Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 1 of 45
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
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`) CASE NO.: ____________________
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`) JURY DEMAND
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`VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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`HI TECHNOLOGY CORP and
`INTERACTIVE
`COMMUNICATIONS
`INTERNATIONAL, INC.,
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`
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`Plaintiffs,
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`v.
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`
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`RODERICK J. KERSCH and
`NATIONSBENEFITS, LLC,
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`
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`Defendants.
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`Plaintiffs HI Technology Corp and Interactive Communications International,
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`Inc. bring this Verified Complaint for Injunctive Relief and Damages against
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`Defendants Roderick J. Kersch and NationsBenefits, LLC (collectively, the
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`“Defendants”) and state as follows:
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`INTRODUCTION
`This is the ultimate case of commercial backstabbing and employment
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`1.
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`deception. A company’s corporate business partner covertly engaged with one of
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`the company’s executives to help the business partner become a competitor, and then
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`the business partner turned competitor later hired the executive – who absconded
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`)
`)
`)
`)
`)
`) CASE NO.: ____________________
`)
`) JURY DEMAND
`)
`)
`)
`)
`)
`
`
`VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
`
`
`
`
`
`
`
`
`
`
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`
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`HI TECHNOLOGY CORP and
`INTERACTIVE
`COMMUNICATIONS
`INTERNATIONAL, INC.,
`
`
`
`Plaintiffs,
`
`
`v.
`
`
`
`RODERICK J. KERSCH and
`NATIONSBENEFITS, LLC,
`
`
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`Defendants.
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`
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`Plaintiffs HI Technology Corp and Interactive Communications International,
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`Inc. bring this Verified Complaint for Injunctive Relief and Damages against
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`Defendants Roderick J. Kersch and NationsBenefits, LLC (collectively, the
`
`“Defendants”) and state as follows:
`
`INTRODUCTION
`This is the ultimate case of commercial backstabbing and employment
`
`1.
`
`deception. A company’s corporate business partner covertly engaged with one of
`
`the company’s executives to help the business partner become a competitor, and then
`
`the business partner turned competitor later hired the executive – who absconded
`
`
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 2 of 45
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`with the company’s confidential and trade secret information – to lead its
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`competitive efforts.
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` HI Technology
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`is
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`the aforementioned company,
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`NationsBenefits is the business partner turned competitor, and Roderick Kersch is
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`the former HI Technology executive who helped NationsBenefits orchestrate its
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`scheme. HI Technology discovered this misconduct because Kersch unknowingly
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`left an electronic trail of his and NationsBenefits’ deceptive and unlawful behavior
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`when he synced his personal Gmail account to his work email account. Kersch
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`sought to hide his disloyal conduct by using his Gmail account for his
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`communications with NationsBenefits, but his mistake in syncing the email accounts
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`has exposed their scheme.
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`2.
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`This
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`action
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`is
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`based
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`on Kersch’s misappropriation
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`of
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`confidential/proprietary information and trade secrets belonging to HI Technology
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`by emailing them to his personal Gmail address and to NationsBenefits executives
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`to help NationsBenefits compete against HI Technology. This action is also based
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`on Kersch’s breach of his non-competition covenant in that he is now employed by
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`NationsBenefits and competing against HI Technology. HI Technology brings this
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`action against NationsBenefits
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`for knowingly participating
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`in Kersch’s
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`misappropriation scheme and for inducing the breach of his contractual
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`commitments to HI Technology.
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`2
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 3 of 45
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`3.
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`Defendants’ unlawful conduct has already caused, and has the potential
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`to cause, tremendous damage to Plaintiffs, and they therefore seek injunctive relief
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`as well as appropriate monetary damages against Defendants. Plaintiffs are also
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`filing a contemporaneous motion for a temporary restraining order.
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`PARTIES, JURISDICTION, AND VENUE
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`4.
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`Plaintiff HI Technology is a Georgia corporation having its principal
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`place of business and corporate headquarters at 250 Williams Street, Suite M-100,
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`Atlanta, Georgia 30303.
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`5.
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`Plaintiff Interactive Communications International, Inc. is a Florida
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`corporation having its principal place of business and corporate headquarters at 250
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`Williams Street, Suite M-100, Atlanta, Georgia 30303.
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`6.
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`HI Technology is a holding company and the parent company of
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`Interactive Communications International, Inc.1
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`7.
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`Defendant Roderick Kersch is a former employee of Interactive
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`Communications International, Inc., and Kersch is believed to be a resident and
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`1 The employment agreement discussed herein (the Business Protection Agreement)
`was entered into between Kersch and HI Technology, which was explicitly defined
`to include its subsidiaries. (Exhibit A at p. 1 – the opening paragraph, and p. 2 – the
`definition of “Company”). For ease of reference and because the interests of the two
`parties are equally aligned, HI Technology and Interactive Communications
`International, Inc. are collectively referred to as “HI Technology” and “the
`Company” throughout the Complaint.
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`3
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 4 of 45
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`citizen of Omaha, Douglas County, Nebraska. As explained below, Kersch is
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`subject to the jurisdiction of this Court.
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`8.
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`Defendant NationsBenefits, LLC is a Florida limited liability company
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`with its principal place of business located at 1801 NW 66th Avenue, Suite 100,
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`Plantation, Florida 33313. NationsBenefits, LLC was formerly known as
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`NationsHearing LLC.
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`9.
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`According to Kersch’s profile on LinkedIn, NationsBenefits is the
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`current employer of Kersch.
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`10. As explained below, NationsBenefits is subject to the jurisdiction of
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`this Court, and it may be served with process at the address of its registered agent:
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`AXS Law Group, 2121 NW 2nd Avenue, Suite 201, Wynwood, FL 33127.
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`11. HI Technology employed Kersch from August 8, 2016 until July 7,
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`2021.
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`12. On December 21, 2018, Kersch and HI Technology entered into a
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`Business Protection Agreement (“BPA”). (Exhibit A). 2
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`13. As discussed in detail below, Kersch’s BPA includes provisions
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`whereby he agreed not to disclose and/or use HI Technology’s confidential
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`2 At the time of his hire, Kersch had signed a 2016 Employee Agreement which
`included post-employment restrictive covenants. However, this action is premised
`on Kersch’s BPA which was entered into subsequently.
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`4
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 5 of 45
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`information except in the performance of his job duties and he also agreed to a non-
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`compete provision. Kersch breached both of those contractual obligations.
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`14. This Court has subject matter jurisdiction over this entire action
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`pursuant to 28 U.S.C. § 1331 because HI Technology is asserting claims for trade
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`secret misappropriation under the Defend Trade Secrets Act, 18 U.S.C. § 1836, et
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`seq.
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`15. This Court has supplemental jurisdiction over HI Technology’s
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`additional causes of action pursuant to 28 U.S.C. § 1367, which states: “the district
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`courts shall have supplemental jurisdiction over all other claims that are so related
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`to claims in the action within such original jurisdiction that they form part of the
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`same case or controversy.” HI Technology’s additional claims arise out of a
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`common nucleus of operative fact with HI Technology’s federal claim and form part
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`of the same case and controversy.
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`16. This Court has personal jurisdiction over Kersch pursuant to the forum
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`selection clause contained in Paragraph 13 of the BPA, in which he and HI
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`Technology agreed as follows:
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`Jurisdiction and Forum Selection. For the purpose of enforcing
`any provision of this Agreement with respect to which relief may
`be sought in a court, it is specifically agreed by Executive and
`the Company that Executive will bring any litigation relating to
`this Agreement solely in the Georgia State Court(s) for Fulton
`County, Georgia, or the United States District Court for the
`Northern District of Georgia in Atlanta, Georgia. ... Executive
`consents to personal jurisdiction in the foregoing locations, and
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`5
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 6 of 45
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`specifically in the Georgia State Court(s) for Fulton County,
`Georgia, or the United States District Court for the Northern
`District of Georgia in Atlanta, Georgia, and waives any right to
`challenge either the Company’s selection of forum in any of the
`foregoing locations or personal jurisdiction. Executive further (i)
`agrees that process may be served upon him in any manner
`authorized by the laws of the State of Georgia, and (ii) waives
`and covenants not to assert or plead any objection which he
`otherwise might have to such jurisdiction and such process.
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`(Exhibit A at p. 8).
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`17. Kersch’s employment had a number of connections to Georgia,
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`including that (a) he reported to leadership located in Georgia, (b) he reported to a
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`corporate headquarters in Georgia, (c) he supervised two employees who were based
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`in Georgia, (d) other than during the COVID-19 pandemic, he regularly visited the
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`corporate headquarters in Georgia for meetings and to conduct Company business,
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`(e) the revenue generated by the business for which he led sales flowed to Georgia,
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`(f) the Company’s trade secrets and confidential information to which he had access
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`were generated in Georgia, and (g) HI Technology had two data centers in Georgia
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`that supported the business for which he led sales.
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`18. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because of
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`the forum selection clause contained in the BPA.
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`19. Because the forum selection clause agreed to by Kersch in the BPA
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`encompasses any litigation relating to the BPA, HI Technology’s claims against
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`NationsBenefits are subject to the BPA’s forum selection clause. See Lipcon v.
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`6
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 7 of 45
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`Underwriters at Lloyd’s, London, 148 F.3d 1285, 1299 (11th Cir. 1998) (non-
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`signatories are bound to a forum-selection clause where the party’s interests are
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`“completely derivative of those of the [signatories]—and thus directly related to, if
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`not predicated upon the interests of the [signatories].”) (internal quotations omitted);
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`see also Textile Rubber & Chem. Co., Inc. v. MSM Poly, LLC, No. 4:18-CV-0276-
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`HLM, 2019 WL 10367985, at *4 (N.D. Ga. Jan. 24, 2019) (declining to sever claims
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`against non-signatory on remand based on forum selection clause in contract where
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`the non-signatory’s purported liability arose from the signatory defendant’s alleged
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`breach of contract).
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`20. NationsBenefits is further subject to jurisdiction in this Court because
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`the injury caused by NationsBenefits’ actions occurred in Georgia where Plaintiffs
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`maintain their principal places of business.
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`FACTS
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`Kersch’s Employment and Contractual Commitments with HI Technology
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`21. HI Technology employed Kersch in a highly-compensated, executive
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`role.
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`22. Kersch was Vice President of Sales for a business unit which was
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`generally referred to as “InComm Health.”
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`23. Kersch led the entire sales team and sales efforts for InComm Health,
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`and he supervised four Director-level employees.
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`7
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 8 of 45
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`24. Kersch had the authority to hire employees on his sales team, and his
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`recommendations on pay changes, promotions, or terminations for employees on his
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`sales team were given substantial weight.
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`25.
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`In his role, Kersch was privy to some of the Company’s most sensitive
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`and confidential information regarding its current business as well as its future
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`planning for competitive efforts.
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`26.
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`In Paragraph 4 of Kersch’s Business Protection Agreement, Kersch
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`acknowledged that he received and would receive HI Technology’s confidential
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`information during his employment and that such information was the sole property
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`of HI Technology:
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`Protection of Confidential Information.
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`(a) Executive acknowledges and admits that:
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` (i) During the course of Executive's employment with the
`applicable Company, Executive has obtained and will continue to
`obtain, have access and be privy to information important to the
`Company's Business, which
`information Executive hereby
`acknowledges and agrees to be confidential. Such Confidential
`Information includes information which may not qualify as a Trade
`Secret, but which is nonetheless hereby agreed by the parties to be
`proprietary, confidential, and subject to the contractual protections of
`this Agreement. Such Confidential Information includes, but is not
`limited to: Customer and Supplier Information: the names, addresses,
`and phone numbers of Company’s Customers and Suppliers and all
`other confidential information relating to those Customers and
`Suppliers, including any other information relating to the Company’s
`Customers and Suppliers that has been obtained or made known to
`Executive solely as the result of Executive performing his/her services
`for Company; Marketing Information: such as the Company’s
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`8
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 9 of 45
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`marketing methods, materials, and strategies; Financial Information:
`such as profitability of the Company, pricing information, cost
`information, sales figures, sales reports, compensation paid to the
`Company’s employees, accounting/financial records (including, but not
`limited to, balance sheets, profit and loss statements, tax returns,
`payable and receivable information, bank account information and
`other financial reporting information); Technical Information: such as
`designs, methods, formulae, compositions, processes, discoveries,
`computer programs, and similar items, inventions (whether or not
`patentable), works of authorship, copyrighted materials created by or
`for the benefit of the Company; and Operations and Strategic
`Information: such as the existence and content of business plans,
`strategy plans, future plans, matters of a Business nature such as
`information about the Company’s files, internal memoranda, personnel
`policies, payroll, terms of employment.
`
` …
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`
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`(iii) Such Customer and Supplier, Marketing, Financial,
`Technical, Operations and Strategic Information are herein after
`collectively referred to as “Confidential Information.” Executive
`acknowledges that such Confidential Information are worthy of
`protection and are the sole property of the Company, and that the
`provisions of this Agreement are reasonable and necessary for the
`protection of the Business of the Company.
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`(Exhibit A at pp. 3-4).
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`27.
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`In the same Paragraph 4 of his BPA, Kersch acknowledged and
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`admitted that HI Technology would suffer substantial damage if – during or after
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`employment – Kersch disclosed or used such confidential information, and he
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`further promised that he would not disclose or use it:
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`Protection of Confidential Information.
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`(a) Executive acknowledges and admits that:
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 10 of 45
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`…
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`(ii) The Company will suffer substantial damage which will
`be difficult to compute if, during the period of Executive’s employment
`with the applicable Company or thereafter, Executive should enter a
`Competing Business or communicate, publish, disclose, divulge, use or
`authorize anyone else to communicate, publish, disclose, divulge or
`use, any Confidential Information.
`
` …
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`(b) Executive agrees that so long as the pertinent information or data
`remains confidential and not in the public domain through lawful means
`during that time, Executive shall not divulge or make use of any
`Confidential Information, directly or indirectly, personally or on behalf
`of any other Person without the prior written consent of the Company.
`This covenant is not intended to, and does not, limit in any way the
`rights and remedies provided to the Company under common or
`statutory law. The Company’s Trade Secrets are also protected by law
`in addition to this Agreement. Executive shall maintain the secrecy and
`confidentiality of the Company’s Trade Secrets indefinitely so long as
`they remain Trade Secrets.
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` …
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`(d) To further safeguard both the Confidential Information and the
`Business relationships of the Company, Executive acknowledges and
`admits that the Customer, Supplier, Marketing, Financial, Technical,
`Operations and Strategic Information as set out in Paragraph 4(a)(i)
`above: (i) is provided in confidence, and (ii) that the sale or
`unauthorized use or disclosure of any of Company’s Confidential
`Information as herein defined and obtained by Executive during his/her
`employment with the Company constitutes unfair competition.
`Executive promises not to engage in any unfair competition with
`Company.
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`(Exhibit A at pp. 4-5).
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`10
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`28. Kersch promised that he would promptly return HI Technology’s
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`confidential information when his employment ended, and he again acknowledged
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`that such information was HI Technology’s sole and exclusive property:
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`(e) Executive agrees that in order to safeguard both the
`Confidential Information and the Business relationships of the
`Company, Executive agrees as follows: all equipment,
`notebooks, documents, memoranda, reports, files, samples,
`books, correspondence, mailing lists, calendars, card files,
`Rolodexes, written and/or electronic contact lists, keys, i.d.
`cards, credit cards, and all other written, electronic and graphic
`records affecting or relating to the Business of Company,
`regardless of the medium in which such information is stored
`shall be and remain the sole and exclusive property of Company.
`Executive agrees not to remove any things or documents from
`Company’s premises at any time unless those things or
`documents are necessary to those duties which the Executive
`must perform outside of the Company’s premises. In the event of
`termination of employment with Company for any reason,
`Executive shall promptly deliver to the Company all equipment,
`notebooks, documents, memoranda, reports, files, samples,
`books, correspondence, mailing lists, calendars, card files,
`Rolodexes, written and/or contact lists, all other written,
`electronic and graphic records relating to the Company’s
`Business, or any other property of the Company in the possession
`or under control of Executive. Executive shall not maintain any
`copy or other reproduction whatsoever, electronic or graphic, of
`any of the items described in this section after the termination of
`such employment; provided, however, subject to Executive's
`obligations under this Section 4, that Executive shall be entitled
`to retain copies of such documents reasonably necessary to
`document his/her personal financial relationship (both past and
`future) with the Company.
`
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`(Exhibit A at p. 5).
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`11
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`29. Kersch also made promises to HI Technology in regard to not
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`competing against the Company during his employment and for two years thereafter:
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`Non-Competition. Executive covenants and agrees that:
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`(a) During the term of Executive’s employment relationship with the
`applicable Company, Executive will neither (i) Compete with the
`Company in the Territory; nor (ii) engage in discussions with a
`view toward, make application, plans or preparations, to form, to
`establish, to set up, or to become employed by, a Competing
`business that operates or plans to operate within the Territory.
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`For the period commencing on the Effective Date and continuing
`until the expiration of the Restriction Period, Executive will not:
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`(b)
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`
`
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`…
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`(ii)
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`directly or indirectly perform any job duties substantially
`similar to those he or she performed for the applicable
`Company, for any Person engaged in the Business within
`the Territory, including, without limitation, as an agent,
`owner, partner,
`representative, consultant, officer,
`director, independent contractor or employee.
`
`
`(Exhibit A at p. 3).
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`30. The defined terms in the non-competition provision included the
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`following:
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`“Business” shall mean the business of the Company. The
`business of the Company shall include, without limitation, (i) the
`sale, marketing and/or promotion of prepaid and stored value
`products and programs, such as, prepaid wireless replenishment
`cards and PIN delivery services, stored value financial services
`products such as reloadable and/or non-reloadable prepaid Visa,
`MasterCard, American Express products and related reload
`networks, third party merchant gift cards, and/or prepaid content
`programs, as well as transaction processing services for any of
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`12
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`such products or programs, (ii) bill payment services, (iii)
`healthcare benefits and/or any restricted spend stored value
`products, (iv) loyalty, electronic or printed coupons, the
`development, sale and marketing of mobile wallets, (v) the sale
`and/or resale of telecommunications services, and/or (vi) and any
`other products or services provided by the Company while
`Executive is employed.
`
`
`
`“Compete”, “Competing” or “Competitive” shall mean (i)
`providing products or services competitive with those provided
`by the Business; or (ii) entering into or attempting to enter into
`any business substantially similar to or competing in any way
`with the Business, either alone or with any Person.
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`“Restriction Period” shall mean a continuous uninterrupted
`period of two (2) years commencing upon the termination of the
`Executive’s employment with the applicable Company that
`employs Executive for any reason.
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`“Territory” shall mean the entire geographical area of the United
`States (which is acknowledged and admitted by Executive to be
`the territory in which Executive has responsibility and duties for
`the Company).
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`(Exhibit A at pp. 2-3).
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`31. Kersch acknowledged that the restrictive covenants in the BPA were
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`necessary and reasonable. (Exhibit A at p. 5).
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`32. Upon executing his BPA, Kersch expressly agreed that HI Technology
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`would suffer irreparable harm in the event Kersch did not honor his contractual
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`obligations:
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`Equitable Relief. Executive acknowledges that Executive’s
`knowledge and expertise in the Company’s business is and at all
`times during the Restriction Period will be of a special, unique,
`unusual, extraordinary, and intellectual character, which gives
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`13
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 14 of 45
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`said knowledge and expertise exceptional, substantial and
`inestimable value, and that a breach by Executive of the
`provisions of this Agreement cannot reasonably or adequately be
`compensated in damages in an action of law; and a breach of any
`of the restrictive covenants contained in this Agreement will
`cause the Company irreparable injury and damage. Executive
`further acknowledges that Executive possesses unique skills,
`knowledge and ability and that Competition in violation of this
`Agreement or any breach of the provisions of this Agreement
`would be extremely detrimental to the Company. By reason
`thereof, Executive agrees that the Company shall be entitled, in
`addition to any other remedies it may have under this Agreement
`or otherwise, to preliminary and permanent injunctive and other
`equitable relief to prevent or curtail any breach of this
`Agreement; provided, however, that no specification in this
`Agreement of a specific legal or equitable remedy shall be
`construed as a waiver or prohibition against the pursuing of other
`legal or equitable remedies in the event of such a breach.
`
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`(Exhibit A at p. 6).
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`33. Kersch also agreed that Georgia law would govern any disputes in
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`relation to the BPA and that HI Technology would be entitled to its attorneys’ fees
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`in the event the Company had to bring an action to seek redress for his violations of
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`the BPA:
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`
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`Governing Law. Executive admits and acknowledges that
`Georgia is the location of the principal place of business of
`Company, and will be the situs of a substantial portion of his/her
`responsibilities and duties during his/her employment with
`Company. Accordingly, the parties agree that the terms of this
`Agreement shall be governed by and construed in accordance
`with the laws of the State of Georgia (without regard to conflicts
`of law rules).
`
`…
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`14
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`Attorneys’ Fees. In the event any action or suit is brought by the
`Company to enforce the terms of this Agreement, the Company
`shall be entitled to recover, in addition to any other remedy to
`which it may be entitled, reimbursement for reasonable
`attorneys’ fees, costs, cost of investigation and related expenses
`incurred in connection with such action.
`
`
`(Exhibit A at pp. 7-8).
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`34. HI Technology engages in various measures to protect its confidential
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`and proprietary information, including but not limited to (a) the use of restrictive
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`covenant agreements with its key employees such as Kersch, (b) IT security, such as
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`password protection, need-to-know restrictions, termination of access rights at the
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`close of employment, and safeguards to prevent its system from being hacked; (c)
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`handbook policies regarding confidentiality; and (d) physical security to protect
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`against the disclosure of sensitive materials to third parties.
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`The Business of InComm Health
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`35. The business for which Kersch served as VP of Sales was generally
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`referred to as “InComm Health.”
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`36.
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`InComm Health is in a unique business space where its primary target
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`customer base is healthcare plans.
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`37.
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`InComm Health provides a payment platform for the consumer
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`purchase of healthcare related products that are qualifying items as specified by the
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`applicable health plan, such as over-the-counter medicines, health and wellness-
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`related products, first aid supplies, healthy food items, and dental, vision, and
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`15
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`
`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 16 of 45
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`hearing items (these products/items are generally referring to hereinafter as “OTC
`
`Products”). These OTC Products are purchased in stores, online, and over the phone.
`
`38. The program that InComm Health markets to the healthcare plans is
`
`generally hereinafter referred to as the Company’s “OTC and Flexcard Program.”
`
`39. After establishing a contractual relationship with a healthcare plan,
`
`InComm Health provides the health plan’s members with physical or digital cards
`
`that the members may use to purchase OTC Products at participating retailers (e.g.,
`
`pharmacies). The health plan then makes funds available to cover their members’
`
`card purchases.
`
`40. When the health plan member/cardholder visits a participating retail
`
`store or purchases online or over the phone, they can shop for eligible OTC Products
`
`and use the card to purchase the products. When the card is used, the InComm
`
`Health payment platform confirms that the products are covered by the applicable
`
`health plan, and assuming they are, the price of the products is deducted from the
`
`available balance on the account. InComm Health’s payment platform also
`
`processes the purchases and tracks card balances.
`
`41. While there are many features to the OTC and Flexcard Program that
`
`InComm Health markets to its health plan clients, the card and the payment platform
`
`by which the purchases are processed are two key aspects of the programs.
`
`16
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`
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 17 of 45
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`HI Technology’s Relationship with NationsBenefits
`
`42. HI Technology began a business relationship with NationsBenefits in
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`2018. (The contractual relationship was through one of HI Technology’s
`
`subsidiaries, InComm Healthcare & Affinity, Inc.)
`
`43. HI Technology partnered with NationsBenefits to expand its OTC and
`
`Flexcard Program beyond brick and mortar retail locations. The partnership allowed
`
`health plan members/cardholders to shop online, by phone, and by catalog mail
`
`order.3
`
`44. Glenn Parker is the Chief Executive Officer and Founder of
`
`NationsBenefits.
`
`45. Michael Parker is the Chief Operating Officer of NationsBenefits.
`
`Michael Parker is Glenn Parker’s son.
`
`Kersch’s Termination by HI Technology and His Arguments Regarding His
`Non-Competition Obligations
`
`
`46. HI Technology terminated Kersch’s employment on July 7, 2021.
`
`
`3 The press release regarding the relationship can be found at
`https://www.businesswire.com/news/home/20190718005050/en/NationsHearing-
`Adds-Over-the-Counter-Benefit-Management-Services-to-its-Offering-and-is-
`Rebranding-as-NationsBenefitsTM.
`
`
`17
`
`
`
`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 18 of 45
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`47. Upon terminating Kersch on July 7, 2021, HI Technology’s initial focus
`
`was to provide him a separation agreement that included severance money which
`
`was available to him as part of his BPA. (Ex. A at pp. 6-7).
`
`48. One of the conditions precedents for Kersch to receive the severance
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`money was that he would re-affirm his commitment to honor the post-employment
`
`restrictive covenants to which he had previously agreed in his BPA. Therefore,
`
`Kersch was given a severance agreement that included such an affirmation.
`
`49. However, Kersch responded to the severance agreement by asserting
`
`that his non-competition provision was not enforceable, causing HI Technology to
`
`question whether Kersch had plans to engage in competition with the Company.
`
`HI Technology’s Discovery of the Illicit Relationship Between Kersch and
`NationsBenefits
`
`
`50. Upon learning of Kersch’s efforts to rebuff his non-compete
`
`obligations, the Company engaged in due diligence by conducting an analysis of
`
`Kersch’s Company laptop computer (which he had returned upon his termination).
`
`51. While examining Kersch’s laptop, the Company discovered that – at
`
`some point during his employment – Kersch had synced his personal Gmail account
`
`to the email management software on his laptop.
`
`52. By syncing his Gmail account to the email management software on the
`
`Company laptop, Kersch allowed the most current version of the Gmail account to
`
`be saved to the laptop. Specifically, the email management software on the laptop
`
`18
`
`
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`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 19 of 45
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`periodically updates to mirror the cloud version of the Gmail account, and the
`
`software saves a copy to the laptop’s hard drive.
`
`53. Kersch was presumably unaware that (a) the email management
`
`software on the laptop was saving copies of his emails to the laptop’s hard drive, and
`
`(b) even when he logged out of his personal email account from the laptop, the
`
`synchronized email copies from the Gmail account would (and did) remain saved on
`
`the laptop’s hard drive.
`
`54. The Company did not need to use, nor did it use, any of Kersch’s
`
`personal passwords to access the information on the laptop’s hard drive. The
`
`Company reviewed an image of the laptop’s hard drive containing copies of the
`
`Gmail account that were saved to the laptop sometime before Kersch returned it to
`
`the Company.
`
`55. This discovery provided HI Technology access to over one hundred
`
`thousand emails.
`
`56. While HI Technology has not yet analyzed every single one of Kersch’s
`
`Gmail account emails, the Company’s efforts thus far have already revealed
`
`numerous and varied nefarious acts in which Kersch and NationsBenefits engaged
`
`while Kersch was still employed by HI Technology. Kersch and NationsBenefits
`
`sought to hide their nefarious conduct by using Kersch’s Gmail account for their
`
`19
`
`
`
`Case 1:21-cv-03468-TWT Document 1 Filed 08/24/21 Page 20 of 45
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`communications. The discussion below describes much of what has been discovered
`
`regarding that misconduct to date.
`
`Kersch and NationsBenefits’ Illicit Relationship and Misconduct
`
`57. As early as November 2020, Kersch began routinely sending internal
`
`Company email regarding Company business to his personal Gmail account, and in
`
`many cases forwarding the email to one or more of the NationsBenefits executives
`
`from his personal Gmail account. By using his personal Gmail account in this way,
`
`Kersch sought to hide his disloyal conduct.
`
`58. For instance, on November 9, 2020, Kersch received an email to his
`
`Company email reflecting that the Company had expressed an interest in exploring
`
`a relationship with a business (Medline) that could provide services similar to the
`
`types of services that HI Technology was receiving from NationsBenefits (i.e., the
`
`ability for health plan members/cardholders to purchase OTC Products online or by
`
`phone). The email thread had the following subject: “Potential Medline Partnership
`
`with InComm: OTC Supplemental Benefit.”
`
`59. That same day (11/9/20), Kersch forwarded the Medline related email
`
`from his Company email to his personal Gmail, and then to Glenn Parker, CEO and
`
`Founder of NationsBenefits. (Exhibit B)4.
`
`
`4 The emails include
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