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Credit Suisse Securities (Usa) LLC, Neithercut v. Bruce Lee

December 9, 2011

CREDIT SUISSE SECURITIES (USA) LLC, NEITHERCUT,
KATHLEEN GOULD, AND CREDIT SUISSE SECURITIES (USA) LLC,
PETITIONER,
v.
BRUCE LEE, JAMES HOESLEY, EMIKO NEITHERCUT, KATHLEEN GOULD, AND JULIE GRIFFITH, RESPONDENTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge:

MEMORANDUM OPINION AND ORDER

The petitioner in this action, Credit Suisse Securities (USA) LLC ("Credit Suisse"), moves for a preliminary injunction against respondents Bruce Lee, James Hoesley, Emiko Neithercut, Kathleen Gould, and Julie Griffith. Respondents are all former employees of Credit Suisse who left Credit Suisse to work for Merrill Lynch. Credit Suisse seeks a preliminary injunction that (1) prohibits Lee and Hoesley from continuing employment with any entity other than Credit Suisse for ninety days from the date of their resignation, (2) prohibits Lee and Hoesley from (a) soliciting any client of Credit Suisse to transfer its business from Credit Suisse to any other entity and (b) soliciting any employee of Credit Suisse to leave Credit Suisse to work for another entity, and (3) requires all respondents to return to Credit Suisse any confidential or proprietary Credit Suisse information they may have. The parties agree that the underlying merits of their dispute will be decided in an arbitration proceeding held before the Financial Industry Regulatory Authority ("FINRA"), and Credit Suisse has reported to the Court that it filed such an arbitration on December 8, 2011. Credit Suisse seeks this preliminary injunction to preserve the status quo pending the arbitration. A hearing was held on December 7, 2011 at which respondents Neithercut, Hoesley, and Lee testified. For the reasons that follow, the motion is DENIED.

BACKGROUND

Until October 28, 2011, respondents were employees of Credit Suisse. Lee and Hoesley served as Managing Directors in Credit Suisse's Private Banking division. Managing Director is one of the most senior titles an employee of Credit Suisse may hold. Neithercut served as a business analyst and reported to Lee. Gould and Griffith served as relationship associates and also reported to Lee. Together, Lee and Hoesley managed over $100 million in client assets for Credit Suisse.

All five respondents resigned from Credit Suisse on Friday, October 28, 2011. They began working at Merrill Lynch on Monday, October 31, 2011 and met with at least one of their Credit Suisse clients at Merrill Lynch on that day. At present, approximately eighty of the respondents' former Credit Suisse clients have transferred all or part of their accounts to Merrill Lynch. The assets of those eighty clients, however, represent less than half of the total client assets that Lee and Hoesley managed while at Credit Suisse. Of the Credit Suisse clients that have not yet transferred their assets to Merrill Lynch, many of them remain "in play."

Some of the circumstances leading up to the respondents' resignation are unclear. For example, while Lee, Hoesley and Neithercut each were aware that the others were considering moving to Merrill Lynch, none admitted to having any detailed discussions about the move with any of the other respondents, or that the decision to move was made jointly.

Certain events, however, are not disputed. On October 20, 2011, Neithercut, using her Credit Suisse email account, compiled short biographies of each of the respondents and sent them to Merrill Lynch. (See PX 18.) Neithercut testified that she did so at the suggestion of a Merrill Lynch employee. Neithercut, however, also testified that at the time she sent the email, she had not yet decided whether to join Merrill Lynch because she had not yet received an offer of employment from the firm.

Neithercut also emailed to her personal email address (and possibly to Merrill Lynch) a list of mutual fund ticker symbols and the names of three hedge funds, along with a dollar figure representing the total quantity of assets that Lee's clients had invested in those funds. The email did not contain any information specific to any client accounts.

In the week prior to respondents' resignation, Neithercut sent a number of emails to Credit Suisse "back office" employees requesting that they generate periodic performance reports for certain client accounts. Neithercut and Lee testified that these requests were made in the normal course of business. However, there is some reason to believe that absent their pending resignation, respondents would not have sought these reports with the same urgency. Indeed, Neithercut admitted that in one of her emails, she told a back office employee that she needed the report generated because Lee had a meeting with the client at the end of the week. In fact, no such meeting was ever scheduled. Instead, respondents resigned at the end of that week.

Once the reports were generated, Neithercut sent them to the respective clients and cc'd Lee on his Credit Suisse email account. Respondents did not send copies of the reports to their personal email accounts nor did they otherwise take them from Credit Suisse after they resigned.

Prior to their resignation, respondents scheduled meetings with three of their clients to be held the week after respondents resigned from Credit Suisse, although Lee testified that the clients contacted him to schedule the meetings and that they were scheduled for that week in the normal course of business.

Hoesley testified that he met with one of his clients on Tuesday, October 25, three days before resigning. Hoesley testified that during the meeting he expressed dissatisfaction with Credit Suisse and informed his client that he may be leaving the firm. He expressly denied that he solicited the client to follow him to Merrill Lynch. On the present record, his testimony on this point appears credible. The next day, that client emailed Lee and Hoesley and inquired about whether his account was "portable" and about what fees would be associated with moving it. Hoesley and Lee testified that they discussed this email, but claimed that neither of them understood what the client was referring to and that they did not follow up on the issue. It would appear that both Lee and Hoesley necessarily understood the context in which the client's inquiry was made; however, there is no evidence that they took any steps to pursue this opportunity while still at Credit Suisse.

Lee testified that he occasionally would email Credit Suisse information to his own email account in order to work from home. Lee testified that he was unaware that Credit Suisse policy prohibited such actions. Lee also testified that on December 3, in preparation for the hearing on this preliminary injunction, he discovered on his home computer an email to his personal account from respondent Gould that included as an attachment a statement showing one of his client's portfolios. The email was dated September 21, 2011. Lee testified that while he deleted the email after reading it, the file remained on his computer but that it had not been opened since September 21. Lee testified that the reason for the email was because Lee had scheduled a conference call with that client for September 21 which Lee intended to conduct from home. Lee's testimony on this point appears credible.

At Credit Suisse, Lee and Hoesley each were subject to certain restrictions on their employment. They were required to give ninety days notice before terminating their employment and also were required to refrain from soliciting clients for sixty days following the ninety day notice period. Lee and Hoesley also were subject ...


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