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Murphy v. Livingsocial, Inc.

United States District Court, District of Columbia

March 18, 2013

WENDY MURPHY, Plaintiff,
v.
LIVINGSOCIAL, INC. and SETH BROWN, Defendants

For WENDY MURPHY, Plaintiff: Jeffrey Lynn Rhodes, LEAD ATTORNEY, Michael Edward Stamp, ALBO & OBLON, LLP, Arlington, VA; Martin J Murphy, LEAD ATTORNEY, PRO HAC VICE, THE LAW OFFICE OF MARTIN J. MURPHY, Long Grove, IL.

For LIVINGSOCIAL, INC., SETH BROWN, Defendants: Kara M. Maciel, LEAD ATTORNEY, EPSTEIN BECKER & GREEN, P.C., Washington, DC.

OPINION

Emmet G. Sullivan, United States District Judge.

Page 22

MEMORANDUM OPINION

Pending before the Court is defendants' motion to dismiss Count IV of plaintiff's

Page 23

amended complaint. Upon consideration of the motion, the response and reply thereto, the entire record, and for the reasons explained below, defendants' motion is GRANTED.

I. BACKGROUND

Plaintiff Wendy Murphy is resident of the State of Illinois. Amend. Compl. (" Compl." ) ¶ 1. Defendant LivingSocial, Inc. (" LivingSocial" ) is a Delaware corporation with its principal place of business in Washington, D.C. Compl. ¶ 2. LivingSocial operates a group buying website wherein it sells vouchers to people for use at local businesses, for vacations and hotel rooms, and for other excursions. Compl. ¶ 10. Defendant Seth Brown is employed as an attorney for LivingSocial and works in its Washington, D.C. office. Compl. ¶ 3.

On November 5, 2010, plaintiff was offered a position of Marketing Consultant at LivingSocial. Compl. ¶ 13. The offer letter, which was signed by plaintiff on November 6, 2010, includes a choice of law clause, which states that " [r]egardless of where you live, District of Columbia law shall apply to this Agreement and to your employment by the Company. Choice of law rules that might otherwise cause the application of any other law shall not apply." Compl. Ex. 1 (" Employment Agreement" ), ¶ 9. The Employment Agreement also incorporates by reference an attachment titled " Confidentiality, Intellectual Property Noncompetition Agreement" (the " Non-Compete Agreement" ). The Non-Compete Agreement restricts plaintiff's ability to compete with LivingSocial in the event of plaintiff's termination of employment by prohibiting her from sharing confidential information, soliciting LivingSocial clients, and soliciting LivingSocial employees to work elsewhere for certain periods of time following plaintiff's employment. The Employment Agreement states that plaintiff's " obligations under . . . the [Non-Compete Agreement] shall survive the termination of [plaintiff's] employment." Employment Agreement at ¶ 9. The Non-Compete Agreement states that plaintiff " agrees that following [plaintiff's] employment with the Company, the Company shall have the right to communicate the terms of this Agreement to any prospective or current employer of Employee. Employee waives the right to assert any claim for damages against Company or any officer, employee or agent of the Company arising from such disclosure of the terms of this Agreement." Non-Compete Agreement, ¶ 6(b).

Plaintiff resigned from LivingSocial effective March 1, 2012. On March 6, 2012, LivingSocial sent plaintiff a letter reminding her of her obligations under the Non-Compete Agreement. Compl. Ex. 2. The letter set forth plaintiff's obligations under her Employment Agreement and demanded that plaintiff stop immediately " any and all activities that violate the terms" of the Non-Compete Agreement. The letter stated LivingSocial's understanding that plaintiff intended to begin employment with a direct competitor of LivingSocial, Travelzoo, Inc. (" Travelzoo" ).

On March 21, 2012, defendant Seth Brown, Head of Litigation at LivingSocial, sent another letter to plaintiff. Compl. Ex. 3. In the letter, Brown states that the Director of Human Resources at Travelzoo had recently solicited one of LivingSocial's lead sales representatives to discuss job opportunities at Travelzoo. Brown stated that he suspected plaintiff may have shared information with Travelzoo in violation of the Non-Compete agreement, and demanded that she cease and desist all ...


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