Wachovia Securities, L.L.C. v. Stanton (571 F. Supp. 2d 1014, 2008)

United States District Court for the Northern District of Iowa 2008-08-05

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER AND EXPEDITED DISCOVERY

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I.INTRODUCTION.1019

A. Factual Background.1019

1. The parties and their relationship.1019

2. Stanton’s resignation and new emplogment.1025

3. Stanton’s post-emplogment conduct .1026

B. Procedural Background.1030

II.LEGAL ANALYSIS.1031

A. Standards For A Temporary Restraining Order.1031

B. Application Of The Standards.•.1033

1. Likelihood of success.1033

a. Breach of restrictive covenants .1034

i. Arguments of the parties.1034

ii. Analysis.1035

b. Misappropriation of trade secrets .1041

i. Arguments of the parties.1041

ii. Analysis.1042

2. Threat of irreparable harm.1044

a. Arguments of the parties.1045

b. Analysis.1045

3. Balance of harms.1047

a. Arguments of the parties.1047

b. Analysis.1048

4. The public interest.1048

C. Expedited Discovery.1049

III.CONCLUSION 1050

In this action, filed on July 30, 2008, a securities broker-dealer seeks a temporary restraining order and a preliminary injunction to restrain a former employee from allegedly pirating confidential client information and other employees for the benefit of her new employer, a competing securities firm, pending disposition of arbitration proceedings on the parties’ dispute before the Financial Industry Regulatory Authority (FINRA). The broker-dealer also seeks expedited discovery to aid in the disposition of the broker-dealer’s motion for a preliminary injunction. Following a hearing on August 4, 2008, in which counsel for both parties participated, but no evidence or witnesses were presented, the court enters this order on the broker-dealer’s request for a temporary restraining order and expedited discovery.

I. INTRODUCTION

A. Factual Background

In a Complaint (docket no. 2), filed July 30, 2008, plaintiff Wachovia Securities, L.L.C., (Wachovia) seeks a temporary restraining order and a preliminary injunction against a former employee, defendant Donna Stanton, pending disposition of arbitration proceedings between the parties concerning various kinds of alleged misconduct by Stanton. Because of the preliminary nature of the proceedings, the factual background stated here is necessarily based primarily on the allegations in and documents in support of Wachovia’s July 30, 2008, Complaint (docket no. 2), Wachovia’s July 31, 2008, Motion For A Temporary Restraining Order And Preliminary Injunction And For An Order Permitting Expedited Discovery (docket no. 3), and Stanton’s Opposition to Wachovia’s Motion For A Temporary Restraining Order (docket no. 10). In making any findings of fact in this ruling, the court is mindful of the general rule that “the findings of fact and conclusions of law made by a court granting a preliminary injunction [or temporary restraining order] are not binding at trial on the merits.” University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); accord United States Sec. and Exchange Comm’n v. Zahareas, 272 F.3d 1102, 1105 (8th Cir.2001) (“[W]e have long held that ‘findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding.’ ”) (quoting Patterson v. Masem, 774 F.2d 251, 254 (8th Cir.1985)); National Credit Union Admin. Bd. v. Johnson, 133 F.3d 1097, 1103 n. 5 (8th Cir.1998) (quoting this principle from Camenisch); Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 962 (8th Cir.1995) (citing this statement from Camenisch as the “general rule” for findings of fact and conclusions of law in preliminary injunction rulings). Thus, all findings of fact in this ruling are provisional.

1. The parties and their relationship

Wachovia Securities, L.L.C., (Wachovia) is a corporation organized under the laws of the state of Delaware with its principal place of business in St. Louis, Missouri. Wachovia is a securities broker-dealer and a member of the Financial Industry Regulatory Authority (FINRA), the New York Stock Exchange, Inc., and all other major exchanges. Wachovia provides broker-dealer services to individual and institutional clients throughout the United States. In October 2007, Wachovia and A.G. Edwards & Sons, Inc., (Edwards) another securities broker-dealer, completed a merger. Thus, Wachovia alleges that it is a successor in interest to Edwards, which Stanton does not dispute. Wachovia has a branch office in Storm Lake, Iowa, which was formerly an Edwards office.

Defendant Donna Stanton had been employed at the Storm Lake office for Edwards, then Wachovia, for approximately twenty years as of July 2008. Wachovia alleges that Stanton was employed, first, as a “sales assistant” or “financial associate” for Edwards, then as a “registered sales assistant” for Wachovia. Wachovia contends that Stanton was responsible for providing a full range of administrative support services to Wachovia financial consultants in the Storm Lake office. There were two such financial consultants, or “senior brokers,” in the Storm Lake office, who had combined assets under management of approximately $100 million. Wachovia contends that these assets generated more than $500,000 in combined revenue on an annualized basis. More specifically, Wachovia alleges that Stanton was the sales assistant to senior broker Tom McClinton. McClinton managed in excess of $40 million in assets for more than 300 of Wachovia’s clients. Tom McClinton retired on July 18, 2008. Since McClinton’s retirement, his clients have been reassigned to Alan Bowles, another Wachovia broker in the Storm Lake office. Wachovia alleges that, in addition to assisting McClinton with his clients, Stanton also had a small “book” of her own clients.

In a Declaration submitted in support of her Opposition, Stanton paints a quite different picture of her role at Wachovia. Although she concedes that she was originally hired by Edwards in 1988 as an unregistered sales assistant, she contends that, in 1996, she was asked to get her securities licenses. She contends that, at that time, she was told to sign the Sales Assistant Agreement (the 1996 Agreement), portions of which are set out below. She contends that she was not given new employment in consideration for signing the 1996 Agreement, but only materials to help her study for her licensing examinations. Wachovia alleges that, in consideration for entering into an employment relationship with Edwards (and its successor Wachovia) and executing her employment agreement, Stanton was provided with significant benefits, including fair compensation, office facilities, health insurance, securities registration, and participation in Wachovia’s 401 (k) plan. The record does not support a finding that Stanton entered into new employment with Edwards or that her continued employment was contingent on executing the 1996 Agreement, but the Agreement does, by its terms, as quoted below, identify adequate consideration for the Agreement. Stanton asserts that, to her knowledge, no other Edwards employees in the Storm Lake office were required to sign a non-solicitation agreement. She also argues that the 1996 Agreement is inapplicable to her ultimate position as a financial consultant.

Stanton represents that, over the twelve years after becoming registered, she personally originated, developed, and serviced approximately 200 clients under her own production number and that she received 100% of the commissions for such customers. She contends that many of her customers were developed through friends and acquaintances of her prior customers, her personal network of friends and relations, and her personal reputation. Thus, she contends that she developed these customers largely independent of any marketing efforts by Edwards or Wachovia. Stanton concedes that she did assist Tom McClinton with servicing of approximately 100 to 150 of his clients, but she asserts that she and McClinton, who was semiretired for the last three years that he worked for Edwards, split the commissions under a joint production number, and that she also provided full service to his clients, including research and recommendations, when he was out of the office, often for extended periods of time.

In a Declaration filed in support of Stanton’s Opposition, McClinton confirms Stanton’s description of her involvement with his clients and their commissions arrangement, adding that Stanton received 3 % of his gross commissions, as well. Stanton asserts that she also provided service to the clients of other financial consultants in the office, including Alan Bowles. Stanton asserts that she considered herself and her clients considered her a financial consultant. She also asserts that Alan Bowles was the only person in the office who did not treat her as a peer, and that she believed that Bowles discriminated against her because of her gender — although she offers virtually no factual allegations to support this allegation.

On or about March 3, 1996, Stanton entered into the 1996 Agreement with Edwards. Complaint, Declaration of Joseph Wood, Exhibit B. The court finds the following paragraphs of that agreement to be significant to the present dispute:

In consideration of such acceptance and employment, you agree that:

1. So long as you serve as an employee of Edwards, you will act only in Edwards’ best interest. For that purpose, you will perform your work competently and diligently; and you will observe all directions given by officials of Edwards, all policies announced by Edwards, all regulations and procedures prescribed in Edwards’ Policy and Procedures Manuals and Compliance Manuals as from time to time are altered or issued, and all applicable rules of regulatory authorities. You will conduct yourself as a loyal and faithful employee of Edwards, and you will in no event take any action which could harm Edwards’ business or its relationships with its clients.

2. ALL RECORDS AND DOCUMENTS CONCERNING THE BUSINESS AND AFFAIRS OF EDWARDS INCLUDING WITHOUT LIMITATION THE NAMES, ADDRESSES, TELEPHONE NUMBERS AND ASSETS AND OBLIGATIONS CARRIED IN THE ACCOUNTS OF ITS CUSTOMERS, AND THE BOOKS, PAPERS, RECORDS AND RECORDINGS FURNISHED TO YOU DURING THE TRAINING PROGRAM AND THE RIGHT TO USE SUCH RECORDS, DOCUMENTS, BOOKS, PAPERS AND RECORDINGS ARE, AND SHALL ALWAYS BE, THE CONFIDENTIAL AND EXCLUSIVE PROPERTY OF EDWARDS. YOUR USE OF SUCH RECORDS AND DOCUMENTS, WHETHER GENERATED AND PREPARED BY YOU OR FURNISHED TO YOU BY EDWARDS, AS PERMITTED BY EDWARDS SHALL CEASE IMMEDIATELY UPON THE FIRST OF THE FOLLOWING EVENTS TO OCCUR: YOUR (1) RESIGNATION, (2) RETIREMENT, (3) RELEASE, (4) DISCHARGE, (5) ACCEPTANCE OF OTHER EMPLOYMENT, OR (6) TERMINATION OF EMPLOYMENT FOR ANY OTHER REASON.

YOU (A) SHALL NOT REMOVE ANY SUCH RECORDS OR DOCUMENTS FROM THE PREMISES OF EDWARDS IN EITHER ORIGINAL, DUPLICATE OR COPIED FORM, EXCEPT IN THE ORDINARY COURSE OF CONDUCTING BUSINESS FOR, AND SUBJECT TO THE APPROVAL BY, EDWARDS AND (B) SHALL IMMEDIATELY DELIVER TO EDWARDS, PRIOR TO THE TERMINATION OF EMPLOYMENT, OR AT ANY OTHER TIME UPON EDWARDS’ REQUEST, ANY SUCH RECORDS AND DOCUMENTS IN THE EMPLOYEE’S POSSESSION OR CONTROL.

YOU SHALL NOT (A) DISCLOSE TO ANY PERSON, FIRM, ASSOCIATION, PARTNERSHIP, CORPORATION OR OTHER ENTITY, THE CONTENTS, IN WHOLE OR IN PART, OF SUCH RECORDS AND DOCUMENTS, EXCEPT IN THE ORDINARY COURSE OF CONDUCTING BUSINESS FOR EDWARDS; (B) DIRECTLY OR INDIRECTLY SOLICIT OR AID IN THE SOLICITATION ON BEHALF OF ANY OTHER ORGANIZATION, ANY CUSTOMERS HAVING ACCOUNTS WITH EDWARDS WITH WHOM YOU SHALL HAVE HAD ANY DEALINGS WHATSOEVER DURING THE TERM OF YOUR EMPLOYMENT WITH EDWARDS WHEN SUCH OTHER ORGANIZATION DOES BUSINESS IN SECURITIES, COMMODITIES AND FINANCIAL FUTURES, INSURANCE OR OTHER LINES OF BUSINESS IN WHICH EDWARDS OR ANY OF ITS AFFILIATES IS ENGAGED; AND/OR (C) RECRUIT, ENTICE, INDUCE OR SOLICIT, DIRECTLY OR INDIRECTLY, ANY EMPLOYEE OF EDWARDS OR ANY OF ITS AFFILIATES FOR EMPLOYMENT WITH ANY OTHER ORGANIZATION WHICH DOES BUSINESS IN SECURITIES, COMMODITIES AND FINANCIAL FUTURES, INSURANCE OR ANY OTHER LINES OF BUSINESS IN WHICH EDWARDS OR ANY OF ITS AFFILIATES IS ENGAGED.

IN THE EVENT YOU BREACH ANY OF THE COVENANTS CONTAINED IN THIS PARAGRAPH, YOU ACKNOWLEDGE THAT EDWARDS’ REMEDIES AT LAW FOR DAMAGES WILL BE INADEQUATE AND THAT EDWARDS SHALL BE ENTITLED TO IN-JUNCTIVE RELIEF TO PREVENT YOUR PROSPECTIVE OR CONTINUING BREACH OF THESE PROVISIONS. THIS PROVISION SHALL NOT BE CONSTRUED IN ANY WAY TO CONSTITUTE A WAIVER BY EDWARDS OF ANY AVAILABLE REMEDY AT LAW.

Termination

26. In the event that your employment with Edwards ends at any time either through termination by Edwards or through resignation by you, you will surrender all training materials, account records, customers’ statements and customers’ files to Edwards, and you agree, in such event, that such termination or resignation, as the case may be, will constitute the forfeiture by you of your right to receive any commission on transactions effected, insurance business placed or plan payments made subsequent to the date of such termination or resignation.

Complaint, Declaration of Joseph Wood, Exhibit B, 1996 Agreement, ¶¶ 1-2, 26 (capitalization and underlining in the original). The 1996 Agreement also provides as follows:

Miscellaneous

30. The terms of your employment and these standard provisions will enure to the benefit of, and be binding upon, both you and Edwards and our respective successors and assigns. This agreement shall be governed by and construed in accordance with the laws of the State of Missouri even though you are not, or cease to be, a resident or employee of that state.

Complaint, Declaration of Joseph Wood, Exhibit B, 1996 Agreement, ¶ 30 (underlining in the original). Thus, the court finds that the 1996 Agreement is binding upon and enforceable by Wachovia as Edwards’s successor.

Stanton argues that the 1996 Agreement was inapplicable to her later position as a financial consultant. The court notes, however, that Stanton entered into the 1996 Agreement at the time that she was asked to obtain her securities licenses and, apparently, as a prerequisite to receiving materials from Edwards to assist her preparations to take the licensing examinations. Wachovia disputes that Stanton’s position ever changed from “registered sales assistant” to “financial consultant,” and Stanton argues only that she considered herself to be and that her clients considered her to be a financial consultant, not that her position or job title actually changed. No party has identified any provision of the 1996 Agreement that would have caused it to terminate because of a change in Stanton’s duties, nor has any party produced a subsequent agreement superseding or terminating the 1996 Agreement or identifying Stanton’s position as a “financial consultant” rather than a “registered sales assistant.” Nevertheless, Stanton’s evidence does considerably undermine Wachovia’s contention that she only provided administrative support services to Wachovia financial consultants in the Storm Lake office.

Stanton contended, and Wachovia conceded, at the hearing on August 4, 2008, that the “financial consultants” in the Storm Lake office were not subject to non-solicitation agreements similar to the 1996 Agreement. Indeed, Wachovia’s counsel represented that neither Edwards nor Wa-chovia required such a non-solicitation agreement for “financial consultants.” When asked by the court to opine on the rationale for imposing such an agreement on sales assistants, but not financial consultants, counsel for Wachovia suggested that the reason is that sales assistants do not have their own clients, but instead service the clients of “financial consultants.” Thus, the clients do not “belong” to sales assistants, while they “belong” to “financial consultants,” and sales assistants can, therefore, legitimately be precluded from soliciting clients that were not “theirs.”

Wachovia alleges, and the court finds, that Stanton was also bound by Edwards’s confidentiality policy, as set forth in Section 9.2 of Edwards’s Sales Practice Manual, which was made available to all of Edwards’s employees. Complaint, Declaration of Joseph Wood, Exhibit C. That policy provides as follows:

9.2 Confidentiality of Client Account Information

Client account confidentiality is a very serious matter that all employees should observe at all times. You should never discuss information regarding a client’s transactions or account status with other employees, persons not authorized to transact business in the account (spouse, parent or child), or government or regulatory authorities.

Complaint, Declaration of Joseph Wood, Exhibit C.

Wachovia also alleges, and the court finds, that Stanton certified that she had read and understood Edwards’s Code of Ethical Conduct. Complaint, Declaration of Joseph Wood, Exhibit D. That Code provided, in pertinent part, as follows:

CONFIDENTIALITY

Directors, officers and employees are obligated to maintain the confidentiality of information entrusted to them by A.G. Edwards, its vendors and/or other employees. Directors, officers and employees must further abide by A.G. Edwards’ Privacy Policy as it pertains to the handling of nonpublic, client information and must maintain the confidentiality of information concerning other employees that they receive in performing their jobs. Exceptions to the nondisclosure of such information must be authorized by A.G. Edwards’ management or mandated by legal or regulatory entities.

No A.G. Edwards representative may provide nonpublic information to persons or organizations outside A.G. Edwards, including the media, unless authorized to do so. Should an A.G. Edwards representative receive an inquiry from the media, that inquiry should be referred immediately to the Public Relations Group in Corporate Communications. Any inquiry concerning A.G. Edwards’ securities should be referred immediately to Investor Relations....

These restrictions regarding confidentiality apply to confidential information received by employees or officers prior to their employment with A.G. Edwards and continue after their employment with A.G. Edwards ends.

Complaint, Declaration of Joseph Wood, Exhibit D.

As part of her official duties at Wacho-via, Stanton had access to extensive personal records and information about Wa-chovia’s clients and personnel records of the financial consultants in the Storm Lake office. The client records included client identity information, such as social security numbers, addresses, telephone numbers, and also transactional histories, tax information, personal financial data, insurance and banking information, and investment objectives. The information concerning consultants included compensation details and performance reviews. Wacho-via has invested substantial corporate resources in the development and maintenance of client information, often over a number of years, and at great expense. Indeed, Wachovia alleges, and the court finds, that its customer list is the “lifeblood” of its business. Wachovia contends, and the court finds, that some of the expenses incurred by Wachovia in obtaining clients are the costs of national and local advertising, training of Wachovia’s sales force, support staff, clearing services, operations personnel, systems and support, management and compliance supervision, salaries, annual registration fees, computer services and equipment, phone, mail, research, literature, seminars, trade and other professional news publications, promotional events, retention of experts, and other expenditures to maintain goodwill in the securities industry. Wachovia alleges, and the court finds, that some client information, such as transactional histories, tax information, personal financial data, insurance and banking information, and investment objectives, is not publicly available, is proprietary and valuable, and would be especially useful to a competitor, and that a customer list, even to the extent that it includes publicly accessible information, such as addresses and telephone numbers, is a compilation that is not itself publicly available, is proprietary and valuable, and would be especially useful to a competitor.

Moreover, customer information such as transactional histories, tax information, personal financial data, insurance and banking information, and investment objectives, was also entrusted to Wachovia by its customers with the expectation that it would remain confidential and would not be disclosed to third parties. Applicable laws also required Wachovia to safeguard this information until such time as controlling authorities authorize its release. Wa-chovia also alleges, and the court finds, that Stanton had access to information such as customer lists and customers’ transactional histories, tax information, personal financial data, insurance and banking information, and investment objectives solely by virtue of her employment with Wachovia and that Stanton was also obligated to maintain the confidentiality of such information pursuant to the contract, policy, and ethical provisions quoted above. Wachovia had in place internal policies and procedures, including the contracts and policies quoted above, that the court finds were reasonably designed to maintain the confidentiality of client information and records, such as customer lists, transactional histories, tax information, personal financial data, insurance and banking information, and investment objectives.

2. Stanton’s resignation and new employment

Stanton resigned from her position with Wachovia, without notice, by letter dated July 11, 2008, but not seen by Wachovia until July 14, 2008. Stanton’s resignation came just shortly before the retirement of Tom McClinton, the senior broker whose clients Stanton had helped to service and with whom she had split commissions. Although Wachovia asserts that Stanton’s resignation was “abrupt,” Stanton asserts that she had become increasingly unhappy after Edwards merged with Wachovia because of changes in business practices and increasing sexual harassment and sexual discrimination to which she was subjected by Alan Bowles. Thus, she contends that, by July 2008, she had determined that staying at Wachovia was not a viable option. She also asserts that it is common practice in the securities industry to resign without notice.

The body of Stanton’s July 11, 2008, resignation letter, in its entirety, runs as follows:

The purpose of this letter is to announce my resignation from A.G. Edwards/Wa-chovia Securities, effective July 13, 2008. This was not an easy decision to make, on my part. The past 20 years have been very rewarding. I have enjoyed working for A.G. Edwards.

I have accepted a position as an Independent Investment Executive with Century Securities Associates, Inc., a subsidiary of Stifel Financial Corp. This opportunity gives me the chance to grow professionally and continue to work with my clients, in the manner to which they have become accustomed, while offering the same products.

I wish you and Wachovia Securities all the best.

Complaint, Alan Bowles Declaration, Exhibit A.

Immediately after her resignation, Stanton began employment with the brand new Storm Lake office of Century Securities Associates, Inc., (CSA), a subsidiary of Stifel Financial Corporation, a direct competitor of Wachovia. Neither Stifel nor CSA had an office in Storm Lake, Iowa, or in the surrounding area prior to July 2008. CSA’s new office is in a building that is still under construction, some eight or ten blocks from Wachovia’s Storm Lake office.

3. Stanton’s post-employment conduct

Wachovia alleges that, following her resignation, Stanton began to solicit Wacho-via’s clients. More specifically, Wachovia alleges that it has heard from numerous clients, most of whom had been serviced by McClinton, that Stanton has solicited them to move with her to CSA. In support of these allegations, Wachovia offers copies of two letters purportedly sent to Wacho-via clients.

The first letter, dated July 14, 2008, to a specific client of Wachovia, is on CSA letterhead and is signed by Stanton. The body of the letter, in its entirety, runs as follows:

I am pleased to announce that I have joined Century Securities Associates, Inc. as an independent securities professional, effective July 14, 2008. I will continue to provide you with the same services as in the past. Century Securities is a wholly owned broker-dealer subsidiary of Stifel Financial Corp. Sti-fel, Nicolaus & Company, Incorporated will provide clearing services on your account. An exclusive relationship between Stifel and Century allows us to benefit from the vast resources and experience of Stifel Nicolaus. Century and I will provide you with the personal service and investment counseling you need.

As the clearing firm, Stifel Nicolaus is generally responsible for bookkeeping and safekeeping functions, including receipt and disbursement of all funds and securities. In addition, Stifel Nicolaus regulates and approves margin loans or other extensions of confirmations and statements [sic].

If you have any questions or concerns, you may call me at [telephone numbers deleted].

Stifel Nicolaus, Century Securities, and I thank you for the continued opportunity to be of service and look forward to a long and rewarding relationship.

Complaint, Alan Bowles Declaration, Exhibit B. The record presented so far does not indicate whether this particular recipient or any recipient of a similar letter was one of Stanton’s “book” of clients, a client of McClinton’s that she had helped service, or a client of McClinton or another Wacho-via financial consultant that Stanton had never served.

A second letter offered by Wachovia, dated July 18, 2008, is also on CSA letterhead, but is without a specific addressee. The letter is signed by Stanton and Deb McAtee. McAtee had also been employed by Wachovia in its Storm Lake office as a sales assistant and receptionist. Wachovia alleges that, on July 14, 2008, McAtee purportedly started a two-week “vacation,” but then sent Wachovia a resignation letter dated July 27, 2008, which Wachovia received on July 28, 2008. Thus, under Wachovia’s version of events, McAtee signed the July 18, 2008, letter on CSA letterhead before she resigned from her employment with Wachovia. Wachovia alleges that Stanton improperly solicited McAtee to join her at CSA’s new office in Storm Lake. Stanton contends, however, that she and McAtee were long-time friends, that McAtee had been as unhappy as Stanton was with changes in the office after Edwards merged with Wachovia, and that McAtee told her that if she left, McA-tee wanted to join her. Indeed, Stanton contends that McAtee resigned after she learned that the locks of the Storm Lake office had been changed and that she had not been issued a new key. Stanton contends that McAtee then asked her for a job, and that Stanton hired McAtee only after McAtee had resigned from her job at Edwards.

The July 18, 2008, letter from Stanton and McAtee runs as follows:

Greetings,

By now, you have learned of Tom McClinton’s retirement. What you may not know is that I too left Wachovia. I have gone to work for another brokerage firm, Century Securities, a division of Stifel Nicolaus, a St. Louis based company. Deb McAtee, who worked with us at Wachovia for the last 4 years will also be joining me. At Century, we are able to offer all the products and services you are accustomed to.

We are located in a new location just south of the Post Office, at 423 Cayuga St., Storm Lake, Iowa. We are able to work with you and provide the same great service you are used to.

We still have some contractors working here and invite you to stop by to check their progress and have a cup of coffee with us, or give us a call. We are happy to discuss any questions and concerns you may have. We look forward to working with you again.

Complaint, Alan Bowles Declaration, Exhibit C. Again, the record presented so far does not indicate how many of Wachovia’s clients have received this letter or if the recipients were only in Stanton’s own “book,” clients that Stanton had jointly serviced with McClinton, or clients of Wa-chovia that Stanton had never serviced for herself, McClinton, or another financial consultant.

Wachovia alleges that Stanton used Wachovia’s confidential and proprietary customer lists and other trade secret information to conduct what Wachovia describes as a “mass mailing” of these letters to clients, almost all of whom were McClinton’s clients prior to his retirement. Indeed, Wachovia alleges that, considering the number of clients involved, it is unlikely that Stanton could send all of Wachovia’s clients previously serviced by McClinton a letter without improperly taking Wachovia’s confidential information. Wachovia also alleges that Stanton has been calling Wachovia’s clients previously serviced by McClinton to solicit their business and to convince them to move their accounts from Wacho-via to Stanton at CSA.

Stanton represents, however, that she did not take any trade secrets or, indeed, any information from Wachovia. More specifically, in her Declaration, Stanton represents as follows:

16. Wachovia’s allegation that I have misappropriated its confidential information and trade secrets is entirely false. While I disagree with the assertion that publicly available customer contact information, such as name, address and phone number could possibly be a trade secret, the fact is that I did not remove from Wachovia any customer information and have not used or disclosed any such information.

17. Further, since I do not have any customer information from Wachovia in my possession, there is no possible threat that I will use or disclose any such information in the future.

23. As is standard procedure in the industry, after leaving Wachovia, I contacted as many of my customers as I could remember to advise them of my new place of employment.

24. I also sent a letter to Mr. McClinton’s customers to advise them of my new place of employment. Other than that letter to Mr. McClinton’s customers, I have not initiated any further contact with them. I have responded to those customers, when they have reached out to me.

25. I used only publicly available information that I looked up to contact customers.

Opposition, Stanton Declaration, ¶¶ 16-17, 23-25 (emphasis in the original). Stanton also asserts that her clients have a right to know where she can be reached and to make informed decisions about where to place their accounts.

In his Declaration, McClinton avers that, in connection with his retirement, he advised his clients that they could pursue one of three courses: (1) leave their money with Wachovia to be managed by the new financial consultant assigned to them (Alan Bowles); (2) invest their money with Stanton at her own, independent CSA office in town; or (3) move their money to any other brokerage firm in town. McClinton avers that many of his clients have told him that they were happy to receive a contact letter from Stanton.

Stanton also asserts that, notwithstanding the 1996 Agreement, Edwards had a longstanding policy and practice, indeed, a firm culture, of recognizing that the client relationship is owned by the financial ad-visor, not the firm, allowing departing financial consultants to take their clients’ information and records with them, and allowing former financial consultants to solicit their clients to join them at their new employer, so long as they wait until after departing to make such a solicitation. She contends that this policy and culture were confirmed by statements of Edwards’s chief executive officers, both before and after the merger with Wachovia was announced. See Opposition, Exhibits A and C. She also contends that when she and Alan Bowles joined Edwards’s then-new office in Storm Lake, they had both left Piper Jaffray, they both brought to Edwards records concerning their clients at Piper Jaffray, and they immediately sent those clients mailings advising them of their new place of employment and asking them to transfer their accounts to Edwards.

McClinton also avers in his Declaration that it had always been the policy at Edwards and Wachovia that the client relationship belongs to the financial consultant, not the firm. He adds that, in his twenty-five years of experience in the securities industry, it is standard procedure for registered representatives who have changed firms to send out solicitation letters to clients they serviced at their former firm. Moreover, McClinton avers that, in his eighteen years with Edwards and Wacho-via, he has seen several registered representatives change firms and then openly solicit their customers to join their new firms. Indeed, McClinton avers that he had never seen Edwards or Wachovia take legal action against any registered representative for such conduct prior to this action against Stanton. McClinton avers, further, that over 90% of his clients at the time that he retired had actually moved with him when he left Edward Jones in 1990 and joined Edwards.

Stanton also points out that both Edwards and Wachovia (but not CSA or Sti-fel) are signatories to the Protocol For Broker Recruiting, which is attached to her Opposition as Exhibit B. The Protocol provides, in pertinent part, as follows:

The principal goal of the following protocol is to further the clients’ interests of privacy and freedom of choice in connection with the movement of their Registered Representatives (“RRs”) between firms. If departing RRs and their new firm follow this protocol, neither the departing RR nor the firm that he or she joins would have any monetary or other liability to the firm that the RR left by reason of the RR taking the information identified below or the solicitation of the clients serviced by the RR at his or her prior firm, provided, however, that this protocol does not bar or otherwise affect the ability of the prior firm to bring an action against the new firm for “raiding.” The signatories to this protocol agree to implement and adhere to it in good faith.

When RRs move from one firm to another and both firms are signatories to this protocol, they may take only the following account information: client name, address, phone number, email address, and account title of the clients that they serviced while at the firm (“the Client Information”) and are prohibited from taking any other documents or information. Resignations will be in writing delivered to local branch management and shall include a copy of the Client Information that the RR is taking with him or her. The RR list delivered to the branch also shall include the account numbers for the clients serviced by the RR. The local branch management will send the information to the firm’s back office. In the event that the firm does not agree with the RR’s list of clients, the RR will nonetheless be deemed in compliance with this protocol so long as the RR exercised good faith in assembling the list and substantially complied with the requirement that only Client Information related to clients he or she serviced while at the firm be taken with him or her.

RRs that comply with this protocol would be free to solicit customers that they serviced while at their former firms, but only after they have joined their new firms. A firm would continue to be free to enforce whatever contractual, statutory or common law restrictions exist on the solicitation of customers to move their accounts by a departing RR before he or she has left the firm.

Opposition, Exhibit B (underlining in the original). Stanton contends that, although she did not know of this Protocol at the time that she resigned from Wachovia, she did not choose her new employer on the basis of whether or not her new employer was a party to the Protocol, and she did not provide Wachovia with a list of the information that she was taking with her, her supposed “solicitation” conduct was actually more conservative than the conduct that the Protocol would have permitted, because she did not take any client information from Wachovia.

Wachovia alleges that, unless Stanton’s conduct in soliciting clients and employees of Wachovia is immediately restrained, Wachovia’s other financial consultants and financial associates will be encouraged to engage in similar conduct, which would be highly disruptive to Wachovia’s ability to conduct business in a stable manner or to maintain its goodwill with its customers and employees. Wachovia also alleges that, unless Stanton’s conduct in soliciting clients and employees of Wachovia is immediately restrained, other competitors of Wachovia will also be encouraged to engage in the same kind of behavior, which will cause Wachovia severe and permanent damage. Wachovia also alleges that, by soliciting Wachovia’s clients, Stanton has caused and will continue to cause irreparable injury to Wachovia that cannot be cured by monetary damages, including the following: (1) loss of personnel and harm to the Storm Lake office; (2) injury to Wachovia’s reputation and goodwill in Iowa; (3) present economic loss, which cannot be ascertained at this time, and future economic loss, which could potentially be incalculable; (4) disclosure of trade secrets, customer and employee lists, and other proprietary and confidential business and customer information; and (5) loss of the confidence and trust of Wachovia’s clients and employees and loss of business reputation.

B. Procedural Background

On July 30, 2008, Wachovia filed its Complaint (docket no. 2) in this matter seeking a temporary restraining order and a preliminary injunction against Stanton, pending disposition of arbitration proceedings between the parties before the Financial Industry Regulatory Authority (FIN-RA) concerning various kinds of alleged misconduct by Stanton. More specifically, Wachovia alleges that Stanton’s misconduct constitutes (1) breach of her employment contract; (2) misappropriation of trade secrets in violation of the Iowa Uniform Trade Secrets Act, Iowa Code Ch. 550; (3) breach of fiduciary duty; (4) breach of duty of loyalty; (5) intentional interference with actual and prospective economic advantage; (6) negligent interference with actual and prospective economic advantage; (7) conversion; and (8) unfair competition.

Wachovia requests judgment as follows:

(A)entry of a temporary and preliminary injunction lasting until such time as FINRA Dispute Resolution renders an award in the underlying dispute, enjoining and restraining Stanton, directly or indirectly, and whether alone or in concert with others, including any director, officer, agent, employee, and/or representative of her new employer, from the following:

(1)soliciting or otherwise initiating any further contact or communication with any client of Wachovia whom Stanton served or whose name became known to her while in the employ of Wachovia, including but not limited to communicating with such clients for the purpose of advising them of Stanton’s new affiliation with her new employer or for the purpose of inviting, encouraging, or requesting the transfer of any accounts from Wachovia;

(2)(a) soliciting the employment of any Wachovia employee or broker, (b) hiring any Wachovia employee or broker, (c) inducing any Wachovia employee or broker to leave the employ of Wacho-via, and (d) taking any action to assist her new employer or any other entity employing Stanton from soliciting, inducing, or hiring any employee or broker to leave Wachovia; and

(3) using, disclosing, or transmitting for any purpose any confidential or proprietary information belonging to or concerning Wachovia, its customers or employees, including but not limited to the (a) names, addresses, social security numbers, phone numbers, financial information, investment objectives, and account information of Wachovia’s clients, (b) the names, salaries, production, and other business information regarding Wachovia’s brokers and employees, and (c) other confidential information, trade secrets, and commercially sensitive materials of Wachovia;

(B) ordering Stanton, and all those acting in concert with her, including but not limited to the directors, officers, employees, and agents of CSA and Stifel, to return to Wachovia all records, documents, and/or information in whatever form (whether original, copied, computerized, or handwritten), pertaining to Wachovia’s customers, employees, and business, and purge all documents and information derived therefrom from the possession, custody, and control of Stanton; and

(C) granting such other and further relief as the Court deems just and proper.

On July 31, 2008, the day after filing its Complaint, Wachovia filed its Motion For A Temporary Restraining Order And Preliminary Injunction And For An Order Permitting Expedited Discovery (docket no. 3). By order (docket no. 5) dated July 31, 2008, the court found that an expedited hearing should be set on Wachovia’s request for a temporary restraining order and expedited discovery to aid in the disposition of the motion for a preliminary injunction. Therefore, the court set a hearing on Wachovia’s request for temporary restraining order and expedited discovery for August 4, 2008. The court also directed counsel for Wachovia to serve a copy of the order setting the hearing upon Stanton, to provide a copy to any known counsel for Stanton, and to file proof of such service prior to the hearing.

Although Wachovia did not file proof of service of the hearing order before the hearing, it is nevertheless clear that Stanton and her counsel received timely notice of the hearing, because her counsel contacted the court on August 1, 2008, to make certain arrangements for the hearing, she filed an extensive resistance to Wachovia’s motion, and her counsel (both local and out-of-state) appeared for the hearing on August 4, 2008. Indeed, on August 3, 2008, Stanton filed her Brief In Opposition To Plaintiff’s Motion For A Temporary Restraining Order And For A Preliminary Injunction (docket no. 10), which was accompanied by various declarations and exhibits.

At the hearing on August 4, 2008, plaintiff Wachovia was represented by Jordan D. Becker of Paduano & Weintraub, L.L.P., in New York, New York, who argued the motion, and by local counsel Daniel B. Shuck of the Heidman Law Firm in Sioux City, Iowa. Defendant Stanton was represented by Andrew J. Shapren of Buchanan, Ingersoll & Rooney, P.C., in Philadelphia, Pennsylvania, who appeared by telephone and argued the motion on Stanton’s behalf, and by local counsel Rodney D. Vellinga of Corbett, Anderson, Corbett & Vellinga in Sioux City, Iowa. Neither party called any witnesses or offered any evidence in addition to the declarations and exhibits filed in their moving and resisting papers. Despite the short time between the filing of the motion and the hearing, counsel for both parties were extremely well prepared and the arguments were particularly thorough, informative, and well presented.

Wachovia’s requests for a temporary restraining order and expedited discovery are now fully submitted.

II. LEGAL ANALYSIS

A. Standards For A Temporary Restraining Order

As this court has explained in past cases, it is well-settled in this circuit that applications for preliminary injunctions and temporary restraining orders are generally measured against the same factors, which were set forth in the seminal decision in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). See Interbake Foods, L.L.C. v. Tomasiello, 461 F.Supp.2d 943, 954-55 (N.D.Iowa 2006); McLeodusa Telecommc’ns Servs., Inc. v. Qwest Corp., 361 F.Supp.2d 912, 918 (N.D.Iowa 2005); Doctor John’s, Inc. v. City of Sioux City, Iowa, 305 F.Supp.2d 1022, 1033-34 (N.D.Iowa 2004); Branstad v. Glickman, 118 F.Supp.2d 925, 937 (N.D.Iowa 2000); Uncle B’s Bakery, Inc. v. O’Rourke, 920 F.Supp. 1405, 1411 (N.D.Iowa 1996); accord Straights and Gays for Equality v. Osseo Area Schools-Dist., 471 F.3d 908, 911 (8th Cir.2006) (same factors); Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir.2006) (same factors). Nevertheless, the court must consider, at least briefly, whether any injunctive relief it may grant at this time in this case is a temporary restraining order or a preliminary injunction.

In both McLeodUSA and Branstad, this court discussed in some detail the differences between a temporary restraining order and a preliminary injunction. See McLeodUSA, 361 F.Supp.2d at 918 n. 1; Branstad, 118 F.Supp.2d at 935-937. Suffice it to say that, in those cases, the court found that the following factors should be considered to distinguish a TRO from a preliminary injunction: (1) whether the hearing was ex parte or adversarial; (2) whether the adversarial hearing allowed the basis for the relief requested to be strongly challenged; (3) whether the order expired, by its own terms, within the ten days provided by Rule 65(b); and (4) the “substance” of the order. Id.; Branstad, 118 F.Supp.2d at 935-37. In this case, the court held an “adversarial” rather than an ex parte hearing with the parties, because the court is reluctant to grant even a temporary restraining order ex parte. Nevertheless, the court did not hold the sort of “adversarial hearing,” including presentation of evidence beyond the affidavits and exhibits filed with Wachovia’s Complaint and Motion and Stanton’s Opposition, that would have allowed the basis for the requested order to be “strongly challenged,” such that it would be “ ‘particularly unjustified’ ” to classify the resulting order as a temporary restraining order. See id. (quoting Branstad, 118 F.Supp.2d at 936, in turn quoting Sampson v. Murray, 415 U.S. 61, 87, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)). Moreover, the court has every intention that, if injunctive relief is granted at this time, such relief will expire in ten days, unless within that time, good cause is shown for extending it for a like period, and that a more complete evi-dentiary hearing on Wachovia’s motion for a preliminary injunction will follow in due course, whatever the court’s disposition of the motion for a temporary restraining order. Id. (citing Fed.R.Civ.P. 65(b)). Finally, the “substance” of this order is intended to be a ruling on a request for a temporary restraining order, rather than a ruling on a motion for a preliminary injunction, not least because of the expedited nature of the proceedings and ruling and the limited nature of any relief that will be granted. Id. (citing Baker Elec. Coop. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994)). Therefore, if this order grants injunctive relief, that relief will be a temporary restraining order, not a preliminary injunction. Id.

The so-called “Dataphase factors” that courts must weigh to decide whether or not to grant a temporary restraining order or preliminary injunction are the following: (1) the movant’s probability or likelihood of success on the merits, (2) the threat of irreparable harm or injury to the movant absent the injunction, (3) the balance between the harm to the movant and the harm that the injunction’s issuance would inflict on other interested parties, and (4) the public interest. Dataphase, 640 F.2d at 114; accord Interbake Foods, L.L. C., 461 F.Supp.2d at 955; Doctor John’s, Inc., 305 F.Supp.2d at 1033; Branstad I, 118 F.Supp.2d at 937 (quoting similar factors from Entergy, Ark., Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000)); Fed.R.Civ.P. 65(b)(1). The burden is on the movant to establish that injunctive relief is appropriate. Lankford, 451 F.3d at 503; Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Sys., Inc., v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989) (en banc). “ ‘No single [Dataphase] factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.’ ” Baker Elec. Co-op., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987) (citing Dataphase)); accord Lankford, 451 F.3d at 503 (“No single factor is dispositive, as the district court must balance all factors to determine whether the injunction should issue.”) (citing Baker Elec. Co-op.); Bandag, Inc. v. Jack’s Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir.1999) (“These factors are not a rigid formula.”). “ ‘A district court has broad discretion when ruling on requests for preliminary injunctions, and [the appellate court] will reverse only for clearly erroneous factual determinations, an error of law, or an abuse of that discretion.’ ” Entergy, Ark., Inc., 210 F.3d at 898 (quoting United Indus. Corp, 140 F.3d at 1179); accord Lankford, 451 F.3d at 503. This court assumes that it has the same discretion in deciding whether or not to grant a temporary restraining order. The court abuses its discretion “where the district court rests its conclusion on clearly erroneous factual findings or erroneous legal conclusions.” Lankford, 451 F.3d at 503-04.

B. Application Of The Standards

As a matter of completeness, the court will consider, at least briefly, each of the four “Dataphase factors.” See Lankford, 451 F.3d at 503 (“No single factor is dis-positive, as the district court must balance all factors to determine whether the injunction should issue.”) (citing Baker Elec. Co-op., 28 F.3d at 1472). Indeed, Stanton challenges Wachovia’s showing on each and every factor.

1. Likelihood of success

The first “Dataphase factor” that courts must consider when ruling on an application for a temporary restraining order or preliminary injunction is the likelihood or probability of success on the merits. Dataphase, 640 F.2d at 114. Likelihood of success on the merits requires that the movant find support for its position in governing law. See, e.g., Baker Elec. Coop., 28 F.3d at 1473-74 (Indian tribe’s sovereignty to regulate electrical services); ILQ Inv., Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994) (first amendment and prior restraint of expression); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556-58 (8th Cir.1993) (Indian tribe’s regulatory authority and authority of states to regulate activities on tribal lands); Aziz v. Moore, 8 F.3d 13, 15 (8th Cir.1993) (denial of injunctive relief was proper because federal courts “must abstain from imposing injunctions on prison officials [in an action under 42 U.S.C. § 1983 action] ‘in the absence of a concrete showing of a valid claim and constitutionally mandated directives for relief,’ ” quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir.1982)). As the Eighth Circuit Court of Appeals has explained,

[A]t the early stage of a preliminary injunction motion, the speculative nature of this particular [‘likelihood of success’] inquiry militates against any wooden or mathematical application of the test. Instead, a court should flexibly weigh the case’s particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.

United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.1998) (internal citations and quotation marks omitted). Thus, the court is not deciding whether the movant for a preliminary injunction or a temporary restraining order will ultimately win. Heather K. v. City of Mallard, 887 F.Supp. 1249, 1258 (citing Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir.1991)).

In this case, therefore, the court must determine whether there is support for Wachovia’s position that Stanton has engaged in misconduct by soliciting Wachovia’s clients and employees to join her at CSA. See, e.g., Baker Elec. Coop., 28 F.3d at 1473-74 (likelihood of success on the merits requires that the mov-ant find support for its position in governing law).- In its motion for a temporary restraining order, Wachovia argues that it is likely to succeed on its claims that the restrictive covenants in Stanton’s employment contract are valid and enforceable and that Stanton has breached them by soliciting Wachovia’s clients and employees. Wachovia also argues that it is likely to succeed on its claim that Stanton has misappropriated trade secrets. The “governing law” as to Wachovia’s breach-of-contract claim is, according to the 1996 Agreement, Missouri law. See Complaint, Declaration of Joseph Wood, Exhibit B, 1996 Agreement, ¶ 30. Wachovia asserts, and Stanton does not dispute, that the result will be the same, whether the court applies Missouri law or finds that Iowa law is applicable, notwithstanding the ehoiee-of-law provision in the 1996 Agreement, pursuant to Iowa’s choice-of-law and con-fliet-of-laws rules. The court will apply both Missouri and Iowa law to the breach-of-contract claim, and determine which law applies only if the application of one state’s law would yield a different result from application of the other state’s law. Only Iowa law is applicable to Wachovia’s trade secrets argument, however, specifically, the Iowa Uniform Trade Secrets Act, Iowa Code Ch. 550.

a. Breach of restrictive covenants

i. Arguments of the parties. Wacho-via argues that Stanton used confidential information held by Wachovia to solicit Wachovia’s clients to cease doing business with Wachovia and, instead, to do business with CSA and also solicited Wachovia employees to leave Wachovia and join a direct competitor in violation of restrictive covenants in the 1996 Agreement. Wachovia also argues that such restrictive covenants are enforceable under Iowa (or Missouri) law. More specifically, Wachovia argues that the covenants are reasonably necessary, because an employer has a legitimate interest in protecting its existing clients or client base and Wachovia has devoted considerable effort and expense to building, and maintaining the confidentiality of, its client lists and client data. Wachovia also argues that the covenants are not unreasonably restrictive on Stanton, because they do not prevent her from earning a living in the financial services industry, even in the same small town and with a rival company, they just prevent her from soliciting Wachovia’s clients and employees in order to do so. Wachovia also argues that enforcement of the restrictive covenants will not prejudice the public interest, because there is no public interest in permitting piracy of Wachovia’s hard-earned customer information, especially where Stanton would not be in a position to contact the customers in question but for her unauthorized access to Wachovia’s proprietary customer information. By the same token, Wachovia argues that the public interest is served by preserving the confidentiality of and thwarting the misuse of its client information.

Stanton argues, first, that the 1996 Agreement is inapplicable to her in her ultimate position as a-financial consultant. She also argues that the restrictive covenants in the 1996 Agreement are unenforceable, because they are not reasonably necessary to protect Wachovia where, pursuant to the Protocol For Broker .Recruiting, and the policies and practices of Wachovia (and Edwards), Wachovia (and Edwards) acknowledged that the client relationship belongs to the financial consultant, not the firm, that departing financial consultants can take some client information with them, and that, after departing, financial consultants can solicit their clients to join them at their new firms. Next, Stanton contends that the restrictions on her rights are excessive, because the covenants include no time limit at all and would deprive her of the right to contact clients that she developed largely independent of Wachovia’s assistance. She also argues that the covenants are not in the public interest, because they restrict customers’ rights to choose their financial consultant. Even if the covenants in question are enforceable, Stanton argues that she has not breached them by improperly soliciting any Wachovia customer or employee to leave, because she has not used any protected information to contact her clients, and it is generally permissible for employees of a firm to agree among themselves, while still employed, to engage in future competition with their employer after termination, as long as they do not use the employer’s confidential information, and Stanton contends that McAtee made her own decision to leave Wachovia and then sought employment with Stanton.

ii. Analysis. To establish a claim of breach of contract under Iowa law, Wachovia must establish the following elements: (1) the existence of a contract between the parties; (2) the terms and conditions of the contract; (3) Wachovia performed all the terms and conditions required under the contract; (4) Stanton breached the contract in some particular way; and (6) Wachovia suffered damages as a result of the breach. Kaydon Acquisition Corp. v. Custum Mfg., Inc., 317 F.Supp.2d 896, 912 (N.D.Iowa 2004) (citing Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998)). “A party breaches a contract when, without legal excuse, it fails to perform any promise which forms a whole or a part of the contract.” Id. (citing Molo Oil, 578 N.W.2d at 224, in turn citing Magnusson Agency v. Public Entity Nat’l Co.-Midwest, 560 N.W.2d 20, 27 (Iowa 1997)). Missouri law is not to the contrary. See, e.g., Viacom Outdoor, Inc. v. Taouil, 254 S.W.3d 234, 238 (Mo.Ct.App.E.D.2008) (‘“To establish a submissible case of breach of contract, a plaintiff must first establish the existence of an agreement.’ ”) (quoting Gateway Exteriors, Inc. v. Suntide Homes, Inc., 882 S.W.2d 275, 279 (Mo.Ct.App.E.D.1994)); Midwest Bankcentre v. Old Republic Title Co. of St. Louis, 247 S.W.3d 116, 128 (Mo.Ct.App.E.D.2008) (“The elements that must be proven in order for a party to recover for breach of contract are: (1) the existence of an enforceable contract between the parties; (2) mutual obligations arising under the terms of the contract; (3) one party’s failure to perform the obligations imposed by the contract; and (4) the resulting damage to the other party.”) (citing McClain v. Papka, 108 S.W.3d 48, 53 (Mo.Ct.App.E.D. 2003).

The court finds that Wachovia likely can establish the existence of Stanton’s 1996 employment contract and that the contract prohibits her from using customer information, soliciting customers of Wachovia, and soliciting employees of Wa-chovia, at least sufficiently for present purposes. See Complaint, Declaration of Joseph Wood, Exhibit B, § 2 (quoted above, beginning on page 7); see also Kaydon Acquisition Corp., 317 F.Supp.2d at 912 (first two elements of a breach-of-contract claim under Iowa law are existence of the contract and its terms); see also Viacom Outdoor, Inc., 254 S.W.3d at 238 (first element under Missouri law is existence of a contract); Midwest Bankcentre, 247 5.W.3d at 128 (first two elements under Missouri law are existence of a contract and mutual obligations arising under the terms of the contract). Stanton nevertheless contends that the 1996 Agreement is no longer applicable to her, because she was a “financial consultant,” not just a “sales assistant.” The court is inclined to agree with Stanton that she was a de facto financial consultant, not merely an assistant who provided administrative support, as Wachovia would have it, where she had her own substantial “book” of customers (some 200) that she had developed and for whom she received commissions under her own production number, as well as additional customers that she serviced with Tom McClinton and for whom she split commissions with Tom McClinton under a joint production number. Even so, the court finds that Stanton only asserts that she considered herself to be and that her clients considered her to be a