Legal Technology Group, Inc. v. Mukerji
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LEGAL TECHNOLOGY GROUP, INC., ) d/b/a ESENTIO TECHNOLOGIES, ) ) Plaintiff, ) ) v. ) ) RAJIV MUKERJI and HBR ) CONSULTING LLC, ) ) Defendants. ) ) Civil Action No. 17-631 (RBW) ) RAJIV MUKERJI, ) UNDER SEAL ) Counter-Plaintiff, ) ) v. ) ) LEGAL TECHNOLOGY GROUP, INC., ) d/b/a ESENTIO TECHNOLOGIES, ) ) Counter-Defendant. ) )
MEMORANDUM OPINION
The plaintiff, Legal Technology Group, Inc., doing business as eSentio Technologies
(“eSentio”), filed this civil action against its former employee, Rajiv Mukerji, and Mukerji’s
current employer, HBR Consulting LLC (“HBR”), alleging breach of contract against Mukerji
(Count I), tortious interference with contract against HBR (Count II), and tortious interference
with prospective economic advantage against both defendants (Count III). See generally
Complaint (“Compl.”). Currently pending before the Court are the parties’ cross-motions for
summary judgment. See Plaintiff Legal Technology Group, Inc.’s Motion for Summary
Judgment as to Liability and as to Defendant Rajiv Mukerji’s Counterclaim (“eSentio’s Mot.”);
1 Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Mot.”); Defendant
Rajiv Mukerji’s Motion for Summary Judgment on Counts I and III of Plaintiff Legal
Technology Group[,] [Inc.]’s Complaint (“Mukerji’s Mot.”). Upon careful consideration of the
parties’ submissions, 1 the Court concludes that it must grant in part and deny in part the
plaintiff’s motion and deny the defendants’ motions.
I. BACKGROUND
“eSentio . . . provides business and technology consulting and implementing services to
the world’s largest law firms and corporate legal departments,” eSentio’s Facts ¶ 1; see HBR’s
Reply to eSentio’s Facts ¶ 1, and “eSentio and HBR are competitors in the document[]
management space,” HBR’s Reply to eSentio’s Facts ¶ 20; see eSentio’s Facts ¶ 20 (“eSentio
and HBR are competitors”). Mukerji is a former employee of eSentio and a current employee of
1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum of Points and Authorities in Support of Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Mem.”); (2) the Statement of Undisputed Material Facts in Support of Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Facts”); (3) Plaintiff Legal Technology Group, Inc.’s Memorandum in Support of Its Motion for Summary Judgment as to Liability and as to Defendant Rajiv Mukerji’s Counterclaim (“eSentio’s Mem.”); (4) the Plaintiff’s Statement of Undisputed Facts (“eSentio’s Facts”); (5) Defendant Rajiv Mukerji’s Memorandum in Support of His Motion for Summary Judgment on Counts I and III of Plaintiff Legal Technology Group[,] [Inc.]’s Complaint (“Mukerji’s Mem.”); (6) Affidavit of Rajiv Mukerji (“Mukerji Aff.”); (7) Defendant HBR Consulting LLC’s Memorandum in Opposition to Plaintiff Legal Technology Group, Inc.’s Motion for Summary Judgment as to Liability (“HBR’s Opp’n”); (8) Defendant HBR Consulting LLC’s Response to Plaintiff’s Statement of Undisputed Facts (“HBR’s Reply to eSentio’s Facts”); (9) Plaintiff Legal Technology Group, Inc.’s Opposition to Defendant HBR Consulting LLC’s Motion for Summary Judgment (“eSentio’s Opp’n to HBR’s Mot.”); (10) Plaintiff Legal Technology Group, Inc.’s Opposition to Defendant Rajiv Mukerji’s Motion for Summary Judgment (“eSentio’s Opp’n to Mukerji’s Mot.”); (11) Defendant Rajiv Mukerji’s Opposition to Legal Technology Group, Inc.’s Motion for Summary Judgment as to Liability on It[s] Claims Against Him and as to His Counterclaim for Breach of LTG’s Promise to Pay an Annual Bonus (“Mukerji’s Opp’n”); (12) Defendant and Counterclaim Plaintiff Rajiv Mukerji’s Response to Legal Technology Group, Inc.’s Proffered Statement of Undisputed Facts (“Mukerji’s Reply to eSentio’s Facts”); (13) Plaintiff Legal Technology Group, Inc.’s Reformatted Response to the Statement of Facts Offered in Support of Defendant HBR Consulting’s Motion for Summary Judgment (“eSentio’s Reply to HBR’s Facts”); (14) Plaintiff Legal Technology Group, Inc.’s Reformatted Response to the Statement of Facts Offered in Support of Defendant Rajiv Mukerji’s Motion for Summary Judgment (“eSentio’s Reply to Mukerji’s Facts”); (15) Defendant HBR Consulting LLC’s Reply in Further Support of Its Motion for Summary Judgment (“HBR’s Reply”); (16) Plaintiff Legal Technology Group, Inc.’s Reply Brief in Support of Motion for Summary Judgment (“eSentio’s Reply”); and (17) Defendant Rajiv Mukerji’s Reply to LTG’s Opposition to Mr. Mukerji’s Memorandum in Support of His Motion for Summary Judgment (“Mukerji’s Reply”).
2 HBR. See eSentio’s Facts ¶ 17; HBR’s Reply to eSentio’s Facts ¶ 17; Mukerji’s Reply to
eSentio’s Facts ¶ 17.
“Mukerji began his employment with eSentio on or about August 15, 2011.” eSentio’s
Facts ¶ 12; see HBR’s Reply to eSentio’s Facts ¶ 12; Mukerji’s Reply to eSentio’s Facts ¶ 12.
At eSentio, Mukerji “served as the Director of eSentio’s Document Management System
(‘DMS’) practice,” eSentio’s Facts ¶ 13; see HBR’s Reply to eSentio’s Facts ¶ 13; Mukerji’s
Reply to eSentio’s Facts ¶ 13, and he became “one of [eSentio’s] leading NetDocuments
consultants for large firms,” eSentio’s Facts ¶ 16; see HBR’s Reply to eSentio’s Facts ¶ 16;
Mukerji’s Reply to eSentio’s Facts ¶ 16. 2 “In connection with [h]is hiring by eSentio in 2011,
Mukerji executed an offer letter dated July 18, 2011 (the ‘Offer Letter’).” eSentio’s Facts ¶ 88;
see Mukerji’s Reply to eSentio’s Facts ¶ 88. Among other provisions, the Offer Letter contains a
provision regarding Mukerji’s compensation, which provides, inter alia, that Mukerji would “be
eligible for an annual performance bonus based on the pre-defined performance objectives in the
amount of [$]20,000.00 prorated from [his] start date” (the “Bonus Provision”). eSentio’s Mot.,
Exhibit (“Ex.”) 14 (Offer Letter) at LTG – 1.
“[A]s a condition of his employment, [eSentio required Mukerji] to execute eSentio’s
Employment Agreement on Ideas, Inventions[,] and Confidential Information (the
‘[Employment] Agreement’)[,]” which Mukerji “signed . . . on July 20, 2011.” eSentio’s Facts
¶ 21; see HBR’s Reply to eSentio’s Facts ¶ 21; Mukerji’s Reply to eSentio’s Facts ¶ 21.
Relevant here, the Agreement includes a “Non-Competition” provision (the “restrictive
covenant”), which provides:
I hereby covenant and agree that at no time during my employment with [eSentio] and for a period of one year immediately following the termination of my
2 According to eSentio, NetDocuments is “a cloud-based document and e[-]mail management platform.” eSentio’s Facts ¶ 3.
3 employment . . . with [eSentio], will I act in any way, directly or indirectly, to solicit, divert or takeaway any client of [eSentio] or prospect that I have been involved in pursuing business with during the six months prior to the termination of my employment with the company. I understand that this “non-compete” is intended to include accepting employment with a client of [eSentio] for the period and involvement stated above. An eSentio client is defined as a firm that eSentio has sold product [to] or performed services for in the previous two years from date of termination of employment.
eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8; see eSentio’s Facts ¶ 23; HBR’s Reply
to eSentio’s Facts ¶ 23; Mukerji’s Reply to eSentio’s Facts ¶ 23.
On June 20, 2016, “Mukerji accepted [an] offer [of employment] with HBR . . . and gave
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LEGAL TECHNOLOGY GROUP, INC., ) d/b/a ESENTIO TECHNOLOGIES, ) ) Plaintiff, ) ) v. ) ) RAJIV MUKERJI and HBR ) CONSULTING LLC, ) ) Defendants. ) ) Civil Action No. 17-631 (RBW) ) RAJIV MUKERJI, ) UNDER SEAL ) Counter-Plaintiff, ) ) v. ) ) LEGAL TECHNOLOGY GROUP, INC., ) d/b/a ESENTIO TECHNOLOGIES, ) ) Counter-Defendant. ) )
MEMORANDUM OPINION
The plaintiff, Legal Technology Group, Inc., doing business as eSentio Technologies
(“eSentio”), filed this civil action against its former employee, Rajiv Mukerji, and Mukerji’s
current employer, HBR Consulting LLC (“HBR”), alleging breach of contract against Mukerji
(Count I), tortious interference with contract against HBR (Count II), and tortious interference
with prospective economic advantage against both defendants (Count III). See generally
Complaint (“Compl.”). Currently pending before the Court are the parties’ cross-motions for
summary judgment. See Plaintiff Legal Technology Group, Inc.’s Motion for Summary
Judgment as to Liability and as to Defendant Rajiv Mukerji’s Counterclaim (“eSentio’s Mot.”);
1 Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Mot.”); Defendant
Rajiv Mukerji’s Motion for Summary Judgment on Counts I and III of Plaintiff Legal
Technology Group[,] [Inc.]’s Complaint (“Mukerji’s Mot.”). Upon careful consideration of the
parties’ submissions, 1 the Court concludes that it must grant in part and deny in part the
plaintiff’s motion and deny the defendants’ motions.
I. BACKGROUND
“eSentio . . . provides business and technology consulting and implementing services to
the world’s largest law firms and corporate legal departments,” eSentio’s Facts ¶ 1; see HBR’s
Reply to eSentio’s Facts ¶ 1, and “eSentio and HBR are competitors in the document[]
management space,” HBR’s Reply to eSentio’s Facts ¶ 20; see eSentio’s Facts ¶ 20 (“eSentio
and HBR are competitors”). Mukerji is a former employee of eSentio and a current employee of
1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum of Points and Authorities in Support of Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Mem.”); (2) the Statement of Undisputed Material Facts in Support of Defendant HBR Consulting LLC’s Motion for Summary Judgment (“HBR’s Facts”); (3) Plaintiff Legal Technology Group, Inc.’s Memorandum in Support of Its Motion for Summary Judgment as to Liability and as to Defendant Rajiv Mukerji’s Counterclaim (“eSentio’s Mem.”); (4) the Plaintiff’s Statement of Undisputed Facts (“eSentio’s Facts”); (5) Defendant Rajiv Mukerji’s Memorandum in Support of His Motion for Summary Judgment on Counts I and III of Plaintiff Legal Technology Group[,] [Inc.]’s Complaint (“Mukerji’s Mem.”); (6) Affidavit of Rajiv Mukerji (“Mukerji Aff.”); (7) Defendant HBR Consulting LLC’s Memorandum in Opposition to Plaintiff Legal Technology Group, Inc.’s Motion for Summary Judgment as to Liability (“HBR’s Opp’n”); (8) Defendant HBR Consulting LLC’s Response to Plaintiff’s Statement of Undisputed Facts (“HBR’s Reply to eSentio’s Facts”); (9) Plaintiff Legal Technology Group, Inc.’s Opposition to Defendant HBR Consulting LLC’s Motion for Summary Judgment (“eSentio’s Opp’n to HBR’s Mot.”); (10) Plaintiff Legal Technology Group, Inc.’s Opposition to Defendant Rajiv Mukerji’s Motion for Summary Judgment (“eSentio’s Opp’n to Mukerji’s Mot.”); (11) Defendant Rajiv Mukerji’s Opposition to Legal Technology Group, Inc.’s Motion for Summary Judgment as to Liability on It[s] Claims Against Him and as to His Counterclaim for Breach of LTG’s Promise to Pay an Annual Bonus (“Mukerji’s Opp’n”); (12) Defendant and Counterclaim Plaintiff Rajiv Mukerji’s Response to Legal Technology Group, Inc.’s Proffered Statement of Undisputed Facts (“Mukerji’s Reply to eSentio’s Facts”); (13) Plaintiff Legal Technology Group, Inc.’s Reformatted Response to the Statement of Facts Offered in Support of Defendant HBR Consulting’s Motion for Summary Judgment (“eSentio’s Reply to HBR’s Facts”); (14) Plaintiff Legal Technology Group, Inc.’s Reformatted Response to the Statement of Facts Offered in Support of Defendant Rajiv Mukerji’s Motion for Summary Judgment (“eSentio’s Reply to Mukerji’s Facts”); (15) Defendant HBR Consulting LLC’s Reply in Further Support of Its Motion for Summary Judgment (“HBR’s Reply”); (16) Plaintiff Legal Technology Group, Inc.’s Reply Brief in Support of Motion for Summary Judgment (“eSentio’s Reply”); and (17) Defendant Rajiv Mukerji’s Reply to LTG’s Opposition to Mr. Mukerji’s Memorandum in Support of His Motion for Summary Judgment (“Mukerji’s Reply”).
2 HBR. See eSentio’s Facts ¶ 17; HBR’s Reply to eSentio’s Facts ¶ 17; Mukerji’s Reply to
eSentio’s Facts ¶ 17.
“Mukerji began his employment with eSentio on or about August 15, 2011.” eSentio’s
Facts ¶ 12; see HBR’s Reply to eSentio’s Facts ¶ 12; Mukerji’s Reply to eSentio’s Facts ¶ 12.
At eSentio, Mukerji “served as the Director of eSentio’s Document Management System
(‘DMS’) practice,” eSentio’s Facts ¶ 13; see HBR’s Reply to eSentio’s Facts ¶ 13; Mukerji’s
Reply to eSentio’s Facts ¶ 13, and he became “one of [eSentio’s] leading NetDocuments
consultants for large firms,” eSentio’s Facts ¶ 16; see HBR’s Reply to eSentio’s Facts ¶ 16;
Mukerji’s Reply to eSentio’s Facts ¶ 16. 2 “In connection with [h]is hiring by eSentio in 2011,
Mukerji executed an offer letter dated July 18, 2011 (the ‘Offer Letter’).” eSentio’s Facts ¶ 88;
see Mukerji’s Reply to eSentio’s Facts ¶ 88. Among other provisions, the Offer Letter contains a
provision regarding Mukerji’s compensation, which provides, inter alia, that Mukerji would “be
eligible for an annual performance bonus based on the pre-defined performance objectives in the
amount of [$]20,000.00 prorated from [his] start date” (the “Bonus Provision”). eSentio’s Mot.,
Exhibit (“Ex.”) 14 (Offer Letter) at LTG – 1.
“[A]s a condition of his employment, [eSentio required Mukerji] to execute eSentio’s
Employment Agreement on Ideas, Inventions[,] and Confidential Information (the
‘[Employment] Agreement’)[,]” which Mukerji “signed . . . on July 20, 2011.” eSentio’s Facts
¶ 21; see HBR’s Reply to eSentio’s Facts ¶ 21; Mukerji’s Reply to eSentio’s Facts ¶ 21.
Relevant here, the Agreement includes a “Non-Competition” provision (the “restrictive
covenant”), which provides:
I hereby covenant and agree that at no time during my employment with [eSentio] and for a period of one year immediately following the termination of my
2 According to eSentio, NetDocuments is “a cloud-based document and e[-]mail management platform.” eSentio’s Facts ¶ 3.
3 employment . . . with [eSentio], will I act in any way, directly or indirectly, to solicit, divert or takeaway any client of [eSentio] or prospect that I have been involved in pursuing business with during the six months prior to the termination of my employment with the company. I understand that this “non-compete” is intended to include accepting employment with a client of [eSentio] for the period and involvement stated above. An eSentio client is defined as a firm that eSentio has sold product [to] or performed services for in the previous two years from date of termination of employment.
eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8; see eSentio’s Facts ¶ 23; HBR’s Reply
to eSentio’s Facts ¶ 23; Mukerji’s Reply to eSentio’s Facts ¶ 23.
On June 20, 2016, “Mukerji accepted [an] offer [of employment] with HBR . . . and gave
notice to eSentio the same day.” eSentio’s Facts ¶ 17; see HBR’s Reply to eSentio’s Facts ¶ 17;
Mukerji’s Reply to eSentio’s Facts ¶ 17. “Mukerji’s final day of active employment with
eSentio was July 15, 2016.” eSentio’s Facts ¶ 17; see HBR’s Reply to eSentio’s Facts ¶ 17;
Mukerji’s Reply to eSentio’s Facts ¶ 17.
A. The Akin Gump LLP (“Akin”) Projects
“Beginning in late 2015, the [Chief Information Officer] of Akin, Mike Lucas, and
[eSentio’s President, Yvonne] Dornic[,] began discussing the possibility of Akin moving to the
NetDocuments platform.” eSentio’s Facts ¶ 27; see HBR’s Reply to eSentio’s Facts ¶ 27;
Mukerji’s Reply to eSentio’s Facts ¶ 27. “Dornic provided [ ] Lucas information and advice
about NetDocuments[] and informally consulted with him throughout the spring and summer of
2016, explaining eSentio’s expertise and educating [ ] Lucas on various aspects of the platform.”
eSentio’s Facts ¶ 27; see HBR’s Reply to eSentio’s Facts ¶ 27; Mukerji’s Reply to eSentio’s
Facts ¶ 27. “Dornic expected Akin would likely be transitioning to NetDocuments relatively
soon and that eSentio would almost certainly be selected to provide assistance in the
conversion.” eSentio’s Facts ¶ 27; see HBR’s Reply to eSentio’s Facts ¶ 27; Mukerji’s Reply to
eSentio’s Facts ¶ 27.
4 “In the fall of 2016, Akin [ ] committed to transitioning to NetDocuments, and it sought
proposals from vendors to assist in a NetDocuments Conversion Project, as well as a related
Information Governance Project” (collectively, the “Akin Project”). eSentio’s Facts ¶ 28; see
HBR’s Reply to eSentio’s Facts ¶ 28; Mukerji’s Reply to eSentio’s Facts ¶ 28. The
NetDocuments Conversion Project “would [involve] a large-scale, firm-wide migration of
Akin’s document management system from iManage to NetDocuments.” eSentio’s Facts ¶ 29;
see HBR’s Reply to eSentio’s Facts ¶ 29; Mukerji’s Reply to eSentio’s Facts ¶ 29. “Akin[’s]
project team was made up of [TJ] Whelan, Brian Cooke, . . . and Juanita Bright[.]” HBR’s Facts
¶ 26; see eSentio’s Reply to HBR’s Facts ¶ 26.
“On November 1, 2016, [ ] Whelan reached out to Senthil Rajakrishnan, a Senior
Director at HBR, to inquire about HBR’s information governance capabilities.” HBR’s Facts
¶ 43; see eSentio’s Reply to HBR’s Facts ¶ 43. “In response to [ ] Whelan’s inquiry, on
November 23, 2016, [ ] Rajakrishnan, Ray Fashola, . . . and [ ] Mukerji participated in a phone
call with the Akin [ ] [P]roject team to discuss information governance.” HBR’s Facts ¶ 44
(internal citation omitted); see eSentio’s Reply to HBR’s Facts ¶ 44.
As to the NetDocuments Conversion Project, “Akin [ ] initially identified Fireman &
Company, eSentio, and Kraft and Kennedy as potential partners for the [ ] [P]roject.” HBR’s
Facts ¶ 27; see eSentio’s Reply to HBR’s Facts ¶ 27. However, “[a]t some point prior to
[Whelan’s] November 23, 2016 conference call with [HBR] . . . , [ ] Whelan learned that [ ]
Mukerji had NetDocuments conversion experience and . . . had left eSentio,” HBR’s Facts ¶ 46;
see eSentio’s Reply to HBR’s Facts ¶ 46, and “that [ ] Mukerji was one of the most experienced
people with [ ] NetDoc[uments] conversions,” HBR’s Facts ¶ 47; see eSentio’s Reply to HBR’s
Facts ¶ 47. “Upon learning that [ ] Mukerji was [ ] with HBR, [ ] Whelan initiated discussions
5 with HBR about Akin[’s] NetDocuments [C]onversion [P]roject.” HBR’s Facts ¶ 48; see
eSentio’s Reply to HBR’s Facts ¶ 48. Specifically, “[o]n approximately December 1, 2016, [ ]
Whelan called [ ] Mukerji to discuss the information [ ] Whelan had heard about [ ] Mukerji’s
experience with NetDocuments conversions,” HBR’s Facts ¶ 49; see eSentio’s Reply to HBR’s
Facts ¶ 49, and “requested that HBR submit a proposal . . . [for] the NetDocuments [C]onversion
[Project],” HBR’s Facts ¶ 53; see eSentio’s Reply to HBR’s Facts ¶ 53.
On December 5, 2016, Mukerji submitted HBR’s final proposal for the Information
Governance Project. See eSentio’s Facts ¶ 47; see also HBR’s Reply to eSentio’s Facts ¶ 47;
Mukerji’s Reply to eSentio’s Facts ¶ 47; eSentio’s Mot., Ex. 41
) at HBR_00000001 (attaching HBR’s “Information Governance
Assessment”). Then, “[o]n December 28, 2016, HBR submitted its statement of work for . . .
[the] NetDocuments [Conversion] [P]roject,” HBR’s Facts ¶ 56; see eSentio’s Reply to HBR’s
Facts ¶ 56, which “estimated fees at $161,920,” HBR’s Facts ¶ 57; see eSentio’s Reply to HBR’s
Facts ¶ 57. eSentio also submitted “a proposal for $1,514,250.00 for [the] NetDocuments
[C]onversion [Project]” on December 13, 2016. HBR’s Facts ¶ 35; see eSentio’s Reply to
HBR’s Facts ¶ 35. Two other firms—Fireman & Company and Kraft and Kennedy—also
“provided proposals [for the NetDocuments Conversion Project] that were very similar in scope
and . . . cost to HBR’s” proposal. HBR’s Facts ¶ 61 (internal quotation marks omitted); see
eSentio’s Reply to HBR’s Facts ¶ 61. “On or about January 20, 2017, Akin awarded . . . [both]
[p]roject[s] to HBR.” eSentio’s Facts ¶ 64; see HBR’s Reply to eSentio’s Facts ¶ 64; Mukerji’s
Reply to eSentio’s Facts ¶ 64.
6 B. The King & Spalding LLP (“King & Spalding”) Project
“In December 2016, King & Spalding engaged NetDocuments to perform conversion
services from iManage to NetDocuments.” HBR’s Facts ¶ 66; see eSentio’s Reply to HBR’s
Facts ¶ 66. Like Akin, “King & Spalding was interested in engaging a consultancy to
supplement NetDocuments’ services.” HBR’s Facts ¶ 67; see eSentio’s Reply to HBR’s Facts
¶ 67. Thus, “[o]n January 10, 2017, King & Spalding issued a Request for Proposal (‘RFP’) for
NetDocuments conversion consulting services [(the ‘King & Spalding Project’)], soliciting
responses from HBR, eSentio, Adaptive, Fireman & Company, and InOutsource.” HBR’s Facts
¶ 72; see eSentio’s Reply to HBR’s Facts ¶ 72.
“On January 27, 2017, HBR submitted its response to King & Spalding’s RFP.” HBR’s
Facts ¶ 111; see eSentio’s Reply to HBR’s Facts ¶ 111. King & Spalding also “received
responses . . . [from] Adaptive, eSentio, [ ] and InOutsource.” HBR’s Facts ¶ 75; see eSentio’s
Reply to HBR’s Facts ¶ 75. “On or about March 22, 2017, King & Spalding awarded the [King
& Spalding] Project to HBR.” eSentio’s Facts ¶ 65; see HBR’s Reply to eSentio’s Facts ¶ 65;
Mukerji’s Reply to eSentio’s Facts ¶ 65.
eSentio filed its Complaint against HBR and Mukerji on April 10, 2017, see Compl. at 1,
and fact discovery concluded on June 28, 2018, see Order at 2 (May 1, 2018), ECF No. 44.
Shortly thereafter, on July 19, 2018, the parties filed their cross-motions for summary judgment.
See eSentio’s Mot. at 1; HBR’s Mot. at 1; Mukerji’s Mot. at 1.
II. STANDARD OF REVIEW
Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure
56(a) “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a Rule
7 56(a) motion, the Court must view the evidence in the light most favorable to the non-moving
party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable
inferences” in the non-moving party’s favor and accept the non-moving party’s evidence as true.
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
In responding to a motion for summary judgment, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving
party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts
showing that there [are] [ ] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second
omission in original) (citation and internal quotation marks omitted). Thus, “[t]he mere
existence of a scintilla of evidence in support of the [non-moving party’s] position [is]
insufficient” to withstand a motion for summary judgment, as “there must be [some] evidence on
which the jury could reasonably find for the [non-movant].” Id. at 252.
III. ANALYSIS
eSentio seeks “summary judgment in its favor as to [the d]efendants’ liability on Counts
I, II[,] and III . . . [of its] Complaint,” which allege “causes of action [(1)] against [ ] Mukerji for
breach of contract arising out of Mukerji’s violation of . . . [his] restrictive covenant [ ] (Count I);
[(2)] against . . . HBR . . . for tortiously interfering with, and inducing the breach of, Mukerji’s
[restrictive covenant] (Count II); and [(3)] against both [d]efendants for tortiously interfering
with eSentio’s prospective contracts with . . . [Akin and King & Spalding] (Count III).”
eSentio’s Mot. at 1. Additionally, eSentio seeks summary judgment in its favor on Mukerji’s
Counterclaim, see eSentio’s Mot. at 2, which alleges breach of contract against eSentio arising
8 out of eSentio’s alleged failure to comply with the Bonus Provision of Mukerji’s Offer Letter,
see Answer and Counterclaim of Defendant Rajiv Mukerji (Jury Demand Endorsed) (“Mukerji’s
Answer”) at 11, ¶¶ 7–9. HBR and Mukerji both seek summary judgment in their favor on all
claims against them and on eSentio’s claim for punitive damages. See HBR’s Mot. at 1;
Mukerji’s Mot. at 1. The Court will address each of eSentio’s claims and Mukerji’s
Counterclaim in turn.
As an initial matter, the Court notes that because “federal jurisdiction in this case is based
on diversity of citizenship, . . . state law provides the substantive rules of law with regard to all
claims.” Base One Techs., Inc. v. Ali, 78 F. Supp. 3d 186, 192 (D.D.C. 2015); see Compl. ¶ 5
(“This Court has subject matter jurisdiction of this dispute pursuant to 28 U.S.C. § 1332
(Diversity).”). 3 Because Mukerji’s Employment Agreement and Offer Letter provide that their
“terms will be governed by the laws of the District of Columbia,” eSentio’s Mot., Ex. 14
(Employment Agreement) § 13; see id., Ex. 14 (Offer Letter) at LTG – 2 (“[T]his letter . . . shall
be governed by and construed in accordance with the substantive laws of the District of
Columbia.”), the Court concludes that it must apply District of Columbia law to eSentio’s and
Mukerji’s breach of contract claims, which arise out of the Employment Agreement and the
Offer Letter, respectively, see Compl. ¶¶ 40–41; Mukerji’s Answer at 11, ¶¶ 3, 7–9.
3 Diversity jurisdiction exists “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between[] . . . citizens of different States.” 28 U.S.C. § 1332. Here, both requirements are satisfied. First, the plaintiff seeks “compensatory damages in an amount . . . not less than $2,000,000,” Compl. at 13, which obviously exceeds the $75,000 requirement. Second, “each defendant is a citizen of a different State from [the] plaintiff.” Lifeline, Inc. v. Bakari, 107 F. Supp. 3d 38, 40 (D.D.C. 2015) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)). As explained in the Court’s prior Order, “the parties do not dispute that eSentio is a citizen of Delaware and the District of Columbia, and Mukerji admits that he ‘is a citizen of[] . . . Ohio.’” Order at 2 (Mar. 27, 2019), ECF No. 81 (internal citations omitted). And, based on HBR’s admission that its two members are citizens of Illinois, see Defendant HBR Consulting LLC’s Response to Order (Dkt. 81) at 1, the Court concludes that HBR, a limited liability company, is a citizen of Illinois for diversity jurisdiction purposes, see Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 178 (D.D.C. 2003) (explaining that a non-corporate entity such as a limited liability company “carr[ies] the citizenship of [its] members”).
9 Additionally, “[a]lthough a contractual choice-of-law provision does not bind parties with
respect to non-contractual causes of action,” Base One Techs., Inc., 78 F. Supp. 3d at 192, the
Court also finds it appropriate to apply District of Columbia law to eSentio’s remaining tortious
interference claims given that “[t]he parties have not raised any choice of law issues and[] . . .
have relied [almost entirely] on District of Columbia law,” Piedmont Resolution, LLC v.
Johnston, Rivlin & Foley, 999 F. Supp. 34, 39 (D.D.C.1998); see Base One Techs., Inc., 78 F.
Supp. 3d at 192 (relying on New York law for non-contractual causes of action where a “choice-
of-law provision” required application of New York law for the parties’ contractual claims and
“the parties . . . rel[ied] solely on New York law with respect to all of the counts”).
A. eSentio’s Breach of Contract Claim (Count I)
eSentio and Mukerji both seek summary judgment on Count I of the Complaint, which
alleges that “Mukerji [ ] breached [his Employment] Agreement by[] . . . acting to solicit, divert
or take away eSentio clients and prospects, . . . including but not limited to . . . Akin and King &
Spalding.” Compl. ¶ 45. “To prevail on a claim of breach of contract [under District of
Columbia law], a party must establish (1) a valid contract between the parties; (2) an obligation
or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by [the]
breach.” Francis v. Rehman, 110 A.3d 615, 620 (D.C. 2015) (emphasis omitted) (quoting
Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009)).
eSentio argues that it “is entitled to summary judgment as to liability on Count I” of its
Complaint, eSentio’s Mem. at 8, because (1) “it cannot be disputed that . . . [the restrictive
covenant] satisfies all the requirements for validity and enforceability under [District of
Columbia] law,” id. at 9; (2) Akin and King & Spalding were both “clients” or “prospects” under
the restrictive covenant, see id. at 11–14, 17; (3) Mukerji breached the restrictive covenant by
10 “t[aking] steps to ‘solicit, divert, or take away’” the Akin and King & Spalding Projects, id. at
14, 17; and (4) Mukerji’s breach resulted in damages to eSentio, see id. at 22–25. Despite
seeking summary judgment in his favor as to eSentio’s breach of contract claim, see Mukerji’s
Mot. at 1, Mukerji responds that “genuine issues preclude summary judgment in favor of
eSentio,” Mukerji’s Opp’n at 14. Specifically, he argues that genuine factual issues exist as to:
whether “Akin . . . [is] a restricted client,” such that he had a contractual duty as to Akin, id. at
15; whether he “did anything to solicit, divert, or take away” Akin and King & Spalding, id. at
14–15; and whether his conduct caused eSentio damages, see Mukerji’s Reply at 17.
Additionally, he argues that a genuine factual issue exists as to whether any “breach [by him]
was excused by eSentio’s breach of its [a]greement to pay . . . [him] an [a]nnual [p]erformance
[b]onus.” Mukerji’s Opp’n at 15. The Court will address each of the elements of eSentio’s
breach of contract claim in turn.
1. The Existence of a Valid Contract
“In order to be valid, covenants not to compete must protect some legitimate interest of
the employer and must be reasonable in their scope.” Mercer Mgmt. Consulting, Inc. v. Wilde,
920 F. Supp. 219, 237 (D.D.C. 1996). “Restrictions are unreasonable if ‘the restraint is greater
than is needed to protect the promisee’s legitimate interest, or . . . the promisee’s need is
outweighed by the hardship to the promisor and the likely injury to the public.’” Id. (quoting
Ellis v. Hurson Assocs., Inc., 565 A.2d 615, 618 (D.C. 1989)). “Significantly, a ‘restraint is
easier to justify . . . if the restraint is limited to the taking of [a] former employer’s customers as
contrasted with competition in general.’” Id. (quoting Ellis, 56 A.2d at 618).
eSentio argues that the restrictive “covenant . . . protect[s] eSentio’s legitimate business
interests[] . . . [because] it prevents Mukerji from taking advantage of his critical leadership role
at eSentio[] and his relationship with eSentio clients and prospective clients[] to compete 11 unfairly with eSentio.” eSentio’s Mem. at 9. eSentio further argues that “[b]ecause the
covenant . . . only [prohibits Mukerji] from engaging in specified competitive activities with
regard to a precisely defined group of ‘clients’ and ‘prospects,’ the covenant is plainly
reasonable in scope and, accordingly, fully enforceable.” Id. at 10–11. Mukerji does not dispute
the validity of the restrictive covenant. See generally Mukerji’s Mem.; Mukerji’s Opp’n;
Mukerji’s Reply.
Taking into consideration eSentio’s undisputed arguments as to the validity of the
restrictive covenant, the Court concludes that eSentio has demonstrated that the covenant is
valid. The interests that eSentio asserts are protected by the restrictive covenant, see eSentio’s
Mem. at 9, constitute “legitimate interests” under District of Columbia law, see Mercer Mgmt.
Consulting, Inc., 920 F. Supp. at 237 (recognizing as “legitimate interests” an employer’s desire
“to protect the investment made in its employees, preserve the confidentiality of information
gleaned in the course of employment . . . , and protect itself from its employees leaving and
capitalizing on [its] client base”). Additionally, the Court finds that the restrictive covenant’s
one-year length is reasonable given that District of Columbia courts have found similar and even
significantly longer time periods reasonable. See id. (upholding a one-year restrictive covenant);
see also Ellis, 565 A.2d at 621 (concluding that a “three[-]year time duration . . . was sufficiently
reasonable” and observing that “agreements limiting competition for a period well in excess of
three years have been sustained in this jurisdiction”). Moreover, the Court agrees with eSentio
that a prohibition against soliciting, diverting, or taking away eSentio’s clients or prospects is
reasonable in scope given that it “is limited to the taking of [eSentio’s] customers as contrasted
with competition in general,” Ellis, 565 A.2d at 619, and also given Mukerji’s “active[]
engage[ment] with eSentio clients and prospective clients,” eSentio’s Facts ¶ 14; see Mukerji’s
12 Reply to eSentio’s Facts ¶ 14; Mercer Mgmt. Consulting, Inc., 920 F. Supp. at 237 (concluding
that an employer’s one-year restriction on “rendering of services to [its] clients” was “reasonable
and enforceable” given “the vital importance of its client base to its business[] and the close
contacts established between its consultants and its client base”). Accordingly, the Court
concludes that eSentio has satisfied the first element of its breach of contract claim against
Mukerji.
2. The Existence of an Obligation or Duty Arising Out of the Contract
eSentio argues that the restrictive covenant creates an obligation as to Akin and King &
Spalding because Akin was both a “client” and “prospect,” see eSentio’s Mem. at 11–14, and
King & Spalding was a “prospect,” id. at 17. Mukerji responds that “Akin [ ] was not a
[r]estricted [c]lient or prospect” because
Mukerji’s Opp’n at 20.
However, Mukerji does not dispute King & Spalding’s status as a “prospect.” See generally
Mukerji’s Mem.; Mukerji’s Opp’n; Mukerji’s Reply. The Court will address the restrictive
covenant’s application to each firm separately.
a. Whether Akin Was a “Client” or “Prospect”
The Court first addresses the parties’ dispute with respect to Akin, which turns on their
differing interpretations of the restrictive covenant’s language. As already explained, the
restrictive covenant prohibits Mukerji from “act[ing] in any way, directly or indirectly, to solicit,
divert or takeaway any client of [eSentio] or prospect that [he] ha[d] been involved in pursuing
business with during the six months prior to the termination of [his] employment with [eSentio].”
eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8. The restrictive covenant further defines
a “client” as “a firm that eSentio has sold product [to] or performed services for in the previous
two years from date of termination of employment.” Id., Ex. 14 (Employment Agreement) § 3.8
13 Mukerji argues that “[t]he phrase . . . ‘that [he] ha[d] been involved in pursuing business
with during the six months prior to the termination of [his] employment’ [(the ‘six-month
involvement limitation’)], fairly read, applies to both [a] ‘client of [eSentio]’ as well as [a]
‘prospect,’” and, because “he was not involved in pursuing business with Akin [ ] in the six
months prior to the termination of his employment,” Akin was neither a “client” nor a
“prospect.” Mukerji’s Opp’n at 20. Alternatively, Mukerji argues that if the restrictive covenant
“were susceptible of more than this one fair reading, . . . such ambiguity would open the door to
evidence of the parties’ bargaining history,” and “[t]he bargaining history in this case reveals the
parties’ intent to apply involvement to both prospects and clients.” Id. at 21. eSentio responds
that “any fair reading of the [restrictive covenant] demonstrates that the six-month [involvement
limitation] applies only to ‘prospect’ and not to ‘client,’” eSentio’s Reply at 2, and thus, whether
Mukerji worked with Akin in the six months prior to his termination has no bearing on whether
Akin qualifies as a “client” under the restrictive covenant. It further argues that “Mukerji’s
reading of the contract renders other terms meaningless . . . [because] there would be no need to
distinguish between ‘clients’ and ‘prospects’ at all, [as] in both cases, the six-month
[involvement limitation] would define the full scope of the restriction, and the clause would
simply refer to ‘firms’ or ‘entities’ or some other all-encompassing term.” Id. Additionally, it
argues that “Mukerji cannot create a genuine dispute of material fact by arguing that he reads the
contract a different [ ] way, as contract construction is for the Court,” and thus, “Mukerji’s effort
to introduce the parties’ bargaining history and related parol evidence should be rejected.” Id. at
3 (emphasis omitted). Finally, eSentio argues that, in any event, “the bargaining history . . .
proves conclusively that the plain and unambiguous language included in the final version of the
[Employment] Agreement expresses the parties’ intent.” Id.
14 As the District of Columbia Court of Appeals has explained, “when interpreting a
contract, ‘the court should look to the intent of the parties entering into the agreement.’” Steele
Founds., Inc. v. Clark Constr. Grp., Inc., 937 A.2d 148, 154 (D.C. 2007) (citation omitted).
However, “[t]he question of intent is resolved by an objective inquiry, and ‘[t]he first step’ is
therefore to determine ‘what a reasonable person in the position of the parties would have
thought the disputed language meant.’” Id. (second alteration in original) (citation omitted).
Accordingly, “the written language embodying the terms of an agreement will govern the rights
and liabilities of the parties [regardless] of the intent of the parties at the time they entered into
the contract, unless the written language is not susceptible of a clear and definite undertaking, or
unless there is fraud, duress, or mutual mistake.” Tillery v. D.C. Contract Appeals Bd., 912 A.2d
1169, 1176 (D.C. 2006) (citation omitted). Additionally, “[c]ontractual provisions are
interpreted taking into account the contract as a whole, so as to give effect, if possible, to all of
the provisions in the contract.” Steele Founds., Inc., 937 A.2d at 154.
Applying these principles here, the Court must reject Mukerji’s position that the six-
month involvement limitation applies to a “client” subject to the restrictive covenant. As eSentio
correctly notes, see eSentio’s Reply at 2, Mukerji’s interpretation would render meaningless the
distinction between a “client” and a “prospect” in the context of the restrictive covenant’s
prohibition against “solicit[ing], divert[ing,] or tak[ing away],” eSentio’s Mot., Ex. 14
(Employment Agreement) § 3.8. Specifically, Mukerji’s interpretation would mean that the
restrictive covenant covers any “client” or “prospect,” i.e., any firm, so long as Mukerji was
“involved in pursuing business with [the firm] during the six months prior to [his] termination.”
Id., Ex. 14 (Employment Agreement) § 3.8. Thus, in the context of the prohibition against
“solicit[ing], divert[ing,] or tak[ing away],” id., Ex. 14 (Employment Agreement) § 3.8, there
15 would be no need to distinguish between a “client” and a “prospect,” and the restrictive
covenant’s definition of “client”— “a firm that eSentio has sold product or performed services
for in the previous two years from date of termination of employment,” id., Ex. 14 (Employment
Agreement) § 3.8—would be unnecessary. Such an interpretation does not square with the
District of Columbia Court of Appeals’ instruction that the Court must “give effect, if possible,
to all of the provisions in the contract.” Steele Foundations, Inc., 937 A.2d at 154.
Nonetheless, Mukerji argues that, “[s]ince the parties used [ ] Mukerji’s involvement to
define [c]lients from whom he could not accept employment in the second sentence of § 3.8(a),
[his involvement] also applies to those [c]lients whom he could not solicit, divert or take away in
the first sentence.” Mukerji’s Opp’n at 21. Mukerji’s argument refers to a part of the covenant
which states: “[T]his ‘non-compete’ is intended to include accepting employment with a client of
[eSentio] for the period and involvement stated above.” eSentio’s Mot., Ex. 14 (Employment
Agreement) § 3.8. However, even assuming that the phrase “period and involvement stated
above” incorporates the six-month involvement limitation contained in the preceding sentence, it
only incorporates that limitation for purposes of a prohibition against accepting employment with
an eSentio client and does not purport to apply it to the prohibition against soliciting, diverting,
or taking away clients. Thus, the plain language of the restrictive covenant provides the Court
with no basis to adopt Mukerji’s position that the limitation on clients with which Mukerji could
not accept employment must comport with the limitations on clients that Mukerji could not
solicit, divert, or take away.
Having concluded that a “client” need not be a firm that Mukerji was “involved in
pursuing business with during the six months prior to [his] termination,” eSentio’s Mot., Ex. 14
(Employment Agreement) § 3.8, the Court must conclude that Akin qualifies as a client subject
16 to the restrictive covenant. The restrictive covenant defines a “client” as “a firm that eSentio has
sold product [to] or performed services for in the previous two years from date of termination of
employment.” eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8.
HBR’s Reply to eSentio’s Facts
¶ 38; see Mukerji’s Reply to eSentio’s Facts ¶ 38 (incorporating HBR’s response to ¶ 38 of
eSentio’s Facts),
see eSentio’s Facts ¶ 17; HBR’s Reply to eSentio’s Facts
¶ 17; Mukerji’s Reply to eSentio’s Facts ¶ 17. Thus, Akin qualified as a “client” subject to the
restrictive covenant, and consequently, Mukerji had a contractual duty not to solicit, divert or
take away Akin’s business. 4
b. Whether King & Spalding Was a “Prospect”
eSentio argues that King & Spalding was a “prospect” under the restrictive covenant
because
eSentio’s Mem. at 17; see eSentio’s Facts
¶ 52 (citing ). Although Mukerji “disputes whether any
of the exhibits cited by eSentio . . . evince his involvement in pursuing business from [King &
Spalding], . . . [he] does not dispute
Mukerji’s Reply to
eSentio’s Facts ¶ 52. Based on this undisputed fact, the Court concludes that eSentio has
demonstrated that King & Spalding was a “prospect that [Mukerji] ha[d] been involved in
pursuing business with during the six months prior to the termination of [his] employment with
4 Because the Court concludes that Akin is a “client” subject to the restrictive covenant, it need not address the parties’ arguments with respect to whether Akin was also a “prospect.”
17 [eSentio],” eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8, and thus, he had a
contractual duty as to King & Spalding under the restrictive covenant.
3. Whether Mukerji Acted to, Directly or Indirectly, Solicit, Divert, or Take Away Akin or King & Spalding
a. Akin
Mukerji argues that he “did not solicit, divert[,] or take away” Akin’s business because he
“never initiated sales activity with respect to Akin,” Mukerji’s Opp’n at 16, and only “responded
to Akin[’s] unsolicited requests for proposals or helped someone at HBR do so,” id. at 20.
Specifically, he argues that “[c]ourts that found solicitation . . . require some proactive step by
the employee, like initiating the customer contact, . . . meeting with the customer after the
proposal and before the award, . . . or otherwise taking proactive steps that went beyond
responding to the proposal,” Mukerji’s Reply at 14, and because “no reasonable juror[] . . . could
conclude that [he] took proactive steps that went beyond responding to an RFP, he is entitled to
summary judgment in his favor and against eSentio on [eSentio’s] breach of contract claims,” id.
at 15. eSentio responds that “the undisputed evidence in the record demonstrates that Mukerji
took action to ‘solicit, divert, or take away’ [the Akin Project] from eSentio,” eSentio’s Mem. at
16, because the evidence shows that “Mukerji played . . . the principal role[] in HBR’s efforts to
secure the award,” including by “playing a substantive role not only in preparing HBR’s bid . . . ,
but also in writing the proposal and interacting substantively and materially with the Akin
personnel responsible for reviewing the qualifications of the competing firms and selecting the
winner,” id. at 14–15. It further argues that “the fact that Akin requested a bid” is “immaterial”
because “the steps Mukerji took after this request constitute direct efforts, by him, to solicit,
divert or take away the Akin Project.” eSentio’s Opp’n to Mukerji’s Mot. at 3.
18 To resolve the parties’ dispute, the Court must determine the proper meaning of the term
“solicit” in the context of the restrictive covenant. See Steele Founds., Inc., 937 A.2d at 154
(“[W]hen interpreting a contract, . . . ‘[t]he first step’ is [ ] to determine ‘what a reasonable
person in the position of the parties would have thought the disputed language meant.’” (second
alteration in original) (internal citation omitted)). The parties have not cited, and the Court has
not been able to locate, any decisions interpreting the meaning of “solicit” in this context by the
District of Columbia Court of Appeals or any other court applying District of Columbia law.
And, courts that have addressed the issue under other states’ laws have adopted conflicting
interpretations. For example, the Fourth Circuit has held “that the plain meaning of ‘solicit’
requires the initiation of contact.” Mona Elec. Grp. v. Truland Serv. Corp., 56 F. App’x 108, 110
(4th Cir. 2003) (applying Maryland law); see Gen. Assur. of Am., Inc. v. Overby-Seawell Co.,
893 F. Supp. 2d 761 (E.D. Va. 2012) (concluding that “for purposes of enforcement of
nonsolicitation clauses under Georgia law, . . . ‘solicitation’ of business . . . turns on which party
initiated contact”). By contrast, several other courts, including the First Circuit and another
member of this Court, have concluded that solicitation does not necessarily require initiating
contact with a customer. See Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 10–12 (1st Cir. 2013)
(applying Massachusetts law and concluding that “the identity of the party making initial contact
is just one factor among many that the trial court should consider in . . . [defining] solicitation . . .
in a given case”); see also Wells Fargo Ins. Servs. USA, Inc. v. McQuate, 276 F. Supp. 3d 1089,
1111 (D. Colo. 2016) (“find[ing] that, under Colorado law, conduct may fall within the definition
of ‘solicit’ and ‘solicitation’ even in the absence of [the] [d]efendants making the initial contact
with [the plaintiff’s] client or customer”); Wachovia Ins. Servs., Inc. v. Hinds, Civ. Action No.
WDQ-07-2114, 2007 WL 6624661, at *6 (D. Md. Aug. 30, 2007) (applying Maryland law and
19 concluding that “[e]ven if [the employee] did not initiate contact with [her former employer’s
client], she may have actively solicited them”); FCE Benefit Adm’rs, Inc. v. George Wash.
Univ., 209 F. Supp. 2d 232, 234 (D.D.C. 2002) (not identifying the state law being applied and
concluding that an employee violated a prohibition against soliciting her client’s customers
because, “[e]ven though she was initially contacted by [a customer] . . . , she assumed an active
role in [the customer’s] decision-making process”). 5
The Court concludes that the plain meaning of “solicit” does not necessarily require the
soliciting party to initiate contact. Common dictionary definitions of “solicit” support this
interpretation, as they explicitly include conduct that does not require an actor to initiate contact
or even make a request, but only require “seeking to obtain something” or making “[a]n attempt
or effort to gain business.” Black’s Law Dictionary 1607–08 (10th ed. 2014); see also Solicit,
Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/solicit (last
visited Mar. 19, 2019) (defining “solicit” to include “to urge (something, such as one’s cause)
strongly”). Notably, Mukerji appears to concede that the plain meaning of “solicit” is not limited
to circumstances in which an employee initiated contact with a potential customer. See
Mukerji’s Reply at 14 (arguing that “[c]ourts that found solicitation . . . uniformly require . . .
5 The Court appreciates that “because the District of Columbia was carved out of Maryland and derived its common law from that State[,] Maryland decisions, although not binding, are entitled to particular weight in this Court[.]” Delahanty v. Hinckley, 845 F.2d 1069, 1071 (D.C. Cir. 1988). However, this Court has been unable to locate any Maryland Court of Appeals decision on the plain meaning of “solicit” in a restrictive covenant. Moreover, although Maryland’s intermediate appellate court, in a nonprecedential opinion, and the Fourth Circuit, in an opinion applying Maryland law, have concluded that “the plain meaning of ‘solicit’ requires the initiation of contact,” AMP Sys., LLC v. Aertight Sys., Inc., No. 1611 Sept. Term 2015, 2016 WL 7079621, at *7 (Md. Ct. Spec. App. Dec. 5, 2016) (quoting Mona Elec. Grp., 56 F. App’x at 110); see Mona Elec. Grp., 56 F. App’x at 110, at least one Maryland district court decision applying Maryland law questions that conclusion, see Wachovia Ins. Servs., Inc., 2007 WL 6624661, at *6 (acknowledging Mona Electric Group but concluding that “[e]ven if [the employee] did not initiate contact with [her former employer’s client], she may have actively solicited them”). In any event, the Court does not find it appropriate to assign significant weight to decisions concluding that “solicit” requires initiation of contact because, as explained infra, common dictionary definitions of the term “solicit” do not support that conclusion.
20 initiating the customer contact, disclosing confidential former employer information,
misrepresenting or omitting competitive information, meeting with the customer after the
proposal and before the award, socializing with the customer[,] or otherwise taking proactive
steps that went beyond responding to the proposal” (emphasis added)).
Adopting the ordinary meaning of “solicit,” the Court concludes that a reasonable jury
must conclude that Mukerji solicited Akin to obtain the Akin Project. Mukerji does not dispute
that he communicated directly with Whelan regarding HBR’s bids for the Information
Governance and NetDocuments Conversion Projects. Specifically, Mukerji does not dispute that
from November 27, 2016, through December 1, 2016, he exchanged e-mails with Whelan
regarding “information [HBR] needed for the [Information Governance] proposal,” and that, on
December 1, 2016, he “sp[o]k[e] with [Whelan] about the [Information Governance] proposal.”
Mukerji’s Reply to eSentio’s Facts ¶ 45, at 20. Additionally, Mukerji does not dispute that, on
his December 1, 2016 phone call with Whelan, he also spoke with Whelan about the
NetDocuments Conversion Project and Whelan “asked him ‘to consider and come up with what
aspects [HBR] would want to take on for the [NetDocuments Conversion] [P]roject.’” Id.
(quoting HBR’s Mot., Ex. 21 ( ) at
HBR 000226). As another member of this Court has observed, direct contacts with a restricted
client for the purpose of obtaining business from that client “plainly violate” a nonsolicitation
provision. Robert Half Int’l Inc. v. Billingham, 315 F. Supp. 3d 419, 432 (D.D.C. 2018)
(concluding that an employee “violated [his] non[]solicitation provision . . . by communicating
with [prohibited] customers for the purpose of creating business opportunities for his new
employer[]”). Moreover, Mukerji does not dispute that he prepared the NetDocuments
Conversion Project proposal and participated in the preparation of the Information Governance
21 Project proposal. See Mukerji’s Mem. at 28 (asserting that “Schmidt . . . asked [ ] Mukerji to
prepare [the NetDocuments Conversion Project proposal], which [Mukerji] did”); see also
Mukerji’s Reply to eSentio’s Facts ¶ 45, at 20 (admitting that the record evidence demonstrates
that “Mukerji revised and circulated internally a draft of the [Information Governance] proposal
requested by Akin” and also “blocked out time on his calendar to plan the proposal that Akin
requested for its Net[]Documents [Conversion] [P]roject”). Mukerji also submitted final or pre-
final versions of HBR’s proposals for both projects directly to Whelan. See eSentio’s Facts ¶ 47;
see also Mukerji’s Reply to eSentio’s Facts ¶ 47 (not disputing that Mukerji submitted the final
version of “the proposal Akin requested for Information Governance services”); id. ¶ 45
(admitting that the evidence shows “Mukerji sent a preliminary draft of the [NetDocuments
Conversion Project] proposal to . . . Whelan to discuss”); eSentio’s Mot., Ex. 41 (E-mail from
Rajiv Mukerji to TJ Whelan (Dec. 5, 2016)) at HBR_00000001 (attaching “HBR proposal for
Akin [Information Governance] Assessment” and stating: “We’d like to go through the proposal
with you at your convenience this week so we can adjust as needed to make sure we’ve captured
all your requirements.”); eSentio’s Mot., Ex. 28 (E-mail from Rajiv Mukerji to TJ Whelan (Dec.
22, 2016)) at HBR_00001049 (attaching “Akin discussion proposal” for NetDocuments
Conversion Project). These collective actions clearly constitute “attempt[s] or effort[s] to gain
business” from Akin, Black’s Law Dictionary 1608 (10th ed. 2014), or actions “to urge [HBR’s
cause] strongly,” Solicit, Merriam-Webster Dictionary Online, https://www.merriam-
webster.com/dictionary/solicit (last visited Mar. 19, 2019).
Mukerji’s counterarguments are unpersuasive. He cites a number of cases for the
proposition that “[c]ourts that f[i]nd solicitation . . . uniformly require . . . initiating customer
contact, disclosing confidential former employer information, misrepresenting or omitting
22 competitive information, meeting with the customer after the proposal and before the award,
socializing with the customer[,] or otherwise taking proactive steps that went beyond responding
to [a] proposal.” Mukerji’s Reply at 14. However, for the reasons already explained, the Court
cannot agree that initiation of customer contact is required for solicitation, and thus, it rejects as
unpersuasive courts’ conclusions relying on this proposition. The Court also cannot agree that
an employee must take “proactive steps . . . beyond responding to [a] proposal” to violate a
nonsolicitation provision, as efforts to prepare and submit a proposal for a client’s business fall
squarely within the plain meaning of solicit. See Black’s Law Dictionary 1608 (10th ed. 2014)
(defining “solicitation” to include “[a]n attempt or effort to gain business”). The remaining cases
cited by Mukerji do not dictate otherwise, as they simply conclude that “[m]erely accepting
business,” without taking any other action to obtain it, “does not . . . constitute solicitation.”
Akron Pest Control v. Radar Exterminating Co., 455 S.E.2d 601, 603 (Ga. Ct. App. 1995)
(concluding that a “nonsolicitation agreement could [not] be violated by failing to turn away the
business of former customers”); see, e.g., J.K.R., Inc. v. Triple Check Tax Serv., Inc., 736 So. 2d
43, 44 (Fla. Dist. Ct. App. 1999) (concluding that “[t]he words ‘call upon, solicit, divert or take
away’ . . . do not disallow [employees] from accepting former clients who actively seek their
assistance,” and thus, “affirm[ing] . . . [a] temporary injunction prohibiting [the employees] from
contacting former clients, but revers[ing] that portion forbidding them from ‘doing business
with’ former clients”); Harry Blackwood, Inc. v. Caputo, 434 A.2d 169, 170 (Pa. Super. Ct.
1981) (concluding that a nonsolicitation provision did not “preclude [an insurance agent] from
any writing of insurance for any of [his former employer’s] customers”). And, the decision by
another member of this Court in FCE Benefit Administrators, upon which Mukerji relies, does
not support the proposition that any or all of the actions listed by Mukerji must be present to find
23 solicitation. In that case, the Court considered whether an insurance agent breached an
agreement with a health insurance benefits company to not “call on, solicit, take away, or attempt
to call on, solicit, or take away any of [the company’s] customers,” 209 F. Supp. 2d at 234, and,
in concluding that the agent breached the agreement, it observed that the actions taken by the
agent to sell the company’s customer a competitor’s health insurance benefits plan—including
“solicit[ing] alternative price quotes, me[eting] repeatedly with [the customer]’s benefits
committee, and [ ] prepar[ing] numerous spreadsheets” — “constituted far more than merely
‘accepting . . . business,’” id. at 240 (emphasis added). In any event, Mukerji’s direct
communications with Whelan regarding the Information Governance Project and NetDocuments
Conversion Project proposals would suffice to satisfy any “proactive steps” requirement, as they
demonstrate that Mukerji “assumed an active role in [Akin’s] decision-making process” with
respect to those projects. Id. at 234.
Thus, the Court concludes that the undisputed evidence demonstrates that Mukerji
solicited Akin with respect to the Akin Project. Accordingly, the Court concludes that eSentio
has demonstrated that Mukerji breached his restrictive covenant as to Akin.
b. King & Spalding
Mukerji argues that “[t]his Court must enter summary judgment in [his] favor on
eSentio’s breach of contract claim with respect to King & Spalding” because he “did nothing to
obtain the King & Spalding . . . [P]roject,” as shown by the fact that he “asked to be walled off
from it,” Mukerji’s Mem. at 24, and that others involved in the bid issued instructions that
Mukerji could not be involved, see id. He further argues that “a covenant not to solicit, divert or
take away clients does not bar a non-breaching employee from performing work he did not
solicit.” Id. eSentio responds that “[t]he supposed ‘wall’ was just a smokescreen to mask
24 Mukerji’s pivotal role, as Mukerji was copied on e[-]mails, and in one e[-]mail provided analysis
of HBR’s competition” for the King & Spalding Project. eSentio’s Reply at 18. Additionally, it
argues that the evidence demonstrates that Mukerji “indirectly” solicited King & Spalding by
“us[ing] . . . HBR [ ] to place his credentials and experience before the [King & Spalding]
decisionmakers.” eSentio’s Mem. at 20; see id. at 19 (arguing that HBR “solicit[ed] [King &
Spalding] on Mukerji’s behalf” by “actively pitch[ing] Mukerji as a key member of the
[proposed] project team, [and] inform[ing] [King & Spalding] that Mukerji would actually lead
the project”).
The Court finds that a genuine factual dispute exists with respect to whether Mukerji
solicited the King & Spalding Project in violation of the restrictive covenant. Specifically, the
Court concludes that a genuine factual issue exists with respect to whether Mukerji advised on
and otherwise participated in preparing HBR’s bid for the project. For example, as eSentio
notes, see eSentio’s Reply at 18, evidence in the record demonstrates that HBR employees
involved in preparing the King & Spalding bid included Mukerji on several e-mails related to
HBR’s efforts to obtain the King & Spalding Project. See eSentio’s Opp’n to HBR’s Mot., Ex.
114 ( ) at
HBR_00001232–33 (informing Mukerji, Denner, and two others that HBR was “about to get an
RFP from King & Spa[]lding on [NetDocuments] services” and identifying firms they would “be
competing against”); id., Ex. 112 ( )
at HBR_00001121 (circulating “updates to the King & Spalding RFP” to Schmidt, copying
Mukerji, Mark Denner, and Jorge Arana); id., Ex. 113 (
) at HBR_00001447–48 (informing Mukerji that “Erik didn’t do a good
job leading the work on” the RFP for the King & Spalding Project, to which Mukerji responded,
25 “[W]hen is it due? [C]an you and Terry fix?”). And,
provided his opinion regarding HBR’s potential competition for the King & Spalding Project.
See id., Ex. 114 (E-mail from Rajiv Mukerji to Erik Schmidt and Mark Denner (Jan. 10, 2017))
at HBR_00001232 (advising that “Adaptive would be the main [competition], [as] they are
helping A&P and have a good DC presence”). Additionally,
provided
Denner with information regarding eSentio’s relationship with King & Spalding. See id., Ex. 63
( ) at
HBR_000005345 (in a discussion regarding the King & Spalding Project and other topics,
Mukerji stating that “eSentio burnt some bridges at [King & Spalding]” and “it’s been a few
years since they did any work there,” to which Denner responded “good [t]o[] know”). A
reasonable juror could conclude from this evidence that Mukerji
.
Moreover, other evidence in the record could bolster a reasonable juror’s inference that
Mukerji was involved in HBR’s efforts to secure the King & Spalding Project. Specifically,
there exists undisputed evidence in the record that preparation of HBR’s proposal required
specialized knowledge of NetDocuments conversions for firms similar in size to King &
Spalding, see eSentio’s Facts ¶ 57 (asserting that “[t]he [King & Spalding] RFP required bidders
to identify their specific experience with iManage to NetDocuments conversion and migration in
firms of similar size” and “to answer questions such as . . . how long do you anticipate this
consulting engagement will require?”); see also HBR’s Reply to eSentio’s Facts ¶ 57; Mukerji’s
Reply to eSentio’s Facts ¶ 57 (incorporating HBR’s response to ¶ 57 of eSentio’s Facts), and that
“HBR did not have experience with NetDocuments conversions for AmLaw 100 law firms
26 eSentio’s Facts ¶ 58; see HBR’s Reply to eSentio’s Facts ¶ 58; Mukerji’s
Reply to eSentio’s Facts ¶ 58 (incorporating HBR’s response to ¶ 58 of eSentio’s Facts).
Additionally, evidence in the record demonstrates that
, see eSentio’s Facts ¶ 60 (
); HBR’s Reply to eSentio’s Facts ¶ 60; Mukerji’s Reply to eSentio’s
Facts ¶ 60 (incorporating HBR’s response to ¶ 60 of eSentio’s Facts). Based on this evidence, as
well as
a reasonable juror could infer that
Mukerji was involved, either directly or indirectly, in HBR’s efforts to obtain the King &
Spalding Project, which, as already explained, is sufficient to constitute solicitation. See Black’s
Law Dictionary 1608 (10th ed. 2014) (defining “solicitation” to include “[a]n attempt or effort to
gain business”).
Mukerji’s counterarguments are unpersuasive. For the reasons already explained, the
Court disagrees with Mukerji that, “even if . . . [he] had participated in responding to the [King
& Spalding] proposal, . . . his covenant not to solicit, divert or take away a client allowed him to
do so.” Mukerji’s Reply at 14–15. Moreover,
is not
dispositive, as the plain language of Mukerji’s restrictive covenant does not require direct contact
27 between Mukerji and the restricted client, but only “any action to, directly or indirectly, solicit”
the client. eSentio’s Mot., Ex. 14 (Employment Agreement) § 3.8. Furthermore, although
Mukerji claims that
see Mukerji
Aff. ¶ 39,
see,
e.g., HBR’s Mot., Ex. 2 (Deposition of Rajiv Mukerji (May 31, 2018) (“Mukerji Dep.”)) 237:2–3
( ); id., Ex. 33 (Declaration of Erik
Schmidt (July 18, 2018)) ¶ 13 (
), this evidence also only creates a factual issue not
appropriate for the Court to resolve on a motion for summary judgment.
Thus, the Court concludes that a reasonable juror could conclude from the evidence in the
record that Mukerji solicited King & Spalding with respect to the King & Spalding Project.
Accordingly, summary judgment on eSentio’s breach of contract claim against Mukerji as to
King & Spalding is inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986) (“If .
. . there is any evidence in the record from any source from which a reasonable inference in the
[nonmoving party’s] favor may be drawn, the moving party simply cannot obtain a summary
judgment[.]” (alteration in original) (citation omitted)).
4. Damages
eSentio argues that
28 the [d]efendants’ conduct, Akin [and King & Spalding] awarded the Akin [and King & Spalding]
Project[s] to HBR,” eSentio’s Mem. at 22, and thus, eSentio is entitled to “the profits [it] would
have received had the work been performed by [it] instead of [HBR],” id. (quoting Mercer
Mgmt. Consulting, 920 F. Supp. at 238). Additionally, eSentio argues that Mukerji’s breach
caused it other damages resulting from HBR’s acquisition of the Akin and King & Spalding
Projects, “including but not limited to the diminution of the value of its investment in its
NetDocuments expertise and the associated ‘head start’ advantage secured by HBR.” eSentio’s
Opp’n to Mukerji’s Mot. at 6. Finally, eSentio argues that, “even if eSentio were unable to prove
any quantifiable damages at all, it could still maintain its breach of contract . . . claims,”
eSentio’s Opp’n to HBR’s Mem. at 20, because “[f]rom every breach of contract the law will
imply at least nominal damages,” id. (citation and internal quotation marks omitted), and “the
breach of a restrictive covenant carries with it the potential for injunctive relief,” eSentio’s Reply
at 13 n.8. Mukerji responds that “eSentio has no evidence that [ ] Mukerji engaged in conduct
that caused eSentio to lose the [Akin and King & Spalding] bids” because “the evidence[] . . .
shows that eSentio did that by itself.” Mukerji’s Reply at 17.
The Court agrees with eSentio that any breach by Mukerji would entitle eSentio to at
least nominal damages for the breach. As this Circuit has observed, “the settled rule in the
District [of Columbia] is that ‘[e]ven where monetary damages cannot be proved, a plaintiff who
can establish a breach of contract is entitled to an award of nominal damages.’” Alston v.
Flagstar Bank, FSB, 609 F. App’x 2, 3 (D.C. Cir. 2015) (second alteration in original) (quoting
Wright v. Howard Univ., 60 A.3d 749, 753 (D.C. 2013)). And, “it is settled in th[is] District that
nominal damages can suffice” to establish a prima facie case for breach of contract. Alemayehu
v. Abere, 298 F. Supp. 3d 157, 169 (D.D.C. 2018) (citing Alston, 609 F. App’x at 3). Thus,
29 because the Court has concluded that Mukerji breached the restrictive covenant as to Akin, it
must also conclude that eSentio has satisfied the damages element of its breach of contract claim
with respect to Akin. Additionally, because the Court has concluded that a reasonable juror
could find that Mukerji also breached the restrictive covenant as to King & Spalding, the Court
must conclude that a reasonable juror could also find that eSentio has satisfied the damages
element of its breach of contract claim with respect to King & Spalding. 6
5. Whether eSentio’s Alleged Breach of Its Agreement to Pay Mukerji an Annual Performance Bonus Excuses Any Breach by Mukerji
Mukerji finally argues that genuine issues of fact preclude summary judgment as to
eSentio’s breach of contract claims because a “reasonable jur[or] can conclude that eSentio
breached its agreement to pay [ ] Mukerji an annual performance bonus” and “such [a] finding
would excuse [his] non-performance, if any, of his restrictive covenant.” Mukerji’s Opp’n at 15.
eSentio does not explicitly respond to this argument, aside from disputing that it breached
Mukerji’s Bonus Provision. See generally eSentio’s Opp’n to Mukerji’s Mot.; eSentio’s Reply.
However, even assuming that Mukerji is correct that a reasonable juror could conclude that
eSentio breached the Bonus Provision, which the Court addresses later in this Memorandum
Opinion, see Part III.D, infra, the Court must reject his argument that such a breach would justify
any subsequent breach by him of the restrictive covenant. As the District of Columbia Circuit
has explained, “[m]aterial breach entitles the injured party to an election of remedies, including
rescission or termination of the contract, not a license to commit torts or otherwise breach the
6 Because the Court concludes that eSentio’s entitlement or potential entitlement to nominal damages satisfies or potentially satisfies the damages element of its breach of contract claims, and because eSentio seeks summary judgment only as to liability, see eSentio’s Mot at 1, the Court need not at this time conduct further inquiry into whether eSentio is entitled to the monetary damages it claims or injunctive relief. In any event, Mukerji’s arguments that eSentio is not entitled to monetary damages resulting from eSentio’s loss of the Akin and King & Spalding Projects, see Mukerji’s Reply at 17, raise genuine factual issues precluding summary judgment as to these damages for the reasons explained in more detail in Part III.B, infra.
30 contract.” Ashcraft & Gerel v. Coady, 244 F.3d 948, 951 (D.C. Cir. 2001). And, although the
Circuit in Ashcraft found that an employee “would be entitled to introduce evidence of [his]
firm’s prior material breach as part of his defense to the firm’s claims that he breached the
employment contract,” id. at 952–53, it recognized only that such evidence would be relevant to
persuade “a jury . . . [to] conclude that the firm’s other [relevant] conduct was to be viewed in a
different light,” id. at 954. Here, Mukerji fails to explain how the facts underlying eSentio’s
alleged breach of the Bonus Provision create a genuine issue of material fact with respect to
eSentio’s claim that Mukerji violated the restrictive covenant. See Mukerji’s Opp’n at 15
(arguing only that eSentio’s alleged prior breach “would excuse [his] non-performance”). Thus,
the Court cannot conclude that any alleged prior breach of the Bonus Provision by eSentio
creates a genuine issue of material fact precluding summary judgment as to eSentio’s breach of
contract claim.
In sum, the Court concludes that eSentio is entitled to summary judgment in its favor as
to liability on its breach of contract claim against Mukerji with respect to Akin, and thus, the
Court will grant eSentio’s motion for summary judgment and deny Mukerji’s cross-motion for
summary judgment as to this claim. However, the Court concludes that genuine issues of
material fact preclude summary judgment as to eSentio’s breach of contract claim against
Mukerji with respect to King & Spalding, and thus, the Court will deny eSentio’s and Mukerji’s
motions for summary judgment as to this claim.
B. eSentio’s Tortious Interference with Contract Claim (Count II)
eSentio and HBR both move for summary judgment on Count II of the Complaint, which
alleges that HBR tortiously interfered with Mukerji’s performance of the restrictive covenant by
“intentionally permit[ting] and caus[ing] Mukerji to breach his contractual obligations to
31 eSentio.” Compl. ¶ 56. “To recover in tort for intentional interference with contractual relations,
the plaintiff must prove four elements: ‘(1) existence of a contract, (2) knowledge of the contract,
(3) intentional procurement of its breach by the defendant, and (4) damages resulting from the
breach.’” Sorrells v. Garfinckel’s, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285, 289
(D.C. 1989) (quoting Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284,
288 (D.C. 1977)); see Restatement (Second) of Torts § 766 (Am. Law Inst. 1979) (“One who
intentionally and improperly interferes with the performance of a contract . . . between another
and a third person by inducing or otherwise causing the third person not to perform the contract,
is subject to liability to the other for the pecuniary loss resulting to the other from the failure of
the third person to perform the contract.”). 7 “‘Once a prima facie case has been established,’ it
becomes the defendant’s burden to prove ‘that . . . [its] conduct was legally justified or
privileged.’” Sorrells, 565 A.2d at 289–90 (quoting Alfred A. Altimont, Inc., 374 A.2d at 288).
“In other words, a trier of fact may find for the plaintiff who presents a prima facie case unless
the defendant proves that . . . [its] conduct was justified or privileged.” Id. at 290. The Court
will address eSentio’s tortious interference with contract claim as to Akin and King & Spalding
separately.
1. Akin
HBR argues that
[t]here is no evidence in the record to establish the second, third, and fourth elements of [eSentio’s] claim . . . [as to Akin] because: (1) HBR did not know that Mukerji’s restrictive covenant applied to Akin and thus did not intentionally procure Mukerji’s purported breach of the Employment Agreement; (2) HBR’s conduct in bidding for the Akin [P]roject was not improper; and (3) eSentio did not
7 The Court notes that it need not address the first element of eSentio’s tortious interference with contract claim— the existence of a valid contract—because, for purposes of summary judgment, HBR does not dispute that Mukerji’s Employment Agreement and its restrictive covenant are valid. See HBR’s Opp’n at 4 n.4. In any event, the Court has concluded that the restrictive covenant is enforceable. See Part III.A.1, supra.
32 suffer any damages because it would not have been awarded the Akin contract, regardless of HBR’s actions.
HBR’s Opp’n at 4. It further argues that it “could not have intentionally procured a breach of the
restrictive covenant because Mukerji did not breach the restrictive covenant.” HBR’s Reply at 4.
The Court must reject HBR’s last argument based on the Court’s conclusion that Mukerji did
breach the restrictive covenant as to Akin. However, it will address HBR’s remaining arguments
in turn.
a. Knowledge
HBR argues that “there is no evidence to support the assertion that [it] had knowledge
that Mukerji’s restrictive covenant with eSentio applied to soliciting work from [Akin]” because
“all of the evidence . . . demonstrates that HBR took affirmative steps to ascertain if Mukerji’s
restrictive covenant applied to [Akin] and was advised by both Mukerji and [Akin] that it did
not.” HBR’s Mem. at 8. eSentio responds that “HBR cannot escape tort liability on the grounds
that it did not ‘understand’ the contract or did not ‘believe’ its actions constituted a breach”
because the knowledge element “is satisfied when the defendant knew of the existence of the
contract itself” and “[a] plaintiff is not required to prove that the defendant understood the legal
significance of its actions.” eSentio’s Opp’n to HBR’s Mot. at 3. eSentio further argues that the
undisputed facts “establish th[is] [ ] element as a matter of law” because “HBR knew of
Mukerji’s contractual obligations, knew that he was prohibited from taking any action, directly
or indirectly, to solicit, divert or take away ‘Clients’ and ‘Prospects’ as those terms are defined in
the [Employment] Agreement, and knew that those restrictions applied for one year after his
eSentio employment ended.” Id. at 4.
The Court finds that evidence in the record creates a genuine issue of material fact as to
whether HBR had the requisite knowledge of Mukerji’s Employment Agreement. The District
33 of Columbia Court of Appeals “ha[s] repeatedly stated that the ‘law of tortious interference with
business or contractual relationships derives from the Restatement (Second) of Torts.’” Whitt v.
Am. Prop. Constr., P.C., 157 A.3d 196, 203 (D.C. 2017) (citation omitted). As eSentio correctly
notes, see eSentio’s Opp’n at 3, the Restatement (Second) of Torts provides the following on the
issue of knowledge:
To be subject to liability [for intentional interference with performance of a contract], the actor must have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract. . . . But it is not necessary that the actor appreciate the legal significance of the facts giving rise to the contractual duty, at least in the case of an express contract. If he knows those facts, he is subject to liability even though he is mistaken as to their legal significance and believes that the agreement is not legally binding or has a different legal effect from what it is judicially held to have.
Restatement (Second) of Torts § 766 cmt. i.
Here, the undisputed evidence demonstrates
. See HBR’s Reply to eSentio’s Facts
¶ 82 (not disputing that “[a]t the time it prepared and submitted its response to the [ ] RFP for the
Akin Project, HBR had knowledge that Mukerji had executed the [Employment] Agreement and
that the Agreement included specific restrictive covenants”). Additionally, a reasonable juror
could find that HBR knew about the facts establishing that Akin qualified as a client or prospect
under Mukerji’s Employment Agreement, and thus, for purposes of eSentio’s tortious
interference with contract claim, knew that Mukerji’s restrictive covenant applied to Akin. See
Restatement (Second) of Torts § 766 cmt. i. Specifically, evidence in the record demonstrates
that, on December 27, 2016, Whelan informed Erik Schmidt and Mukerji that eSentio performed
work for Akin as late as April 2015, see eSentio’s Mot., Ex. 98
) at HBR_00000517, which, as already explained,
establishes that Akin was a “client” covered by the restrictive covenant, see Part III.A.1, supra.
34 Although HBR argues that this evidence “cannot, as a matter of law and common sense, impute
liability to HBR because it is undisputed that HBR had already submitted its [NetDocuments
Conversion Project] proposal to Akin[] . . . on December 22, 2016,” HBR’s Reply at 3, HBR’s
position conflicts with the undisputed fact that HBR did not “submit[] its statement of work for
[Akin’s] NetDocuments [Conversion] [P]roject” until December 28, 2016, HBR’s Facts ¶ 56; see
eSentio’s Reply to HBR’s Facts ¶ 56. In any event, a reasonable juror could conclude that this
same e-mail also demonstrates that Schmidt knew facts establishing that Mukerji’s restrictive
covenant precluded Mukerji from working on the Akin Project prior to December 27, 2016, as
Whelan asked Schmidt, “Do you still think this will be a problem with our working with
Rajiv[?]” eSentio’s Mot., Ex. 98 (
) at HBR_00000517 (emphasis added). Thus, the Court concludes that a
reasonable juror could find that HBR had the requisite knowledge of Mukerji’s restrictive
covenant and the facts giving rise to his contractual duty not to solicit Akin.
The cases cited by HBR in support of its positions are distinguishable from the facts in
this case. HBR relies on Tuxedo Contractors, Inc. v. Swindell-Dressler Co. for the proposition
that a defendant lacks the requisite knowledge of a contract if it is “entitled to rely on
assurances . . . that there would be no contractual conflicts.” HBR’s Opp’n at 6 (citing 613 F.2d
1159, 1163–64 (D.C. Cir. 1979)). However, this Circuit’s holding in that case was based on the
principle that “a party, when told by a prospective client that there is no conflicting contract,
cannot be held to have knowledge that a binding agreement does in fact exist, at least in the
absence of independent evidence of such knowledge.” Tuxedo Contractors, 613 F.2d at 1164.
Here, HBR asserts that it relied on assurances from Mukerji, not Akin. See HBR’s Opp’n at 6.
Furthermore, although HBR claims that Akin “advised” it that Mukerji’s restrictive covenant did
35 not apply to Akin, HBR’s Mem. at 8, the record evidence cited to support this assertion shows
that Akin did not do so, but merely informed HBR that eSentio last performed services for HBR
in April of 2015 and sought HBR’s advice regarding whether the restrictive covenant applied,
see eSentio’s Mot., Ex. 98 (
) at HBR_00000517 (stating that “the last invoice that [Akin] received from eSentio was
from April 2015” and asking, “Do you still think that this will be a problem with our working
with Rajiv since almost two years have passed?”). In any event, the evidence already discussed,
including the e-mail from Whelan suggesting that at some point Erik Schmidt of HBR believed
that there “w[ould] be a problem with [Akin] working with Rajiv,” id., Ex. 98 (
) at HBR_00000517, constitutes
“independent evidence of [HBR’s] knowledge” of the contract and the facts giving rise to
Mukerji’s duty not to solicit Akin, see Tuxedo Contractors, 613 F.2d at 1164. Mercer
Management Consulting, another case on which HBR relies, see HBR’s Opp’n at 6, is also
distinguishable. In that case, the court concluded that, “during the time of [the defendants’]
interference with [the plaintiff’s] clients, [they] apparently did not believe they were under any
restrictions against competitive activities,” 920 F. Supp. 219, 239 (D.D.C. 1996) (emphasis
added), based on their testimony “that they had forgotten about the agreements,” id. at 227, and
thus, they could not have “acted with the level of wrongful intent to constitute tortious
interference,” id. at 239. Here, it is undisputed that
. Therefore, the cases cited by HBR do not affect the Court’s conclusion that
a reasonable juror could find that HBR possessed the requisite knowledge of Mukerji’s
Employment Agreement and the facts giving rise to Mukerji’s duty not to solicit Akin.
36 b. Intentional Procurement of a Breach
HBR argues that it “could not have intentionally procured [a] breach [by Mukerji]
because it had no knowledge that Mukerji was violating his restrictive covenant.” HBR’s Mem.
at 8. It further argues that “even if [Akin] constituted a ‘client’ or ‘prospect’ under Mukerji’s
restrictive covenant, Mukerji did not breach his contract because he did not ‘solicit, divert, or
take away’ [Akin] from eSentio.” Id. Finally, HBR argues that eSentio’s tortious interference
with contract claim must fail because “eSentio has not shown that HBR’s conduct was
improper,” as “HBR relied on Mu[k]er[j]i’s representations [that Akin was not subject to the
restrictive covenant] and there is no evidence that HBR’s motive in submitting the proposal was
to interfere with Mu[k]er[j]i’s Employment Agreement.” HBR’s Opp’n at 7.
eSentio responds that
it] assigned Mukerji to be the lead on the Akin
[P]roject, tasked him with writing and contributing to the bid for the Akin work, and required
him to interface directly with Akin decision-makers on HBR’s behalf to pitch its services—even
after learning that Akin fell squarely within the scope of eSentio prohibited ‘clients’ covered by
the [restrictive covenant].” eSentio’s Mem. at 26 (internal citation omitted). eSentio further
argues that it “is not required to prove ‘impropriety’ to establish a claim of tortious interference
with contract under [District of Columbia] law” because that burden only arises if “the defendant
meets [its] burden of proof” of establishing that its “conduct was ‘legally justified,’” which it
contends HBR has failed to do here. eSentio’s Reply at 10. Finally, eSentio argues that even if
HBR had satisfied that burden, its “defense would fail, because the undisputed facts demonstrate
that HBR’s interference with Mukerji’s [Employment] Agreement, was ‘improper,’” id.,
37 including evidence demonstrating that HBR “intentionally misled Akin about the application of
Mukerji’s [Employment] Agreement” to Akin, id. at 11.
As the Restatement instructs, interference with performance of a contract must be both
“intentional[] and improper[].” Restatement (Second) of Torts § 766. To satisfy the intentional
requirement, a plaintiff may show that a defendant acted “with th[e] purpose or desire” to
interfere, id. § 766 cmt. j, or that “the actor ‘kn[e]w[] that the interference [wa]s certain or
substantially certain to occur as a result of his action,’” Whitt, 157 A.3d at 202 (quoting
Restatement (Second) of Torts § 766 cmt. j). As to the “improper” requirement, the District of
Columbia Court of Appeals has instructed that “[t]he Restatement’s reference to ‘improper’
conduct is simply another way of saying that the alleged tortfeasor’s conduct must be legally
justified.” Sorrells, 565 A.2d at 290. Thus, under the burden-shifting framework in Sorrells, the
plaintiff need not demonstrate that interference is improper to establish a prima facie case of
tortious interference with contract; rather, “[o]nce a prima facie case has been established, it
becomes the defendant’s burden to prove that [its] conduct was” not improper, i.e., that it was
“legally justified or privileged.” Id. (internal quotation marks and citation omitted); see NCRIC,
Inc. v. Columbia Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 893 (D.C. 2008) (“Wrongful
conduct is not an element of a prima facie case of tortious interference under District of
Columbia law.”).
Here, the Court finds that evidence in the record creates a genuine factual issue regarding
whether HBR intentionally procured Mukerji’s breach of the restrictive covenant with respect to
Akin. As already explained, the Court concludes that evidence in the record demonstrates that
Mukerji breached his restrictive covenant by soliciting Akin’s business, including contacting
Akin directly with respect to HBR’s proposal for the Akin Project and preparing and submitting
38 HBR’s bid. See Part III.A.1, supra. The Court further concludes that a reasonable juror could
find that HBR induced Mukerji to take these actions, as HBR included Mukerji on the Akin
Project team and encouraged him to communicate directly with Whelan regarding HBR’s
proposal. See, e.g., eSentio’s Mot., Ex. 55 (
) at HBR_00001342–43 (asking that Mukerji or Fashola
reply to an e-mail from Whelan regarding the Information Governance Project); see also id., Ex.
54 ( ) at HBR_00001336
(Mukerji stating, “[w]e had a good call with Akin – they need a SOW,” to which Ryan responds,
“Glad to hear it”); id., Ex. 53 (
) at HBR_00001299 ( “thank[ing Mukerji] for connecting with [Whelan]” regarding the
Information Governance Project
a reasonable juror could also conclude that HBR
“kn[e]w that interference [with the covenant] [wa]s certain or substantially certain to occur as a
result of [its] action.” Whitt, 157 A.3d at 202. Based upon this evidence, the Court must
conclude that a reasonable juror could find that HBR acted with the intent necessary to establish
a tortious interference with contract claim. See Onyeoziri v. Spivok, 44 A.3d 279, 288 (D.C.
2012) (concluding that a plaintiff “presented evidence in support of” the defendants’ intent
sufficient to make out a prima facie case of tortious interference with contract where the
defendants “acted with the knowledge that they were impeding [the plaintiffs’] ability to perform
[his] contract”). Accordingly, the Court finds that a genuine factual dispute exists with respect to
whether HBR intentionally induced Mukerji to breach his restrictive covenant as to Akin. See
39 Cooke v. Griffiths-Garcia Corp., 612 A.2d 1251, 1258 (D.C. 1992) (“Summary judgment is
inappropriate where questions of intent are at issue.”).
HBR’s counterarguments are unpersuasive. Because the Court has concluded that a
reasonable juror could find that HBR had knowledge of the facts giving rise to Mukerji’s
contractual duty with respect to Akin, see Part III.B.1.a., supra, and that Mukerji violated his
restrictive covenant as to Akin, see Part III.A, supra, the Court must reject HBR’s arguments that
it “could not have intentionally procured the breach because it had no knowledge that Mukerji
was violating his restrictive covenant” and because “Mukerji did not . . . ‘solicit, divert, or take
away’ [Akin] from eSentio,” HBR’s Mem. at 8.
The Court must also reject HBR’s argument that “eSentio has not shown that HBR’s
conduct was improper.” HBR’s Opp’n at 7. As the District of Columbia Court of Appeals has
instructed, “[w]rongful conduct is not an element of a prima facie case of tortious interference
under District of Columbia law.” NCRIC, Inc., 957 A.2d at 893. Thus, “[i]nstead of the plaintiff
bearing the burden of proving that the defendant’s conduct was wrongful, it is the defendant who
bears the burden of proving that it was not.” Id. at 901. And, HBR has not established as a
matter of law that its conduct was not improper. A “legal justification or privilege” defense “is
[ ] narrow [in] scope[] . . . and protects the actor only when (1) he has a legally protected interest,
and (2) in good faith asserts or threatens to protect it, and (3) the threat is to protect it by
appropriate means.” Id. (quoting Restatement (Second) of Torts § 773). HBR has made no
attempt to identify a “legally protected interest” to support such a defense, and the Restatement
instructs that an interest in competition alone will not suffice to defeat a tortious interference
with contract claim. See Restatement (Second) of Torts § 768 cmt. h (“The rule that competition
is not an improper interference . . . does not apply to inducement of breach of contract.”). Thus,
40 HBR has failed to demonstrate that its conduct was not improper, and consequently, eSentio
need not prove that HBR’s conduct was improper. See Sorrells, 565 A.2d at 290.
Finally, HBR’s assertion that it relied on Mukerji’s representations regarding his
contractual obligations, see HBR’s Opp’n at 7, “does not necessarily insulate it from liability
because its reliance must be reasonable,” Cooke, 612 A.2d at 1258. Here, because HBR admits
that it knew of Mukerji’s restrictive covenant and, indeed, had a copy of it, and evidence in the
record demonstrates that it also was aware of facts establishing that Akin was covered by the
restrictive covenant, a reasonable juror could conclude that HBR’s reliance on Mukerji’s
representations was not reasonable. See id. (concluding that a defendant’s reliance on an
attorney’s incorrect representations regarding a contract were not reasonable based on facts
within the defendant’s knowledge). Thus, the Court concludes that a genuine factual issue exists
as to whether HBR intentionally induced Mukerji to breach his restrictive covenant as to Akin.
c. Damages
HBR finally argues that “eSentio cannot show that it suffered damages as a result of
HBR’s alleged interference” “because any ‘damages’ are fairly attributable to eSentio’s own
acts: not properly scoping work per Akin’s request.” HBR’s Opp’n at 8. Specifically, it argues
that, “[i]n light of the evidence showing that eSentio’s proposal was not what Akin was looking
for[,] . . . eSentio cannot credibly claim that . . . it would have likely been selected for the Akin
[P]roject but for HBR’s alleged interference.” Id. eSentio responds that “whether eSentio would
have won the Akin Project, and the amount of damages that flow therefrom, is a question for the
jury,” and, in any event, “the undisputed facts give eSentio a strong likelihood of prevailing on
41 this component of the damages.” eSentio’s Reply at 13. 8
The Court concludes that summary judgment for eSentio on its claim for damages
flowing from its loss of the Akin Project is inappropriate due to the existence of genuine factual
issues regarding whether eSentio would have acquired the Akin Project absent HBR’s alleged
interference. On the one hand, HBR has identified evidence that could a lead a reasonable juror
to conclude that eSentio would not have been awarded the Akin Project. For example, it is
undisputed that eSentio’s bid was significantly higher in cost than the other three bids submitted
to Akin. See HBR’s Facts ¶¶ 35, 57, 59–60 (asserting that eSentio’s proposal estimated costs of
$1,514,250, while HBR, Fireman & Company, and Kraft and Kennedy submitted proposals
estimating costs of $161,920, $156,750, and $115,000, respectively); see also eSentio’s Reply to
HBR’s Facts ¶¶ 35, 57, 59–60. Additionally, Whelan testified that he perceived eSentio’s
proposal as too broad in scope, see, e.g., HBR’s Facts ¶ 38 (quoting Whelan’s testimony that
“there were several items in [the proposal] that weren’t necessarily NetDocuments-related”), and
that he had “the sense that [eSentio] w[as not] listening to [Akin],” HBR’s Mot., Ex. 10
(Deposition of TJ Whelan (July 9, 2018) (“Whelan Dep.”)) 116:16. Furthermore, Whelan also
testified that he had received negative references regarding eSentio’s work. See HBR’s Facts
¶ 33 (“Whelan recalled that . . . Finnegan and Henderson had a negative experience with eSentio
8 eSentio also claims that “other damages are available” for its tortious interference with contract claim, namely, “damages suffered by eSentio as a result of th[e] ‘head start’ advantage” gained by HBR due to winning the Akin Project, including “eSentio’s loss of its status as a market leader and the lost value of its NetDocuments investment.” eSentio’s Reply at 11–12. However, for several reasons the Court need not address whether eSentio is entitled to these damages to resolve the parties’ motions for summary judgment. First, the Court has already concluded that genuine issues of material fact preclude summary judgment for eSentio on its tortious interference with contract claim. Second, the Court cannot find that HBR is entitled to summary judgment as to these damages because its only argument for why these damages are unavailable relies on its position that eSentio “cannot prove that it would have been awarded the [Akin and King & Spalding] [P]roject[s] if HBR was not involved,” HBR’s Reply at 8, which is an assertion the Court has concluded is subject to a genuine factual dispute.
42 related to []billing.”); see also id. ¶ 34 (“Whelan also received a negative reference from the law
firm Baker Donelson regarding eSentio[’s] []billing[.]”),
On the other hand, eSentio has identified evidence that could lead a reasonable juror to
conclude that eSentio would have prevailed on its bid for the Akin Project but for HBR’s
interference. For example, it is undisputed that “Mukerji was the deciding factor in [Akin’s]
selection” of HBR for the Akin Project, eSentio’s Facts ¶ 72; see HBR’s Reply to eSentio’s Facts
¶ 72; eSentio’s Mot., Ex. 23 (Whelan Dep.) 48:12–16 (agreeing that “if [ ] Mukerji had not gone
to HBR, [Whelan] would not have considered [HBR] for the NetDoc[uments] conversion
piece”), which could lead a reasonable juror to conclude that “[h]ad Mukerji not been an integral
part of the HBR proposal effort[,] Akin would not have selected HBR for the work,” eSentio’s
Reply at 13 (emphasis omitted). Furthermore, eSentio identifies evidence suggesting that the
cost of its bid was not disqualifying, as it asserts that the cost was based on “a number of services
and optional services,” eSentio’s Reply to HBR’s Facts ¶ 35, and Akin admits that if it had not
selected HBR, it “would have re-engaged eSentio” and “may have selected some of the services
from eSentio’s ‘menu’ [of] services,” HBR’s Facts ¶ 65; see HBR’s Mot., Ex. 10 (Whelan Dep.)
211:13–17 (testifying that he “most likely” “would [ ] have provided eSentio with an opportunity
to discuss the menu of value-added services” in its bid). Indeed, a reasonable juror could
conclude from Whelan’s testimony that Akin viewed eSentio as the only viable alternative to
HBR. See eSentio’s Mot., Ex. 109 (Whelan Dep.) 32:10–14 (agreeing that Fireman & Company
and Kraft and Kennedy “fell out of consideration” due to “not having done a large
NetDoc[uments] cutover and other reasons”); see also id., Ex. 109 (Whelan Dep.) 33:9–14
(agreeing that “[e]Sentio and HBR [we]re the final vendors under consideration”).
43 Additionally, eSentio has identified evidence that could lead a reasonable juror to
conclude that eSentio was the vendor most qualified to perform the work, or even the only
vendor qualified to perform the work. Specifically, it is undisputed that as of the time of the
Akin Project bidding, eSentio had “handled at least [seventeen] NetDocuments [c]onversion
projects and related NetDocuments engagements,” including “[e]ight . . . at AmLaw 100 firms,”
eSentio’s Facts ¶ 67; see HBR’s Reply to eSentio’s Facts ¶ 67, whereas “HBR had not performed
[or bid on] a NetDocuments conversion project for even one AmLaw 200 firm, and . . . had
performed NetDocuments work for only one smaller firm,” eSentio’s Facts ¶ 66; see HBR’s
Reply to eSentio’s Facts ¶ 66. Indeed, HBR admitted that it “did not have experience with
NetDocuments conversions for AmLaw 100 law firms without Mukerji,” eSentio’s Facts ¶ 58;
see HBR’s Reply to eSentio’s Facts ¶ 58; eSentio’s Mot., Ex. 10 (Affidavit of Thomas Gaines
(July 17, 2018) (“Gaines Aff.”)) ¶ 22 (“HBR[] [ ] did not have established NetDocuments
experience with AmLaw 100 law firms before hiring [ ] Mukerji.”). Additionally, eSentio
identified evidence demonstrating that individuals in the industry, including King & Spalding’s
Chief of Information Services Strategy and Office Integration, eSentio’s Mot., Ex. 10 (Gaines
Aff.) ¶ 3, who “was on the selection committee for th[e] [King & Spalding] [P]roject,” id., Ex.
10 (Gaines Aff.) ¶ 20, believed that “eSentio was a leader in the Document Management space
and [in] NetDocuments in particular,” id., Ex. 10 (Gaines Aff.) ¶ 7 (“In 2016, it was my
impression from talking to colleagues and attending industry events that eSentio had more
experience with NetDocuments implementations than any other vendor for AmLaw 100 firms
like King & Spalding and Akin . . . . To my knowledge, eSentio was the only consultancy with
AmLaw 100 experience with NetDocuments and had developed deep expertise. This evaluation
was shared by other IT colleagues and CIOs from other AmLaw 100 firms.”); id. Ex. 32
44 ( ) at LTG – 295 (quoting the NetDocuments CEO as
saying that “eSentio is an important part of NetDocuments[’] emergence as the leader in cloud
based Document Management and we are proud to work closely with the [f]irm”). This evidence
creates a genuine factual issue as to whether eSentio would have been awarded the Akin Project
absent HBR’s alleged interference, making summary judgment on this issue inappropriate. See
Zirintusa v. Whitaker, 674 F. Supp. 2d 1, 8 (D.D.C. 2009) (denying summary judgment on a
plaintiff’s tortious interference with contract claim in part because “there [we]re genuine issues
of material fact with respect to . . . the extent of damages suffered by [the plaintiff]” due to the
alleged interference).
In sum, the Court concludes that genuine factual issues exist as to whether HBR knew the
facts giving rise to Mukerji’s contractual duty not to solicit Akin, whether HBR intentionally
procured Mukerji’s breach of that duty, and whether HBR’s alleged interference damaged
eSentio. Accordingly, the Court concludes that it must deny both eSentio’s and HBR’s motions
for summary judgment as to eSentio’s tortious interference with contract claim with respect to
Akin.
2. King & Spalding
HBR does not dispute that Mukerji’s restrictive covenant applies to King & Spalding or
that it had knowledge of that fact. See HBR’s Reply to eSentio’s Facts ¶ 56 (not disputing that
“Mukerji admitted that [King & Spalding] was covered by the restrictive covenant and that he
informed HBR of this restriction”); see also id. ¶ 55 (not disputing that HBR “understood that
[King & Spalding] was an eSentio ‘client’”). However, HBR argues that
[t]here is no evidence to establish the second, third, and fourth elements of [eSentio’s] claim for tortious interference with contract as it relates to [King & Spalding] because: (1) HBR did not know that [ ] Mukerji’s restrictive covenant applied to working on an engagement with [King & Spalding], (2) HBR did not
45 scope of the restrictive covenant is irrelevant to the Court’s inquiry as to the knowledge element
of eSentio’s claim. See Restatement (Second) of Torts § 766 cmt. i (“[I]t is not necessary that
the actor appreciate the legal significance of the facts giving rise to the contractual duty[.]”); see
Prudential Real Estate Affiliates, Inc. v. Long & Foster Real Estate, Inc., 208 F.3d 210 (4th Cir.
2000) (table) (concluding that a defendant could not “insulate itself from [a] tortious interference
[with contract] claim by asserting that it did not know about the specific terms of the [ ]
agreement”); Don King Prods., Inc. v. Douglas, 742 F. Supp. 741, 775 (S.D.N.Y. 1990) (“In a
tortious interference action, a plaintiff is not required to prove that the defendant had perfect or
precise knowledge of the terms and conditions of the contracts in issue.”). Accordingly, the
Court concludes that eSentio has satisfied the knowledge element of its claim for tortious
interference with contract against HBR with respect to King & Spalding.
b. Intentional Procurement of a Breach
HBR argues that it did not intentionally procure a breach of Mukerji’s restrictive
covenant as to King & Spalding because “Mukerji did not breach the [ ] Agreement, but even
assuming that he did, HBR [ ] did not intentionally procure th[at] breach” because it “‘walled off
[ ] Mukerji such that he was not part of any discussions with the client’” and “Mukerji[ ] . . . had
no role in the preparation or submission of HBR’s response to [King & Spalding’s] RFP.”
HBR’s Opp’n at 9. HBR further argues that its conduct was not “improper” for these same
reasons. See id. at 10. eSentio responds that Mukerji did breach his Employment Agreement
and that HBR induced Mukerji’s breach by “intentionally allow[ing] Mukerji to pitch himself for
the work using HBR as a surrogate[] and . . . creat[ing] an ineffective ‘wall’ to camouflage
Mukerji’s efforts to divert [King & Spalding] to HBR.” eSentio’s Opp’n to HBR’s Mot. at 17.
It further argues that “HBR acted ‘without legal justification’” when it “attempted to disquise
47 [its] conduct by omitting Mukerji from direct solicitation efforts[] but making it clear to [King &
Spalding] that it was Mukerji’s experience and expertise that were being pitched.” eSentio’s
Reply at 19.
The Court concludes that genuine factual issues exist as to whether HBR intentionally
procured a breach by Mukerji of the restrictive covenant as to King & Spalding. As already
explained, a reasonable juror could infer from evidence in the record that Mukerji contributed to
HBR’s efforts to obtain the King & Spalding Project and thereby breached his restrictive
covenant. Thus, the Court must reject HBR’s argument that eSentio’s tortious interference with
contract claim fails because no breach occurred. See HBR’s Opp’n at 9. Additionally, the Court
finds that a reasonable juror, viewing the facts in a light most favorable to eSentio, could also
conclude that HBR induced Mukerji to breach the restrictive covenant by seeking his input on
and otherwise including him in the King & Spalding Project proposal process. A reasonable
juror reaching these conclusions could also find that HBR’s attempts to “wall off” Mukerji from
the bidding process were not genuine (given that it included Mukerji in efforts to obtain the
project), and thus, were merely attempts to conceal Mukerji’s actual involvement in the proposal.
Based on the plausibility of a reasonable jury reaching these conclusions, in addition to the
undisputed fact that HBR knew Mukerji’s restrictive covenant applied to King & Spalding, a
reasonable juror could also conclude that HBR “kn[e]w[] that interference [with the restrictive
covenant] [wa]s certain or substantially certain to occur as a result of [its] action[s].” Whitt, 157
A.3d at 202 (quoting Restatement (Second) of Torts § 766 cmt. j). Accordingly, the Court finds
that a reasonable juror could conclude that HBR intentionally procured Mukerji’s breach as to
the King & Spalding Project.
48 Finally, the Court must reject HBR’s argument that eSentio’s claim fails because HBR’s
conduct was not “improper” as a matter of law. As already explained in Part III.B.1.b, supra, to
show that its conduct was not improper, HBR must demonstrate that “(1) [it] has a legally
protected interest, and (2) in good faith asserts or threatens to protect it, and (3) the threat [wa]s
to protect it by appropriate means.” NCRIC, Inc., 957 A.2d at 901. Again, HBR has failed to
identify any “legally protected interest” it has that justified any intentional interference with
Mukerji’s restrictive covenant as to King & Spalding. Thus, the Court must conclude that
genuine factual issues exist as to whether HBR intentionally procured Mukerji’s breach of the
restrictive covenant as to the King & Spalding Project.
HBR argues that “there is no question that eSentio cannot prove the [damages] element”
of its tortious interference with contract claim with respect to King & Spalding because “the
evidence shows that there was zero chance eSentio would have been awarded the [King &
Spalding] [P]roject, even if HBR had not submitted a proposal.” HBR’s Opp’n at 11 (emphasis
removed). Specifically, it argues that King & Spalding “rejected eSentio’s RFP before HBR
even pitched the project” and that, “without HBR in the mix, Adaptive would have won, not
eSentio.” Id. at 12. eSentio responds that “a reasonable jury could conclude that . . . it would
have been more likely than not that [King & Spalding] would have selected eSentio, or at least
given eSentio renewed consideration” for the King & Spalding Project had HBR not interfered.
eSentio’s Opp’n to HBR’s Mot. at 34.
Again, the Court finds that summary judgment against or in favor of eSentio on its claim
for damages arising from its loss of the King & Spalding Project would be inappropriate because
genuine factual issues exist as to whether eSentio would have been awarded the King & Spalding
49 Project. HBR has identified evidence that could lead a reasonable juror to find that eSentio
would not have been awarded the project in any circumstance. For example, it cites the
testimony of Eugene Viscelli—King & Spalding’s Chief Information Officer, see HBR’s Facts ¶
68; eSentio’s Reply to HBR’s Facts ¶ 68, and a “decisionmaker [with respect to] who King &
Spalding engaged for the [King & Spalding] [P]roject,” HBR’s Facts ¶ 68; see eSentio’s Reply
to HBR’s Facts ¶ 68 (not disputing that Viscelli was a decisionmaker, but “disput[ing] . . . that . .
. [he] made the decision . . . on his own”)—that he “[p]ersonally” ruled out eSentio on January
18, 2017, HBR’s Mot., Ex. 26 (Deposition of Eugene Viscelli (June 28, 2018) (“Viscelli Dep.”))
113:16–18, approximately one week after King & Spalding issued the RFP. Additionally, it cites
Viscelli’s testimony that Adaptive, not eSentio, was King & Spalding’s “second choice,”
eSentio’s Mot., Ex. 110 (Viscelli Dep.) 64:19, and that Viscelli “hated working with” and
“mistrust[ed]” eSentio, HBR’s Mot., Ex. 26 (Viscelli Dep.) 79:13–15.
However, eSentio has identified evidence that could lead a reasonable juror to conclude
that it would have been awarded the King & Spalding Project but for HBR’s interference. For
example, it has identified evidence that could lead a reasonable juror to conclude that, absent
Mukerji’s participation, HBR would not have been able to provide adequate responses to the
King & Spalding RFP. Specifically, it is undisputed that the “RFP required bidders to identify
their specific experience with iManage to NetDocuments conversion and migration in firms of
similar size” and to answer other specific questions regarding NetDocuments. See eSentio’s
Facts ¶ 57 (asserting that “[t]he [King & Spalding] RFP required bidders . . .to answer questions
such as . . . how long do you anticipate this consulting engagement will require?”); see also
HBR’s Reply to eSentio’s Facts ¶ 57, and that “HBR did not have experience with
NetDocuments conversions for AmLaw 100 law firms without Mukerji,” eSentio’s Facts ¶ 58;
50 see HBR’s Reply to eSentio’s Facts ¶ 58. Such evidence could lead a reasonable juror to
conclude that HBR would not have been able to prepare a competitive proposal without
Mukerji’s involvement.
Moreover, eSentio has identified evidence that could lead a reasonable juror to conclude
that Viscelli would have awarded the King & Spalding Project to eSentio over Adaptive and
other competitors. As already explained, eSentio has identified evidence that could lead a
reasonable juror to conclude that eSentio was the most qualified, or only qualified, vendor for
NetDocuments projects like the King & Spalding Project. See Part III.B.1.c., supra; see also
eSentio’s Mot., Ex. 110 (Viscelli Dep.) 64:10–13 (testifying that he could not identify “an
AmLaw 100 firm that Adaptive ha[d] converted from iManage to NetDocs”). Additionally,
evidence in the record demonstrates that King & Spalding valued prior experience with iManage
to NetDocuments conversions at similar-sized firms, see eSentio’s Facts ¶ 57 (describing several
questions in the King & Spalding RFP related to prior NetDocuments experience); see also
eSentio’s Mot., Ex. 107 (Deposition of Mark Denner (June 15, 2018)) 240:3–8 (testifying that
King & Spalding “probably” “express[ed] during the proposal process that it was important
whichever organization [it] selected for the NetDocuments conversion project have experience in
that space”). Furthermore, although Viscelli testified that Adaptive was King & Spalding’s
“second choice,” eSentio’s Mot., Ex. 110 (Viscelli Dep.) 64:19, he also agreed that he at one
point told eSentio that he “ruled [Adaptive] out because [it was] . . . ‘not strategic,’” id., Ex. 110
(Viscelli Dep.) 67:1–4. Based on this evidence, a reasonable juror could conclude that eSentio
would have been awarded the King & Spalding Project absent HBR’s alleged tortious
interference.
51 Thus, the Court concludes that genuine issues of material fact exist as to whether HBR
intentionally induced Mukerji to breach his restrictive covenant as to King & Spalding and
whether HBR’s conduct caused eSentio to suffer damage. Accordingly, the Court must deny
both eSentio’s and HBR’s motions for summary judgment on eSentio’s tortious interference with
contract claim as to King & Spalding.
C. eSentio’s Tortious Interference with Prospective Economic Advantage and/or Prospective Contracts Claim (Count III)
The parties also move for summary judgment on Count III of the Complaint, see
eSentio’s Mot. at 1; HBR’s Mot. at 1; Mukerji’s Mot. at 1, which alleges tortious interference
with eSentio’s expectancy in acquiring the Akin and King & Spalding Projects against both HBR
and Mukerji, see Compl. ¶¶ 65–76.
To establish a claim for tortious interference with economic advantage under District of Columbia law, the evidence must show (1) the existence of a valid business . . . expectancy, (2) knowledge of the . . . expectancy on the part of the interferer, (3) intentional interference inducing or causing a . . . termination of the . . . expectancy, and (4) resultant damage.
Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir. 1995). The Court will
address each of these elements in turn.
1. The Existence of a Valid Business Relationship or Expectancy
HBR argues that eSentio did not have a valid business expectancy in the Akin or King &
Spalding Projects because both firms were “looking at several vendors as potential partners for
this work.” HBR’s Mem. at 15; see id. at 17 (asserting that eSentio “had no valid business
expectancy, as [King & Spalding] put out [ ] a competitive Request for Proposal to five different
consultants”). As to the Akin Project specifically, HBR argues that “eSentio had no active
business relationship with [Akin] during this time period,” “Whelan had received negative
feedback about eSentio from peers in the industry,” and “eSentio’s proposal was both too broad
52 in scope and multiples more expensive than other proposals received by the firm.” HBR’s Mem.
at 15. As to the King & Spalding Project, HBR further argues that eSentio did not have a valid
business expectancy because “[j]ust over one week after [King & Spalding] issued the RFP,
eSentio was out of the running, as Viscelli determined on January 18, 2017, that he was not
going to select eSentio.” Id. at 17–18. Mukerji similarly argues that “Akin and [King &
Spalding] gave eSentio every opportunity to win their business[,] . . . [and,] [i]n a competitive
bidding environment, eSentio can reasonably expect no more than that.” Mukerji’s Reply at 16–
17.
eSentio responds that its “expectation of securing both the Akin Project and the [King &
Spalding] Project was commercially reasonable” because it “was the only consultant in the
country that had the experience to effectively transition a firm as large as Akin [and King &
Spalding] to NetDocuments,” eSentio’s Mem. at 28, and its “market leader status, its history of
successful bids, and [ ] extensive experience compared to HBR’s utter lack of experience on
similar contracts[] . . . g[a]ve rise to its expectancy of a contract award,” eSentio’s Opp’n to
HBR’s Mot. at 23. It further argues that, as to Akin, “only two viable competitors existed—
eSentio and HBR,” and thus, “absent Mukerji’s efforts to solicit Akin, HBR would not have been
qualified and would not have been selected, leaving eSentio as the only viable alternative.” Id.
Finally, eSentio argues that it “had a commercially reasonable expectation of obtaining the [King
& Spalding] Project” because, inter alia, it “had an ongoing relationship with [King & Spalding]”
and “[o]ther vendors competing for the [King & Spalding] work were eliminated for various
reasons, including lack of responsiveness and lack of consulting experience.” Id. at 28–29.
District of Columbia law protects “expectancies . . . of future contractual relations, such
as . . . the opportunity of obtaining customers.” Carr v. Brown, 395 A.2d 79, 84 (D.C. 1978). As
53 this Court has previously recognized, such expectancies “arise where ‘there is a background of
business experience on the basis of which it is possible to estimate . . . the likelihood that the
plaintiff would have received [the contract’s benefits] if the defendant had not interfered.’” Nat’l
R.R. Passenger Corp. v. Veolia Transp. Servs., Inc., 791 F. Supp. 2d 33, 57 (D.D.C. 2011)
(omission and alteration in original) (quoting Carr, 395 A.2d at 84). However, expectancies of
prospective contracts must be “commercially reasonable to anticipate.” Id. at 56 (quoting
Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992)). “Disappointed bidders attempting to
demonstrate a valid business expectancy must therefore show a ‘reasonable likelihood’ of
receiving a contract,” id. (quoting Ellsworth Assocs., Inc. v. United States, 917 F. Supp. 841, 850
(D.D.C.1996)), and “[m]ere ‘speculative contractual expectations’ or ‘hope’ are insufficient,” id.
(internal citation omitted).
Here, the Court finds that eSentio has provided evidence of its business experience from
which a reasonable factfinder could conclude that eSentio had a reasonable likelihood of
securing both the Akin and King & Spalding Projects. For example, as discussed in Part
III.B.1.c, supra, eSentio has identified evidence that could lead a reasonable juror to conclude
that eSentio was the most qualified, or only qualified, vendor in the NetDocuments conversion
space at the time of the bids for the Akin and King & Spalding Projects. Moreover, as already
discussed in detail in Part III.B.1.c, supra, and Part III.B.2.c, supra, eSentio has identified
additional evidence that could lead a reasonable juror to conclude that it was likely to prevail on
its bid for the Akin and King & Spalding Projects absent HBR’s alleged interference, such as
evidence demonstrating that Akin viewed eSentio and HBR as the only viable competitors for
the Akin Project, see eSentio’s Opp’n to HBR’s Mot., Ex. 109 (Whelan Dep.) 33:9–14 (agreeing
that “[e]Sentio and HBR [we]re the final vendors under consideration”), and that King &
54 Spalding had ruled out other competitors, see eSentio’s Mot., Ex. 110 (Viscelli Dep.) 67:1–4.
This evidence suffices to create a genuine factual issue as to whether eSentio had a valid
business expectancy in the Akin Project. See Nat’l R.R. Passenger Corp., 791 F. Supp. 2d at 57
(finding that the plaintiff demonstrated a genuine factual issue as to whether it had a valid
business expectancy in a commuter rail project based on evidence that the plaintiff “ha[d] a
strong presence in commuter rail operations,” “had outscored [the defendant] . . . in at least two
recent bid competitions for similar . . . contracts,” and “[w]as one of ‘the Big Three’ in providing
commuter rail services” (citations omitted)).
HBR’s counterarguments do not establish otherwise. To the extent that it argues that
eSentio cannot demonstrate a valid business expectancy solely because Akin and King &
Spalding “w[ere] competitively bidding [out] the NetDocuments conversion consulting work,”
HBR’s Mem. at 14, this Court rejects that argument for all the reasons previously explained in
National Railroad Passenger Corp., see 791 F. Supp. 2d at 56–57 (rejecting the nearly identical
argument that “a disappointed bidder in a government procurement process can never establish a
legitimate business expectancy”). Additionally, as to the Akin Project, HBR argues that
eSentio’s prior NetDocuments experience was “immaterial” given that Whelan, Akin’s
decisionmaker, did not “value” that experience. See, e.g., HBR’s Reply to eSentio’s Facts ¶ 66.
However, the record evidence cited by HBR for this proposition does not support that eSentio’s
experience was “immaterial,” as it demonstrated only that Whelan believed it was too soon to tell
whether eSentio, or any other firm, was “the leader in the industry” for “large-scale
NetDoc[uments] conversions.” HBR’s Mot., Ex. 10 (Whelan Dep.) 53:12–13; see id., Ex. 10
(Whelan Dep.) 53:15–17, 21 (asserting that the “small number of Am Law 100 firms that ha[d]
selected NetDocuments” made it “uncharted waters for who c[ould] be the leader”). Moreover,
55 evidence in the record demonstrates that experience with NetDocuments was relevant to Akin.
See, e.g., HBR’s Mot., Ex. 10 (Whelan Dep.) 37:18–24 (testifying that eSentio’s “experience
with firms of a [certain] scale and complexity” “would be something that [Akin] would consider
definitely”); eSentio’s Opp’n, Ex. 109 (Whelan Dep.) 48:12–16 (agreeing that if Mukerji had not
gone to HBR, he would not have considered HBR for the Akin Project).
Moreover, the Court must also reject HBR’s assertion that eSentio was not likely to
obtain the Akin Project because “eSentio had no active business relationship with [Akin] during
th[e relevant] time period.” HBR’s Mem. at 15. eSentio disputes this assertion, see eSentio’s
Facts ¶ 30, relying on undisputed evidence that “Akin was an important strategic client and
prospect of eSentio,” eSentio’s Facts ¶ 37; see HBR’s Reply to eSentio’s Facts ¶ 37, and that
“eSentio performed service[s] for Akin [as recently as] the spring of 2015,” HBR’s Reply to
eSentio’s Facts ¶ 38. In any event, as eSentio correctly notes, see eSentio’s Opp’n at 22, an
existing contractual relationship is not required to demonstrate a legitimate business expectancy,
see Nat’l R.R. Passenger Corp., 791 F. Supp. 2d at 56 (“Legitimate business expectancies are
those ‘not grounded on present contractual relationships but which are commercially reasonable
to anticipate . . . .’” (emphasis added) (citations omitted)). Rather, the existence of a prior
relationship is simply one factor that a reasonable factfinder may find relevant in determining
whether a reasonable likelihood of a contract exists. See, e.g., PM Servs. Co. v. Odoi Assocs.,
Civ. Action No. 03-1810, 2006 WL 20382, at *33 (D.D.C. Jan. 4, 2006) (finding that the
plaintiff established a legitimate business expectancy in an operations and maintenance contract
with a government agency based in part on evidence that the plaintiff “had a prior relationship
with [the agency] doing the work at issue in the buildings at issue”).
56 The Court must also reject HBR’s remaining arguments for why eSentio did not have a
valid business expectancy in the Akin and King & Spalding Projects, which rely on the same
evidence that it cites to support its argument that eSentio is not entitled to damages flowing from
its loss of those projects. As already explained in Part III.B.1.c, supra, and Part III.B.2.c, supra,
eSentio has identified evidence creating a genuine issue of material fact with respect to whether
it was likely to obtain the Akin and King & Spalding Projects absent HBR’s interference. This
same evidence also creates a genuine issue as to whether eSentio had a valid business expectancy
in those projects.
Thus, the Court finds that genuine factual issues exist regarding whether eSentio had a
legitimate business expectancy in the Akin and King & Spalding Projects. Accordingly, the
Court must deny both parties’ motions for summary judgment as to this element of eSentio’s
tortious interference with prospective economic advantage claim.
2. Knowledge
HBR also argues that eSentio cannot demonstrate that HBR knew about eSentio’s
expectancies in the Akin and King & Spalding Projects. As to the Akin Project, HBR argues that
eSentio cannot demonstrate knowledge of any valid business expectancy
HBR’s Mem. at 16.
57 NetDocuments [Conversion] Project,” because “it was HBR’s understanding that it was the only
firm invited to present to [King & Spalding].” HBR’s Opp’n at 16. 9
eSentio responds that the fact “[t]hat Akin asked HBR to bid is utterly immaterial to
whether or not HBR knew that eSentio had an expectancy in the [Akin] [P]roject,” and that
“[t]he undisputed facts show that [HBR] w[as] well aware not only of the historical eSentio/Akin
relationship, but also of eSentio’s likelihood of pursuing the Akin Project in light of this
relationship.” eSentio’s Opp’n to HBR’s Mot. at 24. Specifically, eSentio argues that
(i) Akin itself informed HBR and Mukerji that [Mukerji] had performed work for [Akin] in the spring of 2015, (ii) when HBR learned that Akin intended to implement NetDocuments Mukerji informed HBR specifically that HBR ‘can expect’ eSentio to be ‘targeting’ the project, and (iii) Mukerji himself had been actively involved in pursuing and expanding the eSentio/Akin relationship in the six months before he left eSentio, which knowledge is attributable to HBR in these circumstances.
Id. eSentio further argues that, as to the King & Spalding Project, HBR “knew that eSentio and
[King & Spalding] had a long history and relationship” and “anticipated that eSentio would
compete for the [King & Spalding] Project.” Id. at 30.
HBR’s position appears to be that eSentio must show that it had actual “knowledge . . .
that eSentio had submitted a bid proposal for the Akin [and King & Spalding] [P]roject[s]” in
order to establish that HBR knew of eSentio’s business expectancy in those projects. HBR’s
Opp’n at 16. However, this Court has previously rejected this position, explaining that
9 Mukerji does not explicitly dispute that he possessed knowledge of eSentio’s business expectancies in the Akin or King & Spalding Projects. See generally Mukerji’s Mem.; Mukerji’s Opp’n; Mukerji’s Reply. Accordingly, the Court need not consider whether eSentio can establish the knowledge element of its tortious interference with economic advantage claim against Mukerji. See Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. De C.V., 69 F. Supp. 3d 175, 216 (D.D.C. 2014) (concluding that, because the plaintiff did “not make an argument or provide any evidence contradicting [the defendant’s] assertions regarding [certain] elements [of the defendant’s counterclaim], [ ] it therefore ha[d] conceded th[ose] issues”). However, even if Mukerji did dispute eSentio’s ability to establish the knowledge element of its claim, the Court would conclude that a reasonable juror could find that Mukerji possessed the requisite knowledge of eSentio’s expectancies based on the evidence discussed in Part III.C.2, infra, and thus, that a genuine factual issue exists regarding this element.
58 [a] party need not be shown to have had actual awareness of a business expectancy, but may be found to have knowledge of the expectancy provided that “a person believes that it is probable that something is a fact, but deliberately shuts his or her eyes or avoids making reasonable inquiry with a conscious purpose to avoid learning the truth.”
Nat’l R.R. Passenger Corp., 791 F. Supp. 2d at 58 (quoting Prudential Real Estate Affiliates,
Inc., 208 F.3d 210).
Here, a reasonable jury could conclude that HBR believed that eSentio was likely to
submit a bid for the Akin and King & Spalding Projects. As to the Akin Project, eSentio has
identified undisputed evidence that, “[i]n October 2016, when NetDocuments announced that
Akin would be converting to NetDocuments, . . . Mukerji informed [HBR’s] Mark Denner and
Christopher Ryan that he [ ] expected eSentio to be ‘targeting’ the project.” eSentio’s Facts ¶ 86;
see HBR’s Reply to eSentio’s Facts ¶ 86; eSentio’s Mot., Ex. 90 (
) at HBR_00000554 (stating, with respect to
Akin’s NetDocuments conversion, that “I can expect ES [eSentio] will be targeting it”). eSentio
has also identified evidence that HBR knew that eSentio had a prior relationship with Akin.
Specifically, it has identified evidence that around the time when HBR submitted its bid for the
Akin Project, see HBR’s Facts ¶ 56 (representing that “HBR submitted its statement of work” on
December 28, 2016), it knew that eSentio had performed work for Akin as recently April 2015,
) at HBR_00000517. That same evidence also suggests that, at some point prior to when
HBR submitted its bid, Erik Schmidt had reason to believe that Mukerji had been involved in
pursuing business with Akin while employed at eSentio. See id., Ex. 98 (
) at HBR_00000517 (Whelan asking Schmidt,
“Do you still think this will be a problem with our working with Rajiv[?]” (emphasis added)).
59 Additionally, eSentio has identified evidence that could lead a reasonable juror to
conclude that HBR knew that eSentio had a relationship with King & Spalding and would likely
bid for the King & Spalding Project. For example, in a discussion between Mark Denner and
Mukerji regarding the King & Spalding RFP, Denner stated that he “very much think[s] of [King
& Spalding] as an eSentio client so [HBR] w[ould] tread carefully where [Mukerji was]
concerned.” eSentio’s Mot., Ex. 63 (
) at HBR_000005345. Additionally, HBR does not dispute that it knew
that King & Spalding qualified as a “prospect” under Mukerji’s restrictive covenant, see
eSentio’s Facts ¶ 52; HBR’s Reply to eSentio’s Facts ¶ 52, and it thereby concedes that it knew
that eSentio had recently pursued business with King & Spalding, see eSentio’s Mot., Ex. 14
(Employment Agreement) § 3.8 (providing that Mukerji could not solicit “any . . . prospect that
[he] ha[d] been involved in pursuing business with during the six months prior to [his]
termination”).
Furthermore, evidence in the record demonstrating eSentio’s depth of experience with
NetDocuments conversions, its being regarded by individuals in the industry as a leader in that
area, and its track record of seeking and obtaining such work, see Part III.B.1.c, supra, also
support eSentio’s claim that the defendants knew of its expectancies in acquiring the Akin and
King & Spalding Projects. Based on this evidence, the Court concludes that eSentio has created
a genuine factual issue as to the knowledge element of its tortious interference with prospective
economic advantage claim. See Nat’l R.R. Passenger Corp., 791 F. Supp. 2d at 59 (concluding
that a genuine factual issue existed as to knowledge where “a reasonable jury could find . . . that
[the defendant] was aware that . . . [the plaintiff] was going to, or likely would, submit a bid, . . .
[and also] would have known that Amtrak was a competitive threat”); see also Smithfield Ham
60 & Prod. Co. v. Portion Pac, Inc., 905 F. Supp. 346, 349 (E.D. Va. 1995) (finding that a plaintiff
put forth “sufficient facts to survive summary judgment” as to knowledge, in part based on
evidence demonstrating that the defendant knew of the plaintiff’s relationship with the customer
at issue).
3. Intentional Interference
HBR argues that “there is no evidence in the record that demonstrates the type of
egregious and improper conduct that this Court requires to articulate a tortious interference with
a business expectancy claim against a competitor.” HBR’s Opp’n at 17. 10 Mukerji argues that
eSentio has not demonstrated that he intentionally interfered with eSentio’s business
expectancies because he “could not have acted ‘with the level of wrongful intent to constitute
tortious interference’ because he sincerely believed he had honored his agreement,” Mukerji’s
Mem. at 31–32 (citation omitted), as demonstrated by his “conduct . . . reveal[ing] an abiding
and enduring desire to comply with [his agreement],” id. at 31. 11
eSentio responds that “the [d]efendants’ interference with eSentio’s expectancies was
intentional and improper” because, inter alia, “both defendants knew that Akin was a ‘client’
covered by [Mukerji’s] restriction” and that “[King & Spalding] was a covered ‘prospect,’” but
nonetheless “misrepresented to Akin [Mukerji’s] ability to” participate in the Akin Project
proposal, and “attempted to disguise their conduct in connection with the [King & Spalding]
10 HBR also argues that eSentio has not satisfied the intentional interference element of its claim because “there is no evidence that HBR knew of eSentio’s purported business expectancies,” and, “[c]onsequently, it could not have intended to interfere with a business expectancy of which it was not aware and were otherwise invalid under well- settled law on tortious interference.” HBR’s Opp’n at 17. However, the Court must reject this argument based on its conclusion that eSentio has identified evidence that suffices to create a genuine factual issue with respect to HBR’s knowledge. See Part III.C.2, supra. 11 Mukerji also argues that he “did nothing to interfere with eSentio’s opportunity for the King & Spalding [Project],” “[s]ince he had recused himself from anything to do with HBR’s response to [the] King & Spalding RFP.” Mukerji’s Mem. at 30. However, because the Court has already concluded that a genuine factual issue exists with respect to whether Mukerji solicited the King & Spalding Project, see Part III.A.3.b, supra, the Court must reject this argument.
61 bid,” eSentio’s Mem. at 29 (emphasis omitted). It further argues that “Mukerji’s assertion that
he ‘sincerely believed’ that he acted in compliance with his Agreement is immaterial,” eSentio’s
Opp’n to Mukeri’s Mot. at 8, because Mukerji “knew that his restrictive covenant was active and
binding, knew that he had been assigned business development tasks with Akin when he was still
at eSentio, and knew . . . that Akin fell squarely within the Agreement’s definition of ‘Client,’”
id. at 9.
The Restatement instructs that “interference [with prospective business relations] consists
of . . . preventing [another] from acquiring or continuing [a] prospective relation,” and it must be
both “intentional[] and improper.” Restatement (Second) of Torts § 766B. As in the context of
interference with contracts, “interference with . . . [another’s] prospective contractual relation is
intentional if the actor desires to bring it about or if he knows that the interference is certain or
substantially certain to occur as a result of his action.” Restatement (Second) of Torts § 766B
cmt. d; see id. § 766 cmt. j (“The rule applies, in other words, to an interference that is incidental
to the actor’s independent purpose and desire but known to him to be a necessary consequence of
his action.”). And, interference is “improper” unless the defendant can demonstrate it was
“legally justified.” Sorrells, 565 A.2d at 290.
The Court finds that eSentio has identified evidence that could lead a reasonable juror to
believe that the defendants intentionally interfered with eSentio’s expectancies by preventing
eSentio from acquiring the Akin and King & Spalding Projects. As already explained, a
reasonable juror could conclude that HBR’s and Mukerji’s actions caused eSentio to lose the
Akin & King & Spalding Projects. See Part III.B.1.c, supra; see also Part III.B.2.c, supra.
Additionally, a reasonable juror could also conclude that eSentio had a reasonable expectancy in
these projects and that the defendants knew of that expectancy, i.e., knew that eSentio bid on, or
62 was likely to bid on, these projects. Based on this evidence, a reasonable juror could conclude
that the defendants intentioanlly interfered with eSentio’s expectancies because they knew that
this interference was “certain or substantially certain to occur as a result of [their] action[s].”
Restatement (Second) of Torts § 766B cmt. d.
The Court must also conclude that there exists a genuine factual issue regarding whether
HBR’s and Mukerji’s interference was “improper.” Although interference with a business
expectancy, unlike interference with a contract, may be justified by a “privilege to engage in
business and to compete with others,” Restatement (Second) of Torts § 768 cmt. b, a defendant’s
privilege to compete does not justify its interference if it “employs wrongful means,” id., § 768
cmt. e. Here, the Court cannot conclude as a matter of law that any interference by HBR and
Mukerji was justified because a reasonable juror could find that the defendants employed
wrongful means in their efforts to compete with eSentio for the Akin and King & Spalding
Projects. Specifically, a reasonable juror could find that Mukerji’s breaches of his restrictive
covenant and HBR’s inducement of those breaches amounted to “wrongful means” of
competition in securing the Akin and King & Spalding Projects, and thus, could conclude that
HBR’s and Mukerji’s interference was improper. See Nat’l R.R. Passenger Corp., 791 F. Supp.
2d at 61 (denying summary judgment on a tortious interference with prospective economic
advantage claim “because[] a reasonable jury could find . . . that there [wa]s a genuine factual
dispute over whether [the defendant] knew it was assisting [the plaintiff’s employees] in
perpetrating [ ] breaches [of their duty of loyalty] by encouraging them, or even requesting, that
they refrain from being associated with [the plaintiff’s] bid”); see also Restatement (Second) of
Torts § 767 cmt. c (recognizing that “unlawful conduct . . . may . . . make an interference
improper”). Additionally, because a reasonable juror could conclude that Mukerji knew that his
63 restrictive covenant applied to Akin, based on his knowledge of the facts establishing that Akin
was a “client” under the Employment Agreement, that juror could also find that Mukerji
misrepresented his contractual obligations when he told Whelan that there were “[n]o issues”
with his working with Akin, see eSentio’s Mot., Ex. 98 (
) at HBR_00000516 (in response to Whelan’s question
to Schmidt, “Do you still think that this will be a problem with our working with Rajiv?,”
Mukerji responding, “No issues. Past the statute of limitations!”), which can also be considered
a “wrongful means of interference,” Restatement (Second) of Torts § 767 cmt. c (“Fraudulent
misrepresentations are also ordinarily a wrongful means of interference and make an interference
improper.”). Accordingly, the Court must conclude that genuine factual issues exist regarding
whether the defendants tortiously interfered with eSentio’s prospective economic advantage as to
both the Akin and King & Spalding Projects.
4. Damage
HBR argues that “eSentio suffered no damages caused by HBR” because, as to the Akin
Project, “[a]ny ‘damages’ are fairly attributable to eSentio’s own acts—not properly scoping
work per [Akin’s] request,” HBR’s Mem. at 16, and, as to the King & Spalding Project, King &
Spalding “was never seriously considering eSentio and [it] ranked another consultant, Adaptive,
as its second choice,” id. at 19. Mukerji similarly argues that “no reasonable jury can conclude
that [his] conduct, if any, caused eSentio to lose the King & Spalding business,” Mukerji’s Mem.
at 30–31, because “King & Spalding[] based its decision to remove eSentio from contention
solely on eSentio’s conduct, bid[,] and references,” Mukerji’s Opp’n at 24. This Court must
reject these arguments for the same reasons already explained in Part III.B.1.c, supra, and Part
III.B.2.c, supra. As explained in those sections, eSentio has identified evidence creating a
64 genuine factual issue as to whether the defendants’ conduct caused eSentio to lose the Akin and
King & Spalding Projects.
In sum, the Court concludes that genuine issues of material fact preclude summary
judgment on eSentio’s claims for tortious interference with prospective economic advantage
against both HBR and Mukerji. Accordingly, the Court must deny the parties’ motions for
summary judgment as to these claims.
D. Mukerji’s Counterclaim
eSentio also seeks summary judgment in its favor on Mukerji’s Counterclaim, see
eSentio’s Mot. at 2, which alleges that eSentio breached the Bonus Provision of the Offer Letter
(Count I), see Mukerji’s Answer at 11, ¶¶ 7–9, and seeks a judgment “declaring that because [of
that breach,] . . . Mukerji is excused from any obligations under the [E]mployment [A]greement,
including any restrictive covenants” (Count II), id. at 12. The Court will address each of these
Counts of the Counterclaim in turn.
1. Count I
Mukerji alleges that eSentio breached the Bonus Provision of the Offer Letter in three
respects: (1) it “failed . . . to set or define individual performance objectives for Mukerji,” id. at
11, ¶ 7; (2) “failed . . . to conduct an annual performance review of [ ] Mukerji’s employment,”
id. at 11, ¶ 8; and (3) “failed . . . to pay [ ] Mukerji an annual performance bonus,” id. at 11, ¶ 9.
As previously explained, “[t]o prevail on a claim of breach of contract [under District of
Columbia law], a party must establish (1) a valid contract between the parties; (2) an obligation
or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by [the]
breach.” Francis, 110 A.3d at 620 (emphasis removed) (quoting Tsintolas Realty Co., 984 A.2d
at 187).
65 eSentio does not dispute the first or fourth elements of Mukerji’s claim in Count I. See
generally eSentio’s Mem.; eSentio’s Opp’n to Mukerji’s Mot.; eSentio’s Reply. However, it
disputes the second and third elements of this claim. Specifically, as to the first breach alleged
by Mukerji—that eSentio “failed . . . to set or define individual performance objectives for
Mukerji,” Mukerji’s Answer at 11, ¶ 7—eSentio argues that it did not have a contractual duty to
provide “Mukerji ‘individual’ performance objectives, but only ‘performance objectives,” and it
did not breach that duty because “eSentio set ‘performance objectives’ for Mukerji annually in
connection with the establishment of his Department’s Operating Plan.” eSentio’s Mem. at 32.
As to the second breach alleged by Mukerji—that eSentio “failed . . . to conduct an annual
performance review of [ ] Mukerji’s employment,” Mukerji’s Answer at 11, ¶ 8—eSentio argues
that “Mukerji had no contractual right to an annual performance review,” eSentio’s Mem. at 32,
and, even if he did, “eSentio satisfied that obligation, as [it] reviewed Mukerji’s performance
every year,” id. at 33. Finally, as to the third breach alleged by Mukerji—that eSentio “failed . . .
to pay [ ] Mukerji an annual performance bonus,” Mukerji’s Answer at 11, ¶ 9—eSentio argues
that it did not breach its duty to pay Mukerji an annual performance bonus because Mukerji “was
judged each year against his [ ] team’s Operating Plan, and in each year of his employment, his
team failed to meet the established targets.” eSentio’s Mem. at 33.
To determine whether eSentio breached an obligation or duty arising out of the Bonus
Provision, the Court must first look to the language of the Offer Letter itself. As already
explained, under District of Columbia law, “the written language embodying the terms of an
agreement will govern the rights and liabilities of the parties [regardless] of the intent of the
parties at the time they entered into the contract, unless the written language is not susceptible of
a clear and definite undertaking, or unless there is fraud, duress, or mutual mistake.” Tillery, 912
66 A.2d at 1176 (citation omitted). “If the court determines that [a] contract is unambiguous, it
should rely on the contract’s terms to provide ‘the best objective manifestation of the parties’
intent.’” Debnam v. Crane Co., 976 A.2d 193, 197 (D.C. 2009) (citation omitted). “However, if
the contract is ambiguous, its proper interpretation requires consideration of extrinsic evidence,
which precludes summary judgment unless the probative evidence marshaled by the movant
eliminates any genuine dispute about what a reasonable person in the position of the parties
would have thought the contract means.” Mamo v. Skvirsky, 960 A.2d 595, 599 (D.C. 2008);
see Debnam, 976 A.2d at 197–98 (“[I]f the provisions of the contract are ambiguous, the correct
interpretation becomes a question for a factfinder.”). “Extrinsic evidence may include the
circumstances before and contemporaneous with the making of the contract, all usages—habitual
and customary practices—which either party knows or has reason to know, the circumstances
surrounding the transaction and the course of conduct of the parties under the contract.” Tillery,
912 A.2d at 1176–77 (quoting In re Bailey, 883 A.2d 106, 118 (D.C. 2005)).
The Offer Letter’s Bonus provision provides that Mukerji “will [ ] be eligible for an
annual performance bonus based on the pre-defined performance objectives in the amount of
[$]20,000.00 prorated from [his] start date.” eSentio’s Mot., Ex. 14 (Offer Letter) at LTG – 1.
Mukerji argues that “eSentio defined [his] annual performance bonus objectives in his
‘Compensation Plan,’” which “set a 1,000 Billable Hour target for the $20,000 Performance
Bonus” and provided that “his ‘[p]erformance [b]onus is based on the employee’s annual
performance review.’” Mukerji’s Reply to eSentio’s Facts ¶ 103. He further argues that
“eSentio’s . . . ‘Assessment Template’ . . . defines the ‘criteria for which [employees] are
evaluated,’” which includes “Business Development,” “Customer Satisfaction,” “Company
Contribution,” “Professional Development,” “Quality of Work,” “Communication,” “Attitude,”
67 “Professionalism,” and “Job Specific Responsibilities.” Id. (quoting eSentio’s Mot., Ex. 94
(Annual Performance Review — Self Assessment (“Self-Assessment Form”)) at LTG – 001159).
eSentio responds that “it is undisputed that Mukerji’s entitlement to an [a]nnual [p]erformance
[b]onus was based on his Department’s attainment of the Operating Plan Targets that Mukerji
and others set for their teams,” eSentio’s Reply at 24, and “in each year of his employment,
[Mukerji’s] team failed to meet the established targets,” eSentio’s Mem. at 33.
To resolve the parties’ dispute, the Court must determine whether the term “pre-defined
performance objectives” is ambiguous. The Offer Letter does not define the term “pre-defined
performance objectives,” see id., Ex. 14 (Offer Letter) at LTG – 1 to – 2, and the Court is unable
to discern the term’s meaning from any other language in the Offer Letter, see Hensel Phelps
Constr. Co. v. Cooper Carry Inc., 861 F.3d 267, 275 (D.C. Cir. 2017) (explaining that the
“objective analysis [required under District of Columbia law] also considers the context in which
words are used”). Moreover, although the Offer Letter incorporates Mukerji’s Employment
Agreement, see eSentio’s Mot., Ex. 14 (Offer Letter) at LTG – 1 to – 2 (stating that “this letter,
together with the [Employment Agreement], contain the entire agreement and understanding
between [Mukerji] and eSentio”), the Employment Agreement also does not define, or even refer
to, the pre-defined performance objectives, see id., Ex. 14 (Employment Agreement) at LTG –3
to –7. Furthermore, despite Mukerji’s insistence that the term is defined in his Compensation
Plan and in the Self-Assessment Form, the Court agrees with eSentio that these documents were
“never incorporated into, and never became part of, the Offer Letter.” eSentio’s Mem. at 32.
The Offer Letter does not reference either of these documents, and indeed, it contains an
integration clause expressly “supersed[ing]” any agreements existing prior to the Offer Letter,
see eSentio’s Mot., Ex. 14 (Offer Letter) at LTG –1 to –2 (providing that the Offer “[L]etter,
68 together with the [Employment Agreement], . . . will supersede any prior or contemporaneous
agreements, understandings, term sheets, communications, offers, representations, warranties, or
commitments by or on behalf of eSentio (oral or written)”), which would appear to include the
Compensation Plan sent to Mukerji prior to the execution of the Offer Letter, see eSentio’s Facts
¶ 91. Thus, because there is no indication that the Compensation Plan and the Self-Assessment
Form were part of the Offer Letter, and because District of Columbia law provides that “the
existence of ambiguity is a question of law for the Court, to be ascertained from the four corners
of the contract,” Katopothis v. Windsor-Mount Joy Mut. Ins. Co., 211 F. Supp. 3d 1, 17 (D.D.C.
2016), aff’d in part, appeal dismissed in part, 905 F.3d 661 (D.C. Cir. 2018), the Court may not
consider these documents for the purpose of determining whether the term “pre-defined
performance objectives” is ambiguous.
In the absence of any guidance in the contract itself to aid in assessing the definition of
the term “pre-defined performance objectives,” the Court must look to the plain meaning of the
term. See, e.g., Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp., 758 F.3d 378, 383–84
(D.C. Cir. 2014) (collecting District of Columbia cases). However, here, the plain meaning does
not bring any clarity to the definition, as the words “performance” and “objectives” have broad
definitions that could encompass numerous criteria related to goals for employees’ performance
of their jobs, including any of the criteria asserted by the parties. See Performance, Merriam-
Webster Dictionary Online, https://www.merriam-webster.com/dictionary/performance (last
visited Apr. 26, 2019) (defining “performance” as “the execution of an action,” “something
accomplished,” or “the fulfillment of a claim, promise or request”); see also Objective, Merriam-
Webster Dictionary Online, https://www.merriam-webster.com/dictionary/objective (last visited
Apr. 26, 2019) (defining “objective” as “something toward which effort is directed: an aim, goal,
69 or end of action”). Moreover, the term “pre-defined” necessarily refers to some definition
previously created, see Predefined, Merriam-Webster Dictionary Online, https://www.merriam-
webster.com/dictionary/pre-defined (last visited Apr. 26, 2019) (defining “predefined” as
“defined in advance”), but because no such definition is included in the Offer Letter, it is
impossible for the Court to discern from the four corners of the document what that definition
might be. Accordingly, the Court concludes that the term “pre-defined performance objectives”
is ambiguous.
Because the term “pre-defined performance objectives” is ambiguous, the Court must
conclude that “its proper interpretation requires consideration of extrinsic evidence, which
precludes summary judgment unless the probative evidence marshaled by the movant eliminates
any genuine dispute about what a reasonable person in the position of the parties would have
thought the contract means.” Mamo, 960 A.2d at 599. And, the Court cannot conclude that the
extrinsic evidence relied upon by eSentio satisfies this standard. In support of its position,
eSentio asserts that “Mukerji admitted that eSentio had always understood that his [a]nnual
[p]erformance [b]onus was based on his Department meeting its Operating Plan numbers,”
eSentio’s Mem. at 31, and that because “Dornic reminded Mukerji that his annual bonus was
based on his team meeting its Operating Plan numbers[] . . . in the spring of 2012,” eSentio’s
Facts ¶ 97 (internal citation omitted), “Mukerji ratified the terms of the bonus program by
continuing as an at-will employee of e-Sentio[] . . . for four years after” Dornic’s and Mukerji’s
discussion on the topic, eSentio’s Mem. at 35.
The Court cannot agree with eSentio that Mukerji “admitted that eSentio had always
understood that his [a]nnual [p]erformance [b]onus was based on . . . [his team’s] Operating Plan
numbers.” eSentio’s Mem. at 31; see Mukerji’s Reply to eSentio’s Facts ¶ 100 (disputing this
70 claim). Although Mukerji does not dispute that Dornic told him “that his bonus eligibility would
be based on his DMS team meeting its Operating Plan numbers,” Mukerji’s Reply to eSentio’s
Facts ¶ 98, he asserts that this conversation took place in 2013, not 2012, see id. ¶ 97, and, in any
event, he testified that Dornic’s view “was not in accordance with [his] agreement and was not
accepted by [him],” eSentio’s Mot., Ex. 16 (Mukerji Dep.) at 81:6–9. Moreover, although
Mukerji testified that during their discussion Dornic “clarified what her intent was,” id., Ex. 16
(Mukerji Dep.) 87:12, a reasonable juror could interpret this statement as meaning that Dornic
clarified what her intent was when her conversation with Mukerji occurred, rather than what her
intent was when she signed the Offer Letter.
Additionally, the Court cannot agree with eSentio’s position that Mukerji “ratified”
eSentio’s understanding of the term “pre-defined performance objectives.” eSentio’s Mem. at
35. Although there are circumstances in which an employee’s continuation of his employment
creates an implied agreement to modify an existing employment contract, see, e.g., Nat’l Rifle
Ass’n v. Ailes, 428 A.2d 816, 822 (D.C. 1981) (“[O]nce an employee learns about a new policy
limiting compensation for unused leave upon termination, but elects to stay on the job and accept
compensation, that decision is sufficient to imply an agreement to continue working subject to
the new limitation.” (emphasis added)), eSentio insists that its “argument is not that the contract
regarding bonuses was ‘amended,’ because Mukerji’s [a]nnual [p]erformance [b]onuses were
never intended to be based on anything other than his Department’s performance against the
Operating Plan Targets,” eSentio’s Reply at 25, and thus, the case law regarding modification
cited by eSentio is inapposite. Therefore, it appears that Mukerji’s continuation of his
employment with eSentio following his conversation with Dornic is more properly considered as
evidence of the parties’ “course of conduct” that could be used to support eSentio’s interpretation
71 of the Offer Letter. See Tillery, 912 A.2d at 1176–77. However, although such evidence “is
often the strongest evidence of [the parties’] meaning,” it “is not conclusive of [the] meaning,”
Restatement (Second) of Contracts § 202 cmt. g, and is only one of several types of extrinsic
evidence that may be considered by the factfinder, see Tillery, 912 A.2d at 1176–77. Thus, the
Court cannot conclude that this evidence is determinative of the parties’ intended meaning of the
term “the pre-defined performance objectives” either.
Moreover, there exists evidence of “the circumstances before and contemporaneous with
the making of the contract,” Tillery, 912 A.2d at 1176, from which a reasonable juror could
conclude that it was not Dornic’s or eSentio’s intent when the Offer Letter was signed to base
Mukerji’s bonus solely on the Operating Plan numbers. For example, one day prior to sending
the Offer Letter to Mukerji and just several days before Mukerji signed the Offer Letter, eSentio
provided Mukerji with the Compensation Plan, see eSentio’s Facts ¶ 91 (stating that eSentio
provided the Compensation Plan to Mukerji “in connection with a packet of company
information . . . on or about June 17, 2011”); see also eSentio’s Mot., Ex. 92 (
) at LTG – 631
(attaching Compensation Plan and Employment Agreement), which stated that “[t]he
[p]erformance [b]onus is based on the employee[’]s annual performance review,” eSentio’s Mot.,
Ex. 92 (Compensation Plan) at LTG – 645; see Mukerji’s Mot., Ex. K (Deposition of Yvonne
Dornic (June 29, 2018) (“Dornic Dep.”)) 136:1 (testifying that the “[p]erformance [b]onus”
referred to in the Compensation Plan was “the same thing” as the annual performance bonus
referred to in the Offer Letter). Additionally, the Self-Assessment Form that Dornic sent to
Mukerji in 2013 states that “eSentio ha[d] a compensation model for [his] position in which [he
was] evaluated on [his] performance each [ ] year” and identifies “[t]he criteria for which
72 [Mukerji was] evaluated,” eSentio’s Mot., Ex. 94 (Self-Assessment Form) at LTG – 1159, which
included numerous factors, only one of which was “Operating Plan Goals,” id., Ex. 94 (Self-
Assessment Form) at LTG – 1160. Furthermore, Dornic testified that she based Mukerji’s 2011
bonus on “the utilization target for [Mukerji’s] team, as well as his hiring plan,” Mukerji’s
Opp’n, Ex. K (Dornic Dep.) 126:2–5, which a reasonable juror could conclude is different from
“Operating Plan Goals,” eSentio’s Mot., Ex. 94 (Self-Assessment Form) at LTG – 1160
(distinguishing “Utilization Target[s]” from “Operating Plan Goals,” the latter being described as
“Revenue Projections” and “Costs”); see Mukerji’s Reply to eSentio’s Facts ¶ 102; Mukerji’s
Opp’n, Ex. W (Affidavit of Rajiv Mukerji in Opposition to Legal Technology Group, Inc.’s
Motion for Summary Judgment as to Liability on [I]ts Claims Against Him and His
Counterclaim for Breach of LTG’s Promise to Pay an Annual Bonus) ¶¶ 21–25, 36 (describing
“Operating Plan revenue or hiring targets” and distinguishing them from “Utilization Target[s]”).
In sum, a reasonable juror could conclude that the parties intended “the pre-defined
performance objectives” to be “based on . . . [Mukerji’s] annual performance review,” eSentio’s
Mot., Ex. 92 (Compensation Plan) at LTG – 645, which included a review of numerous different
objectives beyond just the Operating Plan Goals, see id., Ex. 94 (Self-Assessment Form) at
LTG – 001159 to – 60. Having concluded that this is a viable interpretation of Mukerji’s Offer
Letter, the Court must next turn to Mukerji’s specific claims that eSentio violated the Offer
Letter.
First, the Court concludes that genuine factual issues preclude summary judgment as to
Mukerji’s claim that eSentio breached the Offer Letter by “fail[ing] . . . to set or define
individual performance objectives for [him],” Mukerji’s Answer at 11, ¶ 7, because the issue of
whether eSentio failed to set the requisite “performance objectives” necessarily depends on a
73 reasonable juror’s interpretation of that term. And, because a reasonable juror could conclude
that the “performance objectives” included all of the objectives set forth in the Self-Assessment
Form, and eSentio asserts that it set performance objectives only with respect to Mukerji’s
Operating Plan Goals, see eSentio’s Mem. at 32, a reasonable juror could find that eSentio did
not set performance objectives for Mukerji in accordance with the Offer Letter.
Similarly, genuine factual issues also preclude summary judgment as to Mukerji’s claim
that eSentio breached the Offer Letter by “fail[ing] . . . to conduct an annual performance review
of [ ] Mukerji’s employment.” Mukerji’s Answer at 11, ¶ 8. Although neither the Offer Letter
nor the Employment Agreement explicitly obligates eSentio to perform an annual performance
review, the Court cannot agree with eSentio that “Mukerji had no contractual right to an annual
performance review.” eSentio’s Mem. at 32. For the reasons already explained, the Court
concludes that a reasonable juror could find that the “pre-defined performance objectives”
referred to in the Offer Letter, refer to the results of Mukerji’s annual performance review, which
would mean that the Bonus Provision necessarily requires eSentio to conduct such a review.
Additionally, eSentio’s assertion that it “reviewed Mukerji’s performance every year,” id. at 33,
does not resolve Mukerji’s claim either, because a reasonable juror who concluded that an annual
performance review requires consideration of all of the factors in the Self-Assessment Form
could also conclude that eSentio did not conduct an adequate review. See, e.g., eSentio’s Mot.,
Ex. 1 (Dornic Dep.) 185:22–26 (testifying that the review provided to Mukerji “for most years [ ]
was . . . a discussion about where performance needs to be improved”).
Finally, the Court concludes that genuine factual issues preclude summary judgment on
Mukerji’s claim that eSentio breached the Offer Letter by “fail[ing] . . . to pay [ ] Mukerji an
annual performance bonus.” Mukerji’s Answer at 11, ¶ 9. Because eSentio’s only argument for
74 why it did not commit this breach is based on its position that the pre-defined performance
objectives were limited to the Operating Plan Targets, see eSentio’s Mem. at 33 (arguing that it
did not breach its duty to pay Mukerji an annual performance bonus because Mukerji “was
judged each year against his [ ] team’s Operating Plan, and in each year of his employment, his
team failed to meet the established targets”), and the Court has concluded that a reasonable juror
could reject this premise, the Court cannot conclude that eSentio has satisfied its burden to
demonstrate that summary judgment in its favor is warranted on this claim.
Accordingly, the Court concludes that it must deny eSentio’s motion for summary
judgment as to Count I of Mukerji’s Counterclaim.
2. Count II
For the reasons already explained in Part III.A.5, supra, the Court concludes that any
breach by eSentio with respect to payment of a bonus cannot excuse any breach by Mukerji of
the restrictive covenant, see Ashcraft & Gerel, 244 F.3d at 951, and thus, the Court must grant
summary judgment to eSentio as to Count II of Mukerji’s Counterclaim.
E. Punitive Damages
HBR and Mukerji finally seek summary judgment in their favor on eSentio’s claim for
punitive damages. See HBR’s Mot. at 1; Mukerji’s Mot. at 2. They argue that summary
judgment is appropriate because “there is absolutely no evidence that [Mukerji or] any HBR
employee acted with evil motive, actual malice, deliberate violence or oppression, or with intent
to injure eSentio.” HBR’s Mem. at 19; see Mukerji’s Mem. at 32 (incorporating the arguments
in HBR’s memorandum in support of summary judgment). eSentio responds that summary
judgment on this issue is improper because “there exist disputed facts from which a jury may
conclude that the [d]efendants’ conduct was deliberately deceptive and carried out to hamstring
75 the market leader [for] their [ ] own benefit,” which “would entitle eSentio to punitive damages.”
eSentio’s Opp’n to HBR’s Mot. at 36–37.
As the District of Columbia Court of Appeals has explained,
punitive damages are not favored in the law. The most appropriate field for their application is the realm of tort actions generally; but even there, they are available only in cases which present circumstances of extreme aggravation. The defendant’s tortious conduct must have been outrageous, characterized by malice, wantonness, gross fraud, recklessness, or willful disregard of the plaintiff’s rights.
Choharis v. State Farm Fire & Cas. Co., 961 A.2d 1080, 1090 (D.C. 2008) (quoting Sere v. Grp.
Hosp., Inc., 443 A.2d 33, 37 (D.C. 1982)). Although the Court is skeptical that eSentio will
ultimately be able to prove the “circumstances of extreme aggravation” necessary for an award
of punitive damages on its tort claims, the Court cannot conclude on the existing record that no
reasonable juror could find that such circumstances have been proven. As already explained, a
reasonable juror could find that Mukerji breached his restrictive covenant as to Akin and King &
Spalding, that HBR induced those breaches, and that both defendants engaged in efforts to either
misrepresent Mukerji’s contractual obligations or conceal his breaches. Because the District of
Columbia Court of Appeals has affirmed a punitive damages award based on similar conduct,
see Dyer v. William S. Bergman & Assocs., 657 A.2d 1132, 1138 (D.C. 1995) (affirming a
punitive damages award for a tortious interference with contract claim based on evidence that a
defendant “betrayed his trust by misappropriating [his employer’s] records and[] . . . wrongfully
stealing one of its principal clients”), the Court finds that it would be premature to conclude as a
matter of law that the conduct here is insufficient to demonstrate entitlement to punitive
damages, cf. Hickey v. Scott, 162 F. Supp. 3d 1, 3 (D.D.C. 2011) (“[B]ecause ‘[t]here is some
support in District of Columbia law for the notion that punitive damages can be awarded for a
breach of fiduciary duty,’ the Court finds that the decision on the issue of punitive damages
should be deferred at least until after the presentation of [the plaintiff’s] case-in-chief on her 76 breach of fiduciary duty claim.”). Accordingly, the Court concludes that it must deny the
defendants’ motions for summary judgment as to eSentio’s claims for punitive damages.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Mukerji breached his restrictive
covenant as to Akin, and thus, summary judgment in eSentio’s favor is warranted as to this
aspect of eSentio’s breach of contract claim raised in Count I of its Complaint. The Court also
concludes that eSentio is entitled to summary judgment on Count II of Mukerji’s Counterclaim.
However, the Court concludes that genuine issues of material fact preclude summary judgment
as to all other aspects of eSentio’s claims and Mukerji’s Counterclaim. Accordingly, the Court
concludes that it must grant in part and deny in part eSentio’s motion for summary judgment and
deny the defendants’ motions for summary judgment. 12
SO ORDERED this 13th day of May, 2019.
REGGIE B. WALTON United States District Judge
12 The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
Related
Cite This Page — Counsel Stack
Legal Technology Group, Inc. v. Mukerji, Counsel Stack Legal Research, https://law.counselstack.com/opinion/legal-technology-group-inc-v-mukerji-dcd-2019.