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Robert Half International Inc. v. Billingham

United States District Court, District of Columbia

June 29, 2018

NICHOLAS BILLINGHAM, et al., Defendants.




         This matter is before the court on a motion for preliminary injunction by Plaintiff Robert Half International Inc., which seeks to enforce restrictive covenants contained within the employment contract of a former employee, Defendant Nicholas Billingham. See generally Pl.'s Mot for Prelim. Inj., ECF No. 6 [hereinafter Pl.'s Mot.]. Plaintiff, a professional staffing firm, seeks to enjoin Billingham from continuing to work in the District of Columbia office of his new employer, rival staffing firm Defendant Beacon Hill Staffing, until February 2019; soliciting Plaintiff's customers; and disclosing Plaintiff's confidential information-all of which the employment contract prohibited Billingham from doing after his employment with Plaintiff ended. Plaintiff also seeks to enjoin Beacon Hill from interfering with Billingham's compliance with the restrictive covenants.

         Although it gives the court no pleasure to do so because it means a young person must be separated from his employment, for the reasons set forth below, the court grants Plaintiff's Motion for Preliminary Injunction.


         A. Factual Background

         1. Billingham's Employment with Robert Half

         This case arises out of Defendant Nicholas Billingham's resignation as an employee of Plaintiff Robert Half International (“Robert Half” or “Plaintiff”) on February 12, 2018. See Verified Compl., ECF No. 1 [hereinafter Compl.], ¶¶ 2, 40-52. Robert Half is a personnel staffing firm that recruits and places workers in permanent and temporary jobs. See Id. ¶¶ 2, 14-15, 40, 44. Billingham began working at Plaintiff's Boston office on May 27, 2014. Id. ¶ 16. It was his first job out of college. Pl.'s Mot. for Leave to File Under Seal, ECF No. 18 [hereinafter Pl.'s Mot. to File Suppl. Mem.], Ex. C., ECF No. 18-5 [hereinafter Billingham Dep.], at 21.

         During his four years at the company, Billingham changed jobs and divisions several times. He was hired as a Staffing Manager for Plaintiff's “OfficeTeam” division, which places administrative support employees, and in November 2015 was promoted to a Division Director. Compl. ¶¶ 15-16. In December 2016, Billingham became a Senior Staffing Manager in the “Accountemps” division, which places accounting, finance, and bookkeeping employees. Id. The following year, in July 2017, Billingham transferred to Plaintiff's Washington, D.C., office, where he continued to work as an Accountemps Senior Staffing Manager. Id. ¶ 16. In this role, Billingham's job duties included “developing . . . business from new and existing [Robert Half] Customers, ” which he did, in part, by meeting with hiring managers and other key personnel to learn about a customer's needs and by recommending potential hires. Id. ¶ 19. He also met with individuals seeking employment to assess their skills and preferences, and attempted to match these candidates to job openings. Id. ¶ 20.

         To fulfill his responsibilities at Robert Half, Billingham had access to information that Plaintiff considers and treats as “confidential, proprietary and/or trade secret information.” Pl.'s Mot., Mem. in Supp., ECF No. 6-1 [hereinafter Pl.'s Mem.], at 6-7. Such information includes the names of existing and potential customers and candidates, as well as contact persons for those customers and candidates; the specific needs of customers and candidates; the terms of Plaintiff's agreements with customers and candidates; and the strengths and weaknesses of Plaintiff's business model. Compl. ¶ 21; see also Pl.'s Mem. at 6; Pl.'s Mem., Ex. 1, Aff. of Trey Barnette, ECF No. 6-2 [hereinafter Barnett Aff.], ¶¶ 24-25.

         2. Billingham's Employment Agreement

         As a condition of his employment, Billingham was required to sign Plaintiff's standard Employment Agreement. See Compl. ¶ 26. See generally id., Ex. A., ECF No. 1-1 [hereinafter Agreement]. The Agreement imposes numerous restrictions on Billingham following the end of his employment with Robert Half, several of which are relevant to this case. First, the Agreement bars Billingham for a period of one year from working for a competitor located within 50 miles of any office of Plaintiff at which Billingham worked in the year preceding his termination or resignation. Agreement § 9; see also id. § 7. Second, it restricts Billingham from disclosing Plaintiff's “confidential information, ” including “the name, address, contact persons or requirements of any existing or prospective customer, client, applicant, candidate or employee” during or after his tenure at the staffing firm. Id. § 8. The Agreement imposes the same limitations on information concerning Robert Half's procedures, organization, and strategies. Id. Third, the Agreement prohibits Billingham from soliciting any “Customer, ” which the Agreement defines as “any person, firm, entity, business or organization for whom any of the Applicable Offices performs or has performed services in the course of its business within the twelve months preceding the [employee's] [t]ermination.” Id. §§ 7, 10. Finally, under the Agreement, Billingham is prohibited from soliciting Plaintiff's employees to leave the staffing firm, whether to work for Billingham personally or to work for another company. Id. § 11.

         The Agreement also contains a provision titled “Injunction.” Id. § 14. That clause states that Billingham agrees that, “in the event of his actual or threatened breach” of the foregoing restrictions, “temporary and permanent injunctive relief would be appropriate remedies against such breach, ” because Plaintiff “would be irreparably harmed and the full extent of injury resulting therefrom would be impossible to calculate and [Plaintiff] therefore will not have an adequate remedy at law.”[1] Id. § 14. That provision also recites that the employee “expressly acknowledges” that the aforementioned restrictions “are reasonable and necessary in order to protect and maintain the proprietary and other legitimate interests of [Robert Half] . . . and that the enforcement thereof would not prevent [Billingham] from earning a livelihood.” Id. Billingham signed the Agreement, see Id. at 7, and during the ensuing four years at Robert Half he never signed a different or new version of the Agreement. The Agreement does not contain a termination date. See generally Id.

         3. Billingham's Resignation

         On February 23, 2018, Billingham resigned from Robert Half. Compl. ¶ 40. He did not disclose his future professional plans. Id. Three days later, Plaintiff presented Billingham with a notice titled “Reminder of Post-Termination Obligations, ” which reminded Billingham that he had signed the Agreement and summarized its key terms. See Compl., Ex. B., ECF No. 1-2. Toward the top of the notice appears the text “Non-Competition Covenant” followed by “Yes” and “No” check boxes. Id. The “Yes” box is checked. Id.

         On March 7, 2018, Billingham started his employment as a Division Manager at Defendant Beacon Hill for the company's Financial division at its newly opened District of Columbia office. Compl. ¶ 42; Billingham Dep. at 67. Beacon Hill is another staffing firm and is a direct competitor of Robert Half. See Compl. ¶ 4. Soon after Billingham began work, Beacon Hill issued a press release announcing Billingham's employment and describing his work as “leading temporary and contract staffing” for Beacon Hill's District of Columbia office. See Compl. ¶ 45; id., Ex. C, ECF No. 1-3 [hereinafter Press Release]. The announcement quoted Billingham as stating: “I look forward to adding to my team quickly, and taking market share from our competitors.” Press Release.

         It was through this press release that Plaintiff first learned of Billingham's new job. Hr'g Tr., ECF No. 29, at 13-14. The announcement prompted Robert Half to send Billingham a second notice, this time a letter dated March 21, 2018, that enclosed a copy of the Agreement and once more reminded him of its terms. Compl. ¶ 47, Ex. D, ECF No. 1-4 [hereinafter March 21 Letter]; see also Hr'g Tr. at 13-14. Plaintiff sent a copy of the letter to Beacon Hill's CEO, Andrew Wang, along with the Agreement. See March 21 Letter at 2. In the letter, Plaintiff sought from Billingham “written assurances” that he understood the Agreement and would abide by its restrictions. Compl. ¶ 47; see March 21 Letter. Billingham never responded. Compl. ¶ 48.

         During his four months at Beacon Hill, Billingham has communicated with “customers”[2]who he first met while employed at Robert Half and, in some cases, customers with whom he developed working relationships. See, e.g., Pl.'s Mot. to File Suppl. Mem., Ex. L, ECF No. 18-14 [hereinafter March 12 LinkedIn Message]; id., Ex. M, ECF No. 18-15 [hereinafter March 13 LinkedIn Message]; Billingham Dep. at 200. To be precise, Billingham has contacted at least 56 of Plaintiff's customers while in his new position. Billingham Dep. at 200 (acknowledging that he contacted 56 Robert Half “customers” while working at Beacon Hill). Billingham directly communicated with these contacts through LinkedIn messages, “email blasts, ” and telephone calls. See Pl.'s Mot. to File Suppl. Mem., Ex. G, ECF No. 18-9 [hereinafter Overlap List]; id., Ex. I, ECF No. 18-11; Billingham Dep. at 236-53. Billingham admitted that these efforts were for the purpose of generating business for Beacon Hill. See Billingham Dep. at 195 (acknowledging that, while at Beacon Hill, he sent e-mail blasts to contacts with the hope of generating business and revenue); id. at 220 (acknowledging that his LinkedIn message and calls to a contact at an architecture firm were made with the purpose of reintroducing himself and ultimately getting business); Hr'g Tr. at 27-28; Defs.' Mot. to File Under Seal Opp'n to Pl.'s Appl. for Prelim. Inj., ECF No. 17, Ex. C., ECF No. 17-5, at 213-17, 263-70; Overlap List. Notably, many of the businesses that Billingham contacted were already customers of Beacon Hill.

         Additionally, during his time with Beacon Hill, Billingham has shared and has attempted to put to use information that he learned about Robert Half's customers. For instance, Beacon Hill, like other staffing firms, uses a database to track communications and information about potential and current customers. Billingham has input into Beacon Hill's database specific information that he acquired while at Robert Half about certain customers, such as one company's dissatisfaction with Robert Half's services, other companies' past use of Robert Half, and key contact information. See Pl.'s Mot. to File Suppl. Mem., Ex. N., ECF No. 18-16 [Database Overlap Log], at 1-3.

         Billingham's use of information that he acquired at Robert Half is also evident from some of his communications while at Beacon Hill. One week after starting his new position, Billingham sent a message through LinkedIn to a contact at an architectural firm at which he had placed a candidate while with Robert Half. See Billingham Dep. at 218-220; March 12 LinkedIn Message. In the message, Billingham inquired of the contact about how the candidate was doing, informed the contact about his new position with Beacon Hill, and asked to “catch up.” See March 12 LinkedIn Message. Billingham acknowledged that the purpose of this communication was to generate business. See Billingham Dep. at 220-21. In a second LinkedIn message, Billingham contacted the hiring manager at a hotel with whom he had made a placement while working for Plaintiff. See Billingham Dep. 223-26; Pl.'s Mot. to File Suppl. Mem., Ex. M, ECF No. 18-15 [hereinafter March 13 LinkedIn Message]. As with the first message, Billingham inquired of the contact about how the candidate was doing, informed the contact about his new position, and asked to connect. See March 13 LinkedIn Message; Billingham Dep. at 223. As with the other LinkedIn message, Billingham admitted that he sent it to develop business. Billingham Dep. at 222-24.

         Billingham continues to work at Beacon Hill. Billingham Dep. at 13.

         B. Procedural Background

         On April 27, 2018, Plaintiff filed a four-count complaint against Billingham and Beacon Hill. See generally Compl. As to Billingham, Plaintiff asserts claims of breach of contract and anticipatory breach of contract. See id. ¶¶ 62-83. As to Beacon Hill, Plaintiff alleges two claims: tortious interference with contract and unjust enrichment. See id. ¶¶ 84-105.

         Approximately two weeks later, Plaintiff filed a Motion for Preliminary Injunction, ECF No. 6, and a Motion for Expedited Discovery, ECF No. 7. The court granted the request for expedited discovery, see Order, ECF No. 9, and held a hearing on the preliminary injunction on June 13, 2018.[3] See Hr'g. Tr. The motion for injunctive relief is now ripe for consideration.


         Preliminary injunctive relief, of the kind requested here, is an “extraordinary and drastic remedy” that is “never awarded as [a matter] of right.” Munaf v. Geren, 553 U.S. 674, 689-90, (2008) (citations omitted). A court may only grant the “extraordinary remedy . . . upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). Specifically, a plaintiff must show: (1) that it “is likely to succeed on the merits”; (2) that it “is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “that the balance of equities tips in [its] favor”; and (4) “that an injunction is in the public interest.” Winter, 555 U.S. at 20 (citations omitted).

         Courts in this Circuit traditionally have evaluated these four factors on a “sliding scale”- if a “movant makes an unusually strong showing on one of the factors, then it does not necessarily have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). The Supreme Court's decision in Winter, however, called that approach into question and sparked disagreement over whether the “sliding scale” framework continues to apply, or whether a movant must make a positive showing on all four factors without discounting the importance of a factor simply because one or more other factors is convincingly established. Compare Davis v. Billington, 76 F.Supp.3d 59, 63 n.5 (D.D.C. 2014) (“[B]ecause it remains the law of this Circuit, the Court must employ the sliding-scale analysis here.”), with ABA,Inc. v. District of ...

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