MCGRIFF INSURANCE SERVICES, LLC v. WILSON

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

MCGRIFF INSURANCE )

SERVICES, LLC, )

)

Plaintiff, )

)

v. ) 1:23-CV-295

)

CHRISTOPHER WILSON, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, Chief District Judge.

McGriff Insurance Services, LLC, has sued Christopher Wilson, one of its former

vice presidents, alleging breach of contract, breach of the duty of loyalty, conversion,

misappropriation of trade secrets, and other related claims. McGriff moves for summary

judgment on six of its seven claims and seeks leave to amend its complaint to assert a

claim under the Georgia Trade Secrets Act. Mr. Wilson opposes the motion to amend and

moves for summary judgment on all claims.

The undisputed facts show that Mr. Wilson breached his employment contract by

soliciting many customers and employees to leave McGriff and move with him to a

competitor and by sharing some of McGriff’s confidential information concerning

customers. To this extent, McGriff is entitled to partial summary judgment on its breach

of contract claims. And McGriff does not challenge that Mr. Wilson is entitled to

summary judgment on its conversion claim. The cross-motions for summary judgment

are otherwise denied; there are disputed questions of fact material to remaining claims.

The motion to amend will be denied. McGriff has not shown good cause for the

late amendment nor is amendment necessary as McGriff can pursue its North Carolina

statutory misappropriation of trade secrets claim.

I. Undisputed Facts

McGriff, a North Carolina limited liability company, Doc. 35-10 at ¶ 4, is an

independent insurance broker that connects its customers to insurance carriers offering

policies to those customers. See id. at ¶¶ 2, 7. As part of its business, McGriff maintains

formal relationships with insurance carriers. Id. at ¶ 7. These relationships are referred

to as “appointments,” and the carriers are often referred to as “markets.” Id. Insurance

agents at McGriff are called “producers;” a producer develops new customers and

maintains relationships with existing customers. Id. at ¶ 5; see also Doc. 35-2 at 17–18,

24–25, 311 (testimony that producers work in a relationship business). When a customer

buys a policy from an insurer through McGriff, McGriff receives part of the annual

premium, both when the policy is written and each time it is renewed. Doc. 35-10 at ¶ 8.

Mr. Wilson lives in Macon, Georgia. Doc. 35-2 at 12. In 2004, he began work as

a “producer” for McGriff’s predecessor in the Macon office, selling insurance policies. 2

Id. at 15; Doc. 39-4 at ¶ 3. As Mr. Wilson acquired a larger book of business, his job title

1 Except where specifically noted, the Court has used the pagination used by the court

reporters transcribing depositions for all citations to deposition testimony. For all other citations,

the pagination appended by the CM/ECF system is used.

2 Mr. Wilson began with BB&T Insurance. Doc. 35-2 at 15; Doc. 39-4 at ¶ 3. In 2018,

BB&T Insurance changed its name to McGriff Insurance Services, Doc. 39-2 at 13–14; Doc. 35-

11 at 2, and Mr. Wilson continued to work for the company. Doc. 35-2 at 15; Doc. 39-4 at ¶ 8.

changed but he continued to be a producer. Doc. 35-2 at 18. By 2022, he was a Vice

President and Business Insurance Agent at McGriff. See id. at 15, 18; Doc. 35-10 at ¶ 5.

In 2021, he brought in approximately $1.3 million in revenue. Doc. 35-2 at 30.

Mr. Wilson signed an employment agreement with McGriff’s predecessor in

2010.3 Doc. 35-13; Doc. 39-4 at ¶ 4. The agreement contained an employee non-

solicitation provision, Doc. 35-13 at p. 8 ¶ 8(a)(i), a customer non-solicitation provision,

id. at p. 8 ¶ 8(a)(iii), and a confidentiality provision. Id. at pp. 9–10 ¶ 11.

The non-solicitation provisions applied during Mr. Wilson’s employment and for

two years after employment ends. Id. at p. 8 ¶ 8. The confidentiality provision applied

during his employment and for three years after employment ends. Id. at p. 9 ¶ 11.

Paragraph 17 of the agreement states that “[t]he validity, performance,

construction and effect of this Agreement shall be governed by the substantive laws of the

State of North Carolina, without regard to the provisions for choice of law thereunder.”

Id. at p. 12 ¶ 17. Trade secrets are protected “under applicable law.” Id. at p. 10 ¶ 11(a).

The contract also provides that any action arising out of the agreement must be brought in

state court in Forsyth County, North Carolina, or the United States District Court for the

Middle District of North Carolina. Id. at p. 12 ¶ 17.

3 The employment agreement refers to BB&T Insurance. See Doc. 35-13. Mr. Wilson does

not challenge that BB&T restructured to become McGriff. See Doc. 35-11 (Articles of

Amendment changing name of BB&T Insurance Services, Inc. to McGriff Insurance Services,

Inc.). He does contend that he agreed not to recruit BB&T employees, not McGriff employees,

and that McGriff has not shown Mr. Wilson recruited any employees of BB&T. See Doc. 43 at

12–13. This contention is addressed infra at 10–15.

In February 2022, Mr. Wilson received a letter from John Neel, Chief Executive

Officer at The Sanford Company, offering Mr. Wilson a position as a producer at Sanford.

Doc. 35-14. Sanford is a competitor of McGriff. See id. at 5–6 (offer letter comparing

employment at the two companies). Over the next several months, Mr. Wilson planned

and prepared to work for Sanford, though he continued to be a McGriff employee; the

evidence about the nature and extent of those plans will be discussed infra.

Mr. Wilson resigned from McGriff on October 31, 2022. Doc. 37-1; Doc. 35-2 at

15. He immediately went to work at Sanford, Doc. 35-2 at 15, also in Macon, Georgia.

See Doc. 35-14 at 6; Doc. 39-7 at 13.

On November 1, 2022, Mr. Wilson sent multiple, unsigned Broker of Record

(BOR) letters to potential clients, including clients he had at McGriff. Doc. 37-2. A

client can use a BOR letter to establish a broker relationship, Doc. 35-1 at 94–95; Doc.

35-10 at ¶ 8, and to inform a former broker if the client has switched brokers. Doc. 35-1

at 94–95. Many of Mr. Wilson’s former clients switched from McGriff to Sanford.

Compare Doc. 39-5 (list of Mr. Wilson’s clients at McGriff), with Doc. 39-1 at 21–22

(CM/ECF pagination) (McGriff’s lost clients during the non-solicitation period).

Additional undisputed facts will be stated as they are relevant to the claims.

Where there are factual disputes, those will also be discussed as they become relevant.

II. Procedural Background

On March 7, 2023, McGriff sued Mr. Wilson in North Carolina state court, Doc. 1-

1 at p. 2, asserting claims of breach of contract, breach of the duty of loyalty, conversion,

misappropriation of trade secrets, and unfair and deceptive trade practices. Id. at pp. 12–

19 ¶¶ 57–110. Mr. Wilson removed the case to federal court. Doc. 1. Discovery has

been completed, and the case was set for trial during the November 2024 term. Text

Order 07/30/2024.

McGriff contends that North Carolina law applies to its claims, see generally Doc.

35, but Mr. Wilson contends that Georgia law applies. See generally Doc. 39. On March

29, 2024, McGriff moved to amend its complaint to add a claim under Georgia’s Trade

Secrets Act. Doc. 33 at ¶¶ 4–5. Mr. Wilson contests the motion to amend. Doc. 41.

Both parties filed motions for summary judgment. Doc. 34; Doc. 38. McGriff

moves for summary judgment on all claims but the conversion claim. Doc. 35 at 8–9.

Mr. Wilson moves for summary judgment on all claims. Doc. 39 at 1–2. The cross-

motions for summary judgment are fully briefed, and on July 23, 2024, the Court held a

hearing on all pending motions. See Minute Entry 07/23/2024.

While the motions were pending, Mr. Wilson filed a petition for bankruptcy. See

Doc. 49. The case was stayed. Doc. 50; see also 11 U.S.C. § 362(a)(1). After the

bankruptcy court modified and lifted the stay so that this case may proceed, Doc. 62-2,

this Court granted McGriff’s motion to reopen the case, lifted the stay, and set this matter

for trial during the May 2025 term. Doc. 65.

III. Summary Judgment Standard

A court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). When parties submit cross-motions for summary

judgment, “the court must review each motion separately on its own merits to determine

whether either of the parties deserves judgment as a matter of law.” Rossignol v.

Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (cleaned up); see also Coalition for TJ v.

Fairfax Cnty. Sch. Bd., 68 F.4th 864, 878 (4th Cir. 2023). For each motion, the court

views the facts in the light most favorable to the party opposing that motion. Rossignol,

316 F.3d at 523; Doe v. Morgan State Univ., 544 F. Supp. 3d 563, 574 (D. Md. 2021).

IV. Breach of Contract Claims

McGriff contends that Mr. Wilson breached the provisions of the contract

prohibiting non-solicitation of McGriff customers, non-solicitation of McGriff

employees, and disclosure of confidential information. Both parties move for summary

judgment. Mr. Wilson contends Georgia law applies to all breach contract claims because

Georgia has a materially greater interest in the contract and the employee non-solicitation

provision is overbroad and against Georgia public policy. McGriff contends that the

choice of law provision in the contract is valid and thus North Carolina law applies.

A. Choice of Law

The contract states that North Carolina law governs “[t]he validity, performance,

construction and effect of this Agreement.” Doc. 35-13 at p. 12 ¶ 17. Despite this

provision, Mr. Wilson contends that Georgia law governs the breach of contract claims

because Georgia has a materially greater interest in the contract. Doc. 39 at 6–8, 13.

In diversity cases, federal courts apply the forum state’s choice of law rules.

Towers Watson & Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 67 F.4th 648, 653 (4th

Cir. 2023). North Carolina courts will enforce a contractual choice of law clause unless:

(a) the chosen state has no substantial relationship to the parties or the

transaction and there is no other reasonable basis for the parties’

choice, or (b) application of the law of the chosen state would be

contrary to a fundamental policy of a state which has a materially

greater interest than the chosen state in the determination of the

particular issue and which ... would be the state of applicable law in

the absence of an effective choice of law by the parties.

Cable Tel Servs., Inc. v. Overland Contracting, Inc., 154 N.C. App. 639, 642–43, 574

S.E.2d 31, 33–34 (2002).

Mr. Wilson testifies that he accepted his employment offer in Georgia. Doc. 39-4

at ¶¶ 4, 7.4 It is undisputed that he performed his employment obligations in Georgia, id.

at ¶ 11, and that most of his McGriff customers were based in Georgia. Id. at ¶ 12.

Under his employment agreement, he also had to secure and maintain all necessary

insurance licenses required by the state of Georgia, Doc. 35-13 at pp. 2–3 ¶ 2(b), and

“perform the specific duties of” and “provide the services normally associated with”

McGriff through its Macon, Georgia office. Id.

But McGriff is headquartered in North Carolina and maintains its bank accounts in

North Carolina. Doc. 35-10 at ¶ 4. Payments from Georgia customers are sent to

McGriff to be deposited in those accounts. Id. There is a substantial relationship

between North Carolina and the parties and issues in dispute.

The Court assumes without deciding that Georgia law would apply absent the

provision. Even so assuming, Georgia does not have a materially greater interest than

4 McGriff offers evidence disputing this point. See Doc. 42-3 at ¶¶ 4–6.

North Carolina in the determination of the matter, nor is application of North Carolina

law contrary to a fundamental policy of Georgia law.

Georgia has an interest in protecting its employee-residents, controlling the degree

of free competition in its local economy, and regulating employment restrictions placed

on its residents. Barnes Grp., Inc. v. C & C Prods., Inc., 716 F.2d 1023, 1030 (4th Cir.

1983); see also Viking Grp., Inc v. Grasser, No. 22-CV-933, 2023 WL 4824454, at *4

(W.D. Mich. Jan. 19, 2023) (discussing interests of state of employee’s residence and

employer’s headquarters). But North Carolina “has an interest in protecting its

companies from breaches of employment agreements.” Id. at *4; see also Gay v.

CreditInform, 511 F.3d 369, 390 (3d Cir. 2007) (acknowledging state interest in

protecting its businesses). And “[w]hen one of the parties is from a particular state, that

state has a serious interest in having its law apply.” Harleysville Mut. Ins. Co. for

Carolina Stone Setting Co., Inc. v. Gate Precast Co., No. 5-CV-228, 2006 WL 8438619,

at *7 (E.D.N.C. Oct. 4, 2006). McGriff is headquartered in North Carolina, Doc. 35-10 at

¶ 4, and Mr. Wilson lives in Georgia. Doc. 35-2 at 12. Both North Carolina and Georgia

have serious interests in this matter, and Georgia’s interest is not materially greater.

Even if Georgia had a materially greater interest, application of North Carolina

law is not contrary to a fundamental policy of Georgia. Under Georgia law, restrictive

covenants like employee non-solicitation provisions are only against public policy if they

are unreasonable. See Belt Power, LLC v. Reed, 354 Ga. App. 289, 296, 840 S.E.2d 765,

771 (2020). The passage of the state’s Restrictive Covenants Act in 2011 did not change

this policy. Id. While the details vary, Georgia law is similar to North Carolina law. See,

e.g., Wells Fargo Ins. Servs. USA, Inc. v. Link, 372 N.C. 260, 267, 827 S.E.2d 458, 466

(2019) (stating requirements for North Carolina covenants not to compete including that

covenant be reasonable as to “terms, time, and territory”); see generally Lab’y Corp. of

Am. Holdings v. Kearns, 84 F. Supp. 3d 447, 458–61 (M.D.N.C. 2015) (discussing

enforceability of non-solicitation and noncompete restrictive covenants).5

The employee non-solicitation provision is not against a fundamental Georgia

public policy. And Mr. Wilson has pointed to no fundamental policy in Georgia against

enforcing confidentiality agreements between employers and employees or customer

non-recruit covenants. North Carolina law applies to the breach of contract claims.

B. Summary Judgment Discussion

A plaintiff who asserts a breach of contract claim must show “(1) the existence of

a valid contract and (2) breach of the terms of the contract.” Wells Fargo Ins. Servs., 372

N.C. at 276 (cleaned up). Mr. Wilson contends that even under North Carolina law, the

employee non-solicitation provision is unenforceable. He also contends he has not

breached it, the customer non-solicitation provision, or the confidentiality provision.

5 Mr. Wilson contends that the Court should only look to pre-2011 case law to determine

Georgia’s public policy on restrictive covenants. Doc. 39 at 8 n.3. Assuming without deciding

that is so, Georgia courts upheld reasonably restrictive covenants in employment agreements

before 2011. See Club Props., Inc. v. Atlanta Offices-Perimeter, Inc., 180 Ga. App. 352, 354, 348

S.E.2d 919, 921–22 (1986) (allowing restrictive covenants so long as they were reasonable as to

time, geographic reach, and activities prohibited); Hostetler v. Answerthink, Inc., 267 Ga. App.

325, 328, 599 S.E.2d 271, 274 (2004) (holding restrictive covenants enforceable so long as “(1)

the restraint is reasonable; (2) founded upon valuable consideration; (3) is reasonably necessary

to protect the party in whose favor it is imposed; and (4) does not unduly prejudice the interests

of the public”); Murphree v. Yancey Bros. Co., 311 Ga. App. 744, 747–49, 716 S.E.2d 824, 827–

28 (2011) (upholding non-solicitation covenant in 2002 employment agreement because it was

reasonable as to duration, reach, and prohibitions).

1. The Employee Non-Solicitation Provision

North Carolina courts enforce “reasonable restrictions on a former employee’s

right to solicit an employer’s current employees.” Id. at 274. A restrictive covenant is

enforceable if it is “(1) in writing; (2) reasonable as to the terms, time, and territory; (3)

made a part of the employment contract; (4) based on valuable consideration; and (5) not

against public policy.” Id. at 267 (cleaned up); see also Lab’y Corp. of Am. Holdings, 84

F. Supp. 3d at 458 (discussing requirements for restrictive covenants). Whether a

restrictive covenant is reasonable and enforceable is a matter of law. See Sterling Title

Co. v. Martin, 266 N.C. App. 593, 597, 831 S.E.2d 627, 631 (2019).

a. Scope

A restrictive covenant must be “no more burdensome than is necessary to protect a

legitimate business interest of the employer.” Microban Int’l, Ltd. v. Kennedy, No. 22-

CV-620, 2023 WL 2533085, at *4 (W.D.N.C. Mar. 15, 2023); Hartman v. W.H. Odell &

Assocs., Inc., 117 N.C. App. 307, 316, 450 S.E.2d 912, 919 (1994). The burden of

proving a non-solicitation agreement is enforceable rests on the party seeking

enforcement. Lab’y Corp. of Am. Holdings, 84 F. Supp. 3d at 458.

The employment agreement here prohibits Mr. Wilson from acts that “directly or

indirectly solicit, recruit, encourage, or support any employee of BB&T [McGriff’s

predecessor] who had performed work for BB&T within the last year of [Mr. Wilson’s]

employment with BB&T to leave the employment of BB&T.” Doc. 35-13 at p. 8 ¶ 8(a)

(cleaned up). This restriction runs “for a period of two years following the date of [Mr.

Wilson’s] termination.” Id. For reasons persuasively explained by the North Carolina

Business Court in a case involving the same provision, this provision protects a legitimate

business interest, is not unduly burdensome, and is not overbroad. See McGriff Ins.

Servs., Inc. v. Ryan Hudson & Digit. Ins., LLC, No. 22-CV-680, 2023 WL 197441, at *8–

10 (N.C. Super. Jan. 17, 2023).

Mr. Wilson points out that the provision only prohibits him from soliciting

employees of “BB&T Insurance,” Doc. 35-13 at p. 8 ¶ 8(a)(i), and contends he did not

agree to “an exponentially wider covenant” covering employees of all businesses

acquired by BB&T and its successors “over the following dozen years.” Doc. 43 at 12.

But he does not challenge the fact that the contract continued to apply to his relationship

with McGriff after McGriff took over BB&T’s insurance interests.6 It is undisputed that

McGriff has a legitimate interest in protecting all its employees from poaching, and the

employee solicitation provision applies only to those employees who worked for the

company “within the last year of Mr. Wilson’s employment.” Doc. 35-13 at p. 8 ¶ 8(a)(i)

(cleaned up). This is not overbroad. The employee non-solicitation provision in Mr.

Wilson’s contract is reasonable and enforceable.

b. Breach

The evidence, viewed in the light most favorable to Mr. Wilson, shows that Mr.

Wilson breached the provision in the employment contract that prohibits him from

soliciting, recruiting, encouraging, or supporting employees to leave McGriff. See id.

6 The evidence shows that the Chairman of BB&T Insurance Services signed the contract

with Mr. Wilson. Doc. 35-13 at 15. BB&T changed its name to McGriff Insurance Services,

Inc. in 2018. Doc. 35-11. Thus, BB&T and McGriff are the same, and Mr. Wilson does not

contend otherwise.

There is documentary evidence that Mr. Wilson solicited many McGriff employees who

now work for Sanford, including Carson Schilling, Jim Wilson, Jimmy Hinson,7 Josh

James, Carrie McKinney,8 and his assistant Katrina (Trina) Sidlauskas,9, as well as other

employees,10 and that he identified those employees to Sanford and encouraged Sanford

to reach out to them. He also told Sanford that he wanted to work with specific McGriff

7 In a text dated March 12, 2022, Mr. Wilson texted Carson Schilling that he “had a great talk

with John and Mike. They will be reaching out to you and Josh this week.” Doc. 35-16 at 68

(cleaned up). In the same text thread, he said the “goal is grand slam. Me, you, Josh, Jimmy,

Jim Wilson, support staff. Ownership.” Id. at 70 (cleaned up). Two days later, Mr. Wilson told

Sanford to “go ahead and reach out to Carson and Josh … they are expecting it.” Id. at 54

(cleaned up). In August 2022, Mr. Wilson also texted Jim Wilson about potential employment

details at Sanford and told him Mike Kaplan of Sanford would call to set up a meeting. Id. at 80.

He wrote “talked to Mike. Good on 125. Good on 25 potential bonus … Good on you getting

paid if you are involved in bringing a deal to table.” Id. (cleaned up). Jim Wilson, Jimmy

Hinson, Josh James, and Carson Schilling all now work at Sanford. Doc. 35-9 at 11; Doc. 35-8

at 26; Doc. 35-7 at 51; Doc. 35-5 at 12–13.

In his deposition, Mr. Wilson answered several dozen questions about his interactions with

these employees by saying “I don’t recall,” or words to that effect; he never denied the specific

interactions otherwise shown by the evidence. See, e.g., Doc. 35-2 at 180–81. He affirmatively

testified that he only “recalls” that he, Carson Schilling, Josh James, and Jimmy Hinson

discussed their job offers from Sanford and “whether it made sense, the employment package, or

whatnot.” Id. at 180–82. But this is not enough to create a disputed question of material fact as

to whether he solicited these three employees to come to work for Sanford while he still worked

at McGriff and after he received an offer of employment from Sanford. See Doc. 35-14 at 2.

8 When asked how she learned about potential employment at Sanford, Ms. McKinney

testified that “Chris Wilson gave John Neel my name, and John called me.” Doc. 43-6 at 18.

She further stated that Mr. Wilson repeatedly asked her if she would ever leave McGriff, and she

told him that “it would have to be the perfect opportunity.” Id. at 20–21. Some time passed,

then Mr. Wilson told Ms. McKinney to expect a call from Mr. Neel. Id. at 21. Ms. McKinney

ultimately accepted a job at Sanford. Id. at 56.

9 In a September 6, 2022, text, Mr. Wilson told Sanford to “put something in front of Trina”

and that he thought Sanford should reach out to her. Doc. 35-16 at 62. He offered to tell Sanford

what the two of them had discussed. Id.

10 Mr. Wilson told Sanford to call Tom Flythe, see Doc. 35-16 at 63–64, an employee at

McGriff, Doc. 35-2 at 85, and that he was “talking to Wallace and Jessica.” Doc. 35-16 at 79.

Debbie Wallace and Jessica Foskey were other employees at McGriff. Doc. 35-2 at 85.

employees, Doc. 35-2 at 84–85, if certain McGriff employees were unhappy at their

current positions, Doc. 35-3 at 31, and that Sanford should recruit McGriff employees he

identified. Doc. 35-2 at 171. John Neel, CEO of Sanford, testified that he did not intend

to recruit other McGriff employees until Mr. Wilson told him about individuals and

offered to introduce Mr. Neel to them. Doc. 35-3 at 31.

Mr. Wilson’s efforts to undermine this evidence do not create disputed questions of

fact. He quibbles about whether he “solicited” these employees, saying he is not the one

to deal with those employees about the job change. See Doc. 43 at 13–15. But

solicitation is defined more broadly than that and includes active persuasion, not just

discussions about the details. See Inland Am. Winston Hotels, Inc. v. Crockett, 212 N.C.

App. 349, 354, 712 S.E.2d 366, 369–70 (2011). To the extent his role was less than

solicitation, his conduct still fell within the conduct prohibited by the contract; he makes

no effort to show that he did not encourage or support those employees to leave McGriff.

Doc. 35-13 at p. 8 ¶ 8(a)(i) (contract provision prohibiting acts that “encourage or

support” an employee to leave McGriff).

His other factual assertions are similarly unhelpful to him. For example, he says

he never met Carrie McKinney before she left McGriff to work for Sanford so he could

not have solicited her. Doc. 43 at 14–15. But in the cited testimony, Ms. McKinney says

that while she never met Mr. Wilson in person, Doc. 43-6 at 16, she communicated with

him every couple of weeks by phone and email; that after they had a number of general

conversations about changing employers, Mr. Wilson told Ms. McKinney that John Neel

would be calling her, id. at 18–20; and that she and Mr. Wilson talked about going to

Sanford while they both had open jobs offers. Id. at 24. The fact that they did not meet

in person is not material, and whether Mr. Wilson’s actions were the cause of Ms.

McKinney’s job change goes to damages, not breach.

The evidence shows that Mr. Wilson actively persuaded, encouraged, supported

and solicited employees of McGriff, specifically Carson Schilling, Jim Wilson, Josh

James, Jimmy Hinson, Katrina Sidlauskas, Carrie McKinney, Tom Flythe, Debbie

Wallace, and Jessica Foskey, to leave their employment at McGriff in violation of the

employee non-solicitation provision in his employment agreement. To this extent,

summary judgment on Count II: Breach of Contract – Solicitation of Employees, Doc. 2

at ¶¶ 66–76, will be granted in McGriff’s favor. As to all of these solicited employees,

only the question of damages is for trial.

McGriff has not established that it is entitled to summary judgment on this claim

to the extent it is based on any alleged solicitation of any other McGriff employees. To

the extent it so contends, the question of breach will be for trial, as will damages.

2. Customer Non-Solicitation Provision

Mr. Wilson’s employment agreement prohibits him from soliciting McGriff

customers “for a period of two years following the date of termination of [Mr. Wilson’s]

employment.” Doc. 35-13 at p. 8 ¶ 8(a)(iii). Mr. Wilson agreed and promised not to

“directly or indirectly solicit, contact, divert, or call upon with the intent of doing

business with, any [McGriff] customer on [Mr. Wilson’s] own behalf or on behalf of any

competitive business.” Id. (cleaned up).

It is undisputed that Sanford is a competitive business as defined by the contract,

see id. at p. 8 ¶ 8(b)(i), and that the customers at issue are covered by the non-solicitation

clause. See id. at p. 8 ¶ 8(b)(ii). Mr. Wilson does not challenge the enforceability of the

contract provision prohibiting customer solicitation. Thus, the material fact is whether

Mr. Wilson directly or indirectly solicited McGriff customers with the intent of doing

business with them on behalf of Sanford.

McGriff has presented evidence that Mr. Wilson solicited McGriff customers, both

before and after he left McGriff. See discussion infra. To the extent Mr. Wilson moves

for summary judgment on this aspect of McGriff’s claim, the motion will be denied.

Indeed, McGriff’s evidence, as to almost all of the identified customers, is

undisputed. McGriff has offered both direct and indirect evidence, and Mr. Wilson either

admits or does not bother to specifically deny these solicitations.

For example, Mr. Wilson testified that he told many of his McGriff customers he

was leaving before he moved to Sanford in hopes they would follow him. Doc. 35-2 at

103–10.11 Months before starting at Sanford, he sent multiple texts to Sanford employees

11 Mr. Wilson testified that he told the following McGriff clients he was leaving: Burgess

Pigment Company, Farmview, The ARC Macon, RSDH Andy’s Pool, Pyrotechnic, Family

Hospice, Fincher’s Barbeque, Kelly Products, Arrow Dynamics, Core Management, Economy

Tire, Sellers Construction, Sellers Aviation, Gayton Health Center, Kelly Registration Systems,

and Macon Tent Rentals. Doc. 35-2 at 103–08; see also Doc. 39-1 at 21–22 (CM/ECF

pagination).

about establishing relationships with insurance carriers that his McGriff customers

used.12

In one text sent before he left McGriff, Mr. Wilson stated his intent to “preach” to

one customer, Buzzell, about the forms the customer needed to sign to move its business,

Doc. 35-16 at 48. In another, he said he had “to be able to BOR” as soon as he left

McGriff. Doc. 35-4 at 18. As explained supra, a “BOR” is a letter that a customer signs

to create an official and exclusive relationship with an insurance broker. See supra at 4;

see also Doc. 35-10 at ¶ 8 (explaining BOR letters as they relate to McGriff).

Mr. Wilson further texted Sanford that he was talking to clients “to clear all paths.”

Doc. 35-16 at 73. And he sent texts about “moving [an] account,” “unofficial

appointments” he had “for conversions,” and customers that “committed to Sanford” all

while he was still working at McGriff. Id. at 43, 81, 85. There are many other texts that

12 Specifically, in March 2022, Mr. Wilson texted Sanford that he would “send you guys

markets this week.” Doc. 35-16 at 54. He then sent Sanford a list of markets some of which

included “an account that goes with the market.” Id. at 55–56. In September 2022, Mr. Wilson

texted Sanford a list of McGriff clients and their insurance carriers. Doc. 35-4 at 17–18, 23–24

(CM/ECF pagination). He said he needed “an update on each of these accounts” including

information on which markets Sanford did not have. Id. at 18.

indicate he solicited customers to come with him when he left for Sanford.13 And it is

undisputed that Mr. Wilson made lists of customers that he hoped to take to Sanford.14

On his first day at Sanford, Mr. Wilson sent BOR letters to several of his former

McGriff customers, in effect asking those customers to move their business to Sanford.

See Doc. 37-2.15 And he made statements to Sanford employees that implied he had

talked with someone at Mercer University, one of McGriff’s customers, about moving his

business. See Doc. 35-16 at 91 (telling Sanford employees that a person named Chandler

“was supposed to advocate for us to BOR Mercer”); Doc. 39-5 (listing Chandler Wagner

as Mr. Wilson’s contact for Mercer).

In addition to all of this circumstantial evidence, there is also some direct

evidence. Before leaving McGriff, Mr. Wilson told Mac Leskosky of America

Swimming Pool Company (“ASP”) that he was moving to Sanford, see Doc. 39-5; Doc.

35-16 at 111, that he was trying to bring Carrie McKinney, the person who worked on the

ASP accounts at McGriff, to Sanford, see Doc. 35-16 at 111; Doc. 35-2 at 127, and that

13 In September 2022, Mr. Wilson texted Sanford that he had “just closed Sellers, Burgess,

and Pyrotechnics for Sanford. Boom,” Doc. 35-16 at 78 (cleaned up), three accounts he had at

McGriff. Doc. 39-5. In October 2022, he texted Mike Kaplan of Sanford “AGC…we got them?

Have a meeting with Buzzell and just confirming as it was on the list from beginning.” Doc. 35-

16 at 47. AGC is one of the insurance carriers that Mr. Wilson texted Sanford about in March

2022, id. at 55, and Buzzell was one of Mr. Wilson’s McGriff customers. Doc. 39-5.

14 Mr. Wilson made a handwritten list of McGriff clients, revenue, and policy renewal dates,

see Doc. 36-4, and referred to the list as containing his goals. Doc. 35-2 at 211–13. He also put

various lists of McGriff clients on his Sanford office whiteboards, including one titled “Other

Accounts to Move,” Doc. 36-3 at 2, and another titled “New Clients at Sanford.” Id. at 4.

15 Mr. Wilson sent BOR letters to at least Bridges Group, Arrow Dynamics, Kelly Products,

Farmview, Burgess Pigment Company, Mission Healthcare, The ARC Macon, Family Hospice,

RSDH Andy’s Pool, Howard Reed Enterprise, and Fincher’s BBQ. See Doc. 37-2.

Mr. Leskosky could pitch Sanford to the other ASP pool companies. Doc. 35-2 at 139–

40. Mr. Wilson also asked Ryan Eiland of CRC Pool Service to talk to one Nick Carver

and let Mr. Carver know Mr. Wilson had moved to Sanford “and all he has to do is reach

out to me to make the switch.” Doc. 35-16 at 2.16 These are instances of at least indirect

solicitation, prohibited by the contract. See Doc. 35-13 at p. 8 ¶ 8(a)(iii).

Before leaving McGriff, Mr. Wilson told Mike Kaplan, a former McGriff co-

worker who had moved to Sanford in 2020, Doc. 35-4 at 11, that he was going to try to

get BOR letters from current McGriff clients. Id. at 77. That is an admission of

solicitation with intent to do business. And Mr. Wilson admits he “crossed the line” and

did not comply with his non-solicitation restrictions in his dealings with a representative

of S-Squared Management, Steven Stembridge. Doc. 35-2 at 87; see also Doc. 35-16 at 5

(text to Mr. Stembridge that “I want you back as a client as you are one of only 2 clients

yet that has not come over.” Doc. 35-16 at 5; Doc. 39-5 (identifying Stembridge)). That

is solicitation.

In response to this evidence, Mr. Wilson submits very little. He raises disputed

questions of fact as to three customers, MS Corporation, Sunbelt Environmental Services,

and Mission Healthcare.17 But beyond these three, Mr. Wilson points to no evidence as

to any individual customer that rebuts or contradicts McGriff’s evidence.

16 Nick Carver was Mr. Wilson’s contact for Carver Eiland Pool Service LLC when Mr.

Wilson worked with McGriff. Doc. 39-5.

17 McGriff acknowledges that MS Corporation is not included on any of Mr. Wilson’s target

lists. Doc. 42 at 22 n.8. And Mr. Wilson did not testify that he reached out to this company

before leaving McGriff nor has either party identified a BOR letter sent to MS Corporation by

Sanford. As to Sunbelt, Mr. Wilson testified that he did not tell Sunbelt he was leaving McGriff.

At his deposition, he testified in general terms that he did not solicit any McGriff

customers, Doc. 35-2 at 220–21, but he never denied contacting specific customers; he

repeatedly said only that he did not recall doing so. Id. at 109. While he was not

completely clear in his testimony, a jury might possibly infer that he only told customers

how to move their business to Sanford if a customer asked him. See, e.g., id. at 109–10.

Assuming without deciding that is so, nowhere does he point to any specific evidence

disputing that he contacted numerous McGriff customers to tell them he was leaving

McGriff for Sanford with the intent to take his business with him and in hopes that they

would ask him how switch brokers; in fact, he admits that. That is solicitation prohibited

by the contract and constitutes a breach of contract.

On this record, no reasonable jury could find that Mr. Wilson did not “directly or

indirectly solicit, contact, divert, or call upon” current McGriff customers “with the intent

of doing business with” those customers “on behalf of any competitive business.” See

Doc. 35-13 at ¶ 8(a)(iii) (cleaned up). As to all customers identified herein other than MS

Corporation, Sunbelt, and Mission Healthcare, McGriff has shown without dispute that

there was a valid contract prohibiting Mr. Wilson from soliciting those customers, that

Mr. Wilson solicited those customers, and that in doing so Mr. Wilson breached this

Doc. 35-2 at 107. And in his signed declaration, he states that his contact at Sunbelt reached out

to him in January 2023 to request a quote from Sanford to compare with a quote from McGriff.

Doc. 43-2 at ¶¶ 19–24. As to Mission Healthcare, Mr. Wilson testified that a Mission employee

contacted Mr. Wilson asking for a BOR letter before he sent the letter. Doc. 35-2 at 134. There

is evidence that Mr. Wilson texted Paul Verhoeve, CEO of Mission, id. at 149, on November 7,

2022, about switching to Sanford, Doc. 35-16 at 108, but this does not negate the possibility that

Mission reached out to Mr. Wilson before he sent this text after learning he had moved

companies.

contractual obligation. McGriff is entitled to summary judgment on this claim as to all

customers except MS Corporation, Sunbelt Environmental Services, and Misson

Healthcare.

Mr. Wilson says that it is not solicitation to contact customers and tell them he is

moving to a different employer. See Doc. 39 at 15–17. First, he cites no North Carolina

law to support this proposition. Second, even assuming that is so, he ignores that the

contract prohibits more than solicitation. See Aeroflow Inc. v. Arias, No. 11-CV-1652,

2011 WL 2651567, at *8 (N.C. Super. July 5, 2011) (interpreting the prohibition on

solicitation of customers by reference to specific contract language). It also prohibits him

from “contact[ing]” and “call[ing] upon” McGriff customers “with the intent of doing

business” with those customers on behalf of Sanford. Doc. 35-13 at p. 8 ¶ 8(a)(iii). It is

undisputed that he contacted these customers with that intent. His own texts prove it.

Mr. Wilson also contends that the evidence “falls short of solicitation” for many of

the clients who made a switch to Sanford and that there is an “evidentiary vacuum” for

clients he refers to as “Pool Clients.” Doc. 39 at 14–15. But as previously explained,

“the record taken as a whole,” Scott v. Harris, 550 U.S. 372, 380 (2007), and in the light

most favorable to Mr. Wilson, provides an abundance of evidence that Mr. Wilson

solicited these clients. Mr. Wilson’s evidence, such as it is, does not create a disputed

question of fact.

Summary judgment on Count I: Breach of Contract – Solicitation of Customers,

Doc. 2 at ¶¶ 57–65, will be granted in McGriff’s favor as to all customers identified

herein except MS Corporation, Sunbelt Environmental Services, and Mission Healthcare.

As to those three customers and any others not specifically discussed in this order,

summary judgment is denied, and the question of breach will be for trial. Damages as to

all customers also will be for trial.

3. Confidentiality Provision

Paragraph 11 of Mr. Wilson’s employment agreement covers confidentiality. See

Doc. 35-13 at pp. 9–10 ¶ 11. During his employment with McGriff and “for a period of

three years following the date of voluntary or involuntary termination,” Mr. Wilson was

prohibited from (1) misappropriating, (2) using for the purpose of competing with

McGriff, either directly or indirectly, (3) disclosing to any third party, either directly or

indirectly, or (4) aiding anyone else in disclosing to any third party, McGriff’s

confidential information. Id. at pp. 9–10 ¶ 11(a).

“Confidential information” includes customer information like “customer lists,

contracts, information, requirements, billing histories, marketing methods, needs and

products or services provided by [McGriff]” and financial information like “financial

statements, balance sheets, profit and loss statements, earnings, commissions, and salaries

paid to employees, sales data and projections, cost analyses and similar information.” Id.

at p. 10 ¶ 11(b). Mr. Wilson does not challenge the enforceability of the contract

provision prohibiting disclosure of confidential information.

Both parties have moved for summary judgment. The evidence viewed in the light

most favorable to Mr. Wilson shows that he breached the confidentiality provision found

in his employment agreement with McGriff.

While he was still employed with McGriff, Mr. Wilson repeatedly sent Sanford

information about McGriff customers and their current insurance carriers. See supra

notes 12–14; Doc. 35-16 at 40 (text thread in effect telling Sanford to develop a

relationship with Hanover, an insurer, to be able to bring in business from McGriff

customer “ARC” and providing a revenue amount).18 In September 2022, he specifically

asked via text for “an update on each of these accounts … which markets do you NOT

have yet” and attached photos listing McGriff customers and their respective insurance

carriers. Doc. 35-4 at 18, 23–24.19 After he left McGriff and joined Sanford, Mr. Wilson

shared with another Sanford employee a photo of a handwritten list containing customers

he had at McGriff, the estimated revenue associated with those customers, and the

months in which their policies were up for renewal. See Doc. 36-4 at 2 (photo); Doc. 35-

2 at 211–13 (testimony by Mr. Wilson that he shared this list with Carrie McKinney after

she joined Sanford). It is also undisputed that he posted McGriff client account

information on whiteboards in his Sanford office, Doc 36-3, and that this confidential

information was seen by Sanford employees. Doc 35-4 at 107 (deposition testimony of

Mike Kaplan that he saw the whiteboard but did not pay attention to it); Doc 35-5 at 92,

18 In response to an August 26, 2022, text from Sanford asking “who and why Hanover?” Mr.

Wilson responded “ARC. 15k rev. Have to have it done mid-November because board meets

early to approve.” Doc. 35-16 at 40 (cleaned up). ARC was a customer of McGriff associated

with Mr. Wilson, Hanover was the associated market, and “15k rev” must refer to the amount of

revenue generated from the account. Doc. 35-4 at 23 (CM/ECF pagination) (listing ARC and

Hanover together); Doc. 36-4 at 2 (listing “14” beside “ARC Macon” as estimated revenue).

19 The list included at least some customers Mr. Wilson had while at McGriff. See Doc. 39-5;

see also Doc. 35-4 at 23 (CM/ECF pagination) (including Mercer, Sellers, and Pyrotechnics);

Doc. 35-16 at 55 (March 2022 text messages listing Mercer, Sellers, and Pyrotechnics as

customer accounts associated with specific markets).

97 (testimony of Carson Schilling that he saw the information on the whiteboard); Doc

35-6 at 53 (testimony of Carrie McKinney that she has “seen his whiteboard with a list of

clients”). The customer accounts and their associated information fall under the

definition of “confidential information.” See Doc. 35-13 at p. 10 ¶ 11(b) (defining

customer lists as confidential).

Mr. Wilson denies under oath that he shared any confidential information with

Sanford. Doc. 35-2 at 221. But one cannot tell from this cursory denial in response to a

leading question if he is denying that customer information is confidential, denying that

he sent any of the material texts communicating that information, or some other fact, or if

he just doesn’t understand what confidential information means. In the face of

overwhelming detailed evidence that he has not directly contradicted, that conclusory

assertion does not create a disputed question of material fact. Mr. Wilson breached the

confidentiality provision in his employment agreement by sharing customer information

with Sanford employees.

Beyond this, however, there are disputed questions of material fact. It is

undisputed that during his last months of employment Mr. Wilson compiled and collected

a great deal of other confidential information belonging to McGriff, including a McGriff

Management Reporting Package that Mr. Wilson emailed to himself in October. Doc. 35-

2 at 184–85.20 A jury could find that he used the information to compete with McGriff or

20 The information also includes over 50 pictures of the McGriff MiDash database, Doc. 36-

1, which contains lists of McGriff clients and their account information, Doc. 35-10 at ¶ 10, the

McGriff Management Reporting Package, Doc. 36-2, which contains confidential information

shared the information with third parties, or both, in violation of his employment

agreement, and certainly there is evidence to support these inferences. But a jury might

possibly credit Mr. Wilson’s testimony that he did not share the information with anyone

else and that he obtained the information for legitimate reasons, such as to review his

clients while working at McGriff and to weigh his options when deciding whether to

move to Sanford.21

Summary judgment on Count III: Breach of Contract – Confidentiality, Doc. 2 at

¶¶ 77–83, will be granted for McGriff to the extent that Mr. Wilson shared confidential

customer information through text message, handwritten lists, and his Sanford office

whiteboards. McGriff must still prove its damages as to these breaches. As to other

about McGriff producers and offices, Doc. 35-10 at ¶ 21, and account information from

McGriff’s client management system, Sagitta. Doc. 35-2 at 190–91; see also Doc. 35-10 at ¶ 10.

21 McGriff does not share the Management Reporting Package with all employees, and the

information it contains is not generally known outside of McGriff. Doc. 35-10 at ¶ 21. The

report was shared with Mr. Wilson by McGriff. Doc. 36-2 at 2. He testified that he emailed the

report to his wife’s email address so that he could review the information at home but that he did

not share the information with anyone else, including anyone at Sanford. Doc. 35-2 at 184–86.

Mr. Wilson further testified that he contacted Josh James, another McGriff producer, to

access McGriff’s client management systems Sagitta because Mr. Wilson needed information

about his clients. Id. at 190–94. He said he did not share the information with anyone else and

only used Mr. James’ access because he never got a passcode for the system. Id. at 192–94.

When Mr. Wilson accessed Sagitta, he was still employed at McGriff. See Doc. 35-16 at 9–10

(text messages between Mr. Wilson and Mr. James).

Mr. Wilson testified that he used the photos he took of MiDash to weigh his options when

deciding to move to Sanford. Doc. 35-2 at 196–99. He took the photos while still employed at

McGriff. See, e.g., Doc. 36-1 at 61 (photo dated 8/25/2022). Mr. Wilson still had the photos on

his phone at the time he was deposed, Doc. 35-2 at 197, but he testified that he has not looked at

them since going to Sanford or shared the information with anyone else. Id. at 197–98.

breaches of the confidentiality provision asserted by McGriff, summary judgment is

denied.

V. Breach of Fiduciary Duty of Loyalty

McGriff contends that Mr. Wilson had a fiduciary duty to McGriff as both an agent

and company official and that he breached that duty by sharing McGriff’s confidential

information and by recruiting McGriff customers and employees to move to Sanford

while he was still employed at McGriff.22 Mr. Wilson contends that he was merely an

employee of McGriff so he did not have a fiduciary duty to the company and that even if

he did, he did not breach that duty.

Both parties move for summary judgment. They again disagree about whether

Georgia or North Carolina law applies, but neither party has identified a material

difference in the law in the briefing. To prove a claim for breach of fiduciary duty under

North Carolina or Georgia law, a plaintiff must show (1) the existence of a fiduciary duty,

(2) breach of that duty, and (3) damages proximately caused by the breach. Wright v.

Apartment Inv. & Mgmt. Co., 315 Ga. App. 587, 594, 726 S.E.2d 779, 787 (2012);

Chisum v. Campagna, 376 N.C. 680, 706, 855 S.E.2d 173, 192 (2021).

If Mr. Wilson had a fiduciary duty to McGriff, it would be a breach to solicit and

recruit customers and employees and to share confidential information while employed

22 In its complaint, McGriff labels the claim as one for a breach of the duty of loyalty,

alleging that Mr. Wilson breached the duty by recruiting McGriff employees to leave their

employment and join a competitor and by taking McGriff’s confidential and proprietary

information for his benefit and the benefit of a competitor. Doc. 2 at ¶¶ 84–88. This is

essentially a breach of fiduciary duty claim.

by McGriff. To the extent McGriff has obtained summary judgment on other claims

based on those actions, as discussed supra, it is entitled to have those facts taken as

decided for purposes of the breach of fiduciary duty claim. Otherwise, however, breach

is a disputed question of fact, again to the extent discussed supra.

Whether there is a fiduciary relationship is a disputed question of fact. The

relationship of employer-employee by itself is not enough to establish a fiduciary

relationship. Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 708 (2001); Atlanta

Mkt. Ctr. Mgmt., Co. v. McLane, 269 Ga. 604, 607, 503 S.E.2d 278, 281–82 (1998);

accord Cellofoam N. Am. Inc. v. Kustes, No. 19-CV-2159, 2021 WL 9274549, at *5–6

(N.D. Ga. Dec. 21, 2021). But the facts of a particular case can establish the existence of

a fiduciary relationship between an employee and employer. See Dalton, 353 N.C. at

651–52; McLane, 269 Ga. at 607; see also Wright, 315 Ga. App. at 592 (noting that a

fiduciary relationship can be created by law or fact); Azure Dolphin, LLC v. Barton, 371

N.C. 579, 599, 821 S.E.2d 711, 725 (2018) (same).

A jury must decide whether Mr. Wilson owed a fiduciary duty to McGriff.

Summary judgment on Count IV: Breach of the Duty of Loyalty/Fiduciary Duty, Doc. 2

at ¶¶ 84–88, is denied.

VI. Conversion

McGriff alleges that Mr. Wilson accessed and stole confidential information while

employed by McGriff. See id. at ¶¶ 90–91. Mr. Wilson moves for summary judgment

contending that the conversion claim is governed by Georgia law and thus preempted by

Georgia’s Trade Secrets Act. McGriff does not dispute that its conversion claim should

be dismissed. See Doc. 45 at 13; see also Doc. 42 (McGriff’s response which does not

include discussion of the conversion claim). Summary judgment on Count V:

Conversion, Doc. 2 at ¶¶ 89–93, will be granted for Mr. Wilson.

VII. Misappropriation of Trade Secrets

Both parties move for summary judgment on McGriff’s misappropriation of trade

secrets claim. Id. at ¶¶ 94–103. McGriff contends that Mr. Wilson misappropriated the

company’s trade secrets by writing down and capturing confidential information

including company-wide financial data, employee information, and client lists, and by

sharing this information with Sanford for his own benefit and the benefit of Sanford.

Doc. 35 at 36–38. Mr. Wilson contends that the information at issue does not meet the

definition of trade secrets and that McGriff cannot show Mr. Wilson disclosed the

information or misappropriated it. Doc. 39 at 30–32.

The parties also dispute the applicable law. McGriff asserts this claim under the

North Carolina Trade Secret Protection Act. See Doc. 2 at ¶¶ 94–103. Mr. Wilson

contends that Georgia law applies because the alleged misappropriation took place in

Georgia and that McGriff cannot sustain a claim brought under the North Carolina TSPA.

Doc. 39 at 29–30. McGriff has also moved to amend its complaint to assert a

misappropriation claim under Georgia’s relevant law. Doc. 33. Mr. Wilson contests the

motion. Doc. 41.

Nothing in the North Carolina statute limits its application to situations where the

party engaged in misappropriation is physically present in North Carolina.23 Mr. Wilson

points to no case that says a North Carolina business cannot use the North Carolina TSPA

to protect its work-related trade secrets, especially when there is evidence those trade

secrets were largely maintained electronically on computer servers in North Carolina.24

23 As noted in the Restatement of Conflicts of Law, § 6(b), when

faced with the question [of] whether the issue before it falls within the

intended range of application of a particular statute[, t]he court should give

a local statute the range of application intended by the legislature when

these intentions can be ascertained and can constitutionally be given effect

. . . When the statute is silent as to its range of application, the intentions of

the legislature on the subject can sometimes be ascertained by a process of

interpretation and construction. Provided that it is constitutional to do so,

the court will apply a local statute in the manner intended by the legislature

even when the local law of another state would be applicable under usual

choice-of-law principles.

See Restatement (Second) of Conflicts of Laws § 6(b) cmt. b; see generally, Sawyer v. Mkt. Am.,

Inc., 190 N.C. App. 791, 795–97, 661 S.E.2d 750, 753–54 (2008) (evaluating the range of

application for North Carolina’s Wage and Hour Act). A choice of law provision in a contract is

relevant to this discussion as well. See, e.g., Troublefield v AutoMoney, Inc., 284 N.C. App. 494,

506–07, 876 S.E.2d 790, 800–01 (2022).

24 Mr. Wilson cites Lloyd v. Carnation Co., 61 N.C. App. 381, 301 S.E.2d 414 (1983), for the

proposition that a North Carolina statute cannot be constitutionally applied in Georgia, Doc. 45

at 13, but that case is distinguishable. In that case, if the defendants did the acts supporting the

claim, “the acts were done entirely within the State of Virginia.” Lloyd, 61 N.C. App. at 387–88.

Here the alleged trade secrets were maintained in North Carolina, and the plaintiff had to access

them in North Carolina. Doc. 35-10 at ¶ 9.

The situation also differs from that in Sawyer, where a non-resident plaintiff who worked in

another state attempted to recover damages under North Carolina’s Wage and Hour Act. See 190

N.C. App. at 797. And the facts here differ from the facts in cases where courts have declined to

allow a party to pursue a claim because of a statute’s extraterritorial limitations. See, e.g.,

Poudel v. Mid Atl. Pros., Inc., No. 22-CV-1400, 2024 WL 3818135, at *4 (4th Cir. Aug. 15,

2024) (holding non-residents who did not work or live in Maryland could not pursue action for

violation by Maryland based company of Maryland’s labor and employment laws); Volvo Grp. N.

Am., LLC v. Roberts Truck Ctr., Ltd., No. 19-CV-2981, 2020 WL 1701686, at *6 (N.C. Super.

Apr. 8, 2020) (finding Kansas-based truck dealer could not rely on North Carolina statute

governing motor vehicle dealerships because the law cannot regulate dealer agreements solely

Mr. Wilson also agreed North Carolina law would apply to any issues arising out

of the performance of his contract. See Doc. 35-13 at p. 12 at ¶ 17. The contract

provides that for any confidential information that also meets the definition of a trade

secret under the applicable law, Mr. Wilson must “act in accordance with the terms of

applicable law governing trade secrets.” Id. at pp. 9–10 ¶ 11(a). On these facts, there is

nothing unfair or unreasonable about allowing McGriff to proceed under the North

Carolina statute, nor would such application extend the statute beyond its territorial reach.

Under North Carolina’s TSPA, a person misappropriates a trade secret by

acquiring, disclosing, or using the trade secret of another without express or implied

authority or consent. N.C. Gen. Stat. § 66-152(1). To establish misappropriation of a

trade secret, the plaintiff must show that the defendant “(1) knows or should have known

of the trade secret, and (2) has had a specific opportunity to acquire it for disclosure or

use or has acquired, disclosed or used it without the express or implied consent of the

owner.” Med. Staffing Network, Inc. v. Ridgway, 194 N.C. App. 649, 658, 670 S.E.2d

321, 328 (2009) (quoting N.C. Gen. Stat. § 66-155). Here, there are disputed questions of

material fact as to what information constitutes a trade secret, whether Mr. Wilson

acquired some of the information without consent, and whether he disclosed or used other

such information. A jury will need to decide. Summary judgment on Count VI:

Misappropriation of Trade Secrets, Doc. 2 at ¶¶ 94–103, will be denied for both parties.

governing sales made outside the state by dealers that do not do business and are not licensed in

North Carolina). McGriff is a North Carolina plaintiff pursuing a North Carolina cause of action

based partially on evidence that is stored in and accessed from the state.

McGriff’s motion to amend the complaint to add a claim under the Georgia Trade

Secret Protection Act, Doc. 33, will also be denied. The plaintiff did not seek to amend

its complaint until well after the deadline in the scheduling order, and it has not shown

good cause for the late amendment.

VIII. Unfair and Deceptive Trade Practices

McGriff and Mr. Wilson both move for summary judgment on McGriff’s unfair

and deceptive trade practices claim. See Doc. 2 at ¶¶ 104–110. Mr. Wilson contends that

Georgia law applies to this claim and thus McGriff cannot pursue the claim under a North

Carolina statute. Doc. 39 at 32. McGriff contends that North Carolina law applies, Doc.

42 at 30–31, and that on the merits it is entitled to summary judgment. Doc. 35 at 40–42.

For reasons already discussed in connection with McGriff’s claim for

misappropriation of trade secrets, see supra at 27–29, McGriff can also pursue a claim

under North Carolina’s Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-

1.1. McGriff is headquartered in North Carolina, maintains its bank accounts in North

Carolina, and has all its customer checks sent to North Carolina to be deposited in those

accounts. Doc. 35-10 at ¶ 4. McGriff’s Chapter 75 claim does not present issues of

extraterritorial application of a state statute. That is especially true here, where Mr.

Wilson agreed that North Carolina law would govern disputes over the performance of

his employment agreement, Doc. 35-13 at p. 12 ¶ 17, and McGriff felt any financial

injury from Mr. Wilson’s actions in North Carolina. See Piedmont Inst. of Pain Mgmt. v.

Staton Found., 157 N.C. App. 577, 589–90, 581 S.E.2d 68, 76 (2003) (stating an unfair

and deceptive trade practices claim requires plaintiff incur actual damages).

Although McGriff can pursue this claim, summary judgment is not warranted for

either party. For a Chapter 75 claim, a plaintiff must show: “(1) an unfair or deceptive act

or practice by the defendant, (2) in or affecting commerce, (3) which proximately caused

actual injury to the plaintiff.” Heron Bay Acquisition, LLC v. United Metal Finishing,

Inc., 245 N.C. App. 378, 382, 781 S.E.2d 889, 892 (2016) (cleaned up).

Mr. Wilson did not comply with his employment contract, but a breach of contract,

even if intentional, is not enough to find a defendant engaged in an unfair and deceptive

trade practice. Johnson v. Colonial Life & Accident Ins. Co., 173 N.C. App. 365, 370,

618 S.E.2d 867, 871 (2005). However, a breach of contract may give rise to an unfair

and deceptive trade practice when accompanied by egregious or aggravated

circumstances. See Garlock v. Henson, 112 N.C. App. 243, 245–46, 435 S.E.2d 114,

115–16 (1993). For example, “a breach of fiduciary duty amounts to constructive fraud,”

Compton v. Kirby, 157 N.C. App. 1, 16, 577 S.E.2d 905, 914 (2003), and fraud is usually

sufficient to support a conclusion that an action was unfair or deceptive as is a violation

of the TSPA. See Turpin v. Charlotte Latin Schs., Inc., 900 S.E.2d 352, 366 (N.C. App.

2024) (discussing fraud); Ridgway, 194 N.C. App. at 659 (discussing TSPA).

While there is substantial evidence of aggravating facts, it is the better practice to

resolve the claim at trial, given the disputed questions identified herein. Summary

judgment as to Count VII: Unfair and Deceptive Trade Practices, Doc. 2 at ¶¶ 104–110,

will be denied.

IX. Conclusion

Summary judgment will be granted for Mr. Wilson on McGriff’s conversion claim.

Summary judgment on the breach of contract claims will be granted in part for McGriff,

as the evidence viewed in the light most favorable to Mr. Wilson shows that he breached

his employment contract by sharing confidential customer lists and information with

Sanford employees and by recruiting certain McGriff employees and customers to leave

McGriff and move to Sanford. As to all other claims, there are disputed questions of

material fact and summary judgment will be denied.

The motion to amend will be denied. McGriff filed this motion well after the

deadline set in the scheduling order and well after learning of any new facts relevant to

the motion. McGriff has not shown good cause.

It is ORDERED that:

1. The plaintiff’s motion to amend the complaint, Doc. 33, is DENIED.

2. The plaintiff’s motion for partial summary judgment, Doc. 34, is

GRANTED in part:

a. The plaintiff is entitled to summary judgment on Count I: Breach of

Contract – Solicitation of Customers, Doc. 2 at ¶¶ 57–65, as to

breach for all identified customers except MS Corporation, Sunbelt

Environmental Services, and Mission Healthcare; as to these three

customers and any other customers not identified specifically

herein, summary judgment is denied.

b. The plaintiff is entitled to summary judgment on Count II: Breach

of Contract — Solicitation of Employees, Doc. 2 at {| 66—76, as to

breach arising from the defendant’s solicitation of Carson Schilling,

Jim Wilson, Josh James, Jimmy Hinson, Katrina Sidlauskas, Carrie

McKinney, Tom Flythe, Debbie Wallace, and Jessica Foskey; as to

any other employees not identified specifically herein, summary

judgment is denied.

c. The plaintiff is entitled to summary judgment on Count III: Breach

of Contract — Confidentiality, Doc. 2 at 77-83, to the extent that

the defendant shared confidential customer information through text

messages, handwritten lists, and his Sanford office whiteboards; as

to any other alleged breach of the confidentiality provision,

summary judgment is denied.

d. The plaintiff’s motion is otherwise DENIED.

3. The defendant’s motion for summary judgment, Doc. 38, is GRANTED in

part:

a. The defendant is entitled to summary judgment on Count V:

Conversion, Doc. 2 at Jf 89-93.

b. The motion is otherwise DENIED.

This the 10th day of January, 2025.

bk

33

UNITED STATES DISTRICT JUDGE