Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wells Fargo Insurance Services USA, Inc. v. Link

Supreme Court of North Carolina

May 10, 2019

WELLS FARGO INSURANCE SERVICES USA, INC.
v.
KEVIN LINK, NELSON RAYNOR, ELIZABETH PACK, and BB&T INSURANCE SERVICES, INC.

          Heard in the Supreme Court on 10 April 2019.

          Appeal pursuant to N.C. G.S. § 7A-27(a)(2) from an order and opinion on defendants' motion to dismiss entered on 8 May 2018 by Judge Gregory P. McGuire, Special Superior Court Judge for Complex Business Cases, in Superior Court, Wake County, after the case was designated a mandatory complex business case by the Chief Justice under N.C. G.S. § 7A-45.4(a).

          Fisher & Phillips LLP, by J. Michael Honeycutt, Meredith W. Norvell, and Holly N. Mancl, for plaintiff-appellant.

          Parry Tyndall White, by K. Alan Parry, Michelle M. Walker, and Megan E.A. Bishop, for defendant-appellees.

          PER CURIAM.

         AFFIRMED.

         SUPERIOR COURT OF NORTH CAROLINA, WAKE

         NO. 17 CVS 12848

         Date 08/05/2019

         THIS MATTER comes before the Court on Defendants Kevin Link, Nelson Raynor, Elizabeth Pack, and BB&T Insurance Services, Inc.'s Partial Motion to Dismiss Pursuant to Rule 12(b)(6). ("Motion to Dismiss", ECF No. 7.) Defendants seek to dismiss Counts One-Five, Seven, and Eight in the Complaint, but do not seek dismissal of Count Six.

         THE COURT, having considered the Motion to Dismiss, the briefs filed in support of and in opposition to the Motion to Dismiss, the arguments of counsel at the hearing, and other appropriate matters of record, CONCLUDES, in its discretion, that the Motion to Dismiss should be GRANTED, in part, and DENIED, in part, for the reasons set forth below.

          Fisher & Phillips, by J. Michael Honeycutt and Meredith W. Norvell, for Plaintiff Wells Fargo Insurance Services USA, Inc.

          Parry Tyndall White, by K. Alan Parry and Michelle M. Walker, for Defendants Kevin Link, Nelson Raynor, Elizabeth Pack, and BB&T Insurance Services, Inc.

         ORDER AND OPINION ON DEFENDANTS' MOTION TO DISMISS

          McGUIRE, JUDGE.

         I. FACTS AND PROCEDURAL BACKGROUND

         1. The Court does not make findings of fact on motions to dismiss under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (hereinafter, "Rule(s)"), but only recites those facts included in the complaint that are relevant to the Court's determination of the Motion. See, e.g., Concrete Serv. Corp. v. Inv'rs Grp., Inc., 79 N.C.App. 678, 681, 340 S.E.2d 755, 758 (1986).

         A. The parties

         2. Plaintiff Wells Fargo Insurance Services USA, Inc. ("Plaintiff" or "Wells Fargo") is a North Carolina-licensed insurance broker that sells insurance products and services to its customers. (Compl., ECF No. 3, at ¶ 9.) Wells Fargo alleges that it provides "insurance products and services that are unique to the particular needs of its customers." (Id. at ¶ 16.)

         3. Defendant BB&T Insurance Services, Inc. ("BB&T") is also an insurance broker providing insurance products and services to its customers in the same segment of the insurance market. (Id. at ¶ 10.)

         4. Wells Fargo employed Defendant Kevin Link ("Link") as a Senior Sales Executive. Link was responsible for "soliciting insurance customers and providing risk management services." (Id. at ¶ 11.) Link resigned from Wells Fargo effective October 31, 2016, and began working for BB&T. (Id.)

         5. Wells Fargo employed Defendant Nelson Raynor ("Raynor") as a Commercial Insurance Producer. Raynor was responsible for "procuring insurance customers and providing risk management services." (Id. at ¶ 12.) On April 12, 2017, Raynor resigned from Wells Fargo and began working for BB&T. (Id.)

         6. Wells Fargo employed Elizabeth Pack ("Pack") as a Marketing Placement Specialist. Pack was responsible for marketing to Wells Fargo's insurance customers. (Id. at ¶ 13.) On April 3, 2017, Pack resigned from Wells Fargo and began working for BB&T. (Id. at ¶ 13.) (Collectively, Link, Raynor, and Pack are referred to as the "Individual Defendants.")

         7. While employed with Wells Fargo, the Individual Defendants "brokered and serviced the insurance needs of Wells Fargo customers assigned to them" and had knowledge about the insurance needs and policies of their customers. (Id. at ¶ 14.)

         8. Wells Fargo has developed and maintains certain "confidential and trade secret information" concerning its customers. (Id. at ¶¶ 17-21.) The confidential and trade secret information "provides Wells Fargo with a competitive advantage over its competitors who do not know the information." (Id. at ¶ 20.) Wells Fargo makes efforts to protect the secrecy of its confidential and trade secret information through the use of written confidentiality agreements, and the implementation of a Code of Ethics and Information Security Policy and policies in its Team Member Handbook. (Id. at ¶¶ 22-25.)

         B. Link's and Raynor's Restrictive Agreements

         9. During their employment with Wells Fargo, Link and Raynor each executed an agreement with Wells Fargo entitled "Agreement Regarding Trade Secrets, Confidential Information, Nonsolicitation and Assignment of Inventions" (the "Restrictive Agreements"). (ECF No. 3, at ¶ 27; Link Restrictive Agreement, ECF No. 3, Ex. 1; Raynor Restrictive Agreement, ECF No. 3, Ex. 2.) The Restrictive Agreements provide that for a period of two (2) years immediately following termination of their employment for any reason, Link and Raynor will not:

a. [S]olicit, recruit or promote the solicitation or recruitment of any employee or consultant of the Company for the purpose of encouraging that employee or consultant to leave the Company's employ or sever an agreement for services;
b. [S]olicit, participate in or promote the solicitation of any of the Company's clients, customers, or prospective customers with whom [they] had Material Contact and/or regarding whom [they] received Confidential Information, for the purpose of providing products or services that are in competition with the Company's products or services ("Competitive Products/Services"). "Material Contact" means interaction between [them] and the customer, client or prospective customer within one (1) year prior to [their] last day as a team member which takes place to manage, service, or further the business relationship; or
c. Accept insurance business from or provide Competitive Products/Services to customers or clients of the Company:
i. with whom [they] had Material Contact, and/or
ii. were [their] clients or customers of the Company within six (6) months prior to [their] termination of employment.

         (ECF No. 3, at ¶¶ 30, 34.)

         10. The Restrictive Agreements also prohibit Link and Raynor from using or disclosing Wells Fargo's "Trade Secrets" and "Confidential Information". (Id. at ¶¶ 30 and 35.) The Restrictive Agreements define "Trade Secrets" as including, but not limited to:

[T]he names, addresses, and contact information of the Company's customers and prospective customers, as well as any other personal or financial information relating to any customer or prospect, including, without limitation, account numbers, balances, portfolios, maturity and/or expiration or renewal dates, loans, policies, investment activities, purchasing practices, insurance, annuity policies and objectives;
[A]ny information concerning the Company's operations, including without limitation, information related to its methods, services, pricing, costs, margins and mark ups, finances, practices, strategies, business plans, agreements, decision-making, systems, technology, policies, procedures, marketing, sales, techniques, agent information, and processes;
[A]ny other proprietary and confidential information relating to the Company's customers, employees, products, services, sales, technologies, or business affairs.

         (ECF No. 3, at Exs. 1 and 2.) The Restrictive Agreements do not contain a separate definition of "Confidential Information."

         11. The Restrictive Agreements define "the Company" as: "a Wells Fargo company and/or any of its past, present, and future parent companies, subsidiaries, predecessors, successors, affiliates, and acquisitions." (Id.)

         12. Under the Restrictive Agreements, Link and Raynor also were required to return to Wells Fargo upon termination of employment all "Confidential Information of the Company" and all "Records of the Company" in their respective possessions. (Id. at ¶¶ 31, 36; Exs. 1 and 2.)

         C. The resignations from Wells Fargo and breaches of the Restrictive Agreements

         13. Link resigned from Wells Fargo on October 31, 2016, Pack resigned on April 3, 2017, and Raynor resigned on April 12, 2017. Link and Raynor "solicit[ed] and encourage[ed]" each other, and Pack, to terminate employment with Wells Fargo. (ECF No. 3, at ¶¶ 40-41.)

         14. On or about April 12, 2017, immediately prior to submitting his resignation, Raynor entered Wells Fargo's offices at around 8:00 p.m. and printed and copied documents for approximately one hour. (Id. at ¶¶ 42, 101.) Wells Fargo alleges that it "is informed and believes . . . that the documents printed and copied by Defendant Raynor contained highly confidential and trade secret information belonging to Wells Fargo." (Id. at ¶ 46.)

         15. Since becoming employed with BB&T, Link, Raynor, and Pack have contacted and solicited Wells Fargo's customers "in an attempt to divert their insurance business away from Wells Fargo" and to BB&T. (Id. at ¶¶ 47-48.) Wells Fargo alleges upon information and belief that Link, Raynor, and Pack used Wells Fargo's trade secrets and confidential information "to identify, contact, solicit and induce Wells Fargo clients to transfer their accounts and otherwise divert business from Wells Fargo to BB&T." (Id. at ¶ 56.) In the Complaint, Wells Fargo lists approximately 18 Wells Fargo customers assigned to Link or Raynor who have transferred their insurance business to BB&T since Link and Raynor left Wells Fargo. (Id. at ¶¶ 53-71.)

         16. On November 27, 2017, Wells Fargo filed the Complaint. In the Complaint, Wells Fargo alleges four separate claims against Link and Raynor for breaches of Restrictive Agreements: breach of the non-solicitation of customers provision (Count One); breach of the non-solicitation of employees provisions (Count Two); breach of the confidential information provisions (Count Three); and breach of the return of property provision (Count Four). Wells Fargo also alleges the following claims against all of the Defendants: misappropriation of trade secrets in violation of the North Carolina Trade Secrets Protection Act ("NCTSPA"), N.C. General Statute § 66-152 et seq., (hereinafter "G.S.") (Count Five); tortious interference with contractual relations (Count Seven); and unfair and deceptive trade practices (Count Eight). Finally, Wells Fargo alleges a claim for computer trespass under G.S. § 14-458 against Raynor only (Count Six).

         17. On November 28, 2017, the case was designated to the North Carolina Business Court and assigned to the undersigned. (Designation Order, ECF No. 1; Assignment Order, ECF No. 2.)

         18. On December 28, 2017, Defendants filed the Motion to Dismiss and a supporting memorandum of law. (Def. Memo. Supp. Mot. Dismiss, ECF No. 8.) On January 22, 2018, Plaintiff filed its brief in opposition to the Motion to Dismiss. (Pl. Br. Opp. Mot. Dismiss, ECF No. 10.) Defendants filed a reply on February 8, 2018. (Def. Reply Supp. Mot. Dismiss, ECF No. 15.) On February 20, 2018, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.