United States District Court, W.D. Washington, Seattle
KENNETH I. DEANE, Plaintiff,
PACIFIC FINANCIAL GROUP INC, et al., Defendants.
ORDER ON MOTION FOR TEMPORARY RESTRAINING
J. Pechman United States Senior District Judge.
above-entitled Court, having received and reviewed:
Defendants' Motion for Temporary Restraining Order (Dkt.
No. 25), 2. Plaintiff Kenneth I. Dean's Memorandum
Opposing Defendants' Motion for Temporary Restraining
Order (Dkt. No. 30), all attached declarations and exhibits,
and relevant portions of the record, rules as follows:
ORDERED that the motion is DENIED.
The Pacific Financial Group, Inc. (“TPFG”) is an
investment advisory group; Plaintiff was employed with the
company from October 2007 until January 2019 (Plaintiff
actually disputes when his employment ended, but for purposes
of this motion is willing to use January 2019 as his end
date). Plaintiff executed an Employment Agreement (“the
Agreement”) with TPFG. Two of the primary provisions of
the Agreement consisted of (1) Plaintiff's acknowledgment
that TPFG's confidential information “constitutes a
valuable, special and unique asset of [TPFG];” and (2)
Plaintiff's agreement, for a period of one year
post-separation, to neither solicit any TPFG client to
terminate its relationship with TPFG nor induce any referral
sources to cease doing business or otherwise interfere with
their relationship with TPFG. Dkt. No. 27, Decl. of Meade,
Ex. A at 5-6.
Plaintiff's separation from TPFG, he began receiving
quarterly termination payments per the Agreement (Plaintiff
disputes that TPFG is calculating the payments correctly - it
is one of the issues in this lawsuit - but that is not
relevant for purposes of the TRO). He became employed by
Advisors Capital Management (“Advisors Capital, ”
“Advisors”), another investment advisory company
which TPFG describes as a “direct competitor.”
Shortly after taking his new position, Plaintiff contacted
the Executive Vice President (Mills) of Kovacks Securities,
Inc. (“Kovacks”), an investment advisory company
which utilizes TPFG's portfolio management services and
programs, seeking to schedule a meeting to discuss his new
position at Advisors Capital. Mills referred Plaintiff to
Kovacks' business development consultant (Monks). On July
18, 2019, Plaintiff met with Monks and discussed the
establishment of a business relationship between Advisors and
Kovacks which would include the use of Advisors' models
on Kovacks' platform. Dkt. No. 29, Decl. of Monks at
¶ 5. Plaintiff followed up with emails after the
meeting. Id., Ex. B.
informed TPFG of the contact from Plaintiff (Decl. of Meade
at ¶ 7), resulting in TPFG filing a cease and desist
letter with Plaintiff's attorney, who responded by
assuring the company that Plaintiff was aware of the
constraints of the Agreement and had no intention of
violating them. A similar letter was sent by TPFG to Advisors
months later, Defendant filed the instant motion, seeking:
prohibition against Plaintiff “using, disclosing,
copying, storing, transmitting, interfering, or otherwise
damaging” TPFG's confidential and proprietary
prohibition against Plaintiff “inducing any custodians,
consultants, or referral sources to cease doing business with
or interfering with their relationship with TPFG;”
Permission to deposit all future payments owing to Plaintiff
under his employment contract with the Court Registry.
parties are in agreement regarding the standard against which
this request for emergency equitable relief must be measured.
Defendant is required to establish (1) a likelihood of
success on the merits, (2) that it is likely to suffer
irreparable harm in the absence of the requested relief, (3)
that the balance of hardships tips in its favor, and (4) that
the public ...