American Residential Services, L.L.C. v. Martodam et al, No. 2:2014cv00516 - Document 26 (D. Nev. 2014)

Court Description: ORDER Granting 24 Stipulated Final Judgment and Permanent Injunction. Signed by Judge Howard D. McKibben on 5/6/14. (Copies have been distributed pursuant to the NEF - MMM)
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American Residential Services, L.L.C. v. Martodam et al 1 2 3 4 5 6 7 8 9 Doc. 26 BRUCE C. YOUNG, ESQ., Bar #5560 MATTHEW T. CECIL, ESQ., Bar #9525 LITTLER MENDELSON, P.C. 3960 Howard Hughes Parkway, Suite 300 Las Vegas, NV 89169-5937 Telephone: 702.862.8800 Fax No.: 702.862.8811 AMANDA C. SOMMERFELD, ESQ. Pro hac vice EMILIE C. WOODHEAD, ESQ. Pro hac vice WINSTON & STRAWN, LLP 333 South Grand Ave., 38th Floor Los Angeles, CA 90071-1543 Attorneys for Plaintiff American Residential Services, LLC 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 AMERICAN RESIDENTIAL SERVICES, LLC, a Delaware Corporation, Case No. 2:14-cv-00516-APG-GWF 15 Plaintiff, 16 vs. 17 18 19 COLIN MARTODAM, an individual, GREENSTAR HOME SERVICES, INC., a California Corporation, GREENSTAR HOME SERVICES OF NEVADA, INC., a Nevada Corporation, ORDER GRANTING [PROPOSED] STIPULATED FINAL JUDGMENT AND PERMANENT INJUNCTION 20 Defendant. 21 22 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: 23 This matter comes before the Court on Plaintiff AMERICAN RESIDENTIAL SERVICES, 24 L.L.C.’s (hereinafter “ARS” or “Plaintiff”) Complaint and Motion for Preliminary Injunction on 25 Order Shortening Time against Defendants COLIN MARTODAM (hereinafter “MARTODAM”), 26 GREENSTAR HOME SERVICES, INC. and GREENSTAR HOME SERVICES OF NEVADA, 27 INC. (hereinafter collectively referred to as “GREENSTAR), collectively referred to as Defendants, 28 where appropriate. LITTLER MENDELSON, P.C. ATTORNEYS AT LAW 3960 Howard Hughes Parkway Suite 300 Las Vegas, NV 89169-5937 702.862.8800 On April 9, 2014, Plaintiff American Rosidential Service, LLC ("ARS") appliod to this Court I parte îor a preliminary injunction on order shortening time. The Court entered an Order [Dkt. 7 ex 3 #131 setting forth the expedited briefing schedule and scheduling a hearing on 4 preliminary injunction for Monday, 5 Court of the pending resolution of this action, to 6 Stipulated Permanent krjunction. The resolution 7 upon entry by the Court of this Final Judgment and Permanent Injunction. 8 9 l0 ACCORDINGLY, IT IS April 14, Plaintiffs motion for 2014, Prior to the hering, the parti€s informed the .be effectuated in part pursuant to the terms of B of this action between the parties is contingent HEREBY ORDERED, ADruDGED AND DECREED AS FOLLOWS; L For a period of two (2) years from the date of execution of this Stipulated Final ll 12 Services, Inc, and Greenstar Homo Services of Nevada, Inc. (collectively "Greenstar") are enjoined l3 from: (a) soliciting, l4 express agreement l5 customer identified on ARS' Alliance list, which is a list of custome¡s and pot€ntial customers in l6 Southem California that ARS acquired and developed through an asset purchase from t7 homebuilder/construction company called "Alliance"; and (c) directly soliciting any ARS customçr l8 .r. Judgment and Permanent Injunction, Defendants Colin Martodam ("Martodam"), Groenstar Home identified 19 entering info any business relationship with, or entering into any implied or with, The Home Depot; (b) directly soliciting any ARS customer or pot€ntial as presently having a Home Service PIàù 2, a ('HSP') with ARS, ARS shall run a computer-geneÌated report of active HSP customers with their last will provide it to Winston & Strawn LLP for attomeys' eyes only review, Greenslar 20 service date and 21 shall provide its customer list to ARS' outside counsel at Winston & Strawn LLP for attomeys' eyes ,,J only review, lvinston & Strawn LLP, or a vendor retained by .23 \ inston & Strawn LLP who has executed a non-disclosure and confidentialitl' agreement, shall cross reference ARS' Alliance list will 24 and list ofactive HSP customers who have received an ARS service in the prior 24 months, and z5 flag those custome¡s who appear on either list and on Groenslar's customor 26 customers are identifìed 27 markod in Greenstar's electronic databases so as to not receive any diroct solicitation of any kind, EN0E(30 , F. Once those flagged to Greenstar by Winston & Strawn), those customers will bo specially 28 IfLER list, ) ll,: t including email, mail, or phone calls. G¡eenstar's customer list shall be provided to Winston a & Shawn LLP no later than 5:00 p.m. on April 28, 2014. 3 3. Greenstar's current third-party rharketing service, ViaDirect and/or Ashley White, 4 shall not send any Greenstar mailers to HSP or Alliance customers, ARS on the one hand, and 5 ViaDi¡ect and Ashley White on the oth€r, 6 ARS will provide Ashley White with the list of HSP and Alliance customers. Martodam and 7 Greenstr agree that ViaDirect and Ashley ÏVhite 8 HSP customers fiom any and all mailers or marketing pieces ViaDirect and/or Ashley White 9 disseminate on behalf of Greenstar, If will enter into a non-disclosure agreement, after which, will cross-reference and remove all Alliance and Gree4star decides to use a different vendo¡ other than l0 ViaDirect and/or Ashley White in the two-yeai peiiod contemplated by this provision, that vendor il must enter into a non-disclosue agreement with ARS similar to that identifled herein, to ensure 12 compliance with this section. Martodam and Gleenstar ag¡eÊ that any vendor who does not enter l3 into such an agreement shall not be allowed to market on their behalf, including sending mailers or t4 making calls to customers or potential customers. For any vendor that does enter into a non- l5 disclosure agr€ement, ARS l6 Martodam and Greenstar agree that the vendor will c¡oss-reference and remove all Alliance and HSP l7 customers from any and all maile¡s or marketing pieces that the vendor disseminates on behalf l8 Greenstar. The afore-mentioned procedures shall be without waiver by ARS that the customgr l9 identities and contact information are pÌotectable 20 4. The Court shall rotain jurisdiction to enforce this Fínal Judgment and Permanent t' Injunction, 5. Within 7 days of the date of execution of this Stipulated Final Judgment and 2t 22 will provide the vendo¡ with the list of HSP and Alliance Permanent Injunction, Martodam and Greenstar Bs a customers. of trade secret and/or confrdontial informatíon, will identiff all information, documentation, and/or 24 data taken from ARS, including, but not limited to, the thumb drive(s) on which Martodam 25 downloaded material from his ARs-issued laptop, including any and all ARS information on their 26 personal or business computers. .,., a, 28 This includes, but is not limited to, the following folders and files: o "ARS Files"; 3. . . ¡ . I t J 4 "ARS 2012 Pricing Pages"; l "ARS Files\Pricing"; "Tracker" or "Trackers"; 'URGENT REMINDER Guarantee Changes"; 5 o o r o 6 7 8 - Exceptional Service HVAC & Plumbing "Allianse ML for IE"; "Favorites"; "ARS Files FINAL"; "Passwords"; 9 "SD Other Stuff'; l0 ¡ ¡ ¡ ll l2 13 t4 l5 l6 t7 b, 20 "INVENTMENTCONSIDERATIONS.docx" "H.D\Operations\Custom,e¡ Care" This also includes, but is riot ìimited to, 4ny of the following ARS information alleged to be Trade Secrets: . . . l8 l9 "Job Folder Process"; Pricing information for ARS' customers; Cost information for ARS; Particularized, non-public information about ths individualized needs, requilements, and past experience or practices ofparticular customers; . . Specifïc contract information and unique oontractual terms and conditions fo¡ ARS's customers; 21 I¡formation about the history of contract Degotiations with customers, hadeoffs and concessions made in such negotiations, and the intorrelationships between different but related conhacts (such as a sale contract aod a service 22 contract); 23 r Customer and customer prospect lists and databases, including but not limited to: o 25 Specihc informatidn about persons ì ithin customer organizations and information about their responsibilities and di¡ect contact information (such as cell phone numbe¡s and email addresses); 26 z7 28 o o Past sales and sorvice data; Customer concems and complaints; o o o 2 3 4 The type o I Any customer datarpurchased or by ARS as a result from Alliance or Additional business opportûníties and prospects; Current and past customersr service needs and prefe¡ences; of equipment and installatio maintenance history for cuûent, past, or potential customers; any other constructibn company or homebuilder; 5 . 6 7 ¡ Dates of scheduled süategic meetings ¿nd the purpose and subject matters suah meetings and presentations prepared in comection with such meetings; Information relating io ARS' profit margin, labor capacity, of performance history, and products; 8 o ¡ 9 IO ll Information relating to sales and strategy techniques and forecasting; Information relating to advertising performance, including information relating to dollars spent, rosponso rates, conversion rstos, booking ¡ates, cancellation rates, and the ultimate ¡etum in dollars by piece; o t2 Informalion from the following ARS systems, programs, sofrware and/or databases: l3 o o o o o t4 l5 t6 t7 1E l9 20 6. 23 7. )1 SuccessWare: '. :iYì' .; lr' ' ' Call Tracker. Within 2 days of completing their ' duties set forth in Paragraph 5, Martodam and of searches performed on their personal aúd/or business Within 5 days of completing their duties set forth in Paragraphs 5 and 6, Mrtodam and Greenstar shall retum by Federal Express Ovemight Delivery to ARS all information, documentation, and/or data identified in Paragraph 6 that is in their possession, custody or control and 26 Daily Flash; computêrs showing flle paths before any such file paths are deleted or destroyed, 24 25 Profit Planner; Groonstêr shall provide screen shots 2l ')t Daily Straægic Compass ("DSC'); will not retain any copies thereof. 8, Within 30 days from th€ date of execution of this Stipulated Final Judgment and Permanent Injunction, Martodam and Greenstar shall give to ARS complete disclosures as to how they used the information taken f¡om ARS and to whom they disclosed, shared, or told about it. 28 ; 5r' I Martodam, Jeremy Prevost, and Jeff Ballard agree to sit for a deposition at any time during the 6 2 month period following disclosure on this subject, ifrequested by ARS, Greenstar shall also present 5 a "person most qualified" to sit for deposition regading topics related to Martodam and Greenstar's 4 efforts to comply with paragraphs 6 th¡ough 8 of this stipulated Final Judgment and Permanent 5 Injunction. o 9, Within 14 days from the date of execution of this Stipulated Fínal Judgment with all and 7 Permanent Injunction, Martodam and Greenstar shall provide ARS 8 (electronic, paper or otherwise) that they trave-.lyj with The Home Dopot since Novembe¡ 2013 I Mrtodam need not províde correspondence between himself and The Home Depot that by its l0 express nature was mado on behalf of ARS while Martodam was employed by ARS, unless such ll correspondence included Confidential Information and/or Trado Secret information as defined in t2 Martodam's February 8, 20 I 3 Non-Disclosure/l',lon-Interference A$eement. 10. l3 correspondences ARS shall retain the right to forensically audit Martodam's and/or G¡eenstar's (l) year period. The forensic examination shall include t4 computer systems once per quarter for a one l5 the imaging and search of computefs, email, and other electfonic storage equipment for its files. 16. ARS t7 conduct the forensic audit, and Greenstar agrees to sçlect at least one of the three vçndors within l8 days ofbeing provided the list, who shall conduct the audit(s), will identiff at least two ll, l9 but not more than three vendors to Greenstar who ARS may use to Martodam and Groenstar shall reprosent in writing that all 5 disclosures they make of this Ag;eément afe complete and that there was no z0 pufsuant to Paragraphs 6 through 8 2l other misappropriation ofTrade Secrets or ny otherlì.lse Öf confrdential information from ARS. .,' 12, In the event of the discovery of retentíon by Martodam o¡ Greenstar of ARS 23 confrdentíal or trade secret information, or of ñrrther misappropriation of trade secret or confidential 2.+ information not disclosed or retumed by Martodam and Greenstar, as agreed Paragraphs 5 through z5 of this 26 damages in the amount of $200,000 for each act of misappropriation, 11 28 lftÊR iìÉN0EL30N, P,( Agreement, Martodam and G¡eenstar wíll be 9 jointly and severally liable for liquidated 13. I Within 14 days from the date of execution of this Stipulated Final Judgment and .) Permanent Injunction, Greenstar shall provide to ARS a copy of each direct maile¡ it has used in the 3 last year. 14. 4 Martodam and Greenstar agree that for a period of two (2) years from the date of 5 entry of this Final Judgment and Parmanent Injunotion, they shall not solicit any ARS employee to 6 enter into any relationships with Martodam, Groonstar, or any competing business, or otherwise 'Ì induce or attempt to induce such employees to terminate their employment with ARS. In the event 8 that Martodam and/or Greenstar, or anyone acting on their behalf, b¡eaches this obligation not to 9 solicit ARS employees nd not !o induce or attempt to induce such employees to terminato their l0 employment with ARS, Martodam and Greenstar shall be jointly and severally liable fo¡ liquidated lt damages tz inducement or attempted in the amount of $200,000 for 15. l3 each.instance where ARS can pfove such solicitation, inducement. ; The Parties shall not take any action, or direct, encourage' or assist any person in t4 taking action, to disparage, intetferg with, or lessçn the value of ARS' or Greçnstar's tlade secrets, l5 confidential information, o¡ business. This obligation of non-disparagement t6 managers, directors, owners andlor offrcers l7 offìcprs l8 efforts to inform their respective front-line employeos that they should not make any disparaging l9 statements to any customers or other members ofthe public about the other organization. 20 ofARS. 16. The Parties will will bind Martodam, pf Greenstar, and managers, directors, owners and/o¡ ag¡ee tht managets of Greenstar and ARS shall make good faith The Parties agrees that the Court will administrativeiy close this matter based on this If there is a dispute over a violation of the terms of 2l stipulat€d judgment and pormanent injunction, aa the permanent injunction, the parties may petition the Court to reopen the action in order to resolve 23 such dispute, 24 THIS SPACE LEFT INTENTIONALLY BLANK 25 SIGNATURBS ON THE NEXT PAGE 26 27 28 rnER¡¡EN0€!SOl. DATED: Apùlu2u4 WINSTON& STRAWNLLP A- 4z- /\.-sv, ' Amaída ClSommlrfeld, Esq' Attoineys for Amerioan Residontiai Services, LLC DATED: April-,2014 LITTLER MENDELSON By: Bruce C. Young. Esq., Attornays for Aäerióán Residential Services, LLC DATED: Apritlzot+ DArED: DATBD: AprilAL2014 zot+ EVADA, INC MARQUIS AURBACH COFFING DATED: April -,2014 By: FRANI( M. FLANSBURG, ESQ, Attorneys for Amerlcan Residential Sewioes, LLC IT IS SO ORDERDD day Dated this - 'of LINITED STATES DISTRICT JUDGE 8. . 201'4 . DATED: May-,2014 I ,' WINSTON & STRAWN LLP By: Amanda C. Sommerfeld, Esq. Attomeys for American Residsntial Services, LLC J 4 DATED: 5 May L,zot4 6 Services, LLC 7 I DATED: May ,2014 COLINMARTODAM DATED: May ,2014 GREENSTAR HOME SERVICES, INC, 9 10 11 12 By: Its: 13 14 DATED: l5 May _,2014 GREENSTAR HOME SERVICES OF NEVADA, INC. Bv: t6 17 DATED: l8 MARQUIS AURBACH COFFING May -,2014 l9 By: 20 FRANK M. FLANSBURG, ESQ. Attomeys for Defendants Martodam, G¡eensta¡ Home Servicei, Ino. and Greenstar Home Services ofNevada, 2t Inc. tt 23 IT IS SO ORDERED 24 Dated this day - 25 T]NITED STATES DISTRICT JUDGE 26 27 28 LrTttEn ENoE| 80ll, of P, 9 .2014. 6th 10 May