Wachovia Insurance Services, Inc. appeals from the trial court’s grant of summary judgment to Stephen Fallon and Fallon Benefits Group, Inc. in a case filed by Wachovia Insurance against the defendants after Fallon left his employment with Wachovia Insurance and began competing against it through Fallon Benefits. Wachovia Insurance asserts that the trial court erred by granting summary judgment in favor of the defendants and by denying its motion for summary judgment in its favor. Because we find no merit in any of Wachovia Insurance’s claims, we affirm the trial court’s grant of summary judgment to Fallon and Fallon Benefits.
In September 2004, Wachovia Insurance’s president (Stewart McDowell) requested that Fallon sign a written “confidentiality and non-solicitation agreement.” This agreement stated that Fallon would accept the status of an at-will employee, and it also included confidentiality and nonsolicitation provisions.
A couple of years later, Wachovia Insurance reduced Fallon’s bonus and commission structure, аnd Fallon decided to resign and form his own business, Fallon Benefits Group, Inc. On April 12, 2007, Fallon met with McDowell and told him that he was resigning. Fallon informed McDowell that he planned to open a competing business, but assured McDowell that he would honor his nonsolicitation agreement. When Fallon subsequently met with his direct supervisor, Gil Benjamin, they decided that Fallon should give 30 days notice and keep coming into the office for the next two weeks.
A few days later, Benjamin called an employee meeting and informed everyone in the department that Fallon was leaving to start his own firm. On April 23, 2007, Fallon sent the following letter to 90 of his business contacts “with the advice and consent” of Benjamin:
It is with mixed emotions that I announce my departure from Wachovia Insurance Services. I feel blessed to have had the opportunity to work with partners like you to serve our mutual customers. I am also excited about the challenges that lie ahead as I have decided to start my own firm.
We are in the process of transferring management of the Employer Solutions Group at WIS and re-assigning my аccounts. We will be in touch very soon to discuss any transitional issues. Thank you for your past support and best of luck in the future.
On April 30, 2007, Fallon “was informed that [his] services were no longer needed.” Wachovia Insurance paid Fallon through May 15, 2007. The next day, Fallon Benefits opened for business.
Wachovia Insurance filed suit against Fallon and Fallon Benefits less than two months later and asserted numerous causes of action against them. 1 Both parties moved for summary judgment in their favor. In a two-sentence order, the trial court denied Wachovia Insurance’s motion and granted the motion of Fallon and Fallon Benefits.
1. Wachovia Insurance asserts the trial court should have concluded that Fallon breached his written agreement not to solicit clients. Fallon asserts in response that the nonsolicit agreement is overly broad and legally unenforceable.
The first step in considering the enforceability of restrictive covenants is to determine the level of scrutiny to be applied. Georgia courts have traditionally divided restrictive covenants into two сategories: covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of [a] business, which receive much less scrutiny and may be blue-penciled.
(Citations, punctuation and footnotes omitted.)
Advance Technology Consultants v. Roadtrac, LLC,
Wachovia Insurance asserts that we should blue-pencil Fallon’s agreement because it related to the sale of his interest in Hamiltоn, Dorsey & Alston Company. The
Next, we must consider whether the covenant at issue imposes “an unreasonable restraint on trade.” (Citations and footnote omitted.)
Trujillo v. Great Southern Equip. Sales,
While employed by the Company or any of its affiliates and for two years after the termination of the employment of the Employee with the Company or any of its affiliates, the Employee will not, except to the extent necessary to carry out the Employee’s duties as an employee of the Company or any of its affiliates, directly or indirectly, on behalf of the Employee or any other person or entity, solicit or divert away, or attempt to solicit or divert away, any Customer (as defined below) of the Company or any of its affiliates for the purpose of selling or providing Competitive Services (as defined below), provided the Company or any of its affiliates is then still engaged in the sale or provision of the Competitive Services. For purposes of this Agreement, the term “Customer” means (i) any individual or entity that has purchased an insurance contract through the Company (ii) with whom or with which the Employee personally had, alone or in conjunction with others, material contact during the two years immediately prior to the termination of the Employee’s employment with the Company or any of its affiliates. For purposes of this Agreement, the Employee shall have had material contact with a person or еntity if (i) the Employee had business dealings with the person or entity on behalf of the Company or any of its insurance affiliates either directly or indirectly through an insurance agent or broker; (ii) the Employee was responsible for supervising or coordinating the business dealings between the person or entity and the Company or any of its affiliates; or (iii) the Employee obtained trade secrets or Confidential Information about the person or entity as a direct result of the Employee’s business involvement with the person or entity on behalf of the Company or any of its affiliates. For purposes of this Agreement, the term “Competitive Services” means the sale or provision of insurance, underwriting services or consulting services or products relating to insurance of the type offered by the Company as of the date hereof or its affiliates.
Fallon asserted below and on appeal that this provision is overly broad because it can be read to preclude Fallon from soliciting clients who had already severed their relationship with Wachоvia Insurance. We agree because the agreement defined “Customer” as meaning “any individual or entity that
has purchased
an insurance contract through the Company.” (Emphasis supplied.) See
Gill v. Poe
& Brown of Ga.,
2. Wachovia Insurance asserts the evidence shows that Fallon breached his agreement not to
directly or indirectly . . . solicit or induce, or attempt to solicit or induce, any person employed by the Company or any of its affiliates during the two-year period immediately prior to Employee’s termination, to terminate his or her relationship with thе Company or any of its affiliates and/or to enter into an employment or agency relationship with the Employee or with any other person or entity with whom the Employee is affiliated.
In support of its claim, Wachovia Insurance points to evidence showing that Fallon Benefits Group hired two Wachovia Insurance employees, Stacy McGee and Julie Mitzel. Wachovia Insurance points to no evidence demonstrating that Fallon approached McGee and Mitzel about working for Fallon Benefits. Insteаd, the undisputed evidence in the record demonstrates that these employees approached Fallon about a job.
We find this evidence insufficient to support Wachovia Insurance’s claim for breach of Fallon’s covenant not to solicit employees. Fallon did not solicit or induce the employees; instead, they approached him. Cf.
Akron Pest Control v. Radar Exterminating Co.,
3. Wachovia Insurance asserts that the evidence shows that Fallon and Fallon Benefits misappropriated trade secrets and confidential information by “taking, downloading, obtaining, and using” (a) a Wachovia Insurance “client list and client contact information from the [Wachovia Insurance] password protected Blackberry client information”; (b) business cards obtained by Wachovia Insurance employees during Wachovia Insurance еmployment; (c) hard copies of client brochures taken from a Wachovia Insurance file cabinet; and (d) “electronic data of client brochure and client information taken from [Wachovia Insurance] ⅛ computer and downloaded onto a CD.” 2
To obtain relief under the Georgia Trade Secrets Act, OCGA § 10-1-760 et seq., Wachovia Insurance must demonstrate both that the information in question constitutes a “trade secret” as defined by OCGA § 10-1-761 (4) and that Fallon or Fallon Benefits misappropriated that trade secret.
Hilb, Rogal &c. v. Holley,
infоrmation, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information:
(A) Derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(B) Is the subject of efforts that are rеasonable under the circumstances to maintain its secrecy.
(Emphasis supplied.) OCGA § 10-1-761 (4).
(a) With regard to Wachovia Insurance’s claim that its client lists and client contact information were misappropriated, the record shows that Fallon used a personal Blackberry device and a cellular phone when he worked at Wachovia Insurance. Both of these devices contained customer contact information that Fallon had entered in them during his employment with Wachovia Insurance. Fallon kept using both of these devices
The record shows that other former Wachovia Insurance employees who came to work for Fallon Benefits downloaded client contact information from their personal Blackberries into their computer at Fallon Benefits. Wachovia Insurance gave employees who used a personal Blackberry a password that was required to unlock the handset and use it. The purpose of the password was to prevent others from using it.
There is no evidence, however, demonstrating that any former Wachovia Insurance employees had a Wachovia Insurance client list that had been downloaded onto their personal Blackberries. Instead, the employees had their own client contact information that was derived from e-mail correspondence with clients or a client business card.
In order to prevail on its claim regarding misappropriation of this client contact information under the Georgia Trade Secrets Act, Wachovia Insurance must show that the client contact information in its former employees’ Blackberries was a “list of actual or potential customers or suppliers which is not commonly known by or available to the public.” OCGA § 10-1-761 (4). The record shows without dispute that a public website titled “freeERISA.com” contains all of the information about the customers of an employee benefit broker such as Wachovia Insurance, including the name and contact information of the customer’s decision-maker. Indeed, a Wachovia Insurance representative (Benjamin) testified that “all of the employee benefits work that Wachovia Insurance Services does in Atlanta” could be obtained from this website. He described it as “a great prospecting tool to go out and find out who might be writing an account.”
Based on this undisputed evidence,
3
this portion of Wachovia Insurance’s misappropriation claim fails. See
Leo Publications v. Reid,
(b) With regard to Wachovia Insurance’s claim that client business cards were misappropriated, the undisputed evidence shows that Fallon threw away all of his customer business cards when he cleaned out his office while preparing to leave Wachovia Insurance. While another employee admits taking business cards obtained during her employment with Wachovia Insurance to her subsequent job with Fallon Benefits, there is no evidence in the record showing that this employee used these business cards after leaving Wachovia Insurance or thát Fallon was aware that she had taken them.
Even if this evidence somehow shows a “misappropriation” by Fallon or Fallon Benefits within the meaning of OCGA § 10-1-761 (2), it fails for the same reason that Wachovia Insurance’s claim in Division 3 (a) fails: the client contact information containеd on business cards was “commonly known by or available to the public.” OCGA § 10-1-761 (4). See also Leo, supra.
(c) Wachovia Insurance’s remaining misappropriation claim against Fallon and Fallon Benefits stems from the conduct of a creative services manager, Julie Mitzel. Mitzel testified that after she resigned from Wachovia Insurance, she took with her some brochures that she had designed for clients during her employment with Wachovia Insurance. She kept these brochures in her desk drawer as samples for her portfolio
Mitzel testified that she also made a CD which contained electronic copies of some of the brochures she created during her employment with Wachovia Insurance “to build like an electronic portfolio.” Mitzel admitted that she took this CD to work during her subsequent employment with Fallon Benefits and used it “[t]o look up fonts, colors.” She explained that she “could hаve called the client, but because I had the disk I went ahead and looked to see what their branded images” required. She never downloaded any information on the disc to her computer at Fallon Benefits, and to her knowledge, no one at Fallon Benefits knew she had the disc.
We find this evidence insufficient to create a genuine issue of fact as to whether Fallon or Fallon Benefits misappropriated a trade secret. With regard to the sample client brochures kept in the attic of Mitzel’s home, Fallon and Fаllon Benefits engaged in no misappropriation within the meaning of OCGA § 10-1-761 (2). With regard to the CD, the record shows that the information stored on it does not qualify as a trade secret because the information was available to the public.
4. Wachovia Insurance asserts that Fallon breached his duty of loyalty and fiduciary duty. In support of this assertion, Wachovia Insurance points to the following alleged conduct by Fallon during his employment with Wachovia Insurance: (a) making an appoint ment with another Wachovia Insurance emрloyee whom he later hired; (b) scheduling business appointments with clients that he kept after leaving Wachovia Insurance; and (c) discussing his plans to go into business for himself during a golf game with a client.
“It is settled law that corporate officers and directors occupy a fiduciary relationship to the corporation and its shareholders, and are held to the standard of utmost good faith and loyalty.”
Hilb, Rogal &c. v. Holley,
(a) We find no merit in Wachovia Insurance’s claim that Fallon breached his fiduciary duty by making an appointment with and hiring a Wachovia Insurance employee, Stacy McGee. The undisputed evidence in the record shows that Fallon did not make an appointment with the employee until after he had started his own company on May 16, 2007.
(b) We find no merit in Wachovia Insurance’s breach of fiduciary duty and loyalty claims regarding Fallon’s conduct on the SETA, Cousins, Wells, and Premiere Global accounts before leaving Wacho-via Insurance. The undisputed evidence in the record shows that Fallon did not solicit these clients for his own business or otherwise engage in direct competition with Wachovia Insurance during his employment with Wachovia Insurance. 4
5. In an interrelated enumeration of error, Wachovia Insurance argues that Fallon and Fallon Benefits tortiously interfered with contracts between Wachovia Insurance and its former employees Simpson, McGee and Mitzel, and induced these employees to breach their fiduciary duty, duty of loyalty, and contracts with Wachovia Insurance. Wachovia Insurance points to the following alleged conduct by Fallon to support these claims: “having both McGеe and Simpson solicit [its] clients in violation of their own noncompete contracts”; hiring Mitzel to compete and do work for Fallon Benefits while she was still employed by Wachovia Insurance;
(a) In order to establish a cause of action for wrongful interference with contractual relations, Wachovia Insurance was required to establish the existence of a valid contract.
Quality Foods v. Smithberg,
(b) Wachovia Insurance’s claim that Fallon and Fallon Benefits induced Wachovia Insurance employees to breach their fiduciary duty and duty of loyalty is waived because it was not raised below.
Pfeiffer v. Ga. Dept. of Transp.,
6. Wachovia Insurance’s claim for unjust enrichment is predicated upon the taking of client contact information in the former employees’ Blackberries and Mitzel’s conduct in taking client brochures and the CD. Wachovia Insurance cites no legal authority in support of this theory of recovery.
“Unjust enrichment is an equitable concept and applies when as a matter of fact there is no legal contract, but when the party, sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for.” (Citations and punctuation omitted.)
Harris Ins. Agency v. Tarene Farms,
7. Wachovia Insurance seeks civil damages for Fallon and Fallon Benefit’s alleged “computer theft” in violation of OCGA § 16-9-93. In support of this claim, Wachovia Insurance points to the conduct of former employees who used client contact information on their Blackberries in their subsequent employment with Fallon Benefits and Mitzel’s creation and use of the CD in her subsequent employment with Fallon Benefits. Other than a one-sentence allegation in its brief that Fallon and Fallon Benefits violated this Code section, Wachovia Insurance provides no argument or legal аuthority in support of this claim.
OCGA § 16-9-93 (g) (1) provides that
[a]ny person whose property or person is injured by reason of a violation of any provision of this article may sue therefor and recover for any damages sustained and the costs of suit. Without limiting the generality of the term, “damages” shall include loss of profits and victim expenditure.
OCGA § 16-9-93 (a) provides:
Computer theft. Any person who uses a computer or computer network with knowledge that such use is without authority and with the intention of:
(1) Taking or appropriating any property of another, whether or not with the intention of depriving thе owner of possession;
(2) Obtaining property by any deceitful means or artful practice; or
(3) Converting property to such person’s use in violation of an agreement or other known legal obligation to make a specified application or disposition of such property shall be guilty of the crime of computer theft.
Fallon asserts that the conduct alleged by Wachovia Insurance does not fall within the definition of computer theft because Wacho-via Insurance submitted no evidence showing that “а computer or computer network” was used “with knowledge that such use is without authority.” We agree. Use of personal Blackberries cannot demonstrate “knowledge that such use is without authority.” Additionally, Mitzel’s use of her computer during
8. Wachovia Insurance asserts in its brief that it is entitled to recover for conspiracy based upon “the various acts of tortious conduct set forth above.” Based upon Wachovia Insurance’s failure to properly support this assertion with citations to the record and legal authority, we cannоt consider it and deem it abandoned. See
Court of Appeals Rule 25;
Drake v. Drake,
Based upon the above, we affirm the trial court’s order granting summary judgment in favor of Fallon and Fallon Benefits Group.
Judgment affirmed.
Notes
Benjamin testified Wachovia Insurance filed this lawsuit, in part, as “a njessage to others,” that “sometimes you have to do something to let others who might be contemplating the same thing understand that if you do this, and you try to take business, you’re going to be involved in a lawsuit.”
A close examination of Wachovia Insurance’s brief and enumeration of error reveals that it does not assert that it is entitled to breach of contract damages for any alleged violations by Fallon of the nondisclosure provision in his written agreement. See
Global Link Logistics,
supra,
Without citation to the record, Wachovia Insurance asserts in a reply brief that this website does not contain current information or e-mail contact information. We cannot consider facts asserted in briefs that are not a part of the record before us. “It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” (Citations and punctuation omitted.)
Demetrios v. State,
At the time that a SETA representative called Fallon, Wachovia Insurance had already informed him that his services were no longer needed.