Allegis Grp. v. Bero
| Docket Number | Civil Action ELH-22-686 |
| Decision Date | 01 September 2023 |
| Parties | ALLEGIS GROUP, INC. and ASTON CARTER, INC., Plaintiffs, v. CHRISTOPHER J. BERO, Defendant. |
| Court | U.S. District Court — District of Maryland |
This case involves claims of breach of non-solicitation and non-disclosure covenants asserted by plaintiffs Allegis Group, Inc. (“Allegis”) and its affiliate, Aston Carter, Inc. (“Aston”) (collectively “plaintiffs” or “Aston”), against defendant Christopher J. Bero. ECF 1 (Complaint); ECF 50-1 (Amended Complaint). The suit arises from Bero's prior employment with Aston and Aerotek, Inc. (“Aerotek”),[1]a subsidiary of Allegis, and subsequent departure to Jobot, LLC (“Jobot”), a competitor in the professional staffing industry.[2]
Two contracts are at issue, both of which are appended to the suit. One is defendant's employment agreement with Aston (ECF 1-1, “Employment Agreement”). The other is the Allegis Group Investment Growth Plan for Key Employees (“IGP” or “Plan”). ECF 1-2.
The Complaint contains three counts. In Count I, Aston asserts that Bero breached paragraphs 6 and 7 of the Employment Agreement by violating the “Covenant Not To Divulge Confidential Information” (“Non-Disclosure Covenant”) and by violating the provision concerning “Return And Preservation of Records.” ECF 1 at 11-12. In Count II, plaintiffs assert a breach of the IGP, which contains a covenant not to compete and a confidentiality provision. Id. at 12-13. In Count III, plaintiffs seek a declaratory judgment that plaintiffs are not monetarily liable to Bero under the IGP. Id. at 13. Plaintiffs also seek monetary damages under Counts I and II, costs, attorney's fees, as well as injunctive relief. Id. at 13-14.[3]
Plaintiffs have moved to file a First Amended Complaint (ECF 50) supported by a memorandum (ECF 51) (collectively “Motion to Amend”). The proposed First Amended Complaint is docketed at ECF 50-1 (“Amended Complaint”). Plaintiffs seek to include facts obtained through discovery and to add an entirely new claim to Count I. In particular, plaintiffs seek to add a claim for breach of the non-solicitation provision in paragraph 4 of the Employment Agreement (“Non-Solicitation Covenant”). Defendant filed an opposition (ECF 55), supported by seven exhibits. ECF 55-1 to ECF 55-7. Plaintiffs replied (ECF 59), supported by a single exhibit. ECF 59-1.[4] In addition, plaintiffs have moved for summary judgment, pursuant to Fed.R.Civ.P. 56(a). ECF 65 (the “Motion”). The Motion is supported by six exhibits, as well as multiple attachments to the exhibits. ECF 65-2 to ECF 65-7. Bero filed a combined opposition to the Motion and crossmotion for summary judgment (ECF 70), supported by a memorandum (ECF 70-1) (collectively, “Cross Motion”), as well as eighteen exhibits. ECF 70-2 to ECF 70-19. Plaintiffs filed a combined reply in support of the Motion and opposition to the Cross Motion. ECF 78. Defendant replied. ECF 84.
Bero has also moved to strike the expert testimony and related exhibits of Gregory Allen Freemyer (ECF 73), supported by a memorandum (ECF 73-1) (collectively, “Motion to Strike”), as well as an exhibit. ECF 73-2. Plaintiffs filed an opposition (ECF 81), supported by three exhibits. ECF 81-1 to ECF 81-3. Defendant replied (ECF 85), supported by an exhibit. ECF 85-1.
No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion to Amend, deny the Motion to Strike, deny the Motion, and grant the Cross Motion.
Allegis is the parent company of Aston. ECF 1, ¶ 1. Specifically, Aston is a wholly owned subsidiary of Aerotek, and Aerotek is a wholly owned subsidiary of Allegis. ECF 71-2 (Celeste Slifer Dep.) at 13-14 (Tr. at 41-42).[6] Both Aston and Aerotek provide temporary and direct placement staffing services. ECF 71-1 (Bero Dep.) at 15 (Tr. at 46-47). In particular, Aston and Aerotek are engaged in the business of recruiting, employing, and providing the services of professional and other personnel on a temporary or permanent basis to companies throughout the United States. ECF 65-3 (Anthony Corpuz Decl.), ¶ 2.[7]
Bero began working for Aerotek in 2012 as a Customer Service Associate in the Los Angeles metropolitan area. See ECF 27 (Answer), ¶ 18; see also ECF 70-2 (Defendant's Response to Plaintiffs' Statement of Facts), ¶ 3.[8]While at Aerotek, Bero recruited candidates for administrative, human resources, and billing positions. ECF 71-1 at 14 (Tr. at 41-42).
Bero received multiple promotions during his nearly ten-year career with Aerotek. In particular, he was promoted to Recruiter, Contracts Manager, Account Manager, and Divisional Practice Lead. See ECF 27 at 3, ¶ 18; see also ECF 70-2, ¶ 4. Then, in June 2019, he was elevated to Divisional Practice Lead. ECF 65-3, ¶ 6. Based upon attainment of a leadership role with Aerotek, Bero became eligible to participate in the IGP. ECF 27, ¶ 30.
Bero relocated to Nashville, Tennessee in April 2020, as an Aerotek employee. ECF 71-1 at 25 (Tr. at 86). His sales territory then shifted from the Los Angeles metropolitan area to the Nashville area. ECF 71-1 at 9 (Tr. at 24-25); see also ECF 70-2, ¶ 21. Bero joined an existing team of Aerotek employees assigned to an office in Franklin, Tennessee. ECF 65-3, ¶ 7; see also ECF 71-3 (Corpuz Dep.) at 15 (Tr. at 48-49). As a divisional practice lead in the Nashville office, Bero managed employees from Tennessee, Kentucky, Ohio, and Arkansas. ECF 71-1 at 16 .
His management role involved teaching sales techniques, assisting with sales, motivating employees, and helping employees meet their goals. Id. In addition to Bero's management responsibilities, he continued “selling” staffing services. ECF 71-1 at 16 (Tr. at 51).
Bero worked in this capacity for Aerotek until January 2021. ECF 70-5 (Bero Decl.), ¶ 2. At that time, Allegis transferred Bero to Aston. ECF 70-5, ¶ 5.
When Bero commenced employment with Aston, the company's business focused on the labor categories of accounting and finance, operations and administrative, and customer support. ECF 71-3 at 14 (Tr. at 42). Allegis entities other than Aston were responsible for other labor categories, such as “crafts and labor and production,” engineering, and sciences. Id. at 15 (Tr. at 48). Bero claims that, as an Aston employee, his focus remained on professional services. ECF 711 at 10 (Tr. at 27). But, he was limited to servicing the particular labor categories that Aston provided. ECF 71-3 at 15 (Tr. at 48). Moreover, his sales territory was limited to the Nashville area, although as a manager he supervised employees in Ohio, Arkansas, Kentucky, and Tennessee. ECF 71-1 at 16 (Tr. at 51-52).
In December 2021, Drew Fibus, an executive at Jobot, began recruiting Bero through LinkedIn, a social media networking platform for professionals. ECF 71-1 at 21 (Tr. at 70); see also ECF 67-1 (). Then, in early January 2022, Bero had a phone conference with Jobot's CEO, Heidi Golledge. ECF 711 at 33 (Tr. at 119-120); see also ECF 65-2 at 6-7 (). On January 17, 2022, Jobot extended a formal job offer to Bero. See ECF 65-2 at 7. Bero accepted an Executive Manager position with Jobot on January 24, 2022. ECF 71-1 at 53 (Tr. at 201); see Id. at 38 (Tr. at 138).
On January 28, 2022, Bero emailed Corpuz to provide two weeks' notice of his resignation. ECF 65-5 at 3. But, Aston terminated Bero on February 3, 2022. ECF 70-5 at 3, ¶ 9. Bero commenced employment at Jobot on February 14, 2022. ECF 71-1 at 10 (Tr. at 26).
As a condition of Bero's employment contract with Jobot, he agreed to a “CONFIDENTIAL AND PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT” prohibiting him from using any of his former employer's confidential information or trade secrets. ECF 71-4, ¶ 2I. Similarly, Jobot's new and prospective employee protocols, to which Bero agreed, prohibit Bero's use of his former employer's confidential information. See ECF 71-5 (“JOBOT NEW EMPLOYEE PROTOCOLS”); ECF 71-6 (“JOBOT PROSPECTIVE EMPLOYEE PROTOCOLS”).
Between January 7 and February 1, 2022, during the period when Jobot was recruiting Bero and after he accepted the offer of employment, Bero sent four emails from his Aston email account to his personal Gmail account. ECF 70-5 at 3, ¶ 10. He claims that he did so because he was experiencing computer problems at work and he wanted to continue working on projects for Aston in the event that his computer “crashed.” ECF 70-1 at 12; see also ECF 70-5 at 3, ¶ 10; ECF 71-1 at 78 (Tr. at 300). Unsurprisingly, Bero denies that he was preparing to compete with Aerotek or Aston. Rather, he insists that he merely “intended to use the information . . .for purposes related to his employment at Aston ....” ECF 70-1 at 12; see id. at 13. At his deposition, however, Bero could not recall whether he enlisted the assistance of the IT department to resolve the issues with his computer. ECF 71-1 at 79. (Tr. at 304).
Bero first sent an email to his Gmail account on January 7, 2022. ECF 67-8. It included a spreadsheet titled “Copy of Spread Negotiations Tool.xls.” Id. The spreadsheet is a calculator tool that is used to “make quick calculations during negotiations.” ECF 70-5 at 4, ¶ 11.
The second email, sent on January 20, 2022, is titled “BoB” and includes a spreadsheet labeled “new book of biz.xlsx.” ECF 67-3. The spreadsheet contains the names of fifteen companies and eighteen individuals associated with these companies, as well as an email...
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