CDW LLC, CDW Direct LLC v. Netech Corp.

906 F. Supp. 2d 815, 2012 WL 4481680, 2012 U.S. Dist. LEXIS 140340
CourtDistrict Court, S.D. Indiana
DecidedSeptember 28, 2012
DocketCase No. 1:10-cv-0530-SEB-DML
StatusPublished
Cited by5 cases

This text of 906 F. Supp. 2d 815 (CDW LLC, CDW Direct LLC v. Netech Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. Indiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CDW LLC, CDW Direct LLC v. Netech Corp., 906 F. Supp. 2d 815, 2012 WL 4481680, 2012 U.S. Dist. LEXIS 140340 (S.D. Ind. 2012).

Opinion

Order on Defendant’s Motion to Exclude Expert Testimony

DEBRA McVICKER LYNCH, United States Magistrate Judge.

Defendant NETeeh Corporation moves (Dkt. 256) to exclude on Daubert grounds expert testimony by Mark Hosfield regarding damages, including lost profits, suffered by the plaintiffs because of NE-Tech’s alleged tortious misconduct in raiding employees and customers of CDW’s Indianapolis branch.

CDW’s Allegations in the Amended Complaint1

The plaintiffs and defendant NETeeh are competitors that sell technology products and solutions to businesses. Both employ “sales personnel and network engineers who assist in the assessment, installation and services” of technology systems and associated products. (Amended Complaint, Dkt. 131 at ¶ 7). In early 2010, NETeeh began recruiting employees to leave CDW’s Indianapolis office and to work for NETeeh at NETech’s Carmel, Indiana office. NETeeh was successful in recruiting and hiring away John Bannister, the former branch manager of CDW Direct’s Indianapolis office; Ann Garcia and Rick Dinkins, former CDW Direct advanced technology account executives; Nicole Sawa, a former CDW Direct solution architect; Gary “Dean” Lochkovic, a former Berbee2 lead network engineer; and Brian Walls, Jason Netherland, and Purushothaman Nammalwar, former Berbee network engineers, and several other account executives or engineers. (Id. ¶¶ 11-12). All went to work for NETeeh in the same or similar work capacities they had held with CDW Direct or Berbee at the Indianapolis office.3 (Id.). These employees had regular and extensive access to CDW’s confidential business and trade secret information which they used to develop, design, sell, implement, and service [818]*818complex technological solutions for CDW’s customers. (Id. ¶¶ 14, 21, 22). Many of these employees also were subject to non-solicitation obligations that prohibited them for a period of 6 or 12 months after their employment ended from (a) soliciting customers with whom they worked and (b) soliciting for hire any of their co-workers. (Id. ¶ 24) .4

The plaintiffs allege that NETech, aware of the employees’ contractual obligations to preserve and protect confidential and trade secret information and to refrain from soliciting customers and co-workers, induced them to breach their obligations as part of a systematic raid of CDW’s Indianapolis employees, to decimate CDW’s Indianapolis branch, and to obtain CDW’s customers for NETech. (See id. ¶¶ 11, 16, 26). These employees left CDW for NE-Tech’s Carmel office in March, April, and May 2010. (Id. ¶¶41, 42-49). Shortly before leaving CDW for NETech, some of the employees transferred CDW’s confidential and trade secret information to flash drives and personal email accounts with the intent — and with NETech’s encouragement — to share the information with NETech and use it to advance their new careers at NETech. (Id. ¶¶ 31-34). After beginning work for NETech, the former employees — with NETech’s knowledge, encouragement, and facilitation— used CDW’s confidential information and trade secrets to gain business for NETech, including through solicitation of their old CDW customers to give new business to NETech. (Id. ¶¶63-65).5 The plaintiffs also complain'that the employees and NE-Tech disparaged CDW and spread misinformation to the Indianapolis branch’s market of customers and to technology vendors such as Cisco. (Id. ¶ 68).

The plaintiffs seek relief against NE-Tech under the following legal theories: (1) tortious interference with the employees’ contractual obligations to maintain the confidentiality of confidential and trade secret information and to refrain from soliciting customers and co-workers (Count I)6; (2) tortious interference with CDW’s business relationships with its customers (Count II); (3) tortious interference with CDW’s employment relationships (Count III); (4) misappropriation of trade secrets (Count IV); (5) conspiracy with CDW’s employees to breach their fiduciary duties to CDW (Count V); and (6) unfair competition (Count VI).

Mr. Hosñeld’s Expert Opinions

Mark Hosfield has extensive experience as a financial consultant and currently concentrates his professional career as a con-[819]*819suiting and testifying expert for clients immersed in commercial disputes. (Dkt. 272-2, p. 25). He is a CPA and Certified Management Accountant, and has a master’s degree in management, finance, accounting, and operations management from Northwestern University’s Kellogg Graduate School of Management. (Id.). Mr. Hosfield began his career in the early 1980s as a vice president of finance and controller for a business. He then spent about 20 years, at a management or partner level, working for national accounting firms (Coopers & Lybrand LLP, Arthur Andersen LLP, and KPMG LLC) and focused his work on litigation and other dispute analysis services for clients. In 2003, he began his own financial consulting firm. (Id.)

Mr. Hosfield’s expert opinions are, assuming NETech is found liable to the plaintiffs:

la. CDW (presumably meaning the plaintiffs collectively) suffered lost profits because of NETech’s conduct of $4,960,859 through September 30, 2011;
lb. As an alternative measure of lost profits, NETech’s sales to customers of the recruited CDW employees account for lost profit damages of $2,217,473 through September 30, 2011.
lc. CDW suffered future lost profit damages, made up of lost profits through 2015 and some indefinitely, in the amount of $13,804,701 (discounted to September 30, 2011).
ld. As an alternative measure of future lost profits, NETech’s sales to customers of the recruited CDW employees account for future lost profit damages of $8,750,399.
2a. CDW incurred recruiting, training, and marketing expenses of $577,055 because of NETech’s actions.
2b. CDW expended management time valued at $278,054 to control the damage to the business caused by NETech’s actions.
2c. CDW paid increased compensation of $125,610 to certain individuals as a result of NETech’s actions.
3. CDW paid $178,687 in compensation and expense reimbursements to employees not faithfully working for CDW because of NETech’s actions.

(Dkt. 272-2 at p. 10).

NETech’s motion does not seek to exclude on Daubert grounds Mr. Hosfield’s expert opinions described above in 2a, 2b, 2c, or 3.

la. Lost profits through September 30, 2011

Mr. Hosfield’s lost profits calculation rests on his analysis of the decrease in Advanced Technology revenue at the Indianapolis branch from March 2010 through September 30, 2011, that he attributes to NETech’s conduct. Mr. Hos-field’s work first required identifying the Indianapolis’s branch’s historic Advanced Technology products and services revenue. As addressed in this entry, NETech attacks Mr. Hosfield’s reliance on AT revenue data supplied by CDW without “independent verification.”

Next, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
906 F. Supp. 2d 815, 2012 WL 4481680, 2012 U.S. Dist. LEXIS 140340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cdw-llc-cdw-direct-llc-v-netech-corp-insd-2012.