UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LONA FOWDUR, Plaintiff, v. Civil Action No. 23-3380 (JDB) SECRETARIAT ADVISORS, LLC et al., Defendants.
MEMORANDUM OPINION & ORDER
Plaintiff Lona Fowdur left her job at Secretariat Advisors LLC (“Secretariat”) 1 in May
2023 for a new opportunity at a competitor. In the present suit, she alleges that Secretariat and its
senior leadership subsequently withheld upwards of $640,000 in wages due to her, in violation of
the D.C. Wage Payment and Collection Law, D.C. Code § 32-1301 et seq., and various common-
law doctrines. Secretariat counterclaimed, alleging that Fowdur breached a fiduciary duty to the
company by soliciting another employee to depart with her. Before the Court is Fowdur’s motion
to dismiss this counterclaim. For the following reasons, the Court will grant the motion.
Background
Fowdur was employed by Secretariat, an expert services and litigation consulting firm, and
a predecessor entity from June 2009 to May 2023. Compl. [ECF No. 1] ¶¶ 12, 53. 2 She did not
have a “formal” written employment contract with either entity; rather, the terms of her
1 Defendants contend that Secretariat Advisors LLC is an improper defendant because Fowdur “was never in fact an employee of Secretariat Advisors, LLC”—presumably the parent entity—“but actually only a Principal of Economists Incorporated . . . and a Managing Director of Secretariat Economists, LLC.” Answer, Aff. Defenses, & Countercl. [ECF No. 8] at 1. Fowdur has indicated that she will amend her complaint to address this issue, see Joint Loc. Rule 16.3 Rep. [ECF No. 13] at 2, but has not yet done so. “Secretariat,” as used in this opinion, should be broadly understood to refer to Fowdur’s former employer. 2 While the Court’s analysis turns on the facts alleged in Secretariat’s counterclaim, the Court will briefly recount Fowdur’s underlying allegations for context.
1 employment were established through a series of email exchanges. See id. ¶¶ 13, 17–22, 28–33,
40, 51. Fowdur was paid quarterly in an amount contingent on the revenue brought in by cases
she led during the previous quarter. See, e.g., id. ¶¶ 17, 22, 62, 64.
Fowdur voluntarily resigned from Secretariat on May 17, 2023 for a new opportunity at
Compass Lexecon, a competitor. Id. ¶¶ 53–54; see Answer, Aff. Defenses, & Countercl. [ECF
No. 8] (“Countercl.”) at 19. Her final day at Secretariat was May 31, 2023. Compl. ¶ 53.
Secretariat allegedly owed her more than $640,000 based on the revenue she brought in between
January 1, 2023 and her departure date. Id. ¶¶ 62, 64. But Secretariat refused to pay, claiming
that Fowdur forfeited any entitlement to payments for the first two quarters of 2023 by departing
the company before these payments were made. Id. ¶ 68.
Fowdur filed the present suit in November 2023, invoking diversity jurisdiction and
naming as defendants Secretariat and Secretariat’s CEO and CFO. Id. ¶¶ 4, 8–10. Her complaint
asserts four counts: withholding of wages in violation of the D.C. Wage Payment and Collection
Law, breach of contract, unjust enrichment, and promissory estoppel. Id. ¶¶ 75–107. Defendants
answered Fowdur’s complaint and Secretariat (but not its executives) asserted a counterclaim for
breach of fiduciary duty. See Countercl. at 19–20. The counterclaim states as follows:
1. Counterclaim Defendant Lona Fowdur owed her employer a fiduciary duty of undivided and unselfish loyalty during her employment.
2. Counterclaim Defendant solicited the departure of her subordinate, Cagatay Koc, to breach his employment contract, to terminate his employment and to join Counterclaim Defendant as an employee of a competing organization, Compass Lexecon.
3. As a managerial employee, Counterclaim Defendant breached her fiduciary duty of undivided and unselfish loyalty during her employment.
4. Counterclaim Defendant’s breach of her duty of loyalty caused loss of revenue, loss of available expertise and talent, loss of support for services to clients and loss of the opportunity to hire and train a replacement for Cagatay Koc.
2 5. Counterclaim Plaintiff has suffered damages as a result of Counterclaim Defendant’s breach of her fiduciary duty of loyalty.
Id.
Fowdur moved to dismiss the counterclaim. See Mot. to Dismiss Countercl. [ECF No. 9]
(“Mot.”). She contends that the counterclaim fails to state a claim both because it falls short of the
plausibility pleading standard and because alleged solicitation of a single employee is not enough
to make out a claim for breach of fiduciary duty. See id. at 7–14. Secretariat opposed Fowdur’s
motion, see Opp’n to Mot. [ECF No. 10] (“Opp’n”), and Fowdur filed a reply, see Reply [ECF
No. 11]. The motion is thus fully briefed and ripe for decision.
Legal Standard
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts do not
credit a complaint’s legal conclusions: “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. And a complaint must go beyond
alleging facts that are “‘merely consistent with’ a defendant’s liability,” id. (quoting Twombly,
550 U.S. at 557), as such allegations fail to “nudge[]” a claim “across the line from conceivable to
plausible,” id. at 680 (quoting Twombly, 550 U.S. at 570). These same standards govern a
plaintiff’s motion to dismiss a defendant’s counterclaim. See Inova Health Care Servs. v. Omni
Shoreham Corp., Civ. A. No. 20-784 (JDB), 2022 WL 8176488, at *2 (D.D.C. Mar. 22, 2022).
3 Analysis
An employee, as an agent of her current employer, generally has a duty to refrain from
competing with that employer. See Restatement (Third) Of Agency (“Restatement”) § 8.04
(2006); Hedgeye Risk Mgmt., LLC v. Heldman, 412 F. Supp. 3d 15, 24 (D.D.C. 2019); Maryland
Metals, Inc. v. Metzner, 382 A.2d 564, 568 (Md. 1978). 3 She may, however, compete with an
employer after departing absent an enforceable restrictive covenant. See U.S. Travel Agency, Inc.
v. World-Wide Travel Serv. Corp., 235 A.2d 788, 789 (D.C. 1967). She may also “take action,
not otherwise wrongful, to prepare for competition” even while still employed. Restatement
§ 8.04. Whether a soon-to-depart employee’s actions constitute lawful preparation to compete as
opposed to unlawful competition is a context-specific inquiry that depends on a “thoroughgoing
examination of the facts and circumstances of the particular case.” Maryland Metals, 382 A.2d at
570; see Restatement § 8.04 cmt. c. A number of courts have concluded, however, that “in
preparing to compete, an employee may not commit wrongful acts, such as misuse of confidential
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LONA FOWDUR, Plaintiff, v. Civil Action No. 23-3380 (JDB) SECRETARIAT ADVISORS, LLC et al., Defendants.
MEMORANDUM OPINION & ORDER
Plaintiff Lona Fowdur left her job at Secretariat Advisors LLC (“Secretariat”) 1 in May
2023 for a new opportunity at a competitor. In the present suit, she alleges that Secretariat and its
senior leadership subsequently withheld upwards of $640,000 in wages due to her, in violation of
the D.C. Wage Payment and Collection Law, D.C. Code § 32-1301 et seq., and various common-
law doctrines. Secretariat counterclaimed, alleging that Fowdur breached a fiduciary duty to the
company by soliciting another employee to depart with her. Before the Court is Fowdur’s motion
to dismiss this counterclaim. For the following reasons, the Court will grant the motion.
Background
Fowdur was employed by Secretariat, an expert services and litigation consulting firm, and
a predecessor entity from June 2009 to May 2023. Compl. [ECF No. 1] ¶¶ 12, 53. 2 She did not
have a “formal” written employment contract with either entity; rather, the terms of her
1 Defendants contend that Secretariat Advisors LLC is an improper defendant because Fowdur “was never in fact an employee of Secretariat Advisors, LLC”—presumably the parent entity—“but actually only a Principal of Economists Incorporated . . . and a Managing Director of Secretariat Economists, LLC.” Answer, Aff. Defenses, & Countercl. [ECF No. 8] at 1. Fowdur has indicated that she will amend her complaint to address this issue, see Joint Loc. Rule 16.3 Rep. [ECF No. 13] at 2, but has not yet done so. “Secretariat,” as used in this opinion, should be broadly understood to refer to Fowdur’s former employer. 2 While the Court’s analysis turns on the facts alleged in Secretariat’s counterclaim, the Court will briefly recount Fowdur’s underlying allegations for context.
1 employment were established through a series of email exchanges. See id. ¶¶ 13, 17–22, 28–33,
40, 51. Fowdur was paid quarterly in an amount contingent on the revenue brought in by cases
she led during the previous quarter. See, e.g., id. ¶¶ 17, 22, 62, 64.
Fowdur voluntarily resigned from Secretariat on May 17, 2023 for a new opportunity at
Compass Lexecon, a competitor. Id. ¶¶ 53–54; see Answer, Aff. Defenses, & Countercl. [ECF
No. 8] (“Countercl.”) at 19. Her final day at Secretariat was May 31, 2023. Compl. ¶ 53.
Secretariat allegedly owed her more than $640,000 based on the revenue she brought in between
January 1, 2023 and her departure date. Id. ¶¶ 62, 64. But Secretariat refused to pay, claiming
that Fowdur forfeited any entitlement to payments for the first two quarters of 2023 by departing
the company before these payments were made. Id. ¶ 68.
Fowdur filed the present suit in November 2023, invoking diversity jurisdiction and
naming as defendants Secretariat and Secretariat’s CEO and CFO. Id. ¶¶ 4, 8–10. Her complaint
asserts four counts: withholding of wages in violation of the D.C. Wage Payment and Collection
Law, breach of contract, unjust enrichment, and promissory estoppel. Id. ¶¶ 75–107. Defendants
answered Fowdur’s complaint and Secretariat (but not its executives) asserted a counterclaim for
breach of fiduciary duty. See Countercl. at 19–20. The counterclaim states as follows:
1. Counterclaim Defendant Lona Fowdur owed her employer a fiduciary duty of undivided and unselfish loyalty during her employment.
2. Counterclaim Defendant solicited the departure of her subordinate, Cagatay Koc, to breach his employment contract, to terminate his employment and to join Counterclaim Defendant as an employee of a competing organization, Compass Lexecon.
3. As a managerial employee, Counterclaim Defendant breached her fiduciary duty of undivided and unselfish loyalty during her employment.
4. Counterclaim Defendant’s breach of her duty of loyalty caused loss of revenue, loss of available expertise and talent, loss of support for services to clients and loss of the opportunity to hire and train a replacement for Cagatay Koc.
2 5. Counterclaim Plaintiff has suffered damages as a result of Counterclaim Defendant’s breach of her fiduciary duty of loyalty.
Id.
Fowdur moved to dismiss the counterclaim. See Mot. to Dismiss Countercl. [ECF No. 9]
(“Mot.”). She contends that the counterclaim fails to state a claim both because it falls short of the
plausibility pleading standard and because alleged solicitation of a single employee is not enough
to make out a claim for breach of fiduciary duty. See id. at 7–14. Secretariat opposed Fowdur’s
motion, see Opp’n to Mot. [ECF No. 10] (“Opp’n”), and Fowdur filed a reply, see Reply [ECF
No. 11]. The motion is thus fully briefed and ripe for decision.
Legal Standard
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Courts do not
credit a complaint’s legal conclusions: “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. And a complaint must go beyond
alleging facts that are “‘merely consistent with’ a defendant’s liability,” id. (quoting Twombly,
550 U.S. at 557), as such allegations fail to “nudge[]” a claim “across the line from conceivable to
plausible,” id. at 680 (quoting Twombly, 550 U.S. at 570). These same standards govern a
plaintiff’s motion to dismiss a defendant’s counterclaim. See Inova Health Care Servs. v. Omni
Shoreham Corp., Civ. A. No. 20-784 (JDB), 2022 WL 8176488, at *2 (D.D.C. Mar. 22, 2022).
3 Analysis
An employee, as an agent of her current employer, generally has a duty to refrain from
competing with that employer. See Restatement (Third) Of Agency (“Restatement”) § 8.04
(2006); Hedgeye Risk Mgmt., LLC v. Heldman, 412 F. Supp. 3d 15, 24 (D.D.C. 2019); Maryland
Metals, Inc. v. Metzner, 382 A.2d 564, 568 (Md. 1978). 3 She may, however, compete with an
employer after departing absent an enforceable restrictive covenant. See U.S. Travel Agency, Inc.
v. World-Wide Travel Serv. Corp., 235 A.2d 788, 789 (D.C. 1967). She may also “take action,
not otherwise wrongful, to prepare for competition” even while still employed. Restatement
§ 8.04. Whether a soon-to-depart employee’s actions constitute lawful preparation to compete as
opposed to unlawful competition is a context-specific inquiry that depends on a “thoroughgoing
examination of the facts and circumstances of the particular case.” Maryland Metals, 382 A.2d at
570; see Restatement § 8.04 cmt. c. A number of courts have concluded, however, that “in
preparing to compete, an employee may not commit wrongful acts, such as misuse of confidential
information, solicitation of the firm’s customers, or solicitation leading to a mass resignation of
the firm’s employees.” Hedgeye, 412 F. Supp. 3d at 24 (cleaned up); accord Maryland Metals,
382 A.2d at 569–70.
Here, Secretariat generally alleges that Fowdur breached a fiduciary duty to the company
by soliciting Cagatay Koc “to breach his employment contract, to terminate his employment and
to join” Fowdur at a competitor, leading to various damages. Countercl. at 19; see Caesar v.
Westchester Corp., 280 A.3d 176, 186 (D.C. 2022) (“A [party] alleging a breach of fiduciary duty
3 Because Fowdur worked at Secretariat’s D.C. office and there is no allegation that her employment contract contained a choice-of-law provision, the Court will assume that D.C. law governs Secretariat’s counterclaim. See Hedgeye, 412 F. Supp. 3d at 23 n.2. However, D.C. case law regarding the fiduciary duties of soon-to-depart employees is sparse, so courts in this District look to general common-law principles. See, e.g., id. at 24. The common law of Maryland is particularly instructive, as D.C. courts often look to Maryland “when [D.C.] precedent is not dispositive.” Newby v. United States, 797 A.2d 1233, 1242 & n.13 (D.C. 2002).
4 must show: (1) the existence of a fiduciary relationship . . . ; (2) breach of a duty imposed by that
fiduciary relationship; and (3) an injury caused by such breach.”). Fowdur argues that this
counterclaim must be dismissed because it fails to plead sufficient factual content to state a
plausible claim and because solicitation of a single employee is an insufficient basis on which to
ground a breach of fiduciary duty claim. See Mot. at 7–14.
The Court agrees that Secretariat’s counterclaim falls well short of plausibly alleging a
breach of fiduciary duty. Most of the counterclaim consists of precisely the sort of “[t]hreadbare
recitals of the elements of a cause of action” and “conclusory statements” disapproved of by
Twombly and Iqbal. See Iqbal, 556 U.S. at 678. And the factual nucleus that remains—that
Fowdur solicited the departure of a subordinate named Cagatay Koc to join her at a competitor—
is far too general to nudge Secretariat’s counterclaim “across the line from conceivable to
plausible.” Id. at 680 (quoting Twombly, 550 U.S. at 570). For example, Secretariat does not
allege (even on information or belief) when this solicitation occurred, Koc’s role at Secretariat, the
nature of the solicitation, how his departure breached his employment contract, or any factual
details regarding the impact of his departure on Secretariat.
Secretariat broadly contends that “notice pleading is still all that is required” and that
Fowdur is inappropriately attempting to “‘litigate’ the matter” in her briefing. Opp’n at 4–5. But
after Twombly and Iqbal, counterclaimants are required to plead sufficient factual content to state
a plausible claim, and counterclaim-defendants are entitled to challenge whether such well-pleaded
factual allegations state a claim as a matter of law. On Secretariat’s logic, a party could always
safeguard against a motion to dismiss simply by couching its allegations at a high level of
generality. That is not the law. Accordingly, the Court will dismiss Secretariat’s counterclaim for
failure to state a plausible claim. See Iqbal, 556 U.S. at 678.
5 Fowdur maintains that this dismissal should be with prejudice. Mot. at 15. In her view,
solicitation of a single employee is per se insufficient to make out a claim for breach of fiduciary
duty. See id. 11–14. She points to cases in this District stating that “in preparing to compete, an
employee may not [engage in] . . . solicitation leading to a mass resignation of the firm’s
employees.” Hedgeye, 412 F. Supp. 3d at 24 (emphasis added); see also, e.g., Phillips v. Mabus,
894 F. Supp. 2d 71, 93 (D.D.C. 2012); PM Servs. Co. v. Odoi Assocs., Inc., Civ. A. No. 3-1810
(CKK), 2006 WL 20382, at *28 (D.D.C. Jan. 4, 2006); Furash & Co. v. McClave, 130 F. Supp. 2d
48, 53 (D.D.C. 2001); Mercer Mgmt. Consulting, Inc. v. Wilde, 920 F. Supp. 219, 234 (D.D.C.
1996). Fowdur reasons that, by negative implication, solicitation of a single employee cannot
serve as the basis for a breach of fiduciary duty claim. See Mot. at 12–13. Secretariat does not
respond to this argument.
In the absence of developed briefing, the Court declines to hold as a matter of law that
solicitation of a single employee can never support a claim for breach of fiduciary duty. After all,
inquiries in this area are highly fact dependent. See Maryland Metals, 382 A.2d at 570. It is for
Secretariat in the first instance—not the Court—to assess the factual content it could potentially
allege and to determine whether such facts are sufficient to state a claim or whether advancing an
amended counterclaim would be futile. Hence, because there is at least a possibility that
Secretariat may be able to plead facts sufficient to withstand a motion to dismiss, the Court will
dismiss Secretariat’s counterclaim without prejudice. See Hedgeye Risk Mgmt., LLC v. Heldman,
196 F. Supp. 3d 40, 53 (D.D.C. 2016).
6 Conclusion
For the foregoing reasons, and upon consideration of the entire record herein, it is hereby
ORDERED that [9] plaintiff’s motion to dismiss defendants’ counterclaim is GRANTED;
and it is further
ORDERED that defendants’ counterclaim is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
/s/ JOHN D. BATES United States District Judge Dated: May 13, 2024