Caliber Home Loans Inc v. CrossCountry Mortgage LLC

The Honorable Richard A. Jones [7] 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT SEATTLE [10] CALIBER HOME LOANS, INC., [11] CASE NO. 2:22-cv-00616-RAJ 12 Plaintiff, v. [13] ORDER 14 CROSSCOUNTRY MORTGAGE, LLC, 15 Defendant. [18] This matter comes before the Court on Defendant CrossCountry’s motion to [19] dismiss Plaintiff’s complaint. Dkt. # 12. Having considered the submissions of the [20] parties, the relevant portions of the record, and the applicable law, the Court finds that [21] oral argument is unnecessary. For the reasons below, Defendant’s motion to dismiss is [22] GRANTED in part and DENIED in part. [1] I. BACKGROUND [2] Plaintiff Caliber Home Loans, Inc. (“Plaintiff” or “Caliber”) is a Texas-based [3] mortgage brokerage firm. Dkt. # 1 (Complaint) ¶ 5. Plaintiff employs loan originators [4] around the country to sell residential mortgage services to borrowers. Id. ¶ 6. Defendant [5] CrossCountry, LLC (“Defendant” or “CrossCountry”) is an Ohio-based retail mortgage [6] lender and a competitor of Plaintiff. Id. ¶¶ 7-8. [7] Plaintiff alleges that, in an unusually short period of time, Defendant hired over 80 [8] employees from Plaintiff who worked in various offices in cities in Washington, Oregon, [9] Texas, Florida, Tennessee, and California. Id. ¶ 13. These individuals had been employed [10] as Branch Managers, Sales Managers, Loan Consultants, and Support Staff for Caliber. [11] Id. Plaintiff also alleges that several more employees plan to depart Caliber to join Cross [12] Country. Id. ¶ 14. [13] Specifically, Plaintiff alleges that CrossCountry put into action a “Master Plan” to [14] raid Plaintiff’s employees and confidential information. Defendant is alleged to have [15] started off their plan by hiring Texas-based Sales Managers Jeannie Martin-Smith and [16] Kathleen Hays early 2021. Id. ¶ 20. From there, Defendant hired eight more Caliber [17] employees before the close of 2021, seven of whom were based in Washington. Id. ¶¶ 2118 22. [19] Plaintiffs allege that the “Master Plan” was explained in a December 3, 2021 email [20] sent from Mark Everts’s1 personal email address (evertsmark@gmail.com) to his work [21] email address (mark.everts@caliberhomeloans.com). In the email, Everts wrote of [22] potentially moving from Caliber to CrossCountry, staffing his new office with “at least 4 [23] to 8 top producers,” and grooming other high-producing employees for future [24] management roles. Id. ¶ 25, Ex. A (Everts Email). He specifically identified Caliber [25] 26 1 At the time, Mark Everts was a Seattle Branch/Sales Manager. [1] employees Hans Illingworth and Michelle Muqtadir as “connections.” Id. As to Muqtadir, [2] Everts explained that she was reluctant to leave her job, but noted that she was “loyal to [3] [Everts] and would for sure jump if she knew [Everts] was on board.” Id. Everts appeared [4] to be directing his thoughts toward someone named Scott, writing that he was “[t]alking [5] turkey with you here Scott.” Id. Everts then asked Scott to keep the information that [6] followed confidential. Id. Everts noted that he had sufficient funds saved for retirement, [7] but was “excited” about this new opportunity. Id. Essentially, Everts indicated that an [8] offer to join CrossCountry would have to be lucrative enough to be worth the “rig-a-ma9 roll” of leaving Caliber and “uprooting [his] team and going elsewhere.” Id. He ended the [10] email saying, “I hope that will give you enough and I see by my clock that it is just 5 min. [11] before 5 your time :)” Id. [12] Plaintiff alleges that this email was sent from Everts to CrossCountry’s Executive [13] Vice President Scott Foreman. Id. ¶ 24. Plaintiff characterizes the Everts email as the [14] “Master Plan” that set into motion CrossCountry’s raid of nearly 80 Caliber employees. [15] Id.¶ 25 Defendant, on the other hand, characterizes this email as Everts “record[ing] his [16] thoughts about leaving Caliber to join Cross Country,” and objects to Plaintiff’s [17] allegation that this email was sent from Everts to Foreman, despite sentences being [18] addressed to “Scott” and despite Everts acknowledging that the email was sent 5 minutes [19] before what would have been 5:00 p.m. in Foreman’s office in New Jersey. Dkt. # 12 at [20] 3. [21] Just 13 days later on December 16, 2021, CrossCountry extended to Everts a [22] confidential offer of employment as a Branch Manager with a $1,000,000 sign-on bonus [23] and a potential $500,000 loan volume bonus. Id. ¶ 27, Ex. B (CrossCountry Offer Letter). [24] Plaintiff alleges that Everts signed the offer letter on December 19, 2021, although he [25] continued working at Caliber for three more weeks. Id. ¶¶ 28, 30. Plaintiff alleges that, [1] during this time period, Everts misappropriated Plaintiff’s confidential info in the form of [2] extensive amounts of borrower information, to then be used at CrossCountry. Id. ¶ 31. On [3] January 11, 2022, one day after he resigned from Caliber, Everts emailed Caliber Loan [4] Officer Danny To with an offer to leave Caliber and join CrossCountry, and referenced a [5] $400,000 sign on bonus. Id. ¶ 34. [6] On January 7, 2022 Hans Illingworth (previously identified by Everts as someone [7] who would consider jumping to CrossCountry) left his employment with Plaintiff to join [8] CrossCountry as a Regional Manager. Id. ¶ 32. On January 10, 2022, Everts and several [9] other employees (including Michelle Muqtadir) left Caliber and officially joined [10] CrossCountry. Id. ¶ 33. More Caliber resignations followed. In February 2022, ten [11] individuals left Caliber to join CrossCountry, and in March-April 2022, fifteen more [12] employees did the same. Id. ¶ 35. Additionally, 40 support staff employees resigned from [13] Caliber. Id. ¶ 36. The parties refer to the various employees that left Caliber for [14] CrossCountry during the time period at issue as the “Departing Employees.” See [15] generally Dkt. # 1; see also Dkt. # 12 at 13. [16] The complaint alleges that many of the above-mentioned Departed Employees [17] sent to their personal email addresses confidential documents detailing customer interest [18] rates, FICO scores, income, home appraisal values, and other information at around the [19] same time that they left Caliber for CrossCountry. See Dkt. # 1 ¶ 76. The complaint [20] describes in detail how Mark Everts, Mason Buckles, Casey Granston, Hans Illingworth, [21] Lori Johanson, Timothy Lauch, Ryan Mallory, Michelle Muqtadir, and Melissa Medved [22] sent messages from their Caliber email accounts to their personal email accounts that [23] included documents containing customer and loan information. Id. ¶ 76(a)-(i). For [24] example, on December 21, 2021, Lauch sent several spreadsheets of lists of agents, [25] “prospects,” “leads,” “preapprovals,” and a client list that included customer contact [1] information and loan information for 400 individuals to his personal email account. Id. ¶ [2] 76(f)(i). A few days later, on December 23, he emailed to himself a zip file with 72 [3] spreadsheets. Each included detailed loan information for various customers, such as the [4] loan amount, down payment, sales price, monthly payment, and property taxes. Id. ¶ [5] 76(f)(ii). Five days later, Lauch sent to himself a “pipeline” spreadsheet with information [6] concerning 150 customers. Id. ¶ 76(f)(iii). And just over a week later, on January 6, 2022 [7] (four days before he resigned from Caliber), Lauch sent himself a zip file with numerous [8] spreadsheets with detailed loan and mortgage information for 75 customers. Id. ¶ [9] 76(f)(iv). [10] Plaintiff states that Caliber generally requires sales employees to execute [11] restrictive covenant agreements in favor of Caliber that prohibit employees from: (1) [12] soliciting Caliber employees to end their employment; (2) removing loans in process at [13] Caliber; and (3) retaining, using, or disclosing Caliber’s confidential business [14] information. Id. ¶ 38. Plaintiff alleges that on January 11, 2022, Plaintiff sent a demand [15] letter to Everts regarding his “restrictive covenants and Caliber’s concerns about his [16] misconduct.” Id. ¶ 61. On January 18, Defendant responded to the letter, denying any [17] wrongdoing or that Evert diverted loans or recruited Caliber employees to join [18] CrossCountry. Id. ¶¶ 62-63. [19] In January 2022, Plaintiff sued Everts in King County Superior Court, and the [20] action resulted in a Stipulated Injunction. Id. ¶ 65. As employees continued to leave [21] Caliber in 2022, Plaintiff sent cease and desist letters demanding the return of [22] confidential information to several former employees, copying Defendant on each. Id. ¶¶ [23] 66-67. Plaintiff alleges that none of the former employees responded and that Defendant [24] responded in March 2022 by stating that CrossCountry did not have enough information [25] to “adequately investigate.” Id. ¶¶ 68-69. [1] Plaintiff filed a complaint in this Court on May 6, 2022, alleging unfair [2] competition, misappropriation of trade secrets, conversion of confidential and proprietary [3] information, tortious interference with contract, tortious inducement to breach fiduciary [4] duty of loyalty, tortious interference with advantageous business relationships, and civil [5] conspiracy. See Dkt. # 1 ¶ 91-156. Plaintiff seeks compensatory damages in excess of [6] $5,000,000, attorney’s fees and costs, statutory damages under the Defend Trade Secrets [7] Act, pre-judgment interest, and any other relief that the Court deems appropriate. Id. at [8] 45. Defendant moved to dismiss the complaint in its entirety for failure to state a claim [9] under Rule 12(b)(6). See Dkt. # 12. Plaintiff filed a response in opposition to Defendant’s [10] motion, Dkt. # 13, and Plaintiff filed a reply in support of dismissal. Dkt. # 14. [11] II. LEGAL STANDARD [12] Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint [13] for failure to state a claim. Fed. R. Civ. P. 12(b)(6). The court must assume the truth of [14] the complaint’s factual allegations and credit all reasonable inferences arising from those [15] allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not [16] accept as true conclusory allegations that are contradicted by documents referred to in the [17] complaint.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. [18] 2008). Instead, the plaintiff must point to factual allegations that “state a claim to relief [19] that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the [20] plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts consistent [21] with the allegations in the complaint” that would entitle the plaintiff to relief. Twombly, [22] 550 U.S. at 563 ; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). [23] On a motion to dismiss, a court typically considers only the contents of the [24] complaint. However, a court is permitted to take judicial notice of facts that are [25] incorporated by reference in the complaint. United States v. Ritchie, 342 F.3d 903 , 908 [1] (9th Cir. 2003) (“A court may . . . consider certain materials documents attached to the [2] complaint, documents incorporated by reference in the complaint”); Mir v. Little Co. of [3] Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“[I]t is proper for the district court to [4] ‘take judicial notice of matters of public record outside the pleadings’ and consider them [5] for purposes of the motion to dismiss’”). With these principles in mind, the Court turns to [6] the instant motion. [7] III. DISCUSSION [8] a.) Unfair Competition [9] Both parties agree that Plaintiff brings its first cause of action under Washington’s [10] Unfair Business Practices Act, RCW 19.86.020. Dkt. # 12 at 6; Dkt. # 13 at 8. To [11] establish a claim under the Unfair Business Practices Act, the plaintiff must allege: (1) an [12] unfair or deceptive act or practice; (2) that occurred in trade or commerce; (3) impacting [13] the public interest; (4) injury to the plaintiff’s business or property; and (5) causation. [14] Panang v. Farmers Ins. Co. of Wash., 204 P.3d 885, 889 (Wash. 2009) (citing Hangman [15] Ridge Trainings Stables, Inc. v. Safeco Title Ins. Co., 719 P.2d 531, 533 (Wash. 1986)). [16] “The first two elements may be established by a showing that (1) an act or practice which [17] has a capacity to deceive a substantial portion of the public (2) has occurred in the [18] conduct of any trade or commerce.” Evergreen Moneysource Mortgage Co. v. Shannon, [19] 274 P.3d 375, 384 (Wash. 2012) (citing Hangman Ridge, 719 P.2d at 785-86 ). [20] Defendant argues that the complaint fails to allege any specific deception or [21] deceptive actions undertaken by CrossCountry, and that the only deceptive act that the [22] complaint alleges—an unauthorized credit pull by a Departed Employee—is inadequate, [23] because there is no way that a single unauthorized credit pull can deceive a substantial [24] portion of the public. Dkt. # 12 at 7. Plaintiff counters that there is a “high likelihood that [25] additional plaintiffs have been or will be injured in exactly the same fashion,” bringing [1] this case within the realm of public interest. Dkt. # 13 at 10 (citing Evergreen, 247 P.3d 2 at 385 ). [3] However, “conduct that is not directed at the public, but, rather, at a competitor, [4] lacks the capacity to impact the public in general.” Evergreen, 247 P.3d at 385 . Plaintiff [5] alleges that Defendant took specific actions against Caliber in what Plaintiff describes as [6] a meticulously planned raid of Caliber’s employees and business interests pursuant to a [7] “Master Plan.” Dkt. # 1 ¶ 2; Dkt. # 13 at 4. Plaintiff alleges injury to its business, Dkt. # 1 [8] ¶¶ 83-84, and causation, id. at ¶ 20-37. But Plaintiff’s attempt to connect this alleged [9] conduct by CrossCountry—directed at a competitor—to potential public interest impact [10] falls short, and consequently, Plaintiff fails establish the first and third elements of the [11] claim. Plaintiff’s Count I is DISMISSED with leave to amend. [13] b.) Misappropriation of Trade Secrets [14] Plaintiff’s second claim is brought under the Defend Trade Secrets Act of 2016, 18 15 U.S.C. § 1836 , et seq. It creates a private right of action for the misappropriation of a [16] trade secret. Attia v. Google, 983 F.3d 420 , 424 (9th Cir. 2020). The Act defines a “trade [17] secret” as “financial,” “business,” and “economic” information that “the owner thereof [18] has taken reasonable measures to keep … secret,” and that provides “independent [19] economic value, actual or potential, from not being generally known to, and not being [20] readily ascertainable through proper means by, another person who can obtain economic [21] value from the … use of the information.” 18 U.S.C. § 1839 (3). “[T]he definition of what [22] may considered a ‘trade secret’ is broad.” InteliClear, LLC v. ETC Global Holdings, Inc., [23] 978 F.3d 653, 657 (9th Cir. 2020) (citation omitted). “Misappropriation” is defined as [24] “(1) the ‘acquisition of a trade secret of another by a person who knows or has reason to [25] know that the trade secret was acquired by improper means;’ (2) the disclosure of a trade [1] secret without the owner’s consent; and (3) the use of a trade secret without the owner’s [2] consent.” Attia, 983 F.3d at 424 (citing 18 U.S.C. § 1839 (5)(A), (5)(B)). [3] Plaintiff alleges that several Departed Employees who left Caliber to join [4] CrossCountry sent emails from their Caliber email accounts to their personal accounts [5] containing customer information, loan and mortgage information, scripts, and other [6] documents. Dkt. # 1 ¶ 76(a)-(i). Plaintiff alleges that Caliber takes reasonable measures to [7] keep such data secret, such as having employees sign employment agreements that [8] contain confidentiality clauses. Id. ¶¶ 52-56, 70 . Further, Plaintiff alleges that the [9] Departed Employees took the sensitive information for use at CrossCountry, and [10] CrossCountry directed the employees to obtain this information by improper means. Id. [11] ¶¶ 77-78, 107-108. Plaintiff believes that this information is now contained in [12] Defendant’s electronic systems. Id. ¶ 79 . [13] Defendant argues that the complaint fails to allege any facts raising a plausible [14] inference that CrossCountry misappropriated Caliber’s trade secrets and presents no facts [15] supporting the allegation that employees misappropriated confidential information “with [16] [CrossCountry’s] knowledge and approval, if not with its specific direction.” Dkt. # 12 [17] (quoting Dkt. # 1 ¶ 77). Defendant cites CleanFish, LLC v. Sims for the contention that [18] the mere allegation that a departing employee took confidential information and then [19] began working for a competitor is insufficient to state a claim at the motion to dismiss [20] stage. Case No. 19-cv-3663-HSG, 2020 WL 1274991 , at *10 (N.D. Cal. Mar. 17, 2020). [21] However, the case is factually distinguishable. The court found Plaintiff’s allegation that [22] customer lists constituted a trade secret to be too “high level” to give the court or [23] defendants notice of the boundaries of the alleged trade secret. 2020 WL 1274991 , at * [24] 10. Additionally, CleanFish dealt with the alleged misappropriation of information [25] obtained by one employee. Id. Here, Plaintiff provides details of numerous emails sent [1] by Departed Employees around the time of their resignation that included sensitive and [2] confidential loan and mortgage information. Id. ¶ 76 . Plaintiff alleges that many of the [3] Departed Employees were subject to confidentiality agreements and policies to protect [4] customers’ sensitive data. Id. ¶ 56 . And Plaintiff alleges that CrossCountry now has [5] possession of this information that Caliber attempted to keep confidential. Crucially, [6] Plaintiff alleges that CrossCountry obtained it from the Departed Employees. Id. ¶¶ 787 79. [8] As the CleanFish court noted, “to adequately plead indirect misappropriation, ‘the [9] plaintiff must allege facts to show that the defendant … had reason to know that the [10] disclosing party had acquired [the information] through improper means or was [11] breaching a duty of confidentiality by disclosing it.” 2020 WL 1274991 , at * 10. In [12] CleanFish, Plaintiff only alleged that the employee and defendant “continuously [13] communicated” with each other. Here, Plaintiff alleges concrete examples of Departed [14] Employees leaving Caliber with valuable information via email— and immediately [15] joining CrossCountry. [16] Further, the facts alleged by Plaintiff tend to exclude the “innocent explanation” [17] of simple competition advanced by Defendant and discussed in CleanFish. Taking [18] Plaintiff’s allegations as true and drawing all reasonable inferences in the Plaintiff’s [19] favor, as the Court must at this stage, the Court finds that Plaintiff adequately states a [20] claim for misappropriation under the Defend Trade Secrets Act. Defendant’s request to [21] dismiss Count II is DENIED. [23] c.) Conversion of Confidential and Proprietary Information [24] Defendant requests that this Court dismiss Plaintiff’s conversion claim as pre25 empted by Washington’s Uniform Trade Secrets Act (UTSA), RCW 19.108.900. The [1] UTSA states that it “displaces conflicting tort, restitutionary, and other law of this state [2] pertaining to civil liability for misappropriation of a trade secret.” RCW 19.108.900. It [3] does not preempt contractual or civil liability relief not based upon misappropriation. Id. [4] In support of their preemption argument, Defendant cites LaFrance Corp. v. [5] Werttemberger, Case No. C07-1932Z, 2008 WL 5068653 (W.D. Wash. Nov. 24, 2008) [6] and Illinois Tool Works, Inc. v. Seattle Safety, LLC, Case No. C07-2061JLR, 2009 WL 7 10675668 (W.D. Wash. Jan 28, 2009), both cases where plaintiff brought both a UTSA [8] claim and a conversion claim, and where the court found preemption to be applicable. [9] Plaintiff argues that it adequately pled that Defendant wrongfully took Caliber’s [10] confidential information via the Departing Employees and used it to divert Caliber’s [11] customers and prospects to CrossCountry. Dkt. # 1 ¶¶ 77-79, 90, 116. [12] The elements for a claim of conversion are: (1) a defendant intentionally interfered [13] with property that belonged to plaintiff, (2) by either taking or unlawfully retaining it, (3) [14] thereby depriving the rightful owner of possession. United Federation of Churches, LLC [15] v. Johnson, 598 F. Supp. 3d 1084 , 1100 (W.D. Wash. 2022). In Washington, the Court [16] uses a three-step analysis to determine whether a conversion claim is preempted by the [17] UTSA. The Court must: “(1) assess the facts that support the plaintiff’s [non-UTSA] civil [18] claim, (2) ask whether those facts are the same as those that support the plaintiff’s UTSA [19] claim, and (3) hold that the UTSA preempts liability on the civil claim unless the [20] common law claim is factually independent from the UTSA claim.” T-Mobile USA, Inc. [21] v. Huawei Device USA, Inc., 115 F. Supp. 3d 1184, 1198 (W.D. Wash. 2015) (citing [22] Thola v. Henschell, 164 P.3d 524, 530 (2007)). The framework set forth by the [23] Washington Supreme Court mandates that a conversion claim is preempted by UTSA if [24] plaintiff actually asserts a UTSA claim. Plaintiff does not do so here. Notably, Defendant [25] cites no caselaw supporting preemption of a plaintiff’s conversion claim by UTSA where [1] the plaintiff did not also bring an UTSA claim. Defendant’s request to dismiss Count III [2] on the basis of preemption is DENIED. [4] d.) Tortious Interference with Contract [5] To state a tortious interference claim, plaintiff must allege: (1) the existence of a [6] valid contractual relationship or business expectancy; (2) that defendants had knowledge [7] of that relationship; (3) an intentional interference inducing or causing a breach or [8] termination of the relationship or expectancy; (4) that defendants interfered for an [9] improper purpose or used improper means; and (5) resultant damage. United Federation [10] of Churches, 598 F. Supp. 3d at 1098. Defendant argues that Plaintiff has failed to plead [11] any facts regarding the third element that show that CrossCountry caused Departing [12] Employees to breach their employment agreements with Caliber. Dkt. # 12 at 13. [13] Defendant contends that Plaintiff’s allegation that CrossCountry intentionally induced [14] and encouraged Departing Employees to breach their contracts with Caliber by (1) [15] soliciting Caliber employees to terminate their employment, (2) diverting, converting, [16] and removing loans in process at Caliber to take them to CrossCountry, and (3) retaining [17] and using Caliber’s information is insufficient to state a claim of tortious interference. Id. [18] The Court disagrees. The various emails containing loan, mortgage, and customer [19] information sent by Departing Employees around the time of their departures raise an [20] inference that Departing Employees took certain information with them in order to build [21] up their business while at CrossCountry, i.e. sell residential mortgages to retail [22] customers. Dkt. # 1 ¶ 76. It is possible that the Departing Employees’ actions violated [23] their employment agreements.2 However, even if the Employees’ actions did not violate [25] 2 Nonetheless, “[a]n enforceable contract is not required to support a tortious interference action.” Bombardier Inc. 26 v. Mitsubishi Aircraft Corp., 383 F. Supp. 3d 1169, 1188 (W.D. Wash. 2019) (citation omitted). [1] their employment contracts, the complaint adequately alleges that the Employees [2] improperly retained confidential information that was then passed on to CrossCountry. [3] Indeed, the complaint contains a litany of detailed allegations that specific Departed [4] Employees sent to themselves confidential customer and loan information within weeks [5] and even days of leaving Caliber. This suggests that these actions were done [6] intentionally. The fact that each Departed Employee then joined CrossCountry is further [7] evidence of the same. See Dkt. # 1 ¶ 13(a)-(r). Whether the Departing Employees acted [8] under Defendant’s specific direction is yet to be proven. But at this stage, the Court must [9] accept Plaintiff’s allegations—that CrossCountry now possesses purloined information [10] that could only be obtained from Caliber employees in violation of their employment [11] contracts—as true. Dkt. # 1 ¶ 79. See TMP Worldwide Advert. & Commc’n, LLC v. [12] LATCareers, LLC, Case No. C08-5019RBL, 2008 WL 4603404 , * 3 (noting that standard [13] for viable pleading under Fed. R. Civ. P. 12(b)(6) is less stringent than that applicable to [14] summary judgment and denying request to dismiss tortious interference with contract [15] claim where complaint, construed liberally, met each element). Defendant’s request to [16] dismiss Count IV is DENIED. [18] e.) Tortious Inducement to Breach Fiduciary Duty of Loyalty [19] The parties characterize count five as a claim for aiding and abetting breach of [20] fiduciary duty. See Dkt. # 12 at 16-17 n. 2; Dkt. # 13 at 18. The complaint alleges that [21] Defendant induced numerous management-level Departed Employees to breach their [22] fiduciary duties of loyalty to Caliber. Dkt. # 1, ¶¶ 132-33. It further alleges that [23] inducement on the part of Defendant occurred when CrossCountry solicited Caliber’s [24] employees, removed and diverted loans that were in process at Caliber, misappropriated [1] Caliber’s confidential information, and concealed these activities from Caliber. Id., ¶ 140 . [2] Under Washington law, a claim for breach of fiduciary duty requires plaintiff to [3] prove: (1) the existence of a duty owed, (2) a breach of that duty, (3) resulting injury, and [4] (4) that the claimed breach proximately caused the injury. In re Consolidated Meridian [5] Funds, 485 B.R. 604, 618 (Bankr. W.D. Wash. 2013). To plead a claim for aiding and [6] abetting, plaintiff must allege (1) the existence of a violation by the primary wrongdoer; [7] (2) knowledge of this violation by the aider and abettor; and (3) that the aider and abettor [8] substantially assisted in the primary wrong. Id. at 616 . Defendant does not dispute that [9] Departed Employees owed fiduciary duties to Caliber, but argues that the complaint fails [10] to adequately plead the substantial assistance element and adequately allege that [11] CrossCountry assisted any Departing Employees in any breach of their fiduciary duty. [12] Dkt. # 12 at 17. [13] Plaintiff argues that the complaint’s allegations of CrossCountry’s $1.5 million [14] offer to Everts, Everts’s solicitation email to Loan Officer Danny To, and subsequent [15] solicitations from Departed Employees using confidential information obtained as [16] Employees left their jobs with Caliber are sufficient to state a claim for aiding and [17] abetting. In particular, Plaintiff alleges that CrossCountry was aware and supportive of [18] Departed Employees using confidential information in order to encourage more Caliber [19] employees to jump ship. Dkt. # 1 ¶ 77. Indeed, Plaintiff alleges that confidential [20] information is now on CrossCountry’s electronic systems, Id. ¶ 107, presumably for use [21] by CrossCountry. The unusual circumstance of numerous Departing Employees sending [22] information from their Caliber email accounts to their personal email accounts just as [23] they transitioned to CrossCountry raise Plaintiff’s allegations beyond mere speculation [24] and into the realm of possible “agreement and concerted action” between the Departed [25] Employees and Defendant. Brashkis v. Hyperion Capital Group, LLC, Case No. 3:11-cv26 [1] 05635 RBL, 2011 WL 6130787 , *3 (W.D. Wash. Dec. 8, 2011); see also A.H. Lundberg [2] Assoc, Inc. v. TSI, Inc., Case No. C14-1160JLR, 2016 WL 9226998 , *5 (W.D. Wash. [3] Feb. 18, 2016) (declining to dismiss aiding and abetting breach of fiduciary claim when [4] plaintiff alleged that defendant used a third party’s confidential knowledge of customers [5] and pending proposals to obtain contracts that they would not have obtained without the [6] confidential knowledge). Defendant’s request to dismiss Count V is DENIED. [7] f.) Tortious Interference with Advantageous Business Relationships [8] A tortious interference with business expectancy claim must allege: (1) the [9] existence of a valid contractual relationship or business expectancy; (2) that defendant [10] had knowledge of the relationship; (3) an intentional interference inducing or causing a [11] breach or termination of the relationship or expectancy; (4) that defendants interfered for [12] an improper purpose or used improper means; and (5) resultant damage. United [13] Federation of Churches, 598 F. Supp. 3d at 1098 (citing Leingang v. Pierce Cty. Med. [14] Bureau, Inc., 930 P.2d 288, 300 (1997)). Defendant argues that Plaintiff fails to [15] adequately plead any of the required elements. Dkt. # 12 at 17. [16] The Court agrees with Defendant as to the second, third, and fourth elements. [17] Plaintiff’s allegation that it had a business expectancy with “its customers and/or [18] prospects,” Dkt. # 1 ¶ 145, and specifically, with 736 Caliber loans/customers whose [19] names Everts forwarded from his work account to his personal email account on [20] December 12, 2021, Id. ¶ 76(a)(i), is sufficient to put Defendant on notice as to Plaintiff’s [21] business expectancy with those individuals. See Straw v. Avvo, Inc., Case No. C2022 0294JLR, 2020 WL 5066939 , *5 (W.D. Wash. Aug. 27, 2020) (Plaintiff must “‘tie… [23] losses to specific relationships’ between the plaintiff and ‘identifiable third parties.’”) [24] (quoting Pac. Nw. Shooting Park Ass’n v. City of Sequim, 144 P.3d 276, 280 (Wash. [1] 2006)). [2] However, as to the second element, Plaintiff fails to adequately allege that [3] CrossCountry had specific knowledge of Plaintiff’s relationships with “customers and/or [4] prospects” or the 736 customers listed in the spreadsheet sent to Everts’s personal email [5] account. Further, concerning the third and fourth elements, Plaintiff fails to allege that [6] CrossCountry interfered with Caliber’s relationships with “customers and/or prospects,” [7] such that any customer or prospect (including any customer listed in the Everts [8] spreadsheet) actually terminated their relationship with Caliber. See Lundberg, 2016 WL 9 9226998, at * 5 (allegations that third party raided client lists and that plaintiff actually [10] lost contracts or expectancies as a result were sufficient to support tortious interference [11] claim). Finally, while Plaintiff claims Caliber expected to receive millions in profit from [12] loan originations by the Departed Employees, Dkt. # 1 ¶ 83, this does not salvage their [13] claim. Plaintiff’s tortious interference with business expectancy is DISMISSED with [14] leave to amend. [15] g.) Civil Conspiracy [16] Plaintiff’s seventh count, for civil conspiracy, alleges that CrossCountry conspired [17] with the Departed Employees to violate the Employees’ various legal obligations to [18] Caliber, such as restrictive covenants concerning solicitation of employees, [19] misappropriation of confidential information, and removal of loans in process with [20] Caliber. Dkt. # 1 ¶ 152. A Washington civil conspiracy claim requires that a plaintiff [21] allege that (1) two or more people contributed to accomplish an unlawful purpose or [22] combined to accomplish a lawful purpose by unlawful means, and (2) the conspirators [23] entered into an agreement to accomplish the object of the conspiracy. Williams v. Geico [24] Gen. Ins. Co., 497 F. Supp. 3d 977 , 985 (W.D. Wash. 2020). “Because the conspiracy [25] must be combined with an unlawful purpose, civil conspiracy does not exist [1] independently—its viability hinges on the existence of a cognizable and separate [2] underlying claim.” Id. [3] Defendant argues that, because Plaintiff has failed to plead an underlying [4] actionable claim against CrossCountry, Plaintiff’s civil conspiracy claim must also fail. [5] Dkt. # 12 at 20. Further, Plaintiff argues that the facts and circumstances relied upon by [6] Plaintiff are just as consistent with lawful or honest purposes as they are with an unlawful [7] purpose. Id. (citing Puget Sound Sec. Patrol, Inc. v. Bates, 389 P.3d 709, 714 (Wash. [8] 2017)). [9] The Court has found that the complaint pleads underlying actionable claims. See [10] discussion supra Section III.b-e. Plaintiff alleges that the “Master Plan” (the Everts [11] email) set out CrossCountry’s plan to poach Caliber’s employees and specifically bring [12] over Everts’s team. Dkt. # 1 ¶ 24. Plaintiff further alleges that Evert, on his first day at [13] CrossCountry, solicited Caliber employee Danny To leave his employment—in violation [14] of a non-solicitation clause of his employment agreement with Caliber. Id. ¶¶ 34, 40, 41. [15] And the complaint alleges that in 2021 and 2022, numerous Caliber employees joined [16] CrossCountry, taking with them customer and loan information that would be valuable to [17] CrossCountry on their way out the door. Id. ¶ 76(a)-(i). Investigation and discovery will [18] reveal the extent to which CrossCountry was aware of the Departed Employees’ actions. [19] But at this stage, Plaintiff sufficiently alleges that Defendant conspired with the Departed [20] Employees to violate their legal obligations to Caliber. Defendant’s request to dismiss [21] Count VII is DENIED. [1] IV. CONCLUSION [2] For the reasons stated above, the Court GRANTS in part and DENIES in part [3] Defendant’s motion to dismiss. Within fourteen (14) days from the date of this Order, [4] Plaintiff may file an amended complaint addressing the deficiencies described above. If [5] Plaintiff does not file an amended complaint within that time, the Court may dismiss this [6] action with prejudice. [8] DATED this 30th day of March, 2023. 9 A [10] 11 The Honorable Richard A. Jones United States District Judge