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Ally Financial Inc., among the five largest U.S. mortgage originators and servicers, sued a former employee
who moonlighted as a foreclosure defense attorney over claims she stole confidential information.
Ally terminated the employee, Tanya L. Blackwell, last week for failing to disclose a clear conflict of her
dual employment as a foreclosure specialist for Allys GMAC unit and as a practicing foreclosure defense
attorney, according to court papers filed yesterday in federal court in Philadelphia.
Prior to her termination, Blackwell allegedly improperly obtained confidential company information including
organization charts for Allys foreclosure operations, according to the complaint.
Blackwell accessed Allys protected computers and exceeded such authorizations as may have been granted,
and as a result, obtained valuable data, the company said in the complaint.
Blackwell worked in GMACs Residential Capital unit in Fort Washington, Pennsylvania, as a member of the
Collateral Remediation team, according to the complaint. During her employment with Ally, Blackwell also
operated the Law Office of Tanya L. Blackwell in Philadelphia and Washington and described her practice
on her LinkedIn web page as a plaintiff only firm, Ally said in court papers.
Ally, based in Detroit, is seeking a court order barring Blackwells use of the information, which she
allegedly sent to third parties, according to court papers.
Blackwell didnt immediately return phone messages left at her law offices in Philadelphia and Washington
seeking comment on the complaint.
The case is Ally Financial Inc. v. Blackwell, 11-cv-4694, U.S. District Court, Eastern District of Pennsylvania
(Philadelphia)
To contact the reporter on this story: Sophia Pearson in Philadelphia at spearson3@bloomberg.net.
To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.
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Justia > Dockets & Filings > Pennsylvania > Pennsylvania Eastern District Court > Torts - Property > Other Fraud > ALLY
FINANCIAL INC. v. BLACKWELL
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Plaintiff:
Defendant:
Case Number:
Filed:
Court:
Office:
County:
iii:
Nature of Suit:
Torts - Property - Other Fraud
Cause:
28:1332
Jurisdiction:
Diversity
Jury Demanded By: None
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Plaintiff
ALLY FINANCIAL INC.
V.
Defendant
TANYA L. BLACKWELL
Date Filed
# Docket Text
07/26/2011
07/26/2011
07/26/2011
07/26/2011
07/26/2011
07/27/2011
Client Code:
Billable Pages: 1
Cost:
0.08
,/
,/
4t,~
v.
TANYA L. BLACKWELL
Defendant.
VERIFIED COMPLAINT
Plaintiff, Ally Financial Inc. sues Tanya L. Blackwell, Esquire and says:
PARTIES
1.
Plaintiff, Ally Financial Inc. ("Ally") is a corporation organized under the laws of
the state of Delaware, whose principal place of business is located at 200 Renaissance Center,
P.O. Box 200, Detroit, Michigan 48265-2000.
2.
employee of Ally who is a citizen of Pennsylvania and resides at 800 N. 2 nd Street, Unit 168,
Philadelphia, Pennsylvania 19123.
3.
Pennsylvania location.
JURISDICTION AND VENUE
4.
This court has jurisdiction of the claims asserted in this Complaint pursuant to 28
U.S.C. 1332 in that Plaintiff and Defendant are citizens of different states, and the amount in
controversy exceeds the sum of Seventy-Five Thousand Dollars ($75,000), exclusive of interest
\~\\
1'} ~
and costs. Immediate injunctive relief is sought pursuant to Federal Rule of Civil Procedure
65(a).
5.
substantial part of the events or omissions giving rise to this action occurred within the Eastern
District of Pennsylvania, and Defendant is subject to personal jurisdiction in this District.
FACTS
6.
offering a full suite of automotive financing products and services in key markets around the
world. Ally additionally operates a mortgage operations unit which focuses primarily on the
residential real estate market in the United States, with business activities including the
origination, purchase, servicing, sale and securitization of residential mortgage loans.
7.
("GMAC") commenced on or about January 10, 2011 where she worked as a Foreclosure
Specialist in GMAC's Residential Capital ("ResCap") business unit in Fort Washington,
Pennsylvania. Within the ResCap unit, Defendant was a member of the Collateral Remediation
team with specific and limited duties.
8.
Ally employees have a duty to act solely in the best interests of Ally and to
provide Ally with our individual loyalty. Do not exploit your position with Ally
for personal gain.
10.
The Code of Conduct specifically states that "[ n]o employee or member of any
employee's household should have a material interest or investment in any service provider,
supplier, customer, or competitor of Ally that could create a conflict of interest (including
interests in subsidiaries or joint ventures of Ally) .... "
11.
In addition to e-mail and intranet access, Defendant had access to Ally's Loanserv
Ally terminated Defendant's employment on June 23, 2011 for, among other
things, failing to disclose a clear conflict of her dual employment as a Foreclosure Specialist with
Ally and as a practicing "foreclosure defense" attorney.
14.
Upon information and belief, at all times during her employment with Ally,
Defendant operated the Law Office of Tanya L. Blackwell with offices in Philadelphia and
Washington, D.C.
15.
Defendant describes her law firm practice on her LinkedIn web page as "a
plaintiff only firm" with a practice focus on, among other things, foreclosure defense litigation.
16.
Defendant never disclosed to Ally that she was an attorney much less that her law
firm actively represents that it is adverse to financial services companies such as Ally.
17.
education and employment background to Ally on her employment application with Ally. The
application Defendant completed for Ally specifically states:
BY COMPLETING THIS APPLICATION YOU ACKNOWLEDGE THAT YOU
HAVE READ THE INSTRUCTIONS AND QUESTIONS AND THAT THE
INFORMA TION PROVIDED IS, TO THE BEST OF YOUR KNOWLEDGE, TRUE
AND CORRECT. KNOWING MISREPRESENTATION OR WITHHOLDING OF
ANY FACT OR CIRCUMSTANCE MAY RESULT IN DENIAL OR TERMINATION
OF EMPLOYMENT. ALL INFORMATION PROVIDED WILL BE VERIFIED FOR
COMPLETE ACCURACY BY A THIRD-PARTY BACKGROUND CHECK
VENDOR. OFFERS OF EMPLOYMENT ARE CONDITIONED UPON A
COMPLETE AND CLEAR PRE-EMPLOYMENT BACKGROUND CHECK, DRUG
TEST AND, IF APPLICABLE, COMPLIANCE WITH REGULATORY LICENSING
REQUIREMENTS.
Notwithstanding, Defendant failed to disclose both that she had attended law school and that she
is a practicing attorney with a law practice adverse to Ally's interests.
18.
Ally later discovered that prior to her termination, Defendant improperly obtained
proprietary and confidential company information, including but not limited to: organizational
charts for Ally's foreclosure operations; numerous confidential internal emails not addressed to
her attention, including emails consisting of an attorney-client privileged nature; and customer
information for Ally mortgage accounts not assigned to her, which included account numbers,
customer names and addresses.
19.
to her personal email account which information, upon information and belief, was subsequently
disseminated to third parties.
20.
By letter dated July 21, 2011, undersigned counsel requested that Defendant
immediately return all of Ally's confidential and proprietary information. To date, no such
information has been returned by Defendant.
COUNT ONE
Injunctive Relief
21.
Ally repeats and incorporates the allegations set forth in the preceding paragraphs
By virtue of the allegations set forth herein, Ally has demonstrated a likelihood of
success on the merits and that a balancing of the equities favors the issuance of an injunction
against Defendant.
23.
Disclosure
of
privileged
organizational documents,
internal
emails
and
correspondence,
other confidential information which are solely the property of Ally and
its clients;
(b)
(c)
(d)
(e)
enjoining Defendant, directly or indirectly, and whether alone or in concert with others,
including any officer, agent, employee and/or representative of Defendant, until hearing and
thereafter until further Order of this Court, from:
(a)
destroying,
Any and all other such acts as this Court deems appropriate for injunctive
relief.
(2)
In
counsel of the tenns of the Court's Order: a) identify and return to Ally's counsel any and all
proprietary and confidential records, documents and/or other types of infonnation pertaining to
Ally or GMAC, whether in original, copied, handwritten, computerized (including computer
software, disks, computer hard drive and/or any other type of computer or digital infonnation
storage device) or memorialized in any other fonn; and b) identify any and all individuals,
companies or organizations to whQm Defendant disclosed, disseminated, or transmitted for any
purpose, any such documents and/or infonnation.
(3)
Defendant shall identify and produce to Ally her passwords and/or credentials to
all web based e-mail accounts and/or cloud, web-based, and/or electronic storage databases,
including but not limited to her Yahoo e-mail account, which contain any documents of any kind
relating to Ally or GMAC, within forty-eight (48) hours of notice to Defendant or her counsel of
the tenns of the Court's Order.
(4)
Any and all proprietary and confidential infonnation within the possessIOn,
pennanently deleted, if possible without affecting any other infonnation or software on the
computer.
reconstituting or in any way restoring any proprietary and confidential infonnation deleted
pursuant to this paragraph and returned to Ally pursuant to paragraphs 2 and 3 above.
(5)
(6)
such other and further reliefbe awarded as the Court deems just and equitable.
COUNT TWO
Misappropriation of Trade Secrets
24.
Ally repeats and incorporates the allegations set forth in the preceding paragraphs
information contained therein, and especially customer information are subject to protection
under the Pennsylvania Trade Secret Act. See 53 Pa. Cons. Stat. Ann. 5301 et seq.
26.
the basis for developing, maintaining, and servicing its customers. Such information gives Ally
an opportunity to obtain a competitive advantage over other competitors who do not know or
have access to the contents of this customer information or privileged internal correspondence.
27.
Ally has taken more than adequate measures under the circumstances to maintain
the secrecy of this information, including maintaining confidentiality policies prohibiting, inter
alia, the use and disclosure of such information outside of Ally.
28.
Upon information and belief, Defendant has used and/or is presently misusing
Ally's confidential information by disseminating it to third parties for the sole purpose of
harming the reputation and good will of Ally.
29.
misuse of Ally's confidential, trade secret information in violation of Pennsylvania law. See 53
Pa. Cons. Stat. Ann. 5301 et seq.
30.
As a consequence of the foregoing, Ally has suffered and will continue to suffer
irreparable loss.
COUN T THRE E
Conversion
31.
paragraphs
Ally repeats and incorporates the allegations set forth in the preceding
proprietary
The foregoing conduct of Defendant constitutes a conversion of Ally's
and/or will
As a result of Defendant's unlawful conversion, Ally has suffered
of Ally to
Unless Defendant is restrained and enjoined from converting property
35.
paragraphs
Ally repeats and incorporates the allegations set forth in the preceding
her duty of
During the time that she was employed at Ally, Defendant violated
her employer.
furtherance and advancement of her employer, solely for the benefit of
38.
aneously
Defendant specifically violated her duty of loyalty to Ally by simult
and sustain ed
As a direct and proxim ate result thereof, Ally has been injured
41.
misusi ng
Upon inform ation and belief, Defen dant has used and/or is presen tly
ageme nt in
The forego ing condu ct of the Defen dant consti tutes comm ercial dispar
that:
or about Ally
a.) the Defen dant knew her statem ents to third parties concer ning
of the truth;
were false and/or throug h such action s acted in reckle ss disreg ard
financial loss to
b.) the Defen dant intend ed her statem ents to third parties to cause
third parties
Ally or reason ably should have recogn ized that her statem ents to
would result in financial loss; and
dant's false
c.) Ally has suffere d incalc ulable financial loss as a result of Defen
statem ents to third parties concer ning or about Ally.
10
COUN T SIX
Violat ion of the Comp uter Fraud and Abuse Act, 18 U.S.C . 1030
44.
paragraphs
Ally repeats and incorporates the allegations set forth in the preceding
ted
Defendant knowingly and within intent to defraud, accessed Ally's protec
u.s.c. 1030.
46.
of not less
As a result of Defendant's conduct, Ally has sustained damage or loss
etary and
Defendant's misappropriation of Ally's valuable trade secrets and propri
trade
Defendant's continued dissemination to third parties of Ally's valuable
tion
Based upon the foregoing, Ally is entitled to, among other things, an injunc
Four, Five, and Six, Plaintiff Ally Financial Inc., demands judgment
in its favor against the
Defendant, and seeks:
(1)
Grant such other and further relief as the nature of the cause may require
.
BY:
Rick rimaldi (P A 49 0)
Lori E. Halber (PA 80762)
Alexander Nemir off (P A 92250)
JACKSON LEWIS, LLP
Three Parkway
1601 Cherry Street, Suite 1350
Philadelphia, Pennsylvania 19102-1317
(267) 319-7802
Attorneys for Plaint iff
12
VERIFICA nON
BY:
(/l.tILLL(L:f.JI
Cathy L. dtenneville
Dated: July 26, 2011
4846-7785-3450, v. 1
13
\
::4:;:::,"'.,",~'mroapprl~tI:'Bmooh~'m~~,~:~=~~!~~o)~~~~~~~'ibymw. ~~~~. .
Case 2:11-cv-04694-HB Document 1-1
Filed 07/26/11
Page 1 of
\
. 3
I. (a) PLAINTIFFS
Ally Financial, Inc.
(b)
DEFENDANTS
Philadelphia
II.
BASIS OF JURISDICTION
oI
o2
IV.
US. Government
Plaintiff
S UIT
o
o
o
o
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement ofJudgmen
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Exc!. Veterans)
o 153 Recovery of Overpayment
of Veteran's Benefits
160 Stockholders' Suits
190 Other Contract
195 Contract Product Liability
o 196 Franchise
REAL PROPERTY
0210 Land Condemnation
o 220 Foreclosure
230 Rent Lease & Ejectinent
o 240 Torts to Land
o 245 Tort Product Liability
o 290 All Other Real Property
0
0
o
o
o
o
o
0
0
0
0
0
0
0
0
0
0
DE
PTF
l!!I
2 \.
". ""'"
Foreign Nation
'-"
0
0
:y
'.
PERSONAL INJURY
362 Personal Injury Med. Malpractice
365 Personal Injury Product Liability
368 Asbestos Personal
Injury Product
Liability
(jERSONAL .RO'.."
o
o
o
o
o
o
o
o
o
o
o
PlUS!: NERPETITIONS
0 510 Motions to Vacate
Sentence
Hab Corp...:
0 530 General
0 535 Death Penalty
0 540 Mandamus & Other
0 550 Civil Rights
0 555 Prison Condition
o
o
o
610 Agriculture
620 Other Fond & Drug
625 Drug Related Seizure
of Property 21 USC 881
630 Liquor Laws
640 R.R. & Truck
650 Airline Regs.
660 Occupational
SafetylHealth
690 Other
.ABOR
710 Fair Labor Standards
Act
720 LaborlMgmt. Relations
730 LaborlMgmt.Reporting
& Disclosure Act
740 Railway Labor Act
790 Other Labor Litigation
791 Emp!. Ret. Inc.
Security Act
o
o
o
-RIGHTS
820 Copyrights
830 Patent
840 Trademark
o
o
o
o
o
SOCIAL
861 HIA (1395fi)
862 Black Lung (923)
863 DIWCIDIWW (405(g
864 SSID Title XVI
865 RSI (405(g
o
o
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Transferred from
6 Multidistrict
(:lOthIfi,~istrict
Litigation
specl
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Remanded from
Appellate Court
Reinstated or
Reopened
""OTIIER
IMMIGRATION
462 Naturalization Application
463 Habeas Corpus Alien Detainee
465 Other Inunigration
Actions
o
o
DEF
0 4
NATURE OF
CONTRACf
Original
Proceeding
PTF
f~iversity
U.S. Government
Defendant
'\~
aI ORIGIN
3 Federal Question
(US. Government Not a Party)
III.
0 7
A~eal to District
Ju ge from
Magistrate
Judgment
VIII.
RELATED CASE(S)
IF
ANY
$75,000
DOCKY~F1
/ If
SIGNATURE OF ATTORNEY OF
JUt 261011
0 Ye~
f1'f
lJ
r!f)
)J/l~_
Ji\,/--"'V..... .;-
,.i. H
07/26/2011
FOR OFFICE USE ONLY
JURY DEMAND:
JUDGE
DATE
RECEIPT #
DEMAND S over
./
JUDGE
MAG_JUDGE
------------
UD
! I _t\,J- <fa, ~4
FOR THE EnilSTRICT OF PENNSYLVANIA- DESIGNATION FORM to be used by counsel to indicate the category of the case for the purpose of
assignment to appropriate calendar.
Address of Plaintiff: Ally Financial, Inc., 200 Renaissance Center, P.O. Box 200, Detroit, MI 48265-2000
Address ofDefendant: Tanya
Does this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owni
(Attach two copies of the Disclosure Statement Form in accordance with Fed.R.Civ.P. 7.I(a
Yes
YesO
4. Is this case a second or successive habeas corpus, social security appeal, or pro se civil rights case filed by the same individual?
Yes 0
CIVIL: (Place t/ in ONE CATEGORY ONLY)
A Federal Question Cases:
2. 0 FELA
3. 0 Assault, Defamation
o Antitrust
5. 0 Patent
4.
6. 0 Labor-Management Relations
7. 0 Civil Rights
7. 0 Products Liability
8. 0 Habeas Corpus
8. /rtoducts Liability -
9'
Asbestos
ARBITRATION CERTIFICATION
Alexander Nemiroff
o Pursuant to Local Civil Rule 53.2, Section 3(c)(2), that to the best of my knowledge and belief, the damages recoverable in this civil action case exceed the sum of
\ $15~0.OO exclusive of interest and costs;
~lief other than monetary damages is sought.
DATE:
Alexander Nemiroff
-------------------------------
92250
Attorney-at-Law
Attorney 1.0.#
NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38.
I certify that, to my knowledge, the within case is not related to any case now pending or within one year previously terminated action in this court
except as Doted above.
DATE:
Alexander Nemiroff
JUl 20 '2.Un
Attorney-at-Law
92250
Attorney I.D.#
CIVIL ACTION
v.
NO.
II'C\)- C{B1LJ
In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel for
plaintiff shall complete a Case Management Track Designation Form in all civil cases at the time of
filing the complaint and serve a copy on all defendants. (See 1:03 of the plan set forth on the reverse
side of this form.) In the event that a defendant does not agree with the plaintiff regarding said
designation, that defendant shall, with its first appearance, submit to the clerk of court and serve on
the plaintiff and all other parties, a Case Management Track Designation Form specifying the track
to which that defendant believes the case should be assigned.
SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:
(a) Habeas Corpus - Cases brought under 28 U.S.C. 2241 through 2255.
( )
(b) Social Security - Cases requesting review of a decision of the Secretary of Health
and Human Services denying plaintiff Social Security Benefits.
( )
(c) Arbitration - Cases required to be designated for arbitration under Local Civil Rule 53.2.
()
(d) Asbestos - Cases involving claims for personal injury or property damage from
exposure to asbestos.
( )
(e) Special Management - Cases that do not fall into tracks (a) through (d) that are
commonly referred to as complex and that need special or intense management by
the court. (See reverse side of this form for a detailed explanation of special
management cases.)
( )
(I) Standard Management - Cases that do not fall into anyone of the other tracks.
Date
(267) 319-7802
Telephone
Alexander Nemiroff
Attorney-at-law
(215) 399-2249
FAX Number
Attorney for
Alexander. Nemiroff@jacksonlewis.com
E-Mail Address
--~
r:1;" )\
,/
I~
'--I:.- ,/
'J{jt '"
By
Plaintiff,
At.....
'. 2011
v.
TANYA L. BLACKWELL
Defendant.
Plaintiff Ally Financial Inc. ("Ally") respectfully moves this Court for a
Temporary Restraining Order pursuant to Rule 65 of the Federal Rules of Civil Procedure.
2.
support hereof. True and correct copies of the Verified Complaint is submitted herewith and
made a part hereof by reference.
3.
converted Ally's proprietary and confidential company information including client information,
has violated the express provisions of Ally's Conflict of Interest Questionnaire and Ally's Code
of Conduct and Ethics, and has breached her duty of loyalty to Ally. Upon information and
belief, Defendant further disseminated Ally's proprietary and confidential company information
with the intent of causing irreparable harm to Ally.
4.
For the reasons stated in Ally's Verified Complaint, unless Defendant is enjoined
from converting Ally's property to her own use and from disseminating such information to third
parties, Ally will be irreparably harmed by:
./
(a)
Disclosure
of
privileged
internal
emails
and
correspondence,
organizational documents, clients' records and financial dealings and other confidential
information which are solely the property of Ally and its clients;
(b)
confidence and trust of clients, loss of goodwill, and loss of business reputation;
(c)
enforcement of reasonable policies and procedures aimed at protecting Ally from the above
unlawful activities; and
(d)
WHEREFORE, Ally respectfully prays that this Court ORDER and DECREE that:
1.
whether alone or in concert with others, including any officer, agent, employee, and/or
representative of Defendant, until hearing and thereafter until further Order of this Court, from
doing any of the following:
(a)
(b)
destroying,
Defendant identify and produce to Ally her passwords and/or credentials to all
web based e-mail accounts and/or cloud, web-based, and/or electronic storage databases,
including but not limited to her Yahoo e-mail account, which contain any documents of any kind
relating to Ally or GMAC, within forty-eight (48) hours of notice to Defendant or her counsel of
the terms of the Court's Order.
4.
Any and all proprietary and confidential information within the possessIOn,
computer software, disks, computer hard drive, and/or any other type of computer or digital
infonnation storage device, returned pursuant to paragraphs 2 and 3 above be pennanently
deleted by an Ally representative.
pennanently deleted, if possible without affecting any other infonnation or software on the
computer.
reconstituting or in any way restoring any proprietary and confidential infonnation deleted
pursuant to this paragraph and returned to Ally pursuant to paragraphs 2 and 3 above.
5.
The Court's Order remains in full force and effect until such time as this Court
interrogatories, and requests for production of documents immediately in aid of any preliminary
injunction proceedings before the Court.
Respectfully submitted,
BY: ~__~~=-~~~~~_______
Rick Grimaldi (P A 49
)
Lori E. Halber (P A 80762)
Alexander Nemiroff (PA 92250)
JACKSON LEWIS, LLP
Three Parkway
1601 Cherry Street, Suite 1350
Philadelphia, Pennsylvania 19102-1317
(267) 319-7802
Attorneys for Plaintiff
F I
Plaintiff,
v.
J(/I
l.. f.:.
U
TANYA L. BLACKMAN
-, I{
Defendant.
. DPI!.Clerk
I. INTRODUCTION
Plaintiff, Ally Financial Inc. ("Ally"), by its undersigned attorneys, respectfully submits
this Memorandum of Law in support of its Motion for a Temporary Restraining Order to prevent
Defendant, Tanya L. Blackman ("Defendant"), from continuing to utilize Plaintiffs confidential
and proprietary business information, and upon information and belief, disseminating that
information to third parties with the intent of causing irreparable injury to Plaintiff.
Defendant is a former employee of Ally, who unbeknownst to them, was all the while
practicing as a "Foreclosure Defense" attorney during her employment as a Foreclosure
Specialist with Ally. Defendant never disclosed to Ally that she was an attorney much less that
her law firm actively represents that it is adverse to financial services companies such as Ally.
Indeed, despite that Ally's application explicitly requires disclosure of all education and
employment history, Defendant omitted both that she attended law school and she is a practicing
attorney. It is alarming that Defendant, a practicing attorney, not only intentionally deceived
Ally, but used her position with Ally to improperly obtain certain proprietary and confidential
company infonnation from Ally, which she then removed and forwarded to her own personal
email account.
infonnation to third parties with the intent of causing irreparable hann to Ally.
Ally has demanded that Defendant cease this illegal activity, to no avail. Accordingly,
Ally respectfully requests this Court's immediate intervention. For the reasons explained below,
Ally asks this Court to immediately enjoin Defendant from further use of Plaintiffs confidential
business infonnation and trade secrets, to return such infonnation in all of its fonns, and from
further acting in a manner contrary to her statutory, common law, and professional obligations to
Ally.
Without this Court's intervention, Ally will suffer immediate and irreparable hann,
through the continued loss of customers, loss of customer good will, loss of business reputation,
and through the loss of the benefits derived from Ally's confidential infonnation and trade
secrets and which Defendant has misappropriated for her own personal gain and devious
purposes.
II. FACTS)
A. Background
Ally is one of the world's largest automotive financial services companies offering a full
suite of automotive financing products and services in key markets around the world. Ally
additionally operates a mortgage operations unit which focuses primarily on the residential real
estate market in the United States, with business activities including the origination, purchase,
servicing, sale and securitization of residential mortgage loans. Ally has longstanding
relationships with customers located throughout the country
The facts are taken from the Verified Complaint and the supporting exhibits filed herewith.
2
Ally employees have a duty to act solely in the best interests of Ally and to
provide Ally with our individual loyalty. Do not exploit your position with Ally
for personal gain.
The Code of Conduct specifically states that "[n]o employee or member of any employee's
household should have a material interest or investment in any service provider, supplier,
customer, or competitor of Ally that could create a conflict of interest (including interests in
subsidiaries or joint ventures of Ally) .... "
among other things, failing to disclose a clear conflict of her dual employment as a Foreclosure
Specialist with Ally and as a practicing "foreclosure defense" attorney. Following Defendant's
termination, Ally discovered that during her employment, Defendant improperly obtained
proprietary and confidential company information, including but not limited to: organizational
charts for Ally's foreclosure operations; numerous confidential internal emails not addressed to
her attention, including emails consisting of an attorney-client privileged nature; and customer
information for Ally mortgage accounts not assigned to her, which included account numbers,
customer names and addresses. Ally further discovered that Defendant improperly forwarded
the company's proprietary and confidential information, as well as confidential customer
information, to her personal email account which, upon information and belief, was subsequently
disseminated to third parties. All of the above information improperly obtained by Defendant
constitutes Ally's proprietary and confidential infonnation and constitute Ally's trade secrets, as
well as customer infonnation which may be regulated by the federal Gramm Leach Bliley Act
("GLBA"), (collectively "Confidential Infonnation").
valuable, confidential and is not generally known to other persons who can obtain economic
value from its disclosure or use and who can cause irreparable injury to Ally from its disclosure
and use.
Ally takes reasonable precautions to protect its Confidential Infonnation through various
methods. By way of example only, Ally limits within its own Company the distribution of its
Confidential Infonnation to those with a specific need to know and only provides authorization
and access to those employees with a specific need to access such sensitive infonnation. As an
additional protection for its Confidential Infonnation, Ally requires its employees, including
Defendant, to sign their Questionnaire and abide by their Code of Conduct which binds all
employees to act solely in the best interests of Ally and to provide Ally with their individual
loyalty. Defendant intentionally deceived Ally by failing to disclose that she was an attorney
who owned a law finn which was adverse to Ally's interests. Through her intentional actions
referenced above which were calculated to deceive and injure Ally, Defendant breached her duty
ofloyalty to her employer and committed egregious violations of federal, state and common law.
Inc., 968 F.2d 371, 374 (3d Cir. 1992)). No one factor is dispositive, and the Court should
balance the four factors "to ensure an equitable outcome." Novus Franchising, Inc. v. Taylor,
795 F. Supp. 122, 127 (M.D. Pa. 1992) (citing Philadelphia Council of Neighborhood Drgs. v.
Adams, 451 F. Supp. 114, 116 (E.D. Pa. 1978)).
As set forth below, those factors are met here and Ally's request for a temporary
restraining order should be granted.
A. Plaintiff Has Made A Showing Of A Reasonable Probability Of Ultimate Success
On The Merits
The case law makes clear that "[t]o show a reasonable likelihood of success on the
merits, the moving party need not show with certainty that it will ultimately prevail; however the
'irreducible minimum' required is either a fair chance for success on the merits or the raising of a
question serious enough to require litigation." Deep Sea Research, Inc. v. Brother Jonathan, 883
F. Supp. 1343, 1362 (N.D. Cal. 1995) (quoting Benda v. Grand Lodge of Intern. Assoc. of
Machinists & Aerospace Workers, 584 F.2d 308,315 (9th Cir. 1978), cert. dismissed 441 U.S.
937 (1979)); see also Apollo Technologies v. Centrosphere Indus., 805 F. Supp. 1157, 1191
(D.N.J. 1992) ("[t]his requirement is satisfied if the moving party 'make[s] a showing of a
reasonable probability, not the certainty, of success on the merits"'). As demonstrated below,
that standard is more than satisfied here.
1. Defendant Violated her Duty of Loyalty to Ally
As noted above, Ally requires its employees, including Defendant, to sign their Conflict
of Interest Questionnaire requiring employees to disclose potential conflicts of interest and
requires employees to act solely in the best interests of Ally and to provide Ally with their
individual loyalty.
prohibiting Defendant from investment, or interest that might hurt or reflect badly on Ally. In
direct violation of Ally's policies, Defendant intentionally deceived Ally and failed to disclose a
clear conflict of her dual employment as a Foreclosure Specialist with Ally and as a practicing
"Foreclosure Defense" attorney.
individual's "misappropriation" of "trade secrets," as those terms are defined under UTSA. See
id. Pursuant to UTSA, a "trade secret" is defined as:
Information, including a formula, drawing, pattern, compilation
including a customer list, program, device, method, technique or
process that:
(1)
Derives independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use.
(2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
See 12 P.S. 5302 (emphasis added).
"Misappropriation" is defined under the UTSA to include:
tenninated when the trade secret has ceased to exist, but the
injunction may be continued for an additionally reasonable period
of time in order to eliminate commercial advantage that otherwise
would be derived from the misappropriation.
See 12 Pa. C.S.A. 5303.
Pennsylvania common law also pennits the Court to enJoIn an ex-employee from
competing with his fonner employer and/or to protect the employer's trade secrets and
confidential infonnation.
See,~,
Supp. 489, 548 (E.D. Pa. 1992) (citing Health Care Affiliated Services, Inc. v. Lippany, 701 F.
Supp. 1142, 1153 (E.D. Pa. 1988); Anaconda Co. v. Metric Tool & Dye Co., 485 F. Supp. 410,
424 (E.D. Pa. 1980); Air Products & Chemicals, Inc. v. Johnson, 296 Pa. Super. 405, 442 A.2d
1114, 1122 (1982)).
To state a cause of action for misappropriation of a trade secret under Pennsylvania
common law, a plaintiff must show:
(1) that there was a trade secret; (2) that it was of value to
employer and important in the conduct of his business; (3) that by
reason of discovery of ownership the employer had the right to the
use and enjoyment of the secret; and (4) that the secret was
communicated to the employee while he was in a position of trust
and confidence under such circumstances as to make it inequitable
and unjust for him to disclose it to others, or to make use of it
himself, to the prejudice of his employer.
See A.M. Skier Agency, Inc. v. Morris Gold, Sobel Affiliates, Inc., 747 A.2d 936 (Pa. Super.
2000) (citing Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004,1012-13 (Pa.
Super. 1999). Here, Defendant's actions clearly constitute misappropriation of a trade secret,
namely Ally's confidential customer infonnation and privileged internal e-mail communications.
Specifically, documents such as customer infonnation and client lists that have been
compiled by an employer and are not of public knowledge are subject to trade secret protection.
See Robinson Elec. Supervisory Co. v. Johnson, 154 A.2d 494, 496 (Pa. 1959) (holding
customer lists and customer information "to be property in the nature of a 'trade secret' for
which an employer is entitled to protection, independent of a non-disclosure contract.") (quoting
Morgan's Home Equip. Corp. v. Martucci, 136 A.2d 838, 842 CPa. 1957); A.M. Skier Agency,
Inc. v. Gold, 747 A.2d 936, 941 (Pa. Super.2000) (trial court did not abuse discretion in issuing a
preliminary injunction for misappropriation of trade secrets where employee stole a directory
listing client names and contact information).
attorney-client privileged internal e-mails and correspondence, Ally's customer information and
customer lists constitute a common law trade secret and may be protected by GLBA.
Such information is obviously of high value to Ally as it serves as the basis for
developing, maintaining and servicing its clientele. As Ally compiled its customer information
itself through its employees, it has a right to use and enjoy that confidential information.
Further, this information was disclosed to Defendant in the course of her employment with Ally
enabling her to perform her job properly and effectively. Defendant improperly gained access to
and obtained customer information during her employment to which she was not entitled,
exceeding her authorization level for such information. Defendant was advised both orally and
in writing that such confidential business information, including customer identities account
numbers and addresses, were considered highly confidential information by Ally and that such
information could not be used or disclosed by Defendant except in her capacity as an Ally
employee.
B. Absent An Injunction, Plaintiff is Threatened With Immediate And Irreparable
Injury And Will Have No Adequate Remedy At Law
10
information.
information with the sole intent to harm and irreparably injure Ally's earned goodwill and
business reputation. Such actions are aimed at damaging Ally's business prospects in the form
of present and future customers. Courts consistently find irreparable harm in situations where
customers are at stake. See, Sh&, John G. Bryant Co., Inc. v. Sling Testing and Repair, 369 A.2d
1164, 1167 (Pa. 1977) ("It is the possible consequences of this unwarranted interference with
customer relationships that is unascertainable and not capable of being fully compensated by
money damages."); Vector Security, Inc. v. Stewart, 88 F. Supp.2d 395 (E.D. Pa. 2000) ("The
harm suffered by [the company] as a result of the defendants' continued solicitation of [its]
accounts cannot be easily quantified in economic terms."); Phillip Morris, Inc. v. Pittsburgh
Penguins, Inc., 589 F. Supp. 912, 920 (W.D. Pa. 1983), affd, 738 F.2d 424 (3d Cir. 1984)
(removal of advertising from arena would cause loss of prospective customers for which
monetary damages are not calculable).
Defendant is utilizing Ally's proprietary and confidential information and trade secrets to
conduct a crusade to intentionally harm Ally's business reputation and goodwill. The misuse of
confidential business information and trade secrets is a compelling reason to issue injunctive
relief. See John G. Bryant, 369 A.2d at 1167-68 (noting that covenants not to compete are
enforced to protect an employer's relationships with its customers, confidential information, or
trade secrets). Thus, the loss of present and future relationships with customers and the damages
caused by the misuse of confidential business information is incalculable and cannot be fully
compensated for by the payment of money damages.
If Defendant is permitted to continue to misuse or disclose Plaintiff s confidential
information, Ally will not only be deprived of present customers, but also of potential future
11
12
Overall, the facts of the present case justify the issuance of injunc
tive relief.
As a
practical matter, the relief that Ally seeks wiII do no more than preser
ve the status quo pending
the Court's determination. As has been stated elsewhere, "justice is
not served if the subject
matter of the litigation is destroyed or substantially impaired during
the pendency of the suit."
Haines v. Burlington County Bridge Comm., 1 N.J. Super. 163, 174 (App.
Div. 1949).
D. The Public Interest Favors, If At All, The Issuance Of An Injunc
tion Here
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E. CONC LUSIO N
Under the facts presented here, the four elements are satisfied and injunc
tive relief should
be granted. For the foregoing reasons, Ally respectfully requests that
this Court grant its Motion
for a Temporary Restraining Order.
BY:
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4822-8277-5050, v. 1
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