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Anthony L&S, LLC v. Doherty

United States District Court, Second Circuit

January 8, 2014

ANTHONY L&S, LLC, Plaintiff,


PAUL A. ENGELMAYER, District Judge.

Anthony L&S, LLC ("AL&S"), brings this diversity action against its former employee, Stephen Doherty ("Doherty"), for allegedly misusing confidential information that he obtained over the course of his employment. Doherty brought a separate diversity action against AL&S and other defendants, which is pending in the United States District Court for the Eastern District of Pennsylvania, in which he principally alleges a breach of contract based on the claim that various funds due him were misappropriated (the "Pennsylvania Action"). Doherty moves for a stay of this case, pending resolution of a motion to dismiss pending in the Pennsylvania Action, or for the dismissal of this case, based on the claim that AL&S's claims here consist solely of compulsory counterclaims in the Pennsylvania action, over which this Court lacks jurisdiction. For the reasons that follow, Doherty's motion is denied.

I. Background[1]

A. The Parties

AL&S is a Manhattan-based company that designs, sources, develops, markets, and sells shoes. Compl. ¶¶ 1, 3. Its members are Loconte Family, LLC, which owns a 95% membership interest, and Samsung C&T America, Inc. ("Samsung"), a New York corporation which owns a 5% membership interest. Id. ¶ 2; Penn. Compl. ¶ 5.[2] AL&S owns and licenses brands for footwear including U.S. Polo Association, Cadillac, Bob Marley, Adio, Sole, Phat Farm, Baby Phat, FUBU, Smith's Mountain Gear, and Levi's. Penn. Compl. ¶ 16.

Anthony Loconte ("Loconte") is the President of AL&S. Loconte Decl. ¶ 24. He is a citizen of New Jersey. Loconte Decl. ¶ 1.

Doherty was a sales representative for AL&S between August 2002 and October 1, 2012. Compl. ¶ 4. He managed AL&S's accounts with at least five different companies, id. ¶ 7, and received substantial compensation and bonuses for his work, id. ¶ 5. AL&S derived a significant amount of its income from these accounts. Id. ¶ 18. In the course of his work, Doherty was exposed to confidential information about these accounts. Id. ¶ 20. Doherty is a citizen of Pennsylvania. Id. ¶ 2 (Parties section).

Rostco, LLC ("Rostco") is a footwear corporation originally owned by Doherty and his wife, Rose Doherty, Penn. Compl. ¶ 23, in which Loconte later acquired an 50% ownership interest, id. Ex. C. Rostco is a citizen of Pennsylvania, id. ¶ 7, and, it would appear, New Jersey, by virtue of Loconte's apparent membership in Rostco and citizenship in New Jersey, id. Ex. C, Loconte Decl. ¶ 1.

B. The Cadillac Licensing Fee Dispute

In September 2006, while he was employed at AL&S, Doherty began negotiating a license agreement that would give AL&S the right to manufacture, sell, and distribute footwear and other clothing containing the Cadillac name and/or logo. Penn. Compl. ¶ 17. In February 2007, Loconte, acting on behalf of himself and AL&S, orally agreed to pay Doherty 3% of any revenues resulting from any such license agreements. Id. ¶ 18. Doherty then secured for AL&S two licensing agreements relating to the Cadillac trademarks, one for footwear and the other for apparel. Id. ¶ 19. Since then, AL&S's revenue for Cadillac-trademarked footwear has exceeded $25 million. Id. ¶ 20.

In December 2010, Loconte told Doherty that he would not pay him the 3% fee, but would instead pay him a flat fee of $150, 000 in three annual installments. Id. ¶ 21. Doherty reluctantly agreed, fearing that if he pressed the issue, he might lose his job. Id. ¶ 22. On December 2, 2010, Rostco, which was then owned by Doherty and his wife, sent AL&S an invoice labeled Invoice 001 in the amount of $150, 000, reciting that the invoice was for a "Finders fee for Cadillac footwear." Id. ¶ 23; id. Ex. A. On December 29, 2010, AL&S paid Doherty $50, 000 by issuing a check in that amount to Rostco. Id. ¶ 24; id. Ex. B. The stub of that check states that it is in reference to Invoice 001, with a beginning balance due of $150, 000. Id. Ex. B. Doherty alleges that it was then the parties' understanding that AL&S would pay him the remaining $100, 000 in two equal installments on December 1, 2011 and December 1, 2012. Id. ¶ 25. In December 2011, however, when Doherty approached Loconte about that month's expected payment, Loconte refused to pay and stated that he and AL&S would not make any further payments to Doherty. Id. ¶ 26.

C. The General Motors Licensing Agreement

In December 2010, Doherty obtained for Rostco the exclusive right to use certain General Motors and related intellectual property on footwear. Id. ¶ 28. On January 25, 2012, after Loconte learned of the GM licensing agreement, he entered into an agreement with Rostco and Doherty under which Loconte acquired a 50% ownership stake in Rostco "in exchange for a capital contribution of one hundred dollars ($100) and other good and valuable consideration." Id. Ex. C. According to Doherty's allegations in the Pennsylvania Action, under this agreement Loconte or AL&S would provide Rostco with capital to develop and manufacture footwear under the GM licensing agreement. Id. ¶ 29. Rostco would then sell the GM footwear, with Doherty and Loconte splitting the profits. Id.

In April 2012, The Shoe Show, Inc. ("Shoe Show"), ordered 14, 682 pairs of footwear bearing the GM trademark from Rostco. Id. ¶ 30. At the time, Rostco was not yet an approved Shoe Show vendor, and so the parties agreed that AL&S would issue the initial paperwork for the Shoe Show order. Id. ¶ 34. However, Doherty claims, on December 14, 2012 AL&S sent Shoe Show a purchase order that represented, allegedly falsely, that the purchased footwear bore Cadillac rather than GM trademarks. Id. ¶ 34; id. Ex. E. Then, in the first quarter of 2013, Samsung, allegedly in conspiracy with Loconte, sent Shoe Show invoices bearing the name AL&S, id. ¶ 33, id. Ex. D, causing Shoe Show to pay AL&S rather than Rostco, id. ¶¶ 36-37. Despite repeated demands, AL&S refused to pay Rostco the money it received from Shoe Show ...

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