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Deweese v. Its National, LLC

United States District Court, D. Nevada

March 19, 2019

GLENN DEWEESE and JOSHUA HOLTON, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
ITS NATIONAL, LLC; and DOES 1 through 50, inclusive, Defendants.

          Mark R. Thiemian Joshua D. Buck Leah L. Jones THIERMAN BUCK, LLP Attorneys for Plaintiffs

          Robert A. Dotson, Jill I. Greiner DOTSON LAW Attorneys for Defendant

         Defendant, ITS NATIONAL, LLC ("ITS"), by and through its counsel, Dotson Law, and Plaintiffs, GLENN DEWEESE and JOSHUA HOLTOM (hereinafter collectively "Plaintiffs"), by and through their counsel, Thiemian Buck LLP, hereby stipulate to an Injunction as described herein. The parties specifically stipulate to in favor of Defendant, enjoining Plaintiffs from 1) breaching or utilizing information in violation of the Non-Competition/Non-Solicitation Agreements executed by Plaintiffs with ITS, 2) breaching the Confidentiality Agreements executed by Plaintiffs in favor of ITS, and 3) revealing or utilizing the proprietary information and trade secrets of ITS which Plaintiffs promised to protect and the use of which is a violation of Nevada law, [1] and 4) utilizing the confidential and proprietary information, including, but not limited to, the customer information and customer lists or any associated data, contacting any persons or perspective customers of ITS, including, but not limited to, any customer lists, customer information, or data which is known to Plaintiffs as a result of their previous employment with ITS, and contacting or soliciting the 1 customers of ITS. Except as otherwise expressly modified herein, the terms of the Agreements shall govern. Plaintiffs may petition the Court to abolish this Injunction for any reason, including a change of law that prohibits the restrictions set forth in the Agreements.

         As an accommodation to Plaintiffs, and as part of the consideration of the settlement of this dispute, ITS agrees to waive the enforcement of the Non-Competition provisions against these Plaintiffs only insofar as Plaintiffs are allowed to conduct business and compete with ITS for small package shipments and international shipments. ITS does not waive and Plaintiffs agree to not compete with ITS with regard to truckload and less than truckload shipments originating or terminating within the United States. The waiver of enforcement of the Plaintiffs' obligations with regard to small package shipments will be honored by ITS locally in the Reno Sparks region, as well as nationally and internationally. ITS further agrees to waive the enforcement of the non-competition obligations with regard to the brokerage of all international freight. For avoidance of doubt, this waiver applies only to brokered loads which originate and terminate outside of the United States.

         Plaintiffs were employees of ITS and during the course and as a condition and term of their employment with ITS, agreed to be bound by Non-Competition/Non-Solicitation Agreements which are attached hereto and incorporated herein.[2] During their employment with ITS and as a further condition and term of such employment, they also agreed to be bound by Confidentiality Agreements which are attached hereto and incorporated herein.[3]

         Pursuant to the terms of the Non-Competition/Non-Solicitation Agreements and relevant to this injunction, Plaintiffs agreed that for a period of one year after the termination of their employment relationship with ITS, they would not start a Competitive Business or be employed by or in any way affiliated with a Competitive Business located within fifty miles of the city limits of Sparks. A Competitive Business is therein and for this injunction defined as "any business that involves brokered trucking services and that use independent truck owners and/or operators, as well as related products and services in the trucking business.55 For the purpose of this injunction and as consideration for this settlement, the parties agree to limit the scope of the restriction, the prohibited business, to truckload and less than truckload services. Small package services will not be within the scope of this restriction or prohibited. The parties further agree to not restrict services where the load originates and terminates outside of the United States. These remaining restricted activities will be enjoined for one year following the termination of their employment relationship with ITS, and will therefore expire on May 17, 2019. Until that date the Plaintiffs agree to be enjoined from competition as herein described.

         Pursuant to the terms of the Non-Competition/Non-Solicitation Agreements and relevant to this injunction, Plaintiffs further agreed that for a period of two years immediately following the termination or their employment relationship with ITS they would not provide similar services as described therein to any former customers or clients of ITS unless Plaintiffs did not instigate contact with and solicit the former customers or clients, and further that they would not instruct or aid others to solicit such former customers or clients. These restricted activities will be enjoined for two years following the termination of the employment relationship with ITS, and will therefore expire on May 17, 2020. Until that date, the Plaintiffs agree to be enjoined from solicitation of clients and customers I of ITS as described in the Agreements and herein. Thus, ITS does not waive any of these restrictions as agreed to in the Non-Competition/Non-Solicitation Agreements.

         Pursuant to the terms of the Non-Competition/Non-Solicitation Agreements and relevant to this injunction, Plaintiffs also agreed that for two years immediately following the termination or the employment relationship with ITS they would not hire any person or entity that served as a carrier of ITS during Plaintiffs' employment with ITS unless Plaintiffs did not instigate contact with and solicit the carrier, and further that they would not instruct or aid others to solicit such persons or entities. These restricted activities will be enjoined for two years following the termination of the employment relationship and will therefore expire on May 17, 2020. Until that date, the Plaintiffs agree to be enjoined from solicitation of persons or entities that served as carriers of ITS during their employment relationship with ITS as described in the Agreements and herein. Thus, ITS does not waive any of these restrictions as agreed to in the Non-Competition/Non-Solicitation Agreements.

         Pursuant to the terms of the Non-Competition/Non-Solicitation Agreements and relevant to this injunction, Plaintiffs agreed that for two years immediately following the termination of the employment relationship with ITS they would not solicit, divert, to take away or attempt to take away any employee of ITS who was an employee of ITS during Plaintiffs' employment with ITS, and further that they would not instruct, aid or cause others to solicit such persons. These restricted activities will be enjoined for two years following the termination of the employment relationship and will therefore expire on May 17, 2020. Until that date, the Plaintiffs agree to be enjoined from the activities described herein and within the Non-Competition/Non-Solicitation Agreements attached hereto. Thus, ITS does not waive any of these restrictions as agreed to in the Non-Competition/Non-Solicitation Agreements.

         Pursuant to the terms of the Confidentiality Agreements, the Non-Competition/Non-Solicitation Agreements and relevant to this injunction, Plaintiffs agreed that during their employment with ITS they had been given access to proprietary business information ("Confidential Information") belonging to ITS, and ITS has a protectable interest in that information. The Confidentiality Agreement defines Confidential Information as:

"Confidential Information" shall mean any and all non-public knowledge, data or information of the Company, including but not limited to the Company's strategic plans, marketing research and information, business results and financial information, ideas, processes, formulas, data, programs, know-how, improvements, discoveries, developments, designs and techniques; information regarding business plans, budgets, unpublished financial statements, licenses, prices and costs; information regarding customers, including, but not limited to all customer lists, identifying information, agreements, and rates; information regarding vendors, including, but not limited to all vendor lists, identifying information, agreements and rates; information regarding the skills and compensation of employees of the Company; and any other confidential, proprietary and trade secret knowledge, data or information, or information that, due -to its character and nature, a reasonable person under like circumstances would treat as confidential, in whatever form or medium, produced by or for the Company.

         Plaintiffs further agreed that they had a duty to maintain that Confidential Information and not disclose it to any unauthorized recipient during the term of employment or anytime thereafter. Plaintiffs also agreed during their employment with ITS and thereafter to not appropriate, use or make use of any Confidential Information in connection with business activity. Plaintiffs further:

         acknowledge that they have independent legal obligations to maintain trade secret information of ITS pursuant to the Uniform Trade Secrets Act, NRS 600A.010-.090. Therefore, Plaintiffs agree to be enjoined from disclosing, appropriating, or using any Confidential Information or trade secret information held by ITS which they gained access to during their employment relationship with ITS, and ITS does not waive any of these restrictions as agreed to in the Confidentiality Agreements and the Non-Competition/Non-Solicitation Agreements. This injunction shall be permanent so long as said information is maintained as confidential.

         This terms and obligations of this Stipulation will continue until otherwise modified pursuant to stipulation or Order of the Court, or the ...


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