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WILLIAM R. HILL, #114954 [email protected] ANDREW S. MACKAY, #197074 [email protected] SARA J. ROMANO, #227467 [email protected] DONAHUE GALLAGHER WOODS LLP Attorneys at Law 300 Lakeside Drive, Suite 1900 Oakland, California 94612-3570 Mail: P.O. Box 12979 Oakland, California 94604-2979 Telephone: (510) 451-0544 Facsimile: (510) 832-1486 Attorneys for Plaintiff and Counterdefendant MARK LILLGE d/b/a CREATIVE MARKETING CONCEPTS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

MARK LILLGE d/b/a CREATIVE MARKETING CONCEPTS, Plaintiff,

CASE NO. C 07-02748 MHP MOTION IN LIMINE NO. 1 TO EXCLUDE EVIDENCE OF ISSUES ALREADY DETERMINED Trial Date: Pretrial Conf: Department: Judge: May 6, 2008 April 23, 2008 Courtroom 15, 18th Floor Hon. Marilyn Hall Patel

17 v. 18 19 20 21 22 23 24 25 26 27 28 v. MARK LILLGE d/b/a CREATIVE MARKETING CONCEPTS, and DOES 110, Counterdefendant. ANDREW VERITY and CHRISTINA CHANG, Counterclaimants, ANDREW VERITY and CHRISTINA CHANG, Defendants.

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INTRODUCTION Plaintiff and counterdefendant, Mark Lillge d/b/a Creative Marketing Concepts ("CMC") hereby moves in limine for an order precluding defendants and counterclaimants ANDREW VERITY and CHRISTINA CHANG ("Defendants"), and each of them, from mentioning, referring to, suggesting or arguing to the jury, or introducing any evidence purporting to prove or suggest: 1. That defendant Chang was terminated "wrongfully," "illegally," "unlawfully," "in

violation of law," "in violation of public policy," or similar characterizations tending to suggest that Chang's termination from CMC was wrongful or unlawful; 2. That CMC engaged in "unfair business practices," "unfair competition," or in

conduct that violated Business and Professions Code section 17200; 3. That CMC libeled Defendants in any manner (excluding also any reference to,

mention of, or introduction into evidence of the June 27, 2007 letter from CMC to its customers and the September 7, 2007 e-mail message from CMC to its customers both found by the Court to be non-defamatory as a matter of law); 4. That CMC "interfered with" or "disrupted" Defendants' economic relationships, or

that CMC's conduct caused Defendants any economic harm; and/or 5. That CMC owed or owes Defendants any unpaid overtime wages, interest, or

penalties, including any evidence purporting to show the number of hours per day or days per week that Defendants, or either of them, worked and any evidence purporting to show that Defendants, or either of them, worked evenings or weekends, or missed meals or rest breaks. The evidence referred to in items 1 through 4 is irrelevant to any issue in the case, since the Court has disposed of all claims to which such evidence could possibly apply by virtue of its April 1, 2008 Memorandum and Order granting summary judgment in CMC's favor on Defendants' fifth, eighth, tenth (as to libel), and eleventh counterclaims for relief. The evidence referred to in item 5 is irrelevant to any issue in the case, since all of Defendants' counterclaims

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for unpaid overtime wages, interest, and penalties (including missed break and meal penalties and waiting time penalties under California law and statutory penalties under the Fair Labor Standards Act) have been mooted by full tender of payment. Therefore the evidence is inadmissible. Moreover, the probative value of such evidence, if any, is slight when weighed against its prejudicial effect, and its introduction would confuse and mislead the jury as well as waste judicial resources. ARGUMENT I. THE COURT HAS ALREADY RULED THAT CHANG WAS NOT WRONGFULLY TERMINATED; THAT CMC DID NOT ENGAGE IN UNFAIR BUSINESS PRACTICES; THAT CMC DID NOT LIBEL DEFENDANTS; AND THAT CMC DID NOT INTERFERE WITH DEFENDANTS' ECONOMIC RELATIONSHIPS. On April 1, 2008, this Court granted CMC's motion for summary judgment as to defendant Chang's counterclaim for wrongful termination (count 5) and unfair business practices (count 8). In entering summary judgment on these counts, the Court held that "CMC was well within its right to demand its employees sign a non-compete agreement in order to protect its trade secrets." Memorandum and Order Re: Plaintiff's Motion for Partial Summary Judgment and Plaintiff's Motion for an Order to Show Cause Regarding Contempt, filed April 1, 2008, at 9:8-9. 1 The Court also held that CMC was "also well within its right to fire Ms. Chang for insubordination upon refusing to sign the agreement." Id. at 9:9-10. The Court also granted CMC's summary judgment motion with respect to Defendants' eleventh count for intentional interference with prospective economic advantage. The Court found that "defendants have not provided any evidence that there was a disruption of economic relationships due to plaintiff's acts." Memorandum and Order, Exhibit A, at 13:19-20. The Court also found that "defendants are unable to show any economic harm proximately caused by CMC's acts." Id. at 14:2-3.

A true and correct copy of the court's April 1, 2008 Memorandum and Order is attached hereto as Exhibit A for the Court's convenience.

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Because the Court has already found that CMC did not wrongfully terminate Chang; that CMC did not engage in unfair business practices under Business and Professions Code section 17200, and did not interfere with Defendants' economic relationships, any mention or suggestion to the contrary, and any evidence that Defendants may attempt to introduce to the contrary, would not be relevant, admissible evidence under Rules 401 and 402 of the Federal Rules of Evidence. Moreover, even if marginally relevant, such evidence would be unduly prejudicial under Rule 403 because of its slight, if any, probative value. "Where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there's even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States. v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). In addition, any such evidence or argument would confuse the issues, mislead the jury, and cause undue delay and waste of time. Because the Court has already ruled on Defendants' wrongful termination, unfair business practices, and intentional interference counterclaims, the facts alleged in those counterclaims must be "treated as established," and not subject to determination by the jury. Fed. R. Civ. P. 56(d)(1). See also Alberty-Vélez v. Corporación de Puerto Rico para la Difusión Pública, 242 F.3d 418, 421-26 (1st Cir. 2001) (holding that trial court erred in admitting evidence contrary to previous partial summary judgment order). Therefore, allowing the introduction and presentation of such evidence or argument would waste the jury's time, as there would be nothing for the jury to decide based on such evidence. Furthermore, if such evidence were introduced to the jury, the jury would likely be confused or misled by such evidence or argument, and would likely misapply such evidence or argument to the claims that remain in the case. This is precisely the circumstance that Rule 403 seeks to avoid, and the reason why such evidence and argument should be excluded. II. THE COURT HAS ALREADY RULED THAT CMC DID NOT LIBEL DEFEFNDANTS AND THAT THE JUNE 27 LETTER AND SEPTEMBER 7 LETTER WERE NOT DEFAMATORY AS A MATTER OF LAW. The Court granted summary judgment in favor of CMC with respect to Defendants' defamation claims regarding (1) a June 27, 2007 letter from CMC to its suppliers, and (2) a

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September 7, 2007 e-mail from CMC to its customers. The Court held that each of these written communications was non-defamatory as a matter of law because Defendants could not demonstrate that any of the statements contained in the communications were untrue. Memorandum and Order, Exhibit A, at 10-12. Because the Court has ruled that the two written communications were non-defamatory as a matter of law, these communications are inadmissible to prove defamation. Therefore, if they are admitted for any purpose, Defendants, and each of them, should be precluded from arguing that they are defamatory. Moreover, Defendants, and each of them, should be precluded from mentioning, referring to, suggesting, or arguing to the jury that CMC has libeled Defendants, since the Court has already ruled that CMC has not, thereby establishing those facts for purposes of this action. Fed. R. Civ. P. 56(d)(1); Alberty-Vélez, 242 F.3d at 422. Even if such evidence were relevant, which it is not, its introduction would be far more prejudicial than probative, would confuse the issues and mislead the jury, and would waste judicial resources, and it should therefore be excluded under Federal Rules of Evidence, Rule 403. III. DEFENDANTS' COUNTERCLAIMS FOR UNPAID WAGES ARE MOOT. Defendants' second, third, sixth, and seventh counterclaims sought payment of overtime wages and missed meal and rest break penalties alleged to be due under California law, plus statutory penalties under California law and under the Fair Labor Standards Act. These amounts have been tendered in full, including all penalties and interest, and Defendants so acknowledge. See Letter from Richard Harrington dated April 1, 2008, attached hereto as Exhibit B. There is, consequently, no remaining issue of fact for the jury to determine as to these counterclaims. Defendants' counterclaims for unpaid vacation days and Verity's counterclaim for unpaid bonus remain to be adjudicated, and no exclusion of evidence pertinent to those counterclaims is being sought in this motion. 2

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Defendants' claims for attorneys' fees also remain unadjudicated. However, attorneys' fees for unpaid wages are statutory, and are not an element of damages. Cal. Lab. Code §§ 218.5, 1194(a) (West 2003). Therefore, the jury will not decide the attorneys' fees claims, which must be presented to the Court in the form of a post-trial motion. Fed. R. Civ. P. 54(d)(2); N.D. Cal. L.R. 54-6.

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Defendants cannot contend that CMC's alleged failure to pay overtime wages or wages for missed breaks and meal periods is relevant to any of Defendants' remaining claims. Verity's breach of written contract counterclaim (count 1) does not seek recovery of overtime wages or wages for missed breaks and meal periods. Verity's breach of oral contract counterclaim

(count 4) alleges breach of an alleged oral promise to continue to employ Verity in the future, not breach of an obligation to pay wages already earned. Defendants' breach of trust counterclaim (count 9) seeks recovery of sums under a pension plan, not overtime wages or wage-related penalties. Finally, Defendants' defamation counterclaim (count 10) refers to conduct post-dating their employment. Since Defendants' counterclaims for unpaid overtime wages, missed meal and rest break penalties, and statutory penalties under California and federal law have been mooted as to all issues determinable by the jury, any evidence of CMC's alleged failure to pay overtime wages or penalties is irrelevant to any issue remaining in the action, and is therefore inadmissible under Federal Rules of Evidence, Rule 402. Likewise, any testimony concerning the number of hours per day or days per week that Defendants, or either of them, may have worked, or testimony that Defendants, or either of them, worked evenings or weekends, or that Defendants, or either of them, missed meals and rest breaks due to work, is irrelevant to any issue remaining in the action, and inadmissble under Rule 402. The only purpose that Defendants could have in attempting to introduce such evidence would be to prejudice the jury against CMC. The evidence should therefore also be excluded under Federal Rules of Evidence, Rule 403. Defendants should be precluded from introducing any evidence of the hours they worked, of work on evenings or weekends, and of missed meals and rest breaks, and Defendants should be precluded from mentioning, referring to, suggesting or arguing to the jury that CMC failed to pay overtime wages or penalties.

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CONCLUSION For the reasons set forth above, CMC respectfully requests that the Court preclude Defendants, and each of them, from introducing evidence at trial as set forth above, and from referring to, mentioning, suggesting or arguing to the jury the existence of any such evidence. Respectfully submitted, DONAHUE GALLAGHER WOODS LLP

By:/s/ William R. Hill William R. Hill Attorneys for Plaintiff and Counterdefendant MARK LILLGE d/b/a CREATIVE MARKETING CONCEPTS

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EXHIBIT A

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
MARK LILLGE d/b/a CREATIVE MARKETING CONCEPTS, No. C 07-02748 MHP Plaintiff, v. ANDREW VERITY and CHRISTINA CHANG, Defendants. _____________________________________/ AND RELATED COUNTERCLAIMS. _____________________________________/ On May 25, 2007 plaintiff Mark Lillge ("Lillge") d/b/a Creative Marketing Concepts ("CMC") brought this action against defendants Andrew Verity and Christina Chang asserting claims for misappropriation of trade secrets, unfair competition, unjust enrichment and intentional interference with prospective economic advantage. On July 6, 2007 defendants answered and counterclaimed. Now before the court is plaintiff's motion for partial summary judgment and plaintiff's motion for an order to show cause regarding contempt. Having considered the parties' arguments and for the reasons stated below, the court enters the following memorandum and order. MEMORANDUM & ORDER Re: Plaintiff's Motion for Partial Summary Judgment; Plaintiff's Motion for an Order to Show Cause Regarding Contempt

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Partial Summary Judgment I. BACKGROUND

CMC is a full-service advertising specialty and corporate apparel firm that sells businesses goods branded with the business' corporate logo. Joint Statement of Undisputed Facts ("JSUF"),

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¶ 2. CMC typically spends approximately five percent of its annual gross revenue, or $200,000, on marketing efforts to assist in developing its customer base. Id., ¶ 7. CMC's customer list and specific customer information are not developed by its sales personnel; rather, CMC independently develops this information and distributes it as necessary to its sales personnel. Lillge Dec., ¶ 3. This information includes, but is not limited to: 1) contact information for certain customers, including key decision makers who CMC knows actually buy its products; 2) purchasing history of certain customers and respective sales volume, including the knowledge of when a customer will be due for replenishment/re-order based upon its prior transactions with CMC; 3) knowledge of CMC's customers' particular requirements and buying habits, including needs, likes, dislikes and limitations; and 4) what CMC charges its customers. Id., ¶ 4. In order to protect this confidential information, CMC provides its employees with an employee handbook that highlights the importance of protecting its trade secrets. JSUF, ¶ 11. The handbook sets forth rules addressing the issue of trade secret theft, such as a prohibition on taking home customer files or forwarding company emails without prior written authorization. Id., ¶ 12. It states that "CMC policy is that the company has invested significant resources to make contact with actual and potential clients. You will be required to sign a non-solicitation agreement to cover these relationships." Lillge Dec., Exh. A. The provisions contained in the handbook applied to everyone at CMC. JSUF, ¶¶ 14­15. CMC also takes four additional steps to ensure confidentiality. First, CMC requires every employee to sign an agreement that he or she will not improperly use CMC confidential information or solicit CMC's customers for up to two years after conclusion of their employment with CMC. Lillge Dec., ¶ 6, Exh. B. Second, CMC undertakes efforts to ensure that CMC's competitors do not learn what specific types and models of products are purchased by CMC by actively taking steps to preclude its suppliers from displaying samples of CMC customer orders at industry trade shows. Id., ¶ 9. Third, CMC does not permit its suppliers to produce any overruns. Its purchase orders state: "Client does not want over-run pieces to be used and/or distributed as samples nor shown in any printed materials, such as catalogs or flyers without prior written consent." Id., Exh. D. Fourth, CMC maintains separate shredding bins for proprietary materials, consistently shreds proprietary 2

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documents and frequently converses with its employees both verbally and in writing about the need for this information to be confidential. Id., ¶ 7, Exh. C (defendant Chang confirming the shredding policy). Nevertheless, it appears that the identity of many of CMC's customers and the items they purchase is available to the public via a visit to CMC's office and through its catalogues, which contain either samples or pictures of samples of CMC's work. See generally Schmolder Dec. In April 2001 CMC hired Andrew Verity as Sales Manager. JSUF, ¶ 19. In January 2005 it hired Christina Chang, Mr. Verity's wife. Id., ¶ 20. Ms. Chang started in accounting where she had access to customer account information. Id., ¶ 21. The following year, Ms. Chang transitioned to sales. At all times Ms. Chang was an at-will employee. Id., ¶ 22. Mr. Lillge asked Mr. Verity to acquire signatures of all CMC employees on a confidentiality agreement. This agreement contained the following clause: (b)Non-Solicitation of Customers, Vendors and Suppliers. For a period of twentyfour (24) months from the date of termination of my employment with the Company for any reason, I shall not, either directly or indirectly, as a principal, agent, contractor, employee, employer, partner or shareholder (other than as an owner of 2% or less of a public corporation) or in any other capacity, either solicit or engage in the business engaged in by the Company as of the date of termination of my employment (`CMC Business') with any current or prospective client, vendor or supplier which was a current or prospective client, vendor or supplier, of the Company within the twelve (12) months immediately preceding my termination. Lillge Dec., Exh. B. Mr. Verity embarked upon this venture despite his misgivings. Verity Dec., ¶ 2. Specifically, he was concerned about the legality of the above provision. He discussed the same with CMC's lawyer and the lawyer stated: All of this said, there is a fine line between a non-Solicitation Clause and a NonCompete Clause. Non-compete provisions are not enforceable in California, while non-solicitation clauses are often enforceable. I say `often' because the case law is not completely consistent on the enforceability of non-solicitation clauses, but they are the best you can do. I always recommend them because, at a minimum, they generally deter former employees from soliciting current customers and employees and, if push comes to shove, the clause is in the agreement and must be addressed/overcome by the former employee in a dispute (i.e., the fact that the employee agreed to the restriction can always be raised before the court / arbitrator). Id., Exh. 1.1 In April 2007 CMC fired Mr. Verity. Id., ¶ 5. Upon Mr. Verity's departure, CMC was unable to locate the confidentiality agreements that had been signed by its employees. Id., Exh. E.

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After Mr. Verity's departure, CMC asked Ms. Chang to sign a confidentiality agreement. JSUF, ¶ 23. Ms. Chang refused and CMC terminated her on May 11, 2007. Id., ¶¶ 24­25. At the time of her departure, she advised CMC of certain customer information she had developed. For instance, she went through her corporate client list and advised Mr. Lillge of the key buyers at each client and their individual preferences. Boyd Dec., Exh. B at 46:22­48:16. Based on her personal knowledge, she testified that one of her clients would likely need to place an order in June that would be "easily $15,000. It's a no-brainer." Id. At the time of their firings, defendants were responsible for about a third of CMC's sales, approximately $1.65 million. Verity Dec., ¶ 8. Shortly thereafter, Mr. Verity and Ms. Chang started their own promotional products business known as Branding Boulevard, which has achieved sales of $600,000 in the nine months it has been operative.2 Id. Plaintiff filed this action on May 25, 2007, shortly after learning of defendants' new business. On June 1, 2007 this court entered a temporary restraining order against defendants. See Docket No. 15. Since leaving CMC, defendants have made sales to customers who formerly did business with CMC. JSUF, ¶ 26. They first disclosed the identities of these customers to CMC at their depositions on July 24, 2007. They subsequently produced documentation regarding the transactions with former CMC customers. Boyd Dec., ¶ 6. On October 1, 2007 this court issued a preliminary injunction against defendants. See Docket No. 61. On November 13, 2007 this court entered an order confirming the scope of the temporary restraining order and preliminary injunction. See id., No. 75. Plaintiff now moves for summary judgment as to defendants' fifth, sixth, seventh, eighth, tenth and eleventh causes of action against CMC.3

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II.

Legal Standard Summary judgment is proper when the pleadings, discovery and affidavits show that there is

"no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is 4

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genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The party moving for summary judgment bears the burden of identifying those portions of the pleadings, discovery and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the opposing party will have the burden of proof at trial, the moving party need only point out "that there is an absence of evidence to support the nonmoving party's case." Id. Once the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Mere allegations or denials do not defeat a moving party's allegations. Id.; Gasaway v. Nw. Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). The court may not make credibility determinations, and inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the motion. Masson v. New Yorker Magazine, 501 U.S. 496, 520 (1991); Anderson, 477 U.S. at 249.

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III.

Discussion A. Wrongful Termination; Business and Professions Code section 17200

The parties' dispute focuses on whether the agreement CMC asked its employees to sign as a condition of continued employment unlawfully restricted the employees' post-termination right to compete. The agreement stated, inter alia, "I shall not [for a period of two years] . . . solicit or engage in the business engaged in by the Company as of the date of termination of my employment . . . with any current or prospective client [of CMC] . . . within the twelve (12) months immediately preceding my termination." Plaintiff admits that "[f]or purposes of this motion, CMC is not disputing that Ms. Chang was fired for her refusal to sign the confidentiality agreement."4 See Plaintiff's Motion for Partial Summary Judgment, Docket No. 81 at 8 n. 26. Defendant's argument that this provision is a wholesale restraint forbidding Chang from working in the same business is simply untrue. Nevertheless, the "engage in" language could arguably be void under California law as it disallows CMC's clients from choosing to do business with Branding Boulevard. The question then becomes whether plaintiff's act of firing defendant 5

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Chang for refusing to sign the six-page agreement with multiple other provisions, including protections of trade secrets, was illegal. If plaintiff can establish that he has even one piece of information that can qualify as a trade secret, then he would be justified in asking his employees to adhere to a limited non-compete agreement that disallows using that trade secret for the employees' personal benefit. In order to establish that it has trade secrets, CMC must meet a two-part test. California has adopted the Uniform Trade Secrets Act ("UTSA"), which defines a trade secret as follows: `Trade secret' means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Cal. Civ. Code § 3426.1(d). The parties devote most of their argument to whether defendants have admitted that plaintiff possesses trade secrets. See Fed. R. Civ. P. 8(d); Lockwood v. Wolf Corp., 629 F.2d 603, 611 (9th Cir. 1980). This court, however, does not find an admission on the part of defendants regarding the trade secret issue merely because they admitted the following paragraph in the complaint: While the fact that many of CMC's actual customers might be willing to purchase promotional goods is information possibly available to CMC's competitors, there are many details regarding CMC's relationships with its customers which are not generally known to the public or CMC's competitors, and CMC derives independent economic value from this information which it has developed through substantial time, effort and expense. JSUF, ¶ 10; see also Answer, ¶ 9. Other than this purported admission, defendants have consistently

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and vehemently maintained that plaintiff does not possess any trade secrets. See, e.g., Answer, ¶ 11 22 (denying the existence of confidential information). 23 As this court found in the order granting the preliminary injunction, California courts have 24 held that confidential customer information beyond the identities of customers may constitute a trade 25 secret. See Docket No. 61; Western Electroplating Co. v. Henness, 180 Cal. App. 2d 442, 445 26 (1960) ("[t]he value of the various accounts of customers and knowledge of the amount of business 27 transacted by and between said customers and plaintiff did constitute secret information of 28 6

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plaintiff."). The court further held that knowledge of customer preferences and characteristics that would aid the plaintiff in securing and retaining business were sufficient to secure protection against the use of the information by a former employee. Id. at 448; see also Courtesy Temp. Serv., Inc. v. Camacho, 222 Cal. App. 3d 1278, 1288 (1990) (holding that a company's customer list and related proprietary information consisting of "billing rates, key contacts, specialized requirements and markup rates" met the first prong). The information maintained by plaintiff--key decision makers at the client, purchasing history, pricing, sales volume, when to contact client for replenishment and the client's particular requirements and buying habits, including needs, likes, dislikes, and limitations--which is not generally available, pertains to the value to CMC of the promotional product customers. See Thompson v. Impaxx, Inc., 113 Cal. App. 4th 1425, 1429 (2003) ("`the list of customers, not ordinarily entitled to judicial protection, may become a trade secret, if there is confidential information concerning the value of these customers.'") (citing Gordon v. Schwartz, 147 Cal. App. 2d 213, 217 (1956)). The information maintained by CMC is exactly the type of information intended to be protected by California trade secret law. For example, the information Ms. Chang gave Mr. Lillge upon her departure could qualify as trade secrets. She specifically notified Mr. Lillge as to a client that would need replenishment to the tune of $15,000 at a specific time. There can be no doubt that whatever value this information possesses is solely based on the fact that it is not generally known to the public. For instance, other persons, such as CMC's competitors, could obtain economic value from knowledge of this information because they could solicit CMC's clients immediately prior to when CMC was intending to contact those clients. However, if this information was generally known, nobody in the promotional products industry would have an advantage. Thus, the first prong is met--plaintiff is able to demonstrate that he possesses at least some information from which he derives independent economic value due to its secrecy. The court now turns to whether reasonable efforts were undertaken to maintain secrecy of this information. In light of the various safeguards undertaken by CMC--rules regarding computer files and emails, confidentiality agreements, shredding bins and preclusion of suppliers displaying 7

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samples--the second prong is easily met. This is further buttressed by a California court of appeal decision finding reasonable efforts at secrecy under similar circumstances: [T]here is no doubt that [the employer] intended its customer information to remain secret and undertook reasonable steps to secure that end. . . . [C]ustomer information was stored on computer [sic] with restricted access. Moreover, in its employment contract signed by [the employee], [the employer] included a confidentiality provision expressly referring to its customer names and telephone numbers. The [employer's] employee handbook contained an express statement that employees shall not use or disclose [the employer's] secrets or confidential information subsequent to their employment including `lists of present and future customers.' Morlife, Inc. v. Perry, 56 Cal. App. 4th 1514, 1523 (1997). The efforts at secrecy here were

8 far greater. 9 Finding that CMC does in fact have at least some trade secrets, the court must now determine 10 whether plaintiff may protect them via an agreement with an arguably anti-competitive provision. In 11 Metro Traffic Control, Inc. v. Shadow Traffic Network, the California Court of Appeal dealt with a UNITED STATES DISTRICT COURT 12
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similar situation. 22 Cal. App. 4th 853 (1994). When discussing a one-year non-compete clause 13 and a prohibition on disclosure of trade secrets for two years, the court held: 14 15 16 17 18 19 Id. at 860­61 (internal citations omitted). Although that court eventually found no trade secrets 20 existed, its rationale regarding non-compete clauses is still valid. Indeed, Metro was recently cited 21 approvingly by the California Supreme Court which adopted its rationale. See Reeves v. Hanlon, 33 22 Cal. 4th 1140, 1150 (2004). 23 Here, the non-compete clause is narrowly tailored in both time and scope and designed to 24 protect plaintiff's trade secrets. Specifically, the non-compete clause is limited to business with 25 "any current or prospective client, vendor or supplier which was a current or prospective client, 26 vendor or supplier, of the Company within the twelve (12) months immediately preceding [the 27 employee's] termination." Lillge Dec., Exh. B. Since CMC maintains as trade secrets its client28 8 The merit of [the employer's] claim depends on its ability to demonstrate that it has a protectible trade secret. Business and Professions Code section 16600 prohibits the enforcement of [the employer's] noncompete clause except as is necessary to protect trade secrets. One commentator closes this analytical circle neatly: `Any attempt to restrict competition by the former employee by contract appears likely to be doomed under section 16600 of the Business and Professions Code, unless the restriction is carefully limited and the agreement protects merely a proprietary or property right of the employer recognized as entitled to protection under the general principles of unfair competition.'

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specific information that is not generally known in the industry, a non-compete clause with respect to the current or prospective clients protects CMC's trade secrets. For instance, it disallows former employees from exploiting the client's needs, likes, dislikes and limitations--proprietary information it gained through employment at CMC--to their benefit even if the client initiates contact with the former employees. This court thus affirms "the concomitant right to have the ingenuity and industry one invests in the success of the business or occupation protected from the gratuitous use of that `sweat-of-the-brow' by others." Morlife, 56 Cal. App. 4th at 1520. In sum, CMC was well within its right to demand its employees sign a non-compete agreement in order to protect its trade secrets. Consequently, it was also well within its right to fire Ms. Chang for insubordination upon refusing to sign the agreement. Therefore, plaintiff's motion for summary judgment regarding defendants' counterclaim for wrongful termination, count five, is granted. For the same reasons, plaintiff's motion for summary judgment regarding defendants' counterclaim for a violation of Business and Professions Code section 17200, count eight, is also granted. Consequently, defendants' cross-motion for summary judgment on counts six and eight of the counterclaim is denied.5

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B.

Unpaid Vacation Pay

Under her sixth and seventh causes of action, defendant Chang seeks five days of vacation pay from CMC. CMC states that since Chang had no expectation of this pay when she rendered services for CMC, she is not entitled to the same. Thus, it argues, any offer by CMC was a gratuitous promise. As evidence of this, they point to her deposition. Specifically: Q: So it was your understanding that these five additional days were days that you hadn't necessarily earned pursuant to CMC's policy, but it was something that Mr. Molloy [CMC's General Manager] agreed to add on to your termination? A: Yes. ... Q: And was it during this conversation with Mr. Molloy where he agreed to essentially grant you five days of additional vacation pay? A: No. Q: When did he actually agree to do that? A: The additional five days? Q: Right. A: [In] the termination e-mail that I requested of him. 9

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Q: Prior to receiving that e-mail, did you request that he grant you those additional five days or ­ A: No. Q: Was that a surprise to you? A: It was a surprise, yeah. ... Q: So in the e-mail that [Mr. Molloy] sent to you later that Friday, he agreed to pay you for the five days of vacation pay that you said you were entitled to, and your understanding is that he threw an additional five days on top of that? A: Yes. Boyd Dec., Exh. B at 153:18­22; 164:24­165:13; 168:18­23.

7 However, defendant Chang states that she was given the five additional days of pay as 8 consideration for her part-time work at CMC, before she became a full-time employee. Specifically, 9 when she was fired, CMC's general manager stated to her in an e-mail: "Additionally, in 10 consideration of your part time contracting work prior to your regular full time employment with 11 CMC, which commenced on January 1, 2005, we have also included an additional 5 PTO days in UNITED STATES DISTRICT COURT 12
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your final paycheck." Chang Dec., Exh. 1. This statement, though supporting Chang's position, 13 also suggests that according to CMC, whatever vacation pay Ms. Chang was entitled to was included 14 in her final paycheck. 15 It is unclear what Chang's expectations were when she received the additional five 16 days--she could have been surprised at the fact that CMC capitulated or surprised that they offered 17 five days of pay as opposed to something else. Further, the general manager's email demonstrates 18 an understanding had been reached between the two. Drawing all inferences in the light most 19 favorable to Chang, this court cannot conclude that this promise was gratuitous. Indeed, the five 20 additional days of pay, even though it may be de minimis can be viewed as a severance package of 21 sorts. In light of this conflicting evidence, summary judgment is inappropriate. 22 23 C. 24 Truth is a complete defense to all charges of defamation. Smith v. Maldonado, 72 Cal. App. 25 4th 637, 646 (1999). Defendants allege plaintiff defamed them in three ways: 1) a June 27, 2007 26 letter from CMC to its suppliers; 2) a September 7, 2007 e-mail from CMC to its customers; and 27 3) oral statements made by CMC. Each is discussed in turn. 28 10 Defamation

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On June 27, 2007 CMC sent a letter to its suppliers, which stated, inter alia: This is to put you on notice that on June 1, 2007, Judge Marilyn Hall Patel, of the United States District Court for the Northern District of California, San Francisco Division, granted a Temporary Restraining Order to prevent Andrew Verity and Christina Chang, former employees of Creative Marketing Concepts, from soliciting our clients or misappropriating any of CMC's trade secrets. As you may be aware, Mr. Verity and Ms. Chang have established their own promotional products business, which they have every right to do. We believe the name of the company is Branding Boulevard. However, CMC filed a lawsuit against Mr. Verity and Ms. Chang because we have reason to believe that they have used or threatened to use CMC trade secret information to solicit CMC's clients and acquire information about jobs that CMC has done in the past. Accordingly, we ask that you inform the appropriate people in your organization that: 1) Mr. Verity and Ms. Chang are no longer employees of CMC and do not represent CMC in any way; 2) Mr. Verity and Ms. Chang are not entitled to any information regarding CMC clients, including products, pricing, artwork, etc.; and 3) please inform me directly if either Mr. Verity or Ms. Chang request any information about or relating to CMC's current or past clients. Lillge Dec., Exh. F. Defendants claim this language is misleading because it neglects to mention that suppliers are free to contact defendants. Not surprisingly, the language also neglects to mention that suppliers are not free to contact defendants. Since plaintiff is under no obligation to inform its suppliers that they are free to cease doing business with CMC, the court finds nothing misleading about this communication. Defendants cannot demonstrate that any of the statements contained in this communication are untrue. In light of this failure to demonstrate any untruthfulness or mischaracterization of the court's order, this communication is held to be non-defamatory as a matter of law. On September 7, 2007 CMC sent an e-mail to its customers which defendants also contend is false and misleading. The e-mail states, in relevant part: As you may be aware, Andy Verity and Christina Chang left CMC a few months back. You should note that Judge Marilyn Hall Patel, of the United States District Court for the Northern District of California, San Francisco Division, has granted CMC a Temporary Restraining Order on June 1, 2007 which prohibits them not only from soliciting CMC clients but also restrains them from initiating contact with CMC clients. If you would like additional information about this situation, please contact me directly. Id., Exh. G. This e-mail is non-defamatory as a matter of law due to the reasons stated above.

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Finally, defendants claim that Lillge's statements that Chang had left the country are defamatory per se. They are correct in asserting that special damages need not be proven for statements that are defamatory per se. See Triton Ins. Underwriters, Inc. v. Cmte on Chiropractic Welfare, 232 Cal. App. 2d 829, 833 (1965). Lillge asserts that statements made by third parties regarding what Lillge told them are inadmissible hearsay. This is incorrect for two reasons. First, statements made by a party are considered party admissions and fall outside the definition of hearsay. See Fed. R. Evid. 801(d)(2)(A). Second, defendants are not attempting to demonstrate the truth of the statements made by plaintiff--they merely offer to demonstrate that the statements were made by plaintiff. Specifically, Ms. Pascual testified, "I'm not sure if Mr. Lil ­ that I was speaking with Mr. Lillge, but as far as I can remember, he said he was the President of Creative Marketing Concepts, and he told me that Christina is leaving for Canada." Ward Dec., Exh. A at 43:13­23. This statement is being offered simply to demonstrate that someone at CMC made the assertion regarding Canada, not the truth of the assertion. Furthermore, Ms. Pascual specifically described the substance of the alleged defamatory statements--that Ms. Chang had left for Canada due to a visa issue. Although she could not "recall the exact reason," Ms. Pascual "just heard, like, something, some sort of Visa." Id. at 45:12­20; see also id. at 73:19­74:10 ("Q: And when you asked whoever this person was, the President of CMC, where Ms. Chang had gone, you do recall that he told you she's going to Canada because of a Visa issue.? A: Yes. . . . what came to my mind was that she was having a problem with the working visa."). Since plaintiff cannot demonstrate the truth of these statements, summary judgment is unwarranted. In sum, the court grants summary judgment in favor of plaintiff with respect to the two written communications at issue, but denies plaintiff's motion for summary judgment with respect to the allegedly slanderous statements.

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D.

Intentional Interference with Prospective Economic Advantage

The eleventh count of defendants' counterclaim charges plaintiff with intentional interference with prospective economic advantage. To prevail on a claim for interference with prospective economic advantage, defendants must allege: 1) an economic relationship between themselves and a third party that carries a probability of future economic benefit to the plaintiff; 2) CMC's knowledge of the relationship; 3) intentional acts by CMC designed to disrupt the relationship; 4) actual disruption of the relationship; and 5) economic harm to defendants proximately caused by CMC's acts. Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1153­54, 1164­65 (2003). Defendants point to various conciliatory e-mails they received upon announcing their departure from CMC. Specifically, they state that many of CMC's customers would have preferred to do business with defendants independent of the organization with which defendants were affiliated. The court has reviewed these e-mails and has found some communications which do in fact demonstrate the same.6 Each of these statements, however, is inadmissible hearsay. Although defendants make many allegations of intentional interference in their response to the fourth interrogatory of plaintiff's second set of interrogatories, see Boyd Dec., Exh. G, defendants have not provided declarations or deposition testimony from any of these individuals.7 As such, they are unable to meet the first prong above. Furthermore, defendants have not provided any evidence that there was a disruption of economic relationships due to plaintiff's acts. Defendants point to an e-mail communication, initiated by Ms. Chang, with Michelle Chan where Ms. Chan asks defendants to remove her from their distribution lists because of CMC's e-mail regarding this lawsuit. Chang Dec., Exh. 4. Ms. Chan knew that Ms. Chang was not allowed to initiate contact with her and declined Ms. Chang's attempt to solicit her. Ms. Chang avers that when she spoke with Ms. Chan during the summer of 2007--before the solicitation e-mail was sent--Ms. Chan had "said that Wells Fargo had no orders for promotional products but that if she needed anything in the future she would think of me." Chang Dec., ¶ 8. This self-serving declaration with a vague statement regarding promotional products is not enough to carry defendants' burden. Defendants have failed to show that an 13

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economic relationship with Ms. Chan existed such that it could be disrupted. Finally, defendants are unable to show any economic harm proximately caused by CMC's acts. They point to the fact that their business only has $600,000 in sales after nine months of operation whereas they were responsible for $1.65 million in sales at CMC. The mere fact that they have not been able to get their entire book of business to switch to their newly founded company lacks the necessary nexus. There is no evidence that Branding Boulevard's business has been hurt by plaintiff's actions. There are a myriad reasons why a fledgling company is unable to garner business at levels it expects--the court does not go into those reasons here. Suffice it so say that no proximate cause exists that links plaintiff's two non-defamatory written communications to Branding Boulevard's alleged economic woes--no showing has been made that it was reasonably probable that CMC's customers would have switched over to Branding Boulevard if the written communications had not been sent. As discussed above, plaintiff did not engage in any wrongdoing by sending the letter and e-mail.8 In sum, the court grants plaintiff's motion for summary judgment with respect to defendants' eleventh cause of action in their counterclaim.

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Motion for Civil Contempt I. Procedural Background On May 31, 2007 this Court granted CMC's application for a Temporary Restraining Order ("TRO") until the hearing on plaintiff's motion for a preliminary injunction. See Docket No. 15.9 The court ruled, in part, that defendants were not to initiate contact with CMC's customers until further order of the court, and that they are not to solicit customers of CMC during this time. Appel Dec., Exh. A [hereinafter "TRO hearing transcript"] at 16:5­17:15. Specifically, "[i]f CMC's customers contact [defendants], that's another matter, but they better make sure that they can verify or substantiate the fact that those customers contacted them, not that they contacted the customers." Id. at 17:1­4. In addition, the court stated: And if, in fact, those solicitations were not by defendants, in fact, it was a response to notification, then they can continue to do business with those companies. [Defendants] had just better be able to have business records and accounts that they 14

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can account for all of this at the end of the day, if, in fact, it turns out those representations are not true, so they better keep good books and records. The failure to do so will, in fact, be interpreted against them when in doubt. So they're [defendants] sitting here, and I trust they understand that. Id. at 20:21­21:6.

4 At the August 27, 2007 hearing on CMC's motion for preliminary injunction, the court ruled 5 that the TRO would remain in effect pending the court's order on the motion for the preliminary 6 injunction. See Docket No. 51. 7 On October 1, 2007 the court issued an order granting CMC a preliminary injunction. See 8 Docket No. 61. This order stated that "defendants will be permitted to work with CMC's customers 9 so long as defendants do not solicit business from them." Id. at 12. On November 9 the court issued 10 an order confirming the scope of the TRO and preliminary injunction. It held: 11 UNITED STATES DISTRICT COURT 12
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The Court's Preliminary Injunction Order confirmed that while defendants were "barred from initiating contact with" CMC's customers, defendants remained free to do business with those customers that contacted them (emphasis in original). This addendum confirms that more than one notification from defendants to CMC's customers regarding their new business is not permitted under either the Temporary Restraining Order or the Preliminary Injunction Order (even when such notification in isolation may not be viewed as a solicitation). As confirmed by both Orders, repeated notifications to a customer constitute a solicitation and improper initiation of contact violating the injunctions which have been and are currently in force. See Docket No. 75 at 2. This court's October 1 order currently remains in effect. Thus, at all times since June 1, 2007 defendants have been enjoined in the above manner.

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 United States v. United Mine Workers, 330 U.S. 258, 303­04 (1947) (internal citations omitted). 28 15 II. Legal Standard Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court's order, and to compensate the complainant for losses sustained. Where compensation is intended, a fine is imposed, payable to the complainant. Such fine must of course be based upon evidence of complainant's actual loss, and his right, as a civil litigant, to the compensatory fine is dependent upon the outcome of the basic controversy. But where the purpose is to make the defendant comply, the court's discretion is otherwise exercised. It must then consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.

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The Supreme Court has stated that "a flat, unconditional [non-compensatory] fine even as little as $50 announced after a finding of contempt is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through compliance." Int'l Union v. Bagwell, 512 U.S. 821, 829 (1994) (citing Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590 (1947)). Penfield, however, stated that "one who is fined, unless by a day certain he [complies,] has it in his power to avoid any penalty." 330 U.S. at 590. The Ninth Circuit has held that when a consent decree is already in place, the party held in contempt for violating the same "had the opportunity to avoid the fine by not engaging in the prohibited conduct in the first place." NLRB v. Ironworkers Local 433, 169 F.3d 1217, 1221 (9th Cir. 1999). The court found that "fines imposed without further opportunity to purge are not punitive when those fines are prompted by a party's previous failure to purge." Id. (citing Hoffman v. Beer Drivers and Salesman's Local Union No. 888, 536 F.2d 1268, 1273 (9th Cir. 1976)). Specifically, the court held that "Bagwell does not undermine our conclusion in Hoffman that the imposition of non-compliance fines following a failure to purge is a coercive, civil remedy." Id. Nevertheless, the Ninth Circuit "recognize[s] that the Supreme Court has tended to classify fines paid to the court as punitive fines, while fines payable to another party are remedial." Lasar v. Ford Motor Co., 399 F.3d 1101, 1111 (9th Cir. 2005) (citing Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988)). Moreover, the identity of the payee is not determinative. The Ninth Circuit has also held that a fine payable to an opposing party was punitive when it was not designed "to compensate [the opposing party] for any actual or estimated harm." Bingman v. Ward, 100 F.3d 653, 656 (9th Cir. 1996). "The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the [nonmoving party] violated a specific and definite order of the court." FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v. City & County of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir. 1992)). However, substantial compliance and good faith can negate sanctions. See In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993) (party seeking sanctions must

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show (1) a violation of the order, (2) beyond substantial compliance, (3) not based on a good faith and reasonable interpretation of the order, (4) by clear and convincing evidence). The decision as to whether contempt sanctions should be imposed lies within the sound discretion of the district court. See Jerry's Famous Deli, Inc. v. Papanicolaou, 383 F.3d 998, 1004 (9th Cir. 2004).

III.

Discussion10 Defendants claim this court's order allowed them to both: 1) provide CMC's customers of

defendants' new business contact information; and 2) attempt to sell to CMC's customers that responded to this e-mail notification or initiated contact with defendants. Verity Dec., ¶ 3; Chang Dec., ¶ 3. It is unclear to this court how defendants interpreted the court as stating that any response by CMC's customers allowed defendants carte blanche to solicit those customers. As stated above, the TRO hearing was replete with statements admonishing defendants not to initiate contact and allowing contact with CMC's customers only if they contacted defendants. Specifically, in the context of solicitation, the court stated, "[a]nd if, in fact, those solicitations were not by defendants, in fact, it was a response to notification, then they can continue to do business with those companies." TRO hearing transcript at 20:21­24. Thus, the court limited its order to CMC's customers that were amenable to doing business with defendants, as demonstrated through communications from the customer to defendants. The court specifically stated that the solicitation could not be by defendants. The court gave no indication that any and all benign contact from a CMC customer would open the door to relentless efforts at solicitation by defendants. Indeed, the court could not have been clearer when it stated that "defendants will be permitted to work with CMC's customers so long as defendants do not solicit them." See Docket No. 61 at 11. The court finds no ambiguity in this language. The court now discusses the various contacts defendants have had with CMC's customers in light of the above defined scope of the injunction.

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A.

Ms. Lee11

In May 2007, Ms. Lee--a customer of CMC--notified Ms. Chang of Ms. Lee's need for promotional products. Lee Dec., ¶ 4. Also in May 2007, Ms. Chang sent Ms. Lee an e-mail advising Ms. Lee that she was leaving CMC. Id., ¶ 5. Upon receipt of this e-mail, Ms. Lee called Ms. Chang asking her to call Ms. Lee back. Id., ¶ 6; Chang Dec., Exh. 1. Ms. Lee wanted to know who would be handling her account after Ms. Chang's departure. Lee Dec., ¶ 6. Ms. Chang called Ms. Lee the following week to notify Ms. Lee of Ms. Chang's new business. Id. Ms. Lee, however, preferred to stay with CMC. Id. Thereafter, Ms. Chang and Mr. Verity continued to solicit business from Ms. Lee. Id., ¶¶ 7­9. Due to these unwanted solicitations, Ms. Lee decided to take $20,000 worth of business away from CMC and instead purchase from a third party. Id., ¶ 10. Though the court does not have specific evidence, it appears that this transaction occurred in May 2007. On May 22, 2007 Ms. Lee responded to another solicitation by Ms. Chang dated May 21, 2007 wherein she conclusively asked Ms. Chang to stop soliciting her. Id., Exh. A. Ms. Lee said she was going to continue to do business with CMC, her preferred vendor. Id. In August 2007 Ms. Chang contacted Ms. Lee by telephone about a Branding Boulevard catalogue and also sent Ms. Lee a Branding Boulevard catalog. Id., ¶¶ 12­13. Finally, Ms. Chang called Ms. Lee in December 2007 to solicit business. Id., ¶ 14. While most of these contacts occurred prior to May 31, 2007, Ms. Chang has contacted Ms. Lee to solicit business at least three times since May 31, 2007. Defendants have presented no evidence negating these contacts nor have they demonstrated any necessity for the contacts. They argue that since Ms. Lee had initiated contact with Ms. Chang by replying to the latter's neutrally worded e-mail, Ms. Chang had carte blanche to solicit Ms. Lee. Specifically, Ms. Lee had left a generic voicemail message asking Ms. Chang to call her back. There was no indication that Ms. Lee intended to do business with Ms. Chang's new company. As discussed above, defendants' contention is thus wrong as a matter of law. Furthermore, at no point did the court state that defendants were allowed to solicit CMC's customers that contacted them. The statement that while "defendants were `barred from initiating contact with' CMC's customers, defendants remained free to do business with those customers that 18

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contacted them," see Docket No. 75 at 2, necessarily only applied to CMC's customers that contacted defendants about conducting business. Any other construction would effectively eliminate the efficacy of the order by allowing defendants to contact any CMC customer that responded with a courteous "good luck!" to their farewell e-mail. In sum, this court finds Ms. Chang's three contacts with Ms. Lee on or after May 31, 2007 in direct contravention to the court's orders. Ms. Lee's decision to hire a third party vendor for her $20,000 worth of business, however, seems to have occurred before the court's May 31, 2007 order.

B.

Ms. Chan

On May 11, 2007 defendant Chang sent an e-mail to Ms. Chan--a customer of CMC--notifying the latter of her departure from CMC. Ms. Chan replied the same day, asking: "You're leaving too, huh? Where are going to?" Appel Dec., Exh. E. Ms. Chang replied a few days later, on May 22, and: 1) provided her contact information; 2) stated that she offered branded products and large volume direct import; and 3) offered "to help you with all your upcoming projects." Id. There is no admissible evidence that Ms. Chan replied to this email.12 On November 8, 2007 defendant Chang sent an e-mail to Ms. Chan stating, "[a]s holidays are just around the corner, thought I should send you a quick email/checking in. I am happy to get you some year end gift materials or do project solution researches for you." Id. Ms. Chan replied immediately, asking to be removed from Ms. Chang's distribution list. Id. Ms. Chang complied, but stated, "[d]o try to think of me if you even [sic] need help on branded items or solutions." Id. Defendants' arguments with respect to Ms. Chan fail for the same reasons as those with respect to Ms. Lee. Consequently, the two November 8, 2007 contacts trying to solicit Ms. Chan are in contravention of the court's order.

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C.

Ms. Gutfran

On May 11, 2007 defendant Chang sent an e-mail to Ms. Gutfran--a customer of CMC--notifying the latter of her departure from CMC. Id., Exh. F. Ms. Gutfran replied the same day, stating: "Christina, Best of luck to you. Thank you for all of your help!" Id. Ms. Chang 19

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