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LICATA & CO. v. GOLDBERG

February 1, 1993

LICATA & CO. INC., Plaintiff,
v.
SEYMOUR GOLDBERG and TOTAL DOLLAR MANAGEMENT EFFORT LTD., Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Plaintiff Licata & Co. Inc. ("Licata") is a firm which entered the insurance agency business utilizing assistance of the defendant Seymour Goldberg ("Goldberg"), who has since left Licata and gone to work with the defendant Total Dollar Management Effort Ltd. ("Total"), which also engages in insurance brokerage. Licata contends that under its arrangement with Goldberg, identities of all customers developed or serviced by Goldberg while at Licata were exclusively the property of Licata and that Goldberg took customer lists from Licata.

 The jurisdiction of this court is invoked pursuant to 28 USC § 1331 based on a claim under 15 USC § 1125(a), the Lanham Trademark Act's prohibition of false representations and descriptions in commerce, and a claim for unfair competition pursuant to 28 USC § 1338.

 Licata, proceeding by Order to Show Cause, seeks a preliminary injunction barring defendants from "making false and misleading representations and descriptions of the conduct of the plaintiff's business and from using the plaintiff's customer lists and books and conducting any other acts of unfair competition in connection therewith"; and requiring defendants to "deliver up for impoundment during the pendency of this action all customer lists, books or the like belonging or originating with the plaintiff in their possession or under their control . . ."

 An affidavit of Randi Frascella, an employee of Licata, states that Goldberg had copied what she believed to be confidential customer information from Licata files. There is no contention that Goldberg took original files without returning them.

 Aurealius J. Licata, president of the corporate plaintiff, has also filed an affidavit stating that it "was understood" that customers obtained by Goldberg while at Licata "would be and remain" customers of Licata & Co. Inc., but no time, place, or details concerning any conversations had to that effect are furnished and no one else appears to have been present when such understanding was reached.

 The identities of the customers and the types of insurance involved are claimed as trade secrets, but no specific means used to protect their secrecy are outlined. It appears to be undisputed that Goldberg was responsible for developing Licata's business with the insurance customers involved, so that while copies of papers Goldberg prepared or worked with while at Licata might be helpful to Goldberg in approaching his former contacts, Goldberg could presumably have retrieved the identities of the customers somewhat more laboriously from other sources, and were his memory impeccable he would have needed no copies of Licata files to get in touch with them. No written agreement concerning post-employment competition or restricting Goldberg's approach to any customers he recruited while at Licata appears to have been prepared or signed.

 Mr. Licata also avers that customers have told him that Goldberg had indicated in oral conversations with them that Licata could no longer service insurance needs and was not qualified to handle their business. No indication has been provided that the individual one-to-one conversations described by this hearsay were in or affecting interstate transactions or whether they took place with new prospects or persons Goldberg already knew.

 While Licata seeks a preliminary injunction based on its affidavits, no offer of proof concerning what further information could he furnished is included in its papers. No information concerning the transmission of the alleged false statements in commerce has been provided.

 For the reasons which follow, I deny the motion for a preliminary injunction.

 II

 Several factual issues concerning the relationship of the parties are presented by the application as submitted by Licata, including the following:

 (a) Whether the alleged representations on the part of Goldberg concerning Licata were in fact made and were in fact false, and if so whether they were in commerce; and

 (b) Whether customers recruited by Goldberg are part of his personal business acquaintanceship developed through his own efforts without any commitment not to contact them if Goldberg left Licata, and which Goldberg may hence use at another job, or whether there was an enforceable ...


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