Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 1 of 65 PageID #: 458
`
`
`
`
`
`
`
`
`
`-against-
`
`Plaintiff,
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`---------------------------------------------------------------X
`INTERTEK TESTING SERVICES, N.A., INC.,
`
`
`
`
`
`FRANK PENNISI, NICHOLAS PENNISI,
`WENDY ASKLUND and BIG APPLE
`TESTING, INC.,
`
`Defendants.
`
`
`
`
`----------------------------------------------------------------X
`
`FEUERSTEIN, United States District Judge
`
`
`
`
`
`
`
`OPINION AND ORDER
`19-cv-7103 (SJF)(ARL)
`
`On December 19, 2019, plaintiff Intertek Testing Services, N.A., Inc. (“plaintiff” or
`
`“Intertek”) commenced this action against defendants Frank Pennisi (“Pennisi”), Nicholas
`
`Pennisi (“Nicholas”), Wendy Asklund (“Asklund”) and Big Apple Testing, Inc. (“BAT”)
`
`(collectively, “defendants”), seeking, inter alia, (i) injunctive relief (A) to enforce restrictive
`
`covenants in Pennisi’s agreements with plaintiff, and to enjoin Pennisi from further violating
`
`those provisions, (B) to enforce agreements with Asklund and Nicholas concerning plaintiff’s
`
`trade secrets and confidential information, and to enjoin them from further misappropriation or
`
`dissemination of the company’s trade secrets and confidential information, and (C) to enjoin
`
`Nicholas, Asklund and BAT (collectively, the “BAT defendants”) from tortiously interfering
`
`with all of the aforementioned agreements; and (ii) damages, including attorneys’ fees, (A) for
`
`Pennisi’s alleged breach of contract, (B) for the alleged misappropriation of trade secrets and
`
`confidential information by Pennisi, Nicholas and Asklund (collectively, the “individual
`
`defendants”) in violation of the Defend Trade Secrets Act of 2016 (“DTSA”), 18 U.S.C. § 1836,
`
`and New York State law, and (C) for the BAT defendants’ tortious interference with contractual
`
`
`
`1
`
`FILED 
`CLERK 
` 
` 
`U.S. DISTRICT COURT 
`EASTERN DISTRICT OF NEW YORK 
`LONG ISLAND OFFICE 
`
`3/9/2020 3:12 pm
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 2 of 65 PageID #: 459
`
`relations under the New York common law. On that same date, upon plaintiff’s application
`
`pursuant to Rule 65 of the Federal Rules of Civil Procedure, and after hearing argument from
`
`both sides, the Court entered a temporary restraining order (“TRO”), enjoining and restraining,
`
`upon the giving of security as provided therein, pending determination of plaintiff’s motion for a
`
`preliminary injunction: (i) Pennisi “from performing services, in any capacity for [BAT];”1 and
`
`(ii) the individual defendants “from disclosing any of Intertek’s Confidential Information or
`
`Trade Secrets, . . . [and] from communicating, contacting, and/or soliciting any customers of
`
`Intertek” in violation of the agreements entered into between them and Intertek. (Order for
`
`Preliminary Injunction and Temporary Restraining Order [“TRO Order”] at 2-3).
`
`Pending before the Court is plaintiff’s motion for a preliminary injunction pursuant to
`
`Rule 65 of the Federal Rules of Civil Procedure enjoining and restraining, pending the final
`
`hearing and determination of this action, (i) the individual defendants “from working with or for
`
`[BAT], or any other competitor of Intertek until after October 26, 2020;” (ii) BAT from
`
`employing Pennisi until after October 26, 2020; and (iii) all defendants (A) from “directly or
`
`indirectly using, disclosing or disseminating to any other person, organization or entity or
`
`otherwise using any of Intertek’s confidential information or trade secrets, as set forth between
`
`[sic] the Agreements between the parties[,]” (B) from “directly or indirectly soliciting,
`
`contacting, doing business with, calling upon or communicating with any customer, former
`
`customer or prospective customer of Intertek with whom . . . [they] had contact or about whom
`
`they obtained confidential information . . . during their employment with Intertek, for the
`
`
`1 Although the TRO indicates that Nicholas and Asklund were also temporarily restrained and enjoined “from
`performing services, in any capacity for [BAT,]” (TRO Order at 2), during the initial pretrial conference before the
`undersigned on January 9, 2020, after counsel for defendants represented that only Pennisi is subject to non-
`competition and non-solicitation provisions, the Court indicated that the TRO would not be enforced against
`defendants who are not subject to a non-compete clause, effectively vacating so much of the TRO as enjoined and
`restrained Nicholas and Asklund “from performing services, in any capacity for [BAT].” (Id.).
`2
`
`
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 3 of 65 PageID #: 460
`
`purpose of providing or selling services of other business engaged in the services provided by
`
`Intertek or that Intertek was engaged in at the time of . . . [the individual defendants’]
`
`resignation/separation from Intertek until after October 26, 2020[,]” and (C) “from using, for any
`
`purpose, any confidential information or trade secrets of Intertek.” (TRO Order at 2). For the
`
`reasons set forth below, plaintiff’s application is granted in part and denied in part.
`
`
`
`
`
`I.
`
`BACKGROUND
`
`A. Factual Background
`
`In or about 1983, Pennisi became a partner in Materials Testing Laboratory (“MTL”), a
`
`company founded by Kevin Cosgrove (“Cosgrove”) which was “engaged in the business of
`
`commercial inspection and testing of the materials and construction of public works,
`
`infrastructure, and residential and commercial buildings.” (Declaration of Frank Pennisi
`
`[“Pennisi Decl.”], ¶ 2). From 1983 through 2012, Pennisi served as MTL’s Vice President of
`
`Mid-Atlantic Operations, pursuant to which he “opened and oversaw divisions in New Jersey,
`
`Delaware, Connecticut and Pennsylvania.” (Id., ¶ 3). According to Pennisi, (i) MTL was
`
`reorganized in 2012 to become MT Group, LLC (“MT Group”); (ii) Jeffrey Roden (“Roden”),
`
`“an operations manager and long-time employee, received shares in the company;” and (iii)
`
`Pennisi became the Director of Fenestration for MT Group’s offices in Farmingdale, New York
`
`and Cliffwood, New Jersey. (Id., ¶¶ 3-4).
`
`
`
`In November 2013, Asklund joined MT Group as a Business Development Associate,
`
`pursuant to which her responsibilities included “business development and bidding on new
`
`projects.” (Declaration of Wendy Asklund [“Asklund Decl.”], ¶ 2).
`
`
`
`3
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 4 of 65 PageID #: 461
`
`In 2013, Intertek, which describes itself as “a leading provider of quality solutions around
`
`the world,” (Complaint [“Compl.”], ¶ 10; see also Declaration of Vinu Abraham [“Abraham
`
`Decl.”], ¶ 6), began exploring opportunities to expand its “portfolio of services to include
`
`Building & Construction [B&C] commissioning and testing services” in the New York
`
`metropolitan area. (Abraham Decl., ¶ 6; see also Compl., ¶ 10). Eventually, Intertek’s
`
`exploration focused on the acquisition of MT Group, which plaintiff indicates “is one of the
`
`largest full service [sic] testing and inspection companies servicing the construction industry in
`
`the Mid-Atlantic and Northeast regions, including the States of New York and New Jersey.”2
`
`(Compl., ¶¶ 9-10; see also Abraham Decl., ¶ 6). According to plaintiff, since MT Group “had
`
`served the New York City metro area’s construction industry for more than 35 years[,] . . .
`
`[plaintiff] was particularly interested in acquiring the goodwill and client relationships with MT
`
`Group.” (Compl., ¶ 11; see also Abraham Decl., ¶ 8; Declaration of Jeffrey Roden [“Roden
`
`Decl.”] , ¶¶ 6, 8). At that time, MT Group was owned by Pennisi, Cosgrove and Roden
`
`(collectively, the “MT Group Members”). (Compl., ¶ 12; see also Abraham Decl., ¶ 11; Roden
`
`Decl., ¶ 4).
`
`
`
`According to plaintiff, in or around August 2015, as the terms of Intertek’s acquisition of
`
`MT Group were allegedly “being completed,” Roden commenced a “business relationship” with
`
`BAT, described as a New York-based “company which performs special construction inspecting
`
`and materials testing on behalf of New York’s engineering and development firms.” (Compl., ¶
`
`39; see also Roden Decl., ¶ 21; Abraham Decl., ¶ 37). Plaintiff further alleges: (i) that “[a]t their
`
`first meeting, Roden met with [BAT’s] Chief Executive Officer, Jay Rubin (‘Rubin’),” (Compl.,
`
`¶ 40; see also Roden Decl., ¶ 21); and (ii) that Roden “met with Rubin and/or [BAT’s] Executive
`
`
`2 Vinu Abraham (“Abraham”), Intertek’s vice president, describes Intertek in virtually the same way following its
`acquisition of MT Group. (See Abraham Decl., ¶ 2).
`
`
`
`4
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 5 of 65 PageID #: 462
`
`Director, Joel Lowy (‘Lowy’), either in-person or over the telephone on approximately 100 or
`
`more occasions,” throughout the course of his “business relationship” with BAT. (Compl., ¶ 42;
`
`see also Roden Decl., ¶ 24).
`
`
`
`Beginning in or around September 2015, MT Group began performing soil testing for
`
`BAT because BAT “lacked the required licensure to perform its own laboratory work” at that
`
`time. (Compl., ¶ 41; see also Roden Decl., ¶ 22).
`
`
`
`After “lengthy negotiations” over a two (2)-year period, Intertek entered into a Sale and
`
`Purchase Agreement (the “Purchase Agreement”), dated October 8, 2015, “to acquire MT Group
`
`for considerable financial consideration[,]” (Compl., ¶¶ 13, 15; see also Abraham Decl., ¶ 9 and
`
`Ex. A at p. 12, Art. 2), which, according to plaintiff, it was willing to pay in order to acquire MT
`
`Group’s goodwill and relationships in the testing and inspection industries in the New York
`
`metropolitan area. (Compl., ¶¶ 14, 19; see also Abraham Decl., ¶¶ 10, 12, 15, 30). All of the MT
`
`Group Members, including Pennisi, signed the Purchase Agreement. (Compl., ¶¶ 15, 21; see
`
`Abraham Decl., Ex. A; Roden Decl., ¶ 10). According to plaintiff, it “paid multiple millions of
`
`dollars in order to acquire MT Group (the ‘acquisition price’),” in exchange for which the MT
`
`Group Members “became employees of the newly-acquired MT Group.” (Compl., ¶ 16; see also
`
`Abraham Decl., ¶ 17; Roden Decl., ¶ 14). According to Abraham, “the MT Group entity
`
`survived the acquisition,” but the MT Group Members “released all ownership interest in the
`
`entity.” (Abraham Decl., ¶ 11).
`
`
`
`Pursuant to the Purchase Agreement, the MT Group Members, including Pennisi, agreed
`
`to a covenant against competition, (Compl. ¶¶ 17, 21; see also Abraham Decl., ¶ 16), which
`
`provides, in pertinent part, as follows:
`
`“(a) In order to induce [Intertek] to enter into this Agreement…each [MT Group
`Member] agrees that he will not, without the prior written consent of [Intertek], for
`
`
`
`5
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 6 of 65 PageID #: 463
`
`its or his own account or jointly with another, directly or indirectly, for or on behalf
`of any Person, as principal, agent, shareholder, participant, partner, promoter,
`director, officer, manager, employee, consultant, sales representative, or otherwise,
`except for the benefit of [Intertek] . . . (i) for a period of five years from the Closing
`Date (the ‘Restricted Period’), engage in the Restricted Business within the States
`of New York and New Jersey (the ‘Restricted Area’); [or] (ii) within the Restricted
`Area during the Restricted Period, solicit, or assist in the solicitation of, Restricted
`Business from any Person to whom any Company Group Member[3] has provided
`services during the three year period prior to the Closing Date. . . .”
`
`(Abraham Decl., Ex. A at 45, § 7.1). The Purchase Agreement defines the term “Restricted
`
`Business” to mean “the commercial inspection and testing of the materials and construction of
`
`public works, infrastructure, residential and commercial buildings[,]” (id., at 10), which,
`
`according to Abraham and Roden, encompassed “all of the work” performed or carried out by
`
`MT Group before it was acquired by Intertek. (Abraham Decl., ¶ 14; Roden Decl., ¶ 13). Since
`
`the acquisition was officially closed on October 26, 2015, (Compl., ¶ 20; see also Id., ¶ 87), the
`
`non-competition provision extends to October 26, 2020.
`
`
`
`On October 8, 2015, prior to the Closing Date, Pennisi entered into an Employment
`
`Agreement with Intertek, (Compl., ¶¶ 22, 32; see also Abraham Decl., ¶¶ 17, 26), pursuant to
`
`which he “would serve as Director of Fenestration for the company’s New York Operations.”
`
`(Compl., ¶ 25; see also Abraham Decl., Ex. C, ¶¶ 1, 18; Pennisi Decl., ¶ 5). According to
`
`Abraham, “Pennisi’s role after the acquisition was vital to the acquisition because this would be
`
`Intertek’s first entry into the fenestration market in the New York City metro area[,]” (Abraham
`
`Decl., ¶ 18), and Intertek “paid hundreds of thousands of dollars to secure the employment of
`
`Pennisi due to his extensive client network in the New York City metro area which was the
`
`
`3 The Purchase Agreement refers to MT Group, MTL, and two (2) subsidiaries of MT Group, i.e., MT Operating of
`New York, LLC and MT Operating of New Jersey, LLC, as “Company Group Members,” and each of those entities
`as a “Company Group Member.” (Abraham Decl., Ex. A at 1).
`6
`
`
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 7 of 65 PageID #: 464
`
`product of his relationship with MT Group prior to the acquisition and which was built over the
`
`course of decades of experience in the construction and materials testing business.” (Id., ¶ 30).
`
`Paragraph 9 of Pennisi’s Employment Agreement with Intertek provides, in pertinent
`
`part, that:
`
`“[F]or a period of one year following the termination of your employment, for any
`reason, you will not, without the prior written consent of the Human Resources
`Executive responsible for the United States, directly or indirectly, engage in (as
`owner, partner, shareholder, employee, director, agent, consultant or otherwise),
`any business which is a competitor of Intertek, as hereinafter defined. For purposes
`of this agreement, a ‘competitor of Intertek’ is any entity, including without
`limitation a corporation, sole proprietorship, partnership, joint venture, syndicate,
`trust or any other form of organization or a parent, subsidiary or division of any of
`the foregoing, which, is engaged in any business activity of the type for which you
`were responsible during your last 12 months of employment with Intertek and in
`the same geographic area for which you were responsible during your last 12
`months of employment with Intertek.
`
`
`a. For a period of one year following the termination of your employment,
`for any reason, you will not, directly or indirectly, either by yourself or
`through any person, firm or corporation for which you perform any services
`or in which you have any interest, solicit or attempt to solicit [Intertek’s]
`customers, suppliers and agents with which you had contact during the last
`twenty-four (24) months of your employment with Intertek, for the purpose
`of selling, providing, or obtaining some or all of the same products and/or
`services as those sold or provided by or to [Intertek]. For purposes of this
`paragraph, the terms ‘solicit’ and ‘attempt to solicit’ include responding to
`contact initiated by a customer, dealing with a customer for business
`purposes, and working with a customer for business purposes on behalf of
`a competitor.
`
`***
`
`
`
`
`d. . . . ]Y]ou consent and agree that if you violate any of the provisions of
`this paragraph 9, Intertek and its subsidiaries and affiliated companies
`would sustain irreparable harm and, therefore, in addition to any other
`remedies which Intertek may have under this agreement or otherwise,
`Intertek shall be entitled to an injunction from any court of competent
`jurisdiction restraining you from committing or continuing any such
`violation of this paragraph 9. . . .”
`
`(Abraham Decl., Ex. C, ¶ 9).
`
`
`
`7
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 8 of 65 PageID #: 465
`
`In addition, paragraph 7 of Pennisi’s Employment Agreement provides, inter alia, that:
`
`“You have access to certain Confidential Information and trade secrets of Intertek
`and its affiliates (‘Confidential Information’) and will receive access to additional
`Confidential Information in the course of your continued employment with
`Intertek. Such Confidential Information includes, but is not limited to: information
`concerning the confidential business or affairs or any trade secrets of Intertek, its
`parent entities and subsidiaries and all of their affiliates, predecessors and
`successors and its customers; customer account and credit data; customer
`comments; referral sources; information relating to confidential or secret designs,
`processes, formulae, plans, inventions, devices, services or materials; product,
`services or market development; management, accounting and reporting systems,
`compilations of information; manuals; technologies, records, specifications,
`procedures and programs; plans, research and related information and data; forms,
`agreements and
`legal documents;
`regulatory and
`supervisory
`reports;
`correspondence; statements; corporate books and records; bids, sales, financial,
`accounting, statistical, or personnel information; strategic and tactical business
`plans, methodologies, analysis and processes owned by Intertek, regularly used in
`the operation of Intertek’s business or concerning or belonging to third parties or
`Intertek customers, and includes all such confidential data of Intertek, third parties
`or Intertek’s customers, which has been labeled ‘confidential’ or ‘proprietary’, in
`both ‘hard copy’ and electronic form.
`
`
`a. You shall not disclose any Confidential Information, directly or
`indirectly, or use it in any way, either during or at any time after your
`employment, except as required in the course of your employment. All files,
`records, documents, drawings, specifications, equipment, and similar items
`relating to the business of Intertek or third parties and/or customers of
`Intertek, whether or not prepared by you, shall remain the exclusive
`property of Intertek or the respective third party and/or customer and shall
`not be used by you for any purpose unrelated to your work for Intertek nor
`retained by you after separation from employment with Intertek.
`
`
`
`b. You agree that all Confidential Information communicated or made
`available to you by Intertek or its affiliates, or by any third party or customer
`of Intertek, including any information gained by you or your representatives
`by reason of association with Intertek or any third party or client of Intertek
`is confidential. You further agree that all information, conclusions,
`recommendations, reports, advice, or other documents generated or handled
`by you pursuant to your employment are confidential. By signing this
`agreement, you agree that you will not, at any time, during or after
`employment, in any fashion, form or manner, either directly or indirectly,
`divulge, disclose or communicate to any person, company, association or
`entity in any manner whatsoever any Confidential Information. You further
`agree to keep in confidence business, plans, projects or potential projects,
`
`
`
`8
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 9 of 65 PageID #: 466
`
`
`
`finances and any other information deemed confidential, material or
`important by Intertek or its affiliates. . . .
`
`c. You and Intertek stipulate that these matters are important, material and
`confidential and gravely affect the effective and successful conduct of the
`business of Intertek and the good will of Intertek. Any breach of the terms
`of this section concerning Confidential Information constitutes a material
`breach of this agreement and Intertek reserves the right to pursue all legal
`and equitable remedies for violation of this provision. Intertek may seek a
`temporary restraining order and injunctive relief in a court of competent
`jurisdiction. . . .”
`
`
`(Abraham Decl., Ex. C, ¶ 7) (emphasis omitted).
`
`In addition, pursuant to paragraph 8 of the Employment Agreement, Pennisi agreed that,
`
`“Upon termination of employment, you are to return all Confidential Information,
`data, drawings, documents, contracts, computerized data, information printouts and
`tapes, tape recordings, data, accounting records, personnel files, computer
`information, computer equipment, mobile telephones, automobiles and any other
`property furnished to you while in the employ of Intertek. You shall not retain any
`Confidential Information or Intertek property, or make copies or transfer computer
`data or other Intertek data. Upon termination of employment or whenever requested
`by Intertek, you shall immediately deliver all such Intertek property as described
`above. . . . No copies of any such information shall be retained by you.”
`
`(Abraham Decl., Ex. C, ¶ 8).
`
`Roden “also became an employee of Intertek’s when the acquisition was finalized[,]
`
`[and] . . . signed an employment agreement largely mirroring the agreement signed by Pennisi[,]
`
`. . . [so] was subject to the same restrictive covenants against competition.” (Compl., ¶ 38; see
`
`also Roden Decl., ¶ 15). Roden is currently plaintiff’s Director of Operations for the New York
`
`area. (Roden Decl., ¶ 3).
`
`
`
`Likewise, Asklund “joined MT Group as part of Intertek’s acquisition of the company,”
`
`(Compl., ¶ 52; see also Abraham Decl., ¶ 32), and was employed as a Business Development
`
`Manager within its B&C Division for the New York metropolitan area, pursuant to which she
`
`was responsible, inter alia, “for directing and managing the company’s overall business
`
`
`
`9
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 10 of 65 PageID #: 467
`
`development process for the New York and New Jersey markets[,] . . . [including] pitching
`
`business to prospective clients.” (Compl., ¶¶ 50-52; see also Abraham Decl., ¶¶ 33; Asklund
`
`Decl., ¶ 3).
`
`On June 27, 2017, Nicholas, who is Pennisi’s son, was hired by Intertek as a Business
`
`Development Manager in the B&C Division, with the same duties and responsibilities as
`
`Asklund. (Compl., ¶¶ 51-52; see also Abraham Decl., ¶ 34; Declaration of Nicholas Pennisi
`
`[“Nicholas Decl.”], ¶ 2). According to Abraham, Asklund and Nicholas reported to Kevin
`
`Nakamoto (“Nakamoto”), Intertek’s Vice President of Sales in the B&C Division. (Abraham
`
`Decl., ¶ 34).
`
`In addition, sometime after Intertek acquired MT Group, Pennisi’s wife, Maritza Pennisi
`
`(“Maritza”), commenced employment with Intertek as an “Administrative Assistant,” pursuant to
`
`which “her job responsibilities largely consisted of collection-related duties,” including, inter
`
`alia, “corresponding with clients concerning billing-related issues, reporting on accounts
`
`receivable statuses, and investigating historical data for each customers’ billing histories.”
`
`(Compl., ¶ 23; Roden Decl., ¶ 32). According to Roden, as a result of her position and duties,
`
`Maritza “had access to client contact information, Intertek’s pricing information for each
`
`particular client, Intertek’s business history with each client, and the customers’ credit histories
`
`with Intertek.” (Roden Decl., ¶ 32; see also Compl., ¶ 24).
`
`Around the time that Intertek’s acquisition of MT Group was finalized, Rubin and Lowy,
`
`on behalf of BAT, began soliciting Roden to leave Intertek to work for BAT. (Compl., ¶ 43;
`
`Roden Decl., ¶ 25). Between October 2015 and on or about June 2019, Rubin and Lowy solicited
`
`Roden to join BAT on more than fifteen (15) occasions, (Compl., ¶ 44; Roden, ¶ 26), but Roden
`
`repeatedly informed them “that [he] could not join [BAT] based on restrictive covenants he
`
`
`
`10
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 11 of 65 PageID #: 468
`
`agreed to in the . . . Purchase Agreement[;] . . . that Cosgrove, Pennisi and he all agreed to be
`
`bound by restrictive covenants against competition[;] . . . [and] that the covenants would expire
`
`in October 2020.” (Compl., ¶ 46; see also Roden Decl., ¶ 28). Nonetheless, Rubin and Lowy
`
`continued to repeatedly solicit Roden to leave Intertek and join BAT, and “even offered to
`
`double Roden’s salary if he would breach his covenants against competition.” (Compl., ¶ 47; see
`
`also Roden Decl., ¶ 29).
`
`Pennisi asserts that approximately two (2) months after Intertek’s acquisition of MT
`
`Group, i.e., on or about December 2015, the laboratory manager for Intertek’s B&C Division
`
`passed away, so he “assumed [those] responsibilities in addition to his previous responsibilities
`
`until [his] resignation from Intertek in October 2019.” (Pennisi Decl., ¶ 5). According to Pennisi,
`
`BAT “did not provide the same services as the departments [he] worked for at Intertek.”4 (Id., ¶
`
`5).
`
`
`
`However, according to plaintiff, “[w]hile employed by MT Group, Pennisi’s duties and
`
`responsibilities included, but were not limited to, managing the profits and losses of the
`
`company’s construction and materials testing business in the New York and New Jersey
`
`markets[,]” by, inter alia, investigating and promoting new business opportunities, (Compl., ¶
`
`34; see also Abraham Decl., ¶ 29), for which “[h]e was paid an annual salary ranging from
`
`$125,000 up to $183,000[,] . . . [and] also received annual bonuses ranging from $11,934 up to
`
`$19,125 . . . along with other benefits, such as a $500 monthly car allowance.” (Compl., ¶¶ 35-
`
`36; see also Abraham Decl., ¶¶ 19, 27-28 and Ex. C, ¶ 6). Plaintiff further alleges that “Pennisi
`
`
`4 However, Pennisi also asserts: (i) that Roden “took over as Director of Operations for the B&C Division” at some
`time in 2017 and “remained in the position until July 1, 2018 when [Pennisi] was promoted to Director of Products
`and Projects NY/NJ Building and Construction, a title [he] retained until [his] resignation from Intertek[,]” (Pennisi
`Decl., ¶ 6; see also id., ¶ 8); (ii) that on July 1, 2018, Pennisi’s responsibilities for Intertek “were limited to
`Fenestration and did not include the B&C Division[,]” (id., ¶ 7); and that (iii) as Director of Products and Projects
`NY/NJ Building and Construction, his “responsibilities included the administration of operations” for Intertek’s
`Farmingdale office. (Id., ¶ 9).
`
`
`
`11
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 12 of 65 PageID #: 469
`
`also received access to Intertek’s goodwill and client relationships which had been developed at
`
`the expense of considerable time and capital resources on the part of the company[,] . . .
`
`includ[ing] the acquisition price, some of which was paid directly to Pennisi.” (Compl., ¶ 37; see
`
`also Abraham Decl., ¶ 68).
`
`
`
`Plaintiff asserts that after Pennisi’s promotion, (i) Pennisi took over Roden’s duty of
`
`being primarily responsible for Intertek’s dealings with BAT and “ordered Roden to cease
`
`communicating with [BAT] without his prior authorization;” (ii) BAT’s solicitations to Roden
`
`became less frequent, (Compl., ¶ 48; see also Roden Decl., ¶¶ 30-31); and (iii) both Asklund and
`
`Nicholas worked regularly with BAT under Pennisi’s direction. (Roden Decl., ¶ 35).
`
`
`
`According to Pennisi, after his promotion, he repeatedly informed Abraham, who was his
`
`direct supervisor/manager, and Gavin Campbell (“Campbell”), Intertek’s Vice President for the
`
`Americas, (Pennisi Decl., ¶ 7), about various and recurring issues in the B&C Division,
`
`including, inter alia, (i) Roden’s alleged self-dealing, phony billing practices and unauthorized
`
`use of Intertek personnel, equipment and resources, (id., ¶¶ 11-20); and (ii) Intertek’s purported
`
`failure to comply with certain contractual obligations. (Id., ¶ 24). Pennisi asserts that Abraham
`
`“ignored [his] concerns and refused to address any of the issues that [he] had brought to his
`
`attention regarding Mr. Roden and his staff[,]” (id., ¶ 21); and, “[a]t one point, the B&C Division
`
`began to lose various repeat customers. . . .” (Id.). In addition, Pennisi asserts: (i) that he was
`
`“particularly concerned” about the issues involving Intertek’s alleged failure to comply with
`
`contractual obligations because “another testing company . . . and its employees were recently
`
`indicted on criminal charges relating to the same issue[,]” (id., ¶ 25); (ii) that “it became
`
`increasingly apparent that Intertek . . . had no intention of investigating the issues [he] had
`
`
`
`12
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 13 of 65 PageID #: 470
`
`brought to their attention[,]” (id., ¶ 26); and (iii) that, therefore, he “was left with no choice but
`
`to resign. . . .” (Id., ¶ 27).
`
`On October 4, 2019, Maritza resigned from her employment with Intertek. (Compl., ¶ 49;
`
`Roden Decl., ¶ 33). Ten (10) days later, i.e., on October 14, 2019, the individual defendants also
`
`tendered their resignations from Intertek. (Abraham Decl., ¶ 35; see also Compl., ¶ 50; Roden
`
`Decl., ¶ 34; Pennisi Decl., ¶ 28, Asklund Decl., ¶¶ 5, 24 and Ex. D; Nicholas Decl., ¶ 4).
`
`According to Nicholas, he tendered his resignation from Intertek after learning that his
`
`father had tendered his resignation earlier the same day and, “[a]lthough the timing of [his]
`
`resignation was influenced by the fact that [his] father had just resigned, [he] had already been
`
`unhappy in [his] position at Intertek for some time.” (Nicholas Decl., ¶ 4; see also Id., ¶ 16).
`
`Nicholas further asserts that after resigning from Intertek, he accepted a position at BAT. (Id., ¶
`
`5).
`
`
`
`Asklund also went to work at BAT following her resignation from Intertek, (Asklund
`
`Decl., ¶ 5), but she asserts that “[t]he reasons for [her] resignation from Intertek were unrelated
`
`to any solicitation by [BAT].” (Id., ¶ 7). Rather, according to Asklund, “[f]or approximately two
`
`years prior to tendering [her] resignation, [she] spoke openly about [her] desire to leave Intertek
`
`and expressed [her] frustration with various aspects of [her] job to several Intertek managers,”
`
`including Roden, Abraham, Carmen Constantin (“Constantin”) and Marisa A. Harte (“Harte”),
`
`Intertek’s Director of the B&C unit. (Id.). Asklund identifies one (1) of the reasons for her
`
`resignation as being “the unavailability and unresponsiveness” of Nakamoto, who she describes
`
`as her direct supervisor, as well as “his outright hostility toward [her].” (Id., ¶¶ 8-12). According
`
`to Asklund, although she complained to Abraham several times about Nakamoto’s alleged
`
`unresponsiveness, refusal to give her a copy of her annual review, and unfair sales goals,
`
`
`
`13
`
`

`

`Case 2:19-cv-07103-SJF-ARL Document 20 Filed 03/09/20 Page 14 of 65 PageID #: 471
`
`Abraham never addressed all of her concerns or took care of the situation, as he indicated he
`
`would. (Id., ¶¶ 13-14).
`
`
`
`Nicholas also complains about Nakamoto, indicating, inter alia, that Nakamoto “did not
`
`provide [him] with any direction, tools, resources or support and was extremely unresponsive.”
`
`(Nicholas Decl., ¶ 11). In addition, Nicholas asserts, inter alia, that Nakamoto, Roden, Abraham
`
`and another individual in management, Tom Valanzano (“Valanzano”), “created an extremely
`
`hostile work environment[,] . . . [which] made it intolerable to continue to work at Intertek.” (Id.,
`
`¶¶ 12-16).
`
`
`
`Other reasons identified by Asklund for her resignation include: (i) the “inordinate and
`
`unorthodox pressure” that Abraham purportedly placed on her and other business development
`
`employees “to find additional revenue when it did not exist[,]” which included “daily and weekly
`
`emails and text messages . . . pressuring [them] to find additional ways to bill new and existing
`
`customers[,]” (Asklund Decl., ¶ 16); (ii) “the constantly changing sales commission plan that
`
`deprived [her] of [her] fair share of commissions for contracts that [she] secured for Intertek[,]”
`
`(id., ¶ 17; see also id., ¶¶ 18-20); and (iii) her purported “inability to compete for many projects
`
`because any bids [she] made would be undercut by Trio Testing Corp (‘Trio’), a Woman Owned
`
`Business founded and owned by Mr. Roden’s wife.” (Id., ¶ 21; see also Id., ¶ 22-23). Nicholas
`
`similarly notes such issues at Intertek, (see Nicholas Decl., ¶¶ 7-10), although he does not
`
`specifically identify them as reasons for his resignation from Intertek, except to state that “the
`
`virtually unattainable commission structure made it impossible” to con