United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE
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
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.
Billingham's Employment with Robert Half
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.
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.
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.],
Billingham's Employment Agreement
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.
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.” 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.
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.
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.
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.
his four months at Beacon Hill, Billingham has communicated
with “customers”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.
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.
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.
continues to work at Beacon Hill. Billingham Dep. at 13.
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.
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. See
Hr'g. Tr. The motion for injunctive relief is now ripe
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).
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 ...