IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ...

52 Pages·2015·0.3 MB·English

by  Frances Porreca

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VIZANT TECHNOLOGIES, LLC, : CIVIL ACTION
et al. :
:
v. :
:
JULIE P. WHITCHURCH, et al. : NO. 15-431

MEMORANDUM
Bartle, J. April 29, 2015
Plaintiffs Vizant Technologies, LLC (“Vizant”) and its
chief executive officer (“CEO”) Joseph Bizzarro (“Bizzarro”)
have filed this action against Julie P. Whitchurch
(“Whitchurch”) and Jamie Davis (“Davis”), both of whom are
former Vizant employees. Plaintiffs’ ten-count complaint
alleges: two violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968; breach of
contract; misappropriation of trade secrets in violation of the
Delaware Uniform Trade Secrets Act (“DUTSA”), Del. Code Ann.
tit. 6, §§ 2001 et seq.; defamation; tortious interference with
existing and prospective contractual relationships; abuse of
process; conversion; fraud; and civil conspiracy.1

1. The claims of breach of contract, misappropriation of trade
secrets, and conversion are brought by Vizant alone against both
defendants. Both plaintiffs bring the remaining counts against
both defendants.
We have subject matter jurisdiction over plaintiffs’
RICO claims under 28 U.S.C. § 1331 and supplemental jurisdiction
over their remaining claims under 28 U.S.C. § 1367. Before the
court is the motion of Vizant for preliminary injunctive relief
on its claims for breach of contract, violations of DUTSA,
tortious interference with existing and prospective contractual
relationships, and defamation. The court held an evidentiary
hearing on the motion and now makes the following findings of
fact and conclusions of law.
I.
Vizant, formerly PE Systems, LLC, is a financial
consulting firm. The company is organized under the laws of
Delaware and has its principal place of business in Chadds Ford,
Pennsylvania. At all times relevant hereto, its CEO has been
plaintiff Bizzarro and its chief financial officer has been
David Jablonski (“Jablonski”). Its three-member board of
directors includes its chair Frank Seidman (“Seidman”) as well
as Lane Wiggers (“Wiggers”).
Vizant is owned in part by Capital Solutions, Inc.
(“Capital Solutions”), an entity founded by Seidman which is
engaged by investors to monitor various portfolio companies.
Vizant is among those companies monitored by Capital Solutions.
Wiggers is a former Capital Solutions employee. In its history,
Vizant has served nearly 3,500 clients, approximately 800 of
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them current. It works with clients in both the for-profit and
nonprofit sectors and operates on a national level.
Among other things, Vizant’s expertise lies in
identifying strategies for its clients to reduce the costs and
fees associated with inbound payments such as the percentages
clients are charged by credit card companies. Vizant develops
these strategies by conducting a highly detailed assessment of a
client’s finances and by utilizing its detailed knowledge of
credit card companies’ methods of operation. Upon entering into
an agreement with a new client, Vizant first obtains data from
that client about its finances spanning the course of
approximately one year. This process can take several months
for Vizant to complete.
Vizant then conducts a detailed analysis of the data
obtained from the client and generates a document known as a
cost reduction report. Each cost reduction report contains
background information about the client, including its reported
sales and reported volume of inbound credit card payments. The
cost reduction report then provides comprehensive information
about the relevant costs being incurred by the client at the
time the report is generated and defines “cost reduction
opportunities,” which are essentially Vizant’s recommendations
as to how the client can reduce the charges associated with
processing incoming credit card payments. These recommendations
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are in part the result of Vizant’s negotiations with credit card
providers to lower the client’s rates. The recommendations also
stem from Vizant’s analytical processes, for which the company
holds several patents. Vizant is compensated for its services
on a “results basis.” It shares with its clients any savings
obtained as a result of the implementation of the
recommendations outlined in the cost reduction report.
Vizant and its clients consider the contents of cost
reduction reports to be sensitive and highly confidential.
Vizant’s clients have an interest in ensuring that the financial
information about them contained in the reports is not disclosed
to their competitors. It is not uncommon for prospective
clients to require that Vizant enter into a nondisclosure
agreement before they engage Vizant’s services. Similarly,
Vizant has an interest in maintaining secrecy with respect to
its compensation from its clients and with respect to the
reduction in rates it is able to negotiate with credit card
servicers on behalf of its clients.
For these reasons, Vizant goes to great lengths to
maintain the confidentiality of its cost reduction reports and
other client data. For example, the company maintains a robust
network security infrastructure and does not permit clients to
submit data via email. Vizant also limits the number of
employees who are privy to each cost reduction report for a
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client. In addition, Vizant requires all of its employees,
including its CEO, to sign confidentiality agreements. Finally,
the standard professional services agreement into which Vizant
enters with new clients contains a confidentiality provision.
This provision defines “Confidential Information” as
any and all information created by VIZANT
not otherwise in the public domain prior to
the execution of this Agreement, as well as
information that was derived from the public
domain but was subsequently collected into a
list or other document of any kind or has
been fashioned, manipulated, sorted,
organized, categorized, and/or filtered by
VIZANT. This shall specifically include but
not be limited to VIZANT [sic] report given
to Client.”

According to the professional services agreement, the parties
thereto must “hold all Confidential Information exchanged in
strictest confidence” and said information “shall not be used by
either party nor revealed to any third party . . . for any
purpose other than to facilitate the performance of the parties’
respective obligations under this Agreement.”
Vizant hired defendant Julie Whitchurch in August 2011
as a Business Development Manager, a sales position. Defendant
Jamie Davis, who is the sister of Whitchurch, became a Vizant
employee approximately nine months later, also in the role of
Business Development Manager. Whitchurch was promoted in July
2013 to the supervisory role of National Director of Business
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Development. Both defendants resided then, and reside now, in
Georgia.
Each defendant, upon commencing her employment with
Vizant, signed a document styled “Confidentiality,
Non-Competition and Assignment Agreement”2 (the “confidentiality
agreement”). Each of these confidentiality agreements was also
signed by Shawna Kurimura (“Kurimura”), a human resources
official at Vizant.3 The agreements contained detailed
provisions regarding the handling of material that Vizant
considered confidential, defining “Confidential Information” as
follows:
“Confidential Information” means any of the
proprietary or confidential information,
technical data, trade secrets or know-how of
the Company, in any form or format,
including but not limited to product
information; financial information; internal
procedures and operations; marketing
information and strategy; information
regarding existing and potential customers;
information on suppliers and sources with
which the Company does business, including
affiliates of suppliers and sources; the
Company’s manner of operation, strategies
and plans; software, including all source
and object code, whether completed or in
development; inventions, whether or not
patented or patentable; discoveries;

2. The record contains a document signed by Whitchurch and a
separate document signed by Davis. Aside from the dates and
signatures, the two documents appear to be identical.

3. Kurimura’s title is listed on Whitchurch’s confidentiality
agreement as “Office Manager” and on Davis’ confidentiality
agreement as “Manager, Corp Services & HR.”
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improvements; processes; and other
proprietary and commercial information.

The confidentiality agreements further provided, in
relevant part:
Employee . . . acknowledges that all
Confidential Information is required to be
maintained in confidence for the continued
success of the Company and its business.
Therefore, Employee covenants and agrees
that Employee will not disclose any
Confidential Information to anyone who is
not employed by the Company or who does not
have a reasonable need to know such
Confidential Information, either directly or
indirectly, during the Service Term, or at
any time thereafter, nor will Employee,
directly or indirectly, use or permit others
to use Confidential Information for any
purpose other than in discharging Employee’s
duties as an employee for the exclusive
benefit of the Company.

In addition, the agreements set forth an employee’s
obligations upon separation from Vizant:
At the end of the Service Term, Employee
shall deliver to the Company, and shall not
keep in his or her possession nor deliver to
anyone else, the originals or copies,
whether hard copies or electronic copies, of
any and all Confidential Information.
Employee agrees to cooperate with Company in
all procedures that Company may adopt to
assure that no Confidential Information is
retained on computers and storage media
belonging to or used by Employee.

The confidentiality agreements included a section
entitled “Non-competition and Non-solicitation.” In relevant
part, that section stated:
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2.1.1 During the period beginning on the
Effective Date and ending on the date that
is two years following the termination of
the Service Term, Employee shall not,
directly or indirectly, anywhere in the
United States or any other geographic area
in which Company markets or has marketed its
products or services during the one-year
period preceding the end of the Service
Term:

2.1.1.1 Encourage any employee to terminate
his or her employment with the Company . . .
or in any way interfere with the Company’s
relationship with its employees;

2.1.1.2 Encourage or induce any customers
or suppliers of the Company to terminate
business activities with the Company;

2.1.1.3 engage in any diversion of good-
will regarding the business as conducted by
the Company; [or]

2.1.1.4 otherwise engage in the Business or
assist any person or entity that engages in
the Business.

The term “Business” was defined as “the business of the Company
as conducted by the Company (including any business for which
the Company has devoted meaningful development activities)
during the period from the Effective Date until the end of the
Service Term.”
A section of the confidentiality agreements made clear
that they are to be “governed and construed in accordance with
the internal laws of the State of Delaware without regard to its
choice or conflicts of law provisions.”
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Both Whitchurch and Davis also signed acknowledgments
that they had received a copy of Vizant’s employee handbook.
That handbook stipulated that “[a]fter separation from
employment (voluntary or involuntary), employees are expected to
return to [Vizant] all confidential information, materials,
property and equipment in their possession.”
Upon being promoted to the position of National
Director of Business Development in July 2013, Whitchurch had
responsibility for the supervision of a team of Vizant
salespeople. She reported directly to Bizzarro, the CEO. Among
the members of her team were Davis and an individual named
Elizabeth Aeron Sharp (“Sharp”). Sharp, who now serves as
Vizant’s National Director of Business Development, recounted
that during the time she was supervised by Whitchurch, the
relationship between Whitchurch and Bizzarro was strained. In
conversations with members of her sales team, Whitchurch
referred to Bizzarro as an “asshole” and characterized him as a
difficult person with whom to work. Whitchurch also restricted
the ability of members of her team to communicate directly with
Vizant’s upper management. For example, when Sharp asked
Whitchurch to help her “move up the ladder” and to assist her in
making a connection with Bizzarro, Whitchurch declined to put
the two in contact.
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Over the course of the summer and early fall of 2013,
Vizant experienced some cash flow issues at least in part
because of nonpayment by a large client. Around this time,
Bizzarro made a sizable non-interest-bearing loan to Vizant. He
also personally guaranteed a loan at the request of a Vizant
lender. On occasion during this period, Vizant’s payroll and
some commissions of its salespeople were slightly delayed.
Whitchurch received complaints and pleas from some of her
salespeople as a result.
In summer 2013, certain payments by Vizant to its
employees’ health insurance provider were also slightly delayed.
At least some employees received a notice from the insurer
indicating that their coverage had been cancelled. One or more
employees faced temporary difficulty in obtaining coverage for
prescriptions and medical appointments. Whitchurch, upon
becoming aware of the issue, communicated the concerns of
members of her team to Bizzarro and to Vizant’s human resources
department. The evidence demonstrates that ultimately there was
no gap in any coverage, and there is nothing in the record to
show that any employee was actually forced to pay any medical
expenses due to the coverage problems.
In October 2013, Vizant’s upper management made the
decision to demote Whitchurch to Regional Sales and Business
Development Manager. Accordingly, her salary was reduced by
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