IN THE SUPREME COURT OF NORTH CAROLINA No. 300 A18 Filed 10 May 2019 WELLS FARGO INSURANCE SERVICES USA, INC.

v. KEVIN LINK, NELSON RAYNOR, ELIZABETH PACK, and BB&T INSURANCE SERVICES, INC.

Appeal pursuant to N.C.G.S. § 7A

- 27(a)(2) from an order and opinion on defendants’ motion to dismiss entered on 8 May 2018 by Judge Gregory P. McGuire, Special Superior Court Judge for Complex Business Cases, in Superior Court, Wake County, after the case was designated a mandatory complex business case by the Chief Justice under N.C.G.S. § 7A

- 45.4(a). Heard in the Supreme Court on 10 April
2019.
Fisher & Phillips LLP, by J. Michael Honeycutt, Meredith W. Norvell, and Holly N. Mancl, for plaintiff

- appell ant

. Parry Tyndall White, by K. Alan Parry, Michelle M. Walker, and Megan E.A. Bishop, for defendant

- appellees.

PER CURIAM.

AFFIRMED.STATE OF NORTH CAROLINA

COUNTY OF WAKE IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

17 CVS 12848 WELLS FARGO INSURANCE SERVICES USA, INC., Plaintiff,

v. KEVIN LINK, NELSON RAYNOR, ELIZABETH PACK and BB&T INSURANCE SERVICES, INC. Defendants. ORDER AND OPINION ON DEFENDANTS’ MOTION TO

DISMISS

THIS MATTER comes before the Court on Defendants Kevin Link, Nelson Raynor, Elizabeth Pack, and BB&T Insurance Services, Inc.’s Partial Motion to Dismiss Pursuant to Rule 12(b)(6). (“Mo tion to Dismiss ”, ECF No. 7.) Defendants seek to dismiss Counts O ne
– Five, Seven, and Eight in the Complaint, but do no t seek dismissal of Count Six. THE COURT, having considered the Motion to Dismiss , the briefs filed in support of and in opposition to the Motion to Dismiss , the arguments of counsel at the hearing, and other appropriate matters of record, CONCLUDES, in i ts discretion, that the Motion to Dismiss should be GRANTED, in part, and DENIED, in part, for the reasons set forth below. Fisher & Phillips , by J. Michael Honeycutt and Meredith W. Norvell , for Plaintiff Wells Fargo Insurance Services USA, Inc. Parry Tyndall White , by K. Alan Parry and Michelle M. Walker , for Defendants Kevin Link, Nelson Raynor, Elizabeth Pack, and BB&T Insurance Services, Inc.McGuire, Judge.

I. FACT S AND PROCEDURAL BACKGROUND

1. The Court does not make findings of fact on motions to dis miss under N.C. Gen. Stat. § 1A

- 1, Rule 12(b)(6) (hereinafter, “Rule(s)”) , but only recites those facts included in the complaint that are relevant to the Court’s determination of the Motion. See , e.g. , Concrete Serv. Corp. v. Inv’rs Grp., Inc. , 79 N.C. A pp. 678, 6 81, 340 S.E.2d 755, 758 (1986). A. The parties
2. Plaintiff Wells Fargo Insurance Services USA, Inc. (“ Plaintiff” or “Wells Fargo ”) is a North Carolina

- licensed insurance broker that sells insurance products and services to its customers. (Compl., ECF No. 3, at ¶ 9.) Wells Fargo alleges that it provides “insurance products and services that are unique to the particular needs

o f its customers. ” ( Id . at ¶ 16.)
3. Defendant BB&T Insurance Services, Inc. (“BB&T”) is also an insurance broker providing i nsurance products and services to its customers in the same segment of the insurance market. ( Id . at ¶ 10.)
4. Wells Fargo employed Defendant Kevin Link (“Link”) as a Senior Sales Executive

. Link was responsible for “soliciting insurance customers and providing risk management services.” ( Id . at ¶ 11.) Link resigned from Wells Fargo effective October 31, 2016, and began working for BB&T. ( Id .)
5. Wells Fargo employed Defendant Nelson Raynor (“Raynor ” ) as a Comm ercial Insurance Producer. Raynor was resp onsible for “ p rocuring insurancecustomers and providing risk management services.” ( Id . at ¶ 12.) On April 12, 2017,

Raynor resigned from Wells Fargo and began working for BB&T. ( Id .)
6. Wells Fargo employed Elizabeth Pack (“Pack”) as a Marketing Placement Specialist. Pack was responsible for marketing to Wells Fargo ’s insurance

customers. ( Id. at ¶ 13.) On April 3, 2017, Pack resigned from Wells Fargo and began working for BB&T. ( Id . at ¶ 13.) (Collectively, Link, Raynor, and Pa ck are referred to as the “Individual Defendants.”)
7. While employed with Wells Fargo , the Individual Defendants “brokered and serviced the insurance needs of Wells Fargo customers assigned to them ” and had knowledge about the insurance needs and policies of their customers. ( Id . at ¶ 14 .)
8. Wells Fargo has developed and maintains certain “confidential and trade secret information” concerning its customers. ( Id . at ¶¶ 17

– 21.) The confidential and trade secret information “ provides Wells Fargo with a competitive advantage over its competitors who do not know the information .” ( Id . at ¶ 20.) Wells Fargo makes efforts to protect the secrecy of its confidential and trade secret information through the use of written confidentiality agreements, and the i mplementation of a Code of Ethics and Information Security Policy and policies in its Team Member Handbook. ( Id . at ¶¶ 22

– 25.) B. Link’s and Raynor’s Restrictive Agreements
9. During their employment with Wells Fargo , Link and Raynor each executed an agreement with W ells Fargo entitled “Agreement Regarding TradeSecrets, Confidential Information, Nonsolicitation and Assignment of Inve ntions ”

( the “ Restrictive Agreements”). ( ECF No. 3, at ¶ 27 ; Link Restrictive Agreement, ECF No. 3, Ex

. 1 ; Raynor Restrictive Ag reement, ECF No. 3, Ex. 2 .) The Restrictive Agreements provide that for a period of two ( 2) years immediately following termination of their employment for any reason, Link and Raynor will not :

a. [S]olicit, recruit or promote the solicitation or recruitmen t of any employee or consultant of the Company for the purpose of encouraging that employee or consultant to leave the Company’s employ or sever an agreement for services; b. [S]olicit, participate in or promote the solicitation of any of the Company’s clients, customers, or prospective customers with whom [they] had Material Contact and/or regarding whom [they] received Confidential Information, for the purpose of providing pr oducts or services that are in competition with the Company’s products or services (“Competitive Products/Services”). “Material Contact” means interaction between [them] and the customer, client or prospective customer within one (1) year prior to [their] last day as a team member which takes place to manage, service, or further the business relationship; or

c. Accept insurance business from or provide Competitive Products/Services to customers or clients of the Company: i. with whom [they] had Material Contact, and/or ii. were [their] clients or customers of the Company within six (6) months prior to [their] termination of employment. (ECF No. 3, at ¶¶ 30, 34.)
10. The Restrictive Agreements also prohibit Link and Raynor from using

or disclosing Wells Fargo ’s “T rade S ecrets ” and “Confidential I nformation ”. ( Id . at ¶¶ 30 and 35. ) The Restrictive Agreements define “Trade Secrets” as including, but not limited to :

[T]he names, addresses, and contact information of the Company’s customers and prospective customers, as well as any other personal or financial information relating toany customer or prospect, including, without limitation, account numbers, balances, por tfolios, maturity and/or expiration or renewal dates, loans, policies, investment activities, purchasing practices, insurance, annuity policies and objectives; [A]ny information concerning the Company’s operations, including without limitation, informati on related to its methods, services, pricing, costs, margins and mark ups, finances, practices, strategies, business plans, agreements, decision

- making, systems, technology, policies, procedures, marketing, sales, techniques, agent information, and process es; [A]ny other proprietary and confidential information relating to the Company’s customers, employees, products, services, sales, technologies, or business affairs. (ECF No. 3, at Exs. 1 and 2.) The Restrictive Agreements do not contain a

s eparate definition of “Confidential I nformation.”

11. The Restrictive Agreements define “ the Company” as: “a Wells Fargo company and/or any of its past, present, and future parent companies, subsidiaries, predecessors, successors, affiliates, and acquisitions.” ( Id. )
12. Under the Restrictive Agreements, Link and Raynor also were required
to return to Wells Fargo upon termination of employment all “Confidential I nformation of the Company” and all “Records of the Company” in their respective possessions. ( Id. at ¶¶ 31 , 36; Exs. 1 and 2.) C. The resignations from Wells Fargo and breaches of the Restrictive Agreements
13. Link resigned from Wells Fargo on October 31, 2016, Pack resigned on April 3, 2017, and Raynor resigned on April 12, 2017. Link and Raynor “solicit[ed]and encourage[ed]” each other, and Pack, to terminate employment with Wells Fargo.

(ECF No. 3, at ¶¶ 40

– 41.)
14. On or about April 12, 2017 , immediately prior to submitting his resignation, Raynor entered Wells Fargo ’s office s at around 8:00 p.m. and printed and copied documen ts for approximately one hour. ( Id

. at ¶¶ 42, 101

. ) Wells Fargo alleges that it “ is informed and believes . . . that the documents printed and copied by Defendant Raynor contained highly confidential and trade secret information belonging t o Wells Fargo.” ( Id. at ¶ 46.)
15. Since becoming employed with BB&T, Link, Raynor, and Pack have contacted and solicited Wells Fargo’s customers “in an attempt to divert their insurance business away from Wells Fargo” and to BB&T. ( Id . at ¶¶ 47

– 48.) Wells Fargo alleges upon information and belief that Link, Raynor, and Pack used Wells Fargo’s trade secrets and confidential information “to identify, contact, solicit and induce Wells Fargo clients to transfer their accounts and otherwise divert business from Wells Fargo to BB&T.” ( Id . at ¶ 56.) In the Complaint, Wells Fargo lists approximately 18 Wells Fargo customers assigned to Link or Raynor who have transferred their insurance business to BB&T since Link and Raynor left Wells Fargo. ( Id . at ¶¶ 53

– 71.)
16. O n November 27, 2017, Wells Fargo filed the Complaint. In the Complaint, Wells Fargo alleg es four separate claims against Link and Raynor for breaches of Restrictive Agreements: breach of the non - solicitation of customers provision (Count One); breach of t he non

- solicitation of employees provisions (CountTwo); breach of the confidential information provisions (Count Three); and breach of

the return of property provision (Count Four). Wells Fargo also alleges the following claims against all of the Defendan ts: misappropriation of trade secrets in violation of the North Carolina Trade Secrets Protection Act (“NCTSPA”) , N.C. General Statute § 66

- 15 2 et seq., (hereinafter “G.S.”) (Count Five); tortious interference with contractual relations (Count Seven); and unfair and deceptive trade practices (Count Eight). Finally, Wells Fargo alleges a claim for computer trespass under G.S. § 14

- 458 against Raynor only (Count Six).
17. On Novem ber 28, 2017, the case was designated to the North Carolina Business Court and assigned to the undersigned. ( Designation Order, ECF No . 1 ; Assignment Order , ECF No. 2.)
18. On December 28, 2017 , Defendants filed the Motion to Dismiss and a supporting memorand um of law. (D ef. Memo. Supp. Mot. Dismiss, ECF No. 8

. ) On January 22, 2018 , Plaintiff filed its brief in opposition to the Motion to Dismiss. (Pl. Br. Opp. Mot. Dismiss , ECF No. 10.) Defendants filed a reply on February 8, 2018

. (Def. Reply Supp. Mot. Dismiss , ECF No. 15

. ) On February 20, 2018 , the Court heard oral argument on the Motion to Dismiss . The Motion to Dismiss is now ripe for disposition. II. ANALYSIS
19. The Court, in deciding a Rule 12(b)(6) motion, treats the well

- pleaded allegations of the complaint as true and admitted. Sutton v. Duke , 277 N.C. 94, 98 (1970). However, conclusions of law or unwarranted deductions of fact are notdeemed admitted. Id. The facts and permissible inferences set forth in the complaint

are to be treated in a light most favorable to the nonmoving party. Ford v. Peaches Entm’ t Corp. , 83 N.C. App. 155, 156 (1986). As our Court of Appeals has noted, the “essential question” r aise d by a Rule 12(b)(6) motion is “ whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory. ” Barnaby v. Boardman , 70 N.C. App. 299, 302, 318 S.E.2d 907, 909 (1984), rev ’ d on other grounds , 313 N.C. 5 65 (1985) (citations and emphasis omitted).
20. Our appellate courts frequently reaffirm that North Carolina is a notice pleading state. See, e.g., Feltman v. City of Wilson , 238 N.C. App. 246, 252, 767 S.E.2d 615, 620 (2014) (quoting Wake Cty. v. Hotels.com, L.P. , 235 N.C. App. 633, 646

– 47, 762 S.E.2d 477, 486 (2014)). “Under notice pleading, a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow fo r the application of the res judicata, and to show the type of case brought.” Id

. Accordingly , “a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” Sutton , 277 N.C. at 103, 176 S.E.2d at 166 (1970) (emphasis omitted).
21. A Rule 12(b)(6) motion should be granted when the complaint, on its face, reveals (a) that no law supports the plaintiff's claim, (b) the abse nce of facts sufficient to form a viable claim, or (c) some fact which necessarily defeats the plaintiff's claim. Jackson v. Bumgardner , 318 N.C. 172, 175 (1986). In addition, t he Court may consider documents which are the subject of plaintiff’s complai nt and towhich the complaint specifically refers, including the contract that forms the subject

matter of the action. Oberlin Capital, L.P. v. Slavin , 147 N.C. App. 52, 60, 554 S.E.2d 840, 847 (2001).
22. The Court first will address Wells Fargo’s claims for breach of the Restrictive Agreements by Link and Raynor, and then the claims alleged against all of the Defendants. A. Breach of the non

- solicitation of customers restriction (Count One)
23. In its first claim, Wells Fargo alleges Link and Raynor breached the prohibitions against soliciting or accepting insurance business from Wells Fargo ’s

customers contained in section s III.b. and III.c. of the Restrictive Agreement s . (ECF No. 3 , at ¶¶ 80

– 84.) Section III.b. prohibits Link and Raynor from soliciting “the Co mpany’s” customers or prospective customers with whom they had “Material Contact and/or” customers about whom they received “Confidential Information.” ( Id

. at ¶¶ 30 and 34.) “Material Contact” is defined as interaction with the customer during the year prior to their respective terminations of employment from Wells Fargo. Section III.c. of the Restrictive Agreements prohibits Link and Raynor from accepting “insurance business” from or providing competitive products and services to customers of “the Comp any” with whom they had “ Material Contact and/or” who were “customers of the Company within six (6) months prior to [their] termination of employment.” ( Id .)
24. North Carolina courts will enforce a covenant not to compete if it is:

“ (1) in writing; (2) reasonable as to [the] terms, time, and territory; (3) made a part ofthe employment contract; (4) based on valuable consideration; and (5) not against

public policy.” Triangle Leasing Co. v. McMahon , 327 N.C. 224, 228, 393 S.E.2d 854, 857 (1990); United Lab., Inc. v. Kuykendall , 322 N.C. 643, 649

– 50, 370 S.E.2d 375, 380 (1988). The party seeking enforcement of a restrictive covenant has the burden of proving its reasonableness. Medical Staffing Network, Inc. v. Ridgway , 194 N.C. App. 649, 65 5, 670 S.E.2d 321, 327 (2009). The reasonableness of a non

- competition covenant is a matter of law for the court to decide. Id

. 25. In the absence of an express geographic territory restriction, a court can enforce a restriction prohibiting a former employee from soliciting customers or clients. Whittaker Gen. Med. Corp. v. Daniel , 324 N.C. 523, 526, 379 S.E.2d 824, 826f (1989) ( relying on Kuykendall and enforcing a noncompetition agreement that included client

- based restrictions for 24 months witho ut any expressly defined geographical territory other than the employee's sales territory at the time of termination and holding that “c ustomers developed by a salesperson are the property of the employer and may be protected by a contract under which the salesperson is forbidden from soliciting those customers for a reasonable time after leaving his or her employment ” ); Wade S. Dunbar Ins. Agency, Inc. v. Barber , 147 N.C. App. 463, 469, 556 S.E.2d 331, 336 ( 2001) (enforcing covenant prohibiting solicitation of any former employer’s customers ).
26. A customer

- based restriction on solicitation is analyzed in much the same manner as a geographic restriction, taking into consideration many of the same factors and, particularly, the time period of the r estric tion. See, e.g., Wade S. DunbarIns. Agency, 147 N.C. App. at 469, 556 S.E.2d 335; Farr Assocs., Inc. v. Baskin , 138

N.C. Ap p. 276, 281

– 82, 530 S.E.2d 878, 883 (2000) (“The geographic limitation of that case is analogous to the client

- based limitati on in the case at bar.”) ; Sandhills Home Care, L.L.C. v. Companion Home Care

– Unimed, Inc. , 2016 NCBC LEXIS 61, at * 25 (N.C. Super. Ct. Aug. 1, 2016 )

. 27. In this case, Defendants challenge the prohibitions on soliciting or accepting insurance business from Wells Fargo customers on the grounds that the definitions of the terms “the Company” and “Confidential Information” make the restrictions unreasonably br oad and vague, and unenforceable as a matter of law. (ECF No. 8, at pp. 8

– 10.) Accordingly, the Court must determine whether sections III.b. and III. c. are un reasonable as a matter of law.

i. Section III.b.
28. Section III.b. does not have a geographic restriction, but instead prohibits Link and Raynor, for a period of two years, from soliciting “the Company’s”

customers and prospective customers with whom Link and Raynor had “ Material Contact and/or” about whom they received “ Confidential Information. ” (ECF No. 3, at Exs. 1 and 2, sec. III.) Defendants do not challenge the reasonableness of the prohibition on Link and Raynor soliciting Wells Fargo customers or prospective customers with whom they had Material Contact. Instea d, Defendants argue that the terms “the Company” and “Confidential Information” are defined so broadly in the Employment Agreement that it makes the prohibition against Link and Raynor soliciting customers and prospective customers about whom they received“ Confidential Information ” unreasonably vague and overly broad. (ECF No. 8 , at pp.

8

– 10.)
29. The Employment Agreements define “the Company” to include not only Wells Fargo Insurance Services , but also its “past, present, and future parent companies, sub sidiaries, predecessors, successors, a ffiliates, and acquisitions.” ( ECF No. 3, Ex s. 1 and 2.) The Employment Agreement does not identify the subsidiary and affiliate companies, but a ccording to publicly available data from Wells Fargo, it is a vast organization with many affiliate companies.
30. Wells Fargo noted to its shareholders in its 2016 Annual Report that Wells Fargo “provide[s] banking, insurance, investments, mortgage, and consumer and commercial finance through more than 8,600 locations , 13,000 ATMs, digital (online, mobile and social), and contact centers (phone, email and correspondence), and [Wells Fargo] ha[s] offices in 42 countries and territories.” W ELLS F ARGO , 2016 A NNUAL R EPORT 36 (2016) 1 . Wells Fargo listed 44 significant subs idiaries in an attached exhibit to its Form 10

- K annual report to the United States Securities Exchange Commission (“SEC”) for 2017. Wells Fargo, Form 10

- K Annual Report to SEC ( E xhibit 21) (Jan. 3, 2018) 2

. The listed subsidiaries include, inter alia,

com panies that provide personal, commercial, and real estate financing, insurance companies, venture capital firms, securities companies , and holding companies. Id.

1 Available online at: https://www.wellsfargo.com/assets/pdf/about/investor

- relations/annual

reports/2016

- annual

- report.pdf 2 Available online at: https://www.sec.gov/Archives/edgar/data/72971/000007297118000272/wfc

12312017xex21.htmIn 2016 , Wells Fargo employed o ver 269,000 full

- time employees. W ELLS F ARGO , 2016

A NNUAL R EPORT 36 (2016).
31. Defendants contend that North Carolina courts have found similarly broad prohibitions on soliciting customers of parent, subsidiary, and affiliate companies for whom the former employees performed no services unreasonable as matter of law

. Medical Staffing Network , 194 N.C. App. at 657, 670 S.E.2d at 328 ( f inding restrictive covenants unenforceable because the plaintiff had no legitimate business interest in foreclosing solicitation of clients of “an unrestricted and undefined set of [th e plaintiff's] affiliated companies that engage in business distinct from the . . . business in which [ the defendant] had been employed”)

. 32. T o the extent that Link and Raynor are prohibited from soliciting Wells Fargo customers or prospective customer s with whom they had “ Material Contact ” during the last year of their employment, the potential inclusion of customers of affiliate companies does not necessarily render the restriction overbroad and unreasonable. See , e.g. , Laboratory Corp. of America H oldings v. Kearns , 84 F. Supp. 3d 447, 459 (M.D.N.C. Jan. 30, 2015) (“In North Carolina, covenants prohibiting competition for a former employer’s customers are only enforceable when they prohibit the employee from contacting customers with whom the employ ee actually had contact during his former employment.”). If Link and Raynor had significant interactions with customers or prospective customers of affiliate companies of Wells Fargo , Wells Fargo may have a legitimate interest in restricting them from sol iciting those customers.33. Link and Raynor , however, are not only prohibited from soliciting Wells

Fargo customers with whom they had “ Material Contact ” , but also from soliciting customers and prospective customers about whom they received “ Confidential Information. ” The Restrictive Agreements define “Confidential Information” as including “the Company’s Trade Secrets and other proprietary information relating to its business methods, personnel, and customers.” (ECF No. 3, at Ex s . 1 and 2 , sec . II.) We lls Fargo’s “Trade Secrets” are defined as including, but not limited to:

[T]he names, address, and contact information of the Company’s customers and prospective customers, as well as any other personal or financial information relating to any customer or prospect, including, without limitation, account numbers, balances, portfolios, maturity and/or expiration or renewal dates, loans, policies, investment activities, purchasing practices, insurance, annuity policies and objectives; [A] ny information conc erning the Company’s operations, including without limitation, information related to its methods, services, pricing, costs, margins and mark ups, finances, practices, strategies, business plans, agreements, decision

- making, systems, technology, policies, procedures, marketing, sales, techniques, agent information, and processes; [and] [A] ny other proprietary and/or confidential information relating to the Company’s customers, employees, products, services, sales, technologies, or business affairs. ( Id .)

34. The Restrictive Agreements further expand the definition of

“ Confidential Information ” to include the “Records of the Company,” and provide that :‘Records’ include, but are not limited to original, duplicated, computerized, memorized, handwritten or any o ther form of information, whether contained in materials provided to me by the Company, or by any institution acquired by the Company, or compiled by me in any form or manner including information in documents or electronic devices, such as software, flowc harts, graphs, spreadsheets, resource manuals, videotapes, calendars, day timers, planners, rolodexes, or telephone directories maintained in personal computers, laptop computers, personal digital assistants or any other device. ( Id .)

35. Defendants argue tha t the restriction on soliciting customers or prospective customers of “the Company” about whom the y received “ Confidential Information ” is far to o broad based on the definitions used in the Restrictive Agreements. For example, the Restrictive Agreements define “Confidential Information” as including the names and addresses of customers and prospective

customers of Wells Fargo and any of its affilia te companies , and Wells Fargo’s

“ Records ” as including “ memorized, handwritten or any other form of information,

. . . such as software, flowcharts, graphs, spreadsheets, resource manuals, videotapes, calendars, day timers, planners, rolodexes, or telephon e directories .” Arguably, the clause prohibits solicitation of any customer s or prospective customer s of Wells Far go - affiliate companies whose name, address, or other contact information was shown (purposefully or inadvertently) to Link or Raynor during t heir employment, whether or not that customer or prospective customer had any dealings with Wells Fargo’s insurance division or with Link or Raynor. Defendants aptly point out that, read literally, the non

- solicitation provisionin section III.b. would pr ohibit Link and Raynor from soliciting a prospective

customer of a Wells Fargo affiliate compan y based simply on them having seen an

“ actual or prospective customer’s name in a calendar, day timer, planner, rolodex, or telephone directory maintained anywhe re at any Wells Fargo company .” (ECF No. 8, at pp. 9

– 10.)
36. In its brief, Plaintiff does not address the breadth of the definitions of “the Company” and “Confidential Information ” in the Restrictive Agreements, or attempt to explain why it has a business interest in prohibiting solicitation of such a vast array of customers. Instead, it argues that the provision restricting solicitation of customers or prospective customers about whom Link and Raynor received “Confidential Information” can be disregarded because “ Link and Raynor would not have had access to confidential information concerning a client or customer they did not service, and there is no allegation in the Complaint alleging that they did. ” (ECF No. 10, at p. 9.) Plaintiff misapprehends their burden in responding to the Motion to Dismiss

. Plaintiff has not alleged that Link and Raynor received “Confidential Information” only regarding Wells Fargo customers and prospective customers whom they serviced , and the Court cannot accept the represent ations in its brief in lieu of allegations in the Complaint.
37. At the hearing on the Motion to Dismiss, Plaintiff’s counsel also suggested that Wells Fargo would only seek to restrain Link and Raynor from soliciting customers with whom they had “Material Contact,” as Plaintiff ha s done in this lawsuit, and not customers about whom Link and Raynor received C onfidentialI nformation. Th is argumen t, however, is unavailing. It is the Court’s duty at this

stage to analyze the restrictive covenant, as alleged, and determine whether it is reasonable and enforceable. The Court cannot read provisions out of the Restrictive Agreements based on Plaintiff’s representations in order to make the covenant enforceable. A cou rt may not construe an agreement in a way that ignores or deletes its plain terms. See, e.g., State v. Philip Morris USA, Inc. , 193 N.C. App. 1, 12

– 13, 666 S.E.2d 783, 791 (2008) (stating that where the language of a contract is unambiguous, a court canno t ignore, insert, or improperly construe the meaning of any contract terms, but instead a court must infer the intent of the parties from the terms in the contract) ; Happ v. Creek Pointe Homeowner’s Ass’n , 215 N.C. App. 96,
103

– 04, 717 S.E.2d 401 , 406 (201 1) ( holding that even where the language of a contract is ambiguous, it is a “fundamental rule of contract construction” that the court “gives effect to all of its provisions, if the court is reasonably able to do so”).
38. Finally, Plaintiff argues that , to t he extent the prohibition in section III.b. on soliciting customers about whom Link and Raynor received “Confidential Information” makes the covenant over - broad, the Court can “blue pencil ,” or remove, that provision and enforce only the restriction on soliciting customers with whom they had “Material Contact.” (ECF No. 10, at pp. 12

– 13.) Under the “ blue pencil doctrine, ” North Carolina courts may specifically enforce divisible or separable sections of restrictive covenants while striking po rtions that are unenforceable. Whittaker General Medical Corp. , 324 N.C. at 528, 379 S.E.2d at 828 (“If the contract is separable, however, and one part is reasonable, the courts will enforce the reasonableprovisio n” ( c iting Welcome Wagon, Inc. v. Pender , 255 N.C. 244, 120 S.E. 2d 739

(1961)

. ); see also , Hartman v. W.H. Odell & Assocs. , 117 N.C. App. 307, 317, 450 S.E.2d 912, 920 (1994) (“ When the language of a covenant not to compete is overly broad, North Carolin a's “ blue pencil ” rule severely limits what the court may do to alter the covenant. A court at most may choose not to enforce a distinctly separable part of a covenant in order to render the provision reasonable. It may not otherwise revise or rewrite the covenant. ” ).
39. Th e Court cannot “blue pencil” the provisions in section III.b. because the provision addressing customers about whom Link and Raynor received “Confidential Information” is not “distinctly separable” from the “Mater ial Contact” provision. The two provisions are not containe d in separately numbered paragraphs, separate sentences, or even separated by the word “or

. ” Rather, the provisions are separated by the term “and/or

. ” The use of “and/or” suggests that the prohibitions could be read in both the con junct ive and disjunctive senses, and creates an ambiguity. “When the language in a contract is ambiguous, we view the practical result of the restriction by ‘construing the restriction strictly against its draftsman [.] ’ ” Electrical South, Inc. v. Lewis , 96 N.C. App. 160, 167, 385 S.E.2d 352, 356 (1989) ( c iting Manpower of Guilford County, Inc. v. Hedgecock , 42 N.C. App. 515, 522, 257 S.E.2d 109, 115 (1979) )

. In this case, the Court concludes that the term “and/or” must be construed against Wells Fargo and r ead in the conjunctive sense for the purpose of applying the “blue pencil” doctrine. Under this interpretation, the provision restricting Link and Raynor from soliciting customers about whom theyreceived “Confidential Information” is not clearly separabl e from the other

restrictions in section III.b

. and cannot be stricken

.

ii. Section III.c.
40. Section III .c. of the Restrictive Agreement prohibits Link and Raynor , for two years from their dates of termination, from accepting “insurance business from or provid[ing] Competitive Products/Services to” customers of “the Company” with whom they had “Material Contact, and/or” who were customers of “the Company” within the six months prior to their respective terminations from Wells Fargo. (ECF No. 3, at ¶¶ 30 and 34; Exs. 1 and 2.)
41. Defendants first challenge the scope of section III.c. on the grounds that it prohibits Link and Raynor from “ accepting insurance business from ” former Wells Fargo customers. (ECF No. 8, at pp. 10

– 11.) Defendants contend that the ter m “insurance business” is undefined in the Restrictive Agreements and could encompass insurance products and services beyond the commercial insurance policies and services with which Link and Raynor were involved. ( Id .) Defendants argue that the prohibit ion on accepting “insurance business” of any type from former customers is broader than necessary to protects Wells Fargo’s business interests. ( Id .) While the Court concludes that there may be merit to Defendants’ argument, the Court arguably could “blu e pencil” the phrase “ accepting insurance business from ” out of the description of the conduct restricted by section III.c. because the term is separated from the prohibition on “provid[ing] Competitive Products/Services to” by the word “or”, and could be viewed as a “distinctly severable” part of the covenant. Hartman ,117 N.C. App. at 317, 450 S.E.2d at 920 ; see also , Superior Performers, Inc. v. Meaike ,

2014 U.S. Dist. LEXIS 50302, at *39

– 40 (M.D.N.C. Apr. 11, 2014) (“Although it is not separated off by number or in a different clause, the language can readily be struck through and the rest of the restrictive covenant still makes sense and stands on its own. Therefore, to the extent that the “ or its Affiliates ” language renders the restrictive covenan t unreasonable, it is likely separable from the remainder of the covenant, which is reasonable.”).
42. However, even if the phrase “accepting insurance business from” could be severed from the prohibition, it would not salvage the covenant in section III.c. because the covenant prohibits Link and Raynor from p roviding competitive insurance products to customers with whom the y had “Material Contact, and/or . . . customers of the Company within six (6) months prior to” their respective terminations from employm ent with Wells Fargo. (ECF No. 3, at ¶¶ 30 and 34.) Again, “the Company” is defined so broadly in the Restrictive Agreements that it sweeps within it s ambit customers of far

- flung Wells Fargo subsidiaries and affiliates unrelated to Wells Fargo ’s commerc ial insurance business , and customers w ith whom Link and Raynor would have had no contact

. See, Medical Staffing Network , 194 N.C. App. at 657, 670 S.E.2d at 328 . In addition, for t he same reasons discussed above, the use of “and/or” must be construed against Wells Fargo, and III.c.ii. cannot be “blue penciled” out of the covenant contained in section III.c. Accordingly, the Court concludes that the restrictive covenant in section III.c. is too broad and is

unreaso nable as a matter of law.43. Sections III.b. and III.c. of the Restrictive Agreements are too broadly

written to be enforceable under North Carolina law. Accordingly, Defendants’ motion to dismiss Plaintiff’s F irst Count for breach of the non

- solicitation of customers provisions in sections III.b. and III.c. of the Restrictive Agreements should be GRANTED

. B. B reach of the n on - solicitation of employees covenants (Count Two)
44. In its second claim, Wells Fargo alleg es that Link and Raynor breached the provisions of the Restrictive Agreements prohibiting them from soliciting Wells Fargo’s employees to terminate employment with Wells Fargo

. ( ECF No. 3, at ¶¶ 80

– 84 .) Section III.a. of the Restrictive Agreements provide that for two years following termination, Link and Raynor “ will not . . . solicit, recruit, or promote the solicitation or recruitment of any employee or consultant of the Company for the purpose of encouraging that employee or consultant to leave the Company’s employ or sever an agreement for services. ” ( Id . at ¶¶ 30 and 34.)
45. Courts in North Carolina have recognized that reasonable restrictions on a former employee's right to solicit an employer's current employees are enforceable. Kennedy v. K ennedy , 160 N.C. App. 1, 11

– 12 , 584 S.E.2d 328, 335 (2003) ( “ [T]he covenant prohibiting Carroll from soliciting and hiring plaintiff’ s former employees for the three

- year period does not violate public policy. ” ); Superior Performers, Inc. , 2014 U.S. Dist. LEXIS 50302 , at * 30 ( finding a t wo year restriction on soliciting former employer's current employees reasonable). A restriction onsolicitation of employees generally is subject to the same requirements as other

restrictive covenants. Sandhills Home Ca re, L.L.C. , 2016 NCBC LEXIS 61, at *36

. 46. Here, the non - solicitation of employees covenant is in writing and supported by consideration. Defendants do not argue that the covenant would violate public policy. See , Sandhills Home Care, 2016 NCBC LEXIS 61 , at *36 (citing Phelps Staffing, LLC v. C.T. Phelps, Inc. , 226 N.C. App. 506, 510, 740 S.E.2d 923, 927 (2013)). Defendant s contend, however, that the non

- solicitation of employees restriction is overbroad and unreasonable because it prohibits Link and Ra ynor from soliciting employee s of “the Compa ny.” (ECF No. 8, at pp. 11

– 12.) As note d herein, in 2016 , Wells Fargo claimed to have 44 subsidiary companies employing a total of over 269,000 employees in personal and commercial banking, investment, insurance, and other businesses

. As written, the Restrictive Agreement would prohibit Link and Raynor from solicit ing or attempt ing to solicit hundreds of thousands of employees in a variety of businesses o ther than commercial insurance and across a vast geographic

area. 47. Covenant s restricting former employees from soliciting a former employer’s employees are another means of protecting the former employer’s interest in the good

- will it has with its customers

. Kennedy , 160 N.C. App. at 11

– 12, 584 S.E.2d at 335 ( e nforcing prohibition against dentist soliciting his former practice ’s employees, holding “[t] he evidence demonstrates that plaintiff ’ s employees, many of whom had been employed in plaintiff's practice for several years, were a valuable part of the asset owned by plaintiff, that the employees had developed personalrelationships with plaintiff's patients, that the employees were an integ ral part of a

patient ’ s experience with plaintiff ” ). To establish that a non

- solicitation of employees covenant is reasonable, an employer must establish that it has a protectable business interest in prohibiting solicitation of former employees, and such prohibition must be no broader than necessary to protect that interest. In Medical Staffing Network, Inc., the Court held that a prohibition on the defendant soliciting employees of the plaintiff’s affiliate businesses for which the defendant did not wor k was overbroad.

[The plaintiff] presented no evidence, and the trial court made no findings that [the plaintiff] had any le gitimate business interest in . . . foreclosing t he solicitation of employees of . . . an unrestricted and undefined set of [the pla intiff’ s] affiliated companies that engage in business distinct from the medical staffing business in which [the defendant] had been employed. We conclude that on its face, this bar extends beyond any legitimate interest [the plainti ff] might have in this case. 194 N.C. App. at 657, 670 S.E.2d at 328

.
48. Plaintiff has not alleged any facts that would support a legitimate business interest in restricting Link or Raynor from soliciting employees working for Wells Fargo’s affiliate companies in any segment of the banking, investment, or insurance industries

. It is highly unlikely that the vast majority of these employees would have had any involvement or contact with Wells Fargo’s commercial insurance

customers. T he non

- s olicitation of employees covenant , as written, is unreasonable and unenforceable as a matter of law. Id

.49. Accordingly, the Defendants’ motion to dismiss Count Two for breach of

the non

- solicitation of employees provisions in section III.a. of the Restrictive Agreements should be GRANTED. C. B reach of the confidentiality covenant against Link and return of property provision against Link (Count s Three and Four )
50. Plaintiff also makes claims that Link and Raynor violated the covenants prohibiting use or disclosure of “Confidential Information , ” and the provisions requiring return of “Records” and “Confidential Information , ” in the Restrictive Agreements . (ECF No. 3, at ¶¶ 85

– 94.) Defendants argue the Complaint does not state claims against Link and see k dismissal of Counts Three and Four against Link only. (ECF No. 8, at pp. 12

– 14.) They do not seek dismissal of these claims against Raynor. ( Id .) Defendants argue that Plaintiff makes nothing more than conclusory allegations against Link, and do es not plead facts supporting the claims for breach of the confidentiality and return of property provisions . ( Id .)
51. “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of [the] contract.” McLamb v. T.P. Inc. , 173 N.C. App. 586, 5 88, 619 S.E.2d 577, 580 (2005); Regency Ctrs. Acquisition, LLC v. Crescent Acquisitions, LLC , 2018 NCBC LEXIS 7, at *18 (N.C. Super. Ct. Jan. 24, 2018). The North Carolina Court of Appeals has held that “ an agreement is n ot in restraint of trade . . . if it does not seek to prevent a party from engaging in a similar business in competition with the promise e , but instead seeks to prevent the disclosure or use of confidential information

. ” Chemimetals Processing, Inc. v. McEneny , 124 N.C. App. 194, 197, 476 S.E.2d 374, 376 (1996). Such an agreement is enforceable “ even thoughthe agreement is unlimited as to time and area, upon a showing that it protects a

legitimate bus iness interest of the promisee.” Id. at 197, 476 S.E .2d at 376

- 77 (citation omitted).
52. The Court has thoroughly reviewed the allegations in the Complaint and concludes that Plaintiff has sufficiently alleged a claim against Link for breach of the “Confidential Information” restrictions, but has not alleged any facts that would support the claim that Link failed to return “Records and Confidential Information” after his resignation from Wells Fargo

. 53. With regard to the claim for breach of the “Confidential Information” covenant, Plaintiff alleges that Link ex ecuted the Restrictive Agreement prohibiting the use or disclosure of “Confidential Information.” (ECF No. 3, at ¶ 30.) Plaintiff further alleges that Link solicited and obtained for BB&T the insurance business of customers that he serviced for Wells Farg o . ( Id . at ¶¶ 39, 47, and 53.) Finally, Plaintiff alleges, albeit “upon information and belief”, that Link “used “Wells Far go’s Confidential Information . . . to identify, contact, solicit, and induce” his former customers and to divert their business to BB&T. ( Id . at ¶¶ 56, 88.) These allegations sufficiently state a claim for breach of contract regarding the “Confidential Information” provisions of the Restrictive Agreement at this stage of the case. Myrtle Apartments, Inc. v. Lumbermen's Mut. Casual ty Co. , 258 N. C. 49, 51, 127 S.E.2d 759, 761 ( 1962 ) (finding that in stating claims in a complaint, a plaintiff “ may allege facts based on actual knowledge, or upon information and belief ”). Defendants’ motion to dismiss Plaintiff’s Count Three against Li nk should be DENIED.54. With regard to Count Four , the Complaint contains only the conclusory

allegation that Link “fail[ed] to return to Wells Fargo its property upon resigning” from employment with Plaintiff . ( Id . at ¶ 92.) Plaintiff does not, however, allege what property Link possessed or failed to return at the time of his resignation, nor any other facts underlying its claim for breach of the return of property provisions in the Restrictive Agreement

. This is insufficient to support a claim for brea ch of the

return of property provision. Myrtle Apartments, Inc. , 258 N. C. at 51, 127 S.E.2d at 761 (“ In testing the sufficiency of a complaint, the court ignores the conclusions and looks to the facts. ”) Defendants’ motion to dismiss Count Four against L ink should be GRANTED. D. Misappropriation of trade secrets ( Count Five )
55. Plaintiff makes claims for misappropriation of trade secrets against all of the Defendants. (ECF No. 3, at ¶¶ 95

– 104.) Defendants first argue that Plaintiff has not identified its trade secrets with sufficient specificity to support a claim for misappropriation under the NCTSPA. (ECF No. 8, at pp. 14

– 16.) Defendants also contend that Pl aintiff does not allege the act or acts by which Defendants misappropriated any trade secrets

. ( Id . at pp. 15

– 16.)
56. Under the NCTSPA, “ misappropriation ” is defined as the “acquisition, disclosure, or use of a trade secret of another without express or implied authority or consent, unless such trade secret was arrived at by independent development, reverse engineering, or was obtained from another person with a right to dis close the trade secret.” G.S. § 66

- 152(1). A “Trade Secret” is :[B]usiness or technical information, including but not limited to a formula, pattern, program, device, compilation of information, method, technique, or process that: a. Derives independent a ctual or potential commercial value from not being generally known or readily ascertainable through independent development or reverse engineering by persons who can obtain economic value from its disclosure or use; and b. Is the subject of efforts that ar e reasonable under the circumstances to maintain its secrecy. G.S. § 66

- 152(3). 57. The courts consider the following factors in determining whether information constitutes a trade secret:

(1) The extent to which [the] information is known outside the busines s; (2) the extent to which it is known to employees and others involved in the business; (3) the extent of measures taken to guard secrecy of the information; ( [4] ) the value of information to [the] business and its competitors; ([5] ) the amount of effort or money expended in de veloping the information; and ([6] ) the ease or difficulty with which the information could properly be acquired or duplicated by others. Wilmington Star

- News, Inc. v. New Hanover Reg’l Med. Ctr., Inc. , 125 N.C. App. 174,
180

– 81, 480 S.E.2d 53, 56 (1997).
58. To survive a motion to dismiss, a plaintiff's complaint “must identify a trade secret with sufficient particularity so as to enable a defendant to delineate that which he is accused of misappropriating and a court to determine whethe r [ misappropriation ] has or is threatened to occur.” VisionAir, Inc. v. James , 167 N.C. App. 504, 510

– 11, 606 S.E.2d 359, 364 (2004); AYM Techs., LLC. v. Rodgers , 2018 NCBC LEXIS 14, at *36

– 37 (N.C Super. Ct. Feb

. 9, 2018 ) (quoting VisionAir )

.The complaint also must set forth with sufficien t specificity the acts by which the

alleged misappropriation occurred. Washburn v. Yadkin Valley Bank & Tr. Co. , 190 N.C. App. 315, 327, 660 S.E.2d 577, 586 (2008) (“These allegations do not identify with su fficient specificity either the trade secrets [p]laintiffs allegedly misappropriated or the acts by which the alleged misappropriations were accomplished ” (emphasis added).) ; see also, Bldg. Ctr., Inc. v. Carter Lumber, Inc. , 2016 NCBC LEXIS 79, at *9 (N. C. Super. Ct. Oct. 21, 2016 ) (citing Washburn )

. 59. Defendants focus on Plaintiff’s inclusion of “customers’ names and addresses” as part of its alleged trade secrets , and argue that such information by itself generally does not constitute a trade secret. (EC F No. 8, at pp. 14

– 15.) Plaintiff, however, has not alleged that its trade secrets consist only of its customer names and contact information. Although the Complaint is vague in this regard, read liberally in favor of Plaintiff, the Complaint and the at tached Restrictive Agreements appear to allege that Plaintiffs trade secr ets include, inter alia :

Information concerning Wells Fargo’s customers and the details of their insurance needs and policies, including but not limited to information concerning Wells Fargo’s customers and the details of their insurance needs and policies, including but not limited to, customer policies, insurance application information, policy cost information, payment information, profit loss statements , insurance schedules, ce rtificate of holder lists, underwriting information, detailed customer information, detailed employee information, detailed property information, customer financial information, expiration dates of insurance policies and insurance daily reports

. (EC F No. 3 , at ¶ 17);

The books, files, electronic data, and all other records of Wells Fargo, the confidential information contained in [therecords], and especially the data pertaining to Wells Fargo customers, such as customers’ names and addresses, as well as additional information such as customers’ social security numbers, account numbers, financial status, and other highly confidential personal and financial information[.] ( Id

. at ¶ 97) ; and,

[T]he names, addresses, and contact information of the Company’s customers and prospective customers, as well as any other personal or financial information relating to any customer or prospect, including, without limitation, account numbers, balances, portfolios, maturity and/or expiration or renewal dates, loans, poli cies, investment activities, purchasing practices, insurance, annuity policies and objectives [.] ( Id ., Ex s. 1 and 2, at sec. II.) 60. Within these sprawling lists, there are particular pieces of information that might constitute trade secrets, including: “ ins urance application information, policy cost information, payment information, profit loss statements , insurance schedules, certificate of holder lists, [and] underwriting information ”; “ expiration dates of insurance policies and insurance daily reports ”; “ customers’ social security numbers, account numbers, [and] financial status ”; and “ maturity and/or expi ration or renewal dates, loans, . . . investment activities, purchasing practices, [and] , annuity policies and objectives .” ( Id. ) In addition, while not expressly pleaded, this inf ormation, if compiled in a data base or other form for each of Plaintiff’s customers, might also constitute a trade secret. This Court has held that “where an individual maintains a compilation of detaile d records over a significant period of time,” such that they have particular value as a compilation or manipulation of information, “those records could constitute a trade secret even if ‘ similar information may havebeen ascertainable by anyone in the . . . business.’” Koch Measurement Devices, Inc.

v. Armke , 2015 NCBC LEXIS 45, at *13 (N.C. Super. Ct. May 1, 2015) (quoting Byrd's Lawn & Landscaping, Inc. v. Smith , 142 N.C. App. 371, 376, 542 S.E.2d 689, 692 (2001))

. S ee also , State ex rel. Utils. Comm'n v. MCI Telecomms., Corp., 132 N.C. App. 625, 63 4, 514 S.E.2d 276, 282 (1999) ( c oncluding that a “compilation of information” involving customer data and business operations which has “actual or potential commercial value from not being generally known” is sufficient to constitute a trade secret under the NC TSPA) ; RoundPoint Mortg. C o. v. Florez , 2016 NCBC LEXIS 18, at * 31

– 32 (N.C. Super. Ct. Feb. 18, 2016); Red Valve v. Titan Valve , 2018 NCBC LEXIS 41, at *27 (N.C. Super. Ct. Apr. 17, 2018 ) (citing Koch , Byrd’s , and RoundPoint )

. 61. The Court concludes that the allegations in this case , read generously, are minimally sufficient to put Defendants on notice of the trade secrets that they have allegedly misappropriated.
62. Defendants next argue that the claims for misappropriation must be dismissed because Plaintiff fails to allege facts regard ing the means by which Defendants misappropriated Plaintiff’s trade secrets. (ECF No. 8, at pp. 15

– 16.) With regard to Pack and BB&T, the Court agrees. Misappropriation requires the “acquisition, disclosure, or use of a trade secret without express or i mplied authority or consent.” G.S. § 66

- 152(1). Plaintiff does not allege any acts by which Pack and BB&T allegedly misappropriated trade secrets. While Plaintiff a lleges that Pack “had access to” Wells Fargo’s trade secret information while she was emp loyed , thereis no allegation that Pack accessed or acquired trade secrets at any time when she

was not authorized to do so. Plaintiff also fails to allege facts that would show Pack disclosed or used Wells Fargo’ s trade secrets, or that any particular cu stomers for whom Pack was responsible ha ve diverted their business from Wells Fargo to BB&T.
63. In sum, the Complaint does not allege facts to support an allegation of misappropriation against Pack , and the claim against her must be dismissed

. Defendants’ motion to dismiss the misappropriation of trade secrets claims against Pack in Count Five of the Complaint therefore should be GRANTED.
64. Plaintiff also fails to allege facts that support its claim that BB& T misappropriated Wells Fargo’s trade secrets. Plaintiff does not allege that Link, Raynor, or Pack disclosed Wells Fargo’s trade secrets to BB&T or that BB&T acquired Wells Fargo’s trade secrets by some other means. Nor does Wells Fargo claim that BB&T h as used Wells Fargo’s trade secrets, alleging only that “[u]pon information and belief, Individual Defenda nts have used Wells Fargo’s . . . Trade Secret s to identify, contact, solicit, and induce Wells Fargo’s clients.” ( ECF No. 3, at ¶ 56; emphasis added. ) Instead, Plaintiff alleges only that “[u]pon information and belief, the Defendants have misappropriated Wells Fargo’s trade secret information in order to unfairly compete against Wells Fargo and solicit it s customers.” ( Id. at ¶ 102.) The Court is no t required to accept Wells Fargo’s conclusory speculation regarding BB&T’s alleged misappropriation of trade secrets. Washburn , 190 N.C. App. at 327, 660 S.E.2d at 586 ( a ffirming dismissal of misappropriation claim and holding

“ Defendant’s allegation that it ‘believes [Plaintiffs] used its trade sec rets’ is generaland conclusory ”)

. Defendants ’ motion to dismiss the misappropriation of trade secrets

claims against BB&T in Count Five of the Complaint therefore should be GRANTED.
65. Plaintiff’s allegations in support of its claim that Link misappropriated trade secrets are weak , at best . Plaintiff does not expressly allege that Link ever accessed We lls Fargo’s trade secrets without authorization or consent. To the contrary, Plaintiff alleges that Link had ac cess to trade secret information only “by way of his employment with Wells Fargo.” ( ECF No. 3, at ¶ 96.) The Complaint does not allege that Link downloaded, copied, or otherwise removed from Wells Fargo any trade secret information, nor that Link has dis closed trade secrets to BB&T or anyone else. Instead, Plaintiff alleges only that Link had access to Wells Fargo’s trade secret information during his employment with Wells Fargo , that Link became employed by BB&T, that some Wells Fargo customers for whom Link was responsible have transferred their business to BB&T, and “ upon information and belief” Link has used Wells Fargo’s trade secret information to solicit these customers. A significant inferential leap is required from those alleged facts to conclu de that Link misappropriated trade secrets.
66. Nevertheless, the Court is mindful that Plaintiff is entitled to have inferences drawn in its favor a t this stage of the proceedings. Accordingly, the Court concludes that the claim for misappropriation of trad e secrets against Link should survive dismissal. Therefore, Defendants’ motion to dismiss the misappropriation of trade secrets claims against Link in Count Five of the Complaint should be DENIED.67. Plaintiff’s allegations that Raynor , immediately prior to submitting his

resignation, entered Plaintiff’s offices after hours , and downloaded and copied documents that, on information and belief, contained Plaintiff’s trade secrets, sufficiently alleges the act s by which Raynor misappropriated trade secrets. The refore, Defendants ’ motion to dismiss the misappropriation of trade secrets claims against Raynor in Count Five of the Complaint should be DENIED. E. T ortious interference with contractual relations ( Count Seven )
68. As its seventh claim , Plaintiff makes claims for tortious interference with contract against all Defendants, alleging that they each interfered with the Restrictive Agreements between Wells Fargo and Link and Raynor, respectively. (ECF No. 3, at ¶ ¶ 11 0

– 15 .)
69. To state a clai m for tortious interference with contract , a plaintiff must allege: “(1) a valid contract between plaintiff and a third party which confers upon the plaintiff a contractual right against a third party; (2) the defendant knows of the contract; (3) the defen dant intentionally induces the third person not to perform the contract; (4) and in doing so he acts without justification; (5) resulting in actual damage to the plaintiff.” Kuykendall , 322 N.C. at 661, 370 S.E.2d at 387 (citing Childress v. Abeles , 240 N.C. 667, 674, 84 S.E.2d 176 , 181

– 82 (1954) ).
70. As a preliminary matter, the Court has already concluded that Plaintiff’s claims for breach of the non

- solicitation of customers and non

- solicitation of employees covenants in sections III.a., III.b. and III. c. of the Restrictive Agreements should be dismissed because those covenants are invalid andunenforceable. Since no valid contract existed based on these covenants, Plaintiff’s

claims that the Defendants interfered with those covenants in the Restric tive Agreements must also fail. Medical Staffing Network, Inc. , 194 N.C. App. at 658, 670 S.E.2d at 328 (affirming dismissal of tortious interference claim where trial court had found restrictive covenants overbroad and unenforceable). Accordingly, Defen dants ’ motion to dismiss the claims for tortious interference in Count Seven of the Complaint claiming interference with the covenants not to solicit customers and employees should be GRANTED.
71. Similarly , to the extent that Plaintiff attempts to make a clai m for tortious interference with contract based on Defendants’ alleged interference with the return of property provisions in Restrictive Agreement, the Court has dismissed the claim for breach of this provision as against Link. In addition, the Complaint does
not plead any facts to support an allegation that Link, Pac k, or BB&T engaged in any conduct intended to induce Raynor’s alleged breach of the return of property provisions. Defendants ’ motion to dismiss the claims for tortious interference in Count Seven of the Complaint claiming interference with the return of property provisions should be GRANTED

. 72. This leaves only the claim that Defendants intentionally interfered with the confidentia l information covenant s in the Restrictive Agreements. With regard to this claim, the Complaint fails to plead any facts to support an allegation that Pack interfered with the Restrictive Agreements between Wells Fargo and Link andRaynor. T he claim aga inst Pack for tortious interference fails and should be

dismissed.
73. Defendant s contend that the claim for tortious interference against BB&T should be dismissed because Plaintiff does not plead facts in support of the allegation that BB&T intentionally ind uced Link or Raynor to breach the Restrictive Agreements. (ECF No. 8, at p. 17

. ) Defendants also argue that the claim for tortious interference against BB&T fails because the allegations in the Complaint establish

t hat Wells Fargo and BB&T are competitor s, but Plaintiff does not allege facts supporting the conclusory claim that BB&T acted without justification in interfering with the Restrictive Agreements. ( Id . at pp. 17

– 18.) The Court agrees with Defendants on both contentions.
74. First, as with Pack, th e Complaint does not contain a single allegation of fact that BB&T engaged in any conduct designed to interfere with the Restrictive Covenants. Unlike the vast majority of cases that arise in this context, Plaintiff does not allege that BB&T recruited Link and Raynor as part of a campaign to raid W ells Fargo’s sales force, that BB&T encouraged Link and Raynor to secretly acquire Wells Fargo’s confidential information, nor that BB&T directed Link and Raynor to target their former Wells Fargo customers an d solicit their commercial insurance business. Rather, Plaintiff alleges only that Link and Raynor resigned from Wells Fargo, became employed with BB&T, and subsequently diverted several customers from Wells Fargo to BB&T. These allegations do not suffic iently state that BB&T intentionally interfered with the Restrictive Covenants.75. In addition, Wells Fargo and BB&T were competitors in the commercial

insurance industry. The North Carolina Supreme Court has held that if the defendant’s interference is “for a legitimate business purpose, his actions are privileged. . . . [C]ompetition in business constitutes justifiable interference in another’s business relations and is not actionable so long as it is carried on in furtherance of one’s own interest and by m eans that are lawful.” Peoples Sec. Life Ins. Co. v. Hooks , 322 N.C. 216, 221, 367 S.E.2d 647, 650 (1988). This “privilege [to interfere] is conditional or qualified; that is, it is lost if exercised for a wrong purpose. In general, a wrong purpose exist s where the act is done other than as a reasonable and bona fide attempt to protect the interest of the defendant which is involved.” Id. at 220, 367 S.E.2d at 650.
76. “ If the defendant's only motive is a malicious w ish to injure the plaintiff, [defendant’s ] actions are not justified.” Hooks , 322 N.C. at 221, 367 S.E.2d at 650. The malice required to overcome a justification of business competition is legal malice, and not actual malice. Childress , 240 N.C. at 675 , 84 S.E.2d at 182 (“It is not necessary, however, to allege and prove actual malice in the sense of personal hatred, ill will, or spite in order to make out a case for the recovery of compensatory damages against the outsider for tortiously inducing the breach of the t hird person’s contract with the plaintiff. The term ‘malice’ is used in this connection in its legal sense, and denotes the intentional doing of the harmful act without legal justification.”); Murphy v. McIntyre

, 69 N.C. App. 323, 328

– 29 , 317 S.E.2d 397, 401 (1984) (noting that legal malice “means intentionally doing a wrongful act or exceeding one's legal right orauthority in order to prevent the making of a contract between two parties” and the

act “must be taken with the design of injuring one of the p arties to the contract or of gaining some advantage at the expense of a party”); Robinson, Bradshaw, & Hinson, P.A. v. Smith

, 129 N.C. App. 305, 318, 498 S.E.2d 841, 851 (1998) (“A person acts with legal malice if he does a wrongful act or exceeds his lega l right or authority in order to prevent the continuation of the contract between the parties.”).
77. In order to survive dismissal, a complaint alleging tortious interference “must admit of no motive for interference other than malice.” Pinewood Homes, Inc. v. Harris , 184 N.C. App. 597, 605, 646 S.E.2d 826, 832

– 33 (2007); Filmar Racing, Inc. v. Stewart , 141 N.C. App. 668, 674, 541 S.E.2d 733, 738 (2001) (“[W]e have held that the complaint must admit of no motive for interference other than malice

. ”); Kerry Bo denhamer Farms, LLC v. Nature's Pearl Corp. , 2017 NCBC LEXIS 27, at *16 (N.C. Super. Ct. Mar. 27, 2017) (h olding “[t]he pleading standards for a tortious interference with contract claim are strict. T he complaint must admit of no motive for interference other than malice

. When the complaint reveals that the interferen ce was justified or privileged, this Court must grant a motion” to dismiss ( citations and quotations omitted ) ).
78. Here, Plaintiff has alleged that the Defendants, including BB&T, acted “without justification”, but does not plead facts supporting a claim that BB&T acted with malice or for any improper purpose, nor that BB&T was motivated by anything other than an interest in successfully competing against Wells Fargo . (ECF No. 3, at ¶ 113 .) T he recruitment of employees from a business competitor is presumptivelyprivileged competitive activity, absent an allegation of legal malice. Hooks , 322 N.C.

at 221 , 367 S.E.2d at 650

. The claim for tortious interfer ence as against BB&T fail s and should be dismissed

. 79. With regard to the claims against Link and Raynor for tortious interference with the confidentiality covenants in the Restrictive Agreements , Plaintiff has not alleged facts to support an allegation that Raynor induced Link to violate his confidentiality covenant. To the contrary, Raynor resigned his employment with Wells Fargo over five months after Link left Wells Fargo and became employed with BB&T, and Plaintiff offers no explanation as to why Raynor would encourage Link to violate con fidentiality restrictions while both were still employed with Wells Fargo. The allegations do not support a claim for tortious interference with the confidentiality covenants against Raynor. Therefore, the tortious interference with contract claim based on these allegations fails and should be dismissed.
80. With regard to Link, Plaintiff alleges that “Raynor told his manager at Wells Fargo that [ ] Link encouraged him to leave Wells Fargo for BB&T.” (ECF No. 3, at ¶ 41.) While this is not an express alleg ation that Link encouraged Raynor to also violate his confidentiality covenant, the Court concludes that the allegation arguably would support the claim for tortious interference against Link, and Plaintiff’s claim that Link tortiously interfered with the confidentiality covenant in Raynor’s Restrictive Agreement.81. Therefore, Defendants’ motion to dismiss Count Seven for tortious

interference with contractual relations is DENIED as to Plaintiff’s claim that Link interfered with the confidentiality covenant i n Raynor’s Restrictive Agreement. Defendants’ motion to dismiss Count Seven for tortious interference with contractual relations as to all other Defendants and claims is GRANTE D, and such claim s are DISMISSED. F. U nfair and d eceptive trade practices ( Count Eight )
82. As its Eighth claim , Plaintiff alleges that all Defendants have engaged in unfair and deceptive acts or practices in violation of G.S. § 75

- 1.1. (ECF No. 3, at ¶¶ 116

– 120.) Plaintiff specifically alleges that

Defe ndants’ wrongful acts, include[e] but [are] not limited to, Defendants’ misappropriation of trade secrets, conspiracy and fraudulent scheme to divert business opportunities away from Wells Fargo, theft of company property to gain an unfair advantage, interference with Defendant Link and D efendant Raynor’s contractual obligations owed to Wells Fargo, and other deceptive, unethical and unscrupulous conduct[.] (ECF No. 3, at ¶ 117.)

83. “To establish a prima facie case of unfair and deceptive trade practices, a plaintiff must show that (1) the de fendant committed an unfair or deceptive act or practice, (2) the act was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.” White v. Consol. Planning, Inc. , 166 N.C. App. 283, 3 03, 603 S.E.2d 147, 161 (2004).
84. Defendant s correctly point out that the facts pleaded in the Complaint do not support allegations of a “ conspiracy and fraudulent scheme to divert businessopportunities away from Wells Fargo .” Plaintiff does not make claims for fraud or

conspiracy, and there are no facts alleged that would support such claims. Plaintiff makes no argument in support of these allegations, and the claim for unfair and deceptive trade practices cannot be based on such conduct.
85. In addition, the underlying claims against Pack and BB& T for misappropriation of trade secrets and intentional interference with contract have been dismissed. Plaintiff does not allege, nor argue, that Pack or BB&T engaged in any other conduct that would support a claim for unfair trade practices. Therefore, Defendants’ motion to dismiss the claims against Pack and BB&T for unfair and deceptive trade practices in Count Eight of the Complaint should be GRANTED.
86. With regard to the claims against Link and Raynor, “[a] violation of the [NCTSPA] constitutes an unfair act or practice under N.C. Gen. Stat. § 75

- 1.1.” Medical Staffing Network, Inc. , 194 N.C. App. at 659, 670 S.E.2d at 329 (citing N.C. Gen. Stat. § 66

- 146(2007)). Since Plaintiff’s claims against Link and Raynor for misappropriation of trade secre ts survive dismissal, so must the claims for violation of G.S. § 75

- 1.1. Defendants’ motion to dismiss the claims against Link and Raynor for unfair and deceptive trade practices in Count Eight of the Complaint should be DENIED. III. CONCLUSION
THEREFORE, IT IS ORDERED that Defendants’ motion to dismiss is GRANTED, in part, and DENIED, in part, as follows:1. Defendants’ motion to dismiss Plaintiff’s First and Second Count s for breach

of contract are GRANTED , and the claims are DISMISSED

. 2. Defendants’ motion to dismiss Plaintiff’s Count Three for breach of contract against Link is DENIED.
3. Defendants’ motion to dismiss Count Four for breach of contract against Link is GRANTED , and the claim is DISMISSED

. 4. Defendants’ motion to dismiss Count Fi ve for misappropriation of trade secrets against Pack and BB&T is GRANTED , and those claims are DISMISSED

. 5. Defendants’ motion to dismiss Count Five for misappropriation of trade secrets against Link and Raynor is DENIED.
6. Defendants’ motion to dismiss Coun t Seven for tortious interference with contractual relations is DENIED as to Plaintiff’s claim that Link interfered with the confidentiality covenant in Raynor’s Restrictive Agreement.
7. Defendants’ motion to dismiss Count Seven for tortious interference with contractual relations as to all other Defendants and claims is GRANTED, and those claims are DISMISSED

. 8. Defendants’ motion to dismiss the claims against Pack and BB&T in Count Eight f or unfair and deceptive trade practices is GRANTED , and those claims are DISMISSED

. 9. Defendants’ motion to dismiss the claims against Link and Raynor in Count Eight for unfair and deceptive trade practices is DENIED.This, the 8th day of May , 2018.

/s/ G regory P. McGuire Gregory P. McGuire Special Superior Court Judge for Complex Business Cases