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Andrew Corp. v. Cassinelli

March 19, 2009


The opinion of the court was delivered by: Harry D. Leinenweber, Judge United States District Court

Hon. Harry D. Leinenweber


Presently before the Court are Plaintiff's Motion to Enforce Agreed Stipulation and Injunctive Order and a Supplement to the Motion. For the reasons stated herein, Plaintiff's Motion is granted in part and denied in part.


On May 28, 2008, Plaintiff Andrew Corporation (hereinafter, "Andrew") filed a Complaint against its former employee, Defendant Daniel Cassinelli (hereinafter, "Cassinelli"), alleging that Cassinelli breached his employment agreement with Andrew. The Complaint alleged that, Cassinelli resigned from Andrew, accepted a position with its competitor, John Mezzalingua Associates, d/b/a PPC ("PPC"), and schemed to use Andrew's confidential information and customer relationships to benefit PPC. See Comp. ¶¶ 1-2.

On August 27, 2008, Andrew, Cassinelli, and PPC executed a Settlement and Mutual General Release Agreement (the "Settlement Agreement") and an Agreed Stipulation and Injunctive Order (the "Agreed Stipulation"). In the Settlement Agreement, Cassinelli agreed not to "solicit or service" any customers with whom he worked during his last year at Andrew as well as any individuals in the wireless industry with whom he personally had contact during his last year at Andrew. See Settlement Agreement at ¶ 1(a). These restraints were applicable until March 15, 2009. Id. The parties also agreed to the following restraint:

Cassinelli and PPC agree not to utilize in any way the Andrew Confidential information that Cassinelli obtained during his employment with Andrew, specifically including but not limited to information on his Andrew Computer, backup, or Blackberry. Cassinelli and PPC further agree to permanently delete any and all Andrew Confidential Information from Cassinelli's PPC and personal computer and his Blackberry, or any other computer or handheld electronic device in their possession, custody or control on which Andrew Confidential Information is stored. To the extent that any Andrew Confidential Information has been sent to or transmitted within PPC by any means, PPC agrees to delete the Andrew Confidential Information from its computers and/or databases and destroy any copies that may have been created therefrom. In order to implement this provision, the parties will engage in a joint inspection of Cassinelli's computers and delete all confidential information and confirm that no information from Andrew is contained on the computer or in the home office. In the event that any information was transmitted to other PPC locations or employees by any means, such information will be deleted and the Parties will implement other necessary remedial measures, including inspection of PPC computers, and prohibitions on customer contact, as necessary. . . . If the information was not transmitted from Cassinelli to other PPC personnel, PPC is deemed presumptively to not be using Andrew Confidential Information, and any alleged future violation or participation in such violation of such provisions of Cassinelli's Agreement must to [sic] be proven by evidence of actual copying from Andrew documents or electronic records.

Id. at ¶ 1(b). The Settlement Agreement defines Andrew Confidential Information as "Andrew confidential information obtained by Cassinelli during his employment at Andrew, including but not limited to pricing information, forecasts for Andrew's customers, Andrew's customer contacts, product road maps for next-generation Andrew technology, sales, marketing and business plans, and information on customer buying habits and preferences." Id. at ¶ F.

The parties agreed to retain the Court's jurisdiction to enforce the terms of the Settlement Agreement until June 1, 2009, unless a breach is asserted. See Agreed Stipulation ¶¶ 2, 5. If the Court finds a willful breach, it may award "relief as it deems appropriate, including reasonable attorneys' fees or the appointment of a Special Master as [sic] the breach parties expense to minitor [sic] the breaching party." Id. at ¶ 4.

In its Motion to Enforce, filed on October 27, 2008, Andrew identified seven e-mails from the forensic image of Cassinelli's computer that it believed contain Andrew Confidential Information. See Pl.'s Mot. to Enforce at ¶¶ 7-13. Andrew argued that the presence these files on Cassinelli's computer indicated a willful breach of the Settlement Agreement. Id. at ¶ 13. Andrew requested that the Court require an investigation, including a search of PPC's e-mail server and the computers of certain PPC employees identified in the e-mails. Id. at ¶¶ 16-18.

On October 31, 2008, the Court ordered that the parties conduct limited discovery to determine whether PPC and Cassinelli were complying with their obligations under the Settlement Agreement. See Oct. 31, 2008 Minute Order.

In its Supplement, filed on February 12, 2009, Andrew contends that the discovery has confirmed that PPC and Cassinelli have breached their obligations under the Settlement Agreement. Andrew also argues that PPC and Cassinelli have failed to comply with their discovery obligations pursuant to the Court's October 31, 2008 Order. Andrew alleges that PPC and Cassinelli purposely have stalled discovery and have failed to comply with the Settlement Order in an effort to reach March 15, 2009, the date on which competitive restrictions are scheduled to terminate.

In response, Cassinelli contends that both PPC and he have complied fully with the obligations under the Settlement Agreement. After Andrew objected to seven specific e-mails, PPC deleted the files identified and ran a search to determine whether the e-mails were forwarded and whether similar documents exist. Cassinelli avers that Andrew has ...

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