to Avicom by engaging in the actions set forth above, including but not limited to: owning and/or working for a business in direct competition with Avicom while being employed by Avicom, diverting business from Avicom while continuing to being employed by Avicom, soliciting Avicom's current and potential customers that Robe had contact with while employed at Avicom; disclosing confidential and highly sensitive information to Karl James Company and to several customers; and engaging in prohibited behavior, in direct competition with Avicom. 42. Robe's conduct has breached the duty of loyalty owed to Avicom, and Robe's breach of the duty of loyalty has caused substantial injury to Avicom, COUNT III MISAPPROPRIATION OF TRADE SECRETS PURSUANT TO WIS. STAT. S 134.90 43. Avicom realleges and incorporates paragraphs I through 41 above as if set forth fully herein. 44. During Robe's employment with Avicom, Avicom maintained certain trade secret information, including but not limited to: pricing strategies, profit data, business operations data, customer lists, and custorner requirements. 45. Avicom's trade secret information is valuable to Avicom and to potential competitors, and Avicom took reasonable steps to protect its trade secrets by restricting access to such information to certain employees. 46. Throughout his employment in the capacity as a Director with Avicom, Robe had access to Avicom's trade secrets by virtue of his employment. t0 47. Upon information and belief, while employed by Avicom but prior to the termination of his employment with Avicom, Robe diverted Avicom's trade secret information to Karl James Company without authorization from Avicom. 48. Upon information and belief, following his September August 29, 2008 termination of employment with Avicom, Robe retained Avicom's trade secret information without authorization from Avicom. 49. Upon information and belief, following the termination of his employment with Avicom, Robe disclosed certain trade secret information to Karl James Company, without authorization from Avicom. Because of the highly sensitive nature of this information, Karl James Company would not have othenvise had access to it. 50. Upon information and belief, Robe is engaged in rendering services in a substantially similar capacity to his former position with Avicom. lt is inevitable that Robe will rely on and disclose Avicom's trade secrets in his capacity with Karl James. 51, Upon information and belief, Robe has used and continues to use Avicom's trade secret information to unfairly compete with Avicom. 52. Robe's conduct constitutes a misappropriation of Avicom's trade secrets, and has caused substantial injury to Avicom. GOUNT IV DAMAGE TO PROPERTY, THEFT OF GORPORATE PROPERTY AND CORPORATE TIME PURSUANT TO WIS. STAT. SS 943.01 ,943.2A,943.205 and 895.446 53. Avicom realleges and incorporates paragraphs 1 through 50 above as if set forth fully herein. 11 54. After he was terminated from Avicom, Robe deleted Outlook calendaring and e-mails communications, as well as other stored computer data, from Avicom's computer. 55. Robe's actions in deleting the computer programs and files caused damage to Avlcom, in that said computer programs could not be recovered. 56, Upon information and belief, Robe's conduct in deleting the computer programs and files was intentional, in violation of Wis. Stat. $ 943,01. 57. Upon information and belief, Robe was engaged with Karl James Company, an entity in direct competition with Avicom, during the course of his employment at Avicom. 58. Upon information and belief, during the course of Robe's employment with Avicom, Robe was paid by Avicom while diverting effort, trade secrets, and clients from Avicom to Karl James Company. Such action constituted theft, for which Avicom has been damaged. Such action also violates Wis, Stat. SS 943.20 and 943.205, which entitles Avicom to treble damages and attorney fees, pursuant to Wis, Stat. S 895,446. CAUSES OF ACTTON A9ATNST ROBE ANp KARL JAME$_ COMPANY: crvlL 59. COUNT V coNsPtRAcY PURSUANT TO WIS. STAT. S 134.01 Avicom realleges and incorporates paragraphs 1 through 56 above as if set forth fully herein. 60. Upon information and belief, Robe and Karl James Company formed a civil conspiracy. This act is defined as: "any two or more persons who shall combine, associate, agree, mutually undertake or concert together for the T2 purpose of willfully or maliciously injuring another in his or her reputation, trade, business or profession by any means whatever or for the purpose of maliciously compelling another to do or perform any act against his or her will, or preventing or hindering another from doing or performing any lawful act . . . shall be punished " . .. " Wis. Stat. S 134.01. 61. Robe's and Karl Robe Company's conduct constitutes a civil conspiracy, and has caused substantial injury to Avicom. GOUNT VI COMMON LAW CONSPIRACY TO MISAPPROPRIATE TRADE SECRETS, TO COMMIT BREAGH OF DUTY OF LOYALTY, AND TO BREACH THE NON-COMPETE AGREEMENT AND CONFIDENTIALITY AGREEMENT 62. Avicom realleges and incorporates paragraphs 1 through 59 above as if set forth fully herein. 63. Defendants Robe and Karl James Company conspired to commit the acts alleged in Count l, 111132-37, above. 64. Defendants Robe and Karl James Company conspired to commit the acts alleged in Count ll, 1JIi 3B-41, above. 65. Defendants Robe and Karl James Company conspired to commit the acts alleged in Count lll, {1[ 42-50, above. 66. Defendants Robe and Karl James Company conspired to commit the acts alleged in Count lV, fl
