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Wachovia Securities, LLC v. Durham

September 26, 2006

WACHOVIA SECURITIES, LLC, PLAINTIFF
v.
ROBERT L. DURHAM AND WILLIAM R. CASHMAN, III, DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is plaintiff's emergency motion for a temporary restraining order and preliminary injunction. For the reasons that follow, the court will grant plaintiff's motion.

I. Background

Defendants William R. Cashman, III ("Cashman") and Robert L. Durham ("Durham") are former employees of plaintiff Wachovia Securities, LLC ("Wachovia") Each resigned from Wachovia on September 22, 2006 and now work for Morgan Stanley Dean Witter. (Doc. 1, Ex. C; see also Doc. 1 ¶ 2; Doc. 7 ¶ 1.)

As a condition of his employment with Wachovia, Cashman executed a Registered Representative Agreement on September 8, 1998. (See Doc. 1, Ex. A.) Cashman's agreement contains the following provision:

12. I am aware that I have or will have access to confidential and proprietary information and materials, including, but not limited to, material describing or relating to the business and financial affairs of FUBS [First Union Brokerage Services, Inc.] and its banking and other affiliates (collectively "First Union") and confidential information pertaining to First Union's customers. I agree and acknowledge that during and after my employment with FUBS, I will not disclose in any fashion any confidential and/or proprietary information about First Union or FUBS' business or customers obtained during or as a result of my employment. I will hold all confidential and proprietary information and material in strict confidence and will not give, disclose, copy, reproduce, sell, assign, license[], market or transfer confidential and proprietary information and material to any person, firm, corporation or entity. I will utilize any such information and materials only for the benefit of First Union and its customers, will not take any such documentation or information with me in whatever format. All customer information is proprietary and must remain at First Union Brokerage Services should you choose to leave employment at FUBS. (Doc. 1, Ex. A ¶ 12.)

As a condition of his employment with Wachovia, Durham executed a Registered Representative Agreement on July 8, 2002. (See Doc. 1, Ex. B.) Durham's agreement contains the following provisions:

3. The Employee agrees that all records (whether originals, copies or computerized) containing customer information, including, but not limited to names, addresses, and account information, are the proprietary information of Wachovia and will not be removed from the offices of Wachovia in any form . . . .

5. Upon the termination of the Employee's employment (voluntary or involuntary), the Employee agrees that, for a period of one (1) year following the termination of employment, the Employee will not solicit by mail, by phone, by personal meeting, or by any other means, either directly or indirectly, any customer whose account was serviced by the Employee, or whose name became known to the Employee, during his/her employment at Wachovia in any office and in any capacity. The Employee's agreement "not to solicit" means that the Employee will not, during his/her employment, and for a period of one (1) year thereafter accept business from, or initiate or have any contact or communication, of any kind whatsoever, for the purpose of inviting, encouraging or requesting any customer to: (a) transfer their investment account; (b) open a new account with the Employee's new employer; (c) transact any business with; or (d) otherwise discontinue the customer's patronage and business relationship with Wachovia . . . .

6. The Employee recognizes and acknowledges that Wachovia has a substantial interest in retaining its customers and protecting the confidential and proprietary information. Therefore, the Employee agrees that any breach of the foregoing provisions of this Agreement would constitute immediate and irreparable harm to Wachovia.

7. In the event that the Employee violates, or is reasonably believed by Wachovia to be about to violate, any of the provisions of this Agreement, the Employee consents to the issuance by a court of competent jurisdiction, which as jurisdiction for the geographic location of the branch office(s) where the Employee was employed or where the Employee resides or the Employer conducts business, to a temporary restraining order and/or a preliminary or permanent injunction to prohibit the breach of any provision of this Agreement.

(Doc. 1, Ex. B ¶¶ 3, 5-7 (emphasis removed)).

On September 26, 2006, Wachovia commenced this action against Cashman and Durham alleging: (1) breach of contract, (2) conversion, (3) breach of fiduciary duty, and (4) unfair competition. (Doc. 1.) Wachovia bases these claims on defendants' alleged violations ...


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