DeWitt Stern Group, Inc. v. Eisenberg (257 F. Supp. 3d 542, 2017)

United States District Court for the Southern District of New York 2017-06-26

Citations

Full opinion text

OPINION

ROBERT W. SWEET, U.S.D.J.

Defendants Richard Eisenberg (“Eisen-berg”) and Arthur J. Gallagher Risk Management Services, Inc. (“AJG”) (collectively, “Defendants”), have moved pursuant to Fed. R.- Civ. P. 56 for summary judgment to dismiss the claims of Plaintiff DeWitt Stern Group, Inc. (“DeWitt” or the “Plaintiff’) as set forth in the Second Amended Complaint (“SAC”). DeWitt has moved pursuant to Fed. R. Civ. P. 56 for summary judgment on the same, as well as summary judgment dismissing Eisenberg’s counterclaims. Defendants have also moved to exclude the testimony and report of Plaintiffs expert Pamela M. O’Neill (the “O’Neill Testimony and Report”). ■

Based upon -the facts and conclusions set forth below, Defendants’ motion for summary judgment dismissing the SAC is granted, Plaintiffs motion for summary judgment granting the SAC is denied, Plaintiffs motion for summary judgment dismissing, Eisenberg’s counterclaims . is granted, and Defendants’ motion to exclude the O’Neill Testimony and Report is dismissed as moot.

Prior Proceedings

On May 6, 2013, DeWitt initiated the present action based upon the employment agreements between, the parties relative to the brokerage of insurance for entertainment producers. (Dkt. 1.) A preliminary injunction barring violation by Eisenberg of his employment agreement was entered June 4, 2013. (Dkt. 12.)

On June 18, 2013, DeWitt filed his First Amended Complaint (“FAC”), which added AJG as a defendant. (Dkt. 15.) The FAC contained the following causes of action: claim for declaratory relief (Count I); breach of contract against Eisenberg (Count II); misappropriation of confidential information and/or trade secrets against Eisenberg and AJG (Count III); breach of fiduciary duty against Eisenberg (Count IV); breach of duty of loyalty against Eisenberg (Count V); preliminary and permanent injunctive relief against Ei-senberg (Count VI); tortious interference with contractual relations against AJG (Count VII); aiding and abetting breach of duties against AJG (Count VIII); unfair competition against Eisenberg and AJG (Count IX); and intentional interference with business relations against Eisenberg and AJG (Count X). (Id.) On July 12, 2013, Defendants timely filed their answer to the FAC, in which Eisenberg filed counterclaims against DeWitt asserting breach of employment agreement, unjust enrichment/restitution, and failure to pay wages under the New York Labor law. (Dkt. 18.)

On July 17, 2013, DeWitt filed an application for sanctions, claiming that Eisen-berg and AJG had violated the terms of the Court’s June 4, 2013 order by Eisen-berg’s continued solicitation of-customers with whom he had pre-existing relationships prior to joining DeWitt. (Dkt. 22.) On October 29, 2013, DéWitt’S application for sanctions was denied. (Dkt. 39.)

On April 9, 2014, Plaintiffs motion to amend the FAC was granted in part and denied in part. (Dkt. 57.) On April 16,2014, DeWitt filed the SAC,containing the same claims as the FAC but adding its claim for unjust enrichment against Eisenberg (Count XI). (Dkt.- 60.) Defendants’ timely filed their answer to the SAC on April 30, 2014. (Dkt. 61.) DeWitt filed its answer to Eisenberg’s counterclaims on May 12, 2014. (Dkt. 62.) The parties completed discovery in May 2016.

On August 5,-2016, Defendants moved for summary judgment on the SAC, (Dkt. 106), and 'to' exclude the O’Neill Testimony and Report, (Dkt. 110). On the same day, Plaintiff moved for summary judgment on the SAC, (Dkt. 112), arid on Eisenberg’s counterclaims, (Dkt. 116). The instant motions were heard and marked fully submitted on December 15,2016.

The Facts

1. The Facts as Relevant to Defendants’ Motion for Summary Judgment

With respect to Defendants’ motion for summary judgments, the following facts are set forth in Defendants’ Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 (“Defs.’ 56.1”), (Dkt. 108), Plaintiffs Counterstatement of Facts Pursuant to Local Rule 56.1 (“PL’s Counter 56.1”), (Dkt. 147), and accompanying declarations and exhibits, which together form the basis of the following factual recitation. The facts are not in dispute except as otherwise noted.

1. The nature of the entertainment insurance industry is disputed. Defendants describe it as small compared to the general insurance industry and one driven almost entirely by personal relationships, a field where relationships are the primary source of repeat business. (Declarations of Peter J. Biging dated October 5, 2016 (“Biging Decl”), Dkts. 125 and 126, Exs. 11 and GG, and Declarations of Aaron Warshaw dated August 5, 2016 and October 7, 2016 (“Warshaw Decl.”), Dkts. 109 and 140, Ex. C (together, “Hamby Dep.”), at 48:14-50:2.) By contrast, DeWitt contends that while “there are a lot of firms” in the entertainment industry, it is only in terms of “the number of insurance brokerage agencies that write entertainment insurance” that the industry is small when compared to the general insurance industry. (Hamby Dep. at 49:21-25.)

2. In the entertainment insurance business, clients include film and television production companies, advertising agencies, event production companies, event venues, and theaters. (Hamby Dep. at 22:9-14.) These clients may move between projects and companies, but the clients can continue to work with the same insurance brokers. (Hamby Dep. at 50:3-12.) Plaintiff augments this description by noting that not all client do continue to work with the same insurance brokers, and that industry clients tend to switch brokers around fifty-percent of the time. (Hamby Dep. at 50:3-12.)

3. The identities of the decision-makers who make purchases in the entertainment insurance industry are generally known throughout the industry. (See Hamby Dep. at 56:19-57:2.)

4. Numerous industry resources (e.g., Deadline.com, Variety, and IMDb Pro) exist that contain key information regarding new films that are about to go into production, as well as regarding key comings and goings in the entertainment industry. (Hamby Dep. at 79:2-81:11.) These resources are available to everyone. (Id.) Plaintiff notes, however, that such resources do not necessarily contain every movie, contact information, movie scripts, cast logs, or other kinds of information.

5. Defendants state that types of insurance coverages placed for clients in the entertainment insurance industry are not a secret, and any competent broker in the industry would know what the coverages consist of. (Hamby Dep. at 55:12-22.) Plaintiff contends that while those in the insurance industry may generally know what types may be available, they do not know the specific details, and that not every insurance broker knows the particular client’s preferences, risk tolerances, desires and concerns of key account contacts, insurance programs in place, and other such detail.

6. A broker can request policy information, including expiration information and account characteristics, directly from a client, even if that broker is not the broker of record (“BOR”), and the client is free to provide that information to a competing broker because the information belongs to the client. (Warshaw Deck, Ex. B, and Biging Decl., Ex. Y (together, “Johnson Dep.”), at 121:12-18, 121:25-124:16, 128:22-130:8.)

7. Insurance brokers in the entertainment industry can contact prospective clients and ask them their current broker’s rates and the terms of their current policies, and the prospective client sometimes provide brokers with such information. (Hamby Dep. at 54:17-24, 57:1017; War-shaw Decís., Exs. E and GG, and Biging Decís., Exs. 12 and HH (together, “Born Dep.”), at 65:18-66:24.) The parties disagree to the degree of frequency of such outreach and the degree of willingness of clients to share such information.

8. Eisenberg is 78 years old and, for majority of the past 50 years, has been an insurance broker in the entertainment industry.

9. Eisenberg first began developing a book of business after starting his own insurance agency in the 1970s called Great Northern Brokerage Corp. (“Great Northern” or “GNBC”). (Warshaw Decl., Ex. A, and Biging Decís, Ex. 4-7,15,16, DD, KK, and YY (together, “Eisenberg Dep.”) at 19:14-21; Johnson Dep. at 26:21-27:2; Warshaw Decís., Exs. D and FF, and Big-ing Decís., Exs. 7 and J (together, “Paige Dep”) at 26:3-8.) Eisenberg’s book of business developed over the course of his career based in part on his personal relationships and time in the industry. (Eisen-berg Dep. at 113:19-115:15, 197:12-22; Johnson Dep. at 37:22-38:9.)

10. In 2001, Eisenberg sold Great Northern’s assets to Aon/Albert G. Reuben Insurance Services, Inc. (“Aon/AGRIS”), where Eisenberg proceeded to work.as a consultant. (Eisenberg Dep. at 19:7-9, 21:423:20,' 26:10-21; Johnson Dep. at 27:3-19.) Included in Aon/AGRIS’ purchase was the purchase of Eisenberg’s book of business. (Johnson Dep. at 63:11-20.)

11. In October 2007, DeWitt recruited and hired Eisenberg as a Senior Vice President. (Warshaw Decl., Ex. R; Paige Dep. at 51:18-52:19; Johnson Dep. at 38:10-19.) Eisenberg was to be responsible for creating relationships and producing insurance accounts on behalf of DeWitt. (⅛)

12. DeWitt was interested in hiring Ei-senberg because Eisenberg was an influential person and had great contacts in the industry. (Paige Dep. at 23:11-19.) Plaintiff also claims that it entered into contract with Eisenberg to purchase his book; of business.

13. .At the time of hiring Eisenberg, DeWitt was aware of confidentiality and non-solicitation restrictive covenants .between Eisenberg -and Aon/AGRIS, (see Paige Dep. at 39:14-17), as well as that Eisenberg. had sold his book of business to Aon/AGRIS, (see Johnson Dep. at 63:11-20).

14. Part of DeWitt’s motivation to hire Eisenberg was that Eisenberg would seek out and service the same clients for De-Witt that he had done while employed at Aon/AGRIS! (See Born Dep. at 56:15-23; Paige Dep. at 28:23-29:24; Johnson Dep. at 35:9-14), which Eisenberg did, (see Ei-senberg Dep. at 51:4-11).

15. Upon hiring Eisenberg, DeWitt issued a press release that stated, in part, that “[Eisenberg’s] extraordinary experience and deep relationships in the entertainment community will enhance our goal of continuing to strengthen DeWitt Stern’s rapidly growing film and media division.” (Warshaw Decl., Ex. P.)

On October 9, 2007, Eisenberg signed an agreement setting forth the terms of his employment with DeWitt (the “2007 Employment Agreement”). (See Warshaw Decl., Ex. R.) The 2007 Employment Agreement contained a five-year term, and set forth Eisenberg’s compensation as a Senior Vice President: 30% net commission on amounts received from accounts he produced,. expense reimbursement, and “Bonus Compensation” of $90,000 to be paid over his first three months at DeWitt. (Id.) Plaintiff disagrees that the 2007 Employment Agreement was only a contract for employment; rather, Plaintiff contends the 2007 Employment Agreement was also a contract to purchase Eisenberg’s “present and future” book of business.

16. Between 2007 and 2009, DeWitt, Eisenberg, and Aon/AGRIS engaged in litigation- arising out, of Exsenberg’s departure from Aon/AGRIS to DeWitt. (Eisen-berg Dep. at 100:16-19.)

The parties framé the dispute 'with Aon/ AGRIS differently. Defendants claim that Aon/AGRIS alleged, among other things, that DeWitt raided and tortiously interfered with its business by convincing customers to abandon their relationships with Aon/AGRIS and move Eisenberg’s business to DeWitt. (See Warshaw Decl., Ex. P at Exs. B-E.) By contrast, Plaintiff states that Aon/AGRIS argued, among other things, that Eisenberg breached the non-competition provisions of the consulting agreement he had entered into with Aon/ AGRIS, and that DeWitt should be liable to Aon/AGRIS for the loss of profits resulting from this based on their conduct in soliciting him to work for DeWitt and for hiring Christina Born (“Born”) and Jennifer Bond (“Bond”), account representatives who were to assist Eisenberg.

■ 17. In the Aon/AGRIS case, Defendants claim that DeWitt argued that Aon/ AGRIS could not show any damages as a result of Aon/AGRIS’s loss of Eisenberg’s book of business. (Warshaw Decl., Ex. P at Exs. B-E.) DeWitt rejects this characterization of their legal position at the time.

18. The litigation between DeWitt, Ei-senberg, and Aon/AGRIS was ultimately settled, at which point the parties entered into a Settlement and Release Agreement (the “Settlement Agreement”). (See War-shaw Deck, Ex. I.) As part of the Settlement Agreement, DeWitt paid Aon/AGRIS $425,000, by which it purchased “a compromise” amongst the parties that “will never be construed as an admission by any of the Parties of any liability, wrongdoing or responsibility.” (Warshaw Decl., Ex. I at ¶ 2; Johnson Dep. at 70:5-11.) Plaintiff adds that its decision was based upon a belief that there was a significant chance it would lose on the merits.

. 19. Under the Settlement Agreement, the parties “expressly den[ied] any such liability, wrongdoing or responsibility.” (Warshaw Decl., Ex. I, ¶ 2.)

20. In the case against Aon/AGRIS, Eisenberg and DeWitt shared the same counsel and litigation strategy. (Eisenberg Dep. at 100:20-23, 101:13-102:9, 209:6-10.) The parties’ impressions of their involvement in the Aon/AGRIS lawsuit differ, however.

Eisenberg states he was generally not involved in the litigation; he claims he did not know why the lawsuit was commenced in his name or the lawsuit’s results, other than it ended in settlement.’ (Eisenberg Dep. at 102:10-15, 103:16-25, 111:3-22.) Eisenberg further claims that the decision as to which counsel to select, the litigation strategy, the choice to settle, and the ultimate value of the settlement were each made solely by DeWitt. (Johnson Dep. at 71:3-72:3; Eisenberg Dep. at 100:20-23, 101:13-102:9,209:6-10, 211:2-8.) Eisenberg states he was never made aware that De-Witt believed it had settled the lawsuit to purchase his book of business from Aon/ AGRIS. (Warshaw Decl., Ex.' Q, ¶34.)

DeWitt states that Eisenberg was aware that the lawsuit and settlement with Aon/ AGRIS was intended to allow Eisenberg to solicit customers and clients he had serviced at Aon/AGRIS which formed the book of business he had agreed to sell to DeWitt. (Johnson Dep. at 64, 72-73.)

21. Eisenberg’s employment under the 2007 Employment Agreement expired in October 2012 at the conclusion of the contract’s five year term. (Warshaw Decl. Ex. R.) On October 9, 2012, DeWitt and Eisen-berg entered into a new employment agreement (the “2012 Employment Agreement”). (Warshaw Deck, Ex. T; see Eisen-berg Dep. at 55:3-21.)

22. The 2012 Employment Agreement was for a two year -term, and provided that Eisenberg would be paid an annual- draw of $195,000 against net commissions generated by Eisenberg on his accounts, plus 30% of any commissions generated over $195,000. (See Warshaw Decl., Ex. T.) Under the 2012 Employment Agreement, Ei-senberg’s duties and responsibilities remained the same, and he continued to service the same accounts. (See Eisenberg Dep. at 55:22-56:5.)

23. The 2012 Employment Agreement contained an “Entire Agreement Interpretation” clause, that stated: “This Agreement ,.. constitute^] the entire understanding of the Parties with respect to the subject matter hereof, and supersede^] all prior and contemporaneous agreements, understandings, promises and representations relating to the subject matter hereof, written or otherwise.” (Warshaw Decl, Ex. T, ¶ 13.) Plaintiff disputes that this clause undid the sale of Eisenberg’s book of business to DeWitt back in 2007.

24. Under the 2012 Employment Agreement, Eisenberg agreed that he would not use or disclose any of DeWitt’s confidential information or trade secrets. (Warshaw Decl., Ex. T, ¶5&) Eisenberg further agreed in the 2012 Employment Agreement ■ that, during the term of his employment and for a period of two years thereafter, he would not use DeWitt’s confidential information or trade secrets to solicit, accept, divert, or take away any of DeWitt’s clients or prospects that were solicited or serviced by Eisenberg within the prior two years. (Warshaw Deck, Ex. T, ¶ 5c.) The 2012 Employment Agreement does not reference Eisenberg’s “book of business,” Eisenberg’s clients, ’ or Eisen-berg’s accounts. (See Warshaw Decl., Ex. T.)

25. According to the Defendants, the 2012 Employment Agreement also does not include provisions prohibiting Eisen-berg from soliciting or doing business with any client he serviced at DeWitt so long as he did not use DeWitt’s confidential information or trade secrets to do so. (See Warshaw Deck, Ex. T.) Plaintiff adds that the prohibition against use of confidential information was to be for a period of two years, and included prohibiting information concerning “account characteristics,” which reasonably include the insurance preferences,' desires and concerns of the key account contacts, such as which insurers they prefer placing insurance with, the amount of uninsured risk they are willing to take on in order to save on premium costs, preferred options or coverage, limits and rating schedules, and other particularized needs, information regarding blanket, long term, renewable insurance programs studios may have in place in addition to the non-recurring insurance typically purchased for specific film and television productions.' (See Pk’s Counter 56.1 ¶ 21.)

26. Towards the end of the 2007 Employment Agreement, Eisenberg claims he first learned that DeWitt had a commission arrangement with Fireman’s Fund Insurance Company (“Fireman’s Fund”) under which only DeWitt would receive income at the end of certain insurance contracts. (Eisenberg Dep. at 122:7-22, 124:15-125:8, 127:3-15, 204:21-206:12, 212:10-213:17, 216:2-18.) Eisenberg states he viewed this as preventing him from obtaining a higher commission rate from Fireman’s Fund. (Id.) Eisenberg called DeWitt’s President and Chief Operating Officer Charles Johnson (“Johnson”) to complain about the deductions from his commissions, which Eisenberg says were acknowledged by DeWitt but not altered. (Eisenberg Dep. at 123:5-8, 126:5-12, 127:17-18, 215:1-18.)

Plaintiff disputes that this was its arrangement with Fireman’s Fund or when Eisenberg was made aware of it. According to Plaintiff, to the extent it had back-end “profit sharing” commissions with Fireman’s Fund, they were generally at the end of the year, not specific to individual insurance contracts, usually based on the overall production by DeWitt, and not based on specific accounts or a specific producer’s accounts. (See Declaration of Kevin Walker dated August 5, 2016 (“Walker Deck”), ¶3, Dkt. 119.) Plaintiff further contends that these back-end commissions did not result in deductions from Eisenberg’s commissions, reduce Eisen-berg’s income, and were laid out in the 2007 Employment Agreement.

27. On May 6, 2013, Eisenberg announced he would resign from DeWitt. (Johnson Dep. at 94:2-19; Warshaw Deck, Ex. K.) Eisenberg claims this was because he believed the DeWitt and Fireman’s Fund commission arrangement hurt his commission rate. (Eisenberg Dep. at 127:22-128:2).

28. During Eisenberg and Johnson’s phone conversation, Eisenberg told Johnson that Eisenberg was leaving for AJG because AJG was offering more money. (See Johnson Dep. at 106:4-107:5; War-shaw Deck, Ex. J.) Johnson asked Eisen-berg whether Eisenberg would honor the two-year non-solicitation provision in the 2012 Employment Agreement, to which Eisenberg replied that he did not intend to because Eisenberg believed he still owed his accounts, which he stated he had not sold to DeWitt, and therefore could not be precluded from doing business with his long-standing relationships. (See Warshaw Deck, Ex. I, J, K.)

29. During the phone call, Johnson did not discuss with Eiseriberg that DeWitt bought Eisenberg’s book of business. (Johnson Dep. at 104:15-105:12.) Johnson also did not tell Eisenberg that Eisenberg had no business to sell because he already sold it to Aon/AGRIS. (Johnson Dep. at 105:13-22.) Johnson told Eisenberg that DeWitt was going to sue him. (Warshaw Deck, Ex. K.)

30. On May 6, 2013, Eisenberg joined AJG as Area Executive Vice President. (Eisenberg Dep. at 4:23-5:6.)

31. At the time of Eisenberg’s move to AJG, the Weinstein Company (“Wein-stein”) had been a long-standing client of Eisenberg’s. (Biging Deck, Ex. B (“Born Dep.”) at 104:6-12.) Defendants state that Eisenberg would have known all the key persons of long-standing clients, (Johnson Dep. at 144:17-145:5); Plaintiff disagrees, (Johnson Dep. Tr. at 145:5-7). The parties do not dispute that before and after signing his employment agreements with De-Witt, Eisenberg knew contacts at longstanding accounts and did business with them. (Warshaw Deck, Ex. P at ¶ 29.)

32. Defendants argue that the names of the key account representatives at Weinstein is not confidential information. (Born Dep. at 104:6-12.) Plaintiff disagrees and believes that such information falls under the 2012 Employment Agreement’s definition of confidential information.

83. After Eisenberg left DeWitt for AJG, a representative for client Edward R. Pressman Film Corporation (“Pressman Corporation”) sent an email to De-Witt asking for a list of all of Pressman Corporation’s current coverages, which the Pressman Corporation representative then provided to Eisenberg at AJG. (Born Dep. at 76:17-78:15; Warshaw Decl., Ex. 0.) Plaintiff notes that Eisenberg had solicited Pressman Corporation for business following his departure from DeWitt. (Warshaw Dec!., Ex. Q.) The parties disagree about the factors that lead clients such as. Pressman Corporation to switch,from DeWitt to AJG.

,34. John Hamby (“Hamby’), the, head of DeWitt’s headquarters in Glendale, California, stated he was concerned upon learning Eisenberg was leaving DeWitt because he “knew Richard had relationships with his key clients and knew that they could very likely follow him.” (Hamby Dep. at 16:15-18, 68:11-16.)

35. Hamby has stated that clients moved from DeWitt to AJG, at least in part, because of a relationship with Eisen-berg that predated Eisenberg’s employment at DeWitt:

Q: Is it fair to say that the five you listed — Weinstein, New Regency, Ed Pressman, Mosaic and DeLaurentis — all left because of a relationship that Eisen-berg had with the people there?

A: Yes.

Q: ... Do you know if the relationship that Eisenberg had with the decision makers from those five clients existed before Mr. Eisenberg joined DeWitt?

A: I would say very likely yes.

(Hamby Dep. at 74:1-15.)

36. Eisenberg and Tim Clawson (“Clawson”), an executive at New Regency Production (“New Regency’), worked together for many years and possessed a strong working relationship. (See Hamby Dep. at 82:13-20.)

37. Clawson’s promotion to Head of Production at New- Regency was neither secret nor confidential. (See Hamby Dep. at 79:23-25.)

38. When Clawson became Head of Production for New Regency, he wanted Eisenberg, who was then still at DeWitt, to be his broker due to his personal relationship with Eisenberg:

“We are changing brokers immediately. We appreciate your service to New Regency. This is not personal but a business decision. As you know I have 25 years of working experience with Richard Eisenberg and I have relied on him over the years as part of what I bring to an organization. As you know there is a difference between working with good people arid working with good people you have worked with before.”

(Warshaw Decl., Ex. M.) Plaintiff contests that Clawson’s personal relationship with Eisenberg was 'the sole reason Clawson sought to work with DeWitt at that point.

39. Defendants claim that Born has stated that the sole reason that New Regency, at that point employing DeWitt, moved its business from DeWitt to AJG was because of Eisenberg’s relationship with Clawson:

Q: When Richard was at DeWitt, New Regency became a client of DeWitt; is that correct?

A: Correct.

Q: And is that because of Richard’s relationship with Tim Clawson?

A: Correct.

Q: And then once Richard left and went to Gallagher, the business moved from DeWitt to Gallagher; is that correct?

A: Correct.

Q: And again, that’s because of Richard’s relationship with Clawson, correct?

A: Correct.

Q: Any other reason they moved?

A: No.

(Born Dep. at 84:3-17.) Defendants claim New Regency’s relationship with Eisen-berg was the sole reason for its switch to AJG, which Plaintiff contests, claiming rather it was based on improper solicitation. , .

40. Around this time, Born spoke with Clawson to try to keep New, Regency as a client of DeWitt; during that conversation Clawson told Bonn, “I’ve been with Richard for 35 years, and it’s about the relationship.” (Born Dep. at 114:20-115:14.).

41. ’ The only thing that Eisenberg used to solicit New Regency’s business was Ei-senberg’s relationship with Clawson at New Regency. (See Hamby Dep. at 86:1-10.)

42. Along with New Regency,, other clients switched from DeWitt to AJG because of Eisenberg, although the parties disagree how many clients that this was or the degree those decisions was based on those clients’ relationship with Eisenberg. (See Born Dep. at 59:24-60:5; PL’s Counter 56.1 ¶-48.)

43. On June 3 and 4, 2013, Pressman Corporation replaced DeWitt with' AJG as its BOR. (Defs.’ 56.1 ¶ 54; PL’s Counter 56.1 ¶ 54; Warshaw DecL, Ex. V.)

44. On June 18 and July 2, 2013, Twisted Pair Developments, LLC (“Twisted Pair”) issued two BOR letters replacing DeWitt with AJG as its BOR replacing DeWitt with AJG as its BOR. (Defs.’ 56.1 ¶ 55; PL’s Counter 56.1 ¶55; Warshaw DecL, Ex. W.)

45. Defendants state that Twisted Pair is connected to Pressman Corporation. (Ei-senberg Dep. at 157:23-158:9.) Plaintiff disputes this. (See PL’s Counter 56.1 ¶ 57.)

46. Eisenberg has known and consistently. done business with Edward R. Pressman (“Pressman”) since 1990. (Eisen-berg Dep. at 90:17-20, 154:14-17, 168:10-12.)

47. After joining AJG, Eisenberg approached Pressman to discuss possibly changing Pressman’s insurance broker to AJG. (Eisenberg Dep. at 152:8-16, 158:6-17,168:13-19.)

"48. Eisenberg claims that when soliciting Pressman Corporation for business, he did not'use or rely upon any confidential information or trade secrets belonging to DeWitt, but rather solely upon his longstanding relationship with Pressman; Ei-senberg claims this is the reason that Pressman chose to move his business to AJG. (Warshaw DecL, Ex. Q at ¶ 9.) Plaintiff disputes this claim. (PL’s Counter 56.1 ¶ 60; Warshaw DecL Ex. Q ¶ 5-27; Eisen-berg Dep. at 71).

49. Eisenberg had continually worked with Weinstein since the 1980s, when it was then known as Miramax Films. (See Eisenberg Dep. at 168:20-169:1.) Eisen-berg approached Weinstein to discuss possibly changing its insurance broker to AJG after he started working for AJG. (See Eisenberg Dep. at 169:23-Í70:2.)

50. On June 10, June 13, August 14 and August 22, 2013, Weinstein proceeded to replace DeWitt with AJG as its insurance broker. (Warshaw DecL, Ex. X.)

51. Defendants state that Weinstein moved its business from DeWitt to AJG because of Eisenberg’s relationship with the decision-makers at Weinstein, pointing to an email Hamby sent to other DeWitt employees, stating, “I just spoke with Tom Prince of Weinstein who informed me that he has made the .decision to move the account to Richard Eisenberg since he is loyal to Richard and values that relationship.” (Warshaw Decl., Ex. N; see Hamby Dep. at 89:5-19.)

52. In soliciting Weinstein, Eisenberg claims he did not use or rely upon any confidential information or trade secrets belonging to DeWitt, but rather solely upon his longstanding relationship with Weinstein. (Warshaw Decl., Ex. Q at ¶ 14.) Plaintiff disputes this. -

58.In March 2015, Weinstein changed its broker back from AJG to DeWitt, which Defendants claim is because of Weinstein’s relationship with Bom. (Born Dep. at 100:11-102:8; Johnson Dep. at 88:20-7.) Plaintiff believes that Weinstein returned to DeWitt because of superior servicing compared to AJG.

54. On July 1, 2013, the Dino DeLau-rentis Company (the “DeLaurentis Company”) made AJG its new producer of record. (Warshaw Deck, Ex. Y.)

55. Eisenberg knew and consistently worked with Dino DeLaurentis (“DeLau-rentis”) from the 1970s until DeLaurentis’s death away in 2010. (Eisenberg Dep. at 77:14-24, 79:7-13, 91:12 17.)

56. After joining AJG, Eisenberg approached DeLaurentis’s widow to discuss the possibility of changing the DeLauren-tis Company’s insurance brokerage to AJG. (Eisenberg Dep. at 170:10-15.)

57. When soliciting Mrs. DeLaurentis, Eisenberg claims he did not use or rely upon any confidential information or trade secrets belonging to DeWitt, but rather solely on his longstanding relationship -with her and her husband. (Warshaw Decl., Ex. Q at ¶ 21.) Plaintiff disputes this, claiming that Eisenberg used improper confidential information while soliciting. (Pl.’s Counter 56.1 ¶ 70.) Mrs. DeLaurentis ultimately moved the corporate insurance policy to AJG. (Warshaw Decl., Ex. Q at ¶ 21.)

58. On July 16 and 25, 2013, Mosaic Media Group, Inc. (“Mosaic”), replaced DeWitt with AJG as its BOR. (Born Dep. at 96:23; Warshaw Decl., Ex. Z.)

59. Eisenberg has known Ted MacKin-ney (“MacKinney”), Mosaic’s principal decision-maker for its insurance, for 25 years and before Eisenberg joined DeWitt. (See Born Dep. at 97:14-23; Eisenberg Dep, at 78:6-79:5,160:9-13.)

60. Eisenberg approached MacKinney after starting to work for AJG to discuss possibly changing Mosaic’s insurance brokerage to AJG. (Eisenberg Dep. at 171:10-15.)

61. In soliciting Mosaic’s business, Ei-senberg claims he did not use or rely upon any confidential information or trade secrets belonging to DeWitt, but rather relied solely upon his long-standing relationship with MacKinney. (See Warshaw Decl., Ex. Q, ¶ 24.) Plaintiff disputes this, claiming that Eisenberg used improper confidential information while soliciting. (Pl.’s Counter "56.1 ¶ 73.) MacKinney ultimately moved Mosaic’s corporate insurance policy to AJG. (Warshaw Deck, Ex. Q at ¶26.)

62. On May 16, 2013, Intersection Entertainment, LLC (“Intersection”)'moved its brokerage from DeWitt to AJG. (War-shaw Deck, Ex. AA.) Intersection is a David Boyle (“Boyle”) company. (Eisen-berg Dep. at 145:16-17.) Eisenberg has had a relationship with Boyle since' Eisen-berg’s days with Great Northern. (See Ei-senberg Dep. at 145:16-25.)

63. A BOR letter was issued regarding the The Wolf of Wall Street film project, which moved the film’s brokerage from DeWitt to AJG. (Warshaw Deck, Ex. BB.) Eisenberg received the business related to this film through Boyle. (See Eisenberg Dep. at 145:16-25,146:6-14).

64. Guggenheim Partners and Kraig Fox did not move their insurance brokerage to AJG, and Defendants have received no commissions from this client. (See Declaration of Brian Kingman dated October 7, 2016 (“Kingman Deck”), ¶ 6, Dkt. 142.)

65. The Operator was never brokered by AJG, and Defendants have received no commissions from this client. (See King-man Decl., ¶ 7.)

66. Eisenberg had no involvement in brokering Black Mass to AJG, nor was it confidential that the movie was going into production because the project was widely covered by trade publications. (See King-man Deck, ¶ 8.)

67. Although the client did issue a BOR to the Everly project, Defendants did not use any of DeWitt’s confidential information to solicit this project. (See King-man Deck, ¶ 9.)

68. Eisenberg denies he sold his book of business to DeWitt, noting that DeWitt never paid him for his book of business: “Well, if I wasn’t paid for it, why would I sell it?” (Eisenberg Dep. at 208:8-9). “I wasn’t paid for my book of business.” (Ei-senberg Dep. at 240:5-6.) Plaintiff disputes this, as noted above.

69. DeWitt’s claim that it purchased Eisenberg’s book of business was not mentioned in DeWitt’s original Complaint. (See Dkt. 1)

70. After Eisenberg responded to De-Witt’s request for injunctive relief, DeWitt argued it “effectively purchased” Eisen-berg’s business by paying $425,000 to settle the lawsuit between Eisenberg and De-Witt on the one hand, and Aon/AGRIS on the other. (Dkt. 9 at 4-5.)

71. With regard to the Settlement Agreement, the Court has previously found that:

[Njeither the Settlement Agreement nor the [2012] Employment Agreement state or even refer to an explicit agreement whereby DeWitt would exclusively own Eisenberg’s clients. The Settlement Agreement instead states that DeWitt purchased a “compromise” amongst the parties that “will never be construed as an admission by any of the Parties of any liability, wrongdoing or responsibility.” The Employment Agreement does not make any reference to DeWitt owning Eisenberg’s “book of business” or his clients.

(Dkt. 89 at 17-18.) Plaintiff adds that the Court has also stated that “discovery might yield further evidence on DeWitt’s allegations that it purchased Eisenberg’s ‘book of business,’ ” (Dkt. 57 at 7), “yield[ ] evidence that DeWitt purchased Eisen-berg’s book of business extraneously to and independently of the [2012] Employment Agreement,” (id. at 15), or that “Ei-senberg benefitted from the use of Eisen-berg’s client list, and that equity and good conscience might require restitution,” (id.).

72.The introductory paragraph of the 2007 Employment Agreement states: “We are pleased to offer you the following terms in connection with your employment by the firm as a Director and officer of our company and the purchase of your present and future book of business....” (War-shaw Deck, Exs. R, S.) Defendants contend that the actual terms in the 2007 Employment Agreement relate only to Ei-senberg’s employment. (See id.)

Plaintiff disputes this interpretation of the 2007 Employment Agreement. Plaintiff claims that the 2007 Employment Agreement was for both the sale of his book of business to DeWitt and his employment as a Vice President for five years. (See Biging Deck, Ex. V.) Plaintiff notes that the 2007 Employment Contract and surrounding negotiations contain many provisions that it claims support the view that the sale of his book of business was the primary objective of the parties’ agreement, including: Eisenberg was not required to report to DeWitt’s offices, had no set hours, and could perform his duties entirely as he saw fit, (Warshaw Deck, Ex. R at 1); he could accept any other employment, so long as it was not in the insurance industry, (id.); he was provided agreed compensation based on the revenue generated by the book of business, with no relation. to any work performance requirements on his part, and guaranteed that he could not have his employment terminated except for cause, (see Biging Decl., Ex. X); a $90,000 up-front bonus, which was specifically identified by DeWitt’s then Chief Operating Officer, David Paige, as payment for the book of business, (Johnson Dep. at 62-63, 72-74, 79-81); a guaranteed payment of $1,000,000 a year if the revenue stream from Eisenberg’s book of business could not be accessed, (see Biging Decl., Ex. X at 2); and an indemnity, defense, and hold harmless agreement, specifically identifying and protecting him against any claims that might be brought against him by Aon/ AGRIS, (Id. at 8-4).

73. David Paige (“Paige”) is DeWitt’s former Chief Operating Officer and was responsible for hiring Eisenberg. (Paige Dep. at 10:19-11:7, 19:12-16; Johnson Dep. at 32:24-33:4.) The parties dispute Paige’s recollection of the discussions surrounding Eisenberg’s start at DeWitt. Defendants state that Paige does not recall any discussions with Eisenberg regarding DeWitt purchasing Eisenberg’s book of business, including what Paige meant when he included the language in the October 9, 2007 Employment Agreement stating that the agreement involved the purchase of Eisenberg’s book of business; what was supposedly being purchased; and any discussions with Eisenberg regarding the sale of his book of business. (See Paige Dep. at 44:7-45:15.) According to Defendants, Paige did recall that the general theme was that Eisenberg’s relationships would stay with DeWitt until he retired. (Paige Dep. at 96:16-25.) .

Plaintiff contends that Paige recalled negotiating with Eisenberg for the purchase of his book of business and discussing with Eisenberg that sale was an essential term of the parties’ agreement. (See Paige Dep. at 68, 85.) Plaintiff also points to the fact that after Eisenberg tried to remove the language concerning the sale of his book of business from the'parties’ draft agreement, Paige reinserted it. (See Paige Dep. at 85:6-15.) In a contemporaneous email, Paige stated: “I have restored the language making clear that this agreement involves the purchase of your business. As discussed, this is an essential element of the agreement.” (Biging Deck, Ex. V.) Plaintiff contends that Paige understood there was uncertainty arising fropi Eisen-berg’s prior sale of his book of business to Aon/AGRIS and the non-competition provisions of Eisenberg’s consulting agreement with Aon/AGRIS as to exactly what business Eisenberg then had the right to sell, but that Paige’s hope and expectation that at some point in the future Eisenberg would have the ability to legally develop business for DeWitt; as such, the agreement was specifically drafted to encompass the sale both of Eisenberg’s present book of business and his future book of business as it might be developed at Deiyitt. (See Paige Dep. at 68-70.)

74. DeWitt’s brief in support of its original application for injunctive relief states that the 2007 Employment Agreement’ was an agreement only relating to Eisenberg’s employment:

In order to memorialize and confirm the understandings and agreements entered into between DeWitt and Eisenberg with respect to his employment for the Company ..., DeWitt had Eisenberg sign a series of employment agreements with the Company [including the October 7, 2007 Employment Agreement].

(Warshaw Deck, Ex. U.). Plaintiff disputes that an employment agreement and a purchase for a book of business are mutually exclusive.

75. In DeWitt’s papers in support of the sanction application, .its position was that they could never have purchased Ei-senberg’s book of business because Eisen-berg had already sold it to Aon/AGRIS and thus had nothing to sell; specifically, DeWitt stated:

Nowhere in DeWitt’s papers in support of either motion [for injunctive relief or sanctions] does DeWitt ever argue that it purchased Eisenberg’s book of business from him. In fact, quite the contrary, it is DeWitt’s argument that when he came to be employed by DeWitt, Eisenberg no longer had a book of business to sell.

(Dkt. 33). Plaintiff objects to, this characterization of its arguments, which it notes were made prior to taking discovery and taking the deposition of Paige. DeWitt further notes that it expressly sought and obtained permission to pursue this legal theory by motion for permission to amend the Complaint made on January 16, '2014, (Dkt. 48), and granted by the Court on April 9, 2014, (Dkt. 57).

76. Eisenberg’s ’ 2007 Employment Agreement makes no mention of any payment relating to the purchase of Eisen-berg’s business. (See Warshaw Deck, Exs. R, S; Paige Dep. at 48:3-9). The. 2007 Employment Agreement notes that Eisen-berg will be paid a commission for any business he generates, plus $90,000 in “bonus compensation” to be paid in his first three months of employment without mention that these amounts relate to a sale of his business." (Warshaw Deck, Exs. R, S; Paige Dep. at 49:18-50:10, 93:21-94:7.)

In response, Plaintiff states that the 2007 Employment Agreement expressly states that the terms contained therein are in connection with not only his employment by the firm but are also in connection with the purchase of his book of business. Specifically, the contract states: “We are pleased to offer you the following terms in connection with our employment by the firm as a Director and officer of our company and the purchase of your present and future book of business related to the insurance business.” (Biging Deck, Ex. X.) Additionally; Plaintiff noted that Paige specifically accounted for the $90,000 bonus as a “fee to Richard-Eisenberg for purchase of book of'■ business.” (Biging Deck, Ex. AA.)

77. Defendants state that Johnson testified" that the payment amounts in the 2007 Employment Agreement outline Ei-senberg’s compensation as Senior Vice President for DeWitt. (Johnson Dep. at 65:4-20.) Regarding the $90,000 amount set forth in the 2007 Employment Agreement, Johnson testified, “It’s referred to as a bonus, so it’s a bonus.” (Johnson Dep. at 45:6-8.) When asked what the bonus related to, Johnson testified that he did not recall. (See Johnson Dep. at 45:23-46:2.)

Plaintiff augments the above statement as to Johnson’s testimony. It notes that Johnson testified that the $90,000 was part of the purchase price. (Johnson Dep. at 61-63 (“And, as part of that purchase, we were also affording him $90,000 ... We consider the $90,000 as part of a much greater compensation purchase for the book of business, including a guarantee to indemnify him, as its stated in here. A million dollars if the business doesn’t come”),72-74 (testifying that, payment of $90, 000 as well as $425, 000 settlement payment to Aon constituted a purchase of Eisenberg’s book of business over time), 79-81 (testifying that Eisenberg was paid $90,000 and 30% commission and eventually was paid a draw of almost $200K).)

78. The 2007 Employment Agreement does not make reference to the names of any of the clients or accounts which are supposedly being purchased. (See War-shaw Decl., Exs. R & S.) Plaintiff disputes that such a listing was necessary because the purchase was for Eisenberg’s entire book of business.

79. Defendants state that Eisenberg’s 2012 Employment Agreement constituted the entire agreement and understanding between the parties, and supersedes all prior agreements between the parties, including the 2007 Employment Agreement. (Warshaw Deck, Ex. T at ¶13.) Plaintiff disputes that notion that the purchase and sale of Eisenberg’s business was part of the subject matter related to the 2012 Employment Agreement, and as such those terms of the 2007 Employment Agreement are not superseded.

80. This Court has previously held that “[t]he [2012] Employment Agreement does not make any reference to DeWitt owning Eisenberg’s ‘book of business’ or his clients.” (Dkt. 39 at 17-18.)

81. Johnson stated that he had no discussions with Eisenberg regarding the purchase of his book of business and was not involved in any of the negotiations. (See Johnson Dep. at 50:13-23, 57:24-58:6.)

82. Johnson testified that DeWitt “purchased” Eisenberg’s book of business via the October 9, 2007 Employment Agreement by paying him a salary and commissions; by paying Eisenberg a $90,000 “bonus”; by providing him with a guarantee of $1 million in the event his income stream was stopped due to a legal action or threatened legal action; and providing him with indemnification if a suit was brought against him by Aon/AGRIS. (See Johnson Dep. at 62:7-63:7.)

83. Defendants note that Johnson decided to remove the $1 million guarantee from Eisenberg’s original October 9, 2007 Agreement and had Eisenberg sign a backdated new version of that agreement which eliminated that provision. (Warshaw Deck, Exs. R & S.) Plaintiff dispute this timing, noting that the guarantee was in place until after Paige left, sometime in 2008, and was removed only after it was at that point a superfluous provision given that the book of business had been successfully transitioned to DeWitt, the revenue from Eisenberg’s accounts had been accessed, and Eisenberg agreed that there was no need for the provision. (See Johnson Dep. 49-56.)

84. Johnson has stated that nobody actually wrote a check to Eisenberg to purchase his book of business “because Eisen-berg didn’t own his business. Aon owned his business.” (Johnson Dep. at 63:16-17.) Plaintiff disputes this point by noting other portions of Johnson’s deposition, as discussed above.

85, Johnson has also stated that he is not aware of whether Eisenberg actually agreed that if the Aon/AGRIS lawsuit was settled on his behalf he was selling his book of business; he had no discussions with Eisenberg about this issue, and doesn’t know if anyone else at DeWitt ever did; he is not aware of any document signed by the parties indicating that by settling the lawsuit of his behalf, DeWitt was purchasing Eisenberg’s book of business; and is not aware of any communication stating that by virtue of the fact a settlement was reached Eisenberg had sold his book of business to DeWitt. (See Johnson Dep. at 76:14-21, 78:9-79:9.)

Plaintiff similarly disputes this and notes that Paige’s email to Eisenberg made clear that sale of the book of business was an essential element of the agreement and clearly referenced in the 2007. Employment Agreement. Plaintiff further notes that Johnson testified that DeWitt viewed the Settlement Agreement as the final step in DeWitt’s purchase of his book of business from Eisenberg over time. (See Johnson Dep. at 72-74 (testifying that payment of $90,000 as well as $425,000 settlement payment to Aon constituted a purchase of Eisenberg’s book of business over time); Biging Deck, Ex. EE, ¶ 11 (“But there is no question whatsoever that Ei-senberg is actively diverting DeWitt clients, and actively and aggressively taking action to deprive DeWitt of all of the accounts, relationships and associated goodwill that DeWitt effectively purchased from Aon in its settlement with that company in 2009”); Johnson Dep. at 64 (... “we paid $425,000 for the business”), 72 (testifying that DeWitt’s settlement payment was part of the entire package); 73 (“The way we at DeWitt, the partners at DeWitt, looked at this was that we paid Richard what was offered in this agreement. We agreed to indemnify him. He agreed to the million dollars, the 90,000 and the 425,000 as compensation by [sic] purchasing Richard’s book of business”).)

86.When asked why DeWitt would have to settle the Aon/AGRIS litigation in 2009 in order to purchase Eisenberg’s book of business if it had already purchased the book of business via the 2007 Employment Agreement, Johnson responded that DeWitt had not purchased Eisenberg’s book of business pursuant to the 2007 Employment Agreement, but, instead, that it purchased the business “over the course of time,” though no one ever discussed that with Eisenberg:

Q: I’m still not clear on why you would have to settle the case [with Aon/ AGRIS] to purchase his book of business if you had already purchased his book of business.... Could you explain it to me?

A: Could you repeat it?

Q: Sure. Is it your position that Richard’s business was purchased as of October 9, 2007; yes or no?

A: No.

Q: Then when was it purchased for the first time?

A: Over the course of time.

Q: So, was there any discussion with Richard that his book of business was going to be purchased over the course of time when he came to DeWitt?

A: I don’t know. I wasn’t involved in the negotiation.

(Johnson Dep. at 73:18-74:17.) Plaintiff disputes this characterization for reasons noted above.

87. At the deposition of DeWitt’s CEO Jolyon Stern (“Stern”), Stern was asked whether DeWitt ever purchased a broker’s book of business, to which he testified that the only books of business he recalled buying were that of John Hamby, and that of another unnamed broker from 30 years ago. (See Warshaw Deck, Ex. F (“Stern Dep.”), at 13:6-17, 46:11-25.) Only on cross-examination when asked if DeWitt had ever purchased Eisenberg’s book that Stern said DeWitt had purchased Eisen-berg’s book of business. (Stern Dep. at 47:2-4.)

Plaintiff disputes this as a mischaracteri-zation of the line of questioning and testimony of Stern. Plaintiff notes that specific line of questioning was “In the last — let’s say in the last seven years, has DeWitt expanded its business by purchasing other brokerages?” and “Has DeWitt expanded its business over that period of time by purchasing books of business of any individual producers?” The deposition of Jo-lyon Stern took place on April 28, 2015. Accordingly, seven years before April 28, 2015 would be April 28, 2008. Eisenberg’s book of business was purchased pursuant to the October 2007 Contract, which was more than seven years before the date of Stern’s deposition. When asked directly if DeWitt purchased Eisenberg’s book of business, Stern answered in the affirmative. (Stern Dep. at 47:2-4).

88. Stern also testified that he recalled that Eisenberg was paid $400,000 for his book of business, an amount inconsistent with the alleged purchase of the book of business. (Stern Dep. at 47:21-48:2.) Plaintiff disputes this insofar as Stem’s testimony was that he was not sure exactly but a $400,000 figure “is floating around.” (Stern Dep. at 47:21-48:2.)

89. On April 17, 2013, shortly before he resigned from DeWitt, Eisenberg forwarded emails to Brian Kingman (“King-man”) at AJG regarding one distinct film project titled “Big Eyes” produced by Weinstein. (See Eisenberg Dep. at 341:3-23, 342:9-343:3; Warshaw Deck, Exs. G & L.) However, Big Eyes was placed with DeWitt, and DeWitt obtained all of the commissions relating to the insurance of this film. (Bom Dep. at 110:13-21; Eisen-berg Dep. at 342:16-16.) AJG did not have any involvement in the placement of this film. (Eisenberg Dep. at 343:4-8.) Defendants state that none of the information contained in the emails that Eisenberg forwarded to Kingman was confidential information belonging to DeWitt because Ei-senberg could have obtained the same information from his contact at Weinstein at any time. (Warshaw Decl., Ex. P at ¶ 34.) DeWitt disputes this and contends that the information sent to AJG was confidential and violated the 2012 Employment Agreement for reasons already stated above.

90. On April 30, May 2, and May 4, 2013, emails were sent from Eisenberg’s DeWitt email account to his personal email account, which was prior to his joining AJG on May 6, 2013. (Dkt. 60, ¶¶ 47-50). Defendants state that Eisenberg never used any of the information in these emails to solicit any of DeWitt’s customers, (see Warshaw Deck, Ex. P, ¶ 35), and that none of the customer information contained in these emails was DeWitt’s confidential information, (see id.). After joining AJG, Defendants state that Eisenberg asked the customers to re-send him the information contained in the emails. (See id.)

Plaintiff does not dispute the first sentence of the previous paragraph, but disputes the remainder because it contends that by the terms of the 2012 Employment Contract, under which it claims Eisenberg was prohibited from sending information obtained in the course of his work for DeWitt to others or his personal email accounts. (See Biging Deck, Ex. II, ¶ 5(a).)

91. The SAC did not include the name of a single client who moved from DeWitt to AJG based upon any supposed breach of loyalty by Eisenberg. (See Dkt. 60.)

92. On May 6, 2013, DeWitt commenced this action against Eisenberg by filing a Complaint and Order to Show Cause seeking injunctive relief. (Dkt. 1.) The Complaint contained causes of action for: claim for declaratory relief (Count I); breach of contract (Count II); claim for temporary, preliminary and permanent in-junctive relief (Count III); misappropriation of confidential information and/or trade secrets (Count IV); breach of fiduciary duty (Count V); breach of duty of loyalty (Count VI). (Id.) Eisenberg opposed the application for injunctive relief. (Dkt. 5.)

93. On June 4, 2013, this Court entered an Opinion and Order granting DeWitt’s application for preliminary injunctive relief to the extent it prohibited Eisenberg from future violations of his October 9, 2012 Employment Agreement. (Dkt. 12.) Specifically, the Court ruled that Eisenberg was prohibited from disclosing, misusing, or misappropriating DeWitt’s confidential information or trade secrets; was required to return all DeWitt property in his possession; was prohibited for two years from using DeWitt’s confidential information or trade secrets to solicit, accept, divert or take away any clients of DeWitt; and was prohibited for two years from recruiting or soliciting any DeWitt employees. (Id.)

94. The. Court also ruled that Eisen-berg was free to compete with DeWitt so long as he did not utilize DeWitt’s confidential information: “Mr. Eisenberg’s Employment Agreement does not prohibit [him] from competing with DeWitt in this new role so long as.he is not using confidential information obtained during his employment with DeWitt....” and that Eisenberg was free to solicit client contacts that he knew through pre-existing relationships: “[Eisenberg’s Employment Agreement] does not prevent him from soliciting clients retained through ‘pre-ex-isting’ relationships or through his ‘own independent efforts, unassisted by the firm.”’ (Dkt. 12 at 12 (citation omitted).)

95. On June 18, 2013, DeWitt filed its FAC adding Eisenberg’s new employer AJG as a defendant. (Dkt. 15.) The FAC contained the following causes of action: claim for declaratory relief (Count I); breach of contract against Eisenberg (Count. II); misappropriation of confidential information and/or trade secrets against Eisenberg and AJG (Count III); breach of fiduciary duty against Eisenberg (Count IV); breach of duty of loyalty against Eisenberg (Count V); preliminary and permanent injunctive relief against Ei-senberg .(Count VI); tortious interference with contractual relations against AJG (Count VII); aiding and abetting breach of duties against AJG (Count VIII); unfair competition against Eisenberg and AJG (Count IX); and intentional interference with business relations against Eisenberg and AJG (Count X). (Id.)

96. On July 12, 2013, Defendants timely filed an Answer to the FAC, and Eisen-berg filed a Counterclaim asserting causes of action against DeWitt for breach of employment agreement, unjust enrichment/restitution, and failure to pay wages under the New York Labor law. (Dkt. 18.)

97. On July 17, 2013, DeWitt filed an application for sanctions, claiming that Ei-senberg and AJG had violated the terms of the Court’s June 4, 2013, (Dkt. 12), order by Eisenberg’s continued .solicitation of customers with whom he had pre-existing relationships prior to joining DeWitt, (Dkt. 22). Eisenberg and AJG opposed DeWitt’s sanction motion. (Dkt. 29.)

98. On October 29, 2013, this Court issued an Opinion and Order denying De-Witt’s application for sanctions. (Dkt. 39.) In so doing, the Court reiterated that Ei-senberg was not prohibited from competing with DeWitt so long as he did not utilize DeWitt’s confidential information, and also that Eisenberg was not prohibited from soliciting clients ' retained -through pre-existing relationships. (Id. at 13.)

99. As part of that opinion, this Court found that Eisenberg had only solicited clients with whom he had a pre-existing relationship, and that nothing about the identities of those clients dr the contacts at those clients constituted DeWitt’s confidential information:

The BOR letters show that Eisenberg has solicited clients with whom he had relationships pre-dating DeWitt.... As a matter of law, Eisenberg’s own recollection of his customers or pre-existing relationships cannot constitute confidential information.... Nothing about the names or identities of accounts or clients, nor the contacts at those accounts, is confidential or a trade secret belonging to DeWitt.

(Dkt. 39 at 15-16).

100. At that time, this Court discussed DeWitt’s argument that it “purchased” De-Witt’s book of business by settling a lawsuit between Eisenberg’s former employer, AON, on the one hand, and Eisenberg and DeWitt on the other by stating:-

[N]either the Settlement Agreement nor the [2012] Employment Agreement state or even refer to an explicit agreement whereby DeWitt would exclusively own Eisenberg’s clients. The Settlement Agreement instead states that DeWitt purchased a “compromise” amongst the parties that “will never be construed as an admission by any of the Parties of any liability, wrongdoing or responsibility.” The [2012] Employment Agreement does not make any reference to DeWitt owning Eisenberg’s “book of business” or his clients.

(Dkt. 39 at 17-18).

101. On April 16, 2014, DeWitt filed the SAC containing the same claims as the FAC but adding a claim for unjust enrichment against Eisenberg (Count XI). (Dkt. 60.) Defendants timely filed an Answer to the SAC on April 30, 2014. (Dkt. 61.)

2.The Facts as Relevant to Plaintiffs Motion for Summary Judgment

With respect to Plaintiff’s motion for summary judgment, the following facts are set forth in the Plaintiffs Statement of Undisputed Material Facts Pursuant to Local Rule 56.1 (“Pl.’s 56.1”), (Dkt. 121), the Defendants’ Response to Plaintiffs Statement of Undisputed Fact Pursuant to Local Rule 56.1 (“Defs.’ Counter 56.1”), (Dkt. 139), and accompanying declarations and exhibits, which together form the basis of the following factual recitation unless otherwise noted. The facts are not in dispute except as otherwise noted.

1. DeWitt is a privately held company that until September 2014 was engaged in the business of insurance brokering and risk management, with a focus on the procurement of insurance primarily for individuals and entities in the entertainment industry. (Hamby Deck, ¶ 2.)

2. In addition to procuring insurance for Broadway shows, DeWitt also regularly procured insurance for clients involved in the production of television shows and movies. (Hamby Deck, ¶ 3.)

3. Although DeWitt remains an active corporation, on September 26, 2014, De-Witt sold its business to Risk Strategies Company (“RSC”). (See Biging Deck Ex. A, Ex. B at 8-10, 46; Hamby Deck, ¶ 8.)

4. The sale was based on a purchase price calculated based upon a multiple of 10.6 times the preceding 12 months’ earnings before interest, taxes, depreciation and amortization (“EBITDA”), (See Ham-by Deck, ¶ 8; Biging Deck Ex. A.)

5. Like most brokers, DeWitt earned compensation for the procurement of insurance for its clients primarily from applying a commission against the dollar value of the premiums paid on the insurance purchased by their clients. (See Hamby Deck, ¶ 6; Walker Deck, ¶ 3.)

6. DeWitt also earned supplemental compensation through profit sharing. (Walker Deck, ¶ 3.)

7. This compensation can De paid by insurers to brokers based on a variety of factors such as volume or loss ratios, related to DeWitt’s total business placed with that insurer. (See Walker Deck, ¶ 3.)

8. DeWitt’s employees consisted, for the most part, of brokers, account executives, customer service representatives, and clerical staff. (Hamby Deck, ¶ 4.)

9. Among the brokers, the individuals who had ability to develop and build client relationships were referred to as “producers.” (Hamby Deck, ¶ 5.) Defendants dispute this, noting that Johnson testified that there are no producers in the entertainment department — rather, there are account managers who also produce. (See Johnson Dep. at 83:4-10.)

10. As client relationships are critical to the ability of insurance brokerages to generate revenues, producers are a critical component of the business and their customer relationships are extremely valuable. (See Hamby Deck, ¶ 5.)

11. Producers are typically compensated based, at least in part, on the value of the business they generate for the insurance brokerage on an annual basis. (See Hamby Deck, ¶ 6.)

12. The business relationships that they have developed and can rely upon to generate commissions annually on the purchase of insurance are typically referred to as their “book of business.” (Hamby Deck, ¶ 7.)

13. Eisenberg is an insurance broker with an over forty year work history in the entertainment insurance industry, who primarily sells insurance products to film and television studios to prov