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Legal Technology Group, Inc. v. Mukerji

United States District Court, District of Columbia

May 13, 2019

LEGAL TECHNOLOGY GROUP, INC., d/b/a ESENTIO TECHNOLOGIES, Plaintiff,
v.
RAJIV MUKERJI and HBR CONSULTING LLC, Defendants. RAJIV MUKERJI, Counter-Plaintiff,
v.
LEGAL TECHNOLOGY GROUP, INC., d/b/a ESENTIO TECHNOLOGIES, Counter-Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON UNITED STATES DISTRICT JUDGE

         The plaintiff, Legal Technology Group, Inc., doing business as eSentio Technologies (“eSentio”), filed this civil action against its former employee, Rajiv Mukerji, and Mukerji's current employer, HBR Consulting LLC (“HBR”), alleging breach of contract against Mukerji (Count I), tortious interference with contract against HBR (Count II), and tortious interference with prospective economic advantage against both defendants (Count III). See generally Complaint (“Compl.”). Currently pending before the Court are the parties' cross-motions for summary judgment. See Plaintiff Legal Technology Group, Inc.'s Motion for Summary Judgment as to Liability and as to Defendant Rajiv Mukerji's Counterclaim (“eSentio's Mot.”); Defendant HBR Consulting LLC's Motion for Summary Judgment (“HBR's Mot.”); Defendant Rajiv Mukerji's Motion for Summary Judgment on Counts I and III of Plaintiff Legal Technology Group[, ] [Inc.]'s Complaint (“Mukerji's Mot.”). Upon careful consideration of the parties' submissions, [1] the Court concludes that it must grant in part and deny in part the plaintiff's motion and deny the defendants' motions.

         I. BACKGROUND

         “eSentio . . . provides business and technology consulting and implementing services to the world's largest law firms and corporate legal departments, ” eSentio's Facts ¶ 1; see HBR's Reply to eSentio's Facts ¶ 1, and “eSentio and HBR are competitors in the document[] management space, ” HBR's Reply to eSentio's Facts ¶ 20; see eSentio's Facts ¶ 20 (“eSentio and HBR are competitors”). Mukerji is a former employee of eSentio and a current employee of HBR. See eSentio's Facts ¶ 17; HBR's Reply to eSentio's Facts ¶ 17; Mukerji's Reply to eSentio's Facts ¶ 17.

         “Mukerji began his employment with eSentio on or about August 15, 2011.” eSentio's Facts ¶ 12; see HBR's Reply to eSentio's Facts ¶ 12; Mukerji's Reply to eSentio's Facts ¶ 12. At eSentio, Mukerji “served as the Director of eSentio's Document Management System (‘DMS') practice, ” eSentio's Facts ¶ 13; see HBR's Reply to eSentio's Facts ¶ 13; Mukerji's Reply to eSentio's Facts ¶ 13, and he became “one of [eSentio's] leading NetDocuments consultants for large firms, ” eSentio's Facts ¶ 16; see HBR's Reply to eSentio's Facts ¶ 16; Mukerji's Reply to eSentio's Facts ¶ 16.[2] “In connection with [h]is hiring by eSentio in 2011, Mukerji executed an offer letter dated July 18, 2011 (the ‘Offer Letter').” eSentio's Facts ¶ 88; see Mukerji's Reply to eSentio's Facts ¶ 88. Among other provisions, the Offer Letter contains a provision regarding Mukerji's compensation, which provides, inter alia, that Mukerji would “be eligible for an annual performance bonus based on the pre-defined performance objectives in the amount of [$]20, 000.00 prorated from [his] start date” (the “Bonus Provision”). eSentio's Mot., Exhibit (“Ex.”) 14 (Offer Letter) at LTG - 1.

         “[A]s a condition of his employment, [eSentio required Mukerji] to execute eSentio's Employment Agreement on Ideas, Inventions[, ] and Confidential Information (the ‘[Employment] Agreement')[, ]” which Mukerji “signed . . . on July 20, 2011.” eSentio's Facts ¶ 21; see HBR's Reply to eSentio's Facts ¶ 21; Mukerji's Reply to eSentio's Facts ¶ 21. Relevant here, the Agreement includes a “Non-Competition” provision (the “restrictive covenant”), which provides:

I hereby covenant and agree that at no time during my employment with [eSentio] and for a period of one year immediately following the termination of my employment . . . with [eSentio], will I act in any way, directly or indirectly, to solicit, divert or takeaway any client of [eSentio] or prospect that I have been involved in pursuing business with during the six months prior to the termination of my employment with the company. I understand that this “non-compete” is intended to include accepting employment with a client of [eSentio] for the period and involvement stated above. An eSentio client is defined as a firm that eSentio has sold product [to] or performed services for in the previous two years from date of termination of employment.

eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8; see eSentio's Facts ¶ 23; HBR's Reply to eSentio's Facts ¶ 23; Mukerji's Reply to eSentio's Facts ¶ 23.

         On June 20, 2016, “Mukerji accepted [an] offer [of employment] with HBR . . . and gave notice to eSentio the same day.” eSentio's Facts ¶ 17; see HBR's Reply to eSentio's Facts ¶ 17; Mukerji's Reply to eSentio's Facts ¶ 17. “Mukerji's final day of active employment with eSentio was July 15, 2016.” eSentio's Facts ¶ 17; see HBR's Reply to eSentio's Facts ¶ 17; Mukerji's Reply to eSentio's Facts ¶ 17.

         A. The Akin Gump LLP (“Akin”) Projects

         “Beginning in late 2015, the [Chief Information Officer] of Akin, Mike Lucas, and [eSentio's President, Yvonne] Dornic[, ] began discussing the possibility of Akin moving to the NetDocuments platform.” eSentio's Facts ¶ 27; see HBR's Reply to eSentio's Facts ¶ 27; Mukerji's Reply to eSentio's Facts ¶ 27. “Dornic provided [ ] Lucas information and advice about NetDocuments[] and informally consulted with him throughout the spring and summer of 2016, explaining eSentio's expertise and educating [ ] Lucas on various aspects of the platform.” eSentio's Facts ¶ 27; see HBR's Reply to eSentio's Facts ¶ 27; Mukerji's Reply to eSentio's Facts ¶ 27. “Dornic expected Akin would likely be transitioning to NetDocuments relatively soon and that eSentio would almost certainly be selected to provide assistance in the conversion.” eSentio's Facts ¶ 27; see HBR's Reply to eSentio's Facts ¶ 27; Mukerji's Reply to eSentio's Facts ¶ 27.

         “In the fall of 2016, Akin [ ] committed to transitioning to NetDocuments, and it sought proposals from vendors to assist in a NetDocuments Conversion Project, as well as a related Information Governance Project” (collectively, the “Akin Project”). eSentio's Facts ¶ 28; see HBR's Reply to eSentio's Facts ¶ 28; Mukerji's Reply to eSentio's Facts ¶ 28. The NetDocuments Conversion Project “would [involve] a large-scale, firm-wide migration of Akin's document management system from iManage to NetDocuments.” eSentio's Facts ¶ 29; see HBR's Reply to eSentio's Facts ¶ 29; Mukerji's Reply to eSentio's Facts ¶ 29. “Akin['s] project team was made up of [TJ] Whelan, Brian Cooke, . . . and Juanita Bright[.]” HBR's Facts ¶ 26; see eSentio's Reply to HBR's Facts ¶ 26.

         “On November 1, 2016, [ ] Whelan reached out to Senthil Rajakrishnan, a Senior Director at HBR, to inquire about HBR's information governance capabilities.” HBR's Facts ¶ 43; see eSentio's Reply to HBR's Facts ¶ 43. “In response to [ ] Whelan's inquiry, on November 23, 2016, [ ] Rajakrishnan, Ray Fashola, . . . and [ ] Mukerji participated in a phone call with the Akin [ ] [P]roject team to discuss information governance.” HBR's Facts ¶ 44 (internal citation omitted); see eSentio's Reply to HBR's Facts ¶ 44.

         As to the NetDocuments Conversion Project, “Akin [ ] initially identified Fireman & Company, eSentio, and Kraft and Kennedy as potential partners for the [ ] [P]roject.” HBR's Facts ¶ 27; see eSentio's Reply to HBR's Facts ¶ 27. However, “[a]t some point prior to [Whelan's] November 23, 2016 conference call with [HBR] . . ., [ ] Whelan learned that [ ] Mukerji had NetDocuments conversion experience and . . . had left eSentio, ” HBR's Facts ¶ 46; see eSentio's Reply to HBR's Facts ¶ 46, and “that [ ] Mukerji was one of the most experienced people with [ ] NetDoc[uments] conversions, ” HBR's Facts ¶ 47; see eSentio's Reply to HBR's Facts ¶ 47. “Upon learning that [ ] Mukerji was [ ] with HBR, [ ] Whelan initiated discussions with HBR about Akin['s] NetDocuments [C]onversion [P]roject.” HBR's Facts ¶ 48; see eSentio's Reply to HBR's Facts ¶ 48. Specifically, “[o]n approximately December 1, 2016, [ ] Whelan called [ ] Mukerji to discuss the information [ ] Whelan had heard about [ ] Mukerji's experience with NetDocuments conversions, ” HBR's Facts ¶ 49; see eSentio's Reply to HBR's Facts ¶ 49, and “requested that HBR submit a proposal . . . [for] the NetDocuments [C]onversion [Project], ” HBR's Facts ¶ 53; see eSentio's Reply to HBR's Facts ¶ 53.

         On December 5, 2016, Mukerji submitted HBR's final proposal for the Information Governance Project. See eSentio's Facts ¶ 47; see also HBR's Reply to eSentio's Facts ¶ 47; Mukerji's Reply to eSentio's Facts ¶ 47; eSentio's Mot., Ex. 41) at [XXXXX] at HBR_00000001 (attaching HBR's “Information Governance Assessment”). Then, “[o]n December 28, 2016, HBR submitted its statement of work for . . . [the] NetDocuments [Conversion] [P]roject, ” HBR's Facts ¶ 56; see eSentio's Reply to HBR's Facts ¶ 56, which “estimated fees at $161, 920, ” HBR's Facts ¶ 57; see eSentio's Reply to HBR's Facts ¶ 57. eSentio also submitted “a proposal for $1, 514, 250.00 for [the] NetDocuments [C]onversion [Project]” on December 13, 2016. HBR's Facts ¶ 35; see eSentio's Reply to HBR's Facts ¶ 35. Two other firms-Fireman & Company and Kraft and Kennedy-also “provided proposals [for the NetDocuments Conversion Project] that were very similar in scope and . . . cost to HBR's” proposal. HBR's Facts ¶ 61 (internal quotation marks omitted); see eSentio's Reply to HBR's Facts ¶ 61. “On or about January 20, 2017, Akin awarded . . . [both] [p]roject[s] to HBR.” eSentio's Facts ¶ 64; see HBR's Reply to eSentio's Facts ¶ 64; Mukerji's Reply to eSentio's Facts ¶ 64.

         B. The King & Spalding LLP (“King & Spalding”) Project

          “In December 2016, King & Spalding engaged NetDocuments to perform conversion services from iManage to NetDocuments.” HBR's Facts ¶ 66; see eSentio's Reply to HBR's Facts ¶ 66. Like Akin, “King & Spalding was interested in engaging a consultancy to supplement NetDocuments' services.” HBR's Facts ¶ 67; see eSentio's Reply to HBR's Facts ¶ 67. Thus, “[o]n January 10, 2017, King & Spalding issued a Request for Proposal (‘RFP') for NetDocuments conversion consulting services [(the ‘King & Spalding Project')], soliciting responses from HBR, eSentio, Adaptive, Fireman & Company, and InOutsource.” HBR's Facts ¶ 72; see eSentio's Reply to HBR's Facts ¶ 72.

         “On January 27, 2017, HBR submitted its response to King & Spalding's RFP.” HBR's Facts ¶ 111; see eSentio's Reply to HBR's Facts ¶ 111. King & Spalding also “received responses . . . [from] Adaptive, eSentio, [ ] and InOutsource.” HBR's Facts ¶ 75; see eSentio's Reply to HBR's Facts ¶ 75. “On or about March 22, 2017, King & Spalding awarded the [King & Spalding] Project to HBR.” eSentio's Facts ¶ 65; see HBR's Reply to eSentio's Facts ¶ 65; Mukerji's Reply to eSentio's Facts ¶ 65.

         eSentio filed its Complaint against HBR and Mukerji on April 10, 2017, see Compl. at 1, and fact discovery concluded on June 28, 2018, see Order at 2 (May 1, 2018), ECF No. 44. Shortly thereafter, on July 19, 2018, the parties filed their cross-motions for summary judgment. See eSentio's Mot. at 1; HBR's Mot. at 1; Mukerji's Mot. at 1.

         II. STANDARD OF REVIEW

         Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(a) “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a Rule 56(a) motion, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

         In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there [are] [ ] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (citation and internal quotation marks omitted). Thus, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient” to withstand a motion for summary judgment, as “there must be [some] evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.

         III. ANALYSIS

         eSentio seeks “summary judgment in its favor as to [the d]efendants' liability on Counts I, II[, ] and III . . . [of its] Complaint, ” which allege “causes of action [(1)] against [ ] Mukerji for breach of contract arising out of Mukerji's violation of . . . [his] restrictive covenant [ ] (Count I); [(2)] against . . . HBR . . . for tortiously interfering with, and inducing the breach of, Mukerji's [restrictive covenant] (Count II); and [(3)] against both [d]efendants for tortiously interfering with eSentio's prospective contracts with . . . [Akin and King & Spalding] (Count III).” eSentio's Mot. at 1. Additionally, eSentio seeks summary judgment in its favor on Mukerji's Counterclaim, see eSentio's Mot. at 2, which alleges breach of contract against eSentio arising out of eSentio's alleged failure to comply with the Bonus Provision of Mukerji's Offer Letter, see Answer and Counterclaim of Defendant Rajiv Mukerji (Jury Demand Endorsed) (“Mukerji's Answer”) at 11, ¶¶ 7-9. HBR and Mukerji both seek summary judgment in their favor on all claims against them and on eSentio's claim for punitive damages. See HBR's Mot. at 1; Mukerji's Mot. at 1. The Court will address each of eSentio's claims and Mukerji's Counterclaim in turn.

         As an initial matter, the Court notes that because “federal jurisdiction in this case is based on diversity of citizenship, . . . state law provides the substantive rules of law with regard to all claims.” Base One Techs., Inc. v. Ali, 78 F.Supp.3d 186, 192 (D.D.C. 2015); see Compl. ¶ 5 (“This Court has subject matter jurisdiction of this dispute pursuant to 28 U.S.C. § 1332 (Diversity).”).[3] Because Mukerji's Employment Agreement and Offer Letter provide that their “terms will be governed by the laws of the District of Columbia, ” eSentio's Mot., Ex. 14 (Employment Agreement) § 13; see id., Ex. 14 (Offer Letter) at LTG - 2 (“[T]his letter . . . shall be governed by and construed in accordance with the substantive laws of the District of Columbia.”), the Court concludes that it must apply District of Columbia law to eSentio's and Mukerji's breach of contract claims, which arise out of the Employment Agreement and the Offer Letter, respectively, see Compl. ¶¶ 40-41; Mukerji's Answer at 11, ¶¶ 3, 7-9. Additionally, “[a]lthough a contractual choice-of-law provision does not bind parties with respect to non-contractual causes of action, ” Base One Techs., Inc., 78 F.Supp.3d at 192, the Court also finds it appropriate to apply District of Columbia law to eSentio's remaining tortious interference claims given that “[t]he parties have not raised any choice of law issues and[] . . . have relied [almost entirely] on District of Columbia law, ” Piedmont Resolution, LLC v. Johnston, Rivlin & Foley, 999 F.Supp. 34, 39 (D.D.C.1998); see Base One Techs., Inc., 78 F.Supp.3d at 192 (relying on New York law for non-contractual causes of action where a “choice-of-law provision” required application of New York law for the parties' contractual claims and “the parties . . . rel[ied] solely on New York law with respect to all of the counts”).

         A. eSentio's Breach of Contract Claim (Count I)

         eSentio and Mukerji both seek summary judgment on Count I of the Complaint, which alleges that “Mukerji [ ] breached [his Employment] Agreement by[] . . . acting to solicit, divert or take away eSentio clients and prospects, . . . including but not limited to . . . Akin and King & Spalding.” Compl. ¶ 45. “To prevail on a claim of breach of contract [under District of Columbia law], a party must establish (1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by [the] breach.” Francis v. Rehman, 110 A.3d 615, 620 (D.C. 2015) (emphasis omitted) (quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009)).

         eSentio argues that it “is entitled to summary judgment as to liability on Count I” of its Complaint, eSentio's Mem. at 8, because (1) “it cannot be disputed that . . . [the restrictive covenant] satisfies all the requirements for validity and enforceability under [District of Columbia] law, ” id. at 9; (2) Akin and King & Spalding were both “clients” or “prospects” under the restrictive covenant, see id. at 11-14, 17; (3) Mukerji breached the restrictive covenant by “t[aking] steps to ‘solicit, divert, or take away'” the Akin and King & Spalding Projects, id. at 14, 17; and (4) Mukerji's breach resulted in damages to eSentio, see id. at 22-25. Despite seeking summary judgment in his favor as to eSentio's breach of contract claim, see Mukerji's Mot. at 1, Mukerji responds that “genuine issues preclude summary judgment in favor of eSentio, ” Mukerji's Opp'n at 14. Specifically, he argues that genuine factual issues exist as to: whether “Akin . . . [is] a restricted client, ” such that he had a contractual duty as to Akin, id. at 15; whether he “did anything to solicit, divert, or take away” Akin and King & Spalding, id. at 14-15; and whether his conduct caused eSentio damages, see Mukerji's Reply at 17. Additionally, he argues that a genuine factual issue exists as to whether any “breach [by him] was excused by eSentio's breach of its [a]greement to pay . . . [him] an [a]nnual [p]erformance [b]onus.” Mukerji's Opp'n at 15. The Court will address each of the elements of eSentio's breach of contract claim in turn.

         1. The Existence of a Valid Contract

          “In order to be valid, covenants not to compete must protect some legitimate interest of the employer and must be reasonable in their scope.” Mercer Mgmt. Consulting, Inc. v. Wilde, 920 F.Supp. 219, 237 (D.D.C. 1996). “Restrictions are unreasonable if ‘the restraint is greater than is needed to protect the promisee's legitimate interest, or . . . the promisee's need is outweighed by the hardship to the promisor and the likely injury to the public.'” Id. (quoting Ellis v. Hurson Assocs., Inc., 565 A.2d 615, 618 (D.C. 1989)). “Significantly, a ‘restraint is easier to justify . . . if the restraint is limited to the taking of [a] former employer's customers as contrasted with competition in general.'” Id. (quoting Ellis, 56 A.2d at 618).

         eSentio argues that the restrictive “covenant . . . protect[s] eSentio's legitimate business interests[] . . . [because] it prevents Mukerji from taking advantage of his critical leadership role at eSentio[] and his relationship with eSentio clients and prospective clients[] to compete unfairly with eSentio.” eSentio's Mem. at 9. eSentio further argues that “[b]ecause the covenant . . . only [prohibits Mukerji] from engaging in specified competitive activities with regard to a precisely defined group of ‘clients' and ‘prospects,' the covenant is plainly reasonable in scope and, accordingly, fully enforceable.” Id. at 10-11. Mukerji does not dispute the validity of the restrictive covenant. See generally Mukerji's Mem.; Mukerji's Opp'n; Mukerji's Reply.

         Taking into consideration eSentio's undisputed arguments as to the validity of the restrictive covenant, the Court concludes that eSentio has demonstrated that the covenant is valid. The interests that eSentio asserts are protected by the restrictive covenant, see eSentio's Mem. at 9, constitute “legitimate interests” under District of Columbia law, see Mercer Mgmt. Consulting, Inc., 920 F.Supp. at 237 (recognizing as “legitimate interests” an employer's desire “to protect the investment made in its employees, preserve the confidentiality of information gleaned in the course of employment . . ., and protect itself from its employees leaving and capitalizing on [its] client base”). Additionally, the Court finds that the restrictive covenant's one-year length is reasonable given that District of Columbia courts have found similar and even significantly longer time periods reasonable. See id. (upholding a one-year restrictive covenant); see also Ellis, 565 A.2d at 621 (concluding that a “three[-]year time duration . . . was sufficiently reasonable” and observing that “agreements limiting competition for a period well in excess of three years have been sustained in this jurisdiction”). Moreover, the Court agrees with eSentio that a prohibition against soliciting, diverting, or taking away eSentio's clients or prospects is reasonable in scope given that it “is limited to the taking of [eSentio's] customers as contrasted with competition in general, ” Ellis, 565 A.2d at 619, and also given Mukerji's “active[] engage[ment] with eSentio clients and prospective clients, ” eSentio's Facts ¶ 14; see Mukerji's Reply to eSentio's Facts ¶ 14; Mercer Mgmt. Consulting, Inc., 920 F.Supp. at 237 (concluding that an employer's one-year restriction on “rendering of services to [its] clients” was “reasonable and enforceable” given “the vital importance of its client base to its business[] and the close contacts established between its consultants and its client base”). Accordingly, the Court concludes that eSentio has satisfied the first element of its breach of contract claim against Mukerji.

         2. The Existence of an Obligation or Duty Arising Out of the Contract

          eSentio argues that the restrictive covenant creates an obligation as to Akin and King & Spalding because Akin was both a “client” and “prospect, ” see eSentio's Mem. at 11-14, and King & Spalding was a “prospect, ” id. at 17. Mukerji responds that “Akin [ ] was not a [r]estricted [c]lient or prospect” because [XXXXX]Mukerji's Opp'n at 20. However, Mukerji does not dispute King & Spalding's status as a “prospect.” See generally Mukerji's Mem.; Mukerji's Opp'n; Mukerji's Reply. The Court will address the restrictive covenant's application to each firm separately.

         a. Whether Akin Was a “Client” or “Prospect”

         The Court first addresses the parties' dispute with respect to Akin, which turns on their differing interpretations of the restrictive covenant's language. As already explained, the restrictive covenant prohibits Mukerji from “act[ing] in any way, directly or indirectly, to solicit, divert or takeaway any client of [eSentio] or prospect that [he] ha[d] been involved in pursuing business with during the six months prior to the termination of [his] employment with [eSentio].” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8. The restrictive covenant further defines a “client” as “a firm that eSentio has sold product [to] or performed services for in the previous two years from date of termination of employment.” Id., Ex. 14 (Employment Agreement) § 3.8.

         Mukerji argues that “[t]he phrase . . . ‘that [he] ha[d] been involved in pursuing business with during the six months prior to the termination of [his] employment' [(the ‘six-month involvement limitation')], fairly read, applies to both [a] ‘client of [eSentio]' as well as [a] ‘prospect, '” and, because “he was not involved in pursuing business with Akin [ ] in the six months prior to the termination of his employment, ” Akin was neither a “client” nor a “prospect.” Mukerji's Opp'n at 20. Alternatively, Mukerji argues that if the restrictive covenant “were susceptible of more than this one fair reading, . . . such ambiguity would open the door to evidence of the parties' bargaining history, ” and “[t]he bargaining history in this case reveals the parties' intent to apply involvement to both prospects and clients.” Id. at 21. eSentio responds that “any fair reading of the [restrictive covenant] demonstrates that the six-month [involvement limitation] applies only to ‘prospect' and not to ‘client, '” eSentio's Reply at 2, and thus, whether Mukerji worked with Akin in the six months prior to his termination has no bearing on whether Akin qualifies as a “client” under the restrictive covenant. It further argues that “Mukerji's reading of the contract renders other terms meaningless . . . [because] there would be no need to distinguish between ‘clients' and ‘prospects' at all, [as] in both cases, the six-month [involvement limitation] would define the full scope of the restriction, and the clause would simply refer to ‘firms' or ‘entities' or some other all-encompassing term.” Id. Additionally, it argues that “Mukerji cannot create a genuine dispute of material fact by arguing that he reads the contract a different [ ] way, as contract construction is for the Court, ” and thus, “Mukerji's effort to introduce the parties' bargaining history and related parol evidence should be rejected.” Id. at 3 (emphasis omitted). Finally, eSentio argues that, in any event, “the bargaining history . . . proves conclusively that the plain and unambiguous language included in the final version of the [Employment] Agreement expresses the parties' intent.” Id.

         As the District of Columbia Court of Appeals has explained, “when interpreting a contract, ‘the court should look to the intent of the parties entering into the agreement.'” Steele Founds., Inc. v. Clark Constr. Grp., Inc., 937 A.2d 148, 154 (D.C. 2007) (citation omitted). However, “[t]he question of intent is resolved by an objective inquiry, and ‘[t]he first step' is therefore to determine ‘what a reasonable person in the position of the parties would have thought the disputed language meant.'” Id. (second alteration in original) (citation omitted). Accordingly, “the written language embodying the terms of an agreement will govern the rights and liabilities of the parties [regardless] of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake.” Tillery v. D.C. Contract Appeals Bd., 912 A.2d 1169, 1176 (D.C. 2006) (citation omitted). Additionally, “[c]ontractual provisions are interpreted taking into account the contract as a whole, so as to give effect, if possible, to all of the provisions in the contract.” Steele Founds., Inc., 937 A.2d at 154.

         Applying these principles here, the Court must reject Mukerji's position that the six-month involvement limitation applies to a “client” subject to the restrictive covenant. As eSentio correctly notes, see eSentio's Reply at 2, Mukerji's interpretation would render meaningless the distinction between a “client” and a “prospect” in the context of the restrictive covenant's prohibition against “solicit[ing], divert[ing, ] or tak[ing away], ” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8. Specifically, Mukerji's interpretation would mean that the restrictive covenant covers any “client” or “prospect, ” i.e., any firm, so long as Mukerji was “involved in pursuing business with [the firm] during the six months prior to [his] termination.” Id., Ex. 14 (Employment Agreement) § 3.8. Thus, in the context of the prohibition against “solicit[ing], divert[ing, ] or tak[ing away], ” id., Ex. 14 (Employment Agreement) § 3.8, there would be no need to distinguish between a “client” and a “prospect, ” and the restrictive covenant's definition of “client”- “a firm that eSentio has sold product or performed services for in the previous two years from date of termination of employment, ” id., Ex. 14 (Employment Agreement) § 3.8-would be unnecessary. Such an interpretation does not square with the District of Columbia Court of Appeals' instruction that the Court must “give effect, if possible, to all of the provisions in the contract.” Steele Foundations, Inc., 937 A.2d at 154.

         Nonetheless, Mukerji argues that, “[s]ince the parties used [ ] Mukerji's involvement to define [c]lients from whom he could not accept employment in the second sentence of § 3.8(a), [his involvement] also applies to those [c]lients whom he could not solicit, divert or take away in the first sentence.” Mukerji's Opp'n at 21. Mukerji's argument refers to a part of the covenant which states: “[T]his ‘non-compete' is intended to include accepting employment with a client of [eSentio] for the period and involvement stated above.” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8. However, even assuming that the phrase “period and involvement stated above” incorporates the six-month involvement limitation contained in the preceding sentence, it only incorporates that limitation for purposes of a prohibition against accepting employment with an eSentio client and does not purport to apply it to the prohibition against soliciting, diverting, or taking away clients. Thus, the plain language of the restrictive covenant provides the Court with no basis to adopt Mukerji's position that the limitation on clients with which Mukerji could not accept employment must comport with the limitations on clients that Mukerji could not solicit, divert, or take away.

         Having concluded that a “client” need not be a firm that Mukerji was “involved in pursuing business with during the six months prior to [his] termination, ” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8, the Court must conclude that Akin qualifies as a client subject to the restrictive covenant. The restrictive covenant defines a “client” as “a firm that eSentio has sold product [to] or performed services for in the previous two years from date of termination of employment.” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8.[XXXXX] HBR's Reply to eSentio's Facts ¶ 38; see Mukerji's Reply to eSentio's Facts ¶ 38 (incorporating HBR's response to ¶ 38 of eSentio's Facts), [XXXXX] see eSentio's Facts ¶ 17; HBR's Reply to eSentio's Facts ¶ 17; Mukerji's Reply to eSentio's Facts ¶ 17. Thus, Akin qualified as a “client” subject to the restrictive covenant, and consequently, Mukerji had a contractual duty not to solicit, divert or take away Akin's business.[4]

         b. Whether King & Spalding Was a “Prospect”

         eSentio argues that King & Spalding was a “prospect” under the restrictive covenant because [XXXXX] eSentio's Mem. at 17; see eSentio's Facts ¶ 52 (citing). Although Mukerji “disputes whether any of the exhibits cited by eSentio . . . evince his involvement in pursuing business from [King & Spalding], . . . [he] does not dispute [XXXXX] Mukerji's Reply to eSentio's Facts ¶ 52. Based on this undisputed fact, the Court concludes that eSentio has demonstrated that King & Spalding was a “prospect that [Mukerji] ha[d] been involved in pursuing business with during the six months prior to the termination of [his] employment with [eSentio], ” eSentio's Mot., Ex. 14 (Employment Agreement) § 3.8, and thus, he had a contractual duty as to King & Spalding under the restrictive covenant.

         3. Whether Mukerji Acted to, Directly or Indirectly, Solicit, Divert, or Take Away Akin or King & Spalding

         a. Akin

         Mukerji argues that he “did not solicit, divert[, ] or take away” Akin's business because he “never initiated sales activity with respect to Akin, ” Mukerji's Opp'n at 16, and only “responded to Akin['s] unsolicited requests for proposals or helped someone at HBR do so, ” id. at 20. Specifically, he argues that “[c]ourts that found solicitation . . . require some proactive step by the employee, like initiating the customer contact, . . . meeting with the customer after the proposal and before the award, . . . or otherwise taking proactive steps that went beyond responding to the proposal, ” Mukerji's Reply at 14, and because “no reasonable juror[] . . . could conclude that [he] took proactive steps that went beyond responding to an RFP, he is entitled to summary judgment in his favor and against eSentio on [eSentio's] breach of contract claims, ” id. at 15. eSentio responds that “the undisputed evidence in the record demonstrates that Mukerji took action to ‘solicit, divert, or take away' [the Akin Project] from eSentio, ” eSentio's Mem. at 16, because the evidence shows that “Mukerji played . . . the principal role[] in HBR's efforts to secure the award, ” including by “playing a substantive role not only in preparing HBR's bid . . ., but also in writing the proposal and interacting substantively and materially with the Akin personnel responsible for reviewing the qualifications of the competing firms and selecting the winner, ” id. at 14-15. It further argues that “the fact that Akin requested a bid” is “immaterial” because “the steps Mukerji took after this request constitute direct efforts, by him, to solicit, divert or take away the Akin Project.” eSentio's Opp'n to Mukerji's Mot. at 3.

         To resolve the parties' dispute, the Court must determine the proper meaning of the term “solicit” in the context of the restrictive covenant. See Steele Founds., Inc., 937 A.2d at 154 (“[W]hen interpreting a contract, . . . ‘[t]he first step' is [ ] to determine ‘what a reasonable person in the position of the parties would have thought the disputed language meant.'” (second alteration in original) (internal citation omitted)). The parties have not cited, and the Court has not been able to locate, any decisions interpreting the meaning of “solicit” in this context by the District of Columbia Court of Appeals or any other court applying District of Columbia law. And, courts that have addressed the issue under other states' laws have adopted conflicting interpretations. For example, the Fourth Circuit has held “that the plain meaning of ‘solicit' requires the initiation of contact.” Mona Elec. Grp. v. Truland Serv. Corp., 56 Fed.Appx. 108, 110 (4th Cir. 2003) (applying Maryland law); see Gen. Assur. of Am., Inc. v. Overby-Seawell Co., 893 F.Supp.2d 761 (E.D. Va. 2012) (concluding that “for purposes of enforcement of nonsolicitation clauses under Georgia law, . . . ‘solicitation' of business . . . turns on which party initiated contact”). By contrast, several other courts, including the First Circuit and another member of this Court, have concluded that solicitation does not necessarily require initiating contact with a customer. See Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 10-12 (1st Cir. 2013) (applying Massachusetts law and concluding that “the identity of the party making initial contact is just one factor among many that the trial court should consider in . . . [defining] solicitation . . . in a given case”); see also Wells Fargo Ins. Servs. USA, Inc. v. McQuate, 276 F.Supp.3d 1089, 1111 (D. Colo. 2016) (“find[ing] that, under Colorado law, conduct may fall within the definition of ‘solicit' and ‘solicitation' even in the absence of [the] [d]efendants making the initial contact with [the plaintiff's] client or customer”); Wachovia Ins. Servs., Inc. v. Hinds, Civ. Action No. WDQ-07-2114, 2007 WL 6624661, at *6 (D. Md. Aug. 30, 2007) (applying Maryland law and concluding that “[e]ven if [the employee] did not initiate contact with [her former employer's client], she may have actively solicited them”); FCE Benefit Adm'rs, Inc. v. George Wash. Univ., 209 F.Supp.2d 232, 234 (D.D.C. 2002) (not identifying the state law being applied and concluding that an employee violated a prohibition against soliciting her client's customers because, “[e]ven though she was initially contacted by [a customer] . . ., she assumed an active role in [the customer's] decision-making process”).[5]

         The Court concludes that the plain meaning of “solicit” does not necessarily require the soliciting party to initiate contact. Common dictionary definitions of “solicit” support this interpretation, as they explicitly include conduct that does not require an actor to initiate contact or even make a request, but only require “seeking to obtain something” or making “[a]n attempt or effort to gain business.” Black's Law Dictionary 1607-08 (10th ed. 2014); see also Solicit, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/solicit (last visited Mar. 19, 2019) (defining “solicit” to include “to urge (something, such as one's cause) strongly”). Notably, Mukerji appears to concede that the plain meaning of “solicit” is not limited to circumstances in which an employee initiated contact with a potential customer. See Mukerji's Reply at 14 (arguing that “[c]ourts that found solicitation . . . uniformly require . . . initiating the customer contact, disclosing confidential former employer information, misrepresenting or omitting competitive information, meeting with the customer after the proposal and before the award, socializing with the customer[, ] or otherwise taking proactive steps that went beyond responding to the proposal” (emphasis added)).

         Adopting the ordinary meaning of “solicit, ” the Court concludes that a reasonable jury must conclude that Mukerji solicited Akin to obtain the Akin Project. Mukerji does not dispute that he communicated directly with Whelan regarding HBR's bids for the Information Governance and NetDocuments Conversion Projects. Specifically, Mukerji does not dispute that from November 27, 2016, through December 1, 2016, he exchanged e-mails with Whelan regarding “information [HBR] needed for the [Information Governance] proposal, ” and that, on December 1, 2016, he “sp[o]k[e] with [Whelan] about the [Information Governance] proposal.” Mukerji's Reply to eSentio's Facts ¶ 45, at 20. Additionally, Mukerji does not dispute that, on his December 1, 2016 phone call with Whelan, he also spoke with Whelan about the NetDocuments Conversion Project and Whelan “asked him ‘to consider and come up with what aspects [HBR] would want to take on for the [NetDocuments Conversion] [P]roject.'” Id. (quoting HBR's Mot., Ex. 21 ([XXXXX]) at HBR 000226). As another member of this Court has observed, direct contacts with a restricted client for the purpose of obtaining business from that client “plainly violate” a nonsolicitation provision. Robert Half Int'l Inc. v. Billingham, 315 F.Supp.3d 419, 432 (D.D.C. 2018) (concluding that an employee “violated [his] non[]solicitation provision . . . by communicating with [prohibited] customers for the purpose of creating business opportunities for his new employer[]”). Moreover, Mukerji does not dispute that he prepared the NetDocuments Conversion Project proposal and participated in the preparation of the Information Governance Project proposal. See Mukerji's Mem. at 28 (asserting that “Schmidt . . . asked [ ] Mukerji to prepare [the NetDocuments Conversion Project proposal], which [Mukerji] did”); see also Mukerji's Reply to eSentio's Facts ¶ 45, at 20 (admitting that the record evidence demonstrates that “Mukerji revised and circulated internally a draft of the [Information Governance] proposal requested by Akin” and also “blocked out time on his calendar to plan the proposal that Akin requested for its Net[]Documents [Conversion] [P]roject”). Mukerji also submitted final or pre-final versions of HBR's proposals for both projects directly to Whelan. See eSentio's Facts ¶ 47; see also Mukerji's Reply to eSentio's Facts ¶ 47 (not disputing that Mukerji submitted the final version of “the proposal Akin requested for Information Governance services”); id. ¶ 45 (admitting that the evidence shows “Mukerji sent a preliminary draft of the [NetDocuments Conversion Project] proposal to . . . Whelan to discuss”); eSentio's Mot., Ex. 41 (E-mail from Rajiv Mukerji to TJ Whelan (Dec. 5, 2016)) at HBR00000001 (attaching “HBR proposal for Akin [Information Governance] Assessment” and stating: “We'd like to go through the proposal with you at your convenience this week so we can adjust as needed to make sure we've captured all your requirements.”); eSentio's Mot., Ex. 28 (E-mail from Rajiv Mukerji to TJ Whelan (Dec. 22, 2016)) at HBR00001049 (attaching “Akin discussion proposal” for NetDocuments Conversion Project). These collective actions clearly constitute “attempt[s] or effort[s] to gain business” from Akin, Black's Law Dictionary 1608 (10th ed. 2014), or actions “to urge [HBR's cause] strongly, ” Solicit, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/solicit (last visited Mar. 19, 2019).

         Mukerji's counterarguments are unpersuasive. He cites a number of cases for the proposition that “[c]ourts that f[i]nd solicitation . . . uniformly require . . . initiating customer contact, disclosing confidential former employer information, misrepresenting or omitting competitive information, meeting with the customer after the proposal and before the award, socializing with the customer[, ] or otherwise taking proactive steps that went beyond responding to [a] proposal.” Mukerji's Reply at 14. However, for the reasons already explained, the Court cannot agree that initiation of customer contact is required for solicitation, and thus, it rejects as unpersuasive courts' conclusions relying on this proposition. The Court also cannot agree that an employee must take “proactive steps . . . beyond responding to [a] proposal” to violate a nonsolicitation provision, as efforts to prepare and submit a proposal for a client's business fall squarely within the plain meaning of solicit. See Black's Law Dictionary 1608 (10th ed. 2014) (defining “solicitation” to include “[a]n attempt or effort to gain business”). The remaining cases cited by Mukerji do not dictate otherwise, as they simply conclude that “[m]erely accepting business, ” without taking any other action to obtain it, “does not . . . constitute solicitation.” Akron Pest Control v. Radar Exterminating Co., 455 S.E.2d 601, 603 (Ga.Ct.App. 1995) (concluding that a “nonsolicitation agreement could [not] be violated by failing to turn away the business of former customers”); see, e.g., J.K.R., Inc. v. Triple Check Tax Serv., Inc., 736 So.2d 43, 44 (Fla. Dist. Ct. App. 1999) (concluding that “[t]he words ‘call upon, solicit, divert or take away' . . . do not disallow [employees] from accepting former clients who actively seek their assistance, ” and thus, “affirm[ing] . . . [a] temporary injunction prohibiting [the employees] from contacting former clients, but revers[ing] that portion forbidding them from ‘doing business with' former clients”); Harry Blackwood, Inc. v. Caputo, 434 A.2d 169, 170 (Pa. Super. Ct. 1981) (concluding that a nonsolicitation provision did not “preclude [an insurance agent] from any writing of insurance for any of [his former employer's] customers”). And, the decision by another member of this Court in FCE Benefit Administrators, upon which Mukerji relies, does not support the proposition that any or all of the actions listed by Mukerji must be present to find solicitation. In that case, the Court considered whether an insurance agent breached an agreement with a health insurance benefits company to not “call on, solicit, take away, or attempt to call on, solicit, or take away any of [the company's] customers, ” 209 F.Supp.2d at 234, and, in concluding that the agent breached the agreement, it observed that the actions taken by the agent to sell the company's customer a competitor's health insurance benefits plan-including “solicit[ing] alternative price quotes, me[eting] repeatedly with [the customer]'s benefits committee, and [ ] prepar[ing] numerous spreadsheets” - “constituted far more than merely ‘accepting . . . business, '” id. at 240 (emphasis added). In any event, Mukerji's direct communications with Whelan regarding the Information Governance Project and NetDocuments Conversion Project proposals would suffice to satisfy any “proactive steps” requirement, as they demonstrate that Mukerji “assumed an active role in [Akin's] decision-making process” with respect to those projects. Id. at 234.

         Thus, the Court concludes that the undisputed evidence demonstrates that Mukerji solicited Akin with respect to the Akin Project. Accordingly, the Court concludes that eSentio has demonstrated that Mukerji breached his restrictive covenant as to Akin.

         b. King & Spalding

         Mukerji argues that “[t]his Court must enter summary judgment in [his] favor on eSentio's breach of contract claim with respect to King & Spalding” because he “did nothing to obtain the King & Spalding . . . [P]roject, ” as shown by the fact that he “asked to be walled off from it, ” Mukerji's Mem. at 24, and that others involved in the bid issued instructions that Mukerji could not be involved, see id. He further argues that “a covenant not to solicit, divert or take away clients does not bar a non-breaching employee from performing work he did not solicit.” Id. eSentio responds that “[t]he supposed ‘wall' was just a smokescreen to mask Mukerji's pivotal role, as Mukerji was copied on e[-]mails, and in one e[-]mail provided analysis of HBR's competition” for the King & Spalding Project. eSentio's Reply at 18. Additionally, it argues that the evidence demonstrates that Mukerji “indirectly” solicited King & Spalding by “us[ing] . . . HBR [ ] to place his credentials and experience before the [King & Spalding] decisionmakers.” eSentio's Mem. at 20; see id. at 19 (arguing that HBR “solicit[ed] [King & Spalding] on Mukerji's behalf” by “actively pitch[ing] Mukerji as a key member of the [proposed] project team, [and] inform[ing] [King & Spalding] that Mukerji would actually lead the project”).

         The Court finds that a genuine factual dispute exists with respect to whether Mukerji solicited the King & Spalding Project in violation of the restrictive covenant. Specifically, the Court concludes that a genuine factual issue exists with respect to whether Mukerji advised on and otherwise participated in preparing HBR's bid for the project. For example, as eSentio notes, see eSentio's Reply at 18, evidence in the record demonstrates that HBR employees involved in preparing the King & Spalding bid included Mukerji on several e-mails related to HBR's efforts to obtain the King & Spalding Project. See eSentio's Opp'n to HBR's Mot., Ex. 114 ([XXXXX]) at HBR00001232-33 (informing Mukerji, Denner, and two others that HBR was “about to get an RFP from King & Spa[]lding on [NetDocuments] services” and identifying firms they would “be competing against”); id., Ex. 112 ([XXXXX]) at HBR00001121 (circulating “updates to the King & Spalding RFP” to Schmidt, copying Mukerji, Mark Denner, and Jorge Arana); id., Ex. 113 ([XXXXX]) at HBR00001447-48 (informing Mukerji that “Erik didn't do a good job leading the work on” the RFP for the King & Spalding Project, to which Mukerji responded, “[W]hen is it due? [C]an you and Terry fix?”). And, [XXXXX] provided his opinion regarding HBR's potential competition for the King & Spalding Project. See id., Ex. 114 (E-mail from Rajiv Mukerji to Erik Schmidt and Mark Denner (Jan. 10, 2017)) at HBR00001232 (advising that “Adaptive would be the main [competition], [as] they are helping A&P and have a good DC presence”). Additionally, [XXXXX] provided Denner with information regarding eSentio's relationship with ...


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