PITTSBURGH – A Western Pennsylvania media company which claimed one of its former on-air personalities accepted a job with a competitor in the same market and violated the no-compete terms of an employment agreement she signed nearly seven years ago, is now seeking a preliminary injunction to stop further violations.
Forever Media, Inc. of Hollidaysburg first filed suit in the Allegheny County Court of Common Pleas on June 4 versus Erika Hink of New Castle and WPNT, LLC (doing business as “Steel City Media”), of Pittsburgh.
Forever Media explained that it operates AM and FM commercial radio stations, websites, social media applications, and print marketing throughout the Commonwealth and surrounding states.
“In order to protect its listener and client relationships and goodwill and to safeguard the value and secrecy of the business information it has developed, Forever Media reasonably requires its employees, as a condition of initial hire to sign employment contracts designed to protect its substantial and continuing investment in its client relationships, as well as to govern the conduct, rights, and obligations extended to and expected of its employees and to safeguard its proprietary information,” the suit said.
“More specifically, plaintiff requires on-air talent such as defendant Hink, to covenant and agree to certain reasonable restrictions against engaging in competing employment and prohibiting the disclosure of Forever Media’s proprietary information. Such contractual covenants ate standard in the radio, companion media and entertainment industries because, like Forever Media, other companies share the vital interest in protecting their own listener, viewer and/or client relationships, goodwill, and proprietary information.”
Hink was signed by the plaintiff in October 2014 under an “at-will” employment agreement under the above terms and performed under the stage name “Ali Gator” on the company’s Froggy 104.3 FM radio station.
Hink resigned from the company on April 16.
“Prior to her resignation, defendant Hink advised three separate members of Forever Media management of her desire to take on a new position within the area encompassed by her non-compete. She was informed on several occasions about the terms of her non-compete and that she would unequivocally violate the terms of her non-compete by accepting certain positions, including an on-air position with another station, within the protected area,” the suit stated.
“Forever Media soon learned that defendant Hink accepted employment with Steel City, a company with operations, studio locations, offices, and transmitter sites well within the area encompassed by the covenant not to compete in the employment agreement.”
According to the plaintiff, Hink’s employment with her co-defendant violates the terms of the employment agreement she signed with it.
“Since commencing employment with Steel City, defendant Hink has been promoting herself as a new on-air talent for Steel City and has been performing on the air daily for Steel City station Q92.9 as ‘Erika Jay’, which is a direct violation of the covenant not to compete in the employment agreement,” the suit said.
“During her conversation with Forever Media management, defendant Hink stated that she believed she would not be violating the employment agreement by performing on-air for a radio station utilizing a different format and by performing during a different part of the day. She was informed that none of that mattered if she planned on accepting a position with a competitive business in the protected area.”
The plaintiff contended that the damages it suffered are ongoing, as they say Steel City knew Hink was bound by a no-compete agreement when they hired her, that Hink has refused to resign from Steel City and continues to use its proprietary information to the plaintiff’s detriment.
“Despite being put on notice as early as May 7, 2021, as of the date of this complaint, defendant Hink continues to openly and brazenly defy the terms of her agreement and Steel City continues to enable this breach and to interfere in the contractual obligations owed by defendant Hink to Forever Media,” per the suit.
“Because Steel City is aware of defendant Hink’s restrictive covenants and has failed to take any action to restrict of otherwise prohibit defendant Hink’s employment, Steel City is purposefully and tortiously interfering with the contractual obligations between Hink and Forever Media.”
UPDATE
Through its counsel, Forever Media filed a preliminary injunction on July 2, seeking to stop further alleged violations of the no-compete agreement by the defendants for a period of at least six months.
“Forever Media has legitimate business interests deserving of protection and no adequate remedy at law to restrain Hink from violating the terms of her employment agreement which has caused and will continue to cause harm to these interests. Consequently, Forever Media will suffer irreparable injury if the injunction does not issue. An injury is regarded as ‘irreparable’ if it will cause damage that can only be estimated by conjecture and not by an accurate pecuniary standard,” according to the injunction.
“Pennsylvania courts have held that ‘the impending loss of business opportunities or market advantages may aptly be characterized as ‘irreparable injury.’ At this time, Hink has been on the air on a daily basis for a direct competitor of Forever Media in clear violation of her contract. Neither Hink nor Steel City have taken any steps to address the violation nor has Steel City advanced contradictory statements regarding the circumstances surrounding its employment of Hink.”
Forever Media avails that it will prevail on the merits of its injunction and that it is necessary to protect its own business interests.
“With knowledge that the taking of a position with Steel City would violate the Employment Agreement and the restrictive covenants contained therein, which Forever Media has demonstrated are enforceable, Hink willingly and knowingly breached the Employment Agreement and the only way to prevent further damage to Forever Media and Forever Media’s rights under the Employment Agreement is through the issuance of an injunction. The preliminary injunction Forever Media seeks is reasonably suited to abate the offending activity,” the motion for injunction states.
For counts of declaratory relief, preliminary injunction, breach of contract, tortious interference with contractual relationship, the plaintiff is seeking said injunctive relief, compensatory damages, pre-judgment and post-judgment interest, discretionary costs, including attorney’s fees, punitive damages and other such relief as this Court deems just and proper.
The plaintiff is represented by Holly S. Planinsic of Herndon Morton Herndon & Yaeger, in Wheeling, W. Va.
The defendants have not yet secured legal counsel.
Allegheny County Court of Common Pleas case GD-21-006269
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com