Federal Judge Hands Breakaway Advisors a Victory
From the Desk of Jim Eccleston at Eccleston Law LLC:
This is the first in a series of posts to discuss the recent federal court decision in UBS Financial Services, Inc. v. Phil G. Fiore, Jr., Jeffrey H. Farrar, et al. (3:17-cv-00993). This particular post will provide a general overview of the facts surrounding this matter and the rationale behind the federal judge’s decision. The parties of record in this case were UBS and certain former advisors with the FDG Group.
In 2016, UBS terminated FDG Group member, Phil G. Fiore. Immediately after the termination, Mr. Fiore founded Procyon Private Wealth Partners, LLC (“Procyon”). Mr. Fiore scheduled Procyon to open officially on June 2, 2017. According to UBS, November of 2016 and its launch on June 2, 2017, Mr. Fiore and several of his former colleagues at FDG Group engaged in impermissible communications with FDG clients.
As a result, UBS filed a lawsuit against Mr. Fiore and certain members of the FDG Group, and sought a temporary restraining order and preliminary injunction against the defendants. In its lawsuit, UBS asserted that Mr. Fiore breached the non-solicitation agreements he executed with the firm and that several members of the FDG Group violated provisions of the Broker Protocol.
During the hearing in the United States District Court of Connecticut, UBS presented certain records of messages between FDG Group advisors and Mr. Fiore to demonstrate that he continued to have contact with his former team members after his termination. UBS also presented evidence illustrating that the advisors sent a UBS file containing confidential client information, in the form of account numbers, to Mr. Fiore after his termination from UBS. In addition, UBS alleged that Mr. Fiore breached his non-solicitation agreement with the firm, when he sent out an email blast to approximately 1,600 recipients informing them of Procyon’s anticipated opening.
The federal judge in this matter denied UBS’s motion for preliminary injunction in its entirety. Although the judge asserted that there was a record of questionable behavior by the advisor’s actions, he ultimately found that this did not violate the spirit of the Broker Protocol "because full private client contact information was still listed in the Protocol lists and UBS was not hindered in its ability to contact the clients on the list.”
Moreover, with regard to Mr. Fiore’s alleged violation of his non-solicitation agreements with UBS, the federal judge found that the blast he sent out to approximately 1,600 email addresses amounted to solicitation, and that "UBS has shown a likelihood of success on the merits as to Mr. Fiore violating his non-solicitation agreements." However, the judge ultimately ruled against UBS and denied its motion for preliminary injunction because the firm could not prove irreparable harm from the solicitations.
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