USI Insurance Services National, Inc. v. Ogden

Opinion

NATIONAL, INC., formerly known as NO. 2:17-cv-01394-SAB Plaintiff, v. JOINT PRETRIAL ORDER STANLEY OGDEN, an individual; ELENOR O’KEEFE, an individual; JOHN HASKELL, JR., an individual; and ABD SERVICES, INC., a Delaware corporation, Defendants. Defendants removed this case to this Court on September 15, 2017, asserting federal jurisdiction based on diversity under 28 U.S.C. § 1332(a). The United States District Court for the Western District of Washington has jurisdiction over this matter under 28 U.S.C. § 1332(a) because there is complete diversity of citizenship between the parties and Defendants have a good faith belief that more than $75,000, exclusive of interest and costs, is at stake. Plaintiff does not dispute the Court’s jurisdiction over this matter on the basis asserted by Defendants. A. Plaintiff’s Claims When federal courts sit in diversity—as in this case—they must apply the substantive law of the state where they sit. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938). Plaintiff intends to pursue damages for the following claims against Defendants based on Washington law, for which the Court has already entered summary judgment as to liability in Plaintiff’s favor: 1. Breach of contract (against Defendants Stanley Ogden, Eleanor O’Keefe, and John Haskell, Jr.); and 2. Common law tortious interference with contract and/or business expectancy (against Defendant ABD Insurance and Financial Services, Inc. (“ABD”)). In addition, Plaintiff intends to pursue the following claim against Individual Defendant Stanley Ogden based on Washington law: 3. Breach of Washington’s common law duty of loyalty (against Defendant Stanley Ogden only). B. Defendants’ Defenses Defendants intend to pursue the following affirmative defenses at trial: 1. Waiver; 2. Estoppel; 3. Unclean hands; and 4. Failure to mitigate damages. Plaintiff contends that Defendants’ affirmative defenses of waiver, estoppel, and unclean hands are precluded by this Court’s summary judgment order as to liability in Plaintiff’s favor. Plaintiff does not object to Defendants’ affirmative defense of failure to mitigate damages. The following facts are admitted by the parties: 1. Defendant Stanley Ogden began working for Pettit-Morry Co. (“Pettit-Morry”), a Washington insurance brokerage, in 1987. In exchange for the purchase of all of Mr. Ogden’s outstanding capital stock in Pettit-Morry, Mr. Ogden entered into an Agreement and Covenant Not to Compete. 2. Defendant Eleanor O’Keefe began working for Pettit-Morry in 1986. In exchange for the purchase of all of Ms. O’Keefe’s outstanding capital stock in Pettit-Morry, Ms. O’Keefe entered into an Agreement and Covenant Not to Compete. 3. Through a series of corporate mergers, Pettit-Morry was ultimately acquired by Wells Fargo Insurance Services USA, Inc. (“WFIS”), which was in turn later acquired by Plaintiff USI Insurance Services National, Inc. (“USI”). 4. Lewis Dorrington began working for an entity then known as ABD Insurance and Financial Services (which was a different corporate entity from Defendant ABD, but which employed and was led by several of the same individuals) in November 2004. This earlier ABD was also thereafter acquired by 5. In 2013 and 2015, Defendant John Haskell, Jr. signed new employment contracts with WFIS. 6. While Lewis Dorrington was still employed by WFIS and after Haskell started working at ABD, Haskell met with Dorrington. 7. During the meeting between Dorrington and Haskell, while Dorrington was still employed by WFIS and Haskell was employed by ABD, Haskell provided Dorrington with the name of ABD’s President, Kurt de Grosz. 8. Before Stanley Ogden resigned from WFIS, he told ABD’s Kurt de Grosz that he (Stanley Ogden) had a book of business of approximately $1.6 million and mentioned the names of certain clients, including Trident Seafoods and Harley Marine. 9. Without waiving their rights to appeal, the parties agree that the Court made the following determinations on summary judgment: a. USI is entitled to enforce certain employment contracts Defendants Stanley Ogden, Eleanor O’Keefe, and John Haskell, Jr. had entered with USI’s predecessor, WFIS. b. Both Ogden and O’Keefe had enforceable contracts with WFIS that included a provision wherein they agreed, for a period of three years after the termination of their employment with WFIS or its successors, not to “participate directly or indirectly in the handling of the insurance business of … any person, firm or entity which has been a client or customer of [their former employer] within two years prior to the date of termination of” their employment. c. Both Ogden and O’Keefe breached that provision in their contracts by continuing to handle the insurance business of WFIS clients after they began working for ABD. d. Haskell had an enforceable contract with WFIS that included a provision wherein he agreed, for a period of two years following the termination of his employment, not to “solicit, recruit or promote the solicitation of any employee . . . of [his former employer] for the purpose of encouraging that employee . . . to leave the Company’s employ . . .” e. Haskell did not breach any other provisions in his contract with USI’s predecessors, including that he did not breach the confidentiality or nonsolicitation-of-client provisions in that contract. f. ABD tortiously interfered with USI’s contractual expectations when Ogden and O’Keefe continued handling insurance business of USI clients and when Haskell assisted ABD in recruiting his former co-worker, Lewis Dorrington. g. None of the following individuals who left WFIS to work at ABD breached any contractual or other duties they may have owed to USI or its predecessors: Lewis Dorrington, Cory Anderson, Mary Mark, or Marcia Ogden. A. The following are issues of law that both Parties agree remain to be determined by the Court (either by appropriate jury instructions or after post-trial motions): 1. Is any party entitled to attorneys’ fees and costs under RCW 4.84.330? 2. Is Plaintiff entitled to prejudgment interest? 3. Any other challenges to the admissibility of evidence raised in the parties’ motions in limine or other evidentiary objections at trial. B. The following are additional issues of law that Plaintiff believes remain to be determined by the Court: 1. Should Defendants be precluded from offering expert or lay opinion testimony regarding Plaintiff’s damages? 2. Should Defendants be precluded from offering testimony or evidence regarding consumer banking practices or alleged fraud and/or criminal conduct by Wells Fargo Bank or any of its subsidiaries? C. The following are additional issues of law that Defendants believe remain to be determined by the Court (either by appropriate jury instructions or after post-trial motions): 1. Did Plaintiff prove with reasonable certainty that it would have earned additional, net profits if Stanley Ogden had not handled the business of his former WFIS customers after his employment with Plaintiff terminated? 2. If so, then what damages, if any, did USI suffer as a result of defendant Stanley Ogden’s handling of business from his former WFIS customers in breach of his contractual commitments to Plaintiff? 3. Did Plaintiff prove with reasonable certainty that it would have earned additional, net profits if Eleanor O’Keefe had not handled the business of her former WFIS customers after her employment with Plaintiff terminated? 4. If so, then what damages, if any, did USI suffer as a result of Eleanor O’Keefe’s handling of business from his former WFIS customers in breach of his contractual commitments to Plaintiff? 5. Did Plaintiff prove with reasonable certainty that it would have earned additional, net profits if John Haskell had not promoted the solicitation of Lewis Dorrington to change employers to ABD? 6. If so, then what damages, if any, did USI suffer as a result of defendant John Haskell’s promotion of the solicitation of Lewis Dorrington to change employers to ABD in breach of Haskell’s contractual commitment to Plaintiff? 7. Did Plaintiff prove that Defendant Stanley Ogden owed a common law duty of loyalty to Plaintiff? 8. If Plaintiff proved that Defendant Stanley Ogden owed a common law duty of loyalty to Plaintiff, did Plaintiff also prove that Stanley Ogden breached that duty by disclosing protectable, confidential information about his clients to Defendant ABD in order to solicit business while he was still employed by WFIS? 9. If Plaintiff proved that Stanley Ogden breached a duty of loyalty to USI by disclosing protectable, confidential information about his clients to defendant ABD in order to solicit business while he was still employed by WFIS, did Plaintiff also prove with reasonable certainty that it would have earned additional, net profits if Stanley Ogden had not committed that breach of duty of loyalty to Plaintiff? 10. If so, then what damages, if any, were proximately caused by such breach? 11. Did Plaintiff waive any of its claims for relief, in whole or in part? 12. Should Plaintiff be estopped from recovering damages, in whole or in part, on any of its claims because it made a statement to a Defendant that caused that Defendant to fail to perform his or her contract with Plaintiff? 13. Does the equitable defense of unclean hands bar Plaintiff, in whole or in part, from recovering on any of its claims? Plaintiff intends to call the following expert witnesses:

NAME ADDRESS/PHONE SUBJECTS OF INFORMATION STATUS NUMBER R. Bryan 526 Red Gate Road Mr. Tilden is an insurance industry expert Will testify. Tilden Pittsboro, NC 27312 and will testify about issues related to Ph: 919.542.1042 account retention, staffing, and anything else related to economic damages suffered by Plaintiff as a result of Defendants’ wrongful and unlawful conduct. Peter c/o Nickerson & Dr. Nickerson is an economist and will Will testify. Nickerson, Associates LLC testify about historical financial aspects of Ph.D. 520 Pike Street WFIS’s maritime practice groups, calculated Suite 1200 average account retention, issues related to Seattle, WA 98101 revenues, profits, and losses, reduction of Ph: 206.332.0270 damage calculations to present value, and anything else related to economic damages suffered by Plaintiff as a result of Defendants’ wrongful and unlawful conduct. OTHER WITNESSES A. Plaintiff intends to call the following lay witness: NAME ADDRESS/PHONE SUBJECTS OF INFORMATION STATUS NUMBER Tim c/o Littler Mendelson, Mr. Prichard will testify regarding the nature Will call. Prichard P.C. of the maritime practice group’s work and revenues, the role and responsibilities of John Haskell, Jr., as the former Managing Director of WFIS’s Seattle Office, ABD’s efforts to raid WFIS’s and USI’s employees and clients, and anything related to any claim or defense in the case. Wilson c/o Littler Mendelson, Mr. Criswell will testify regarding the nature Will call. NAME ADDRESS/PHONE SUBJECTS OF INFORMATION STATUS NUMBER Criswell P.C. of the maritime practice group’s work and revenues, WFIS’s cost structures, overhead, and net profits related to the maritime practice group, USI’s damages caused by the wrongful conduct of ABD and the Individual Defendants, and anything related to any claim or defense in the case. Stanley c/o Morgan, Lewis & Mr. Ogden will testify regarding his contract Will call. Ogden Bockius LLP with WFIS, his solicitation of WFIS customers, planning and implementing the departure of WFIS’s Maritime Group to ABD, the value of his client relationships to WFIS/USI, the benefits ABD now receives from his former WFIS clients, and anything related to any claim or defense in the case. Eleanor c/o Morgan, Lewis & Ms. O’Keefe will testify regarding her Will call. O’Keefe Bockius LLP contract with WFIS, her solicitation of WFIS customers, planning and implementing the departure of WFIS’s Maritime Group to ABD, the value of her client relationships to WFIS/USI, the benefits ABD now receives from her former WFIS clients, and anything related to any claim or defense in the case. Lewis c/o Morgan, Lewis & Mr. Dorrington will testify regarding his Will call. Dorrington Bockius LLP contract with WFIS, his solicitation of WFIS customers, planning and implementing the departure of WFIS’s Maritime Group to ABD, the value of his client relationships to WFIS/USI, the benefits ABD now receives from his former WFIS clients, and anything related to any claim or defense in the case. John c/o Morgan, Lewis & Mr. Haskell will testify regarding his Will call. Haskell, Jr. Bockius LLP contract with WFIS, planning and implementing the departure of WFIS’s Maritime Group to ABD, his promotion of the solicitation of Lewis Dorrington to leave WFIS and join ABD, and anything related to any claim or defense in the case. Robert c/o Littler Mendelson, Mr. Volkel would be called to testify May call. Volkel P.C. regarding the nature of the maritime practice group’s work and revenues, the role and responsibilities of John Haskell, Jr., as the former Managing Director of WFIS’s Seattle Office, ABD’s efforts to raid WFIS’s and USI’s employees and clients, and anything related to any claim or defense in the case. Michael c/o Morgan, Lewis & Mr. McCloskey is Defendant ABD’s Chief May call. McCloskey Bockius LLP Financial Officer and would be called to testify regarding ABD’s intentions and handling with respect to the solicitation and NAME ADDRESS/PHONE SUBJECTS OF INFORMATION STATUS NUMBER hiring of the Individual Defendants, as well as the Individual Defendants’ ongoing handling of the insurance business of their former WFIS insurance accounts. Kurt de c/o Morgan, Lewis & Mr. de Grosz is Defendant ABD’s President May call. Grosz Bockius LLP and would be called to testify regarding ABD’s intentions and handling with respect to the solicitation and hiring of the Individual Defendants, as well as the Individual Defendants’ ongoing handling of the insurance business of their former WFIS insurance accounts. Plaintiff expressly reserves the right to call any and all of the Individual Defendants as hostile witnesses during Plaintiff’s case-in-chief regardless of whether Defendants identify them as witnesses who will be testifying at trial. B. Defendants intend to call the following lay witnesses: Name Address/Phone Subjects of Information Status Number Stanley c/o Morgan, Lewis & Ogden is a named defendant in this action Will call. Ogden Bockius LLP and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, he will testify about his experience in the maritime insurance industry and with his clients, difficulties he faced building and maintaining his client practice at WFIS in late 2016, the costs associated with his practice, the maritime insurance brokerage market in the Seattle area, his clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after his departure, WFIS’s actions after his departure, and other facts related to causation, damages and Defendants’ affirmative defenses. Eleanor c/o Morgan, Lewis & O’Keefe is a named defendant in this action Will call. O’Keefe Bockius LLP and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, she will testify about her experience in the maritime insurance industry and with her clients, difficulties she faced building and maintaining her client practice at WFIS in late 2016, the costs associated with her practice, the maritime insurance brokerage market in the Seattle area, her clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after his departure, WFIS’s actions after her departure, and other facts related to causation, damages and Defendants’ affirmative defenses. John c/o Morgan, Lewis & Haskell is a named defendant in this action Will call. Haskell Bockius LLP and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, he will testify about his experience in the maritime insurance industry and with his clients, his and others’ experiences at the WFIS Seattle office, the costs associated with his practice and the practice of others in the Seattle office of WFIS (which Haskell managed), the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, WFIS’s actions after Defendants’ departures, his communications with Lewis Dorrington before Dorrington began working for ABD, and other facts related to causation, damages and Defendants’ affirmative defenses. Lewis c/o Morgan, Lewis & Dorrington was a named defendant in this Will call. Dorrington Bockius LLP action and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, he will testify about his experience in the maritime insurance industry and with his clients, his and others’ experiences at the WFIS Seattle office, the costs associated with his practice and the practice of others in the Seattle office of WFIS, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, WFIS’s actions after Defendants’ departures, his communications with Haskell before Dorrington began working for ABD, and other facts related to causation, damages and Defendants’ affirmative defenses. Kurt de c/o Morgan, Lewis & Kurt de Grosz is Defendant ABD’s President May call. Grosz Bockius LLP and he will testify about his communications with Lewis Dorrington and Dorrington’s recruitment by ABD, his experience in the insurance brokerage industry and with ABD’s clients, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, and other facts related to causation, damages and Defendants’ affirmative defenses. Jim Dunlap Dunlap Towing Jim Dunlap is the president of Dunlap Will call. PO Box 593 Towing. He will testify about Dunlap LaConner, WA 98275 Towing’s insurance needs, the market for 360-466-3114 insurance brokerage services in the Seattle area that meet Dunlap Towing’s needs, the impact the Wells Fargo banking scandal had on Dunlap Towing’s desire to continue doing business with USI, and whether Dunlap Towing would have stayed with USI if Eleanor O’Keefe could not have serviced Dunlap Towing’s account. Joe Misenti Tote Shipping Joe Misenti was previously the General Will call. 10401 Deerwood Park Counsel at Silver Bay Seafoods. He will Blvd testify about Silver Bay Seafoods’ insurance Building 1, Suite 1300 needs, the market for insurance brokerage Jacksonville, FL 32256 services in the Seattle area that met Silver 877-775-7447 Bay Seafoods’ needs, the impact the Wells Fargo banking scandal had on Silver Bay Seafoods’ desire to continue doing business with USI, and whether Silver Bay Seafoods would have stayed with USI if Stanley Ogden could not have serviced Silver Bay Seafoods’ account. Joe Plesha 206-331-0643 Joe Plesha was previously the Chief Legal Will call. Counsel at Trident Seafoods. He will testify about Trident Seafoods’ insurance needs, the market for insurance brokerage services in the Seattle area that met Trident Seafoods’ needs, the impact the Wells Fargo banking scandal had on Trident Seafoods’ desire to continue doing business with USI, and whether Trident Seafoods would have stayed with USI if Stanley Ogden could not have serviced Trident’s account. Mike Trident Seafoods Mike McCarthy was previously the ultimate Will call. McCarthy Corporation person responsible for selecting insurance 20001 W Garfield St. brokerage services at Trident Seafoods. He Seattle, WA 98119 will testify about Trident Seafoods’ 206-281-9832 insurance needs, the market for insurance brokerage services in the Seattle area that met Trident Seafoods’ needs, the impact the Wells Fargo banking scandal had on Trident Seafoods’ desire to continue doing business with USI, and whether Trident Seafoods would have stayed with USI if Stanley Ogden could not have serviced Trident’s account. Robert Purse Seine Vessel Robert Kehoe was previously the ultimate Will call. Kehoe Owners Association person responsible for selecting insurance 1900 W Nickerson St. brokerage services at Purse Seine. He will #320 testify about Purse Seine’s insurance needs, Seattle, WA 98119 the market for insurance brokerage services 206-283-7733 in the Seattle area that met Purse Seine’s needs, the impact the Wells Fargo banking scandal had on Purse Seine’s desire to continue doing business with USI, and whether Purse Seine would have stayed with USI if Stanley Ogden could not have serviced Purse Seine’s account. Augie Chemithon Corporation Augie Catalano is the VP of Finance and Will call. Catalano 5430 W Marginal Way CFO at Chemithon. He will testify about SW Chemithon’s insurance needs, the market for Seattle, WA 98106 insurance brokerage services in the Seattle 206-858-7053 area that meet Chemithon’s needs, the impact the Wells Fargo banking scandal had on Chemithon’s desire to continue doing business with USI, and whether Chemithon would have stayed with USI if Eleanor O’Keefe could not have serviced Chemithon’s account. Corey c/o Morgan, Lewis & Anderson was a named defendant in this May call. Anderson Bockius LLP action and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, he will testify about his experience in the maritime insurance industry and with his clients, his and others’ experiences at the WFIS Seattle office, the costs associated with his practice and the practice of others in the Seattle office of WFIS, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, WFIS’s actions after Defendants’ departures, and other facts related to causation, damages and Defendants’ affirmative defenses. Marcia c/o Morgan, Lewis & Marcia Ogden was a named defendant in this May call. Ogden Bockius LLP action and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, she will testify about her experience in the maritime insurance industry and with clients, her and others’ experiences at the WFIS Seattle office, the costs associated with Stan Ogden’s practice and the practice of others in the Seattle office of WFIS, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, WFIS’s actions after Defendants’ departures, and other facts related to causation, damages and Defendants’ affirmative defenses. Mary Mark c/o Morgan, Lewis & Mary Mark was a named defendant in this May call. Bockius LLP action and will testify on all issues relevant to the claims and defenses that remain at issue in this trial. In particular, she will testify about her experience in the maritime insurance industry and with clients, her and others’ experiences at the WFIS Seattle office, the costs associated with the practice of others in the Seattle office of WFIS, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS, WFIS’s actions after Defendants’ departures, and other facts related to causation, damages and Defendants’ affirmative defenses. Machiko c/o Morgan, Lewis & Monzaki will testify about WFIS’s efforts to May call. Monzaki Bockius LLP retain business after Defendants’ departures, her experiences a WFIS’s Seattle office, her experience in the maritime insurance industry and with clients, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS. Lisa c/o Morgan, Lewis & Langdon will testify about WFIS’s efforts to May call. Langdon Bockius LLP retain business after Defendants’ departures, her experiences a WFIS’s Seattle office, her experience in the maritime insurance industry and with clients, the maritime insurance brokerage market in the Seattle area, clients’ particularized needs and WFIS’s and USI’s abilities to satisfy those client needs after Defendants’ departures from WFIS. Defendants may also call one or more rebuttal witnesses, the necessity of whose testimony, and the contents thereof, cannot be reasonably anticipated prior to trial. Defendants reserve the right to call any witness identified by Plaintiff. EXHIBITS In making objections to Plaintiff’s proposed trial exhibits, Defendants’ objections are identified using the following abbreviations: Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 1 Stanley Ogden 1994 Agreement Stipulated Disputed R and Covenant Not to Compete, P/WT/C WFIS000190–WFIS000196 MIL No. 2 2 Eleanor O’Keefe 1994 Stipulated Disputed R Agreement and Covenant Not P/WT/C to Compete, WFIS000237– MIL No. 2 WFIS000243 3 Lewis Dorrington 2004 Stipulated Disputed R Employment Agreement, P/WT/CTI WFIS000018–WFIS000020 MIL No. 1 4 John Haskell 2013 Agreement Stipulated Disputed R Regarding Trade Secrets, P/WT/C Confidential Information, Non- MIL No. 2 Solicitation, and Assignment of Inventions, WFIS000086– WFIS000088 5 John Haskell 2015 Agreement Stipulated Disputed R Regarding Trade Secrets, P/WT/C Confidential Information, Non- MIL No. 2 Solicitation, and Assignment of Inventions, WFIS000083– WFIS000085 6 March 10, 2017 Email Stipulated Disputed R exchange between Diane P/WT/C Bundrant (Trident Seafoods) MIL No. 2 and Stanley Ogden, with forwarded communications, ABD-MT-005969–ABD-MT- 005970 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 7 January 2–3, 2017 Email Stipulated Disputed R exchange between Joe Misenti P/WT/C (Silver Bay Seafoods) and MIL No. 2 Stanley Ogden, attaching BOR, ABD-MT-005541–ABD-MT- 005543 8 January 4, 2017 Email Stipulated Disputed R exchange between Stanley P/WT/C Ogden and Tim (Wards Cove) MIL No. 2 attaching ABD promotional flyer and BOR, ABD-MT- 005538- ABD-MT-005540 9 January 2, 2017 Email Stipulated Disputed R exchange between Augie P/WT/C Catalano and Eleanor O’Keefe, MIL No. 2 attaching BOR, ABD-MT- 005430–ABD-MT-005431 10 March 7, 2017 Email exchange Stipulated Disputed R between Lewis Dorrington and P/WT/CTI Jacob Lee (NYK Group), MIL No. 1 including attachments, ABD- MT-005897–ABD-MT-005904 11 January 3, 2017 Email Stipulated Disputed R exchange between Lal P/WT/C Chandwaney and Stanley MIL No. 2 Ogden, ABD-MT-005555 12 Template Broker of Record Stipulated Disputed R Letter, ABD-MT-005900 P/WT/C MIL No. 2 13 December 28, 2016 from Disputed Disputed R Eleanor O’Keefe to herself P/WT/C forwarding client contact MIL No. 2 information, USI_Ogden006734 14 Spreadsheet re: NYK Group Disputed Disputed R Commission Payments, ECF P/WT/C No. 116-1 MIL No. 2 15 ABD Producer Employment Stipulated Disputed R Agreement – Stanley Ogden, P/WT/CTI ABD-MT-000379–ABD-MT- MIL No. 4 000392 16 Text Messages between Stanley Stipulated Disputed R Ogden and Kurt de Grosz, P/WT/ CTI/ ABD-MT-001667– ABD-MT- C 001676 MIL No. 2 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 17 Text Messages between Stanley Stipulated Disputed R Ogden and Cory Anderson, P/WT/ CTI ABD-MT-001677–ABD-MT- MIL No. 1 001679 18 December 30, 2016 Email Stipulated Disputed R Exchange between Eleanor P/WT/C O’Keefe and Terry (LNU), with MIL No. 2 attachments, ABD-MT- 001586–ABD-MT-001588 19 Acknowledgment of Prior Stipulated Disputed R Trade Secrets and P/WT Confidentiality Agreement MIL No. 4 Compliance (Eleanor O’Keefe), ABD-MT-000393–ABD-MT- 000395 20 ABD Non-Disclosure, Stipulated Disputed R Proprietary Information, and P/WT Inventions Agreement (Eleanor MIL No. 4 O’Keefe), ABD-MT-000396– ABD-MT-000403 21 Eleanor O’Keefe ABD Offer Stipulated Disputed R Letter dated December 28, P/WT 2016, ABD-MT-000404–ABD- MIL No. 4 MT-000406 22 December 30, 2016 Email Stipulated Disputed R Exchange between Eleanor P/WT/C O’Keefe and Paul Koojoolian, MIL No. 2 with attachments, ABD-MT- 001592–ABD-MT-001594 23 December 30, 2016 Email Stipulated Disputed R Exchange between Eleanor P/WT/C O’Keefe and Harry Humphrey, MIL No. 2 with attachments, ABD-MT- 001583–ABD-MT-001585 24 December 30, 2016 Email Stipulated Disputed R Exchange between Eleanor P/WT/C O’Keefe and Salt River Co., MIL No. 2 with attachments, ABD-MT- 001589–ABD-MT-001591 25 Eleanor O’Keefe AT&T Stipulated Disputed R Wireless Statement 12/19/16– P/WT/C 01/18/17, ABD-MT-000273– MIL No. 2 ABD-MT-000300 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 26 February 21, 2017 Email Stipulated Disputed (With respect Exchange between Lewis to Dorrington and Kurt de Grosz, attachment) with attachment, ABD-MT- R 001138–ABD-MT-001153 P/WT/CTI MIL No. 4 27 January 26, 2017 Email Stipulated Disputed (With respect Exchange between Lewis to Dorrington and Kurt de Grosz, attachment) including attachments, ABD- R MT-001154–ABD-MT-001169 P/WT/CTI MIL No. 1 28 February 12, 2017 Email Stipulated Disputed R Exchange between Lewis P/WT/CTI Dorrington and Kurt de Grosz, MIL No. 4 ABD-MT-001126–ABD-MT- 001134 29 February 16, 2017 Email Stipulated Disputed R Exchange between Lewis P/WT/CTI Dorrington and Kurt de Grosz, MIL No. 4 ABD-MT-001135–ABD-MT- 001137 30 Acknowledgment of Prior Stipulated Disputed R Trade Secrets and P/WT/CTI Confidentiality Agreement MIL No. 1, 4 Compliance (John Haskell), ABD-MT-001424–ABD-MT- 001434 31 Declaration of John Haskell, Stipulated Disputed R Jr., ECF No. 60 P/WT/CTI MIL No. 1, 2 32 February 5, 2016 Email Stipulated Disputed R Exchange between John P/WT/CTI Haskell and Brian MIL No. 4 Hetherington, ABD-MT- 001300–ABD-MT-001301 33 Defendants’ Supplemental Stipulated Disputed R Interrogatory Response #1, P/WT/CTI ABD-MT-001680–001735 MIL No. 1 (November 16, 2018) 34 Defendants’ Supplemental Stipulated Disputed R Interrogatory Response #2, P/WT/CTI ABD-MT-001680– MIL No. 1 001744(November 20, 2018) Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 35 Defendants’ Supplemental Stipulated Disputed R Responses to Plaintiff’s P/WT/CTI Discovery Requests per Dkt. HS No. 102 Order Granting in Part Plaintiff’s Motion to Compel. 36 Stanley Ogden’s Responses to Stipulated Disputed R Plaintiff’s First Set of P/WT/CTI Discovery Requests HS 37 Eleanor O’Keefe’s Responses Stipulated Disputed R to Plaintiff’s First Set of P/WT/CTI Discovery Requests HS 38 Lewis Dorrington’s Responses Stipulated Disputed R to Plaintiff’s First Set of P/WT/CTI Discovery Requests HS 39 John Haskell, Jr.’s Responses Stipulated Disputed R to Plaintiff’s First Set of P/WT/CTI Discovery Requests HS 40 ABD’s Responses to Plaintiff’s Stipulated Disputed R First Set of Discovery Requests P/WT/CTI HS 41 ABD Acknowledgment of Prior Stipulated Disputed R Trade Secrets and P/WT/CTI Confidentiality (John Haskell), MIL No. 4 ABD-MT-001424–ABD-MT- 001426 42 ABD Non-Disclosure, Stipulated Disputed R Proprietary Information and P/WT/CTI Invention Agreement (John MIL No. 4 Haskell), ABD-MT-001427– ABD-MT-001434 43 March 4, 2016 ABD Offer Stipulated Disputed R Letter (John Haskell), ABD- P/WT/CTI MT-001435–ABD-MT-001437 MIL No. 4 44 ABD Acknowledgment of Prior Stipulated Disputed R Trade Secrets and P/WT/CTI Confidentiality (Lewis MIL No. 4 Dorrington), ABD-MT- 000312–ABD-MT-000314 45 ABD Non-Disclosure, Stipulated Disputed R Proprietary Information and P/WT/CTI Invention Agreement (Lewis MIL No. 4 Dorrington), ABD-MT- 000315–ABD-MT-000322 46 February 21, 2017 ABD Offer Stipulated Disputed R Letter (Lewis Dorrington), P/WT/CTI ABD-MT-000323–ABD-MT- MIL No. 4 000325 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 47 ABD Non-Disclosure, Stipulated Disputed R Proprietary Information and P/WT/CTI Invention Agreement (Stanley MIL No. 4 Ogden), ABD-MT-000368– ABD-MT-000375 48 November 18, 2016 ABD Offer Stipulated Disputed R Letter (Stanley Ogden), ABD- P/WT/CTI MT-000376–ABD-MT-000378 MIL No. 4 49 January 3, 2017 Email from Stipulated Disputed R Meghan Rice (Dunlap Towing) P/WT/C to Eleanor O’Keefe, ABD-MT- MIL No. 2 001595–ABD-MT-001596 50 February 28, 2017 Email Stipulated Disputed R exchange between Lewis P/WT/C Dorrington and Janice MIL No. 2 McDonald (NYK Ports), attaching BOR, ABD-MT- 005000–ABD-MT-005002 51 January 4, 2017 Email Stipulated Disputed R exchange between Marcia P/WT/CTI Ogden and Jenn Cabotage MIL No. 1 (Monterey Fish), ABD-MT- 005517–ABD-MT-005519 52 January 4, 2017 Email Stipulated Disputed R exchange between Stanley P/WT/C Ogden and Tim Smyer (wards MIL No. 2 Cove), ABD-MT-005521– ABD-MT-005524 53 February 25, 2017 LinkedIn Disputed Disputed R Email to Lewis Dorrington, P/WT/CTI USI_OGDEN 007539 MIL No. 1 54 February 25, 2017 LinkedIn Disputed Disputed R Email to Lewis Dorrington, P/WT/CTI USI_OGDEN 007545– MIL No. 1 USI_OGDEN 007546 55 February 25, 2017 LinkedIn Disputed Disputed R Email to Lewis Dorrington, P/WT/CTI USI_OGDEN 007547– MIL No. 1 USI_OGDEN 007548 56 February 25, 2017 LinkedIn Disputed Disputed R Email to Lewis Dorrington, P/WT/CTI USI_OGDEN 007549– MIL No. 1 USI_OGDEN 007550 57 ABD Marine Lost rev. Disputed Disputed HS proforma_2012-2016_v3.xlsx, LF USI_OGDEN 001839 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 58 USI v. Ogden, et al. – Account Disputed Disputed With Respect Information [Current 7 30 to Anderson 18].xlsx, USI_OGDEN 001845 and Haskell: R P/CTI LF HS MIL No. 1 With Respect to Dorrington, O’Keefe, and Ogden: LF HS 59 USI v. Ogden, et al. – Lost Disputed Disputed With Respect Revenue Totals, USI_OGDEN to Anderson 001846 and Haskell: R P/CTI LF HS MIL No. 1 With Respect to Dorrington, O’Keefe, and Ogden: R P/CTI LF HS 60 December 30, 2016 Broker of Disputed Disputed R Record Letter (Trident P/WT/C Seafood), USI_OGDEN MIL No. 2 006984 61 January 6, 2017 Broker of Disputed Disputed R Record Letters (Silver Bay P/WT/C Seafood, Monterey Fish Co.), MIL No. 2 including cover email, USI_OGDEN 006968– USI_OGDEN 006971 62 January 10, 2017 Broker of Disputed Disputed R Record Letter (Harley Marine P/WT/C Services), including cover MIL No. 2 email, USI_OGDEN 006938, USI_OGDEN 006927 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 63 January 16, 2017 Broker of Disputed Disputed R Record Letter (Prowler P/WT/C Fisheries LLC), including cover MIL No. 2 email, USI_OGDEN 006980– USI_OGDEN 006982 64 January 3, 2017 Broker of Disputed Disputed R Record Letter (Dunlap P/WT/C Towing), including cover MIL No. 2 email, USI_OGDEN 006942– USI_OGDEN 006943 65 March 3, 2017 Broker of Disputed Disputed R Record (St. Francis Yacht), P/WT/C including cover email, MIL No. 2 USI_OGDEN 001359– USI_OGDEN 001361 66 January 31, 2017 Broker of Disputed Disputed R Record (Royal Coffee), P/WT/C including cover email, USI MIL No. 2 OGDEN 000808–USI_OGDEN 000810 67 January 3, 2017 Broker of Disputed Disputed R Letter Record (Pacific Rim P/WT/C Transportation), including MIL No. 2 cover email, USI_OGDEN 000765–USI_OGDEN 000767 68 February 27, 2017 Broker of Disputed Disputed R Record Letter (Pasha Hawaii P/WT/C Holdings), including cover MIL No. 2 email, USI_OGDEN 001782– USI_OGDEN 001783 69 February 27, 2017 Broker of Disputed Disputed R Record Letter (The Pasha P/WT/C Group), including cover email, MIL No. 2 USI_OGDEN 001431– USI_OGDEN 001432 70 March 3, 2017 Broker of Disputed Disputed R Record Letter (HMS/American P/WT/C Queen Steamboat), including MIL No. 2 cover email, USI_OGDEN 001181–USI_OGDEN 001183 71 March 9, 2017 Broker of Stipulated Disputed R Record Letter (Yusen P/WT/C Logistics), including cover MIL No. 2 email, ABD-MT-005040– ABD-MT-005041 72 March 7, 2017 Broker of Stipulated Disputed R Record Letter (NYK Line), P/WT/C including cover email, ABD- MIL No. 2 MT-005897–ABD-MT-005900 Plaintiff’s Exhibits

Authenticity Admissibility Objection Admitted No. Description 73 March 9, 2017 Broker of Disputed Disputed R Record Letter (HMS Global P/WT/C Marine), including cover email, MIL No. 2 USI_OGDEN 000610– USI_OGDEN 000612 74 February 1, 2017 Broker of Disputed Disputed R Record Letter (Diver Institute), P/WT/C including cover email, MIL No. 2 USI_OGDEN 000785– USI_OGDEN 000788 75 February 27, 2017 Broker of Disputed Disputed R Record Letter (Del Mar P/WT/C Seafood, including cover email, MIL No. 2 USI_OGDEN 001281– USI_OGDEN 001283 76 March 24, 2017 Cease and Stipulated Disputed R Desist Letter to Lewis P/WT/CTI Dorrington, including exhibits HS MIL No. 1 77 June 14, 2016 Cease and Desist Stipulated Disputed R Letter to John Haskell P/WT/CTI HS MIL No. 1 78 https://www.theabdteam.com/c Disputed Disputed R ompany/press-release/abd- P/WT/CTI insurance-and-financial- HS services-opens-new-office- MIL No. 1, 2 seattle-washington (date last visited, April 22, 2022) Defendants’ Exhibits Authenticity Admissibility Objection Admitted No . 501 “Wells Fargo account fraud Disputed Disputed 401-403; 602; scandal” entry on 901; 801-805; Wikipedia (available at F; MIL https://en.wikipedia.org/wi ki/Wells_Fargo_account_fr aud_scandal) 502 Consumer Financial Disputed Disputed 401-403; 602; Protection Bureau Fines 901; 801-805; Wells Fargo $100 Million F; MIL for Widespread Illegal Practice of Secretly Opening Unauthorized Accounts". Consumer Financial Protection Bureau. (available at https://www.consumerfina nce.gov/about- us/newsroom/consumer- financial-protection- bureau-fines-wells-fargo- 100-million-widespread- illegal-practice-secretly- opening-unauthorized- accounts/). 503 Levine, Matt (9 September Disputed Disputed 401-403; 602; 2016). "Wells Fargo 901; 801-805; Opened a Couple Million F; MIL Fake Accounts". Bloomberg.com. (available at https://www.bloomberg.co m/opinion/articles/2016- 09-09/wells-fargo-opened- a-couple-million-fake- accounts) 504 Cowley, Stacy (12 Disputed Disputed 401-403; 602; December 2016). 901; 801-805; "Prudential Suspends Sales F; MIL of Its Life Policies by Wells Fargo". The New York Times. (available at https://www.nytimes.com/ 2016/12/12/business/dealb ook/wells-fargo-prudential- insure-policies.html) 505 Corkery, Michael (8 Disputed Disputed 401-403; 602; September 2016). "Wells 901; 801-805; Fargo Fined $185 Million F; MIL for Fraudulently Opening Accounts" (available at https://www.nytimes.com/ 2016/09/09/business/dealb ook/wells-fargo-fined-for- years-of-harm-to- customers.html) 506 Corkery, Michael (9 Disputed Disputed 401-403; 602; September 2016). "Wells 901; 801-805; Fargo Offers Regrets, but F; MIL Doesn't Admit Misconduct". The New York Times. (available at https://www.nytimes.com/ 2016/09/10/business/dealb ook/wells-fargo- apologizes-but-doesnt- admit-misconduct.html). 507 Puzzanghera, Jim (13 Disputed Disputed 401-403; 602; September 2016). "Wells 901; 801-805; Fargo is eliminating retail F; MIL sales goals after settlement over aggressive tactics". The Wall Street Journal. (available at https://www.latimes.com/b usiness/la-fi-wells-fargo- sales-20160913-snap- story.html). 508 Faux, Zeke (13 October Disputed Disputed 401-403; 602; 2016). "Wells Fargo CEO 901; 801-805; Stumpf Quits in Fallout F; MIL From Fake Accounts". Bloomberg.com. Bloomberg. (available at https://www.bloomberg.co m/news/articles/2016-10- 12/wells-fargo-ceo-stumpf- steps-down-in-fallout- from-fake-accounts). 509 Koren, James Rufus (21 Disputed Disputed 401-403; 602; September 2016). "Wells 901; 801-805; Fargo hit with new F; MIL sanctions following fake- accounts scandal". Los Angeles Times. (available at https://www.latimes.com/b usiness/la-fi-wells-fargo- occ-20161119-story.html) 510 Gray, Alistair (9 January Disputed Disputed 401-403; 602; 2017). "Wells Fargo counts 901; 801-805; cost of sham accounts F; MIL scandal". The Financial Times. (available at https://www.ft.com/content /1f22b9c0-d38d-11e6- b06b-680c49b4b4c0) 511 Keller, Laura (13 January Disputed Disputed 401-403; 602; 2017). "Wells Fargo Plans 901; 801-805; to Close More Than 400 F; MIL Branches Through 2018". Bloomberg. (available at https://www.bloomberg.co m/news/articles/2017-01- 13/wells-fargo-plans-to- close-more-than-400- branches-through-2018). 512 Chappell, Bill (20 Disputed Disputed 401-403; 602; September 2016). "'You 901; 801-805; Should Resign': Watch F; MIL Sen. Elizabeth Warren Grill Wells Fargo CEO John Stumpf". NPR. (available at https://www.npr.org/sectio ns/thetwo- way/2016/09/20/49473879 7/you-should-resign- watch-sen-elizabeth- warren-grill-wells-fargo- ceo-john-stumpf). 513 Protess, Ben (14 Disputed Disputed 401-403; 602; September 2016). "Wells 901; 801-805; Fargo Subpoenaed in Sham F; MIL Account Case". The New York Times. (available at https://www.nytimes.com/ 2016/09/15/business/dealb ook/wells-fargo- investigation.html?_r=0). 514 Masunaga, Samantha (3 Disputed Disputed 401-403; 602; November 2016). "Wells 901; 801-805; Fargo says the SEC is also F; MIL investigating its accounts scandal". The Los Angeles Times. (available at https://www.latimes.com/b usiness/la-fi-wells-fargo- sec-20161103-story.html). 515 Corkery, Michael (28 Disputed Disputed 401-403; 602; September 2016). 901; 801-805; "California Suspends Ties F; MIL With Wells Fargo". The New York Times. (available at https://www.nytimes.com/ 2016/09/29/business/dealb ook/california-wells-fargo- john-stumpf.html?_r=0) 516 Blake, Paul (3 November Disputed Disputed 401-403; 602; 2016) “Timeline of the 901; 801-805; Wells Fargo Accounts F; MIL Scandal” (available at https://abcnews.go.com/Bu siness/timeline-wells- fargo-accounts- scandal/story?id=42231128 ) 517 Heidi Singer December 15, Stipulated Disputed (by By Plaintiff: 2014 email to Heidi Signer, Defendants) 701 & 702; Josh Tyndell, Vicki Kitley, MIL Reuben Rodriguez, and John Haskell Subject: SPW By Defendants: 2015 budget review R Attachment: Dec14 SPW HS 2015 budget P&L.xlsx; LF Deec14 SPW 2015 budget trend P&L.xlsx USI_OGDEN007634- 007636 518 Hisae Harris June 1, 2015 Stipulated Disputed (by By Plaintiff: email to Hisae Harris, John Defendants) 701 & 702; Haskell, Barbara Fives MIL Subject: June OL-- Seattle Attachments: New and By Defendants: Lost business forecast - R June OL Seattle.xlsx; HS 06.2015 SEA OL P&L and LF Trend.xlsx USI_OGDEN 007637-007639 519 Hisae Harris July 31, 2015 Stipulated Disputed (by By Plaintiff: email to Hisae Harris, John Defendants) 701 & 702; Haskell, and Barbara Fives MIL Subject: 2016 Budget -- Seattle Office Attachment: By Defendants: 2016 Seattle Budget 08.04.2015.xlsx R HS USI_OGDEN 007640- LF 007642 520 Hisae Harris September 1, Stipulated Disputed (by By Plaintiff: 2015 email to John Defendants) 701 & 702; Haskell, Barbara Fives, et MIL al Subject: Sep OL and 2016 Budget (Seattle) By Attachment: SEA Sep 15 Defendants: FY OL vs. 2016 Plan R without Wholesale.xlsx HS USI_OGDEN 007643- LF 007644 521 07_ABD Marine Lost rev Stipulated Disputed (by By proforma_2012- Defendants) Defendants: 2016_v3.xls (spreadsheet HS from Nickerson expert LF files) 522 04_USI v. Ogden, et al. - Stipulated Disputed (by By Account Information Defendants) Defendants: [Current 7 30 18].xlsx (spreadsheet from With respect Nickerson expert files) to Anderson and Haskell: R P/CTI LF HS MIL No. 1 With respect to Dorrington, O’Keefe, and Ogden: LF HS 523 05_USI v. Ogden, et al. - Stipulated Disputed (by By Lost Revenue Totals Defendants) Defendants: [Current 7 30 18].xlsx.xlsx (spreadsheet from With respect Nickerson Expert files) to Haskell, Marcia Ogden, Mark, and Anderson: R P/CTI LF HS MIL No. 1 With respect to Stanley Ogden, O’Keefe, and Dorrington: R P/CTI LF HS 524 July 16, 2019 Nickerson Stipulated Disputed (by By expert report, with Defendants) Defendants: attachments HS LF FRE 701 and 702

525 August 8, 2018 Tilden Stipulated Disputed (by By expert report, with Defendants) Defendants: attachments HS LF FRE 701 and 702

Defendants reserve the right to identify and add additional, supplemental, or amended exhibits at any point prior to the filing of the final Pretrial Order at its discretion, and thereafter at the discretion of the Court. Additionally, although Defendants have identified certain exhibits they may use at trial (Exhibits 501-525, above), Defendants do not admit or stipulate to their admissibility. The exhibits may be objectionable, in whole or in part, or may only be admissible for a limited purpose. ADDITIONAL STIPULATIONS Subject to the approval of the Court, the parties also propose the following stipulations: 1. The parties stipulate and agree that by 5:30 p.m. on each day of trial, they will disclose to the opposing party the witnesses to be called to testify the following trial day. 2. The parties stipulate and agree that any damages on Plaintiff’s claim for Tortious Interference with Contract against ABD derive from and are coextensive with Plaintiff’s damages, if any, on its claims for Breach of Contract against Defendants Ogden, O’Keefe, and Haskell. Consequently, because the Court has already ruled that ABD is liable on Plaintiff’s claim for Tortious Interference with Contract, the amount of damages to be awarded to Plaintiff on its claim for Tortious Interference with Contract against ABD shall be affixed by the Court at the total amount of damages awarded, if any, on Plaintiff’s claims for Breach of Contract against Defendants Ogden, O’Keefe, and Haskell. The jury in this trial will not be asked to award any damages or make any findings on Plaintiff’s claim for Tortious Interference with Contract against ABD. This liability shall be joint and several with any liability on Plaintiff’s claims for Breach of Contract, and not additive. The Parties reach this stipulation without prejudice to Defendants’ rights to appeal any of the Court’s liability findings against any of Defendants on any of Plaintiff’s claims, and nothing in this stipulation constitutes or shall be construed as an admission of liability by any Defendant. 3. The parties stipulate and agree that Joe Misenti, a third-party witness disclosed by Defendants, may testify via perpetuation videotaped deposition due to scheduling conflicts with a family vacation, and that the parties agree to coordinate to find a mutually agreeable date for that perpetuation deposition sufficiently in advance of trial to have the videotaped deposition available at trial and any objections to its admission ruled on in advance by the Court. // // // // // // // // // // // // // // (a) This case is scheduled for trial before a jury on March 1, 2023. (b) This order has been approved by the parties as evidenced by the signatures of their counsel. This order shall control the subsequent course of the action unless modified by a subsequent order. This order shall not be amended except by order of the Court pursuant to agreement of the parties or to prevent manifest injustice. IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 9) this Order and to provide copies to counsel. DATED this 6th day of February 2023. , Suk ya oe an USS. District Judge Stanley A. Bastian JOINT PRETRIAL ORDER ~ 30