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ExamWorks, Inc. v. DeStefano

Court of Chancery of Delaware

September 26, 2014

ExamWorks, Inc.
v.
DeStefano

Date Submitted: September 4, 2014

Brian E. Farnan, Esquire Farnan LLP

Laurence V. Cronin, Esquire Smith, Katzenstein & Jenkins LLP

Dear Counsel:

Plaintiff ExamWorks, Inc. ("ExamWorks") has moved to enforce a settlement agreement and for a temporary restraining order to prevent competition by Defendants Richard DeStefano ("DeStefano") and his employer, SCS Support Claims Services, Inc. ("SCS"). Defendants contend that SCS is not a proper party to this action, [1] that there has been no violation of the settlement agreement executed in January 2014 (the "Settlement Agreement"), [2] and that ExamWorks cannot make the required showing for a temporary restraining order.

In deciding a motion for a temporary restraining order, the Court generally considers "(i) the existence of a colorable claim, (ii) the irreparable harm that will be suffered if relief is not granted, and (iii) a balancing of hardships favoring the moving party."[3] The Court traditionally focuses on the latter two elements given the early stage of the proceedings.[4] On a motion to enforce a settlement agreement, the moving party bears the burden of proving the existence and terms of the agreement by a preponderance of the evidence.[5] This Court has equitable jurisdiction to award specific performance to enforce a settlement agreement.[6]

Here, the parties do not dispute the existence of the Settlement Agreement (and the contracts allegedly incorporated therein), but disagree about its terms. The Settlement Agreement provides, in part:

Subject to DeStefano's compliance with the Final Order, ExamWorks agrees to waive enforcement of the non-compete and customer non-solicitation covenants in the Prior DeStefano Agreements, provided that ExamWorks' waiver of DeStefano's broader and longer non-compete obligations set forth in the Prior DeStefano Agreements extends only to DeStefano's employment with [Insight Service Group, Inc. ("ISG")] and not with any other person or entity.[7]

The agreement later states:

ExamWorks and DeStefano, for and in consideration of the covenants described herein, and the other consideration set forth herein, and intending to be legally bound, do hereby REMISE, RELEASE, AND FOREVER DISCHARGE each other from all legally waivable causes of action . . . which have accrued through the effective date and which relate to the same . . . claims that form the underlying basis for the Action.[8]

The order entered by this Court on January 29, 2014 (the "Final Order") prohibited DeStefano from (i) "engag[ing] in the business of selling, arranging and/or facilitating independent medical examinations, peer reviews or bill reviews" until May 27, 2014, and (ii) "solicit[ing], offer[ing] employment to, hir[ing] or otherwise retain[ing] the services of any employee . . . or physician, medical professional, or medical group" in competition with ExamWorks until October 24, 2015.[9] The agreements referenced by the Settlement Agreement (the "Prior DeStefano Agreements") include a number of non-competition, non-solicitation, and confidentiality provisions.[10]

For example, the third stock option award agreement DeStefano signed states, in relevant part, that he shall not (i) "at any time during or after [his] employment with any ExamWorks Company, divulge such Confidential Information or make use of it for [his] own purposes or the purposes of any person or entity other than the ExamWorks Companies";[11] (ii) "market, offer, sell or otherwise furnish any products or services similar to, or otherwise competitive with, those offered by the ExamWorks Companies to any customer of an ExamWorks Company" for two years after termination;[12] (iii) "solicit, offer employment to, hire or otherwise retain the services of any employee . . . or any physician or other medical professional or medical group with whom or which any ExamWorks Company contracts to provide independent medical examination, peer review, utilization review, bill review, set-aside, or related services" for two years after termination;[13] or (iv) "compete with the ExamWorks Companies anywhere where the Company conducts such business" for two years after termination.[14]The fourth stock option award agreement DeStefano signed contains the same relevant language as the third.[15]

ExamWorks' strongest theory is that "waiver of DeStefano's broader and longer non-compete obligations set forth in the Prior DeStefano Agreements extends only to DeStefano's employment with ISG and not with any other person or entity."[16] Defendants, on the other hand, argue that DeStefano has not violated any valid restriction and that the Settlement Agreement merely was a waiver of prior restrictions: "[t]he Settlement Agreement does not impose any restrictions . . ., nor does it 'incorporate' any of the terms of the Prior Agreements."[17] There is enough uncertainty in the contractual language that the Court cannot summarily dismiss Defendants' arguments, although the arguments are not particularly persuasive. At this point, ExamWorks has raised a colorable claim that DeStefano breached the Settlement Agreement and its associated noncompetition, non-solicitation, and confidentiality agreements.

Irreparable harm would seem to be a natural conclusion if one's former regional Vice President of Sales and Marketing became the Chief Executive Officer of a competitor. The Court is persuaded that ExamWorks has suffered some harm for which monetary relief is not sufficient. However, ExamWorks is a large company, and it has not shown specific irreparable harm or the extent of harm that it has suffered or will suffer. Furthermore, some ...


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