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WENNER MEDIA v. NORTHERN & SHELL NORTH AMERICA LIMITED

February 8, 2005.

WENNER MEDIA LLC, Plaintiff,
v.
NORTHERN & SHELL NORTH AMERICA LIMITED, NORTHERN & SHELL PLC, NORTHERN & SHELL MEDIA, and NICOLA McCARTHY EVANS, Defendants.



The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION

This action was removed by defendants from New York State Supreme Court to this Court on the basis of diversity of citizenship, which is sufficiently alleged in the pleadings and confirmed by the representations of counsel for the parties during the hearing described infra.

I. PROCEDURAL HISTORY

  Plaintiff Wenner Media LLC ("Wenner"), which publishes a magazine, seeks a preliminary injunction which principally would enjoin its former employee, the individual defendant Nicola McCarthy Evans (referred to as "McCarthy" in the pleadings and herein), from accepting employment with the corporate defendant Northern & Shell North America Limited ("N&S America"), which intends to publish a competing magazine, during the balance of McCarthy's two-year employment contract as executive editor of Wenner's magazine.

  Wenner moved for a temporary restraining order ("TRO") pursuant to Fed.R.Civ.P., Rule Page 2 65(b). Counsel for Wenner and counsel for the defendants*fn1 had been in contact with each other and exchanged correspondence before Wenner made that motion. Wenner's counsel gave counsel for defendants notice of their intention to apply for a TRO.

  Counsel for the parties appeared before this Court for a hearing on February 3, 2005. They produced affidavits of witnesses with knowledge of the events and documentary exhibits, from which counsel for Wenner argued that a TRO should issue and counsel for defendants argued that it should not.

  Having heard the submissions of counsel and examined the relevant documents, the Court granted Wenner's motion and signed a TRO which directed defendant McCarthy "to comply with paragraphs 6 and 7 of the written employment agreement she entered into with Wenner Media, dated April 1, 2004"; enjoined her from "working for a competing magazine in the United States" until April 25, 2006;*fn2 enjoined the corporate defendants (collectively "Northern Shell") from employing McCarthy "at a competing publication" until that date; enjoined the defendants from "directly or indirectly soliciting any employees" of Wenner to leave Wenner until that date; enjoined defendants from using or disclosing Wenner's "confidential, proprietary and trade secret information"; and directed defendants "to immediately return" any Wenner property.

  This opinion sets forth the Court's preliminary findings of fact and its conclusions of law which constitute the grounds of these actions. Page 3

  II. FINDINGS OF FACT

  On the basis of the affidavits, exhibits, and oral submissions of counsel at the February 3, 2005 hearing, the Court makes the following preliminary findings of fact.*fn3

  Wenner publishes in the United States a magazine called Us Weekly. Us Weekly is the sort of magazine known to the publishing trade as a "celebrity magazine." As the phrase would suggest, a celebrity magazine is devoted to articles and photographs about individuals who have attained the status of a celebrity, most often in the worlds of film, television, and other performing arts. A recent example may be found in the coverage of the movie celebrities Brad Pitt and Jennifer Aniston.

  By written contract dated as of March 26, 2004, Ex. A to Affidavit of Pamela Fox ("Fox Affidavit"), Wenner and McCarthy agreed that Wenner would employ McCarthy as the executive editor of the magazine Us Weekly for a two-year term beginning on April 25, 2004 and expiring on April 25, 2006. Para. 3. The contract referred to McCarthy as "the Employee." Para. 6 provides that

  in the event that the Employee resigns or otherwise terminates her own employment other than for Good Reason prior to the expiration of the [two-year] Term, for an additional period equal to (i) the remainder of the Term or (ii) one (1) year, whichever is later, the Employee shall not, anywhere in the United States, directly or indirectly, provide any services to, own, manage or participate in, any Page 4 business, entity or individual that publishes or distributes any competing publication of the [Us Weekly] Magazine. For purposes hereof, a "competing publication" shall be defined as any publication (whether in print, electronic or online format) whose primary purpose is covering celebrities.

  Para 7(a) contains broad definitions of "Confidential Information," "Trade Secrets," and "Company Documents." Para. 7(b) provides that "[at] all times, both during employment by the Company [Wenner] and after its termination, the Employee agrees to keep in confidence and trust all information referenced" in para. 7(a), and "shall not use or disclose any such information to any party without the written consent of the Company," except as may be necessary in performing the Company's business. These quoted provisions in para. 7 of the employment contract ...


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