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W&O Supply, Inc. v. Pitre

United States District Court, S.D. Texas, Houston Division

April 10, 2019

W&O SUPPLY, INC., Plaintiff,
v.
BRANDON PITRE, et al, Defendants.

          MEMORANDUM AND ORDER

          KENNETH M. HOYT UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's, W & O Supply, Inc., (W&O”) renewed motion for a preliminary injunction against the defendants, Brandon Pitre, William Terry, Toby Johnson, and William Fuller (“defendants”). Also, before the Court, is the defendants' motion to dismiss. The Court convened a hearing, received testimonial and documentary evidence and directed the parties to file amended findings of fact and conclusions of law. Having received the parties' filings, the Court disposes of the issues raised hereinafter.

         I.

         To a substantial degree, the underlying facts that form the bases for W&O's suit are undisputed by the defendants. At various times prior to their resignations/terminations in October 2018, the defendants were employed by W&O in various, respective, capacities as branch manager, outside salesman, warehouse manager and inside salesman. At the commencement of their employment and/or at a time after being employed, each of the defendants executed a Non-Compete Agreement (“Agreement”) with W&O agreeing in relevant part to the following:

• Employee agrees that, during the term of this employment and in the event of termination (voluntary or involuntary) he/she will not attempt to divert any existing or possible future business of Employer, or assist in any such competition within one hundred (100) miles of any W&O Supply branch operation existing at time of termination of employment.
• Employee agrees that he/she will not at any time directly or indirectly, either during or after termination of employment, make use of or disclose to any person, group or organization, any information and/or details including, but not limited to the names or addresses of any employees or customers of Employer, the details or provisions of any written or oral contract or understanding between Employer and any materials, manuals, forms, techniques, methods, or procedures of Employer used by or made available to Employee in the course of his/her employment.
• Employee further agrees that, immediately upon termination of employment, and prior to final compensation, and/or upon request by Employer at any time, he/she will return to Employer any and all materials … belonging to or relating to the business of Employer.

         II.

         In spite of agreeing to these terms, the defendants formed a competing business shortly after they were separated from W&O. The defendants do not dispute that before they separated from W&O, they made plans to start a company and, after their departures, solicited sales from many of the customers that W&O calls its “customers”. It also appears that the defendants do not challenge the following proffers of W&O:

• “As a member of the senior management team, Pitre physically met with the W&O executive team one to two times a year for strategy and planning meetings which granted him access to company-wide plans, including original equipment manufacturer (OEM) relationships and pricing levels”;
• “Johnson managed the backend operations of W&O's Houston office, from warehousing, logistics, and distribution. She was a senior inside sales person prior to the operations role and in that role, had intimate knowledge of supplier cost information, customer pricing and contract pricing”;
• “Fuller had regular communications with W&O customers and learned and knew their needs, cost sensitivity, and purchase history”;
• “Terry also had regular communications with W&O customers and learned and knew their needs, cost sensitivity, and purchase history”, and;
• “Defendants were granted access to W&O's confidential information, such as the details or provisions of any written or oral contract or understanding between W&O and customers, and any materials, manuals, forms, techniques, methods, or procedures of W&O. Defendants also had access to W&O's Salesforce customer relationship system, which lists all of W&O's customer contacts and point person within the customer, as well as specific notes from customer visits and discussion points. Additionally, Defendants ...

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