docwe represent Avicom Marketing communications (the ,`company
download 
Report Transcription
we represent Avicom Marketing communications (the ,`company
Rodney W. Carter
(262) 860-0860
rcarter@sbe-law.com
October 24,2008
CPRTIFIED MAIL _
RPTURN RECEIPT REOUESTED
Mr. Karl James Robe
S88 W32500 Prairie Lane
Mukwonago, WI 53149
Re:
Confi dentiality A$eement, Non-Compete Agreement and
Misrepresentation/Avicom Marketing Communic ations
Dear Mr, Robe:
represent Avicom Marketing communications (the ,'company"). As you
know, you executed a Confidentiality Agreement and a Non-Compete Agreement with
the Company, both of which were dated October 1.7 ,2007 (the "Agieemenis"). Pursuant
to the Agreements, you agreed not to compete with the business of the Company by
providing advertising or marketing services with any person or entity who was a client of
the Company during the last year of your employment with the Company. ln addition,
the Agreements prohibit you from providing advertising or marketing services to any
prospect of the Company which, within 6 months of your departure from the Company,
was given a presentation by you or requested information from you conceming the
Company.
we
In addition to your non-solicitation obligations, you also ageed that you would
not disclose any confidential information of the Company to any individual. iou further
agreed that you would not utilize any confidential information for any non-Company
purpose. You also agreed that upon termination of your employment with the Company,
you would deliver to the Company all documents, records, files, computer information or
other information, in any form, that constitutes or is related to confidential information.
The Company has learned that you have contacted severai actual and prospective
customers of the Company to solicit business that is competitive to the Company's
business since your employment with the Company was terminated. These are
customers, or prospective customers, with whom you have had contact since the October
17, 2007 date of the Agreement. The customers and prospective customers are listed
below:
16655WBluernoundRd.. Suite270. Brookfield,V/I 53005. Phone (262)SZ7-1700.
A Wisconsin Sertice Corporation
Fa
Mr. Karl James Robe
October 24,2008
Page2
Waste Management RecYcle America
Jeffrey Frielkow
Cooper Power Systems
Steve Weinstein
Evans Transportation Services
Donald R. Cox
Thomas Hofbauer McCoy & Hofbauer, s.c.
Leonard Lamberg Dedicated Computing
Ravmond James Financial
Kenneth Wolfe
Your contact with these actual and prospective customers is a violation of your
confidentiality and non-solicitation obligations under the Agreement. If we are incorrect
regarding your activities, or if you are prepared to cease contact with all Company
customers or prospective customers, please contact the undersigned immediately. If we
do not hear from you, we will assume that you intend to continue to violate your
obligations under the Agreements.
The Company is also concerned that you have retained records, documents and
other materials that contain confidential and proprietary information of the Company,
including customer and prospect lists. We know, for example, that you were provided
new business research on lighting companies and Wisconsin construction unions. In
addition, we are aware that you retained ciient prospect files, as well as Outlook
information in the form of a Company calendar and e-mail communications. Your
Company office was left completely empty, with all the computer records and Outlook
entries which you maintained both deleted and comrpted within the Company's computer
system. A11 of these documents are property of the Company, and you are obligated to
retum them (and not to have destroyed them), as well as forebear from using them for
your personal purposes. Retention of such documents and information is in violation of
the Agreements. We, therefore, request that you either return such items or immediately
contact the undersigned to confirm that you have returned all of the Company's
confi dential information and documents,
The Company is further aware of certain misrepresentations which you have
rnade and posted on the intemet. Based upon these very public misrepresentations, we
can only assume that you have made other less public misrepresentations concerning your
role with the Company. Specifically, the Company has reviewed your listing on
Linkedin.com. Your Linkedin.com biography is revealing in that the Company
terminated you due to a failure to produce clients in your 11 months of employment with
the Company; however, your biography on Linkedin.com indicates that you had been
running your own business, Karl James & Company LLC, since 1999 (despite
Linkedin,com indicating it has been operating since 2002). Accordingly, the Company
can make no other conclusion than that you were running a competing business with the
Mr. Karl James Robe
October 24,2008
Page 3
Company simultaneous to your employment with the Company' The .Company's
positiol in this regard is only strengthened by virtue of the fact that you failed to produce
and
uny ,n.ur*able 6usiness for the Company, Uut have now posted multiple client
,u.rrgs stories at Karl James & Co. tiC wittrin a month of your termination from the
Company, The Company is aware, and finds it suspicious, that all of your new business
prospect'meetings foi ttte Company were conducted outside of the Company's office and
either at a Starbucks or any numbei of local restaurants. Such business prospect meetings
is
were not even conducted at the offices of client prospects. Further, the Company
Company,
aware that you engaged in a pattern of overbidding projects for clients of the
which now appear to be clients of Karl James & Co. LLC.
Further examples of misrepresentation contained in your Linkedin'com biography
F: Dohman to Company
include the representation that you procured DDN, AirStrip
these new business
initiating
for
as clients. As you are aware, you were not responsible
you
opportunities with the Company. Your Linkedin.com biography indicrltes that
dlveloped Wispundits.com. As you are well aware, you did not develop
on Linkedin'com and cease
Wispundits."o*. Please immediately revise your biography
i'srrrc"tses" which you maintain
and desist from any further misrepresentationof allegid
that
occurred during thi course of your employment with the Company' W9 allo demand
from
you delete any recortmendations for actual or potential customers of the Company
your Linkedin biography and abide by the terms of the Agreements.
*{
The Company continues to investigate this matter and evaluate enforcement
you under
options necessary to obtain our compli*.. *ith the obligations imposed on
concerning
made
the Agreements and address the misrepresentations which you have
your employment with the Company. This investigation will include the Company
and
Lontacting iis selected clients and client prospects to verify your levels of service
-o*patty.
this
of
Obviously, the results
invoicinipractices while employed by the
investig;tion could lead to ttti Co*pany maintaining claims against you for conversion
and other monetarY damages,
Finally, it has come to the Company's attention that you are initiating contact with
the Company;s employees during regular business hours. Given nature of those contacts,
the circumstances'surrounding yorri termination from the Company, and the facts set
forth in this letter, the Compiny is directing you to refrain from contacting any-of its
job-duties for the
employees during the hours ln which they aie engaged in performing
Company, StroUA it be necessary for you to iontact the Company during normal
business hours, you should direct such contact to Shelley Panos at either (262) 547-8000
or shelley.panos@avicomdirect. com.
Mr. Karl James Robe
October 24,7A08
Page 4
at 262-860-0860 upon receipt of this letter to: (1)
return all Company information *d materials, (2) affirm you will take no fuither action
to breach your obligations under the agreement, and (3) provide the necessary assurance
that you will cease and desist making any misrepresentations concerning Company,
including a revision of your Linkedin.com biography.
Please contact the undersigned
Very truly yours,
scHoltT, BUB
RWCA1(r
cc: Mr. Timothy Kubina
& ENGEL,
s.c.
STATE OF WISCONSIN
WAUKESHA COUNTY
CIRCUIT COURT
FiLED
IN CIRCUTT
AVICOM, INC.
2120 Pewaukee Road, Suite 200
Waukesha, Wisconsin 531 88,
I 2 2008
DEC
WAUKESHA CO. WI
CIViL DIVISION
Plaintiff,
.VS.-
Case No:
KARL JAMES ROBE
SBB W32500 Prairie Lane
Mukwonago, Wisconsin 531 49
0t cvt{ab?
Case Classification: MONEY JUDGMENT
I
-and-
I
Case eorle:
3030r"" . ''- .-
CLERK ()F CDuilTS
i
ji' Nov262009
KARL JAMES & COMPANY, LLC
1233 Wegner Drive
Mukwonago, Wisconsin 53149,
Defendants.
COURT
l - -.r _,__..
_
riis i5 AN AUTTEIITCA:trr)
,.
-': {-11)v,.-.ut)r-Y ul-'A\
^,
ORTGTNA,L
focu,.,g^,f -' '
rtEcLrF{
or co.inis
;;F,;=',;'-::^i,
,'
I
1
COMPLAINT
Plaintiff, Avicom, lnc. ("Avicom"), by its attorneys, Schott, Bublitz & Engel,
s,c., as and for its Complaint against defendants Karl James Robe ("Robe") and
Karl James & Company, LLC ("Karl James Company") alleges as follows:
Article
1.
l.
PARTIES
Avicom is a Wisconsin corporation that conducts business at
212A Pewaukee Road, Suite 200, Waukesha, Wisconsin 53188,
2.
Upon information and belief, Robe is an adult resident of the State
of Wisconsin, residing at SBB W32500 Prairie Lane, Mukwonago, Wisconsin
53149.
3.
Upon information and belief, Karl James Company is a Wisconsin
corporation with its registered agent office and principal office located at 1233
Wegner Drive Mukwonago, Wisconsin 53149. Karl James Company is a direct
competitor of Avicom.
JURISDICTION AND VENUE
4.
Jurisdiction over Robe
is
proper according
to Wis' Stat' SS
801 ,05(1)(a), 801 .05(1 Xb) and/or 801 .05(1 Xd).
5.
Jurisdiction over Karl James Company is proper pursuant to Wis.
Stat. S BO1.O5(1Xd) because it is engaged in substantial and not isolated
activities
within this State.
6.
SS 801
Venue is proper in waukesha county according to wis. stat'
.s0(2Xc) and/or 801 .50(2Xd).
Article ll.
BACKGROUND FACTS
r.
7.
AVlcoM
Avicom is in the business of, among other things, providing
marketing and public relations services, including but not limited to: media
relations and coaching, pubtic relations strategy, issues management, creative
development, editorial writing, and related professional services.
B.
Since at least the year 2001, Avicom has devoted significant effort
and resources to building and retaining its customer base'
9.
Since at least the year 2001, Avicom's directors have been charged
with the duty of developing and maintaining customer relationships during their
employment with Avicom,
10.
Since at least the year 2001, Avicom has depended on the efforts
and loyalty of its employees and directors to market and sell its products on
a
continuing basis to its new and existing customers.
11.
Avicom devoted and expended substantial funds and resources
to develop successful and profitable business relationships with its customers
and maintain the confidentiality of its confidential business information.
II.
12.
ROBE
On or around October 15,2007, Robe began employment with
Avicom as its Public Relations Director.
13,
ln conjunction with the commencement of his employment with
Avicom, and as a condition of his Avicom employment, Robe executed an
"Avicom Marketing Communications Non-Compete Agreement (the "NonCompete Agreement") and "Avicom Marketing Communications Employee
Confidentiality Agreement" (the "Confidentiality Agreement"). Avicom provided
Robe with copies of the Agreements for his signature.
14.
On Octobet 17,2007 Robe executed the Non-Compete Agreement
and Confidentiality Agreement.
15.
The Non-Compete Agreement contains non-solicitation and non-
solicitation clauses, which read:
1.
For a period of twelve (12) months following
[Robe's] departure from [Avicom], whether [Robe's]
leaving is voluntary or involuntary, [Robe] will not offer
or provide advertising or marketing services to any
person or entity who was a client of [Avicom] at any
time during the last year of my employment; nor will
lRobe] own, participate in or be employed by an
advertising or marketing firm or its affiliate which
provides such services to an existing Avicom client'
2.
For
a
period
of six (6) months following
[Robe's] Ieaving [Avicom], whether [Robe's] leaving is
voluntary or involuntary, [Robe] will not offer or
provide advertising or marketing services to any
prospect of [Avicom], such prospect being defined as
an entity which, within six (6) months of [Robe's]
departure from [Avicom], requested information or
was given a presentation by [Avicom]' For that same
period, [Robe] will also not own, participate in or be
emptoyed by, any advertising or marketing firm or its
affiliate which provides such services to any prospect
of [Avicom].
The Non-Disclosure Agreement contains a non-disclosure clause,
to.
which reads:
/6
[Robe] shall not, during the term of [his] employment
and for a period of two (2) years after the termination
[his] employment, disclose any secrets or
confidential technology, proprietary information,
customer lists, marketing plans or trade secrets of
[Avicom] or [Avicom] clients, or any matter or thing
ascertained by [Robe] through [Robe's] association
with [Avicom], the use or disclosure of which might
reasonably be construed to be contrary to the best
interest of [Avicom]. [Robe] further agree[s] that
should [his] employment terminate [he] will neither
take nor retain any papers, customer lists, records,
files, computer programs and software, other
documents or copies thereof, or other confidential
information of any kind belonging
[Avicom]'
possible
to
remedies
other
Without limiting
[Avicom]
for breach of this covenant, [Robe] agree[s] that
injunctive or other equitable relief shall be available to
enforce this covenant, such relief to be without the
necessity of [Avicom] posting a bond,
of
to
17.
Throughout his employment, Robe worked closely with many
to:Waste
Avicom customers and prospective customers, including but not limited
Management Recycle America, Cooper Power Systems, Evans Transportation
Services, McCoy & Hofbauer, S.C., Dedicated Computing, Raymond James
Financial, Wisconsin WaterAssociation, Wisconsin Ground WaterAssociation,
and hundreds more, and was in many cases a primary and/or sole contact
between Avicom and its customers and customer prospects.
,18, Throughout his employment, Robe had access to confidential
information of Avicom, including but not limited to: pricing strategies, profit data,
business operations data, customer lists, and customer requirements'
1g.
ln or around September of 2008, relations between Avicom and
Robe began to sour. At that time, Robe had failed to produce any measurable
business for Avicom, despite his job title of Public Relations Director and his
primary job duty being new business development for Avicom. Despite office
accommodations at Avicom for meeting with new and prospective clients, Robe
met with clients at offsite locations, including frequent meetings at Starbucks
coffee shops. He was evasive with his schedule and client meetings to other
Avicom employees, and he was unable to provide business quotes which were
competitive and could generate business, despite Avicom's success in attracting
new clients and secure existing client proposals through other Avicom employees
whose job duties were not focused upon new business development'
20.
employment.
On September August 29, 2008 Avicom terminated Robe's
21.
Robe's termination from employment by Avicom was justified
and based, in large part, upon his failure to generate business for Avicom'
22.
After terminating his employment, Avicom allowed Robe the
opportunity to clean out his office at Avicom, Robe left his Avicom office
completely void of Avicom property, other than furniture, and Robe deteted all
Outlook calendaring and e-mait communications, as well as other stored
computer data, from Avicom's computer system. Robe also removed numerous
Avicom paper files and other material from his office at Avicom.
23.
After his termination from Avicom, it came to Avicom's attention that
Robe has been engaged with Karl James Company since before he became
employed at Avicom. Upon information and belief, the nature of Robe's
employment with Karl James Company is in the area of public relations, Avicom
was not aware that Robe was an owner of and/or employed by Karl James while
employed by Avicom, and Avicom would not have hired Robe had it known he
held simultaneous employment positions in the area of public relations,
24.
After his termination from Avicom, it came to Avicom's attention that
Robe had ongoing business contacts with several of Avicom's customers and
potential customers with whom Robe has had contact during his employment
with Avicom, to solicit and perform business that is competitive to Avicom's
business. Upon information and belief, Robe was soliciting and performing
business for Avicom's customers and prospective customers both during and
after his emploYment at Avicom.
25.
Upon information and belief, Robe has retained valuable records,
documents and/or other materials that contain Avicom's confidential information,
including customer lists and potential customer lists. Robe has refused to return
this information.
26.
Upon information and belief, Robe is Public Relations Counsel with
Karl James Company, a business that directly competes with Avicom.
27.
Upon information and belief, Robe has made certain
misrepresentations concerning his professional credentials, as well has his
professional accomplish ments at Avicom.
28.
ln a letter dated October 24,2A08, Avicom reminded Robe of the
terms of the Non-Compete Agreement and Confidentiality Agreement, as well as
its concerns over Robe's conduct with respect to his departure from Avicom and
in regard to his employment with Karl James Company. Robe never addressed
the issues contained in Avicom's letter of October 24,2008.
III.
29.
KARL JAMES & COMPANY, LLC
Upon information and belief, Karl James Company is Robe's
current employer, and operates in direct competition with Avicom, providing
public relations services to the same and/or similar clients as Avicom.
30,
Upon information and belief, Karl James Company is aware that
Robe was engaged with Karl James Company at the same time in which Robe
was employed by Avicom. ln addition to knowing Robe was formerly employed
by Avicom, Karl James Company is aware, on information and belief, that Robe
has signed the Non-Compete Agreement and Confidentiality Agreement with
Avicom.
31,
Upon information and belief, Karl James Company has induced
Robe to reveal Avicom's confidential information to be used for the benefit of Karl
James Company,
32. Upon information and belief, Karl James Company has induced Robe
to contact Avicom's current and potential customers in an attempt to win their
business, and to othenvise compete with Avicom.
G,AUSES oF ACTT9N AGATNST ROBE:
COUNT I
BREACH OF CONTRACT
33.
Avicom realleges and incorporates paragraphs 1 through
31
above as if set forth fully herein.
34,
Under the Non-Compete Agreement, Robe agreed, among other
things, that for a period of one year from his termination, he would not in any
manner engage in any activity and/or business that is competitive, directly or
indirectly, with Avicom, nor would he soticit any of Avicom's customers, nor would
he own pafiicipate in or be employed by any marketing firm which provides
services for an existing Avicom client.
35.
Under the Non-Compete Agreement, Robe agreed, among other
things, that for a period of six months from his termination, he would not own,
participate in or be employed by any advertising or marketing firm that provided
services to any Avicom prospective customer.
36,
Under the Confidentiality Agreement, Robe agreed, among other
things, that for a period of two years after the termination of his employment, he
would not disclose any secrets or confidential information, including proprietary
information, customer lists, marketing plans, or trade secrets of Avicom.
37.
The Non-Compete Agreement and Confidentiality Agreement both
provided consideration to Robe in the form of his employment with Avicom, and
the Non-Compete Agreement and Confidentiality Agreement are reasonable as
to time, scope, clientele, and other restrictions.
38.
Robe's conduct has violated the Non-Compete Agreement and
Confidentiality Agreement, and his breach has caused substantial injury to
Avicom.
GOUNT II
BREACH OF DUTY OF LOYALTY
39.
Avicom realleges and incorporates paragraphs
'1
through 37
above as if set forth fully herein.
40.
As an employee of Avicom, Robe owed Avicom a duty of loyalty to
be honest in his dealings with Avicom, not to be concurrently employed by or
own a business competing with Avicom while employed by Avicom, not to divulge
Avicom's confidential and proprietary information, not to compete with Avicom
while under contract with Avicom, not to solicit the business of Avicom's current
or prospective customers, and not to otherwise breach his duty of loyalty to
Avicom.
41.
Robe breached his duty of loyalty to Avicom by engaging in the
actions set forth above, including but not limited to: owning and/or working for a
business in direct competition with Avicom while being employed by Avicom,
diverting business from Avicom while continuing to being employed by Avicom,
soliciting Avicom's current and potential customers that Robe had contact with
while employed at Avicom; disclosing confidential and highly sensitive
information to Karl James Company and to several customers; and engaging in
prohibited behavior, in direct competition with Avicom.
42.
Robe's conduct has breached the duty of loyalty owed to Avicom,
and Robe's breach of the duty of loyalty has caused substantial injury to Avicom,
COUNT III
MISAPPROPRIATION OF TRADE SECRETS PURSUANT TO WIS.
STAT. S 134.90
43.
Avicom realleges and incorporates paragraphs I through 41
above as if set forth fully herein.
44.
During Robe's employment with Avicom, Avicom maintained certain
trade secret information, including but not limited to: pricing strategies, profit
data, business operations data, customer lists, and custorner requirements.
45.
Avicom's trade secret information is valuable to Avicom and to
potential competitors, and Avicom took reasonable steps to protect its trade
secrets by restricting access to such information to certain employees.
46.
Throughout his employment in the capacity as a Director with
Avicom, Robe had access to Avicom's trade secrets by virtue of his employment.
t0
47.
Upon information and belief, while employed by Avicom but prior to
the termination of his employment with Avicom, Robe diverted Avicom's trade
secret information to Karl James Company without authorization from Avicom.
48.
Upon information and belief, following his September August 29,
2008 termination of employment with Avicom, Robe retained Avicom's trade
secret information without authorization from Avicom.
49.
Upon information and belief, following the termination of his
employment with Avicom, Robe disclosed certain trade secret information to
Karl James Company, without authorization from Avicom. Because of the highly
sensitive nature of this information, Karl James Company would not have
othenvise had access to it.
50.
Upon information and belief, Robe is engaged in rendering services
in a substantially similar capacity to his former position with Avicom. lt is
inevitable that Robe will rely on and disclose Avicom's trade secrets in his
capacity with Karl James.
51,
Upon information and belief, Robe has used and continues to use
Avicom's trade secret information to unfairly compete with Avicom.
52.
Robe's conduct constitutes a misappropriation of Avicom's trade
secrets, and has caused substantial injury to Avicom.
GOUNT IV
DAMAGE TO PROPERTY, THEFT OF GORPORATE PROPERTY AND
CORPORATE TIME PURSUANT TO WIS. STAT. SS 943.01 ,943.2A,943.205
and 895.446
53.
Avicom realleges and incorporates paragraphs 1 through 50
above as if set forth fully herein.
11
54.
After he was terminated from Avicom, Robe deleted Outlook
calendaring and e-mails communications, as well as other stored computer data,
from Avicom's computer.
55.
Robe's actions in deleting the computer programs and files caused
damage to Avlcom, in that said computer programs could not be recovered.
56,
Upon information and belief, Robe's conduct in deleting the
computer programs and files was intentional, in violation of Wis. Stat. $ 943,01.
57.
Upon information and belief, Robe was engaged with Karl James
Company, an entity in direct competition with Avicom, during the course of his
employment at Avicom.
58.
Upon information and belief, during the course of Robe's
employment with Avicom, Robe was paid by Avicom while diverting effort, trade
secrets, and clients from Avicom to Karl James Company. Such action
constituted theft, for which Avicom has been damaged. Such action also violates
Wis, Stat. SS 943.20 and 943.205, which entitles Avicom to treble damages and
attorney fees, pursuant to Wis, Stat. S 895,446.
CAUSES OF ACTTON A9ATNST ROBE ANp KARL JAME$_ COMPANY:
crvlL
59.
COUNT V
coNsPtRAcY PURSUANT TO WIS. STAT. S 134.01
Avicom realleges and incorporates paragraphs 1 through 56
above as if set forth fully herein.
60.
Upon information and belief, Robe and Karl James Company
formed a civil conspiracy. This act is defined as: "any two or more persons who
shall combine, associate, agree, mutually undertake or concert together for the
T2
purpose of willfully or maliciously injuring another in his or her reputation, trade,
business or profession by any means whatever or for the purpose of maliciously
compelling another to do or perform any act against his or her will, or preventing
or hindering another from doing or performing any lawful act . . . shall be
punished " . .. " Wis. Stat. S 134.01.
61.
Robe's and Karl Robe Company's conduct constitutes a civil
conspiracy, and has caused substantial injury to Avicom.
GOUNT VI
COMMON LAW CONSPIRACY TO MISAPPROPRIATE TRADE
SECRETS, TO COMMIT BREAGH OF DUTY OF LOYALTY, AND TO
BREACH THE NON-COMPETE AGREEMENT AND CONFIDENTIALITY
AGREEMENT
62.
Avicom realleges and incorporates paragraphs 1 through 59
above as if set forth fully herein.
63.
Defendants Robe and Karl James Company conspired to commit
the acts alleged in Count l, 111132-37, above.
64.
Defendants Robe and Karl James Company conspired to commit
the acts alleged in Count ll, 1JIi 3B-41, above.
65.
Defendants Robe and Karl James Company conspired to commit
the acts alleged in Count lll, {1[ 42-50, above.
66.
Defendants Robe and Karl James Company conspired to commit
the acts alleged in Count lV, fl
