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Veramark Techs. Inc. v. Bouk

United States District Court for the Western District of New York

April 2, 2014, Decided; April 2, 2014, Filed

14-cv-6094 EAW

Opinion

 [*397]  DECISION AND ORDER

INTRODUCTION

Plaintiffs Veramark Technologies, Inc. ("Veramark") and Calero Software, LLC ("Calero") have sued a former employee, defendant Joshua Bouk, and his new employer, defendant Cass Information Systems, Inc. ("Cass"), alleging breach of an employment agreement signed by Mr. Bouk and tortious interference with that agreement by Cass. (Dkt. 1-1). Plaintiffs seek a preliminary injunction to prevent Mr. Bouk from "accepting or commencing employment with, or otherwise providing services to, Cass" and they similarly seek to preliminarily enjoin Cass  [**2] from employing Mr. Bouk. (Dkt. 4 at 1). Because Plaintiffs have not met the standard for granting a preliminary injunction, the Court denies the requested relief.

 [*398]  FACTUAL BACKGROUND

Mr. Bouk began his employment with Veramark on March 3, 2008, as Vice President of Customer Services. (Dkt. 13-1 at ¶ 3). Veramark is a provider of Telecom Expense Management software and services, which means that it "helps businesses manage the lifecycle of communications expenses across diverse business units, geographies, etc." (Dkt. 4-2 at ¶ 2). Veramark subsequently became a wholly owned subsidiary of plaintiff Calero, which was formed in 2013. (Dkt. 1-1 at ¶ 2; Dkt. 4-2 at ¶ 1).

Mr. Bouk ultimately held the position of Veramark's Vice President of Sales. (Dkt. 4-2 at ¶ 5).1 According to Plaintiffs, Mr. Bouk was Veramark's highest ranking sales executive, serving as Veramark's "senior-most executive point of contact with key customers and channel partners. . . ." (Id. at ¶ 5). Mr. Bouk's base salary exceeded $157,000 and he also received "substantial commission and bonus compensation, Restricted Stock Awards, stock options and other employee benefits." (Id. at ¶ 8).

Shortly before commencing his employment, Mr. Bouk entered into an Employment Agreement with Veramark dated January 25, 2008 ("the Agreement"). (Id. at ¶ 3; Dkt. 4-3 at 6-15). The Agreement, which is governed by New York law (id. at ¶ 6(c)), contains various provisions with respect to post-employment conduct by Mr. Bouk. Specifically, Mr. Bouk agreed not to use or disclose information defined as "Confidential" under the terms of the Agreement, and to return all such information upon termination of his employment. (Dkt. 4-3 at ¶¶ 7(a) & (b)). Mr. Bouk also agreed that for 12 months following the termination of his employment, he would not compete with Veramark (id. at ¶ 7(c)), he would not solicit Veramark employees (id. at ¶ 7(d)), and he would not solicit Veramark customers.  [**4] (Id. at ¶ 7(e)). Specifically, the Agreement has the following restrictive covenants:2

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10 F. Supp. 3d 395 *; 2014 U.S. Dist. LEXIS 46198 **; 2014 WL 1364930

VERAMARK TECHNOLOGIES, INC., CALERO SOFTWARE, LLC, Plaintiffs, v. JOSHUA B. BOUK, CASS INFORMATION SYSTEMS, INC., Defendants.

CORE TERMS

customer, non-compete, injunction, irreparable, covenant, non-solicitation, solicit, goodwill, partial, affiliates, Notice, confidential, indirectly

Civil Procedure, Injunctions, Grounds for Injunctions, Balance of Hardships, Irreparable Harm, Likelihood of Success, Public Interest, Remedies, Preliminary & Temporary Injunctions, Labor & Employment Law, Conditions & Terms, Trade Secrets & Unfair Competition, Noncompetition & Nondisclosure Agreements, Judgments, Summary Judgment, Evidentiary Considerations, Evidence, Rule Application & Interpretation, Customers of Former Employer, Trade Secrets