Keating v. Equisoft, Inc., CIVIL ACTION NO. 11-0518

DANIEL KEATING, Plaintiff, v. EQUISOFT, INC., et al. Defendants.

CIVIL ACTION NO. 11-0518

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

August 21, 2014

MEMORANDUM

PRATTER, J.

I. FACTUAL BACKGROUND¹

Daniel Keating, a resident of New York, is a management consultant and software expert, and principal of The Keating Consulting Group, Inc. Mr. Keating previously worked for Oracle, and thus has experience with Oracle's Insurance Policy Administration System (IPAS), a software enterprise suite product used by insurance companies that supports policy issuance, processing, billing, collections, and claims.

After Mr. Keating was terminated from his employment at Oracle, Defendant EquiSoft Inc. ("EquiSoft") hired Mr. Keating in November 2009. EquiSoft is a Canadian enterprise software integration firm. EquiSoft's life insurance division, which is located in Ambler, Pennsylvania, provides the integration and installation of IPAS for the life insurance industry. Specifically, Mr. Keating was hired to use his contacts as a former employee of Oracle to hire other Oracle employees to help EquiSoft build and staff its IPAS department.

On November 24, 2009, Mr. Keating entered into a contract with EquiSoft for consulting services for a term of 90 days, terminable by either party at any time, with 30 days written notice. While the consulting agreement was for a short term, Mr. Keating discussed with EquiSoft's top management the possibility of his continuing as an EquiSoft employee at the end of the consulting agreement. Mr. Keating also signed EquiSoft's standard Non-Solicitation Agreement, Confidentiality Agreement, and Intellectual Property Agreement. In the Non-Solicitation Agreement, Mr. Keating promised, until one year after the end of his engagement with EquiSoft, "not to solicit the customers of the company, other than in the execution of his/her functions on behalf of the company." Defs.' Motion for Summary Judgment ("MSJ") Ex. 4. Additionally, these Agreements provide that they "shall be interpreted in accordance and governed in all respects by the laws of the Commonwealth of Pennsylvania." Id.

In late November, shortly after Mr. Keating began working for EquiSoft, he was contacted by IHS Professional Services, Inc., a headhunting firm, about a senior level position it was seeking to fill for an unidentified client. After sending his resume to IHS, Mr. Keating learned that the position was with Capgemini Financial Services USA, Inc. ("Capgemini"). Capgemini is a large management consulting and IT service firm, with over 100,000 employees in 36 countries. Capgemini was one of EquiSoft's life insurance division's largest clients, and it frequently subcontracted with EquiSoft to perform IPAS related work. One of the main roles of the position at Capgemini that Mr. Keating was interviewed for was to grow their internal IPAS practice. During the same time period Mr. Keating was interviewing with Capgemini, Capgemini and EquiSoft were negotiating for Capgemini's potential acquisition of EquiSoft.

After a hiring process that involved multiple interviews, Mr. Keating was offered a permanent position at Capgemini. Mr. Keating entered into an at will employment agreementwith Capgemini on January 14, 2010, to be Capgemini's global practice manager for its IPAS practice. Mr. Keating was to work out of his home office in New York and whatever various locations they needed him to see clients, meet with co-workers, and attend meetings.

On January 15, 2010, at EquiSoft's Pennsylvania office, Mr. Keating informed Mr. McCahill that he had accepted a job at Capgemini. According to Mr. Keating, this meeting was cordial. However, subsequent to their meeting, Bill O'Donnell, EquiSoft's then General Manger for the Philadelphia operations, and EquiSoft's Vice President, Steve Michaud, reviewed copies of the contracts Mr. Keating had signed upon starting his employment with EquiSoft. Additionally, Mr. O'Donnell and Mr. Michaud reviewed agreements they had made with Capgemini. These "Contractor Agreements" provided that "each party and its Affiliates agree not to offer employment to or hire any individual who, to the knowledge of the hiring party as of the date of such offer or employment, is then a technical, sales or managerial employee of the other party or its affiliates, without the prior written consent of such other party." MSJ Ex. 4. That same day, Mr. O'Donnell called Capgemini's Global Practice Head Kenneth Coppins and stated that they were upset that Capgemini had hired Mr. Keating and that they believed it violated the Contractor Agreement. Nevertheless, Mr. Keating began working for Capgemini on January 21, 2010.

On January 26, 2010, EquiSoft and Capgemini management held a meeting in Illinois to discuss the relationship between the two companies. The meeting included Mr. McCahill and Mr. Romero of EquiSoft, and from Capgemini, Global Practice Head Kenneth Coppins, Vice President John Barr, and Insurance Vice President Jack Dugan. At some point during this meeting, Mr. McCahill and Mr. Romero conveyed to the Capgemini employees that they were upset that Capgemini had hired Mr. Keating. Mr. Keating also alleges that during this meetingMr. McCahill and Mr. Romero attacked his character and reputation, accused Mr. Keating of stealing EquiSoft candidates, and claiming Mr. Keating was unqualified for his new position at Capgemini. Defendants deny that they made any of these statements. In addition, Mr. Keating alleges that Mr. Romero told Capgemini that if they did not terminate Mr. Keating, EquiSoft would discontinue its business relationship with Capgemini.

On February 8, 2010, EquiSoft's counsel sent Mr. Keating, with copies to Mr. Barr and Mr. Coppins, a letter stating that Mr. Keating's acceptance of a position with Capgemini was in breach of his contractual obligations. EquiSoft also sent a similar letter to Mr. Coppins and Mr. Barr stating that Capgemini's hiring of Mr. Keating violated Capgemini's Contractor Agreements with EquiSoft.

On February 16, 2010, Capgemini terminated Mr. Keating's employment. Essentially Capgemini, and Mr. Coppins specifically, terminated Mr. Keating because he believed his hiring would harm Capgemini's relationship with EquiSoft.

Thus, Mr. Keating brought claims for tortious interference with contractual relations (Count I); tortious interference with prospective economic advantage (Count II); defamation/slander (Count III); defamation/libel (Count IV); prima facie tort (Count V); and intentional infliction of emotional distress (Count VI)².

II. LEGAL STANDARD

Upon motion of a party, summary judgment is appropriate 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). A party moving for summary judgment has the initial burden of supporting its motion by reference to admissible evidence showing the absence of agenuine dispute of a material fact or showing that there is insufficient admissible evidence to support the fact. Id. 56(c). Once this burden has been met, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

Summary judgment should be granted only if the moving party persuades the district court that "there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir.1988). A fact is "material" if it could affect the outcome of the suit, given the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is "genuine" if the evidence presented "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

In evaluating a summary judgment motion, a court "must view the facts in the light most favorable to the non-moving party," and make every reasonable inference in that party's favor. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). The court must not weigh the evidence or make credibility determinations. Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). Nevertheless, the party opposing summary judgment must support each essential element of his or her opposition with concrete evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Of course, the court may grant summary judgment if the plaintiff's version of the facts, as a matter of law, does not entitle her to relief: "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial."Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

III. DISCUSSION

A. Mr. Keating's Slander Claim

Mr. Keating alleges that Defendants Mr. McCahill and Mr. Romero are liable for slander based on statements they made about Mr. Keating to Capgemini employees. The parties have not asserted any conflict between the laws of Pennsylvania and New York for a claim for slander and the Court does not find one. Thus, because no real conflict exists between the laws of Pennsylvania and New York, a choice of law analysis is unnecessary. Hammersmith v. TIG Ins. Co., 480 F.3d 230, 231 (3d Cir. 2007). "In turn, as a district court sitting in diversity, we may 'refer interchangeably to the laws of the states whose laws potentially apply,' or rely solely on forum law." Estate of O'Loughlin ex rel. O'Loughlin v. Hunger, No. 07-1860, 2009 WL 1084198, *3 (E.D. Pa. Apr. 21, 2009) (quoting Huber v. Taylor, 469 F.3d 67, 74 (3d Cir. 200...