PITTSBURGH – A Western Pennsylvania media company has settled claims that one of its former on-air personalities accepted a job with a competitor in the same market, thus violating the no-compete terms of an employment agreement she signed seven years ago.
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.”
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.
“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.”
Counsel for both defendants each separately filed answers to the complaint along with new matter on July 19, denying Forever Media’s lawsuit in its entirety and charging in its affirmative defenses that the suit is barred for a variety of rationales.
“Plaintiff’s claims are barred by the doctrine of waiver and/or estoppel, by the doctrine of consent, by the statute of limitations and by the defense of accord and satisfaction,” Hink’s answer stated.
WPNT’s answer espoused similar defenses against Forever Media.
“The complaint, including each count and claim against WPNT contained therein, fails to state a claim upon which relief can be granted. Plaintiff’s claims against WPNT are barred because the agreement at issue is not supported by adequate consideration, by plaintiff’s waiver of the non-competition provisions in Paragraph 3 of the employment agreement at issue, because the non-competition provision at issue is overbroad and unenforceable and are barred by the doctrine of consent,” the station’s answer read.
“Plaintiff’s claims against WPNT are barred, in whole or in part, by laches, equitable estoppel, waiver, release, discharge, or other related equitable doctrines, because the non-competition provisions in Paragraph 3 of the employment agreement at issue are unenforceable, by the doctrine of unclean hands and because plaintiff has suffered no damages as a result of WPNT’s actions,” the station’s answer read.
UPDATE
On Sept. 27, counsel for the plaintiff announced that the case had been settled, through a praecipe to discontinue the action. Terms of the settlement were not disclosed.
“Plaintiff Forever Media, Inc., by its undersigned counsel, and pursuant to Pennsylvania Rule of Civil Procedure 229, respectfully requests that this action be discontinued. Forever Media filed its complaint on June 4, 2021, and has authority under Pennsylvania law to discontinue this action,” the praecipe read.
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 was represented by Holly S. Planinsic of Herndon Morton Herndon & Yaeger, in Wheeling, W. Va.
The defendants were represented by Molly E. Meacham and Edward D. Phillips of Babst Calland Clements & Zomnir, plus Nikki Velisaris Lykos of Johnston Lykos, all in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-006269
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com