FONDA - Hill & Markes is suing one of its former salesmen and his new company in a case one attorney says could could hinge on how a jury interprets an expired contract with a non-compete clause.
The wholesale supply company based in the town of Florida filed the lawsuit in state Supreme Court in Fonda on Nov. 18 against John Allchin and Acker-Pak, a similar company based in Rochester.
The 15-page complaint claims Allchin stole documents containing confidential information, including contact information, pricing and order histories, for at least 58 customers when he left the company.
It seeks a restraining order barring the defendants using the information that allegedly was stolen, $500,000 in punitive damages for several causes of action, compensatory damages equal to Allchin's compensation and benefits, and a forensic analysis of Allchin and Acker-Pak's computers, phones and tablets.
State Supreme Court Justice Joseph M. Sise will hear arguments on the restraining order Monday, according to the state's court calendar.
The company's attorney, Christian Soller of Albany-based Hodgson Russ, was not in the office Tuesday and did not return a phone call or email seeking comment Wednesday.
As a salesman, Allchin was required to sign a three-year employment agreement, which includes clauses that forbid employees from working in a similar field within a 500-mile radius of the company, according to the lawsuit.
Allchin began with Hill & Markes in September 2010, and his last day was Oct. 28, the lawsuit said. Rochester attorney Glenn E. Pezzulo, who represents Allchin and Acker-Pak, said Allchin's contract had expired Sept. 1.
Because the contract had expired, Pezzulo said, Allchin did not need to abide by non-disclosure and non-competition terms, including a clause that says a "non-complete period shall be extended for a period of two years" if an employee is fired or doesn't leave for a "good reason."
"His employment contract ended and they chose not to renew it, so he went and got another job," Pezzulo said. "New York courts are loathe to enforce covenants to not work in your desired profession."
Hill & Markes says in the lawsuit it experienced a "precipitous drop" in profits after Allchin's departure.
Pezzulo noted that Allchin's first day with Acker-Pak was Nov. 4, two weeks before the lawsuit was filed. Pezzulo also said Hill & Markes' characterization of the "stolen" property is exaggerated, suggesting the confidential material isn't anything that couldn't be found in a phone book.
"There is nothing confidential or of a proprietary nature that Mr. Allchin learned while at Hill & Markes," Pezzulo said. "There is nothing confidential about a customer list. You can assume other companies are calling on Hill & Markes customers."