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Merrill Corp. v. R.R. Donnelly & Sons Co.: US District Court : EMPLOYMENT - temporary restraining order regarding non-compete denied in part, granted in part

Merrill Corporation,
a Minnesota corporation; and
Merrill Communications LLC,
a Delaware limited liability company,
Plaintiffs, AND ORDER
Civil No. 08-4738 ADM/JSM
R.R. Donnelley & Sons Company,
a Delaware corporation; Peter Day;
Stephanie Madigan; and
Robert Stensby,
William Z. Pentelovitch, Esq., and Alain M. Baudry, Esq., Maslon Edelman Borman & Brand,
LLP, Minneapolis, MN, on behalf of Plaintiffs.
John G. Hutchinson, Esq., Sidley Austin LLP, New York, NY, and Thomas J. Conley, Esq.,
Leonard, Street & Deinard, Minneapolis, MN, on behalf of Defendants.
On July 25, 2008, the undersigned United States District Judge heard oral argument on
Plaintiffs Merrill Corporation and Merrill Communications LLCs (collectively Merrill)
Motion for Temporary Injunctive Relief [Docket No. 1, attach. 8, Ex. E, Docket No. 9].
Plaintiffs Motion for a temporary restraining order is granted in part and denied in part.
Magistrate Judge Janie S. Mayeron will conduct a scheduling conference to address future
discovery and further court proceedings and to create a list of clients protected by the
Noncompete Agreements.
Merrill contracts with businesses to provide outsourcing solutions for complex business
communications and to address information management needs. Verified Compl. [Docket No. 1,
attach. 1] 7. In addition to Merrill, Defendant R.R. Donnelley & Sons Company (R.R.
Donnelley) is one of two other principal competitors in the transactional communications
business in the Chicago area.
On July 18, 2008, Merrill commenced this action to temporarily restrain and enjoin
Defendants Peter Day (Day), Stephanie Madigan (Madigan), and Robert Stensby
(Stensby) (collectively the individual defendants) from violating their Noncompete and
Confidentiality Provisions (Noncompete Agreements) with Merrill. In 2000, Merrill hired
Madigan, and Stensby as sales representatives and Day as a selling sales director. Madigan Aff.
[Docket No. 15] 1; Stensby Decl. [Docket No. 17] 1; Day Aff. [Docket No. 16] 1.
Madigan, Stensby, and Day all agreed to the following provision:
You acknowledge that for one year following the termination of your
employment, Merrill is entitled to protection from the use or disclosure of the
client relationships for the benefit of a third party or for your own benefit. You
therefore agree that for one year following the termination of your employment,
you will not directly or indirectly call upon, solicit, or provide any service or
product to any existing or potential Merrill client serviced by, assigned to, or
solicited by you working alone or in conjunction with another Merrill employee.
These restrictions apply only where the client is solicited to purchase a service or
product that competes with a service or product of Merrill.
Verified Compl. [Docket No. 1, attachs. 3-4, Exs. F (Day Noncompete), G (Madigan
Noncompete), H (Stensby Noncompete)].
On May 31, 2008, Madigan, Stensby, and Day terminated their employment with Merrill
to begin working for R.R. Donnelley on June 1, 2008. Madigan Aff. 1; Stensby Decl. 1; Day
Aff. 1. Since leaving Merrill, Stensby and Day had contact with Merrill customers, which
Merrill contends was in violation of the Noncompete Agreements. While employed by Merrill,
Stensby was the primary sales representative assigned to the law firm of McDermott Will &
Emery (McDermott). Rossi Aff. [Docket No. 32] 5. Stensby had worked with McDermott
before joining Merrill. Stensby Decl. 4. Among the services Stensby provided McDermott, he
arranged an annual event for McDermotts summer associates referred to as the day at the
printer event. Rossi Aff. 6. After joining R.R. Donnelley, Stensby received a call from John
Tamasiea (Tamasiea), a partner at McDermott with whom Stensby worked to coordinate the
day at the printer event while at Merrill. Stensby Decl. 3. Tamasiea contacted Stensby to
ask if R.R. Donnelley would host the day at the printer event that year. Id. Stensby told
Tamasiea that he could not work with McDermott but that he would have someone from R.R.
Donnelley contact the McDermott coordinator for the event. Id. Mark Rossi (Rossi), who had
supervised Madigan, Stensby, and Day at Merrill, subsequently learned about Stensbys contact
with McDermott and that R.R. Donnelley would replace Merrill for the day at the printer
event. Rossi Aff. 7.
Rossi later learned that Day had also been in contact with a Merrill client after beginning
his employment with R.R. Donnelley. Id. 8. On approximately July 11, 2008, Rossi checked
Days voice mail box at Merrill, which had not yet been disconnected, and listened to a message
left by Merrill client GTCRs vice president. Id. According to Rossi, the individual who left the
message stated that he was responding to an email he received regarding a business matter. Id.
Day admits that after leaving Merrill he contacted Aaron Cohen (Cohen), who is a vice
president at GTCR, by email on July 10, 2008, to offer Cohen his personal Cubs tickets for the
game on July 11, 2008. Day Aff. 3. Day had in the past provided Cohen with Cubs tickets
paid for by Merrill. Rossi Decl. [Docket No. 21] Ex. 1 (Day expense report reflecting a 3.60
charge on May 18, 2008, for Cubs tickets for Cohen with the following stated purpose:
Continue business relationship).
Based on Stensbys contact with McDermott and Days contact with GTCR, Merrill
contends that a temporary injunction is necessary to restrain Madigan, Stensby, and Day from
violating their Noncompete Agreements. Merrill also alleges a claim of tortious intereference
with contract against R.R. Donnelley and seeks injunctive relief against the company as well.
Merrill contends that an injunction is necessary to restrain R.R. Donnelley from permitting that
Madigan, Stensby, and Day violate the Noncompete Agreements on R.R. Donnelleys behalf.
A. Interpretation of the Noncompete Agreements
The parties do not contest the existence or enforceability of the Noncompete Agreements
between Merrill and the individual defendants but dispute the scope of the Noncompete
Agreements. Accordingly, resolution of this Motion centers on interpretation of the Noncompete
Agreements. Merrill contends[n]etworking at tradeshows, conferences, and seminars, and
sending out invitations to social events or gifts are active forms of solicitation for purposes of the
Agreement, since these efforts constitute efforts to build company goodwill and customer
relationships. Pl.s Mem. in Supp. of Mot. for TRO [Docket No. 1, attach. 9] at 15. Defendants
assert that there is no support for the proposition that networking at tradeshows, conferences, and
seminars and sending invitations to events or gifts to clients constitutes solicitation. Defendants
contend that the Noncompete Agreements define solicitation more narrowly and only prohibit
solicitation to purchase a service or product that competes with one of Merrills services or
The Court interprets solicitation more narrowly than Merrill argues but more broadly
than Defendants suggest. To prohibit the individual defendants from networking at tradeshows,
conferences, and seminars is unreasonable and is not supported by the plain language of the
Noncompete Agreements. While the individual defendants are prohibited from soliciting Merrill
clients (to purchase a service or product that competes with a Merrill service or product) in any
setting, including a tradeshow or conference, to prohibit them from any networking at such
events is excessive.
However, contacting existing Merrill clients and offering to provide services typically
provided by Merrill to build and enhance client relationships does fall within the scope of the
Noncompete Agreements. Defendants rely on the following sentence in the Noncompete
Agreement to support their position that a client contact is only prohibited where it includes a
direct solicitation to purchase a product or service: These restrictions apply only where the
client is solicited to purchase a service or product that competes with a service or product of
Merrill. However, Merrills practice, which was employed by the individual defendants while
working for Merrill, was to provide clients with gifts and free services as part of ongoing efforts
to enhance client relationships and business development. See Rossi Decl. 2-4. And while
each contact likely did not include a direct and explicit solicitation to purchase a product or
service, each contact was certainly done with that objective in mind and can fairly be
characterized as part of an effort to solicit Merrill clients to purchase services or products.
Merrill also asserts that the individual defendants are prohibited from contacting Merrill
clients with whom the individual defendants worked prior to joining Merrill in 2000.
Defendants counter that clients brought by the individual defendants to Merrill are beyond the
scope of the Noncompete Agreements. The Noncompete Agreements prohibit the individual
defendants from soliciting existing or potential Merrill client[s] and make no exception for
pre-existing clients brought to Merrill by the individual defendants. Once the individual
defendants began working for Merrill and once their pre-existing clients became clients of
Merrill, those clients became existing Merrill clients and are protected by the Noncompete
Finally, Merrill contends that for the purposes of the Noncompete Agreements, the term
client includes both individual and company clients, since Merrills employees cultivate
relationships and goodwill with both the individual client contact as well as the company where
the individual is employed. Pl.s Mem. in Supp. of Mot. for TRO at 15. Defendants argue that
the term client is limited to companies and does not include the individuals who work for those
companies. A contract is ambiguous when its language is reasonably susceptible to more than
one interpretation. Ecolab, Inc. v. Gartland, 537 N.W.2d 291, 295 (Minn. Ct. App. 1995)
(citing Current Tech. Concepts v. Irie Enter., 530 N.W.2d 539, 543 (Minn. 1995)). Because both
of the definitions offered by the parties could be applied to the Noncompete Agreements, the
term client is ambiguous. [W]here a contract is open to two interpretations, the one more
favorable to the party who did not draft the instrument should be adopted in the absence of a
clear showing that a contrary meaning was intended by the parties at the time of its execution.
Wick v. Murphy, 54 N.W.2d 805, 809 (Minn. 1952). Merrill has failed to offer any evidence of
its or the Defendants intentions. Accordingly, the Court interprets the term client according
to the Defendants interpretationthat is, as being limited to the actual company client and not
the individuals who work for the company. As such, individuals who worked for a Merrill
company client are not protected by the Noncompete Agreements once they terminate their
employment with that client.
B. Temporary Injunctive Relief
The procedures for seeking injunctive relief are set forth in Rule 65 of the Federal Rules
of Civil Procedure. The Eighth Circuit in Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d
109, 113-14 (8th Cir. 1981) set forth four factors that should be considered in determining
whether to grant injunctive relief: (1) the threat of irreparable harm to the moving party if an
injunction is not granted; (2) the harm suffered by the moving party if injunctive relief is denied
as compared to the effect on the non-moving party if the relief is granted; (3) the probability that
the moving party will succeed on the merits; and (4) the public interest. The record establishes
that Merrill has satisfied all of the Dataphase elements with regard to Stensby and Day, but not
with regard to Madigan and R.R. Donnelley.
First, as to Madigan, there is no evidence that Madigan breached the Noncompete
Agreement or engaged in any conduct that demonstrates a threat of irreparable harm to Merrill.
Nor is there any evidence indicating that Merrill is likely to succeed in a breach of contract claim
against Madigan. Accordingly, Merrills Motion for Temporary Injunctive Relief to restrain
Madigan is denied. With regard to Merrills claim that R.R. Donnelley tortiously interfered with
its contracts with the individual defendants and its motion for temporary injunctive relief to
restrain R.R. Donnelley, Merrill has similarly failed to set forth evidence demonstrating the
threat of irreparable harm or a likelihood of success on the merits. A tortious interference with
contractual relationship claim requires proof of: (1) the existence of a contract; (2) the alleged
wrongdoers knowledge of the contract; (3) intentional procurement of its breach; (4) without
justification; and (5) damages. Furley Sales & Assocs., Inc. v. N. Am. Auto. Warehouse, Inc.,
325 N.W.2d 20, 25 (Minn. 1982). No evidence has been proffered that R.R. Donnelley
intentionally procured the breach of the Noncompete Agreements. To the contrary, R.R.
Donnelley made clear to the individual defendants that it would not permit them to violate their
contractual duties to Merrill. Conley Aff. [Docket No. 14] Ex. 7. Accordingly, Merrills Motion
for Temporary Injunctive Relief to restrain R.R. Donnelley is denied.
There is evidence that Stensby and Day, however, breached their Noncompete
Agreements with Merrill in their contacts with McDermott and GTCR. Stensbys contact,
although initiated by McDermott, breached the Noncompete Agreement because he directed
someone at R.R. Donnelley to contact McDermott to provide McDermott with a service
previously provided by Merrill. Accordingly, Stensbys conduct constituted an indirect
solicitation of an existing Merrill client. Day directly solicited GTCR when he contacted Cohen
and offered to provide him with Cubs tickets as he had previously done while working for
Merrill. The evidence of Stensby and Days breach causes the first Dataphase factor to weigh in
favor of Merrill. Irreparable harm is inferred from the breach of a valid and enforceable
restrictive covenant. See Alside, Inc. v. Larson, 220 N.W.3d 274, 278 (Minn. 1974) (affirming
the trial courts ruling that because defendants breached the restrictive covenant, they must be
restrained in order to avoid irreparable harm). The second Dataphase factor, the balancing of the
harms, also weighs in favor of granting Merrills Motion because while granting Merrill
injunctive relief causes slight harm to Stensby and Day, denying injunctive relief to Merrill
could expose it to further breach of the covenants Stensby and Day accepted. Merrill has also
demonstrated a likelihood of success on the merits and thus the third factor weighs in its favor.
Because the Noncompete Agreements are enforceable (the restrictions are reasonable and the
parties do not dispute that they were supported by consideration nor that Merrill has a legitimate
interest in restraining competition by the individual defendants), and because Merrill has strong
evidence that Stensby and Day have violated their Noncompete Agreements, Merrill is likely to
succeed in a breach of contract claim against Stensby and Day. Finally, the fourth factor weighs
in Merrills favor because public policy favors enforcing valid noncompete agreements. N.I.S.
Corp. v. Swindle, 724 F.2d 707, 710 (8th Cir. 1984) (stating we find no merit in defendants
argument that the public interest weighs in their favor. To the contrary, if these noncompete
agreements are valid, the public interest calls for their enforcement.).
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
1. Plaintiffs Merrill Corporation and Merrill Communications LLCs Motion for
Temporary Injunctive Relief [Docket No. 1, attach. 8, Ex. E, Docket No. 9] is
GRANTED to restrain Defendants Robert Stensby and Peter Day;
2. Plaintiffs Motion to restrain Defendants R.R. Donnelley & Sons Company and
Stephanie Madigan is DENIED; and
3. The parties are ordered to meet with Magistrate Judge Janie S. Mayeron for a
scheduling conference on Thursday, August 7, 2008, at 1:30 pm in courtroom
four of the St. Paul Courthouse, to address future discovery and further court
proceedings and to create a list of clients protected by the Noncompete
s/Ann D. Montgomery
Dated: August 1, 2008.


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