On appeal from Superior Court of New Jersey, Chancery Division, Morris County, No. C-38-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Grall.
Defendants appeal from a trial court order enforcing a settlement agreement and directing them to sign a form of the agreement appended to the order. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiff American Federal Mortgage Corp. ("American") is in the business of providing residential mortgages, home equity loans and related products. Individual defendants John C. Rooney ("Rooney"), Michael M. Bogner ("Bogner"), Peter Calautti ("Calautti"), Frank Cuccaro ("Cuccaro") and Glen R. Meyers ("Meyers") are all former employees of American. When Rooney and Bogner left American, they organized defendant Residential Home Mortgage Corporation ("Residential"), which engages in the same business.
In the course of conducting its business, American organized and maintained various lists. Those pertinent to this litigation are the "Closed Loan List", which listed all of its existing customers who had either obtained or requested American products or services; the "Logged in Loans" list, which listed individuals who were not existing customers of American but who had expressed interest in the past in American's products; and the "Customer Lead List", which listed contact information of individuals to be contacted to solicit business to expand its customer base. American also maintained a separate file, "Legal Reviews" to ensure its compliance with various legal and regulatory requirements. The individual defendants had access to these documents during their employment at American, which contended that all of the documents contained confidential proprietary information.
At some point after Residential commenced doing business, American became convinced that the individual defendants were using the confidential information recorded on these lists to enhance Residential's business opportunities. It filed suit in March 2006, seeking to restrain defendants from using the contents of these lists and for damages. Plaintiff did not allege in its complaint that any of the individual defendants had signed any written confidentiality agreements while in plaintiff's employ; rather, it relied upon their common law duty of loyalty to an employer.
After defendants filed their answer and counterclaim, in which they alleged that American was improperly trying to solicit defendants' customers, the parties engaged in extensive efforts to settle the litigation, assisted by two retired members of the judiciary. Those efforts had not led to a complete resolution by the time the trial date, December 8, 2008, arrived.
The parties and their attorneys appeared on December 8, apparently ready to proceed to try the case on its merits. Before the trial actually commenced, however, the attorneys advised the trial court that their clients had come to a resolution of their dispute and they placed the terms of that resolution on the record. Plaintiff's counsel told the court that "subject to editorial changing and language changes we have to work out" the agreement called for defendants to pay the sum of $515,000 and that "defendants are all representing as part of that agreement that they will not solicit, close with, or refer any clients from the 2005 American Federal Mortgage close loan list in anyway shape or form permanently." He explained to the trial court that the agreement contained the following exception:
There will be an exception, Judge, for the list being protected and prohibited from any use by the defendants. We are going to work on a specific list that we are going to attach to the settlement agreement. The defendants are going to go through the list. They are going to provide me with a highlighted version of what they believe to be their friends, family, and referral of friends and family that they believe would be excluded from protection of this agreement. I will review it with my clients, and I will prepare an exhibit to the settlement agreement which everyone agrees are individuals that the defendants shall not be in violation of the agreement if they should end up working with them on future closings.
That is the sum and substance of the agreement, Judge. There are other issues we have to work out, but that is the essential term of the agreement.
Defendants' attorney clarified two terms with respect to the payment of the $515,000 but otherwise concurred with the recitation of plaintiff's counsel. Both attorneys agreed they saw no need to question their respective clients about their understanding of the scope and effect of the terms announced by their attorneys.
Unfortunately, the attorneys found it easier to advise the trial court that the matter was settled than to reduce the terms of the settlement to a document that all parties agreed upon. Two major sticking points developed: (1) the interpretation of who was included in the exception for friends, family and referral of friends and family and (2) the reference in the transcript to a permanent ...