HomeMy WebLinkAbout05-3550
HUB GROUP, INC., a Delaware Corporation.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
Plaintiff
v.
NO. DS' - 3 S'S' d
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
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CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty A venue
Carlisle. Pennsylvania 17013
(717) 249-3166
HUB GROUP, INC., a Delaware Corporation,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. OS- 3S5Cl
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF
Plaintiff, Hub Group, Inc. ("Hub Group"), by its attorneys, alleges as follows for
its Complaint against Defendant Marcia Delaney ("Delaney"):
INTRODUCTION
I. Hub Group seeks injunctive relief to enjoin Delaney from (I) continuing
to violate the terms of her Non-Competition Agreement that she entered into with Hub Group,
and (2) from using and threatening to use Hub Group's trade secrets and confidential and
proprietary business information. In violation of her Non-Competition Agreement, Delaney has
solicited Hub Group's customers on behalf of her new employer Trailer Transport Systems, Inc.
("TTS"), a direct competitor of Hub Group. Additionally, since joining TTS, Delaney has used
and threatens to continue to use Hub Group's confidential and proprietary information. The
specific details surrounding Delaney's improper acts are detailed herein. Hub Group further
seeks damages and permanent injunctive relief for Delaney's violations of her non-compete
agreement, the Uniform Trade Secrets Act, Pa. C.S.A.. ~~ 5301-5308, and the common law of
breach of fiduciary duty and conversion.
NATURE OF ACTION
2. This is an action for preliminary injunction, permanent injunction, and
damages arising out of Delaney's violation of her non-compete agreement and her theft and
misappropriation of Hub Group's trade secret and proprietary information in violation of the law.
Hub Group seeks to enjoin Delaney: (I) from directly or indirectly contacting or communicating
with or attempting to solicit intermodal, truckload brokerage, logistics, LTL or any other
Transport Business from any person or entity who was a customer of Hub City Pittsburgh, L.P.
(and its corporate successors in interest) on Delaney's last day of employment with Hub Group;
(2) to return to Hub Group its confidential information; and (3) to enjoin Delaney to account for
the whereabouts of Hub Group's confidential and proprietary information. Hub Group also
seeks all damages it has suffered as a result of Delaney's actions, and monies for Hub Group's
efforts to recover its property.
PARTIES. JURISDICTION. AND VENUE
3. Hub Group, Inc. is a Delaware corporation, with its principal place of
business in Downers Grove, Illinois.
4. On information and belief, Delaney is an individual residing at 191
Simmons Road, Mechanicsburg, PA 17055, in this County. Delaney was recently employed for
approximately five and one-half years at Hub Group as an Intermodal Dispatcher.
5. Delaney was an employee of Hub Group on November I, 1999, and was
hired by Hub City Pittsburgh, L.P. Hub Group was the parent company to Hub City Pittsburgh,
L.P. at the time Delaney was hired and is currently the parent company to its corporate successor
in interest.
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6. On March 23, 2005, Delaney gave two weeks notice that she was
resigning her employment She worked out of her home throughout her employment at Hub
Group.
7. The Court has jurisdiction over this action and the parties pursuant to 42
Pa. C.S.A. S 5322. Delaney is a natural person domiciled and residing in Pennsylvania. She has
transacted business in this State and has made and performed one or more applicable contracts
and promises substantially connected with this State.
8. Venue is proper in Cumberland County pursuant to Pa. RC.P. 1006
because this cause of action arises out of events occurring in Cumberland County.
FACTS COMMON TO ALL COUNTS
Hub Group's Business
9. Hub Group is a leading customer-focused, non-asset based transportation
management service company that provides comprehensive intermodal, truckload, LTL,
international and logistics services to its customers located worldwide. Specifically, Hub Group
arranges for the transportation of goods in trailers and/or containers on behalf of third parties
from their point of origin to their final destination throughout the United States and elsewhere.
10. With 30 offices located throughout the United States, Canada and Mexico,
Hub Group has become the largest intermodal marketing company in North America.
11. Hub Group's Intermodal Dispatchers maintain contact with current and
potential customers, arrange for the pick up and shipping of customers' inventory, trace
shipments, and provide overall customer service. They provide direct support to Hub Group's
Account Managers. Hub Group's Intermodal Dispatchers have access to and use confidential
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trade secrets information, including, but not limited to, customer lists, customer contact
information, and customer rates and pricing schedules.
12. Some of Hub Group's customers do business with Hub Group strictly
based upon the competitive pricing that Hub Group offers on its products. Some of those
customers seek bids from Hub Group and other entities and then choose Hub Group based upon
its superior pricing. Other customers contract with Hub Group for ongoing (or multiple
transaction) service, also at least partially on the basis of Hub Group's competitive pricing.
Hub Group's Confidential and Proprietary Information
13. Hub Group has invested substantial time and money developing
information and knowledge relating to its customers, the transportation management services
industry, and Hub Group's business of selling comprehensive intermodal, truckload, LTL,
international and logistics services to its customers.
14. Hub Group organizes, maintains and accesses this information using
several confidential and proprietary computer programs that Hub Group has either created or
substantially modified and expanded to fit its business needs. These confidential and proprietary
programs include its Transactional Processing System ("TPS").
15. TPS is a computer-based operating platform created by Hub Group. TPS
contains confidential customer and business information including, but not limited to, customer
identification and contact information, vendor identification and contact information, customers'
current and past orders, pricing, margins, historical and current billing data, data regarding
equipment type used, the timing of load pick-ups and deliveries, and other sensitive and
confidential business information.
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16. Specifically, TPS contains the rate information for Hub Group's
customers. Given the competitive nature of Hub Group's industry, Hub Group derives
independent economic value from keeping its pricing and rate information confidential. If a
competitor were to learn of Hub Group's pricing and rate structures for certain customers, the
competitor could utilize this information to undercut Hub Group's rates and take business away
from Hub Group.
17. Hub Group has developed and maintained this proprietary program at
great expense in excess of millions of dollars and continuously updates related databases with
current confidential customer and business information. This application and its related
databases are maintained on Hub Group's network server located at its corporate headquarters in
Downers Grove, Illinois.
18. Hub Group's Intermodal Dispatchers constantly access and rely upon TPS
to obtain customer and other business related information. Because a few of Hub Group's
lntermodal Dispatchers work from home on a daily basis and many work from home on
weekends or nights, it is critical that the Intermodal Dispatchers be able to remotely access and
obtain Hub Group's customer data and other proprietary business information regarding accounts
in their territories.
] 9. As a result, Hub Group maintains a computer network known as a Virtual
Private Network ("VPN"), which allows Hub Group's employees to remotely access Hub
Group's network from virtually any location. Specifically, Intermodal Dispatchers are able to
access TPS, their business e-mail, and other software programs from their homes.
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20. Hub Group equips Intermodal Dispatchers who work off-site with a Hub
Group issued computer, which allows the Intermodal Dispatchers to access Hub Group's VPN.
21. Hub Group's VPN is a secure network and can only be accessed by Hub
Group's employees who are authorized to access the VPN.
22. Thus, using the VPN, Hub Group's Intermodal Dispatchers access Hub
Group's computers and its computer system to provide transportation management services to
Hub Group's customers in interstate commerce throughout the United States and across state
lines.
23. Delaney used a Hub Group-issued computer located in her home to
connect to Hub Group's network through the VPN. She frequently accessed TPS and other Hub
Group software applications on Hub Group's network to perform her job duties.
24. The TPS is on the cutting edge of computerized information technologies
that gives Hub Group a competitive edge over other companies in the transportation management
services industry.
25. During her tenure at Hub Group, Delaney was authorized to, and routinely
did, access Hub Group's TPS using the VPN network for the purpose of supporting Account
Managers in making sales to and servicing customers of Hub Group.
Hub Group Protects Its Information
26. Hub Group requires that its customer and business information be kept
strictly confidential by its employees and restricts access to this information. Hub Group takes
specific measures to preserve the confidentiality of this information, including, but not limited to,
the following:
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(a) Hub Group restricts access to its computerized information, (including its
TPS), computer network (including its VPN), and computers through the use of passwords.
(b) Hub Group prohibits the use of its property, materials or facilities not
directly related to Hub Group's business, or the removal or borrowing of Hub Group's property
without permission;
(c) Hub Group restricts access to its offices by, for example, requiring a key
for after hours access;
(d) Hub Group requires all of its employees to sign "Receipt &
Acknowledgment of Hub Group's Employee Guide" and "Receipt and Acknowledgment of the
Hub Group Code of Business Conduct and Ethics" -forms stating that the employee has read and
will abide by these policies which prohibits employees from using or improperly disclosing any
confidential, proprietary and/or trade secret information belonging to Hub Group;
(e) Hub Group's Confidential Information Policy prohibits employees from
using or disclosing Hub Group's confidential business information for any
purpose other than to advance Hub Group's business interests; and
(f) Upon an employee's separation from Hub Group, any passwords that he or
she may have been given to access the above programs are immediately disabled to prevent any
further access by that employee.
27. Hub Group rigorously maintains the confidentiality of its business
information because the information provides Hub Group with a competitive advantage in the
marketplace from which Hub Group derives economic value.
28. Hub Group has spent millions of dollars and many years developing and
marketing a variety of transportation management services and developing and maintaining its
proprietary and confidential computer programs and related databases. Hub Group's knowledge
and information of its customers and its business as contained in its TPS sets it apart from its
competitors.
29. Through its efforts, Hub Group has invested substantial time and money in
developing information and knowledge about its services, its customers, and its customer's
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demands. Much of the information and data that Hub Group develops regarding its
transportation management services and its clients are not publicly available.
30. Hub Group's confidential information is of great value to Hub Group and
could give any competitor, including Trailer Transport Systems, Inc. ("TTS") and its agents and
employees (such as Marcia Delaney) who acquired that information, an unfair, competitive
advantage. A competitor could use Hub Group's information unfairly to price its products and
services, to move business and/or long-standing customer relationships away from Hub Group,
and to obtain a head start or streamline in its development, product, and service efforts.
Marcia Delanev's EmpIovment with Hub Group
31. On November I, 1999, Hub Group hired Delaney as an Intermodal
Dispatcher for Hub Group.
32. While employed by Hub Group, Delaney worked remotely from her home
in Mechanicsburg, Pennsylvania (which is located in Cumberland County).
33. Delaney provided dispatching support to two (2) Account Managers, one
of who was Jeffrey M. Clancy ("Clancy"). Her job duties included, but were not limited to,
taking telephone inquiries from customers, dispatching to truckers, tracing on the railroads,
setting up delivery appointments, and handling customers problems.
34. Hub Group provided Delaney with a computer and Company software to
facilitate her working at home. Delaney had authorized, password-based access to Hub Group's
VPN, Lotus Notes, and TPS. Through her access to those programs, Delaney could and did
obtain confidential and proprietary information, including but not limited to, Hub Group's
customer base and its pricing, bids, and profits/margins on various sales.
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35. In the calendar year 2004 and as of March of 2005, Delaney serviced 20
active accounts.
Marcia Delanev's Non-Competition A!!reement and Hub Group's Business Conduct and
Ethics Code and Emplovee Guide
36. As a condition of and in consideration for her initial employment with
Hub Group, Delaney entered into a non-competition agreement with Hub City Pittsburgh, L.P.
on November 4, 1999.
37. The non-competition agreement that Delaney signed protects Hub Group's
legitimate interests in its confidential business and customer information and its long-standing
customer relationships.
38. In her non-competition agreement, Delaney acknowledged that she would
be privy to Hub Group's trade secrets and confidential information during the term of her
employment with Hub Group. She also acknowledged that Hub Group's trade secrets and
confidential information were unique assets, were the property of Hub Group, and were
developed and perfected over considerable time at substantial expense to Hub Group.
Furthermore, she acknowledged the disclosure of such information would cause injury, loss of
profits, and loss of goodwill to Hub Group.
39. Delaney thus agreed that she would protect the confidentiality of all of
Hub Group's trade secrets and confidential information and not retain, use, or disclose, directly
or indirectly, any of Hub Group's trade secrets and/or confidential information during her
employment and thereafter.
40. In addition, Delaney's agreement provides:
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Section 2. Al!reement not to Compete. During the term
beginning on the date of this Agreement and continuing until one
year after the Employee is no longer an employee of Hub (the
"Term"), the Employee shall not directly or indirectly contact or
communicate with or attempt to solicit intermodal, truckload
brokerage, logistics, L TL or any other Transport Business from
any person or entity who was a customer of Hub on Employee's
last day of employment with Hub. In addition, Employee agrees
that during the Term, the Employee shall not directly or indirectly
contact or communicate with any person employed by Hub on
Employee's last day of employment with Hub regarding possible
employment or association with any entity or person other than
Hub.
As defined in her agreement "Hub" was Hub City Pittsburgh, L.P. Thus, Delaney agreed not to
contact, communicate with, and/or solicit the entities that were the customers of Hub City
Pittsburgh, L.P (and its corporate successors in interest) on Delaney's last day of employment
with Hub Group ("Customers").
41. Her agreement also specifically provides:
Section 6. Confidential Information. The Employee
acknowledges that, by virtue of the Employee's employment by
Hub, the Employee will be granted otherwise prohibited access to
confidential and proprietary data of Hub, which information is not
known either to competitors of Hub or otherwise. This
information (herein, the "Confidential Information") includes, but
is not limited to: (i) specialized strategies, practices and procedures
for obtaining and maintaining clients; (ii) computer systems,
software programs and related enhancements of Hub; (iv) [sic]
policies, practices and procedures relating to pricing of services,
including agreements with the providers of transportation and the
related fee schedules; (v) ongoing service agreements information
relating to the identity of clients of Huh: (vi) key contacts at such
clients; (vii) specifics concerning the nature and extent of services
previously or currently being provided to or planned for such
clients; (viii) rate quotes for customers; and (ix) any other essential
information concerning such clients' particularized needs. The
Employee agrees that, beginning on the date hereof and continuing
until one (1) year after the Employee is no longer an employee of
Hub, the Employee will not, without the prior written consent of
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the Hub, divulge any Confidential Information or make use of it
for the Employee's own purposes or the purposes of another. In
addition, the Employee agrees that the Employee will, prior to the
last day of his employment by Hub. turn over to Hub all
Confidential Information in the Employee's possession in
whatever form, including, without limitation, copies and
information stored on computer. The foregoing restrictions shall
not prohibit the Employee from divulging Confidential
Information to the extent required by the lawful order of a court or
agency of competent jurisdiction; provided, however, to the extent
that any such court or agency seeks to compel the Employee to
divulge any Confidential Information, the Employees shall
promptly inform Hub and shall take such reasonable steps to
prevent disclosure of such Confidential Information until Hub has
been informed of such requested disclosure and Hub has had an
opportunity to respond to such court or agency.
A true and correct copy of Delaney's signed non-competition agreement is attached as Exhibit A.
42. Moreover, on December 2, 2003, Delaney signed a Receipt and
Acknowledgement of the Hub Group Code of Business Conduct and Ethics ("the Code"). which
recited her review and understanding of the Code and her agreement to abide by its terms. A
true and correct copy of Delaney's signed acknowledgement of her receipt of the Code is
attached as Exhibit B.
43. The Code provides:
4. Confidentiality
Employees, Officers and directors of [Hub Group] must
maintain the confidentiality of confidential information entrusted
to them by [Hub Group] or its suppliers or customers, except when
disclosure is authorized by the Law Department or required by
laws, regulations or legal proceedings. Whenever feasible,
employees, officers and directors should consult the Law
Department if they believe they have a legal obligation to disclose
confidential information. Confidential information includes all
non-public information that might be of use to competitors of [Hub
Group], or harmful to [Hub Group] or its customers if disclosed.
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44. The Code also provides:
6. Protection and Proper Use of Company Assets
All employees, officers and directors should protect [Hub Group's]
assets and ensure their efficient use. Theft, carelessness, and waste
have a direct impact on [Hub Group's] profitability. All [Hub
Group's] assets should be used for legitimate business purposes.
A true and correct copy of Hub Group's Code of Business Conduct and Ethics is attached hereto
as Exhibit C.
45. In addition, on January 4,2005, Delaney signed a Receipt &
Acknowledgement of Hub Group's Employee Guide (the "Employee Guide"), in which she
specifically acknowledged the following:
I am aware that during the course of my employment confidential
information may be made available to me including, without
limitation, marketing strategies, customer lists, pricing policies and
other related information. I understand that this information is
critical to the success of Hub Group and must not be disclosed or
used outside of Hub Group's premises or with non-Hub Group
employees. I have read and agree to abide by Hub Group's policy
regarding confidential information. In the event of termination of
employment, whether voluntary or involuntary, I hereby agree not
to disclose or use this information with any other individual or
company.
A true and correct copy of Delaney's signed acknowledgment of her receipt of the Employee
Guide is attached hereto as Exhibit D. In addition, the complete Confidential Information Policy
section of the Employee Guide is attached hereto at Exhibit E.
46. During the course of her employment with Hub Group, Delaney was
entrusted with and became intimately familiar with a variety of Hub Group's trade secrets and
confidential information. Specifically, Delaney had access to Hub Group's confidential and
proprietary customer contact and pricing information, fuel surcharges, and customer bids.
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47. Hub Group properly compensated Delaney at all times during her
employment with Hub Group and otherwise fulfilled all of its obligations to her.
Delanev Quits Hub Group
48. On March 23, 2005, Delaney contacted Phil Bayle ("Bayle"), her
supervisor and Hub Group's Vice President, Eastern Region, Intermodal Operations &
Administration, via telephone and tendered her two-week notice that she was resigning her
employment at Hub Group. Per Bayle's request, she later sent an e-mail to Bayle containing her
written notice of resignation.
49. Delaney remained employed at Hub Group until March 30, 2005.
Between March 23, 2005 and March 30, 2005, Hub Group retained Delaney to aid in
transitioning her Hub Group accounts to other employees.
50. Delaney accepted a position as Intermodal Dispatcher at Trailer Transport
Systems, Inc. ("TTS"), a direct competitor of Hub Group, on March 21, 2005. Her first day at
work for TTS was April 4, 2005.
5 I. Delaney had communications with TTS about her potential employment
with TTS as early as March 3, 2005.
52. As an Intermodal Dispatcher at TTS, Delaney now performs the same or
substantially similar duties and more that she formerly performed for Hub Group. Specifically,
Delaney's job duties at TTS include customer service, arranging for shipping services, tracing
shipments, and putting together rates and price quotes for customers.
53. In fact, Delaney works with former Hub Group customers through her
employment at TTS.
.
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Delanev's Violation of Her Non-Competition Al!reement and Other Emplovment
Al!reements with Hub Group
54. Delaney has violated her non-compete agreement by contacting and
soliciting Hub Group's Customers on behalf of TTS, a direct competitor of Hub Group, while
she worked for Hub Group and after she began working for TTS.
55. On March 28, 2005, while she was still employed by Hub Group, Delaney
exchanged e-mail communications with Jeffrey M. Clancy ("Clancy"), a former Hub Group
Account Manager for Hub, regarding a Hub Group customer that she serviced while at Hub
Group. The e-mail communications indicate that Delaney, Clancy, and TTS were soliciting that
customer on behalf of TTS.
56. In addition, immediately after leaving Hub Group, Delaney began
contacting Hub Group's Customers for the purpose of soliciting those clients to purchase
services that compete directly with those sold by Hub Group. Delaney had worked with these
Customers during her employment at Hub Group. Through her solicitation, Delaney used Hub
Group's confidential and proprietary customer contact and pricing information.
57. During Delaney's solicitation of some of these Customers, she sought to
undercut Hub Group's rates using her knowledge of Hub Group's confidential information.
58. Notwithstanding Delaney's obligations under her non-competition
agreement, other employment agreements, and applicable law, Delaney has improperly and
unlawfully utilized Hub Group's trade secrets and confidential information to solicit Hub
Group's Customers and potential customers on behalf ofTTS.
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Delanev's misappropriation of Hub Group's trade secrets and confidential information
59. Since joining TTS, Delaney has utilized Hub Group's trade secrets and
confidential information in her capacity as TTS' s Intermodal Dispatcher.
60. By way of example. on March ]4,2005, Delaney received an e-mail
communication from Clancy, which contained Hub Group's confidential account information.
Shortly after Clancy sent this e-mail, he resigned his position at Hub Group. TTS currently
employs Clancy.
61. Delaney received this March 14.2005 e-mail while she was negotiating
her employment with TTS. Upon information and belief, Clancy and Delaney still have this list
in their possession, and Delaney and he use it or threaten to use it to solicit Hub Group's current
and former customers.
62. In addition, in an e-mail communication on April II. 2005, Delaney
communicated Hub Group's shipping rates for certain Hub Group customers to Mark Ervin
("Ervin"), TTS's Vice President. Delaney gave Ervin the rates to ensure that TTS could
undercut Hub Group's rates. Hub Group believes that Delaney derived this rate information
through her employment at Hub Group.
63. On May 18,2005, Delaney also sent an e-mail communication to a former
employee of Hub Group, which contained Hub Group's rates for two routes. The former
employee's current employer directly competes with Hub Group, but the employer does not have
contracts with railroads. The former employee contacted Delaney to ask TTS to provide railroad
freight services. Delaney communicated Hub Group's rates to Ervin. Ervin then provided rates
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to Delaney, which she then communicated to the former employee. The rates that Delaney
quoted to the former employee were lower than Hub Group's rates.
64. Delaney has used and threatens to continue to use Hub Group's trade
secrets and confidential information in unfairly soliciting and procuring Hub Group Customers.
65. As a result of Delaney's actions, Hub Group has and will continue to be
significantly and irreparably injured. Hub Group has lost and is threatened with losing even
more customers and deals in large amounts that can never be exactly determined. In addition, as
a result of Delaney's conduct, Hub Group is losing and will continue to lose its valuable
goodwill while its reputation is being damaged. Finally, Hub Group is threatened with the
improper and unauthorized disclosure of its trade secrets and confidential information. The
value of that information will be substantially diminished or destroyed as a result of Delaney's
unauthorized use of that information, and Hub Group unfairly is disadvantaged in competing
with TTS.
COUNT I
BREACH OF CONTRACT
66. This Count is brought against Delaney for breach of her non-competition
agreement ("Agreement") and provisions of Hub Group's Code of Business Conduct and Ethics
("Code"), and Confidential Information Policy contained in the Employee Guide ("Confidential
Information Policy"), which are attached hereto as Exhibits A, B, C, D, and E. Hub Group
realleges and incorporates herein by reference Paragraphs 1 through 65.
executed with Hub Group are all valid and enforceable contracts. The post-employment activity
67. The Agreement, Code, and Confidential Information Policy that Delaney
restrictions contained in Sections 2 and 6 of the Agreement are reasonable in scope and duration
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and are reasonably necessary to protect Hub Group's legitimate business interests, including Hub
Group's trade secrets and confidential information and its long-term customer relationships.
68. Additionally, to the extent these post-employment activity restrictions are
found to be unreasonable in scope, this Court is expressly authorized under the Agreement to
modify those restrictions and render them reasonable and enforceable.
69. Hub Group has fully performed all of the obligations it owes Delaney
under the Agreement, Code, and Confidential Information Policy.
70. In contravention of her obligations to Hub Group under the Agreement,
Code, and Confidential Information Policy, Delaney has entered into employment with a
business that is in direct competition with Hub Group and has solicited Hub Group's customers
using Hub Group's trade secrets and confidential information.
71. In addition, Delaney has violated the terms of the Agreement, Code, and
Confidential Information Policy by:
a. engaging in business which directly competes with Hub Group; and
b. contacting, communicating, and soliciting Transport Business from Hub
Group Customers; and
c. divulging Hub Group's trade secrets and confidential information for the
purpose of directly competing with Hub Group;
d. using Hub Group's confidential information, including customer lists,
rates, and pricing policies, to solicit Hub Group Customers; and
e. failing to protect Hub Group's assets, including customer lists, customer
rate information, and pricing polices, and not using this information for
legitimate business purposes.
72. Hub Group has been injured irreparably and otherwise, as a result of
Delaney's breaches of contract.
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COUNT II
MISAPPROPRIATION OF TRADE SECRETS 12 Pa. C.S.A. !i!i 5301-5308
73. This count is brought against Delaney for actual and/or threatened
misappropriation of trade secrets in violation of applicable law. Hub Group repeats and realleges
the allegations contained in Paragraphs I through 72 above as if fully set forth herein.
74. The confidential and proprietary business information including Hub
Group's uniquely created or modified Lotus Notes and TPS computer applications and the
customer and business information contained in the databases for these programs entrusted to
Delaney by Hub Group constitutes trade secrets. Hub Group derives independent economic
value from that information not being generally known to the public and not being readily
ascertainable by proper means by other persons who can obtain economic value from its
disclosure or use. The information was the subject of reasonable efforts to maintain its secrecy.
75. Delaney was obligated by applicable law to maintain the secrecy of that
information. Nonetheless, Delaney has breached her duties to Hub Group by removing this
information from Hub Group and threatening to or disclosing this information to others,
including TTS.
76. Delaney has been or will be unjustly enriched by said threatened or actual
misappropriation of Hub Group's trade secrets, and, unless restrained, Delaney will continue to
use, divulge, threaten to or otherwise misappropriate Hub Group's trade secrets.
77. Delaney's misappropriation of trade secrets has been willful and
malicious.
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78. Hub Group has been injured, irreparably and otherwise, and is threatened
with additional and on-going injuries as a result of the threatened and actual misappropriation of
trade secrets by Delaney, as alleged above.
79. Hub Group has suffered damages as a result of Delaney's actions in an
amount to be determined at trial and because Hub Group's remedy at law may be inadequate or
incomplete, seeks temporary, preliminary, and permanent injunctive relief to recover and protect
its information, its goodwill, and other legitimate business interests. Hub Group also seeks to
recover from Delaney any gains, profits, and advantages she may have obtained as a result of the
acts described herein in an amount to be determined and an award of exemplary damages and
attorney's fees pursuant to 12 Pa. C.S. S 5304(b) and S 5305.
COUNT III
BREACH OF FIDUCIARY DUTY
80. Hub Group repeats and realleges the allegations contained in paragraphs I
through 79 above as if fully set forth herein.
81. As an employee of Hub Group, Delaney had a duty to act in good faith
and solely for the benefit of Hub Group in all matters for which she was employed.
82. Delaney's fiduciary duty included a duty to guard and not misuse
confidential and trade secret information of Hub Group.
83. By and through Delaney's conduct, as described above, Delaney has
breached her common law fiduciary duty to Hub Group, among other things, to protect the
interests of Hub Group, and to refrain from doing anything that would work to Hub Group's
injury.
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84. Hub Group has been and continues to be materially, immediately, and
irreparably inured by Delaney's continued wrongful conduct. Delaney's failure to act solely for
Hub Group's benefit was the real factor in bringing about Hub Group's injuries.
85. As a result of Delaney's actions, Hub Group has been damaged in an
amount to be determined at trial.
COUNT IV
CONVERSION
86. Hub Group repeats and realleges the allegations contained in Paragraphs I
through 85 above as if fully set forth herein.
87. Delaney wrongfully removed from Hub Group its property and customer
and rate information, without authorization, and converted it to her own use.
88. Delaney has failed to return to Hub Group its property.
89. As a direct and proximate result of Delaney's actions, Hub Group has
been damaged.
90. As a result of Delaney's actions, Hub Group has been damaged in an
amount to be determined at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Hub Group, Inc. seeks judgment in its favor and an Order
granting the following relief:
(]) That Delaney be enjoined from violating the non-compete and non-
disclosure provisions of the non-competition agreement that she signed with Hub Group;
(2) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
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be preliminarily and permanently enjoined from using or disclosing any confidential or
proprietary information that Delaney obtained from Hub Group;
(3) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be enjoined and ordered to return to Hub Group all originals and all copies of files, data, and
information removed from Hub Group, including, but not limited to, the confidential and
proprietary customer contact and pricing information, fuel surcharges, and customer bids that
Delaney obtained from Hub Group;
(4) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be preliminarily and permanently enjoined for one year from, directly or indirectly, contacting or
soliciting any of Hub Group's Customers to sell those customers any products or services that
are the same or similar to those products or services that Hub Group sold or solicited to sell to
those customers while Delaney was employed by Hub Group.
(5) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be preliminarily and permanently enjoined for one year from, directly or indirectly, selling to
Hub Group's Customers any products or services that are the same or similar to those products or
services that Hub Group sold or solicited to sell to those customers while Delaney was employed
by Hub Group.
(6) That Delaney be enjoined and ordered to provide a sworn statement and
accounting of the whereabouts of all files, data, and information removed from Hub Group;
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(7) That Hub Group be awarded money damages in an amount to be proven at
trial;
(8) That Hub Group be awarded exemplary or punitive damages in an amount
to be proven at trial for Delaney's breach of contract, breach of fiduciary duty, and conversion of
Hub Group's property;
(9) That Hub Group be awarded exemplary damages pursuant to
Pennsylvania's Uniform Trade Secrets Act;
(10) That Hub Group be awarded its attorneys fees pursuant to Pennsylvania's
Uniform Trade Secrets Act;
(I ]) That the Court grant further relief as the Court deems just.
Respectfully submitted,
'h~
P. Downey (PA 59891)
J In G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 171 08-1181
(717) 255-1 155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
pro hac vice motion vending
Daniel F. Lanciloti
Anne E. Duprey
Molly Eastman
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000
Date: July 13, 2005
Attorneys for Plaintiff
Hub Group, Inc.
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VERIFICATION
I, Molly Eastman, hereby state that I am outside counsel for Hub Group, Inc., and am
authorized to make this verification on its behalf. I verify that some of the matters set forth in
the foregoing docwnent are supported by Marcia Delaney's testimony given at her June 10,2005
deposition in the case of Hub Group, Inc. v. Jeffrey M. Clancy, Case No. 05-CV-2046 (E.D. Pa.),
as memorialized in the deposition transcript. I understand that this verification is made subject to
the penalties of18 PA. CONS. STAT. 9 4909 relating to unswom falsification to authorities.
Executed on July 12, 2005.
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VERI FICA TION
I, Phil Bayle, hereby state that I am the Vice President, Eastern Region, Intermodal
Operations &Administration for Hub Group. Jnc. and am authorized to make this verification on
its behalf 1 verifY that the statements made in the foregoing document are true and correct to the
best of my knowledge, infonnation, and belief. 1 understand that the statements in said
document are made subject to the penalties of 18 PA. CONs. STAT. ~ 4909 relating to unsworn
falsification to authorities.
Executed on July 12, 2005.
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Exhibit A
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NON-COMPETITION AGREF.MmIIT
,J,f,.nns N~;:OMPEnnON A;
.J.::... day of II'l - . 1999 by and among
. ~-ano'HiJbl::itfPittsburgh,L.P:;'a:Delaware limi
") is entered into lIS of this
lIIl individual (the "El11Dlovce"),
J.
WHEREAS, FmpIoyee has experience in the ueaoftransportBtiOll8lld desiRs to bec~ an
employee of Hub;
WliI;:REAS, Hub desires to hire EmplOyee as a dispatcher on the condition that Employee
execute this Agreement.
WHEREAS, Employee and Hub desire to ~ into this Agreement restricliDg the activities
oftbe Employee.
NOW, llIEREFOlW,. in consideration of the foregoing and other good and vlluable
OOIISidemtion, the receipt lUld stU5eieney ofwhich are herebyaclmO\>.'ledged, the parties hereto agree
Mfu~s. .
Sel.m0ll 1.. Definitions. Tn additiOll to tho torml de&ed e1eewhere in this Agreement,
<:apitalizcd tems used herein shall .have the meanings set forth below:
"TransoM Busines.." means Jhe utilization of roads, highways and/or the railroad system to
IIJllInge fur the tnlnSyu. bdiou of goods in trailers and/or containers on bebaIf oftbird parties from the
point of origin to tbeirfinal destillll1lon.
Section 2. A=m_ not to Comoete. During the term begilllling 011 the date of this
~ and ~ntilJllin8 until one year ailer the Employee is no longer an employee of Hub (the
ATerm@), the Employee shall not directly or Indirectly contact or communicate with or attempt to
solicit intermodal, 1rucldoad brokerage, logistics, LTL or lIII)' otba- Transport Business from any
person or entity who wu a CUSlom~ of Hub on Employee'llatt day ol emp.loyDlllDt with HI1b. 1ft
addition. Employee agrees that during tho Tenn, the Employee shall not direc:dy or indirectly COIIIaCt
or COIlIlmmicuc with any penon employed by Hub on 'Employee's last day ofem.Plo:yment with Hub
regarding possible cmplo)'ll1el1t or aaaociation with any entity or person Other than Hub.
Sc:ctiOD 3. RCIISOII8ble 81Jd N~ Restriction., The Emplo~ admowledp lb8t the
restrictions, prohibitions and other provisions hereof are I'CIlSOnable, fair and equitlbl~ in scope, tcmls
and duration, ue neceuary to proteet tho legitimate businoss intcrosts of Hub, and are a material
inducement to Hub to hire the Employee.
Section 4. Soecific Perfbnnance. The Employee acknowledges that the obligations
undertaken by the Employee punzuw to this Aeteement are W1ique and that Hub will ..,ot haw, 8Il
J%1D1M.l ID~ 10'31C f3100>>
-1-
adequate mnedy at Jaw ifthc: Employee shall fail, to perform any of the Employee's obligations
hcrwnder, 8!ld the Employee therefore ooDfitmJ that Hub's rigIu to specific JlClfonnance oftbc tenns
oflhiJ Agreemeat are esseutia1 to protect the riglu and intere. of Rub. koordingly, in addition to
any 001er rernedieJ that Hub DJ&Y have at law or in equity, Hub shall h'VC the rigbt to have all
obligations, CO'VClllllU, agreements and other provisiDll5 oftbia Awcemem sprWically Peribnncd by
the Employee, and Hub aha1I have the right to obtain prelimituory lIIId permanent iI!iunctive relief to
seaJre specific pe%ful1llance and to prevent a breach or contemplated breach of tbi. A8reemQJt by
the Employee, and the Employee sUbmits to the .iutadiction of the cowts oftbe State of Pennsylvania
. tOr this purpose.
Scotion 5.
MillCellaneous Provi8i9Dl!.
5.1 Binding F,ffi-q. Subject to lIlI)' provilious hcRofrestricting assigument, aD oovenants
and ~ In this Agreanem by or on bdWf of any of the parties.hereto sba1l bind and iIIIJl'e to
the benefit of their respqve successors, usi8D1I, hein,1IDd personal repr-~tives. .
5.2 Assilllmlent. NODe of the parties berdo !JIa)' assign any of U. rig1Jts under thi.
Agr........nI. or attempt to have any other mtity or individual......... any of its ob6gations hereunder,
except that Hub may usi8D lIlI)' ofits rights, interests and obligatious under tbit A!IRC1.=d to any
entity controlling. controlled by or under C()lJlJllon CODlr!ll with Hub .
5..3 ~erahilitr, If fulfillment of any provision of this Agrc..walt, lit the tiDlCl such
fuIfi1Iment sian be due, sba1J transcend the: limit ofvaJidity ~Oed by Jaw, then the obligation to
be lWfiIJed 8baJ1 be reduced to the limit of such validity; and if any claute or provision contaiJled in
d.. Asreemem operates or would operate to invalidate this ~ in whole or in part, then such
clame or provisioo only shall be held ineffective, as thou8h bot herein contained, and the Telllllinder
ofthi..t\greemcu1 shall remain operative and in full force and c:ffQ;t. The parties shalllI8gotiate in
good tlUth · rep1a{""""'nt clause or provision lL!I consisteut with the inelftlctive cIauae or provision as
is practicable under law.
/
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5.4 Governing Law, This -^8r=ncm. the risJds and obrJgillioosoftbepartieshereto, and
any daims or disputes reI8Iiog thmltO shaJl be gemmed by and construed in aa:ordance with the laws
of the State ofPennaylvania, without regard to choice-of-lawruJes tb.areot
5.S Amendmllll!. Except as othenvise expresa1y provided in this Agreemem, no
amendmcut, modltlcation or discharge of this Asrcemem 5ball be valid or binding unless set forth in
writing and duly -=cuted by eaclJ oftbe parties hen:to.
5.6 Waiver. Auy waiver by lIDY pllll:y or COIl58l\t bylll1}' ~ to any variation from Illy
provision of this A8reematt &baJJ be valid o.oly if in writing and Duly in the specific instance in which
it is given, and such weiva- or coneeat sbalI not be ~e>d as a waiver of any other provision or
as a conse:m with respect to any similar instMce or circumstance.
J23n'Ml.2 161Yt IGte 9JIIlDGD
-2.
5.7 HeAili'lB". Section and subsection hcadlnaa contained in this ~ are in&cncd
for convcnicnu of reference only, sbal1l1ot be dccmcd to be a part ot'tbis AgreemP.Dt for any
purpo5C:, and shall not in any WIlY define or Bffict the. m...,,;'lg, construction or scope of any of the
prmisiOllll heTCOf.
~.._-~------- ._~_. .--..--
.------.------..---_._.b__._ ___ ,.
5.8 No Pnlliummion ~;n" D~. Each o!!be parties hcruo have jointly panicipated
in the negotillion and drafting oftbis Asreement. In the event of an ambiguity or a Que$Iion ofinteqt
or interpretation arises, Ihia Agreement shall be COIISttUed as if dnfted joindy by elIch of the parties
hereto and no presumptions or blUdens of proof sba11 arise favoring auy pvty by virtue of the
alltl1ozB!lip ofany of the provisions oflhis.Agreement. .
5.9 ~iOD in Countell>art!I This.A.greemcm may be executed in two or more
oouoter'parta, DOIIll ofwhicb Dt:ed contain the signatures oreach of the parries bereto and C4ICh of
whioh IIhaI1 be deem~ all orlsinl!.
Section 6. Con1ld~llnfurmation. The Employee acknowledges that, by virtue of the
Employee's empIoymem by Hub, the Employee will be granted otbent.ise prohibited access to
oonfident.ia) and proprietary data of Hub, whioh infolDllllion i$ not known eitblll'to competitors of
Hub or otherwise. This intbnnation (herein, the .Confidrnti.1 In~on.) includes, but is not
limited to: (i) &J"""".I;z~ 8lraf.egies, practices IlDd pro~ for obtaiuin,g and mainlainingclillDll;
(ii) c:omput.er systems, software programa Illd rda1ed cnhancmentsofHub; (IV) pOlicies, Practices
and procedurell reJatiog to priciug of services, inoludiug agreements with the providers of
. traDsponation and the related fee llOhcdules; (v) ongoing savlce agreements iDfi:lnnanOllllllating to
the identity of cli_ of Hub; (VI) key contacts at Neb clients; (vii) lIpe<'~<:S conceming the lllltUre .
and extenr ofservices previously or CUlTtDtly being provided toorplanncd for such c&ents; (viiI) rate
quo!.el for ClWtOl1lall; and (ix) any other esscntiaJ information coD.Oellling such elieats' P~cuJoriz.ed
Deeds. The Elllployee ajn'elllhat, beginning on the dan: hen:of and continuing IJIItiI 0IIIl (1) year afta-
the Employee is no IOll8er an employee of Hub, the Employee wiD not, without the prior written
CODsent of the Hub, diwlge any ConfidentiaJ Infunnation or maIce use of it fOr the Employee's own
pwpOIlM or the pwposes of llIIOther. Ia addition, the EmpJ~ agrcea that the Bnlployee will, prior
fD the last day of his employmeqt by Hub, turn over to Hub all Confidential InfOnnationin the
Employ.-.s possession in wbatever iOnn, ioduding, without limitBtioo, copies aod iD1Ommsion -oreci
oDcomputer. The foregoing restrictions shall not prohibit the Employee from divulging Confidential
IafOl1Jl4tion to the extc:ot ~ by thD lawful OJdaofa court.Of aaenoy ofcnmpetentjurisdiction;
orovi""-l.. however. to the extent thill any such court or agency seeb to co.lDjld the Employee to
divulge any Con1idllllliaJlnfOl1lUllion, the Employ~ s!Ia1I promptly inform Hub and sbaD twlte such
reasonable steps to pl"e'Venl di9cJO!llll'e of such Confidentiallnfonna:lion UI11iI Hub has bfX."I1 infunned
of such n:quested disclosure and Hub has had an opportuuityto respond to such ooun or agency.
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lNWITNESS WHEREOF, eacl1 of the undc:nigned has exc:c:uted this AgrMment, or C8U8ed
this Agreement to be duly elCeCUted on its behalf; as of the dale tint set fonh Bbove.
HUB CITY PITTSBURGH. LP.
By: ~-
. Name: /J . J L.
T'nIe;.~
EMPLOYEE:
~~...J ~f)ll~
Attest: ~ ~ rr(..l~\ U tU'-.-
Name:
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TOTAL P. 04
Exhibit B
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by its TaZdS and ~t1~ 1lII!l~ 1I=~~1C? .~~..~1iiti~.~1!lIdon ormy
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Exhibit C
Code of Business Conduct and Etllles
August 12, 2003
It is the Company'Spobcy to conducl it:. upaidioll$ hcmestly-8DutbicaJly. and tM___ , _
Company'& expCCl& its employees, officers and direclOlS 10 coudllct IbcmselVt:S iu a simihlr
roaMer in Iheir dealings with or On behalf ortbe COJnPa1lY. This Code of Business Condnct and .
l:thiC$ addresses the Company's expec18tions wilhrespec;t 10 the condllct of employees, offil:as.
and dircclors in several BleaS. By its nature, this Code cannot address every situation lbat an
employee. officer or director may face wlule employed by the Company. Emplo~ officers
and direclors should therefore be guided by the Company's policy that those individuals should
conduct themselVts honestly and ethically in their dealings with and on behalf of1l1e Company.
1. ComplylDg Wltb Law
All employees, officers and directors oflbe Company should refpCCt and cornplywith all
of !he Jaws, rules and regulaiions of the U.S. and other countries, and the: stales, counties, cities
and other jurisdicrions, in which the Company conducts its business or the laws, rules aod
fCllulaliODJ of which are applicable to .the Company.
SUch lep! compliance should include. wilbout limi18tion, compliance with the "insider
tI1lding" proln'bitiODJ applicable to the Company and its employees, otJiCClll and directors.
Generally, employees, oflieen and directors whobave access TO or knowledge of confidential or
non-public information from or about the Company are not penuilted to buy, seD or otherwise
tI'lIde in the Company's ~curities, whether or not they IIl'e usiOS or telyins upon that information.
This restriction extends to sharins or tipping others about such infurmation, especially ain<:e the
individuals receiving such infollll/ltion might utilize such infonnation 10 rradein the Company's
.ccurilies. In addition, the Company has implemenltd 1r8ding ICStrictiOns to reduce the risk, or
appcaranc:e, of insiderrrading. CompallY employees, ofiiccts 'and dircetors are clirecled to the
Company's Insider TJ'lIding Policy or to the ComPany's LawDepanm.ent if they have questions
T~garding the applicability of such insider ttading proln'bitions.
This Code of Business Conduct and Ethics does not SUJIDllArize alllaw8, JUles I2ld
regulations applicable 10 the Company and its employec8, officers and directors. Please consult
the CoDlp811y's Law DepartmCllt Slid the various guidelines which the Company has prepared on
5pCCific IawI, rules and tegulations.
2. Conlllet. on Dterest
All employees, officers and directors of the CompBDY mould be scrupulous iu avoidiug a
cOnflicl of inlelest with regard to the Company's inteteS1S. A "confliet of i'llt=" exists
whenever an individual's private intertslS intetfere or conflict in any way (or even appear to
interfere or conflict) with the interests of the Company. A conflict situation can arise when an
employee, officer or director takes actions or has intcrcats that may make it difficult to perform
his or ber Company work objectively and effectively. ConfJicl$ of interest may also arise when
an employee, olticer or director, or members of his or her family, receives improper personal .
benefItS as a result of his or her position in the Company, whether received from the CompBllY or
a third pany. Loans to, or guarant~ of oblisations ot; employees, ofticers 8lId direetozs lIIId
t1leir respeCtive family members may create conflicts of interest Federa1lawprohibiTs loallS to
directors and~ecutive offiller$. . It is a1lllOSl always a con1lict.ofintenst for ilCompany
employee to work simultaneously for a competitor, customer or supplier. You are DOt allowed to
wolk f01" a competitor as a consultant 01" boan! member. The best Policy is to avoid any diIect or
indirect business connection with our custOlllen, suppliers 01' competitors, except on OUt behalf.
Coll1li~ of interest are prohibited 8$ a mailer of COIDJlllIlY policy,except IIIldc:r
glIideline$ approved by the Bow of Directors or commilt~oflbeBoard. Confllcts ofintemst
mllY not always bc clear-cut, so if you have a qucstion, you should CODSlIIt with higher levels of
management or the cOmpany's Law Department. Any employ=. officer or d1tector who
becomes aware of a conflict or pOlential conflict should brins it to tbeattem:ion of 1\ supervisor,
manager or other appropriaTe personnel or consult the procedures described in this Code. .
3. Corponate Opportltnlcy
EmPloyees, officers and directors are prohibiled from (a) IalciDg for thcmsclVC1
personally opportunitics that properly belong to the COlllp8Dyor IIRl discovcmi through the lISe
of COlporate property. information or position; (b) using corporate property. information or
position for persolllll gain; llJl(I (c) competing with the Company. Employees, officers lIIlcl
directllIll owe a duty TO the Company to advallCe its legitimate interes1s wbllll the opportunity to
do so ariscs.
4. ConndentialUy
Employees, officers imd directors of the Company 1llUBl maintain the confidentiality of
confidential infonnation enuusted to them by the Company or its suppliers or customerS, CXCcpl
when disc/osnn: is authorized by Ihe Law Depanmcnt or requiltd by laws, rcgulatiOJlS or lepJ
proceedings. Whenever feaSl'ble, employees, officers and directors should cODSuIt the Law
Department if they believe they have a legal obligation to disclose confidential infmmauon.
Confidcl1lial information .includes all ron-public information that might be ofuse to compe1iro..
of the Company, or baIJDfuJto the Company or its cuStomelS if disclosed.
5. Fair DealIDC
Each employee, officer and director should endeavor to deal fuirly with the COInpaDy's
cusl~. supplim, competitors, officerli and employees. No one should lake IlIIfiIir advantap
of anyone Ihrough DlBDipuIation, concealment, abuse of privileged in1imnatiua.
. misIq>reSmtation of material facts or any other lIDfair deaJiJig pmcticc.. .'
We seek to outperform our competition fairly and honestly. We seek competitive:
advanrageJ through superior perl'onnance, never through unethical or illegal business practices.
Stealing propriellU'y infonnation, possessing trade secret infonnation that was obtained without
the owner's consent, or inducing sucb wsclosures by pasl or pIeSC1lt employees of otbez-
companies is prohibited. . . .
The purpose ~fbusine.ss entel'tainme!lt and gifi:s in a commercial setting is to create good
Will and sound working relationships, not 10 gain un13ir adVlllltage With CUStomers. No gift or
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l:I1lert8inmcnt should be offered, given, provided or accepted by any Company employee, family
member of an employee or agent unless it: (I) is not a cash gifi, (2) is consistent wilh .CUSlOlDUY
business pnIetices, {3} is Dot excessive in val11e, (4)cmmot be CODStnIcd as a bnlle or payoff lIJId
(5) does not yjolatc;lD}' laws or regulations. Please discuss wi1h your supervisor any gifts or
. proposed gifts which you are not eettaiD are a~.
The U.S. FOIeign Corrupt. Practices Act prohibilll giving anything of'VlI1ue, directly or ,
indirectly, to foreign sovemment officials or foreign pOlitical candidates in order to obtain or
retain business. It is strictly prohibited to make illegal paymellts to govmuJlCllt officials of any
country. In addition, the U.S. government has a riwnber oflaws and regulations regarding
business gratuities which may be accepted by U.S. government persolUlel. The promi$c, offer or
delivery to lID official or: employee of the U.S. government ofa llift,faVor or other gratuity in
violation of these rules would not only vjo~ Company policy but could also be a criminal
offense. State and local governments, as well as foreign goVernD1CDl1l, may have similar rules.
The Company's Law.Department can provide guidance 10 you in this area.
6. Protection And Proper Use Of Company Assets
All employees, officers and directors should proJeCt lIie Company's assets and eDsun: 1hcir
effident use. Theft, carelessne$S, and waste have a direct impact on the Company's profitability_
All Company assets should bc used for legitimate business purposes.
7. AC:CVtlDtlng Complaints
The Company's poHey is to comply with all applicable financial reporting and accounting
re~ulations applicable. to the Company. If any employee, officer Dr director of the Company or
Imrdparty has concerns or complaints Tegarding questionable accounting or auditing maners of
the Company, then he or she is encouraged to submit those com;cms or complainta
(anonymously, confidentially or otherwise) to the Company's General Counsel (who will,
subject to bi$/her duties arising under applicable law, regulationS ana legal proceedings, tIelt
such submissions confidentially). Such submissions may be directed to the attention of the
General Counsel at the principal executive offices of the Company.
8. l'ublic Company Reporting And Other Public Statemants
As a public company, it is of critical impOl'lllllce that the disclosure in the Company's
filings with the Securities and Exchange Commission and its otherpublie SllllemeDlS, such as
press releases, be full, fair, accurate, tirncly and undCIStandable. Depending on their position
with the Company, an employee, officer or directOr may be called upot) to provide necessuy
iDfonnation to assure that the disclosures in the Company's publiC repotlS and other public
statements arc full, fair, accurate, timely and understandable. The Company expects employees,
officers and directors to take this responsibility very seriously and to provide prompt, accurate
and complete answers to inquiries related 10 the Company's public disclosme requirements.
All of the Company's books, records, accounts and fmancial statements must be
maintained in reasonable detail, must ajipropriately reflect the Company's transactions and must
conform bolh 10 applicable legal requirements and to the Company's system ofintemal controls.
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Unrecorded or "off the books" funds or ~e1s should not be mainlained.unIesspermittcd by
app&able law or regulaliOJl.
. --*...conseqllCD~es orNo~ComplyiDg ~b this Code
It is the responsibiIity of each of the Company's employees, officers and directors to fully
comply with the requirements of this Code IInd to o1berwiSe conduct thCUlSelvcs in IIn l1onest,
ethical and lawful Dl8m1ct when wor1cing for or representing the Company. Failure 11:1 comply
wilh these rcqllirements may resull in the imm~lIte lli4mi~ of the employee or officer or the
removal of the directcir. In appropriate cases, the Company may also purse legal action against
the employee, officer or director and may refer the matter 11:1 tho appropriate authorilie8 for
criminal prosecution or other mncdial action.
10. ReportJng Any me:al Or Unethical BehavJor
Employees arc enco~ed to talk to supenisom, Dl8llIlgers or other appropriate
personnel about ob~ed illegal or lIlIelhical bebavior and, whCII in doubt, about thcbcSt course
of action in .8 panicular sitnation. Employees, officers and directors who are concerned that
violations of this Code Or that other illegal or unethieal conduct by employees, officers or
directors of the Companybave occurred Dr may occur should report the suspectcdviolanOD or
other illegal or unethical conduct to the Company's General C~I. If the employee, ofli<:u
or director does nOI believe it appropriate or is not comfortable approaching the CODtpeJty'$
General Counsel, tben.tl1cy may conlact the Audit Committee or Nominalins " Governance
Committee of the Board of Directors of the Company. If their concerns or complainlS require
confidentialitY, including keeping their identitY anODylllous, tIlen this confidentialitY will be
protected, subject 10 applicable law, regulation or legal prOCeedinBS.
....,,--_....-"..._"0.". ..
11. No Retaliation
"the Company win not permit retaliation of any kind by or on behalf of tile Company and
ilS employees, officers and directors against good faith reports or complaints of violations oftbis
Code or ome:r illegal or unethical conduct.
12. Amel!dment, ModlficatioDAnd Waiver
This Code may be amended, modified or waived by the Board ofDirectol1l and waivers
may also be granted by the Nominating & Governance Committee, subject 11:1 the disclosure an4
otber provisioDll o{rhe Securities Exchange Act of 1934, and the rules th~undcr and 1hc
applicable rules of the Nasdaq Stock Marlcet.
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RECEIPT AND ACKNOWLEDGEMENT
OFTBE
RUB GROUP CODE OF BUSINESS CONDUCT AND ETHICS.
'lDlderstand that my signature below indicates that I have received, read and understand
the Hub Group Code ofBusincss Ccmduct and Ethics dated AUg1I$tl2, 2003 and that I "l'iJ'U abide
by iIS renns and conditions and that a fuilure to do so win be groUnds for temJinalion of my
employment. . J understand the policies and rules described in this Code are subject to change al
the sole discretion of the company at any time.
Employee's PrintedNBnle
Position
Employee's Signatuxe
Date
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Exhibit D
This Employ<:c Quid" Is Iln im~t dot.-um"nt wtended to help you bcc,-_ DCquQlnted with
Hub OIoup_ ThIs Ernp!oyee Guide will lie"" II. II rd'Cftnec 1o?i, it ;" ftQt rbe final -..d in aI1
.~
Bca,use the BeneIUl bu8m..". lItmosphere of lIub Group and alDAOmle C:otldiliona an: a1"'D,yII
cbangin& the conre..ts oftbia Empl~ GUide ma.r be ebtmged lit Any time at the disereUon of
Hub GlI'OUp. .
Please rto&d the fOUowinlt Btatemenrs IIDd sign be.loll7 to indk::m: you,. recelpr IInd
ada>owlcdgment ofUle HubOroup Etnployee Guide.
. I ba"., recc.;.ed ;md ~ Il copy of Hub Oroup~ R:rnployee Guide. I understand tballhc
1lO1ic:ics. rules and be/letils delleribed in It ~ aUbJect to eM..... lOt the sole d.i8cretiQa of the
Company at any tUne; I l.IDdenotlmd thQt "'" of Jllnumy I, 2005, thla Olam rcpI...,.... IIn
other Prevloua _u..J.. fOr Hub Group,
o I funlw:r undersluad that my emplOY_nr is tenninable at WIll. eithe,. by III,Y8cIf or the
Compoqy, _tdIeaa or the IeDgtb of my empIo,ymcnt or the -em, of bc:ucdIts of allY
1dftcI.
R&~ "~.Dt oID..b ~"B~Gaide
o I uudcrstroncf that thia EmpIo"ee GUide does nut constitute a con_ In ..,." reapeet. I
fu>1her undersU1D4 that no c:ontract of emplD,Ylnent other than "at will" baa been P.Xpreaaed
or implied, Ilncllhur .00 c:irewnatalnces ari3iDg out of my ern~ will ..It~ IllY 'Ill "'ill"
emp'03'!Deal relationship unJese expn:s:scd In wrltlll& with the ~rstandlng apecl.lieaJly
set forth aud s'gned by lI1Yoelf Wld .. member of the .E:x<ic:utive Committee,
. I am awan: that during the coune Dr roy employmellt conIkIttntial .int_on DllIY be
madl; avWJQbIe to me In.cluding. without limltt>.ti012, mllrkietlna strategies. cuotomer listls,
J>ri.eing poIicir.s ....... other related infonnatlort. I Ul:lderabnd that this lft/'OnrtQtlon Is critlcal
to the SU<Xe$$ oC Hub Glbup ..nd must nor be diacl""ed or used outside of Hub O"'''p's
~ or with _-Hub Croup "mplayeea, . I """" reM and "'&h:e to abide by Hub
Oroup'R polic;y rellU"dinc. cDnI1dentia1 illli>nDation. 10 the CWlnt or ~1DiD1UiDa aI
employment, whether voIuntaly ~ ia>-Il.lntoloy. I. hereby ~ not 10 dlscJ-= or ..... thIa
Information with aI'\Y other indivXIual or compaq,y. .
. I underetancltbnt my algnature bo;Jow inclieat.... thllt I haw ~4d and UDderata.llll the Ilbove
sratements and have f'eceM!d a copy of the Hub Group Employee Guide.
Etuploy",,'. Printed N""'e, fn.f7,eC/4 L. .~'i1~~
KJnpJoyee'a SlgnCltu~: ~.I.4'./:.u d' 4<J..n ~.... .
Date: / - .1/- t!. 5'
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0..--.. 0.--. --Ie -01 bellied -:r- __ ..
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Exhibit E
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Hub Group, Inc.
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Table of Qontents
An OveJView or Hub Group
Purpose and Limitations of This Employee Guide ........:.......................................... 4
Receipt & Aclmowledgment of ExnpJoyee Guide .....................,...............................5
Mi$sion 8.11d. Vision Statement....... ...... '.' 0"'''0''" .................................................................................... 6
Welcome to Hub Group............................................_......._.._._........_._......_.............. 7
The History of Hub Group......................................_............................................._.8
Hub Group Organization Chart.....................n..........u............UI....~.....................................11
Location of Hub Officea............u.........................................................................;........12
Employment - The Way We Work
Equal Employment OpportUnity..................................._.~................_........_...:.....13 .
Recruiting & Hiring Process ...................................._........_............._.....................13 .
Internal Search/Job Posting ........................._..............__..._._.........._.....................14
External Search........................................................................................... .............14
Rehiring: Former Employees .......................................n...................~oi..........~.........14
Seniority' DilLe. ............ .............. ......... ............ ..... .......... ............... ..Ii......... ....... ...... 15 .
Proof of US Citizenship and/or Right to Work ............---...-.....................----..........15
Personnel Administration......... ....... ....... ......... ............ ....... ........_........._, .m.......... 1 S
Your Personnel File...... .................. ... ....... .H.... ............ ....... ...... .~......... ..._.. ............. 15
New Employee Orientation....................................................................._.._.......... 16
At wm Employment............................._..............................._....__........................16
Business Cards ................. ...... ...... ..... ........................ ..... ._.......,................ ._........ 16
Anti"Harassment and Sexual Harassment Polley ..........-.....-..-....-.-.......................17
Technology Resources Poliey .......... ...... ......._._....................._........ ........................ 21
Code of Business Conduct & Ethics ......................................................~..............23
Accounting Complaints............................................................................,..........; 24
Drugs and Alcohol............................._......................._._......_.................._........_.... 24
ConfliCt of Interest .................................. ............................._............................... 25
J~$ider Trading ........~.................................. .............................................................25
Non-Compete Agreement .......................................................................,............. 2S
Outside Employment ....................................................u..........................................25
Di5c)osure .., ......... .............. ............................. ........... ....... ..... ..__. ......._................ 26
Conlidentiallnfonnation ..................... ..... ............................................................ 26
Our Employee Relations Pltilosophy .......................n......._.......................~...............27
Quality PrOCCS5 at Hub Group................................................................_....__.......28
Cu6tOmer Relations .....................................................................................................28
....u." Ims.......1
Work Schedule ..............-............................................................................. ......... 31
p~ Procedures ..............................................._............_..._........,..........................33 ,
BI, Weekly Attendance 'lracking......................_....................._...............................34.
Pay P:ractices IUId Procedures
l!:mployment Classifications ....... .... .... ...... ...........................__...................;.... ...... 29
Overtime . ..........-............................. ....... .................................................. _ ..... .... 29.
FlSA Safe Harbor Policy ....................................................................._.._;..__.._.....30
Time Away from Wode and Other Time-Related Benefits
Vacations .....-................................ .............................................................. .........35
Sick Days ......_......_..................................................~...............-...........................37
Short.term DiSability !Including Pregnancy) Leave of Ab6Cllce ......_....;.................:38
Family/MediCal Leave of Absence (FMlA) ............................................................. 40
Personal Leave or Absence ..........................................._.........;.................._._...._...44
Insurance Premium Payment dUring Leave of Absence ....................................._... 44
Sick 'rime/vacation Time DUring Leave of Absence ..............................................44
Accepting .employment/Going into Business While on Leave ........_....................... 44
Emergencies and Inclement weather............................................__...........;...........45
Funeral (Bereavement] Leave ...................................................__.................. ......... 45
J~ry DUey............................................................................._..................... ......... 46
MilitaIy Reserves or National Guard !..eave ................................................._.........46
Holidays ...........--.................-... .............................._................................_.___........ 47
401(kJ Plan ~......._...-......... .................... ............ ......... ................_._...__.......... ......... 49
Joyce Yeager SChOlarship..............................._........................................ ........;.... 49
Education/Training (Attendil1g Seminars/Training Sessions) ....-..........................49
ElDpJoyee Benefits
Benefit Plans -..-......... ............................. ....... .............................._.... ...._. ............. 48
Workers' Compen..ati~ ..........................................................._.;.......-...-.............48
Rtriud 11O'...P"", 2
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Employee Ped'OmlliDce'
Performance & Compensation Reviews.............................___..._....._......~............... 50
BonuselS . ........ ........................................ ..................................h............................._.... 51
Professional Conduetc.............................. .............................................................51
Corrective Action .............................................................._.......................;. .........53
Termination of EmPIOyment................................................._.............._.............. ..54
Compau)' Premises aDd Work Areas
Safety Rules. ... ........ .....~............ ....................... ........ .............. ............. ....... .........56
Fire Drills......... ................ ..............;....... ..... ....... ..._..._...._. .._..... ....................... .... 56
HouseIccCping......;................................................._.............................. ................ 56
Work Related Accident orlnjury......................................_...._...............................56.
Lunch Room Facility .-...................................................;......_............................... 56
Security........ .......... ..-... ........ ................... ................. .............._.. ._........ ...... .......... 57
Visitors...;. ........ ....... .................. ................... ...... ......... .................................. ...... 57
Smoking......... ..... ........................ ......... ..... ......... ................. ............. ._. ...... .......... 57
MfsceDaneoWl
Dres's'Code/Penonal Appearance-Downers Grove ................................ ................ 58
Dress Code-Other LocatiDns...................._.................................._._....................... 59
,Personlll Phone CalIs & Mail_.................................................._............................ 59
Comp\ner Software (Unauthori2ed COpying) .............................._.......................... 59
Solicitations & Oistribu tions. ........ ....... .-....... ...-.. .......... ......... ...... ..........._..._........ 59
. Employee GIll; Fund............................................................................~......-.........60
Meetings - Company/Department ...........-.......;........................_.........._................ 60
Expense Reimbursement..................... ........................................................... ....... 60
Use of Company Vehic1e.............._..........................................._...._....................... 60
Driver's License & Driving Record ..................................._..__................................ 61
TraIlic Violations .... ..... ....-...................... ...... .............._....._...... ........ ............... .__.. 61
Itmsed lt05_..Pae-)
Employment - The Way We Work
1'0 1l$S!n in the creadon and commun/catloQ of business-related
infonnation in the most efl"ec:tive and eI1icicnt m_'lla" possible, Hub
Group provides Its employee. with. 1I1Uiou. technoJosy resources,
including e-mall and, for 6OIIIe, acceeBIO the Intcmct. 'lb!:lSll n:SOUTCeS
promise foster and better communications among ltubGroup".
personncl and othe,.,;, but they also raise Issues con~minc the
accuracy, securi~ and contrOl of Hub Choup . wid customer
infonnation.. Hub Group ~.muete= lbat those using Hub
Group resources do 80 in .. mlllmer .lh8tia approp~te and
professionaL ..
Jn lIghl of these concerns, Hub Oroup has developed. thlsTcchnQ10gy .
Resources Policy (the 'Policy"), whlch cstl.bliahes the P""l33eters for
proper use oC Hub Group" technoloKY' teSOUrl:eI. HUb Group
personnel who do not compq with !his Policy ~ $Ubjcct to tbe
revocation of their access to Hub Group technology resourcq and
dlsclpllnaJy action up to and includina lllsc:har&e.
POLlCY
Technology R..SOlUCes
Policy
This Policy applles 10 all Hub Group employees and other perSona who
are authorized to use Hub Group tccl1nology r....ource. ("ueers"). 1bla
Policy applies to thc followillg leclmology n:source. and all data
created by 1hcir uoo, including but not 1fmjtcd to:
. computers (Including desktop e<omputera, Ponable computers,
.'TVe~, local area networks, prlntws, ooftwarc lUld removable
storage media (e.g., floPPY dlska, CI).,ROMs, hanl disks):. .
· electronic mail re-maU'), including attachmenl$; and Internet and
IntrllJ3ct u~.
Other Tha.. Occ.slonal Personal Use or &-Mall, Technoloey
Reso117ces May Be US.d Only For Legitimate, B...Jnurs.Related
ReasODS
Other than the occulonal pel'6onal use Or e-mall, Company-provided
information technoloGY resources ma,y be Used only forlegi!1mate,
business-related communications. Occaaional peraonai use meana
infrequent Uoe that doe. not interfen: wlth Hub Clrottp buslnees or the
avail"bili~ of technology resourt:es. AD use of Hub Group technology
resources (inducling personal use) is subject to t1Us PoUcy. .
Th.. u... or tecbnoloey ~.1l0_. to epODsor, floelUtate or.
participate ;n non-buoine.. ~elateG eetlvitics fa strictly prohibited.
NOD-bUsiness reJated activities IncluG.. lotteri..... ram.s. betting
aAd other gambling for anythine of value aD' Partlclpatb1C or
faellitatinl:' in the distribution ormoCaI go04s and materiaI$,
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All dala that is entered, created, received, 8tored or transJIlltted viol
Hub Group teChnology resources, including but not limited to aU c-
mail messages, are and Will.remain Hub Group property. No businelS$_
related data may be used for MY purpose Unrelated to Hub Group
business, nor may It be sold, transmitted, conveyed or communicated
in any way to anyone outside of Hub Group without exprc.s
authorization by Hub Group's Chieflnformatlon Officer. Additionally,
~vi,,", 11O'...P.S~ 2.
Employment - The Wa We Work
sensitive or confidential data and any lnterna1.liub Group data that
hu nOt been eommul1icated to the public shaD not be part of any
c-mail or Internet rran.mlssio.n. IntCmal Hub Group e-mails VlUS! not
be fOTWal"ded outside of Hub Group without Exewtive V"lCC President
or Vice President.
T."bnolo~ Reao.........
Pedley (coDt'd)
No Expectation Of Privacy
Uocrs should have no cxpeet:aticm of prIvaq: In COnnection with the
enlly, creation, transmission, receipt, or storage of data VIa HUb Gr9up
technology resources. Users waive any right 10 privacy in dataentared,
created, - received, stored Or transmitted via HUb Group teehnolOlY
- Te$Ource", and consent to accen and disclosure of such data by
authori2ed Hub Group pcrsolJ1)el
As with all other Hub Croup propc:v. Hub Group - t.eehnoJogy
resources and all data entered, created, Van6lIlitted, recclved or ston:d
tlja Hub Group technOlogy rClll)Urcea is subject to illSJlet:tlon. &earch
and disclosure at all tl>nes by J>er801'I8 designated by or actins at the
direction of HUb Group's Chief Information Olllc:er, or as ~ be
n_sSllly to ensure the eflident and proper "cbninistratiOll of Hub
QroI:lP technology resources.
J\lI password. and seturity uaed In connection with Hub Groqp
technology resources arc Hub Group proper1;y and Il'1Uet be aVllilable 10
Hub Group. Users should I:lnderstand that their UN of P....sword.
does not preclude accesa to Hub Group technolo&!, resourcea by
authorized person... Hub Group reserves the right to ...""i&tl 8Zld/or
change passwords and personal codes tor voice: mail, E-m,"', and
computer applications.
Only $o~t>oan Pu,;chasetl By Hub Groal' For. Ita V". Ma)' lIo
- Installed On Hub Group's Computer Network
Software purchased and licensed for peraOnal uae may not be installed
on Hub Croup computers. Hub GrouPJnay, at any time, conduct an
aUdit or interrogation of c:omputerll for installcd softwlU'e Ilnd related
printed materia! that Is not included on a then-cutTent Invcntor,y of
Hub Group-authorized software. AD unauthorized software will be
rc>noved and destroyed.
All users mu.t comply with aU softwiu-e Deensta, COPyrights, and other
alate and federal laws governing intellectual ptopeny end on-line
a.erivity. Because o( expon restrlcUo.na. proVlUDs or tIles conuwung
encrypdon technology are not to be placed on the Imemer Or
transmitted in any way outside the United States without prior written
authorization from Hub Croup's CbicflnCormatlonOl1icer.
The Viewing, Cn:atlon Or Tra:asml.aslon Of AzJy bat. That MaT Be
COtlstrned To Viobte Hub Group'. ADti-Huascsnent ADd Sexual
R....""ment Policy Is Stri~tJy Prohibited
U...... ....e $1tictly prohibited ~l'OUl using Hub Oroap.. technology
resources in any way that Dl"'" be otfensive to Others, by viewins,
transmitting, among other things, sexuaJUo e"Plieit or obseene
messages, movie cUps, pictures or- c8Ttoona, ethnic or racial alura. or
anything that may be construed aa unlaWfi:l1 barallSmcnt Or
disparagement baSed on race, color, age. religion, marital statue, 8Cl<.
ancestry, national origin, citizenship, veterans statu", pregnancy,
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T~cm.olocy Il.C$O_~,
Policy (cont'dJ
Code ol"Bustne_
Conduct.and Ethics
Employment - The Way We Work
dieabilitr. "ledlcal eondition, S03<Q.,J. orientatiQn, or any other
characteristic protected by federal, state or local law. Users violatiag
this Prohibition inay be subject to disciJ>linrozy ...ction, QP to <U>d
including tenninalion.
hlteUectuaJ Property (CoPY7iCht And htaJtl La...
Users may not IlJolate any C<lp)'rigbt, patent or other intellectual
property law; -inclUdirig- restria:ed .oftwve Ia.... AccOrdll'lBlY. unless
permiSSion has been CXP1'Cs8ly find o!Iicla!ly Provided, 'users niay nO!
post or dOwnload any data (incllldlng but not llInited. to e-mail, 1IJ1lS,
dOCl:lments,. graphic Jiles~ newa-aroup >ne_llU, bQDetin-bOGnI
mes.ageS, Web Page., appllc...tion, software, ~ .ysllem
sOllwarc, Or any other intelleCtual property) PIotected by cOPYJl&ht or'
patent law. If cOPyright, patent or other llWnenhip status i. unknown,
Users may not post, uplOlld. downlolld or otherwleeQoe any data,
content, software Dr other propen,y Md ahoUld conauJt the network
administrator with any inquiriea..
VinlSe..
Hub Group technology resources must be protected from accidental
destruction or deliberate IltleznPtS.at sabotage by cOmpu!cr viruses.
Users thus may neither WillIIlny intrOduce virus.infected files or media
into Hub Group technology resource. nOr diaablo: virus.acanninC
software. Users must make all ....a.on...ble e.lrons to CI1SUre that all
files a.ccessed or collected are lIlJu.-!ree and should nrlnin1ize
dOwnlOading data [rom the internet and via' e~mail Md should not
download data from unfamiUar Internet sites.. .u--.. .hould use
df.cretion when receiving e-mail fiozn lInknown 801lrcC$, e8p~ .
wbere the e-1lllIiJ cOn/>Iins ...ttachmen18. Prior to placing any file 011
Hub CrOQP network, empl~. mUst SCan for vitu... uSInC up-co-
date, approt'Cd virus scanning $Ofrw.re
llIiscellaneollS
Hub Group wiD not be responaible for any daltlagea, direct or indirect,
arising OUt of the u so of its technl>lollY resource&.. Any unauthorized
aCceas or Use of Hub GrouP" tec~ology resoura:. is strictly
Prohibited.
It is tbe Company's policy to conduct its operations laWfUlly, honeatly
and ethically, and Hub Oroup expeCts ita employees, oftlccra and .
directors to conduct themSelvea In a sln1lJou. manner In their deal1np
With Or On behall of the ComJ>al1y. Hub has. adopted . a CoQc of
BUSiness Conduct and Ethics which each emplOYee must lead, sign
and fOllow. Failure to sign and return thi. policy ma,y reSUlt. In
sU.pension of employment \Jnnl the Company receives the signature
page,
Note: ):'or additional laro_atioa tep.r4J"C the Code
01" Bnsmes. CORduet ....d I:thfca, pie.... ntenaco
Hub Group'. '<PSTate Policy or see HUb Group's Vice
Presld entl Gencnll. Counsel.
I
I
R.n1kd lJOs...r"';e 2)
Disc:1os1tt1l
Employment - The Way We Work
Employees must disclose to their D1lI.nllgCr any 1ln.mc:la1 intere,1t they
or their immediate familY have In en,y company wbic:h does buslne...
witb Hub Group or which competes with Hub Group. The Company
may require divestit\u'e of such interest If it deems the Iinanda1
interest to be in conllict With ita best btteresta.
, Confidential
Iftrormation
Our CUstomers and suppliers entrust Hub Group with important
information relating to their businesses. 'lbe nature of this relationahip ,
requires mainttn2ncc of eonfidcnt:ia1il;y.. In safegu~, the
information received, Hub Group earns the respect and fl1Itbcr trust of
our CUstomers and suppliers.
In the course of your employment, you may have access to COnfidential
information (that is, any inIonnalion not ..Vllilable to the publicl
regarding Hub Group or its employee.., custmners, and suppllers. The
protection of confidential Information ia vital to the In~ 8Dd
success of HUb Group. SUch :inton:oation includes, but is not limited
to, the follOwing: compensatlon dam, finandal Information, customer
lists, vendor' liste, contact, liats; systema infotmatian, marketinc,
slntegies, pending projects and Proposals, vendor rates, Hub Group
prices and contractual tenDs. Employee" ~ neither disclose Ib\Y
confidential information nor use it for trading in securities or far
personal gain. Your employment with Hub Group requires yOu to
maintain COnfidentiality. Tbis obligation to tDalntaJn COntiden1i811ty
contillues evcn after you are no long.:; employed by Hub Group, No
one ill permitted to remove, tran6fer or make copies of any Hub Group
records, disks, electronic Jiles, reports or documents without prior
Wrinen management approval.. All records. fllC6, memoranda, :reports..
price li~t$, vendor Pricc6, CUStomer lists or contacts lists, .17endOt' lilSt$.
business plans, information relating to Hub Group,& exi~ and
--prospective e,..tomers, documonte, equipment, 8Zld the like, relating to
the busin.... of the Company, W1Uch you oball use or prepare or come
into contact mth, shall remain the sole property of the Compsn,y.
Any violation of confidentiality seriously loju"" Hub Group's,
reputation and elfectlvenesa. Therefore, caution aM cllscredon are
required In the Use of confidential information. It ahould be shared
only with those who have a Iegitima.te need to know. EVCA caWal
remarks. can, be, misinterpreted and rcpCllted. lOCI employees muat
deVelop the personal discipline necessary to maintain COnfidentiality.
Because of its seriousness, disclosure of confidential information could
lead to immediate dismissaL
Information concerning a CUstomer may be released to third parties,
organizations or governmental bodies that seek it onlY with the written
COns"nt of the customer involved and management's approval. All
other requests [or infoTUlation concerning a customer (other than
routine credit inquiries), Including requeslll pursuant to lepl procca
(such as su bpoenas or court ordllnll. must be promptly refened 10 Hub
Group's Vice P.-esident Md General COunsel. No information ID~ be
reieased, nor should the customer lnvolved be cont;lcted, until '&0
authOrized by General Counsel.
.........I."...l'oIlO211
Con1ldentlal
InformatfOJl. (cout'''1
Ow- Employee
Retations Philosophy
Employment - The Way We Work
If yD\l are questioned by someone out81de the CoIl'1pllJl,Y or the preas.
and you arc concerned about the ap~o~,,;"tene.e of &lvlng them
certain information, do not ghe them the Inforn>aticm. b1stead...
politely as possible, refer the reqJlest to yl)Ur 1II&nq"J". any member or.
the Hub Group Executive Cammil:t88 or HllJI'aGeneral Counscl.
Pub~e statem.nts invoJviD~ lb. buslnus of the eo""'paay aze
-.Uictlyp-tohi)jltU-uniess-p1"mously-a.l'Provc:d 117 a lMm"u,Uh.
Bul/Group l;:xecutive Committee.
Hub Croup is committed to providing a positive working c:nvlrOlUl>imt.
We strive to accomplish this in eevem1 WllfS: .
. by recognizing that each employee is ellaentia1 to the
SuceU$ :md gTOwth of Iiub (houp;
. by developlni: a spirit of teamwork; MIl
. by maintaining direct communication.. wid:l. aU or our
employees and ensurlogthat each and fNerY. oDe of you CtII1
spea.k directly and openly with our management teem..
In order to maintain an atmosphere where these goals can be
aecolllplished, we strive to provide a workpJace where colUmunlcationa.
are open and problems can be dlseussed IIIld resolved in a mutually
respectful atmospbere tWclng lnto account individual eircumstanccs
and the lndlvlduaI employee. We 6nxlI,y. believe that by our
communicating with each other directly, we c:an continue lIJ resolve
any difficulties that may arise.
Resolving ProbletDs
. We encourage you to bring your questione, suggestiona. problems or
complaint:; to our attention. CardIll consideration wID be given to
each issue brought to our attention. It you feel you have a problem or
a complaint, you should first preoent the situation to your immediate
manage~. Your manager is most familiar wfth you and your job and Is.
therefore. in the best. position to assist you. GeneraJly, most issues
can be satisfactorily re~o)ved in thJs manner.
If your m811agcr cannot help you resolve the matter, or you find that
yoll still have Questions and would like further clarification on the
>nailer, you can request to .peak to the Human Resource.
Dep~ent, or any other member of lXlanagement who will givcyotir
problem or complaint consideration. After reviewing' the issues.
he/she will meet With you to discuss poaSlDle solution.. . Your job will
not be adversely affected simply because you chose .to uee thia
proee4urc,
Suggestions and Ide....
We encourage all employ.e. to bring fOrwa<<l their suggemona and
ideas about how our Company and workplace can be improved and
our service to customen. enhanced. When you see an opportunity for
improvement. please discuas it with your Immediate manager.
Because suggestions indicate initiative on the part of an employee, we
wlII consider all suggestions made at the time of your perfonnane:e
review. When a suggestion from an employee bas partiCUlar merit, ...e
may provide for special recoptian of the individual who had the idea..
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HUB GROUP, INe., a Delaware Corporation,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. {)!;- ~S'S'O
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
PLAINTIFF'S VERIFIED MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
Plaintiff Hub Group, Inc. ("Hub Group"), by its counsel, Pepper Hamilton LLP
and Seyfarth Shaw LLP, moves this Court pursuant to Rule 1531 of the Pennsylvania Rules of
Civil Procedure for a preliminary injunction against Defendant Marcia Delaney ("Delaney"). In
support of its Motion, Hub Group states:
I. Hub Group has contemporaneously filed with this Motion a Complaint for
Injunctive and Other Relief against Delaney, which is incorporated by reference and made a part
hereof.
2. As stated in Hub Group's Complaint, Delaney, a former Intermodal
Dispatcher for Hub Group, is in violation of her non-compete agreement and has
misappropriated Hub Group's trade secrets and confidential and proprietary business
information. Delaney is now using and threatens to continue using Hub Group's trade secrets
and confidential and proprietary information to contact, solicit, and entice Hub Group's
customers to leave Hub Group and take their business to Delaney's new employer, Trailer
Transport Systems, Inc. ("TTS").
enjoins her from violating her agreements and applicable law.
3. Delaney will continue to irreparably harm Hub Group unless this Court
4. Hub Group has no adequate remedy at law.
of Law.
5. In support of this Motion, Hub Group submits the attached Memorandum
could not seek the concurrence of opposing counsel pursuant to c.c.R.P. 208.3(a)(9).
6. Counsel is unaware of any counsel of record for Defendant and therefore
Injunction restraining Defendant Marcia Delaney as follows:
WHEREFORE, Hub Group respectfully requests the entry of a Preliminary
(I) Delaney be enjoined from violating the non-compete and non-disclosure
Provisions of the non-competition agreement that she signed with Hub Group;
(2) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
preliminarily and pennanently enjoined from using or disclosing any confidential or proprietary
infonnation that Delaney obtained from Hub Group;
(3) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
enjoined and ordered to return to Hub Group all originals and all copies of files, data, and
information removed from Hub Group, including, but not limited to, the confidential and
proprietary Customer contact and pricing information, fuel surcharges, and Customer bids that
Delaney obtained from Hub Group;
(4) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
preliminarily and permanently enjoined for one year from, directly or indirectly, contacting or
soliciting any of Hub Group's customers, who were the customers of Hub City Pittsburgh, L.P.
and its COrporate successors in interest on Delaney's last date of employment with Hub Group, to
sell those customers any products or services that are the same or similar to those products or
services that Hub Group sold or solicited to sell to those customers while Delaney was employed
by Hub Group; and
(5) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
-2-
preliminarily and permanently enjoined for one year from, directly or indirectly, selling to Hub
Group's customers, who were the customers of Hub City Pittsburgh, L.P. and its corporate
successors in interest on Delaney's last date of employment with Hub Group, any products or
services that are the same or similar to those products or services that Hub Group sold or
solicited to sell to those customers while Delaney was employed by Hub Group.
Respectfully submitted,
Bri P. Downey (PA 59891)
ustin G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
pro hac vice motion pending
Daniel F. Lanciloti
Anne E. Duprey
Molly Eastman
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, llIinois 60603
(312) 346-8000
Attorneys for Plaintiff
Hub Group, Inc.
Date: July 13, 2005
-3-
1, MOlly Eastman, hereby state that I am outside counsel for Hub Group, Inc., and am
authorized to make this verification on its behalf. I verify that some of the matters set forth in
the foregoing document are sUpported by Marcia Delaney's testimony given at her June 10, 2005
"""'600;" ''''''~, ,fH"" Gnmp, ... v. Jot1rey M. 0_, c.., No. 05.cv-2046 (ED. P<j,
as memorialized in the deposition transcript. I understand that this verification is made subject to
the penalties of18 PA. CONS. STAT. S 4909 relating to unsworn falsification to authorities.
Executed on July 12, 2005.
VERIFICATION
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I, Phil Bayle, hereby slate that lam the Vice President, Eastern Region, Intennodal
"-ti~ &Adm"'_ '" H,b G~P. loco "'" om ~""""" '" ""'" ~i. _"""" ,.
m""",, I _ ""'~, _, """.,~, _"" __ =""" ""'"'"'" '" ".
best of my knowledge, information, and belief. I understand that the statements in said
document are made subject to the penalties of 18 P A. CONS. STAT. S 4909 relating to unsworn
falsification to authorities.
EXecuted On July 12,2005.
VERfF'CA TlON
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-
Mo"o" 10, P"Ii_" bif~",,, Rei',!"" d"",,~, by Foo"ruJ E,p,~" """,,,,, "'Omigh<
I certify that on Ju]y ] 3,2005, I served a copy of the foregoing Plaintiff's Verified
CERTIFICATE OF SERVICE
delivery, addressed as f011ows:
Ms. Marcia De]aney
]9] Simmons Road
Mechanicsburg, PA 17055
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HUB GROUP, INC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. DS- 2$'$""0
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
MOTION FOR ADMISSION PRO HAC VICE
I, Justin G. Weber, of the law firm of Pepper Hamilton LLP, 200 One Keystone
Plaza, North Front and Market Streets, Harrisburg, Pennsylvania 17108, a member in good
standing with the Bar of the Commonwealth of Pennsylvania, and counsel for Plaintiff Hub
Group, Inc., in the above-captioned action, respectfully move for the admission and appearance
pro hac vice in this case of Daniel F. Lanciloti, Anne E. Duprey, and Molly Eastman of the law
firm of Seyfarth Shaw LLP, 55 East Monroe Street, Suite 4200, Chicago, Illinois 60603.
I. Mr. Lanciloti, Ms. Duprey, and Ms. Eastman are members in good
standing of the lllinois State Bar and admitted to practice before the highest court in Illinois,
where they reside and regularly practice law.
2. Mr. Lanciloti, Ms. Duprey, and Ms. Eastman are very familiar with the
issues in this case and it is in the best interests of justice to admit them pro hac vice for purposes
of representing plaintiff in this case.
3. A proposed order is attached.
Respectfully Submitted,
Date: July 13,2005
~}jkL-
Jus n . Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 17108-1181
(717) 255-1155
(717) 238-0575
weberjg@pepperlaw.com
CERTIFICATE OF SERVICE
I certify that on July 13,2005, I served a copy of the foregoing Motionfor
Admission Pro Hac Vice on defendant by United States first class mail, addressed as follows:
Ms. Marcia Delaney
191 Simmons Road
Mechanicsburg, PA 17055
~.hL1-
J sti G. Weber (PA 89266)
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HUB GROUP, INC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 0[;- .3~S"()
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
PLAINTIFF'S VERIFIED MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
Plaintiff Hub Group, Inc. ("Hub Group"), by its counsel, Pepper Hamilton LLP
and Seyfarth Shaw LLP, moves this Court pursuant to Rule 1531 of the Pennsylvania Rules of
Civil Procedure for a preliminary injunction against Defendant Marcia Delaney ("Delaney"). In
support of its Motion, Hub Group states:
I. Hub Group has contemporaneously filed with this Motion a Complaint for
Injunctive and Other Relief against Delaney, which is incorporated by reference and made a part
hereof.
2. As stated in Hub Group's Complaint, Delaney, a former Intermodal
Dispatcher for Hub Group, is in violation of her non-compete agreement and has
misappropriated Hub Group's trade secrets and confidential and proprietary business
information. Delaney is now using and threatens to continue using Hub Group's trade secrets
and confidential and proprietary information to contact, solicit, and entice Hub Group's
customers to leave Hub Group and take their business to Delaney's new employer, Trailer
Transport Systems, Inc. ("TTS").
3. Delaney will continue to irreparably harm Hub Group unless this Court
enjoins her from violating her agreements and applicable law.
4. Hub Group has no adequate remedy at law.
5. In support ofthis Motion, Hub Group submits the attached Memorandum
of Law.
6. Counsel is unaware of any counsel of record for Defendant and therefore
could not seek the concurrence of opposing counsel pursuant to C.C.R.P. 208.3(a)(9).
WHEREFORE, Hub Group respectfully requests the entry of a Preliminary
Injunction restraining Defendant Marcia Delaney as follows:
(I) Delaney be enjoined from violating the non-compete and non-disclosure
provisions of the non-competition agreement that she signed with Hub Group;
(2) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
preliminarily and permanently enjoined from using or disclosing any confidential or proprietary
information that Delaney obtained from Hub Group;
(3) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
enjoined and ordered to return to Hub Group all originals and all copies of files, data, and
information removed from Hub Group, including, but not limited to, the confidential and
proprietary customer contact and pricing information, fuel surcharges, and customer bids that
Delaney obtained from Hub Group;
(4) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
preliminarily and permanently enjoined for one year from, directly or indirectly, contacting or
soliciting any of Hub Group's customers, who were the customers of Hub City Pittsburgh, L.P.
and its corporate successors in interest on Delaney's last date of employment with Hub Group, to
sell those customers any products or services that are the same or similar to those products or
services that Hub Group sold or solicited to sell to those customers while Delaney was employed
by Hub Group; and
(5) Delaney, her officers, agents, servants, employees, and attorneys and all
parties in active concert or participation with her, including Trailer Transport Systems, Inc., be
-2-
preliminarily and permanently enjoined for one year from, directly or indirectly, selling to Hub
Group's customers, who were the customers of Hub City Pittsburgh, L.P. and its corporate
successors in interest on Delaney's last date of employment with Hub Group, any products or
services that are the same or similar to those products or services that Hub Group sold or
solicited to sell to those customers while Delaney was employed by Hub Group.
Respectfully submitted,
Bri P. Downey (PA 59891)
ustin G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
pro hac vice motion pending
Daniel F. Lanciloti
Anne E. Duprey
Molly Eastman
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000
Attorneys for Plaintiff
Hub Group, Inc.
Date: July 13, 2005
-3-
!
VERIFICATION
1, Molly Eastman, hereby state that I am outside counsel for Hub Group, Inc., and am
authorized to make this verification on its behalf. I verify that some of the matters set forth in
the foregoing document are supported by Marcia Delaney's testimony given at her June 10,2005
deposition in the case of Hub Group, Inc. v. JeffreyM. Clancy, Case No. OS-CV-2046 (E.D. Pa.),
as memorialized in the deposition transcript. I understand that this verification is made subject to
the penalties of 18 P A. CONS. STAT. S 4909 relating to unsworn falsification to authorities.
Executed on July 12, 2005.
~~~m
VERI FICA TION
I, Phil Bayle. hereby state that 1 am the Vice President, Eastern Region, Intermodal
Operations &Administration for Hub Group. Inc. and am authorized to make this verification on
its behalf. I verifY that the statements made in the foregoing document are true and correct to the
best of my knowledge, infonnation, and belief. I understand that the statements in said
document are made subject to the penalties of 18 PA. CONS. STAT. Ii 4909 relating to unsworn
falsification to authorities.
Executed on July 12,2005.
~
CERTIFICATE OF SERVICE
I certify that on July 13,2005, I served a copy of the foregoing Plaintiff's Verified
Motion for Preliminary Injunctive Relief on defendant by Federal Express, standard overnight
delivery, addressed as follows:
Ms. Marcia Delaney
191 Simmons Road
Mechanicsburg, PA 17055
~h~
J sf G. Weber (PA 89266)
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HUB GROUP, lNC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. OS - .3SS0
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
ORDER /
AND NOW, this --'-.5 day of July, 2005, a hearing is scheduled on the
Plaintiff's Motion for a Preliminary Injunction filed in the above-captioned matter to be held on
~JI. ~.
J~) ,2005, at I. ()O a/I/pm, in Courtroom #::> . All
written discovery shall be completed within 14 days. All oral discovery shall be completed
within 14 days.
J.
Copies to be sent to:
-l3rian P. Downey, Esquire; Justin G. Weber, Esquire, Pepper Hamilton LLP, PO Box ]]8 I,
Harrisburg. P A 17108- I 181 . . . ~., 1./5-05
- Marcia Delaney, 19] Simmons Road, Mechanicsburg, PA 17055 .~:r 11'>"-'~~
HB:#97505 vI (2J8HOJ.l.DOC)
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RECEIVED JUL 14
HUB GROUP, INC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS I
CUMBERLAND COUNTY, PENNSYL V
Plaintiff
v.
NO. (')!; - .)SSO
CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
AND NOW, this
ORDER
I)~ day of July, 2005, upon consideration of the Motion
for Admission Pro Hac Vice. IT IS HEREBY ORDERED that said Motion is GRANTED, and
that Daniel F. Lanciloti, Anne E. Duprey. and Molly Eastman ar\~ admitted pro hac vice to
practice before this Court for the reason of representing plainti .
J.
:opies mailed to:
Justin G. Weber, Esquire (for plaintiff)
Daniel F. Lanciloti, Esquire (for plaintiff phv)
Anne E. Duprey, Esquire (for plaintiff phv)
Molly Eastman (for plaintiff phv)
Marcia Delaney (Defendant)
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HUB GROUP, INC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CNIL ACTION - EQUITY
Defendant
AFFIDAVIT OF RETURN OF SERVICE
COMMONWEALTH OF PENNSYLVANIA
}
}
}
SS:
COUNTY OF DAUPHIN
I, Thomas G. McGrath, being duly sworn according to law, depose and say that:
1) I am a competent adult who is not a party to this lawsuit; and 2) on July 14,2005, at or about
2:00 p.m., I served the Complaint on Marcia Delaney, the defendant, by handing a certified copy
of same to her at her residence at 191 Simmons Road, Mechanicsburg, Pennsylvania 17055.
~~~--
Thomas G. McGrath
(Messenger)
PEPPER HAMILTON LLP
200 One Keystone PJaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
Date: July 14,2005
SWORN TO AND SUBSCRIBED
BEFORE ME THIS /~IAnAY
OF JULY, 2005.
..~
Notary Public
NotarIal Seal
Marianne Sottile, NoIaJy PUbfIC
Ci1y Of Hanisllurg, DauplUn County
My Commission 8<pires June 24. 2006
Member, PennsYlvanJ.1l\.c;~r'lCletlOfl()fNotnties
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HUB GROUP, INC., a Delaware Corporation,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
UNOPPOSED MOTION OF PLAINTIFF TO RESCHEDULE
PRELIMINARY INJUNCTION HEARING AND REQUEST FOR
EXTENSION OF DISCOVERY DEADLINE
Hub Group, Inc., by its undersigned attorneys, requests that the hearing on the
requested preliminary injunction be rescheduled and that the discovery deadline be extended for
the reasons set forth below. This motion is unopposed by Defendant's counsel.
I. On July 14,2005, Plaintiff Hub Group, Inc. ("Hub Group") filed a
complaint and motion for preliminary injunction against Marcia Delaney, a former employer of
the Hub Group.
2. Prior to filing the Complaint against the Defendant, Hub Group filed a
complaint and motion for a preliminary injunction in the United States District Court for the
Eastern District of Pennsylvania against another former Hub Group employee, an employee who
served as Defendant's supervisor at the Hub Group.
3. On July 15,2005, this Court issued an Order scheduling a hearing on the
preliminary injunction for August 3, 2005, at I :00 p.m.
4. A preliminary injunction hearing in the action pending in the Eastern
District of Pennsylvania involving Defendant's former supervisor is also scheduled for August 3,
and was scheduled prior to this Court's issuance of its hearing order.
HB: #97891 v2 (23j702!.DOC)
5. Most of the witnesses for this action are also the witnesses to be called in
the action pending in the Eastern District.
6. Hub Group's counsel has discussed the motion with Michael R. Greco,
counsel for Defendant.
7. Mr. Greco does not oppose the request to reschedule the hearing and to
allow the parties to engage in expedited discovery prior to the hearing.
WHEREFORE, the parties respectfully request that the preliminary injunction
hearing be rescheduled for the week of August 22 or 29, 2005, or thereafter, and that the
discovery deadline be extended.
B 'an P Downey (PA 59891)
. . Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box I 181
Harrisburg, P A 17108- I 181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(3 I 2) 346-8000
Attorneys for Plaintiff
Hub Group, Inc.
Date: July 26, 2005
-2-
HB: #97891 v2 (23j702!.DOC)
CERTIFICATE OF SERVICE
I certify that on July 26, 2005, I served a copy of the foregoing document on
counsel of record by United States mail, first class postage prepaid, addressed as follows:
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
HB: #97891 v2 (23j702!.DOC)
HUB GROUP, INe., a Delaware Corporation,
RECEIVED JUL 2 7 7nn~ f11
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO. 0:5-3550 CIVIL TERM
MARCIA DELANEY. a citizen of
Pennsylvania.
CIVIL ACTION - EQUITY
Defendant
ORDER
AND NOW, this ?tf^
day of July, 2005, upon consideration of the
unopposed motion of plaintiff, a hearing on plaintiff s motion for a preliminary injunction is
scheduled for ~September
6"
7
,2005, at ff:JO
arnI~, in
Courtroom #
The parties are granted leave to conduct expedited written and oral discovery
prior to and in aid of the hearing.
J.
>1
ies to be sent to:
- Brian P. Downey, Esquire; Justin G. Weber, Esquire, Pepper Hamilton LLP, PO Box 1181,
Harrisburg, P A 17108-1181
~ichael R. Greco, Esquire, Saul Ewing LLP, 1200 Liberty Ridge Drive, Suite 200, Wayne, PA
19087-5569
HB: #97891 1/2 (23j7G2!.DOC)
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SAUL EWING LLP
Michael R. Greco, Esquire
PA Attorney ID No. 78426
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
Christopher P. Stief, Esquire
Risa B. Greene, Esquire
PA Attorney ID Nos. 72505, 76427
Saul Ewing LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
(215) 972-1965/7834
Attorneys for Defendant Marcia Delaney
HUB GROUP, INC., a Delaware Corporation
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 05-3550
Civil Term
MARCIA DELANEY, a citizen of
Pennsylvania
CIVIL ACTION - EQUITY
Defendant
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the above-named <counsel on behalf of Defendant,
Marcia Delaney, in the above-captioned civil action.
SAUL EWING LL1'
By:r?U~L
Michael R. Greco
Saul Ewing, LLP
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
and
Christopher P. Stid
Risa B. Greene
Saul Ewing LLP
Attorney ID # 72505, 76427
Centre Square West, 38th Floor
1500 Market Street
Philadelphia, PA 19102
(215) 972-1965/7834
Attorneys for Defendant
Marcia Delaney
-2-
CERTIFICATION OF SERV1CE
I, Michael R. Greco, Esquire, hereby certify that, on July 25, 2005, I did cause a true and
correct copy of the foregoing Entry of Appearance to be served upon the following counsel of
record for Plaintiff Hub Group, Inc. via facsimile pursuant to Pa. R. Civ. P. 440(d)(I):
Justin C. Weber
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
P.O. Box 1181
Harrisburg, P A 17108-1181
(717-238-0575) Facsimile
/j~4
Michael R. Greco
-3-
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SAUL EWING LLP
Michael R. Greco, Esquire
PA Attorney ID No. 78426
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
Christopher P. Stief, Esquire
Risa B. Greene, Esquire
P A Attorney ID Nos. 72505, 76427
Saul Ewing LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
(215) 972-1965/7834
Attorneys for Defendant Marcia Delaney
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY.
PENNSYL VANIA
HUB GROUP, INC., a Delaware Corporation :
v.
No. 05-3550
Civil Term
MARCIA DELANEY, a citizen of
Pennsylvania
CIVIL ACTION - EQUITY
Defendant
PRELIMINARY OBJECTIONS OF DEFENDANT MARCIA DELANEY
TO PLAINTIFF'S COMPLAINT
Defendant Marcia Delaney ("Delaney" or "Defendanf"), by her undersigned counsel,
hereby objects to the complaint filed by Plaintiff Hub Group, Inc. ("HGI" or "Plaintiff') as
follows:
I. BACKGROUND
I. On or about July 13, 2005, Plaintiff filed a Complaint with the Court asserting
claims against Marcia Delaney arising out of an alleged breach of a non-compete agreement to
which Plaintiff was not and is not a party. and which Ms. Delaney was forced to sign in
November 1999 after she had already quit her prior job in the same industry to join Hub City
Pittsburgh, L.P. ("HC Pitt"), and after she had begun working for HC Pitt and spent the better
part of a week going through orientation at HC Pitt's headquarters in Pittsburgh, Pennsylvania.
The Complaint also asserts claims for alleged breach of other supposed "contracts," as well as
claims for alleged misappropriation of trade secrets, breach of fiduciary duty and conversion.
II. OBJECTIONS
A. LEGAL INSUFFICIENCY - NON-COMPETE AGREEMENT
(DEMURRER)
2. Pa.R.Civ.P. 1028(a)(4) provides that preliminary objections can be filed when a
pleading is legally insufficient (demurrer).
3. The Complaint alleges breach of a non-compete agreement that is attached as
Exhibit "A" to the Complaint ("the Non-Compete Agreement").
4. The Non-Compete Agreement on its face and by its terms "is entered into as of
the 4th day of Nov. 1999 by and among Marcia Delaney, and individual (the 'Employee'), and
Hub City Pittsburgh, L.P., a Delaware limited partnership ('Hub')." Exhibit "A" to Complaint at
p. 1.
5. The party with which Marcia Delaney entered into the Non-Compete Agreement
is HC Pitt.
6. Ms. Delaney did not enter into the Non-Compete: with HGI.
7. HGI is the Plaintiff in this case.
8. HC Pitt is not a party to this case.
-2-
9. The Complaint at paragraph 5 alleges that HGI was the parent company ofHC
Pitt at the time the Non-Compete Agreement was executed, and that HGI presently is the parent
company ofHC Pitt's "corporate successor in interest."
10. None ofthese allegations, however, is sufficient to demonstrate that Ms. Delaney
owes any contractual duty of any kind to HGl.
11. Moreover, none of these allegations is sufficient to demonstrate that HGI has
somehow allegedly succeeded to the rights and obligations ofHC Pitt under the Non-Compete
Agreement.
12. The Non-Compete Agreement states at paragraph 5.2 that HC Pitt "may assign
any of its rights, interests and obligations under this Agreement to any entity controlling,
controlled by or under common control with [HC Pitt]." Exhibit A to Complaint at par. 5.2.
13. The Complaint does not allege that the Plaintiff in this case, HGI, is an "entity
controlling, controlled by or under common control with" HC Pitt.
14. The Complaint does not allege that HC Pitt at any time purported or attempted to
"assign any of its rights, interests and obligations" under the Non-Compete Agreement to HGI,
the Plaintiff in this case.
15. Plaintifflacks standing to enforce the Non-Compete Agreement.
16. Plaintiff is not the real party in interest with respect to the Non-Compete
Agreement. and as a result may not sustain an action to enforce it.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss Count I of Complaint ("Breach of Contract") to the extent that count
refers to the Non-Compete Agreement.
-3-
B. THE COMPLAINT IS INSUFFICIENTLY SPECIFIC IN ITS
ALLEGATIONS ABOUT THE COMPANY WITH WHICH MS.
DELANEY WORKED AND WITH WHOM SHE ALLEGEDLY
HAD CONTRACT(S)
17. Pa. R.Civ.P. 1028(a)(3) provides that Preliminary Objections can be filed due to
insufficient specificity in a pleading.
18. Throughout the Complaint, Plaintiff makes references to "Hub Group" as Ms.
Delaney's employer, but elsewhere acknowledges that it was, in fact, HC Pitt that hired and
employed Ms. Delaney.
19. In paragraph 5, Plaintiff alleges both that "Delaney was an employee of Hub
Group on November 1, 1999," and that she was hired by "Hub City Pittsburgh, L.P." The
Complaint then goes on to allege in the same paragraph that "Hub Group was the parent
company to Hub City Pittsburgh, L.P. at the time Delaney was hired. . .," but in this instance
does not specify by which of the two companies Plaintiff now is alleging Ms. Delaney was hired.
Paragraph 5 is internally inconsistent and insufficiently specific as to the company with which
Plaintiff alleges Ms. Delaney became employed on November 1, 1999, and as to which she was
or became employed at other times since November 1,1999.
20. For the reasons set forth in paragraphs 2 - 16 above, each of which are
incorporated herein as if set forth in full, the identity of Ms. Delaney's employer is important to
the question of whether the Plaintiff has legal standing to enfon;e the Non-Compete Agreement
against Ms. Delaney.
21. Ms. Delaney is not able to prepare an appropriate responsive pleading to the
Complaint due to Plaintiff's insufficient specificity as to the company or companies with which
Plaintiff alleges she was employed, and the dates during which Plaintiff alleges she was
employed with them. As a result, the Complaint should be dismissed.
-4-
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss the Complaint.
C. LEGAL INSUFFICIENCY - CODE OF BUSINESS CONDUCT AND
ETHICS (DEMURRER)
22. Pa.R.Civ.P. 1028(a)(4) provides that preliminary objections can be filed when a
pleading is legally insufficient (demurrer).
23. The Complaint asserts a claim for Breach of Contract (Count I) based not only on
the Non-Compete Agreement addressed above, but also on "provisions of Hub Group's Code of
Business Conduct and Ethics ('Code'), and Confidential Information Policy contained in the
Employee Guide ('Confidential Information Policy')." Complaint at par. 66.
24. The Complaint asserts that Exhibit "B" to the Complaint contains Ms. Delaney's
agreement to abide by the Code (Complaint, par. 42). and that Exhibit "D" contains Ms.
Delaney's agreement to abide by the Confidential Information Policy (Complaint par. 45).
25. Under Pennsylvania law, a purported contract must be supported by consideration
in order to be enforceable.
26. Plaintiff is claiming that certain terms of the Code and Confidential Information
Policy impose post-employment restrictions on Ms. Delaney's conduct in the nature of restrictive
covenants.
27. Plaintiff further claims that Ms. Delaney has allegedly breached the terms of her
purported contracts to abide by the Code and the Confidential Information Policy after
termination of her employment. See Complaint at pars. 70, 71.
-5-
28. Under Pennsylvania law, post-employment restrictive covenants are strictly
construed and must be supported by consideration deemed by the Court to be adequate to support
the restrictions.
29. Plaintiff has not attempted to plead adequacy of any alleged consideration for the
Code or Confidential Information Policy, and in fact has not attempted to plead any
consideration whatsoever. By contrast, Plaintiff has pleaded consideration as to the Non-
Compete Agreement (Complaint, par. 36).'
30. The Complaint alleges that Exhibits "B" and "D" - Ms. Delaney's alleged
agreements to abide by the Code and the Confidential Infomlation Policy - were signed on
December 2, 2003, and January 4, 2005, respectively. Each of these dates is many years after
commencement of Ms. Delaney's employment with HC Pitt. (Complaint, pars. 42, 45).
31. Under Pennsylvania law, mere continued employment is inadequate consideration
to support a post-employment restrictive covenant entered into after inception of employment.
32. Absent new and additional sufficient consideration, Exhibits "B" and "D" cannot
be valid or enforceable contracts, and Plaintiff has failed to plead the receipt and/or existence of
such sufficient consideration.
33. Moreover, on its face and by its terms, Exhibit "D", which Plaintiff alleges
constitutes an enforceable contract against Ms. Delaney, unequivocally specifies that "I
understand that this Employee Guide does not constitute a contract in any respect." Exhibit "D"
to Complaint. Accordingly, no claim for Breach of Contract can be sustained based on the
Confidential Information Policy and Exhibit "D".
] Ms. Delaney will challenge the existence of the consideration for the Non-Compete Agreement, but that is not an
issue for these Preliminary Objections. It is noted here only by way of contrast to emphasize the complete failure of
Plaintiff to allege consideration as to its other alleged contracts.
-6-
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss Count I of Complaint ("Breach of Contract") to the extent that count
refers to (and relies on) the Confidential Information Policy or the Code of Business Conduct
and Ethics.
D. THE COMPLAINT FAILS TO CONFORM TO Pa.R.Civ.P. l019(i)--
BREACH OF CONTRACT AS TO CONFIDENTIAL INFORMATION
POLICY
34. Pa.R.Civ.P I028(a)(2) provides, in relevant part, that preliminary objections can
be filed when a pleading fails to conform to law or rule of court.
35. Pa.R.Civ.P. IOI9(i) requires that "[w]hen any claim or defense is based upon a
writing. the pleader shall attach a copy of the writing, or the material part thereof but if the
writing or copy is not accessible to the pleader, it is sufficient so to state [.j"
36. The Complaint at paragraph 45 alleges that "Delaney signed a Receipt &
Acknowledgement of Hub Group's Employee Guide," and then quotes language from the
Employee Guide, after which it is alleged that "the complete Confidential Information Policy
section of the Employee Guide is attached hereto as Exhibit E." (Complaint. par. 45).
37. In violation of Pa.R.Civ.P. IOI9(i), the Complaint fails to attach the full text of
the Employee Guide which forms the basis for one of the "contracts" Plaintiff alleges Ms.
Delaney has breached.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss Count I of Complaint ("Breach of Contract") to the extent that count
refers to the Confidential Information Policy.
E. THE COMPLAINT IS INSUFFICIENTLY SP'ECIFIC AS TO ITS
ALLEGATION OF BREACH BY WORKING FOR A COMPETITOR
-7-
38. Pa.R.Civ.P. 1028(a)(4) provides that preliminary objections can be filed when a
pleading is legally insufficient (demurrer).
39. The Complaint at paragraph 71 and 71(a) alleges that Ms. Delaney has violated
"the terms of the [Non-Compete] Agreement, Code and Confidelltiallnformatioll Policy by ...
engaging in business which directly competes with Hub Group."
40. The Complaint alleges contractual provisions addressing solicitation of clients
and disclosure of allegedly confidential business information, bull the Complaint fails to allege
any purported contractual provision(s) that purport to prohibit Ms. Delaney from "engaging in
business which directly competes with Hub Group."
41. As such, the Complaint is insufficiently specific as to its claim of breach on this
basis.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss Count I of Complaint ("Breach of Contract") to the extent that count
seeks relief based on a purported breach arising out of Ms. Delaney "engaging in business which
directly competes with Hub Group."
F. THE COMPLAINT FAILS TO CONFORM TO Pa.R.Clv.P. 1019(1)--
EMAILS
42. Pa.R.Civ.P 1028(a)(2) provides, in relevant part, that preliminary objections can
be filed when a pleading fails to conform to law or rule of court.
43. Pa.R.Civ.P. 1019(i) requires that "[w]hen any claim or defense is based upon a
writing, the pleader shall attach a copy of the writing, or the material part thereof but if the
writing or copy is not accessible to the pleader, it is sufficient so to state [.]"
44. The Complaint at paragraphs 48, 55, 60, 61, 62, and 63 references and/or makes
allegations based on emails in support of its claims against Ms. Delaney, and asserts that these
-8-
emails demonstrate that Ms. Delaney solicited clients and used confidential and/or trade secret
information.
45. On information and belief, some of the emails referenced may be subject to a
Confidentiality Order issued by the United States District Court for the Eastern District of
Pennsylvania in an action presently pending in that Court entitled Hub GrouP. Inc. v. Clancv (the
"Clancy Case").
46. On information and belief, certain emails referenced by Plaintiffs Complaint are
not subject to any such Confidentiality Order in the Clancy Case.
47. In violation ofPa.R.Civ.P. 1019(i), the Complaint fails to attach those emails that
are not subject to any such Confidentiality Order. and fails to state which emails, if any, cannot
be attached as a result of the Confidentiality Order.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss the Complaint.
G. LEGAL INSUFFICIENCY - DEMAND FOR PUNITIVE DAMAGES
(DEMURRER)
48. Pa.R.Civ.P. 1028(a)(4) provides that preliminary objections can be filed when a
pleading is legally insufficient (demurrer).
49. In the Prayer for Relief, the Complaint demands "exemplary or punitive damages
in an amount to be proven at trial for Delaney's breach of contract, breach of fiduciary duty, and
conversion of Hub Group's property." Complaint, Prayer for Relief at par. 8.
50. Under Pennsylvania law, punitive damages are unavailable for a claim of breach
of contract.
51. Under Pennsylvania law, a party demanding exemplary or punitive damages must
make certain specific allegations.
-9-
52. Although the Complaint makes allegations at paragraph 77 in an effort to support
its demand for statutory exemplary damages under the Pennsylvania Trade Secrets Act (as
sought separately in paragraph 9 of the Prayer for Relief), the Complaint fails to make any
allegations in support of punitive damages for Plaintiff's claims of breach of contract, breach of
fiduciary duty and conversion.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss the Complaint to the extent it seeks ex(:mplary or punitive damages for
breach of contract, breach of fiduciary duty and conversion.
H. THE COMPLAINT FAILS TO CONFORM TO Pa.R.Civ.P. l024(c)--
VERIFICATION OF MOLLY EASTMAN
53. Pa.R.Civ.P 1028(a)(2) provides, in relevant part, that preliminary objections can
be filed when a pleading fails to conform to law or rule of court.
54. Pa. R. Civ. P. 1024(c) provides that "[t]he verification shall be made by one or
more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or
information. or (2) are outside the jurisdiction of the court and the verification of none of them
can be obtained within the time allowed for filing the pleading."
55. Pa. R. Civ. P. 1024(c) further provides that "in such cases" [i.e., (1) and (2)
above], the "verification may be made by any person having sufllcient knowledge or information
and belief and shall set forth the source of the person's information as to matters not stated upon
his or her own knowledge and the reason why the verification is not made by a party."
(emphasis added).
56. The Complaint is supported by two verifications, one of which is from Molly
Eastman. who states that she is "outside counsel for Hub Group, Inc." Complaint, Verification
ofM. Eastman.
-10-
57. The verification states the source of Ms. Eastman's information, alleging that
some of the matters in the Complaint are supported by "Marl~ia Delaney's testimony" in the
Clancy Case "as memorialized in the deposition transcript." (Id.). The verification does not,
however, state why the verification is not made by a party.
58. As such, the verification fails to conform to Pa. R. Civ. P. 1024(c), which requires
a statement as to why a party is not making a verification.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss the Complaint.
I. THE COMPLAINT FAILS TO CONFORM TO Pa.R.Civ.P. l019(i)--
TRANSCRIPT OF DEPOSITION OF MS. DELANEY IN THE "CLANCY
CASE"
59. Pa.R.Civ.P 1028(a)(2) provides, in relevant part, that preliminary objections can
be filed when a pleading fails to conform to law or rule of court.
60. Pa.R.Civ.P. 1019(i) requires that "[w]hen any claim or defense is based upon a
writing, the pleader shall attach a copy of the writing, or the material part thereof but if the
writing or copy is not accessible to the pleader, it is sufficient so to state [.]"
61. The verification of Molly Eastman states that the source of her information is Ms.
Delaney's "testimony given at her June 10, 2005 deposition in the case of Hub Group, Inc. v.
Jeffrey M. Clancy, Case No. 05-CV-2046 (E.D. Pa), as memorialized in the deposition
transcript." Complaint, Verification ofM. Eastman (emphasis added).
62. Ms. Eastman does not allege she attended the deposition.
63. As indicated in Ms. Eastman's verification, "some of the matters set forth" in the
Complaint are based on Ms. Eastman's review of this written transcript.
-11-
64. In violation of Pa.R.Civ.P. 1019(i), the Complaint fails to attach the written
transcript "or the material part thereof' on which unspecified all(:gations and/or claims are based.
65. Nor is there any allegation as to any reason why the transcript would be
inaccessible to Plaintiff, or any allegation that the transcript is covered by the Confidentiality
Order in the Clancy Case.
WHEREFORE, Defendant respectfully requests the Court to sustain her Preliminary
Objections and dismiss the Complaint.
Respectfully submitted,
Michael R. Greco
Saul Ewing, LLP
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
By yh!}
Christopher P. Stief
Risa B. Greene
Saul Ewing LLP
Attorney ID # 72505, 76427
Centre Square West, 38th Floor
1500 Market Street
Philadelphia, PA 19102
(215) 972-1965/7834
Attorneys for Defendant
Marcia Delaney
-12-
CERTIFICATION OF SERVICE
I, Michael R. Greco, Esquire, hereby certify that, on July 25, 2005, I did cause a true and
correct copy of Preliminary Objections of Defendant Marcia Delaney to Plaintiff's Complaint
and proposed form of Order to be served upon the following counsel of record for Plaintiff Hub
Group, Inc. via facsimile pursuant to Pa. R. Civ. P. 440(d)(l):
Justin C. Weber
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
P.O. Box ll81
Harrisburg, P A 17108-ll81
(717-238-0575) Facsimile
Michael R. Greco
-13-
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HUB GROUP, INC., a Delaware Corporation :
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
v.
No. 05-3550
Civil Term
MARCIA DELANEY, a citizen of
Pennsylvania
CIVIL ACTION - EQUITY
Defendant
ORDER
AND NOW, this
day of
, 2005, it is hereby
ORDERED and DECREED that the Preliminary Objections of Defendant Marcia Delaney to
Plaintiffs Complaint are SUSTAINED and that Plaintiffs' Complaint is hereby DISMISSED.
BY THE COURT
J.
-14-
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
HUB GROUP, INC., a Delaware corporation
(Plaintiff)
vs.
MARCIA DELANEY, a citizen of Pennsylvania
(Defendant)
No. 05..3550
Civil Term
1. State marter to be argued (Le., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Dpfpnd;:mt's preliminary objections to complaint.
2. Identify counsel who will argue cases:
(a) for plaintiff:
Brian P. Downey. Pepper Hamilton LLP. 200 One Keystone Plaza,
(Name and Address)
North Front & Market Sts., P. O. Box 1181, Harrisburg, PA 17108-1181
(b) for defendant:
Risa B. Greene. Saul Ewing. LLP. 1500 Market Street.
(Name and Address)
3800 Centre Square West, Philadelphia, PA 19102
3. I will notify all parties in writing within two days that this cas" has been listed for argument.
4. Argument Court Date:
October 20, 2005
d-'~
Signature
Risa B. Greene
Print your name
Date:
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Attomeyf<)r Defendant, Marcia Delaney
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To: Marcia Delaney (Defendant)
c/o her counsel
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
You are hereby notified to file a written response to the enclosed Amendled Complaint
within twenty (20) days from service hereof or a judgment may be enten:d against you.
Pepper Hamilton LLP
By:
HUB GROUP, INe., a Delaware Corporation,
and HUB CITY TERMINALS, INe.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF
Plaintiffs Hub Group, Inc. ("Hub Group") and Hub City Terminals, Inc. ("Hub
Terminals"), by their attorneys, allege as follows for the first amended complaint against
Defendant Marcia Delaney ("Delaney"):
INTRODUCTION
I. Plaintiffs seek injunctive relief to enjoin Delaney from (I) continuing to violate
the terms of the non-competition agreement into which she entered with Hub City Pittsburgh,
L.P. (and to which Hub Terminals has been assigned the rights by virtue of their corporate
structure and by operation of law) ("Non-Competition Agreement"), and (2) from using and
threatening to use Plaintiffs' trade secrets and confidential and proprietary business information.
In violation of her Non-Competition Agreement, Delaney has contacted, communicated with,
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CHI 10941320.1
and solicited Plaintiffs' customers on behalf of her new employer Trailer Transport Systems, Inc.
("TTS"), a direct competitor of Plaintiffs. Additionally, since joining TTS, Delaney has used
and threatens to continue to use Plaintiffs' confidential and proprietary information. The specific
details surrounding Delaney's improper acts are detailed herein. Plaintiffs further seek damages
and permanent injunctive relief for Delaney's violations of the Non-Competition Agreement, the
Uniform Trade Secrets Act, 12 Pa. C.S.A. SS530l-5308, and the common law of breach of
fiduciary duty and conversion.
NATURE OF ACTION
2. This is an action for preliminary injunction, permanent injunction, and damages
arising out of Delaney's violation of the Non-Competition Agreement and her theft and
misappropriation of Plaintiffs' trade secret and proprietary information in violation of the law.
Plaintiffs seek to enjoin Delaney: (I) from directly or indirectly contacting or communicating
with or attempting to solicit intermodal, truckload brokerage, logistics, LTL or any other
Transport Business from any person or entity who was a customer of Plaintiffs on Delaney's last
day of employment with Hub Terminals ("Customers"); (2) to return to Plaintiffs their
confidential information; and (3) to enjoin Delaney to account for the whereabouts of Plaintiffs'
confidential and proprietary information. Plaintiffs also seek all damages they have suffered as a
result of Delaney's actions and monies for Plaintiffs' efforts to recover its property.
PARTIES. JURISDICTION, AND VENUE
3. Hub Group is a Delaware corporation with its principal place of business in
Downers Grove, Illinois. Hub Terminals is also a Delaware corporation with its principal place
of business in Downers Grove, Illinois. At all relevant times, Hub Group has controlled Hub
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CHl10941320.!
City Pittsburgh, L.P. ("Hub City"), Hub Group Pittsburgh, LLC, and Hub Group Atlanta, LLC
("Hub Atlanta") - all wholly-owned subsidiaries of Hub City Terminals, Inc., which is a wholly-
owned subsidiary of Hub Group. Hub City's rights to the Non-Competition Agreement were
assigned to Hub Terminals by operation of law through a series of corporate transactions, as
detailed herein.
4. On information and belief, Delaney is an individual residing at 191 Simmons
Road, Mechanicsburg, PA 17055, in this County. Delaney was hired by Hub City on November
I, 1999. Delaney was employed for approximately five and one-half years with Hub Group and
its affiliates as an Intermodal Dispatcher. She became an employee of Hub Terminals in May,
2004. On March 23, 2005, Delaney gave two weeks notice that she was resigning her
employment. She worked out of her home throughout her employment with Hub Terminals and
its affiliates.
5. The Court has jurisdiction over this action and the parties pursuant to 42 Pa.
C.S.A. ~ 5322. Delaney is a natural person domiciled and residing in Pennsylvania. She has
transacted business in this State and has made and performed one or more applicable contracts
and promises substantially connected with this State.
6. Venue is proper in Cumberland County pursuant to Pa. R.C.P. 1006 because this
cause of action arises out of events occurring in Cumberland County.
FACTS COMMON TO ALL COUNTS
Plaintiffs' Business and Coroorate Structure
7. Hub Group is a leading customer-focused, non-asset based transportation
management service company that provides comprehensive intermodal, truckload, LTL,
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CHI 10941320.1
international and logistics services to its customers located worldwide. Specifically, Hub Group
arranges for the transportation of goods in trailers and/or containers on behalf of third parties
from their point of origin to their final destination throughout the United States and elsewhere.
8. With 30 offices located throughout the United States, Canada and Mexico, Hub
Group has become the largest intermodal marketing company in North America.
9. Hub Group, Inc. operates through a variety of wholly-owned subsidiaries. In
pertinent part, Hub Group wholly-owns Hub Terminals, which wholly-owns Hub Atlanta. This
action involves Hub City, which was formerly controlled by Hub Terminals, and, through
multiple corporate reorganizations, merged with and into Hub Atlanta
10. In 1999, Hub City's general partner was Hub Telminals. As Hub City's general
partner and parent, Hub Terminals maintained a controlling 30-percent ownership interest in Hub
City. Through its whole-ownership of Hub Terminals, Hub Group controlled Hub City during
that time period.
II. On December 31,1999, Hub City converted to a limited liability company,
becoming Hub Group Pittsburgh LLC. Hub Terminals acquired one-hundred percent of the
equity interest in Hub Group Pittsburgh LLC at that time. By operation of law, Hub Group
Pittsburgh LLC assumed Hub City's assignments and obligations. Hub Terminals maintained
control of Hub Group Pittsburgh LLC at that time. Through its whole-ownership of Hub
Terminals, Hub Group also controlled Hub Group Pittsburgh LLC during that time period.
12. On May 31, 2004, Hub Group Pittsburgh LLC merged with and into Hub Atlanta.
By operation of law, Hub Atlanta assumed Hub Group Pittsburgh LLC's assignments and
obligations. Hub Atlanta was then and remains wholly-owned by Hub Terminals, which as
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CHI 10941320.1
described above, is wholly-owned by Hub Group. Thus, Hub Group has, at all relevant times,
controlled (and now controls) Hub Atlanta.
13. At the time of the May 31, 2004 corporate reorganization, employees of the
entities that merged into and with Hub Atlanta became employe:es of Hub Terminals.
14. Plaintiffs' Intermodal Dispatchers maintain contact with current and potential
customers, arrange for the pick up and shipping of customers' inventory, trace shipments, and
provide overall customer service. They provide direct support to Plaintiffs' Account Managers.
Plaintiffs' Intermodal Dispatchers have access to and use confidential trade secrets information,
including, but not limited to, customer lists, customer contact information, and customer rates
and pricing schedules.
15. Some of Plaintiffs' customers do business with Plaintiffs strictly based upon the
competitive pricing that Plaintiffs offers on their products. Some of those customers seek bids
from Plaintiffs and other entities and then choose Plaintiffs based upon their superior pricing.
Other customers contract with Plaintiffs for ongoing (or multiple transaction) service, also at
least partially on the basis of Plaintiffs' competitive pricing.
Plaintiffs' Confidential and Proprietary Information
16. Plaintiffs have invested substantial time and money developing information and
knowledge relating to their customers, the transportation management services industry, and
Plaintiffs' business of selling comprehensive intermodal, truckload, LTL, international and
logistics services to their customers.
17. Plaintiffs organize, maintain, and access this information using several
confidential and proprietary computer programs that Hub Group has either created or
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CHI 10941320.1
substantially modified and expanded to fit its business needs. These confidential and proprietary
programs include its Transactional Processing System ("TPS").
18. TPS is a computer-based operating platform created by Hub Group. TPS contains
confidential customer and business information including, but not limited to, customer
identification and contact information, vendor identification and contact information, customers'
current and past orders, pricing, margins, historical and current billing data, data regarding
equipment type used, the timing of load pick-ups and deliveries, and other sensitive and
confidential business information.
19. Specifically, TPS contains the rate information for Plaintiffs' customers. Given
the competitive nature of Plaintiffs' industry, Plaintiffs derive independent economic value from
keeping their pricing and rate information confidential. If a competitor were to learn of
Plaintiffs' pricing and rate structures for certain customers, the competitor could utilize this
information to undercut Plaintiffs' rates and take business away from Plaintiffs.
20. Plaintiffs have developed and maintained this proprietary program at great
expense in excess of millions of dollars and continuously updat(~ related databases with current
confidential customer and business information. This application and its related databases are
maintained on Hub Group's network server located at its corporate headquarters in Downers
Grove, Illinois.
21. Plaintiffs' Intermodal Dispatchers constantly access and rely upon TPS to obtain
customer and other business related information. Because a few of Plaintiffs' Intermodal
Dispatchers work from home on a daily basis and many work from home on weekends or nights,
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CHI 10941320.1
it is critical that the Intermodal Dispatchers be able to remotely access and obtain Plaintiffs'
customer data and other proprietary business information regarding accounts in their territories.
22. As a result, Plaintiffs maintain a computer network known as a Virtual Private
Network ("VPN"), which allows Plaintiffs' employees to remoltely access Plaintiffs' network
from virtually any location. Specifically, Intermodal Dispatchers are able to access TPS, their
business e-mail, and other software programs from their homes.
23. Plaintiffs equip Intermodal Dispatchers who work off-site with a Hub Group
issued computer, which allows the Intermodal Dispatchers to access Hub Group's VPN.
24. Plaintiffs' VPN is a secure network and can only be accessed by Plaintiffs'
employees who are authorized to access the VPN.
25. Thus, using the VPN, Plaintiffs' Intermodal Dispatchers access Plaintiffs'
computers and their computer system to provide transportation management services to
Plaintiffs' customers in interstate commerce throughout the United States and across state lines.
26. Delaney used a Hub Group-issued computer located in her home to connect to
Plaintiffs' network through the VPN. She frequently accessed TPS and other software
applications on Plaintiffs' network to perform her job duties.
27. The TPS is on the cutting edge of computerized information technologies that
gives Plaintiffs a competitive edge over other companies in the transportation management
services industry.
28. During her tenure at Hub City and Hub TerminaIs, Delaney was authorized to,
and routinely did, access Plaintiffs' TPS using the VPN network for the purpose of supporting
Account Managers in making sales to and servicing customers of Plaintiffs.
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CHI 10941320.1
Plaintiffs Protects Their Information
29. Plaintiffs require that their customer and business information be kept strictly
confidential by their employees and restricts access to this information. Plaintiffs take specific
measures to preserve the confidentiality ofthis information, induding, but not limited to, the
following:
a. Plaintiffs restrict access to its computerized information, (including its
TPS), computer network (including its VPN), and computers through the use of passwords.
b. Plaintiffs prohibit the use of its property, materials or facilities not directly
related to Plaintiffs' business, or the removal or borrowing of Plaintiffs' property without
permissIOn;
c. Plaintiffs restrict access to their offices by, for example, requiring a key
for after hours access;
d. Plaintiffs require all of its employees to sign "Receipt & Acknowledgment
of Hub Group's Employee Guide" and "Receipt and Acknowledgment of the Hub Group Code
of Business Conduct and Ethics" -forms stating that the employee has read and will abide by
these policies which prohibits employees from using or improperly disclosing any confidential,
proprietary and/or trade secret information belonging to Plaintiffs;
e. Hub Group's Confidential Information Policy prohibits employees from
using or disclosing Hub Group's confidential business information for any purpose other than to
advance Hub Group's business interests; and
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CHI 10941320.1
f. Upon an employee's separation from PlaIntiffs, any passwords that he or
she may have been given to access the above programs are immediately disabled to prevent any
further access by that employee.
30. Plaintiffs rigorously maintain the confidentiality of its business information
because the information provides Plaintiffs with a competitive advantage in the marketplace
from which Plaintiffs derives economic value.
31. Plaintiffs have spent millions of dollars and many years developing and marketing
a variety of transportation management services and developing and maintaining their
proprietary and confidential computer programs and related databases. Plaintiffs' knowledge
and information of their customers and their business as contained in its TPS sets it apart from its
competitors.
32. Through its efforts, Plaintiffs' have invested substantial time and money in
developing information and knowledge about their services, theiir customers, and their
customers' demands. Much of the information and data that Plaintiffs develop regarding their
transportation management services and their clients are not publicly available.
33. Plaintiffs' confidential information is of great value to Plaintiffs and could give
any competitor, including Trailer Transport Systems, Inc. ("TTS") and its agents and employees
(such as Marcia Delaney) who acquired that information, an unfair, competitive advantage. A
competitor could use Plaintiffs' information unfairly to price its products and services, to move
business and/or long-standing customer relationships away from Plaintiffs, and to obtain a head
start or streamline in its development, product, and service efforts.
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CHI 10941320.1
Marcia Delanev's Emplovment with Plaintiffs
34. On November 1, 1999, Hub City hired Delaney as an Intermodal Dispatcher.
After the May 31, 2004 corporation reorganization, described above in paragraphs 11-13,
Delaney became an employee of Hub Terminals. At all relevant times, Hub Group has
controlled Delaney's employers, i.e., its corporate affiliates or, itself, directly employed Delaney.
35. While employed by Hub Group and its affiliates, Delaney worked remotely from
her home in Mechanicsburg, Pennsylvania (which is located in Cumberland County).
36. Delaney provided dispatching support to two (2) Account Managers, one of who
was Jeffrey M. Clancy ("Clancy"). Her job duties included, but were not limited to, taking
telephone inquiries from customers, dispatching to truckers, tracing on the railroads, setting up
delivery appointments, and handling customers problems.
37. Hub Group provided Delaney with a computer and Company software to facilitate
her working at home. Delaney had authorized, password-based access to Hub Group's VPN,
Lotus Notes, and TPS. Through her access to those programs, Delaney could and did obtain
confidential and proprietary information, including but not limited to, Plaintiffs' customer base
and its pricing, bids, and profits/margins on various sales.
38. In the calendar year 2004 and as of March of 2005, Delaney serviced 20 active
accounts.
Marcia Delanev's Non-Comvetition Al!reement and Hub Group's Business Conduct and
Ethics Code and Emplovee Guide
39. As a condition of and in consideration for her initial employment, Delaney
entered into the Non-Competition Agreement with Hub City on November 4, 1999. By
operation of law and by virtue of the corporate structure described above in paragraphs 11-13,
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CHI 10941320.1
Hub Terminals has been assigned Hub City's original rights under Delaney's Non-Competition
Agreement.
40. The Non-Competition Agreement protects PlaintJiffs' legitimate interests in its
confidential business and customer information and its long-standing customer relationships.
41. In the Non-Competition Agreement, Delaney acknowledged that she would be
privy to her employer's trade secrets and confidential information during the term of her
employment. She also acknowledged that Hub City's (and its successors in interest's) trade
secrets and confidential information were unique assets, were the property of Hub City (and its
corporate successors in interest), and were developed and perfected over considerable time at
substantial expense to Hub City (and its corporate successors in interest). Furthermore, she
acknowledged the disclosure of such information would cause injury, loss of profits, and loss of
goodwill to Hub City (and its corporate successors in interest).
42. Delaney thus agreed that she would protect the confidentiality of all of Hub City's
(and its corporate successors in interest's) trade secrets and confidential information and not
retain, use, or disclose, directly or indirectly, any of Hub City's (and its corporate successors in
interest's) trade secrets and/or confidential information during her employment and thereafter.
43. In addition, Delaney's agreement provides:
Section 2. Al!reement not to Comnete. During the term
beginning on the date of this Agreement and continuing until one
year after the Employee is no longer an employee of Hub (the
"Term"), the Employee shall not directly or indirectly contact or
communicate with or attempt to solicit intermodal, truckload
brokerage, logistics, LTL or any other Transport Business from
any person or entity who was a customer of Hub on Employee's
last day of employment with Hub. In addition, Employee agrees
that during the Term, the Employee shall not directly or indirectly
contact or communicate with any person employed by Hub on
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CHI 10941320.1
Employee's last day of employment with Hub regarding possible
employment or association with any entity or person other than
Hub.
As defined in her agreement "Hub" was Hub City Pittsburgh, L.P. Thus, Delaney agreed not to
contact, communicate with, and/or solicit the entities that were the customers of Hub City (and
customers of its corporate successors in interest) on Delaney's last day of employment with Hub
City (and its corporate successors of interest) ("Customers").
44. Her agreement also specifically provides:
Section 6. Confidential Information. The Employee
acknowledges that, by virtue of the Employee's employment by
Hub, the Employee will be granted otherwise prohibited access to
confidential and proprietary data of Hub, which information is not
known either to competitors of Hub or otherwise. This
information (herein, the "Confidential Information") includes, but
is not limited to: (i) specialized strategies, practices and procedures
for obtaining and maintaining clients; (ii) computer systems,
software programs and related enhancements of Hub; (iv) [sic]
policies, practices and procedures relating to pricing of services,
including agreements with the providers of transportation and the
related fee schedules; (v) ongoing service agreements information
relating to the identity of clients of Hub; (vi) key contacts at such
clients; (vii) specifics concerning the nature and extent of services
previously or currently being provided to or planned for such
clients; (viii) rate quotes for customers; and (ix) any other essential
information concerning such clients' particularized needs. The
Employee agrees that, beginning on the date hereof and continuing
until one (I) year after the Employee is no longer an employee of
Hub, the Employee will not, without the prior written consent of
the Hub, divulge any Confidential Information or make use of it
for the Employee's own purposes or the purposes of another. In
addition, the Employee agrees that the Employee will, prior to the
last day of his employment by Hub, turn over to Hub all
Confidential Information in the Employee's possession in
whatever form, including, without limitation, copies and
information stored on computer. The foregoing restrictions shall
not prohibit the Employee from divulging Confidential
Information to the extent required by the lawful order of a court or
agency of competent jurisdiction; orovided, however, to the extent
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CHI 10941320.1
that any such court or agency seeks to compel the Employee to
divulge any Confidential Information, the Employees shall
promptly inform Hub and shall take such reasonable steps to
prevent disclosure of such Confidential Information until Hub has
been informed of such requested disclosure and Hub has had an
opportunity to respond to such court or agency.
A true and correct copy of Delaney's signed non-competition agreement is attached as Exhibit A.
45. Moreover, on December 2, 2003, Delaney signed a Receipt and
Acknowledgement of the Hub Group Code of Business Conduct and Ethics ("the Code"), which
recited her review and understanding of the Code and her agreement to abide by its terms. A
true and correct copy of Delaney's signed acknowledgement of her receipt ofthe Code is
attached as Exhibit B.
46. The Code provides:
4. Confidentiality Employees, Officers and directors of
[Hub Group] must maintain the confidentiality of confidential
information entrusted to them by [Hub Group] or its suppliers or
customers, except when disclosure is authorized by the Law
Department or required by laws, regulations or legal proceedings.
Whenever feasible, employees, officers and directors should
consult the Law Department if they believe they have a legal
obligation to disclose confidential information. Confidential
information includes all non-public information that might be of
use to competitors of [Hub Group], or harmful to [Hub Group] or
its customers if disclosed.
47. The Code further provides:
6. Protection and Proper Use of Company Assets All
employees, officers and directors should protect [Hub Group's]
assets and ensure their efficient use. Theft, carelessness, and waste
have a direct impact on [Hub Group's] profitability. All [Hub
Group's] assets should be used for legitimate business purposes.
A true and correct copy of Hub Group's Code of Business Conduct and Ethics is attached hereto
as Exhibit C.
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CHI 10941320.1
48. In addition, on January 4,2005, Delaney signed a Receipt & Acknowledgement
of Hub Group's Employee Guide (the "Employee Guide"), in which she specifically
acknowledged the following:
I am aware that during the course of my employment confidential
information may be made available to me including, without
limitation, marketing strategies, customer lists, pricing policies and
other related information. I understand that this information is
critical to the success of Hub Group and must not be disclosed or
used outside of Hub Group's premises or with non-Hub Group
employees. I have read and agree to abide by Hub Group's policy
regarding confidential information. In the event of termination of
employment, whether voluntary or involuntary, I hereby agree not
to disclose or use this information with any other individual or
company.
A true and correct copy of Delaney's signed acknowledgment of her receipt of the Employee
Guide is attached hereto as Exhibit D. In addition, the complete Confidential Information Policy
section, the material portion of the Employee Guide, is attached hereto at Exhibit E.
49. During the course of her employment with Hub City and Hub Terminals, Delaney
was entrusted with and became intimately familiar with a variety of Plaintiffs' trade secrets and
confidential information. Specifically, Delaney had access to Plaintiffs' confidential and
proprietary customer contact and pricing information, fuel surcharges, and customer bids.
50. Hub City and Hub Terminals properly compensated Delaney at all times during
her employment with Hub City and Hub Terminals and otherwise fulfilled all of its obligations
to her.
Delanev Quits Her Emplovment at Hub Terminals
51. On March 23, 2005, Delaney contacted Phil Bayle ("Bayle"), her supervisor and
Hub Group's Vice President, Eastern Region, Intermodal Operations & Administration, via
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CHI 10941320.1
telephone and tendered her two-week notice that she was resigning her employment. Per Bayle's
request, she later sent an e-mail to Bayle containing her written notice of resignation.
52. Delaney remained employed at Hub Group until March 30, 2005. Between
March 23, 2005 and March 30, 2005, Hub Group retained Delaney to aid in transitioning her
Hub Group accounts to other employees.
53. Delaney accepted a position as Intermodal Dispatcher at Trailer Transport
Systems, Inc. ("TTS"), a direct competitor of Plaintiffs, on March 21, 2005. Her first day at
work for TTS was April 4, 2005.
54. Delaney had communications with TTS about h(~r potential employment with TTS
as early as March 3, 2005.
55. As an Intermodal Dispatcher at TTS, Delaney now performs the same or
substantially similar duties and more that she formerly performed for Plaintiffs. Specifically,
Delaney's job duties at TTS include customer service, arranging for shipping services, tracing
shipments, and putting together rates and price quotes for customers.
56. In fact, Delaney works with multiple former customers of Plaintiffs in her
capacity as a TTS employee and on behalf of TTS.
Delanev's Violation of Her Non-Competition Al!reement
57. Delaney has violated her Non-Compete Agreement by contacting and soliciting
Customers on behalf of TTS, a direct competitor of Plaintiffs, both while she was working for
Hub City and Hub Terminals (and its corporate affiliates) and since she began working for TTS.
58. On March 28, 2005, while she was still employed by Hub Terminals, Delaney
exchanged e-mail communications with Jeffrey M. Clancy ("Clancy"), a former Hub Group
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CHI 10941320.1
Account Manager for Hub Group, regarding a Hub Group customer that she serviced while at
Hub Terminals. The e-mail communications indicate that Delaney, Clancy, and TTS were
soliciting that customer on behalf of TTS. These e-mail communications are marked "attorneys
eyes only" subject to the May 24, 2005 protective order entered by the United States District
Court for the Eastern District of Pennsylvania in the case of Hub Group, Inc. v. Jeffrey M.
Clancy, No. 05-CV-2046 ("Protective Order").
59. In addition, immediately after leaving Hub Terminals, Delaney began contacting
Customers for the purpose of soliciting them to purchase services that compete directly with
those sold by Plaintiffs. Delaney had worked with these Customers during her employment at
Hub Terminals. Through her solicitation, Delaney also used Plaintiffs' confidential and
proprietary customer contact and pricing information.
60. During Delaney's solicitation of some ofthese Customers, she sought to undercut
Plaintiffs' rates using her knowledge of Plaintiffs' confidential information.
61. Notwithstanding Delaney's obligations under the Non-Competition Agreement,
other employment agreements, and applicable law, Delaney has improperly and unlawfully
utilized Plaintiffs' trade secrets and confidential information to solicit Customers and potential
customers on behalf of TTS.
Delanev's misapvropriation of Plaintiffs' trade secrets and confidential information
62. Since joining TTS, Delaney has utilized Plaintiffs' trade secrets and confidential
information in her capacity as TTS's Intermodal Dispatcher.
63. By way of example, on March 14,2005, Delaney received an e-mail
communication from Clancy, which contained Plaintiffs' confidential account information.
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CHI 10941320.1
Shortly after Clancy sent this e-mail, he resigned his position at Hub Group. TTS currently
employs Clancy. This e-mail communication is marked "attorneys' eyes only"subject to the
Protective Order.
64. Delaney received this March 14,2005 e-mail while she was negotiating her
employment with TTS. Upon information and belief. Clancy and Delaney still have this list in
their possession, and they are using it or threaten to use it to solicit Plaintiffs' Customers.
65. In addition, in an e-mail communication on April 11, 2005, Delaney
communicated Plaintiffs' shipping rates for certain customers of Plaintiffs to Mark Ervin
("Ervin"), TTS's Vice President. Delaney gave Ervin the rates to ensure that TTS could
undercut Hub Group's rates. Plaintiffs believe that Delaney derived this rate information
through her employment at Hub Terminals. This e-mail communication is marked "attorneys'
eyes only" subject to the Protective Order.
66. On May 18,2005, Delaney also sent an e-mail communication to a former
employee of Hub Group (and its corporate affiliates) that contained Plaintiffs' rates for two
routes. The former employee's current employer directly competes with Plaintiffs, but the
employer does not have contracts with railroads. The former employee contacted Delaney to ask
TTS to provide railroad freight services. Delaney communicated Plaintiffs' rates to Ervin. Ervin
then provided rates to Delaney, which she then communicated to the former employee. The rates
that Delaney quoted to the former employee were lower than Plaintiffs' rates. These e-mail
communications are marked "attorneys' eyes only" subject to the Protective Order.
67. Delaney has used and threatens to continue to use Hub Group's trade secrets and
confidential information in unfairly soliciting and procuring Hub Group customers.
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CHI 10941320.1
68. As a result of Delaney's actions, Plaintiffs have and will continue to be
significantly and irreparably injured. Plaintiffs have lost and are threatened with losing even
more customers and deals in large amounts that can never be exactly determined. In addition, as
a result of Delaney's conduct, Plaintiffs are losing and will continue to lose its valuable goodwill
while their reputations are being damaged. Finally, Plaintiffs are threatened with the improper
and unauthorized disclosure of their trade secrets and confidential information. The value of that
information will be substantially diminished or destroyed as a result of Delaney's unauthorized
use of that information, and Plaintiffs are unfairly disadvantaged in competing with TTS.
COUNT I
BREACH OF CONTRACT
69. This Count is brought against Delaney for breach of her Non-Competition
Agreement, which is attached hereto as Exhibit A. Plaintiffs reallege and incorporate herein by
reference Paragraphs I through 68.
70. The Non-Competition Agreement that Delaney executed with Hub City is a valid
and enforceable contract. The post-employment activity restrictions contained in Sections 2 and
6 of the Non-Competition Agreement are reasonable in scope and duration and are reasonably
necessary to protect Plaintiffs' legitimate business interests, induding Plaintiffs' trade secrets
and confidential information and its long-term customer relationships.
71. Additionally, to the extent these post-employment activity restrictions are found
to be unreasonable in scope, this Court is expressly authorized under the Non-Competition
Agreement to modify those restrictions and render them reasonable and enforceable.
72. Plaintiffs have fully performed all of the obligations they owe Delaney under the
Non-Competition Agreement.
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CHI 10941320.1
73. In contravention of her obligations to Hub Group and Hub Terminals under the
Non-Competition Agreement, Delaney has entered into employment with a business that is in
direct competition with Plaintiffs and has solicited Customers using Plaintiffs' trade secrets and
confidential information.
74. In addition, Delaney has violated the terms of the Non-Competition Agreement
by:
a. contacting, communicating, and soliciting Transport Business from
Customers;
b. divulging Plaintiffs' trade secrets and confidential information for the
purpose of directly competing with Plaintiffs; and
c. using Plaintiffs' confidential information, including customer lists, rates,
and pricing policies, to solicit Customers.
75. Plaintiffs have been injured irreparably and otherwise, as a result of Delaney's
breach of contract.
COUNT II
MISAPPROPRIATION OF TRADE SECRETS 12 ][>A. C.S.A.1l1l5301-5308
76. This count is brought against Delaney for actual and/or threatened
misappropriation of trade secrets in violation of applicable law. Plaintiffs repeat and reallege the
allegations contained in Paragraphs I through 75 above as if fully set forth herein.
77. The confidential and proprietary business information including Plaintiffs'
uniquely created or modified Lotus Notes and TPS computer applications and the customer and
business information contained in the databases for these programs entrusted to Delaney by Hub
Group constitutes trade secrets. Plaintiffs derive independent economic value from that
-19-
CHI 10941320.1
information not being generally known to the public and not being readily ascertainable by
proper means by other persons who can obtain economic value from its disclosure or use. The
information was the subject ofreasonable efforts to maintain its secrecy.
78. Delaney was obligated by applicable law to maintain the secrecy of that
information. Nonetheless, Delaney has breached her duties to Plaintiffs by removing this
information from Plaintiffs and threatening to or disclosing this information to others, including
TTS.
79. Delaney has been or will be unjustly enriched by said threatened or actual
misappropriation of Plaintiffs' trade secrets, and, unless restrained, Delaney will continue to use,
divulge, threaten to or otherwise misappropriate Plaintiffs' trade secrets.
80. Delaney's misappropriation of trade secrets has been willful and malicious.
81. Plaintiffs have been injured, irreparably and otherwise, and are threatened with
additional and on-going injuries as a result of the threatened and actual misappropriation of trade
secrets by Delaney, as alleged above.
82. Plaintiffs have suffered damages as a result of Delaney's actions in an amount to
be determined at trial and because Plaintiffs' remedy at law may be inadequate or incomplete,
seek temporary, preliminary, and permanent injunctive relief to recover and protect their
information, goodwill, and other legitimate business interests. Plaintiffs also seek to recover
from Delaney any gains, profits, and advantages she may have obtained as a result of the acts
described herein in an amount to be determined and an award of exemplary damages and
attorneys' fees pursuant to 12 Pa. C.S.A. ~ 5304(b) and ~ 5305.
-20-
CHI 10941320.1
COUNT III
BREACH OF FIDUCIARY DUTY
83. Plaintiffs repeat and reallege the allegations contained in Paragraphs I through 82
above as if fully set forth herein.
84. As an employee of Hub Terminals, Delaney had a duty to act in good faith and
solely for the benefit of Hub Terminals (and its corporate affilialtes) in all matters for which she
was employed.
85. Delaney's fiduciary duty included a duty to guard and not misuse confidential and
trade secret information of Plaintiffs.
86. By and through Delaney's conduct, as described above, Delaney has breached her
common law fiduciary duty to Plaintiffs, among other things, to protect the interests of Plaintiffs,
and to refrain from doing anything that would work to Plaintiffs' injury.
87. Plaintiffs have been and continue to be materially, immediately, and irreparably
injured by Delaney's continued wrongful conduct. Delaney's failure to act solely for Plaintiffs'
benefit was the real factor in bringing about Plaintiffs' injury.
88. As a result of Delaney's actions, Plaintiffs have been damaged in an amount to be
determined at trial.
COUNT IV
CONVERSION
89. Plaintiffs repeat and reallege the allegations contained in Paragraphs I through 88
above as if fully set forth herein.
90. Delaney wrongfully removed from Plaintiffs their property and customer and rate
information, without authorization, and converted it to her own use.
-21-
CHI 10941320.1
91. Delaney has failed to return to Plaintiffs their property.
92. As a direct and proximate result of Delaney's actions, Plaintiffs have been
damaged.
93. As a result of Delaney's actions, Plaintiffs have been damaged in an amount to be
determined at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs Hub Group, Inc. and Hub Terminals, Inc. seek judgment in
their favor and an Order granting the following relief:
(1) That Delaney be enjoined from violating the non-compete and non-
disclosure provisions of the Non-Competition Agreement;
(2) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be preliminarily and permanently enjoined from using or disclosing any confidential or
proprietary information that Delaney obtained from Plaintiffs;
(3) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be enjoined and ordered to return to Plaintiffs all originals and all copies of files, data, and
information removed from Plaintiffs, including, but not limited to, the confidential and
proprietary customer contact and pricing information, fuel surcharges, and customer bids that
Delaney obtained from Plaintiffs;
(4) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her. including Trailer Transport Systems, Inc.,
-22-
CHI 10941320.1
c'
be preliminarily and permanently enjoined for one year from, directly or indirectly, contacting,
communicating with, or soliciting any of Customers to purchase any products or services that are
the same or similar to those products or services that Plaintiffs and their affiliates sold or
solicited to sell to them.
(5) That Delaney, her officers, agents, servants, employees, and attorneys and
all parties in active concert or participation with her, including Trailer Transport Systems, Inc.,
be preliminarily and permanently enjoined for one year from, directly or indirectly, selling to
Customers any products or services that are the same or similar to those products or services that
Plaintiffs and their affiliates sold or solicited to sell to them.
(6) That Delaney be enjoined and ordered to provide a sworn statement and
accounting of the whereabouts of all files, data, and information removed from Plaintiffs;
(7) That Plaintiffs be awarded money damages in an amount to be proven at
trial;
(8) That Plaintiffs be awarded exemplary damages pursuant to Pennsylvania's
Uniform Trade Secrets Act;
(9) That Plaintiffs be awarded their attorneys' fees pursuant to Pennsylvania's
Uniform Trade Secrets Act;
-23-
CHI 10941320.1
..
(10) That the Court grant any further relief as the Court deems just.
Respectfully submitted,
J-h~
ri P. Downey (PA 59891)
in G. Weber (PA 89266)
PEPPER HM.1ILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Daniel F. Lanciloti (phv)
Anne E. Dupr,ey (phv)
Molly Eastman (phv)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000
Date: August 15,2005
Attorneys for Plaintiffs
Hub Group, Inc. and Hub Terminals, Inc.
-24-
CHI 10941320.1
VERIFICATION
I, Phil Bayle, hereby state that I am the Vice President, Eastern Region, Intermodal
Operations & Administration for Hub GrouP. Inc. and am authoti7J~ to make this verification on
its behalf. I verify that the statements made in PlI!agraphs 1-57,61-62,64, and 67-93 in the
toregoing document are true and correct to the best of my knowledge. infurmation, and belief.
am unable to verifY paragraphs 58-60. 63, and 65-66 of the foregoing document because these
paragraphs relate to documents that are marked "attorneys' eyes or~y" subject to a protective
order dated May 24. 2005, which is currently in effect in Hub Group, Inc, v. Jeffrey M. Clancy,
Case No. 05-CV-2046 (E.D. Pa.). I understand that the statements in said document are made
subject to the penalties of 18 P A. CONS. STAT. * 4909 relating to unsworn falsification to
authorities.
Executed on August 15,2005.
~Jk= Irl~
~ ayle
VERIFICATION
I, Molly Eastman, hereby state that I am outside counsel for Hub Group, Inc., and I am
authorized to make this verification on its behalf. I verify that the facts set forth in paragraphs
58, 63, and 65-66 are supported bye-mail communications that I have reviewed and that are
marked "attorneys' eyes only" subject to the May 24,2005 protective order entered in the case
Hub Group, Inc. v. Jeffrey M. Clancy, Case No. 05-CV-2046 (E.D.. Pa.). Additionally, I verifY
that the facts set forth in paragraphs 59-60 are supported by Marcia Delaney's testimony given at
her June 10, 2005 deposition in the aforementioned case, as memorialized in the deposition
transcript, the material portions of which are subject to the aforemc:ntioned protective order. I
have reviewed this deposition transcript. I understand that this verification is made subject to the
penalties of 18 PA. CONS. STAT. ~ 4909 relating to unsworn falsific:ation to authorities.
Executed on August 15,2005.
~.f,(
-
CERTIFICATE OF SERVICE
I certify that on August 15,2005, I served a copy of the foregoing on counsel by
United States first class mail, postage prepaid, addressed as follows:
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
L
Exhibit A
"
HON-COMPETlTION ArnlRRMmIT
~ THIS ~~MPEnnON AGP~ (~n.~') is entered into as oftbis
u ~-aiia'H\Jb~~2i;;7;::L~~~~ividual (the "Emnlovee"),
WHEREAS, Employee bas experience in the ueaoftrBnspllrtation and desira to bec~ an
employee of Hub;
WHJ;:REAS, Hub desire. to hire EmplOyee as a diapatdler on the condition that Employee
c:xecutc this Agreement.
WlIEREAS, Employee aiJd Hub desire to enter. into this AgeemeIlt restrictins the activities
oftb~ Employee.
NOW, lHEREFOlW,.. in consider.llion or the foregoing: and other good and valuable
eoasidenDion, the receipt lUld sufliciOJlCy ofwldch are herebyac\alO'...tedged, the parties hereto agree
as follmvs:
Seotion 1.. Definitions. Tn addltiotl to tho tonne cIefiIIed elsewhere in this Agreement,
<:apitalizcd leon. used herein shaI1)lave the meanings set forth be!(IW:
"TranSOM Bu$in.......means thc utilization of roads, highways llIldIor the railroad &y5tem to
IIlnnge fur- the tTlInSporbdion of goods in lXailers and/or containets Oil beha1f of third parties ftom the
point of origin to tbeirfinal destination.
Seedon 2. A2reemmt not to Comnete Dwing the tClrm beginning on the date DC this
AsrcemeIIt and conlil1lling vntil one ~ after the Employee is no longer an empIoyeo ofHilb (the
AT CIlD@), the Employee shall not directly or indirectly contact or ':Dmmunicate with or attempt to
solicit intermodal. trucldoad brolremgll, lopstica, LTL or lID)' other Transport BusiDes. from lID)'
penlOn or OJ)tlty who wu a cu..o~ of Hub on Employee', last clay of employment with Hub. In
addiJion, lirnpIoyt;c ~ that cluringtho Term. the EmpIoyct shall not dirct:dy or indirectly COlIIlICt
or ~ with any penon employed by Hub on Employee's last day ofemployment with Hub
regarding polSlDic employment or ueociation with any entity OTperson othor than Hub.
Section 3. . R.........),lPandNa:z:IllllIIV~inn., lbc~adaJowIcdp~thc
rmriction5, probibitioos and other provi!ion. hereof are J'CII5ODable. fiir and ~ui1abIc in scope. tcmIS
and duration, aro 1IOOOUIIy to protect the legitimate bulineSl inte:rellts of Hub. IJ1d are a material
iDdua::meot to Hub to hire the Employee.
Section 4. Snecific pmnnntlflr... The EmpiO}"lO acknowledges that the obligations
undertalc.en by the Employee putllUQllt to thi, Agreement are wal'lllle Mid that Hub wiJlllot have lIJl
WOl'1a.l IOI3W 1<<IfC n.DCI1DO
-1-
. \
adequate remedy at law if the: Employee shaI1 fail, to perform 3l1'J of the Emp1oyee's obligations
hen:under,lII!d the Employee thcrd'ore collfimlJ that Hub'. rigJa Ul' specific paformance oftbe tcnns
oftbiJ Ag11=neDt are esseotial to prOtect tbD rigbl$ and innn. of'Hub. Mcordingly, in addition to
any ~~et that Hub may have at law or in equity, Hub shall havt: the rip to I1aw 8lI
obligatiOllS, COVCIWIU, agreemeotslllld otbel" provjlions oftbis ~ spdically peribnncd by
the Employee.lDld Hub shall have the rigbr to obtain pr,,&..,mAq' and pemIIIlICDt ir\iundive relief to
secure specitlc peJfoml~ IlId toproveut a breach or contemplated breach oftbia A8reemQl~ by
the Employee, and the Employee sUbrilita to the jurisdiclion of tile c:owts oCtile State ofPennsylvmia
for this pwpo8e.
SQ1tion 5.
Mi_naneous Pr~9M-
5.1 Binding FftPrt. SUbject to any proviIiona hcnofrestric:ling assigumeat, aD covenants
and agree:meutS In tbia.A.arccmeol by OJ" 011 bcha1f of my of the puties hereto shall bind and iIIurlI ~o
the benefit of their respeai~ suc:cesson, uslgnll, hein. 8lId peraonal representatives. .
5.2 A5si_. NODe of th~ parties Iw:rcto !DaY auigu any of ih rigbts lIIIli<< tbiI
~ or attempt to have any other erity or iDdMdual......... any orits obIiptiODJ hereunder,
except that Hub may ualJn any ofils riBhts. in~csu and obliptiou under tbiI ~ to. any
entity controlling. controlled by or UDder common cootrci with Hub .
5..3 ~ClC'llbiIi\y, If fulfi11Jneot of any provision of tbis Agre..n.cnt, at the timD aucb.
fulfillment sbalI be due, sbcd1 transcend the &mIt ofvaJiclity ~becI by law, then the obligation to
be fulfilled shIIII be recluoed to the limit of such validity; and if am, elm" or provision ClOJIUined in
this ~ operates or woulcI operate to invIlidate this Agn:ocnllmt, in whole or in part, tben such
clame or provipPD ODIy shaD be held inelfec:tiYe, as though not herein COfttAllJ"ld, and the remsinder
ofthia Agreemc:Jl16ba1l remain operative and irt full force IIIIli eIliQ, Tbepartics shall negotiate in
good &ith a repla...........t clau5e or provision IS consistmt with the: iBe6c:tive c1auIC or provision as
i. practicable under law.
5.4 CJ<>........,;".. Uw. TbiJ A8roaocm, thDri8bls and obJironcofthepartieshereto, an4
any daims or disputes reIIlIing dJleto shaD be gowrncd by and consvued ill aa:.ordancc with the laws
of the State ofPennsy1vania, without regml to choic:e-of'..Jaw rulC'.a th.ereot.
S,S Amendmvur. Except as otha"wise expressly J1rovided in this Asr-tem. no
amendment, modifJcaoon or discharse of this ~ shaI1 be .valid or binding unless set fonh in
writing and duly ~ed by c:adJ of the parties heRtO.
5.6 Waiver. AuywaNerby anyputy or c:onserI1 by any ~to anyvariationftom any
provision of this AgreeInf!nt &hcdl be valid ollly ifin writing IIIIli oDly ill tbe spec:ific instance in which
it is given, and such waiva- or COIIeeat sbaII not be c:OJJJtIued as a waiver oflll)' other provision or
as a comeut with respect to any aimilar instmJoe or ciraunstanc:o.
1Dn'MU 18l!Wt ICOIC 9JUlIBGD
-2.
;'
S.7 H"""'ifIv Section and subsection hcadlnsa contained in this As<eeuJ6ut are inserted
for convenience of reference only, sbaI1llOt be: ~ to be I~ part of this Agreement for Iny
purpoiC, aJld shall not in any way dd1n8 Dr.1I1&aI the. m..."i'lg,. construction pr scope of any DfIbe .
provil9ious heRlOf. .
5.8 No PnlIiUmDlion ~;n" Dndler. Each otthe parties hcRtO have jolntJy p8lticipated
in the nesotiation and drafting of this Apemem. In the event of aD ambiguity or a question ofiDtem
or interprCltation Irises, this AgJumeIIt shall be constrUfid as if drafted jointly by each of the parties
hereto and DO pR8UIJIptions or burdens of proof sbaIl &rise favoring my pII1:y by vil'tUe. of the
authonllip ofaJIY of the provisions of this Agmement.
5.9 E~OJl in CountCll'am. 1'his ~. may be: lixewtcdio two or more
c:oUDterpatta.1IOIlll ofwhidJ Dald contain tbesigDatures of'each oftha p8tlies hereto and esch or
wbioh IIhaIl be deemllCl an orlginaJ,
Section 6. Confideotial InfnrmatiOJL The Employee ;u;knowledgesthat, by virtue ofthc
Employee's employment by Hub, the Employee wiI1 be grB1lted otIlerWise prohibited access to
confidential and proprietaIy data afHub, which information is ncrtknowft either to competitors of
Hub or otherwise. Tbia iDtbnnation (herein, the .Confidentiallnformation") includes, but is not
limited to: (i) "P""'.lipd strategies, praeticellllJld proceclwa for obtaiuin$ and maintainingelienu;
(ii) eomputer systems, IOftwan programs IIld related cnhlllmIl0T4SofHub; (IV) pOiicies, practices
8Dd procedurea relating to priciug of Kn'ioes, inoh.d;1\i agreements with tbe providers of
tta1lIpO!1lltion and the related fee Illlbedules; (v) ongoing service 19I'eer1leots ild'otw..6oDrelating to
the identity 0(00_ of Hub; (Vl}key contacts at IlUCh c:llentt; (viii) sr-~'" conceming the ~
and em.m of services previOU5ly or CUl1'aIt\y beiDC provided to or planned fOr IIIch clil!llts; (viii) rate
quotSll fOr c:ustome.m; and (IX) any otbcr eBSaJtiaI infOl'lllldion concerning sucIl ~. ~llrized
oeeds. The Employee asrees that, ~...&,g oa the date hereof 8IJlil c:ontinuing UDtiI 0Il8 (1) yeer after
the Employee is no IOIl8el' an llmployee of Hub, the Employee wil1 DOt, without the prior written
COJ:ISl!Ill of the Hub. diwlge my Conlldemial Infbnnation or make uBCofi! for theEmployee's own
purpollllS or the purposes of 1IIIOther. In ~on, the Employee "8fCC8 that the Enlployee will,. prior
to the \ast day of his employl1lellt by Hub, turn over to Hub all ConfidClllial InfunnatiOllin the
Empl~s po---':OD m Mlat.tMlr mrm. including, withoutJimitIllion, copies and infurmDIion stored
oDc:omputst. The foregoiDg restrictions sban IIOt prohibit the Employee from divulging Confidential
:f.afOnnuion to the exteDt requind by tbD lawliil orderofaCGUrtol" qenoy ofoo.~'"JItjurisdidion;
providecl, however. to the Caem that UI)' such court or apnoy Ileeb to colDpd the Employee to
diwille any Confidlllllia1lDfCll1lllllion, the Emplo~ sha11 promptly inform. Hub and sbaD tlIke aud!
rea9OII&b1e steps to prevent diIcloalre of Slll:h Confidential Jnt'Dl!1IIIion unti1 Hub has been jnfOnned
of such rcquestecl. disdDlllJre and Hub hu had an opportunity to respond to Neh ooun Of agency.
. . . . .
)2]Dr.H.l.J lDUJI JtDIC D~
-3-
-.
INWIl'NESS WHE.REOF, ead1 ortbe undenigned baa executed this Agreement, or Cf\lsed
this Asr<<mem to be duly -led on its ~ 115 of the date:lint set forth above.
liUB CITY PITTSBUllGH. L.P.
By: ~-
NIII\e: J2 ~
TItIe;p A ,1-:~..q
EMPLOYBB:
~) d f)t/~
Attest: ~ :3. Y"r? Ir'f'} U tM'o-
Name:
-4-
TOTAL P. 04
Exhibit B
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Exhibit C
Code ofBumll:ll Conduct and Ethics
A"pst 12, 20113
It is the Compaiiy's policy to coudu"l ilO upol~liofts bOBc:st~)4IDd..ethicaJly, ""dtG --, - '
Company's txpe<:ts its employees, offiCCl'll and din:ctOIS Itl condllCl themselves in a simihlr
msuner in their dealillgs with or on behalf oftbe CoJ\\98llY, This CllcIe ofBuriness Conduct and
:E:1hic:s addresscs the Company's expecrstions with.rcJpeCt 10 tho CQIldnct ot' emp1oyccs, of5cas
Slid directors in several areas. By its nature, tbiJ Code ClIIlIlot address every situation tbat an
employee, officel' or direclor may face wlnle employed by the COlnpaay. Ernp/oyte$, officers
and directors shollld therefore be guided by the C01DpBIlY'S policy' that those individuals sboWd
conduct themselves hOnestly and ethically in their dealings with ad on beball' of1be Company.
1. Complyln8 With Law
A 11 employees, ofiicers and directors of the Company should rc&peCl and comply with all
oflhe laws, rules and regglanons oftbe U.S.1IIid olhercoumrics,1IIid the stales, counties, clIies
lIDd other jurl$dictions, ill which lhe CompaDY conducts Its businl:ss or the laws, NIcs and
rCllulalions of wlDeb are applicable to.the CompaDy,
Such lepl compliaDcc should include. wilhout limitation. compliance with thc "inrida
trading" plOhibitiODS applicable to the Company and its emplo)ICClS, oJIiCClll and directOrs.
Generally, employees, oflltm and directors who bave access to 'lr knowledge of confidartial or
no~public lnfot1Jlllrlon from or about the Compmy are not petmitted to buy, sell or olhcrwise
1tlIde in the Company's sccuritics. whether or DOt they ue usins or relylug upon that infomialion.
This restriction extends to sharina or tipping others about such infomllltion. especially sinl:e the
individullls receiving such information might utilize Sllch informaIion to uadein the Company's
securities. IU addition, !he Company has impJancnted 1nlding restrictions TO reduoe the risk, or
appearance, of insider \lading. Compa1l)' employees, officers 'anil directors ate direcled to the
Company's Insider Trading Policy or 10 the Comjlany's LawDepartm.ent if1hey have questions
T(garding the applicability of such insider 1radillg proJubilions.
'Ibis Code ofBusineu Conduct and Ethics does not smmaarize all laws, TUlea aI1d
regulations applicable 10 the Company and ilS employees, officers and directors, Please collllllt
the Company's Law Depsranent and the various guidelines wbicb !be Company has prepared on
specific lavn, JUles and regulations.
2. coumc:ts OfJutereat
All employees, officers IIJld direclOrs of the Company sheluld be saupulous in avoiding a
eonflicl of inlereSl with regard to the: Company's intcreSlS. A .coillflict of mterest" exists .
whenever an indiridlllll', private interests interfexe or conflict ill aD,y way (or even appear 10
interfere or conflict) with the interestS of the Company. A contlie;! situation can arise when an
employee, officer or director lakcsactions or hall intclrest9 that may I11llkc it difficult to pcrfonn
his or her Company wolt objectively and effectively. Conflicts e,r interest '/llllY also arise when
an employee, olJieer or director, or members of his or her liImily, receives impropor pmqrW .
bene1lts as a result ofbis or her positiOJl in the Company. whethl!r rectiived from the Compll1lY or
, .
a third part)'. Loans to, or guarant~ of o])ligati~ of, employeeil, officers aid ~ ami
their respective family mClllbelS may mate conflicts of interest. Fedmallaw1llObibilS loans to
direcron andC7'ocutive officers. . It is aJlII05t always a COD1IiclofiintercSl for . Company
fmtployee.1O work simultaneously for I com~ cuoomer or sllJlPlier. You are not allowed. TO
wolk for a competitor 85 I consullllnt or boatd m~ber, Th.c best policy is to aVoid any direct or
indirecl business connection with our Cll5lO1nC1S, suppliars or coD~tors, except OJ) oUt' behalf.
Conflicts of inlmest are prohibited IS a mana-of COIDpllD;)' policy,except IIlIdc:t
giJideJineJ approved by the Board ofDinlctmsor COIllIllitteesoftlJeBoard. Conf]~ ofinta-est
my not always be clear-en.. 80 if you have 8 quC$tloa, yen should consuh witbbighct levdt of
management or the Company's Law Departmenr. Any employee. officer or dilector :who
becomes aware ora conflict or pollll1tial conflict should brins it 11) the .attenDcm of" supervisor,
manager or other appropriale personnel or COJl5(lltthe procedures described iD Ibis Code. .
3. CorpOrllte OpportllDlq
EmPloyees,officers and diredon am prom"bited froDi (a) talcins for thcmlclvea
persODally opportunitics that properly belong to tba CoJDPIIDY or In diaeovawd 1hrough the use
or corporate I',upcrty. infOll3l8UOIiot position; (b) usinc eoiporatC Jl1OJlI=T1;Y, infonnatian or. .
position for personal pin; aJI(I (c) competing with tbG Compm)'. EmpIoyees,omc:ctland
direcIOrS owe a duty to the Company to advalJCe its lepmate iDterests wlieu the opportunily TO
do 80 IlriscI. .
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f;nterlllinment should be otlmd, giVeIl, provided or accepted by :any Company employee, family
member of an employee or agent unless it: (I) is DOt a cash eifI. 1(2) is consistr:n1 wilheustOlDlEY
business practices, (3) is DOt exCenM: in value, (4) cannot be WDttnlcd as a bn"be or payoff;md
(5) docs nQt y:!olatciIDl laws or resulatious. Please c1iKIISl wi1h :your supervisor my gi1\1l or
proposed gifts which you ate Dot cetWD are. a~J1IUJ1IJak.
The U.S. Foreign Corrupt, Pra.oo:s Act prohibilll eivinll anything oevalue, ~tJy or .
indireCtly, to foreign govemment officials or foreign pOlitical candidates in order to obtain or
retain business. It is strictly prohibited to make illegal payments to go=t officials of any
countty.Jn addition, the U.S. government bas a number oflaws and reaulatillllS rcganlilli
business gratuities which may be accepted by U,S'llovemmCllt ])CISonnc:l, Thc:promi$e, offer or
delivety to an official or employee of the US. government ofa 3if\.favoror od1er grami1;y in
violation oCthC$e rules would Dol only 'Yio~ Compmy policy bllt could al$o be a criminal
offense. State and local governments, as well as foreign gQvemmeatll, may have similar roles.
The Company's Law.DepartIIIeDl ClIlI prOvide guidance to you in this uea.
6. protection And Proper Use OfCompllDY Anet.
All employees, officers and directors should prolecl the Compally'. assets and ensure 1bcir
efficient use. Theft, carele$Sness, and waste have a direct impal:t on the Company's profitability.
An Company assets should be used for legitimate: business purposes.
7. Accounting Complaints
'Thc Company's policy is to comply with all applicable fiDanciai reponin8 and accounting
tci!ulstions sppJicsbleto the Company. If JJ1Y employee, oflleel' or ditector oftbe Company or
IhirdpartY has concerns or complamts regarding questionable aceountiJIg or auditina matters of
the Company, then he or she i~ encowaged to submit those OOIlOOl1lS or complainla
(anonymoU$1y, confidentially or otbtlWise) to the Company's General Co1ll'lSel (who win,
subject 10 hWhcr duties arising under applicablc law. resulatioxti and legal proceediDgs, II'eIIt
such submissions confidentially). Such SUbmissions may be diJ1>.cted to the attention oithe
.GcDcnll Counsel at the principal cxeCutive offices of tho Com\>my,
8. PlJblic Company Reporting And Other Public Statoroenb
As B public company. il is of critical imparlance thattbc disclolll1rC in the Company's
tilings with the Securities and ExchaDgc Commission and its olba: public Sla\Cmeo1S, such as
press releases, be fun, fair, accurare, timely 8lld undelSl8lldable. Depc:ndin.g on their position
with the Company, an employee, officer or directOr may be called upon to provide ncceesuy
infoJllllltion 10 DSSUIt \hal the diSclosures in the Company's pllbUe reportS and other public
statements arc full, fair, aCCllnlte, timely and undcntandable. The Company expects employees,
olllcers snd directors to take.1his rcsponsibDityvety seriously Ilnd to provide prompt, accurate
and complete answers to inquiries related to the Company's pUblic d~closure requirements.
All of the Company's books,leCOr1Is, accounts and fma:ncial statcmeots must be
maintaincd in reasonable detail, must sppropriately reflect the Company's lnlnsactions and must
conform both to applicable legal requirements and to the Company's sysrent ofintemal controls.
3
Unrecorded or "off the books" timds or 8S$ets sbol1ld noibe maiD1ainedunless .permitted by
applic$le law or regulatiOJl.
-~q.llmj;f" OfN.~~Comp1ylDg w1tb this Code
II is the responsibility ofcach of the Company's e:mplo~, officers anddiItlctoISto fuDy
comply with the reQuirements of this Code and to o1berwiSc conduct themselveS in IIn honest, .
ethical and lawful manner when working for or represe.nIiDg the Com)lllllY. Fafiure 10 comply
with \JIcsc requirements DIllY result in the immedilllC di$missal of the' employee or officer or the
rentOval of the director. In appropriate cases, the Cowp8u)-. may also purse legal action agaiDst'
the employee, oflicet or director and may ~ the mailer to tho Ilppropnate authorities for'
criminal plOsecution or other n:mcdial actil)n. .
. 111, RepordDg Any me:al Or Unethical Behavior
Employees are cnc:ouraged to Ial1t 10 supelYiaOl'8, 1llllDIlgcr& orolhet appropriate
personnel about ob~ed illegal or unethical behavior and, whllD in doubt, about the beu COIltlC
of action in II particular situation. Employees, officers and directors who are concerned that
violations of this Code Or that olher illegal or IIIICIhicaI COIIduGt by emp1oyees, oflicc:rs or
directors of the Company iulve 0CCII1TCd or may occur shollld ~ the suspectcdviolatioll or
olba illegal or unethical conduct to thc Company's Genml Co\mI;el. IftheemplOyCC, ot1icu
or direCtOr docs nor believe il appropriate or is not COlDfortable apprllIlching 1he Company's .
GcnCIllI Counsel, thClllhey may contact the Audit CoDDl1ittec or Nominatins " GOVm1lllJlCe
eommittee of the Board ofDD<<tors of lIle CCmpey. If their conl:eIDS or complaints teQoUe
confidentialitY, including keeping their identitY anonymous, thell this .confidcntiality will be
. protected, subject to applicable law. regulatiClD or lepl ~edln".
'..--.-......-,.."'.-.".,. . -
11. No RetaliatioD
'the Company win nOl permit retaliation of any kind by or on bebaIf of the Company IIDd
its employees, officers ll!Jd direc:ton against good faith reports or ';omplainlS of viol au ODS oflbil
Code or other illegal or wethical C01IdUct.
u. Amelldment, ModlficlItlonAnd Waiver
This Code may be amended, modified or waived by the B,3IIld of Directors and waiveD
may also be gmnted by the Nominating & Govc:manc:e Comminee. subject to the disclosure IIDd
other provisions of the Sec:uritiCII Exchange ACt of 19M..llIId the l:ules thercUIKlcr and die'
applicable rules of the Nasdaq Stock Mmket. . .
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RECIDrf AND ACKNOWLEDGEMENT
OF THE .
HUB GROUP CODE OF BUSINESS CONDUCT.AND ETHICS.
1 understand that my signature below indicates that I have received, read andWldmlaDd
the Hub Group CodeofB_css Conduct and EtbX:s dated Augwit12, 2003 and that I WJl1 abide
by ilS tenns and conditiOl/8 and that a Iailu1e to do so will be groUnds for 1l!l1tlinBriI)n of my
employment. r \1Tlderstand the: policies and nIles described in Ibis Code are subjeet.10 change at
the sole discretion oCthe company at lIIJY limo. '"
Employee's Printed Name
Posi,iOll
Employee's Signatuxe
Date .
s
Exhibit D
ReoeJpt. ~ or...... 0.0.... S~.. cuae
Tbla Employee Ouide Is "" imporlant document irJtended to hel9 you become DCqIOQlnlt!d. wlU1
Hub OIoup_ This Jtm~ Guide wiU _ IlIl .. rcfctencc tool, it i. _ lhe final word irJoIl
-
Bcc:lUsc the genual b' .a;.-u <dm""pb..", of I Jub Group and ",:omomk: WfldiUona arc: alwa)'ll
changing. the conteDb ortbill Ernplcolee Gui<k IIl8iY be """"8"'" lilt any time ac the ~ of
Hub Group_
PIeaM ft$d \he li>11owlnK BtaQ:meAta ODd aIgn bc\ollV to 1r<'1<_ yauJ' recelPI and
...clcnowledgJnent of the H1I__ Group Empl"""", Guide.
. 1 have ~ aM noIICI Q copy or Hub Croup'" ""'pIo)leeGuidc. 1 understand tba\ llae
potic:ics. rules and beJlelllB dellcribed l:a It ..... subjec1; to c.'h....p' :aJ the .. diIlcrelicla of I:be
Campomy ..t any time. J IIIJderst::md thQt ... oC .rellWll7 I, 2005, till. Ouido> rq>1_ all
othcor previous _...... for Hub GrouP.
. I funbu understaad tbII1 my employ_ ia terminable ..I will. eithe, ~ ~ or the
CompaAV. ~ or the 1eAglh of my ~t or tM WDJIlm8 of bcneflta of allY
kino:l.
'l'Ias ofp.4 -tcJ-l- ~_.... _ _.. -....... B_ - >>-.--..--.-
~-~-Chvw'e. ........-'. wUI"'GWJa7fllllr ~ v~~~....
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Exhibit E
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Table of Gontents
An OveJ'View oC Hub Group
Purpose and Limitations of This Employee Guide ........:.......................................... 4
Receipt & Acknowledgment of Employee Guide .....................................................5
Mission and, Vision Statemcnt.................I....I..I'n...........I'....".....................~..........................._..16
Welcome to Hub Group....................................................................n...........:........7
The H1stoty of Hu~ G~p.....................................................................................~.8
Hub Group OTgBIllZation Chart..............._..............................I..,~...................................11
Location of Hub Office........h...h.......................................u...........................~1......12
EmployD1eut - The Way We Work
Equal Employment Opportunlty..............................:...._.~.........................._...;.....13 .
.. &H" Pr
Recrulting mng oeeas .................................................................................13 .
Internal Search/Job Posting .................................................................................14
External SeaJ"cl1....... ...................... ............... ....... ........... ..... ..... ....... ............. .............. 14
Rehiring Former Employccs .............................................................:.....................14
SemDrity D.te........................................................................................................111.. 15' .
Proof of US Citizenship and/or Right to Work ......................................................15
PersonncI Adm.inlstration... ............................. ................... ...................; .............. 15
Your Personnc:1 ~e......:....................................II.....n..........,......~...........................~.......lS
New Employee Orlcntation...................................................................................16
At Will Employment;.................................................................._........................16
Business Cards .... ..... ........ ...... .................................................................. .......... 16
Anti"Harassment and Sexual Harassment POlley ..................................................17
Technology RCSOU1"(:es Policy ................................................................................ 21
Code of Business Conduct & Ethles.....................................................................23
Accounting Complalnts............................................................................;..........~24
Dru.p aJld Alcohol...... ........... ............I...~......"... ................... ............. ..................n. ........ 24
Conftict of Interest ......................... ....:......................;.......................................... 25
J~$ider 'I'radin& ......... ........ """n II ........,........................... ...,.. ..................................... 25
Non-Compete Asreement ..........;... ...... .................... ........ ... .... ...... ............ ............ 25
Outside Employment ......................................................................................................... 2S
Disclosure ...... ...... .............. ...... ..... .......... ....... .................. .......:... ........................ 26
Confidcn tia1 In{cnila.tion ......... ............ ....... ........ ....... II .......'.... ........ ........................ 26
Our Employee Rela~ons PJtiJosophy ........................................'u.,...........,....~........I......27
Quality Process at Hub Group.:............................................................................ 28
Customer Relations ............................ ................I.......~.............,......................................28
-g'" 110$..."" I
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Pay p:ractic::es Uld Proceclu1'e.
etnployinent Classifications ........... .......u.'..........u.....~ ..~.........._..............n.....~. .......... 29
Over1ime ...._.........................................................................".................,...#........_.-........29.
FLS.6.. Safe Hubor Policy .....................................................................,...:.............30
Work Scl1edu1e ......h...h................_........................,..................................._...................._...31
P8.,y' Pro~dures ...................ri...................I.............~............................~.................. ........133
Bi.. weekJy AttendaIlce Tts.clciI1Sn.......... ......................u ....~..........................,:........ .......... 34.
Time Away from Work a'ud Other Tlme.Related llenefiG
Vaca.tions .... ............ ...... ......................... ...'.......... ..... ........ .....~....... .................... ......... .~~.....,. 35
Sick Days ......................................................................I.............................~........................ 37'
Short.term Disability (Including Ptegnam:y) Leavc or Absence ...........;.................:38
Family/Medical Leave of Absence (FMLA)...........................".................................40
Personal Leave or Absence n.~.......................................................~...................................~ 44-
Insurance Premium Payment during Leave of Absence ......................................... 44
Sick 'Time/Vacation Time During Leave of Absence ..............................................44
Accep!ins employment/Going into Business While on Leave, ................................ 44
Emergencies and Inclement Weather.....................................................;...,....;..... 45
Funeral (Bereavement) Leave ................................................................................45
Jury Dut)" ..............................h......................,;...~.......,"I".................~..................n.. .......... 46
Miliuuy Reserves or NatiooalGuard Leave ...........................................................46
Holidays .............................................................................................................. 47
Employee BendiG
Benefit PlanS: .............~ ........... ....,....... II ...........~............................".. ............................. .".... 48
Workersl',Compensatio:n. ............. ...........................................,.............................................48
401(kJ Plan ........ ... .................. ................ .................._.... .........."'.. .......................~.. n. ............. 49
Joyce Yeager Scholarship... .... ........... ...... ........ ............................u.............~..n...'u... '''.'" ......~.... 49
Ed\1cation/Training (Attending Serninars/Trainirtg Sllasionsl' ...................... ..,...... 49
11<_ l105...r...l
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Employee pedbiiiiauce
Performance & Compensation Reviews ......u....4'.............,u.......................................................................50
Bopu8'eS .......... ........... ........................................ .......................".........................................~.................... 51
PJoofe9$ionaJ Ccnduct:.,...............-:..................................................................................................................,51
Corrective Action .......................................................................................................................................-53
Termi:ctaUo:'1 of EmpJoyment...................................~............................................................................. s.4
Company PrcDllacs aDd Wo~k Areas
Sa.te'I;)F Rules . ..'....................................................................n...~......................................... .................. ..... 56
Fire Orilla .. ......... .........................u..........;...:..........,....................................... ................ .................... ..... 56
Housekccpin8........~.......................................................................~.......................:.......................... 56
Work Related Accident or' IrUut:Y'................................~......."'.............._.........~........... ........"........ 56 .
Lunch. Room Facility ..................................... ................;........................... ........... 56
Security' ..... ............................................. .....u............... ........................................................ ..:..........,.,................... 57
Visitors.... ~... ........... .................................................. ...u......,.. ........ ........................''''........... ........ ......... 51
Smoldng...... ..... .........................................................................'............................................................................. f!{l
M15c:eUaneoWl
:D~ess. Code/Personal Appearanee-.DoWn~$ C'4"Qve .................................__......................58
Dress Code-OUier l-ocations.........................................,................................................................................... 59
Pct1Jonal PJ:1one Calls & Me.il................................................... ............................................................. ." 59
Comp\\ter Software {Unauthorized Copyinc} u......u..u....u.,..~u................-........u............ 59
Solicitations & Distributions ...... .................... ........................... ............................ 59
. ;Employee Gift Fund ............................................................. ................................ 60
Meetings - CompeJ'1y IDepEi.rtJl1erlt ............................................... .... ..............~........................... ......... 60
- Expen.se Rcimburs:ement. .....................h.........................................~~..................................................... 6(j
Use of CotXlpany Vehic1e...............~......................................,...............I...............................I!.,.......~.... 60
Drivct's Ucensc &. Driving Record ..............'....................~.,..,.........'t.................................1............... 61
TraJru.:: 'Violations ...... ................-..w..........'..................;O..................................... .................................... -:........ 61
Itc-nM4 11OS~~.p..
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Employment - The Way We Work
To auist In the CTeatlon and ClllJlJllunitatiOll of businas-re1atcd
information in the moat elfeclive eAd efficient ~""""T possible, Hub,
Group provides itAemplojeu with 'Illilrious leChnolo&Y resources,
lncl\ld1na e-m8l1and, for 8OI11e, acceeato the Internet. ~se t'C1lOU""'",
promi$e {octeT and better wDl'munlcatlons amonc HllbGrcup"
pereonnel and mheni. bllt they alIso ~' kwea cona;mIn,cthc
a<:curac;y, seeuril3' and contrOl of Hub Group ,~ ~.tomer
information.. Hub Group al3o. IIlIUIt ,ell6Ule lba~ thoac usina Hub
Gl'oup ruources do 80 in a ~.ft"er tbatis approprl.w, and
profCS$ionlll.
In light of these concerns. Hub Orwp has devdoped lh!a 'TecbnQlo&y, '
ReSOUl"cel Policy (the .Pollc:J"l, which eatabliahea the pararnetenl for
proper UIlC or Hub Group" tecbnolocr' rellOUfCee. RUb Oroup
poorsonn.,:! who, do not COl11p1,y with thiaPolicy aTe wbject to the
revocation or their access to Hub Group technology t'ClIOUrcetl "nd
dl.clpJllwy action up to aM lnt:luding dischat&e.
POlilC1'
This Polley aPPUea 10 an Hub 'Qro\\p employee. and otherpcnons who
are authorized to Ulle Hub Group technolog no........,... ("u8CNl"j., Thia
Policy applIe. to the following teehnology 1'C1OlU'CC' Iln4 all data
created by their ux, lnclucllng but not llnUted to:
. C0111PUten (inclucllng desktop c:cmputera. portable computerll,
O1'1Vtt'$, local ma, Dct\.....ks. prlntcnl, 80ttwmc and removable
storaae media (e.g., floppy dlsk8, CQ.,ROM.. hard diBlca): ,
'I'ec:Jmology Resources
l'~IiC7 ,
· electronic mail ("e-mail.'. lncluding attachments; and Intemet and
Inrtatlct UQ4l.
Other Tha.. Oecui...... P"...<maJ U... Of lIt-IrtaD. T.chDology
Res01U'oel lI<<.y Be "Oull ODly For Lcptimate. Jl1IIIhaeas-Rebate4
:ReaaODa
otb~r than the oceaaion.ol personal ute Or ...uWJ, C011lPlU\Y-provided
infOrmation tecbnoloC)' rtsoUJ'e1!$ IDpY be used only for:lcgitlmate.
buelncsa-relatedC<>lX\lllUNeat!cd.. Occaaional pcnonal use' mea...
lnft~ucnt uee that does not interfete with Hub Clroup buslne.a or tl>l:
availability of technology teatlUn:ea. AD UIe' of Hub Group technoloCf
resource. (includinB pemonal Ulle) Is subject to thla Polley. '
The ..... 01 technology ~....._. to .p..-..r, r..~tatcl 01: '
partJel)late in nOD-bum".. nlatecl acttriti... fa $Uictly prohibited.
NOI1.busUle8& nIeted activities include lottcti,e., I'lt.m.... bcttb1c
au, other pmbJina: itor anythiuc of vaJue an' partlclpatfq: ow
tacu......tine hi the dlctribUtiOD of maSd&oocla ...cl met........
All dala that is entered. created. ncelvcd, .tOtedor transmitted vUl
Hub Oroup teChnology ....lIOureeI. includlns but not limited to all Co
"'ail messag.., are an,a will'remain Hub Group property. No bUliness.
related data may be used for any PUtpOlSe unrcIate<i to Hub Group
?usiness. nor may It 'be sold, transmlttICd. conveyed Cd communicated
m any way to anyone outside or Hub Group wi1:h~t cxpteflS
authorization by Hub Group'" Chief Infonnation Oflicer. AdditionalJ;y,
I<<v...., 11OJl...P.8"~1
".
Tec;hnoJog' ReIlO......"..
pon",. (""At'd. '
Employment - The Way We Work
:senaltl.-e or conlidcntlal dlua and any lntemalliub Group data that
hu not been eom.m"ilicaud to thIJ publie slWl not be part of any
e-m8ll or Internet transmlss!=. lntenu.l Hub OmllP e-mail.. ....ust not
, be fotwar<l~O\l~ of Hub Group without ~tivc Vice President
or Vice President.
No Expeotatioll OfPriYaoY
V...... ,;hollld hllYC no e><pectaticm of prl~ in connecdon wfth the
entry. creation. transmission, receipt, or .toraae 01 data ~ Hub GJ'!lUP
te~hnoJogy ruourus. Users waive any tight to ptivll.ey in data, entered,
created, 'received, stored or transmitted via Hub Group technology
, ~1lQUrc:~. and ~"~Dt toacceflll and disclosure of such data by
authoriZed Hub Omup pcrSonl)lll. '
Alii with all other Hub Croup ~, Hub Group' techno.
resources and e1l data e"t.>ed, CI~ted, lTanamltte4, received or Stored
-:1110 Hub Group technology ~~ is subject to il18JlCCtlon, search
.."d discI""...., at all tlmesby pcr8Of>S de8lcnated by .... utins at the
dil"ectlon of Hub Group" Chiei! Infonna1lon Ollk:er, or as -7 be:
nflCll&8lU3' to ensure the .mem.t lltId proper ..dministratian of Hub
OmIlP technology resource.. '
All peasword. """ se~rIty u,oed In connecCian w1th Hub Oroqp
technology ~SOIl1'l:e. are lillb Group propfl11;y and must be a"Bilab1e 10
Hub Group. User. should un.derstan4 that their use of PllPWOrdlll
docs not wec:1u.de aeee... to Hub Group tflchnolol:)' re$O_ by
authorized person-. Hub OtOtlp reserve. the risht tQ ascl&1) Md/or
change passwords and per$Oual codes for volcc: mall, E.m;ul, and
computer app1i~s.
OlDJ)' $oftwue P...-ebse4 117 Hnl>> Oroup Jr9f Its 11M liIa,. Be
, Installed 011 Hvb Omllp'" Computer Ifetwodr
Software purchased and lIcen~d tor penonel uae InIlY not be installed
on Hub Croup ~putete. Hub Gn>up may, m allY time, COJ:1duct an
audil or inlCIr05e.tion of campute.r8 for installed lIDfrwan and related
printed material that 18 not lJ1cludcd on a then-=t inventor)' or
Hub Group.authorized software. All unauthorized lSOftware wiI1 be
removed and deatroyed.
All users must comPl7 with an software Ih:enaca. copyright., and other
a~te and federal laws ,,,,,aming inteDectual prop<erly and on-line
activir;y. Becau" of expon resttlctlana, prouama or me.. COJ:1l1llninc
enCJYlldon technology ..... not to be placed on the Internet or
transmitted in any way outside the United Statea without prior 'lllritten
authorization "on> Hub Croup" Chief hUormation ,OCflc:er.
The 1.'iewiAC, C.....tion Or TnnsmlssiDn or Iui7 Data 1'I1at l4a,. Be
Constroed To Vioble Hub Group'. AJlti-Huacnnent And Sexual
a"'usment Pa:till7 Ie Strictly Prohlblted
U...... ...... at:ric:tl)' prohlbjted fzoIn uaing Hub OT'QUP'. technology
Te&OUn:es in any WaJ' that mey be o1fensllle to others, by viewina.
transm.tting, am""g other things, scxullJb' explit;it or obe<:cne
sneS&all"s. movie cUps, piclur8s lir' cartoon... ethnic or racial slun, Ot'
lU1,ything that may be construed all unIaw:fi:ll baralloment or
disparagement based on rlllCe, color, age. rellglon, xnantal stAtue, I1CX,
ancestr)'. natiOl1llI origin. cit:izenahip, ...tcren. status, pregnanc:;y,
""_1/0$........11
,...... ..,
'1'~cbDololY Roso....._
l'oJiC)' (cont'd)
eod.. of BudDen
Co."luct,"D4 Ethios
Employment - The Way We Work
dinbi1l\y, ,"dlell1 ~n4~ 1Ie,...,1 orientation., Qr any otber
characteristic protected by tedcraJ, stale Or Ioc:8llaw. 'Users rlo]ori"lI
tbls prohibition may be su19ect to ,disciplinmy action, up to and
inc1ucllna; wml'lPt!Ol1
lntcn..chIIIJ PrDperty {Copyright And Patentl La....
Usera '1M1 not "Iolate allY copyright, paWlt tit: ether intellectual
"propefff 18W;-ini:lumT>llri"~1 sORw.ore Ja-. ^<:cordlnaly, unleGs
permission hu been expre&aly tmd <I1fit;l,\11,y provided, 'U'" uiay not
post or download any dm {including but I'IDt 1Imlted to e-mail, m~,
documents... graphic liIes, newa-poup mcosagea. buIlctin-b""rd.
"'''''''''BeS, Web ~. appllcatlOD. eoftware" operatitJ& Il)'stem
soltWare, or any other inte1lecl'llal propertyj protected by copyri&lit or .
patent Jaw. If eopyri,gbt, patent or other ownership status is unkr.\o'om.
users may not pollt, upload. d~ or otherwlseuee any data,
content, software or other prDpe1Iy and shoUld consult ~ network
administrator with any inquiries.
Vlnu..
Hub Group kchnolo.llY I'e*lUTCeS lnust be protected from accidental
destruction or deb"beraUl attemptS ,at I5llbotaCeby compulcr virullCS.
Usen; thus m.y nelther willI\lD,y introduce virus.lnfected files or media
into Hub Group lechnolo&Y resource. not Cliaablc viruaooc:annms
SC1~. Uscn mUat malee all no_able elrom to ensun: that all
files B.c<:cssed or collecWl. are virua.rrce and should rnlnfmlD
downloading data from thi> Internet AAcI vja.' e~:lli.rt a:04 should not
download dala frOU1 unfamlllar Internet -... 'U-...mould use
d!4cr~tlon when rece~ ,,-mail from unknQ1m eoUl'l;CO, cllpCCial1.y ,
where the e-mail conWnJ;attachments.Prior to placing any Iile on
Hub Croup network, emp10yccB must acan for vim... U8inS up-to-
date, aJ'P1'O"C4 virus scamrlng software
Mfscd1aJ>eOllll
Hub Group will not be u:spon.ible Cor any daDlll&C$. dl:ect. or indirect,
filrisin$ out of the UIIe 01' its technology resources. .Any un..uthorize4
aeee.. or Use or Hulp Croup's v:clu!oIogy resources is $lJictIy
prohibited.
It is tbe Company's Policy to eDnduct 11$ operation. lawfully, honestly
and ethielllly, and Hub Group expectS itll employees, ofllceno and '
dil-ectors to conduct tl1em""l_ ill a almllar Itlenner' ill their deallnp
wtl11. or on beb8ll of the Company, Hub has adoptoda Code of
Business Conduct and ltthicswhich eadl employee mutt rel1ll, sign
and foUow. FalIUte to Bien and retutn this policy ma,y re$Ult in
suspenalon of ~mplo:yment unul the Company receivu the signa-nue
page,
Note: $'or ail4iUonal inlonDlldon ....prdlac the Co4.
of Business COAll"ct ...ll J:tIUca. ple... ...'e.........
Bub Group's sepanU PoDey or see Hub Group's Vlce
President! ('renera). CoUJUle1.
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Em~ent - The Way We Work
If yuu ere questioned by someone OIlIt81dc the Cam~ or the pre...
and you are concerned about the ap~~k'.iataleA or slvlna: them
c:ertain information, do not give them thll fnforouaticm.Ins\C8d, as
politely as possible, refeT the rc:qJInt to your mmqer, any membllr or,
thll Hub Group EncutiVll Committell or RuJI" ,General Counsel.
Public statements Invo!'riDc th,,'b-mea or tbIl CoIr1paay an
stn'etlY-pl'GJliliit.d ankss-pnviousi,......pprov.d...,. a m..mm-,OLtJuo
Bu1IGro~ beevtWc Committe..
Con114entlal
Information leoDt'd)
Oar Employee
Retations PhiIosopby
Hub Croup Is commincd to pm\liding a positlft workln8 environment.
We atrlvc to accomplish this in ecveral WIllS: ' '
. by recognizin& that each empl,~YIlC is etllIential to the
succee. lUId srowth 01 Hub <houp;
. by developlne a spirit ofteA.uw....k; lUJll
. by malntalnlnc dlrect commUDilcatl_, with all or our
employees llnd Ulsurlngthat eacb and every, ~ of you (;lIJl
speale dlrllcdy and opcn\y ~ ow, manacemc:nt team.
In order to m.lntaln 1m atinosPben where these i08ls can be
accompllsbed, we strive to provlde a workpJace whve co...mUXllcatlona'
are open llJ1d problems can be discu sscd and resolved in a mutually
respectful atmospba-e taking Into, account individual, c:ircuDun:ancc:a
llJld the Indlvlduel employee. We firmIr, bUeve thaI by our
communicatlng with eacl1 other ctirc:ctly, _ can conlinu" to resolve
any dffilcuItlcs that may arise.
Resolving Problema
,We encourage you to bring your QUt,&ti0n8" suggestions, problems or
complaints to, our attention. Careflll consideration will be given to
each issue broueht to our attention. If you feel )'0'11 have a problem or
a complaint, ;you Mould first present the situation to your immediate
manasel'. YQ\U' manager Is most famiU. with you end your job and is,
thcrcIore, in thll best- position lD as..st you. Generally, most issues
can be satisfactorily 1'0000lved In this ",.anna-. '
If your mll11agercannot help you resolve the matter, or JIOu find that
you still have Questlons and would like futther clarification on the
maUer, you Can' request to apcU to the Human Resource.
Department, or any other member 01' IDana&IlDlllDt who will give ,yoUr
problem or complaint Consic!cratioI:L. After reviewing' the Issues,
he/she will meet with you to discuss pos..'b1e solution.. ' Your job will
not be adv.....ely alfccted simplJ' because you ch...c ,to use this
procedure.
SuggestioDC an' ta_.
Weencourace aU 'employee. to brirlg fCowaN their suggestion8 and
idCBll about how our Company anc!worllplace can be improved and
our stnlicc to customeno enhanced. When you see an opponun!ty for
improvement, please d1scuas it wlth Yl>lU' Immediate manager. ~
Because auggestions Indicate initia.w~ on the part of an employee, we
wlll consider aU suggestions made I,t the time of your performanc:e
review. When a suggestion from an employee has particular merit, we
may provide Cor spedal recognition of ':he individual who had the idea..
R..u.d 1105....... 21
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SAUL EWING LLP
Michael R. Greco, Esquire
P A Attorney ID No. 78426
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
Christopher P. Stief, Esquire
Risa B. Greene, Esquire
P A Attorney ID Nos. 72505, 76427
Saul Ewing LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, P A 19102
(215) 972.1965/7834
Attorneys for Defendant Marcia Delaney
HUB GROUP, INC., et al.
Plaintiffs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v.
No. 05-3550
Civil Term
MARCIA DELANEY, a citizen of
Pennsylvania
CIVIL ACTION - EQUITY
Defendant
DEFENDANT MARCIA DELANEY'S VERIFIED MOTION TO COMPEL DISCOVERY
AND FOR A PROTECTIVE ORDER
I. Introduction.
Defendant Marcia Delaney ("Ms. Dehmey" or "Defendant"), by and through her
undersigned counsel, hereby moves this honorable Court for an order compelling plaintiffs. Hub
Group, Inc. and Hub City Terminals, Inc. ("Plaintiffs") to (a) produce documents responsive Ms.
Delaney's First Set of Requests for the Production of Documents and Things (the "Document
Requests"), (b) produce verified written responses to the Document Requests in compliance with
Pa.R.Civ.P. 4009.12; (c) produce full, complete, direct, and verified responses to Ms. Delaney's
First Set of Interrogatories in compliance with Pa.R.Civ.P. 4006; and for a protective order
staying depositions until such time as Plaintiffs produce documents and provide written
responses. In support of this motion, Ms. Delaney states as follows:
II. Procedural Backl!:round.
1. On or about July 13, 2005, Plaintiffs commenced this civil action by filing a
complaint seeking injunctive relief to enforce the terms of a non-compete agreement executed
by Ms. Delaney.
2. On or about July 15,2005, Plaintiffs sought and obtained an order from the Court
directing the parties to complete all written and oral discovery within 14 days.
3. On or about July 26, 2005, Plaintiffs filed a motion to postpone the preliminary
injunction hearing, and asked the Court to grant the parties leave to conduct expedited written
and oral discovery prior to and in aid of the hearing. The Court granted this motion, rescheduled
the preliminary injunction hearing to take place on September 7, 2005, and permitted the parties
to conduct "expedited written and oral discoverv prior to and in aid of the hearinl!:."
4. On July 30, 2005, defendant served Plaintiff with a set of requests for the
production of documents pursuant to Pa.R.Civ.P. 4009.1 (the "Document Requests") and a set
of interrogatories pursuant to Pa.R.Civ.P. 4005 (the "Interrogatories"). Because Plaintiffs' had
initially requested that expedited discovery be completed with 14 days, the Document Requests
and Interrogatories asked that Plaintiffs produce documents and written responses no later than
August 15, 2005. Ms. Delaney's counsel also informed Plaintiffs' counsel that Ms. Delaney
would need to schedule the deposition of Phil Bayle after receiving documents and responses.
(Mr. Bayle is one of the individuals that verified Plaintiffs' complaint.)
-2-
5. On or about August 16, 2005, Plaintiffs' counsel requested an extension of the
due date for the responses until August 24, 2005. Defendant's counsel agreed to grant the
extension. Thereafter, Plaintiffs' noticed the deposition of Marcia Delaney for August 25, 2005.
Ms. Delaney's counsel responded by stating that Defendant would not have agreed for an
extension to produce documents until August 24, 2005 if Defendant had known that Plaintiffs
wished to proceed with depositions the following day (because the documents are needed for the
depositions). In an offer of compromise, Defendant's counsel stated that Defendant would
proceed with depositions on August 25th, if Plaintiffs agreed to produce documents and written
responses to the written discovery on August 22, 2005. Defendant's counsel cautioned
Plaintiffs' counsel that if the August 22nd responses were deficient, the depositions would have
to be rescheduled. Plaintiffs' counsel agreed to these conditions. (See e-mail correspondence
attached hereto as Exhibit "A".)
6. Thus, the parties had reached an agreement pursuant to Pa.R.Civ.P. 4007.3 that
document and written discovery would be completed prior to the scheduling of depositions. See
Exhibit "A" hereto.
7. On August 22, 2005, Plaintiffs failed to serve interrogatory responses as they had
agreed, and they failed to produce documents in response to more than 20 out of 34 document
requests. Ms. Delaney's counsel pointed out to Plaintiffs' counsel that they were not honoring
the agreement to produce documents in good faith and to provide response to interrogatories
prior to the depositions. Plaintiffs' counsel stated that she only "made the agreement to appease
you" and that she believed depositions should go forward notwithstanding the Plaintiffs' failure
to produce documents. See Exhibit "8".
8. Plaintiffs' counsel then asked for and received an extension until 8:00 a.m. on
-3-
August 23, 2005 to provide interrogatory responses. Plaintiffs failed to meet this deadline as
well.
9. On the evening of August 23, 2005, counsel for the parties conferred in an effort
to resolve disputes concerning Plaintiffs' deficient document production. During this
conference, Plaintiffs agreed to search for and produce responsive documents to every single
request raised by Defendant's counsel. The Plaintiffs further agreed to postpone the depositions
until after Plaintiffs' served amended document responses, produced documents, and served
interrogatory responses.
10. At approximately 9:38 p.m., on Friday, August 26, 2005, Plaintiffs served
amended responses to the document requests and served responses to the interrogatories. The
Plaintiffs' responses fail to comply with the applicable Pennsylvania Rules of Civil Procedure,
as explained in greater detail below. Moreover, the Plaintiffs continue to refuse to commit to a
date by which they will produce documents. Instead, the Plaintiffs insist that they be permitted
to depose Ms. Delaney (for the second timel) without committing to a date for production of
documents.
III. Plaintiffs' Discovery Responses do not Complv with the Applicable Rules.
11. Not only have the Plaintiffs failed to live up to their promises, they have failed to
comply with the applicable Rules of Civil Procedure.
A. Document Requests -- Plaintiffs refuse to produce documents
within the time required bv the rules and their written responses
fail to complv with the rules.
l Plaintiffs have already deposed Ms. Delaney in the course of a related civil action filed in the United States District
Court for the Eastern District of Pennsylvania, Hub GrouP. Inc. v. JeffClancv, Case No. 05-2046, and they have
sought document discovery !Tom her current employer in that case. As indicated by the verification of plaintiffs'
complaint, the testimony !Tom Ms. Delaney's previous deposition forms the basis in part for this civil action against
Ms. Delaney. Thus, plaintiffs are simply trying to deny Ms. Delaney any discovery in this case because they have
already conducted the discovery they need and want in the related federal court action against Mr. Clancy.
-4-
12. Pa.R.Civ.P. 4009.l2(a)(2) provides that documents responsIve to a document
request must be produced "within thirty days after the service of the request. . . ." Thus, even
setting aside the Court's order for expedited discovery which was requested by Plaintiffs and is
necessary given the fast approaching September 7'" preliminary injunction hearing, the Plaintiffs
are refusing to produce documents within the timeframe required by the rules in ordinary non-
expedited discovery.
13. Moreover, Rule 4009(b)(5) provides that in the event there are no documents
responsive to a particular request, the written responses must "state that after reasonable
investigation, it has been determined that there are no documents responsive to the request."
Instead of meeting this requirement, the Plaintiffs repeatedly respond to the Document Requests
by stating that they are conducting an investigation and will produce documents if they turn up.
Simply put, according to the Rules, Plaintiffs are obligated to produce responsive documents
within 30 days (i.e., no later than August 30, 2005), or to state definitively that "it has been
determined that there are no documents responsive to the request." This timeframe is
particularly important in this case where Ms. Delaney is expected to defend against a
preliminary injunction hearing on September 7, 2005, which will directly affect her ability to
earn a living and support her young child.2
14. It bears emphasis that Plaintiffs' written discovery responses to the Document
Requests are patently disingenuous. For example, many of the requests ask for e-mails
expressly referred to by Plaintiffs in the Complaint. Instead of producing the documents which
Plaintiffs alleged under oath to exist, the Plaintiffs respond by stating that they have "been
conducting an investigation that is reasonable under the relevant rules and will produce
2 Ms. Delaney is a widow and solely responsible for supporting her young daughter.
-5-
additional responsive documents to the extent that [Plaintiffs'] continuing investigation reveals
their existence." It is blatant bad faith for Plaintiffs to file a verified complaint that specifically
references concrete documents and then refuse to produce those very same documents.3
15. Instead of producing documents, Plaintiffs claim they are investigating whether
documents exist that are responsive to the following requests:
(a) Document Request Nos. 7 and 22: documents reflecting statements made by
Plaintiffs' employees concerning Ms. Delaney's resignation or her subsequent
employment with her new employer;
(b) Document Requests Nos. 11 and 14: documents concerning alleged contact
between Ms. Delaney and Plaintiffs' customers or solicitation of customers;
(c) Document Request #13: documents reflecting Plaintiffs' internal
communications since Ms. Delaney resigned from Plaintiffs' employ;
(d) Document Request #15: documents identified by Plaintiffs in response to
Ms. Delaney's interrogatories;
(e) Document Request Nos. 20-21: documents reflecting or concerning
communications between Ms. Delaney and Jeff Clancy (a former employee of
Plaintiffs sued by the Plaintiffs in federal court with whom Ms. Delaney is
accused of conspiring to misappropriate Plaintiffs' information);
(f) Document Request #24: documents reflecting communications between
Plaintiffs and Ms. Delaney during the week after she tendered her resignation
to Plaintiffs;
(g) Document Request Nos. 25. 27. 28. 29. 30 and 34: documents that support
or relate to the allegations made by Plaintiffs in " 54, 56, 57, 58 and 65; and
(h) Document Request Nos. 26. 31. 32. and 33: documents reflecting or
concerning the e-mails referred to by Plaintiffs in" 55, 60, 62 and 63 of their
complaint.
See Exhibit "c" hereto.
J Plaintiffs may argue that they are unable to produce the documents because they are subject to a protective order in
the Clancy litigation in federal court This is not true. The documents at issue were obtained from Trailer Transport
Systems, Inc. ("TTS"), and the undersigned counsel, who also serves as counsel for TTS, have given Plaintiffs'
permission to produce these documents to Ms. Delaney.
-6.
16. All of the foregoing documents are discoverable, and in fact, they are essential to
Ms. Delaney's defense against the Plaintiffs' motion for a preliminary injunction. Plaintiffs
should be required to produce the documents immediately, or to state under oath as required by
Rule 4009.12 that after a reasonable investigation, it has been determined that no responsive
documents exist.
B. Interrol!:atories.
17. Plaintiffs' responses to the interrogatories likewise fail to comply with the rules.
In a large number of responses to interrogatories, plaintiffs state "See documents produced by
Hub in discovery." (See Plaintiffs' responses to interrogatories nos. 5, and 9 through 19 which
can be found in Exhibit "D" attached hereto). The responses do not specify the documents from
which the answer to the interrogatory may be ascertained. In some instances, plaintiffs refer to
documents that have not been produced. This does not comply with the rules. Specifically,
Pa.R.Civ.P. 4006(b) provides that under certain limited circumstances, "a sufficient answer to
such an interrogatory shall be to specify the records from which the answer may be derived or
ascertained and to afford the party serving the interrogatory reasonable opportunity to examine,
audit or inspect those records". The comment to Rule 4006(b) explains that the option to
produce records "is not intended to give an answering party carte blanche to foist upon the
inquiring party a jumble of personal records."
18. Plaintiffs' interrogatory responses are deficient for another reason. Namely,
plaintiffs do not answer the interrogatories. Instead, plaintiffs respond to every interrogatory by
stating that the information sought is "more appropriately addressed through deposition
testimony." This objection is not appropriate. Pa.R.Civ.P. 4007.3 provides that "the fact that a
party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any
-7-
other party's discovery."
19. The subject matter of the interrogatories that Plaintiffs refuse to answer is
perfectly appropriate. The interrogatories ask the Plaintiffs to identifY all persons with
knowledge of, all documents concerning, and all facts supporting:
(i) Plaintiffs' allegations that Ms. Delaney allegedly violated her non-compete and
non-solicitation agreement;
(ii) Plaintiffs' allegations that Ms. Delaney allegedly misappropriated confidential
information;
(iii) Plaintiffs' allegations that the non-compete agreement at issue was properly
assigned to the Plaintiffs;
(iv) Plaintiffs' position that they did not terminate Ms. Delaney;
(v) Plaintiffs' position that they informed Ms. Delaney prior to the commencement
of her employment that she would be required to execute a non.compete
agreement;
(vi) Plaintiffs' allegations that the non-compete agreement and various employee
manuals are supported by consideration;
(vii) Plaintiffs' position that Ms. Delaney was not fired amidst vulgarities relayed
by her supervisor; and
(viii) Plaintiffs' allegations that they have lost customers as a result of Ms.
Delaney's actions;
See Exhibit "D".
C. Location of Production.
20. With respect to one of Ms. Delaney's Document Requests pursuant to Pa.R.Civ.P.
4009.1, Plaintiffs are refusing to make production within the Commonwealth of Pennsylvania.
Specifically, in Document Request # 18, Ms. Delaney asked Plaintiffs to make her Hub Group
computer available for inspection. Ms. Delaney is entitled to search the computer for
documents responsive to her other requests, and for evidence that she did not remove
-8-
information as alleged by Plaintiffs. Recognizing the obvious relevance of this request,
Plaintiffs state that they "will make the computer available for inspection at [their] corporate
headquarters, located in Illinois, at a mutually convenient time." See Exhibit "C" at request #
18.
21. Plaintiffs should be required to produce the computer within this jurisdiction.
This is the jurisdiction where the Plaintiffs commenced litigation. This jurisdiction is where
Ms. Delaney worked for the Plaintiffs. This jurisdiction is where the act complained of
allegedly occurred. Plaintiffs' refusal to produce the computer in this jurisdiction is an effort to
impose a financial hardship on Ms. Delaney whose resources pale in comparison to the
Plaintiffs.
IV. Final Effort to Resolve Discovery Disputes Outlined Herein.
22. Despite having engaged in the extensive steps described above to resolve these
discovery issues amicably, the undersigned counsel made one last additional attempt to resolve
these disputes, which was rebuffed by Plaintiffs. Specifically, within hours of receiving
Plaintiffs' deficient discovery responses which are the subject of this motion, the undersigned
counsel sent an e-mail requesting Plaintiffs' counsel assurance that they would produce
documents and provide interrogatory responses no later than August 30, 2005. See Exhibit "E"
attached hereto. Plaintiffs failed to provide the requested assurance and apparently intends to
press forward with depositions without meeting their discovery obligations. Given the lengths
to which Ms. Delaney has gone to resolve these disputes, and given the fast approaching
September 7'h preliminary injunction hearing, immediate judicial intervention is necessary.
V. Request for Relief.
23. Pursuant to Rule 4019(c)(5) of the Pennsylvania Rules of Civil Procedure, the
-9-
Court may enter such order with regard to the failure to make discovery as is just.
WHEREFORE, defendant Marcia Delaney respectfully requests that the Court issue an
order:
(a) compelling Plaintiffs to produce all documents and things responsive to
defendant's First Set of Requests Directed to Plaintiff Hub Group, Inc. for The
Production of Documents and Things, as well as signed and verified written
responses to same pursuant to Pa. R. Civ. P. 4009.12, within three (3) calendar
days of an order by the Court, or suffer appropriate sanctions to be imposed
upon application to the Court;
(b) compelling Plaintiffs to provide full, complete, and direct responses, without
objection, to defendant's First Set of Interrogatories, all of which should be
signed and verified pursuant to Pa. R. Civ. P. 4006, within three (3) calendar
days of an order by the Court, or suffer appropriate sanctions to be imposed
upon application to the Court;
(c) compelling Plaintiffs to produce employee, Phil Bayle, for a deposition at the
offices of Saul Ewing LLP in Chesterbrook, Pennsylvania at a mutually
convenient time no later than four (4) calendar days after plaintiffs produce
documents and provide written responses to document requests and
interrogatories, or suffer appropriate sanctions to be imposed upon application
to the Court;
(d) compelling Plaintiffs to conduct the deposition of defendant Marcia Delaney
after the deposition of Phil Bayle at the offices of Pepper Hamilton in
Harrisburg, Pennsylvania, at a time mutually convenient time for the parties.
(e) staying all deposition discovery until such time as Plaintiffs produce the
discovery sought herein;
(f) rescheduling the preliminary injunction hearing at a date and time which will
allow Ms. Delaney adequate time to prepare meaningfully using the discovery
compelled herein.
By:
Michael R. Greco
Saul Ewing LLP
PA Attorney ID No. 78426
.10.
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087-5569
(610) 251-5757
and
Christopher P. Stief
Risa B. Greene
Saul Ewing LLP
Attorney ID # 72505, 76427
Centre Square West, 38th Floor
1500 Market Street
Philadelphia, P A 19102
(215) 972-1965/7834
Attorneys for Defendant
Marcia Delaney
Verification
I, Michael R. Greco, Esquire, counsel for Defendant, Marcia Delaney, hereby verify that
the statements made in the foregoing Defendant Marcia Delaney's Verified Motion to Compel
Discovery and for a Protective Order are true and correct to the best of my knowledge,
information and belief. I understand that false statements made herein are made subject to the
penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities.
~)~
Michael R. Greco, Esquire
-11-
CERTIFICATE OF SERVICE
I, Michael R. Greco, hereby certify that on this 29th day of August, 2005, I caused a true
and correct copy of the foregoing Motion, Memorandum of Law, Rule to Show Cause, and
proposed form of Order, to be served upon the following counsel of record by facsimile pursuant
to Pa.R.Civ.P. 440(d):
Justin C. Weber
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
P.O. Box 1181
Harrisburg, PA 17108-1181
(717-238-0575) Facsimile
/}tU2 itf:,
-------
Michael R. Greco, Esquire
-12-
Greco, Michael R.
From:
Sent:
To:
Cc:
Subject:
Duprey, Anne [ADuprey@seyfarth.com]
Thursday, August 18, 2005 12:01 PM
Greco, Michael R
Lanciloti, Daniel
RE: Hub Group, Inc. v. Delaney
Mike -- I've re-read your e-mail a couple of times to make sure I understand it, and I
think I do. We are working in good faith to complete discovery in a timely and efficient
manner. Towards that end, we are working with our client to ascertain whether Mr. Bayle
would be available for his deposition on the 26th. Although we understood your initial e-
mail to suggest a quid pro quo -- namely, Ms. Delaney's deposition on the 25th or 26th in
exchange for our agreement to serve Hub's discovery responses upon you earlier than the
agreed upon date -- we did not understand that you were also conditioning your production
of Ms. Delaney upon our production the same week of Mr. Bayle. Now we do. At the very
least, we would request that you "check on your end" while we are checking on our end so
that we can finalize our plans for next week today. Thank you for your consideration. -
Anne
Anne Duprey
Seyfarth Shaw LLP
55 E. Monroe St., Suite 4200
Chicago, IL 60603
312.269.8829 (tel.)
312.269.8869 (fax)
-----Original Message-----
From: Greco, Michael R. [mail to: mgreco@saul.com}
Sent: Thursday, August 18, 2005 9:46 AM
To: Duprey, Anne
Cc: Lanciloti, Daniel
Subject: RE: Hub Group. Inc. v. Delaney
Anne, it appears that you misread my e-mail. My e-mail stated that if you agree to
produce documents and respond to all discovery by August 22nd, I would check to see if we
can have someone available to cover depositions of Mr. Bayle and Ms. Delaney on August
25th and 26th. Now that you have agreed to respond to all discovery and produce documents
by the 22nd, please confirm for me that Mr. Bayle is available for his deposition on the
25th or 26th. If he is available on either of those days, I will check on our end to see
if we can do depositions on the 25th and 26th. If Mr. Bayle is not available on the 25th
of 26th, we need to revisit the deposition schedules and find two successive days to
complete depositions. We will not agree to produce Ms. Delaney for a deposition without a
mutual commitment by Hub to produce Mr. Bayle. Thank you.
Mike
Michael R. Greco
Saul Ewing LLP
1200 Liberty Ridge Drive. Suite 200
Wayne, FA 19087-5569
Telephone: 610-251-5757
Facsimile: 610-408-4413
-----Original Message-----
From: Duprey, Anne (mailto:ADuprey@seyfarth.com1
Sent: Thursday, August 18, 2005 9:52 AM
To: Greco, Michael R.
Cc: Lanciloti, Daniel
Subject: RE: Hub Group, Inc. v. Delaney
1
Mike -- Thanks for your message. We will provide you with our written interrogatory
answers and responsive documents on Monday, August 22nd, as you have requested. We
appreciate your cooperation in producing Ms. Delaney for her deposition on Thursday,
August 25th. We would like to take her deposition at Pepper's Philadelphia offices and
hope and assume that you will be amenable to that, as in the past. We will be in touch
with you shortly regarding the starting time. Moreover, we will ascertain today whether
Mr. Bayle is available for his deposition on Friday, August 26th. If he is not, or if you
would prefer to take his deposition after you have had more time to review the documents,
we will schedule it for a later date. Thanks, Anne
Anne Duprey
Seyfarth Shaw LLP
55 E. Monroe St., Suite 4200
Chicago, IL 60603
312.269.8829 (tel.)
312.269.8869 (fax)
-----Original Message-----
From: Greco, Michael R. [mailto:mgreco@saul.com]
Sent: Wednesday, August 17, 2005 9:31 AM
To: Duprey, Anne
Cc: Lanciloti, Daniel
Subject: RE: Hub Group, Inc. v. Delaney
Anne, I don't know that we are available on that date, but setting aside our availability
for the moment, this raises other concerns. We have been asking you to propose
alternative deposition dates for several weeks, and our discovery requests to HUB have
been outstanding for several weeks, so that we would have HUB's documents and responses
prior to the depositions. If you had told me that you wanted to schedule depositions on
the 25th, I would not have agreed to your request to extend the deadline for production of
documents and responses to the RFA's/interrogatories until the 24th. As I have advised
Dan on several occasions, we likewise need to depose Phil Bayle, but cannot do so until we
receive your discovery responses. I am also trying to accommodate your desire to conduct
the depositions in succession so that you can minimize trips to PA. If you do not intend
to prOduce documents and respond to the RFA's/interrogatories until Wednesday, August
24th, the depositions should be at a later date.
Nonetheless, I do appreciate that it would be convenient for you to conduct the
depositions on the heels of your trip to PA for the Clancy preliminary injunction hearing.
In an effort to work this out, if you agree to produce documents and respond to the
RFA's/interrogatories by Monday, August 22nd, I will check to see if we can have someone
available to cover depositions on the 25th/26th. Will Mr. Bayle be available for his
deposition on the 25th? I suspect we will need a full day with him, and we may need to
roll Ms. Delaney's deposition over to another day. In any event, we will need Hub's
documents and responses sufficiently in advance of the depositions. As I cautioned
yesterday, if Hub's discovery responses are deficient, we reserve the right to object to
proceeding with depositions until such time as satisfactory responses are provided. We
cannot conduct meaningful depositions
without satisfactory responses and production of documents. Moreover,
Hub's responses to the discovery may identify additional witnesses.
Please contact me so that we can discuss this, and as we discussed yesterday, it is my
hope that we can reach a settlement that renders these issues moot. Thanks.
Mike
-----Original Message-----
From: Duprey, Anne [mailto:ADuprey@seyfarth.com]
Sent: Tuesday, August 16, 2005 5:59 PM
To: Greco, Michael R.
Subject: RE: Hub Group, Inc. v. Delaney
Hi Mike.
I forgot to mention that, in addition to serving discovery requests today, we
2
plan to send out a deposition notice for Ms. Delaney for Thursday, August 25th (the day
after the scheduled two-day Clancy preliminary injunction hearing). I apologize for my
forgetfulness.... We'll be in touch with you shortly with a more substantive response to
your candid comments this afternoon. Thanks, Anne
Anne Duprey
Seyfarth Shaw LLP
55 E. Monroe St., Suite 4200
Chicago, IL 60603
312.269.8829 (tel.)
312.269.8869 (fax)
Any tax information or written tax advice contained herein (including any attachments) is
not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax
penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed
pursuant to U.S. Treasury Regulations governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential
information intended for the use of the individual or entity named above. If the reader
of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly prohibited.
"Saul Ewing LLP <saul. com>'! made the following annotations:
NEW IRS RULES RESTRICT WRITTEN FEDERAL TAX ADVICE FROM LAWYERS AND ACCOUNTANTS. WE
INCLUDE THIS STATEMENT IN ALL OUTBOUND EMAILS BECAUSE EVEN INADVERTENT VIOLATIONS MAY BE
PENALIZED. NOTHING IN THIS MESSAGE IS INTENDED TO BE USED, OR MAY BE USED, TO AVOID ANY
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THIS E-MAIL MAY CONTAIN PRIVILEGED, CONFIDENTIAL, COPYRIGHTED, OR OTHER LEGALLY PROTECTED
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PLEASE NOTIFY US BY RETURN E-MAIL, THEN DELETE. THANK YOU. SAUL EWING'S WEB SITE IS
WWW.SAUL.COM . ------------------------
Any tax information or written tax advice contained herein (including any attachments) is
not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax
penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed
pursuant to u.s. Treasury Regulations governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential
information intended for the use of the individual or entity named above. If the reader
of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly prohibited.
Any tax information or written tax advice contained herein (including any attachments) is
not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax
penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed
pursuant to U.S. Treasury Regulations governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential
information intended for the use of the individual or entity named above. If the reader
of this message is not the intended recipient, you are hereby notified that any
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3
Message
Page I of I
Greco, Michael R.
From: Duprey, Anne [ADuprey@seyfarth.com]
Sent: Monday, August 22,20053:02 PM
To: Greco, Michael R.
Cc: Lanciloti, Daniel
Subject: RE: Delaney discovery responses
Mike '- I just left a message for you with your assistant. I was calling to request that you agree to our providing
you with written responses to your requests for production and responsive documents today, as we previously
agreed, and written answers to your interrogatories and requests to admit tomorrow morning. Please iet us know
at your earliest convenience whether this would be acceptable to you, in light of our agreement concerning the
oral discovery taking place later this week. We would very much appreciate your consideration in this regard.
Thanks, Anne
Any tax information or written tax advice contained herein (including any attachments) is not intended
to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed
on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations
governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential information
intended for the use of the individual or entity named above. If the reader of this message is not the
intended recipient, you are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited.
8/29/2005
Message
Page 1 of3
Greco, Michael R.
From: Duprey, Anne [ADuprey@seyfarth.com]
Sent: Monday, August 22,20053:52 PM
To: Greco, Michael R.
Cc: Lanciloti, Daniel
Subject: RE: Delaney discovery
That's fine.
-----Original Message-----
From: Greco, Michael R. [mailto:mgreco@saul.com]
Sent: Monday, August 22, 2005 2:49 PM
To: Duprey, Anne
Cc: Lanciloti. Daniel
Subject: RE: Delaney discovery
I am agreeable to that, provided however, that I reserve the right to challenge the attorneys' eyes only
designation in the same manner provided by the Clancy protective (in other words, it remains attorneys'
eyes only until we agree otherwise, or the court rules differently).
-----Origlnal Message-----
From: Duprey, Anne [mailto:ADuprey@seyfarth.com]
Sent: Monday, August 22,20053:45 PM
To: Greco, Michael R.
Cc: Lanciloti, Daniel
Subject: RE: Delaney discovery
One set of documents are SEC documents and others relating to corporate structure, conveyances,
etc. The other set of documents are an e-mail communication from Clancy to Delaney and attached
customer lists. You may share these with Delaney but not TIS or any other non-party, assuming
you agree that Delaney may not keep copies or take notes concerning their content, as you
suggest. Thanks.
-----Original Message-----
From: Greco, Michael R. [mailto:mgreco@saul.com]
Sent: Monday, August 22, 2005 2:37 PM
To: Duprey, Anne
Cc: Lanciloti, Daniel
Subject: RE: Delaney discovery
Please call me to discuss (610-251-5757). I need more information from you. What are they
about? Why do they warrant attorneys' eyes only? Are you saying that I cannot even share
them with Delaney? Obviously, I would agree not to share them with TTS (or any other non-
party). What if I agree to share them with Delaney, but agree that she cannot keep copies,
and may not take notes concerning their content?
-----Original Message-----
From: Duprey, Anne [mailto:ADuprey@seyfarth.com]
Sent: Monday, August 22,20053:34 PM
To: Greco, Michael R.
Cc: Lanciloti, Daniel
Subject: Delaney discovery
8/29/2005
Message
8/29/2005
Page 2 of3
Mike -- Documents bates-stamped HUB 000212-000249 contain confidential and
proprietary information We will agree to produce them now if you agree to treat them
as "Attorneys' Eyes Only," within the meaning of the protective order entered in the
Clancy case. Please let me know ASAP if you wiil not agree to do so. Thanks, Anne
Any tax infonnation or written tax advice contained herein (including any
attachments) is not intended to be and cannot be used by any taxpayer for the
purpose of avoiding tax penalties that may be imposed on the taxpayer. (The
foregoing legend has been affixed pursuant to u.s. Treasury Regulations
governing tax practice.)
The information contained in this transmission is attorney privileged and/or
confidential infonnation intended for the use ofthe individual or entity named
above. If the reader of this message is not the intended recipient, you are hereby
notified that any dissemination, distribution or copying of this communication
is strictly prohibited.
"Saul Ewing LLP <saul.com>" made the following annotations:
NN~NNNNNNNNNNNNNNNNNNNNN
NEW IRS RULES RESTRICT WRmEN FEDERAL TAX ADVICE FROM
LAWYERS AND ACCOUNTANTS. WE INCLUDE THIS STATEMENT IN ALL
OUTBOUND EMAlLS BECAUSE EVEN INADVERTENT VIOLATIONS MAY BE
PENALIZED. NOTHING IN THIS MESSAGE IS INTENDED TO BE USED, OR
MAY BE USED, TO AVOID ANY PENALTY UNDER FEDERAL TAX LAWS. THIS
MESSAGE WAS NOT WRmEN TO SUPPORT THE PROMOTION OR
MARKETING OF ANY TRANSACT10N. CONTACT THE SENDER IF YOU WISH
TO ENGAGE US TO PROVIDE FORMAL WRmEN ADVICE AS TO TAX
ISSUES.
THIS E-MAIL MAY CONTAIN PRIVILEGED, CONFIDENTIAL, COPYRIGHTED,
OR OTHER LEGALLY PROTECTED INFORMATION. IF YOU ARE NOT THE
INTENDED REGPIENT (EVEN IF THE E-MAIL ADDRESS ABOVE IS YOURS),
YOU MAY NOT USE, COPY, OR RETRANSMIT IT. IF YOU HAVE RECEIVED
THIS BY MISTAKE PLEASE NOTIFY US BY RETURN E-MAIL, THEN DELETE.
THANK YOU. SAUL EWING'S WEB SITE IS WWW.SAI.iL.COM .
NNNNNNNNNNNNNNNNNNNNNNNN
Any tax infonnation or written tax advice contained herein (including any attachments) is
not intended to be and cannot be used by any taxpayer for the purpose of avoiding tax
penalties that may be imposed on the taxpayer. (The foregoing legend has been affixed
pursuant to U.S. Treasury Regulations governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential
infonnation intended for the use of the individual or entity named above. If the reader of
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Message
Page 3 of3
Any tax information or written tax advice contained herein (including any attachments) is not intended
to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that may be imposed
on the taxpayer. (The foregoing legend has been affixed pursuant to U.S. Treasury Regulations
governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential information
intended for the use of the individual or entity named above. If the reader of this message is not the
intended recipient, you are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited.
8/29/2005
Message
Page I of3
Greco, Michael R.
From: Greco, Michael R.
Sent: Tuesday, August 23, 2005 8:40 AM
To: Duprey, Anne
Cc: Lanciloti, Daniel; Greene, Risa
Subject: RE: Hub v. Delaney
Anne:
Given your schedule, we can make ourselves available for a telephone call this evening at 9:00 p.m.
Please let us know when and where to call you. Thank you.
Mike
-----Original Message--no
From: Duprey, Anne [mailto:ADuprey@seyfarth.com]
Seut: Tue 8/23/2005 8:03 AM
To: Greco, Michael R.
Cc: Lauciloti, Daniel; Greene, Risa
Subject: RE: Hub v. Delaney
Mike--
We served Hub's discovery responses and objections upon you on the date on which we agreed to do so
in exchange for your agreement to produce Ms. Delaney for her deposition this Thursday. As you must
know, the relevant rules do not permit you to condition your compliance with our discovery requests upon
your perceptions concerning our compliance with your discovery requests. However, we made the
agreement to appease you and to ensure that we proceed with discovery in an expeditious and efficient
manner.
Moreover, we believe that Hub's responses and objections are fully consistent with its obligations under the
rules. If you disagree, we are happy to schedule a time with you to discuss any disputes between the
parties (although, as you know, we will be tied up in a federal court hearing Tuesday and Wednesday of
this week). Again, we do not believe the rules afford you any right to decline to produce Ms. Delaney this
Thursday, regardless of whether you attempted to warn of this planned maneuver last week. She can and
must testify about her underlying conduct in this case, and her ability to do so is in no way hampered by
the status of Hub's document production to you (which we maintain was undertaken in good faith and
consistent with Hub's discovery obligations). Thus, we intend to proceed with her deposition on Thursday,
as scheduled.
Please let us know immediately if you are refusing to produce Ms. Delaney on Thursday. We look forward
to hearing from you.
Thanks, Anne
Anne E. Duprey
Seyfarth Shaw LLP
55 E. Monroe St., Suite 4200
Chicago, IL 60603
312.269.8829 (tel.)
312.269.8869 (fax)
-----Original Message-----
8/29/2005
Message
8/29/2005
Page 2 of3
From: Greco, Michael R. [mailto:mgreco@saul.com]
Sent: Monday, August 22, 2005 7:21 PM
To: Duprey, Anne
Cc: Lanciloti, Daniel; Greene, Risa
Subject: Hub v. Delaney
Importance: High
Anne:
Over three weeks ago, Marcia Delaney served discovery requests on Hub. Last week you called an
asked for an extension of time to respond. 'agreed to provide you with an extension, but I
expressly stated that "we will need Hub's documents and responses sufficiently in advance of the
depositions." (See my email to you dated August 17,2005). I further explained "if Hub's discovery
responses are deficient, we reserve the right to object to proceeding with depositions until such time
as satisfactory responses are provided. We cannot conduct meaningful depositions without
satisfactory responses and production of documents." In response to this, you stated: "We will
provide you with our written interrogatory answers and responsive documents on Monday, August
22nd, as you have requested." Upon receiving this assurance from you, and conditioned upon this
assurance, I agreed to scheduie depositions on August 25th and 26th.
Late this afternoon, I received the few documents your produced, the vast majority of which are
Hub's Employee Manual and its Form 10K. UPon review of Hub's written responses and objections
to the document requests, I note that Hub has objected to producing documents in response to 20
out of the 34 requests. Most of the objections are either baseless or could have been resolved if
you had attempted to confer with us at an earlier date. In short, it should not have take Hub three
weeks to produce across the board objections. By doing so, you have materially prejudiced our
ability to meaningfully prepare for and conduct the depositions. Accordingiy, we either need to (a)
resolve our discovery dispute concerning the production of documents tomorrow, August 23rd; or (b)
reschedule the depositions to proceed at a date to be determined after our discovery dispute is
resolved (either amicably or by the court).
Pi ease contact me as soon as possible. You may reach me this evening either at work: 610-251-
5757, at home: 610-399-5360, or on my cell phone: 267-679-2376. Tomorrow, you may speak to
my colleague, Risa Greene at 215-972-7834.
Michael R. Greco
Saul Ewing LLP
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
Telephone: 610-251-5757
Facsimile: 610-408-4413
"Saul Ewing LLP <saul.com>" made the follOWing annotations:
~NNNNNNNNNNNNNNNNNNNNNNN
NEW IRS RULES RESTRICT WRITTEN FEDERAL TAX ADVICE FROM LAWYERS AND
ACCOUNTANTS. WE INCLUDE THIS STATEMENT IN ALL OUTBOUND EMAILS
BECAUSE EVEN INADVERTENT VIOLATIONS MAY BE PENALIZED. NOTHING IN
THIS MESSAGE IS INTENDED TO BE USED, OR MAY BE USED, TO AVOID ANY
PENALTY UNDER FEDERAL TAX LAWS. THIS MESSAGE WAS NOT WRmEN TO
SUPPORT THE PROMOTION OR MARKETING OF ANY TRANSACTION. CONTACT
THE SENDER IF YOU WISH TO ENGAGE US TO PROVIDE FORMAL WRITTEN
Message
Page 3 of3
ADVICE AS TO TAX ISSUES.
THIS E-MAIL MAY CONTAIN PRIVILEGED, CONFIDENTIAL, COPYRIGHTED, OR
OTHER LEGALLY PROTEClED INFORMATION. IF YOU ARE NOT THE INTENDED
RECIPIENT (EVEN IF THE E-MAIL ADDRESS ABOVE IS YOURS), YOU MAY NOT
USE, COPY, OR RETRANSMIT IT. IF YOU HAVE RECEIVED THIS BY MISTAKE
PLEASE NOTIFY US BY RETURN E-MAIL, THEN DELETE. THANK YOU. SAUL
EWING'S WEB SITE IS WWW.SAUL.COI.1 .
~~~NN~NNNNNNNNNNNNNNNNNN
Any tax information or written tax advice contained herein (including any attachments) is not
intended to be and cannot be used by any taxpayer for the purpose of avoiding tax penalties that
may be imposed on the taxpayer. (The foregoing legend has been affixed pursuant to U.S.
Treasury Regulations governing tax practice.)
The information contained in this transmission is attorney privileged and/or confidential
information intended for the use of the individual or entity named above. If the reader of this
message is not the intended recipient, you are hereby notified that any dissemination, distribution
or copying ofthis communication is strictly prohibited.
8/29/2005
Message
Page 1 of3
Greco, Michael R.
From: Duprey, Anne [ADuprey@seyfarth.com]
Sent: Tuesday, August 23,20058:03 AM
To: Greco, Michael R.
ec: Lanciloti, Daniel; Greene, Risa
Subject: RE: Hub v. Delaney
Mike--
We served Hub's discovery responses and objections upon you on the date on which we agreed to do so in
exchange for your agreement to produce Ms. Delaney for her deposition this Thursday, As you must know, the
relevant rules do not permit you to condition your compliance with our discovery requests upon your perceptions
concerning our compliance with your discovery requests. However. we made the agreement to appease you and
to ensure that we proceed with discovery in an expeditious and efficient manner.
Moreover, we believe that Hub's responses and objections are fully consistent with its obligations under the rules.
If you disagree, we are happy to schedule a time with you to discuss any disputes between the parties (although,
as you know, we will be tied up in a federal court hearing Tuesday and Wednesday of this week). Again, we do
not believe the rules afford you any right to decline to produce Ms, Delaney this Thursday, regardless of whether
you attempted to warn of this planned maneuver last week. She can and must testify about her underlying
conduct in this case, and her ability to do so is in no way hampered by the status of Hub's document production to
you (which we maintain was undertaken in good faith and consistent with Hub's discovery obligations). Thus, we
intend to proceed with her deposition on Thursday, as scheduled.
Please let us know immediately if you are refusing to produce Ms. Delaney on Thursday. We look forward to
hearing from you.
Thanks, Anne
Anne E Duprey
Seyfarth Shaw LLP
55 E. Monroe SI., Suite 4200
Chicago, IL 60603
312269.8829 (tel.)
312.2698869 (fax)
-----Original Message-----
From: Greco, Michael R, [mailto:mgreco@saul.com]
Sent: Monday, August 22, 2005 7:21 PM
To: Duprey, Anne
ee: Lanciloti, Daniel; Greene, Risa
Subject: Hub v, Delaney
Importance: High
Anne:
Over three weeks ago, Marcia Delaney served discovery requests on Hub. Last week you called an asked
for an extension of lime to respond. I agreed to provide you with an extension, but I expressly stated that
"we will need Hub's documents and responses sufficiently in advance of the depositions." (See my email
to you dated August 17, 2005). I further explained "if Hub's discovery responses are deficient, we reserve
the right to object to proceeding with depositions until such time as satisfactory responses are provided.
We cannot conduct meaningful depositions without satisfactory responses and production of documents."
in response to this, you stated: "We will provide you with our written interrogatory answers and responsive
documents on Monday, August 22nd, as you have requested." Upon receiving this assurance from you,
Of.,nn(\()~
Message
Page 2 on
and conditioned upon this assurance, I agreed to schedule depositions on August 25th and 26th.
Late this afternoon, I received the few documents your produced, the vast majority of which are Hub's
Employee Manual and its Form 10K. UPon review of Hub's written responses and objections to the
document requests, I note that Hub has objected to producing documents in response to 20 out of the 34
requests. Most of the objections are either baseless or could have been resolved if you had attempted to
confer with us at an earlier date. In short, it should not have take Hub three weeks to produce across the
board objections, By doing so, you have materially prejudiced our ability to meaningfully prepare for and
conduct the depositions. Accordingly, we either need to (a) resolve our discovery dispute concerning the
production of documents tomorrow, August 23rd; or (b) reschedule the depositions to proceed at a date to
be determined after our discovery dispute is resolved (either amicably or by the court).
Please contact me as soon as possible. You may reach me this evening either at work: 610-251-5757, at
home: 610-399-5360, or on my cell phone: 267-679-2376. Tomorrow, you may speak to my colleague,
Risa Greene at 215-972-7834.
Michael R. Greco
Saul Ewing LLP
1200 liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
Telephone: 610-251-5757
Facsimile: 610-408-4413
"Saul Ewing LLP <saul.com>" made the following annotations:
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intended for the use of the individual or entity named above. If the reader ofthis message is not the
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communication is strictly prohibited.
05-Aur-25 09:41pm From-seYfarth .haw
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PEPPER Hp.-NlL TON LLP
BrianP. Downey(pA 59891)
Justin G. W eb~:r (P A 89266)
200 One Keystone Plaza
North Front and Market Streets
Post Office BOl( lISI
Harrisburg, PA 17108-1181
(717) 255-115;)
SEYFARTH SHAW LLP
Daniel F. Lanciloti
Anne E. Duprey
Molly Eastman
55 East Monroe Street
Suite 4200
Chicago, lllinois 60603
(312) 346-8000
Attorneys for l'Iaintiffs Hub Group. Inc. and Hub City Tenninals LLC
HUB GROUP, INC. and HUB CITY
TERMINALS LLC,
Plaintiifs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
V.
No. 05-3550
MARCIA DEI.ANEY
Defendant.
PLAlNTlFF'S SUl'PLEMENTAL OBJ1l;CTlONS AND
:lU:SPONSES TO DEFENDANT'S FIRST SET OF REQUESTS
FOR THE PRODUCTION OF DOCUMENTS AND THINGS
NOW COMES Plaintiff, Hub Group, me. ("Hub" or "Plaintiff'), by and through its
attorneys, Seyfarth Shaw LLP, and states as follows for its supplemental objections and
responses to Defendant Marcia Delaney's ("Delaney" or "Defendant") nrst set of requests for
prOduction ,of cIocurnents and things: 1
GENERAL OBJECTIONS
1. Hub objects to the requests on the basis that they call for disclosure of materials
protected by tl,e attorney-client privilege. All agreements set forth below to produce materials
responsive to "request for production are specifically conditioned upon this objection. Hub will
I Hub provides these objections and responses on behalf of itself and Plaintiff Hub City
Terminals LLC, an entity added as a plaintiff in this case on August 15, 2005.
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provide an appropriate privilege log covering all materials it withholds on the basis of the
attorney-client privilege upon request.
2. Hub objects to the requests on the basis that they call for disclosure of information
protected byth~ attorney work product doctrine and any other applicable privilege or immunity.
All agreements set forth below to produce materials responsive to a request for admission or
interrogatory are specifically conditioned upon this objection. Hub will provide an appropriate
privilege log fccr" all materials it withholds on the basis of the attorney work product doctrine
and/or related doctrines upon request.
3. Hub objects to the requests on the basis that they seek materials that are neither
relevant nor reasonably calculated to lead to the discovery of admissible evidence, or are
otherwise beyc.nd the scope of discovery permitted by applicable law.
4. Hub objects to the requests on the basis that the time and expense it would incur
to provide the materials requested therein would be so great and the quantiry and/or amount of
relevant infomlation, if any, provided would be so minimal, that they are unduly burdensome.
5. Hub objects to the requests on the basis that they do not clearly identify the
materials sought from Hub, rendering them vague and ambiguous and improperly requiring Hub
to speculate abo ut their intended meaning.
6. Hub objects to the requests on the basis that they seek materials that are
confidential !IlJdlor proprietary to Hub and/or othenvise highly sensitive. Hub will produce such
materials, if at all, only after the coUrt has entered a proper prutective order.
The ah3w-statcd General Objections arC incorporated into each and every one of the
following responses to the requests, reganiless of whether or not explicitly referenced therein.
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REQUEST NO.1:
The persOImel file and all other files or documents maintained by Hub which refer or
relate to Delaney.
RESPONSE:
See docUlm:nts Bates-stamped HUBOOOOOl- HUB000055.
REOUEST NO.1:
All contracts, agreements, obligarions, understandings, restrictive covenants,
confidentiality agreements, nondisclosure agreements, non-solicitation agreements, non-compele
agreements, and the like entered into between Delaney and Hub.
RESPONSE:
See documents Bates-stamped HUBOOooOI - HUB000004, HUB000008 - HUB000009.
HUB000033-HUB000034, HUBooOl16 - HUB000211.
REOUEST NO. 3t
All orgmizational charts. which set forth or identify the position(s) held by Delaney, the
persons to whom she reported, throughout her employment at Hub.
RESPONSf'..
See dot'lllnents Bates-stamped HUB000089 - HUB000091, HUB000099 - HUBOool 00,
HUBOOOI14- H0130ool15.
REOUEST NO.4:
All documents that refer or relate to any training provided by Huh to Delaney, including,
but not limited to, all documents which refer or relate to the cost of such training.
RESPONSE:
See dOI:urnents Bates-stamped HUB000048, HUBOOOOSS - HUBOOOO80.
REOUESTNQ.5:
All clo(:uments that descnoe the duties and responsibiEties for all positions held by
DelMey at Hub tilroughout her entire employment, including but not limited to, documents
referring to 'm" products, services and geographical territories she dealt with on behalf of Hub.
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RESPONSE:
See General Objection Nos. 3, 4, and 5. The phrase "produClS, services and geographical
territories she dealt wilh on behalf of Hub" is tmdefined, vague, and ambiguous. Subject to the
foregoing objet:tions, Hub further objects to this request on the grounds that is overly broad and
tmduly burden:;;ome, in that it seeks any and all documents referring to all of Hub's products and
services. Subjloct to and without waiving the foregoing objections, see docmnents Bates-stamped
HUBOOOOOl - HUB000009, HUB000033 - HUBOOOO34, HUBOOOOS3, HUB000116-
HUB000211.
REOUEST NO.6:
ProduCI: a copy of all documents that pertain, refer, concern, or relate to Hub's internal
policies and procexlures concerning the hiring and/or recruitml;nt of employees.
RESPONSE:
See GelleIal Objection Nos. 3, 4, and 5. This request is not reasonably calculated to lead
to the discovery of admissible evidence. Moreover, it is overly broad and unduly burdensome in
that it is not limited in geographical or temporal scope and, further, is not limited to other
employees in Delaney's job classification in her geographical region who reported to the same
supervisors and managers as Delaney. Subject to and without waiving the foregoing objections,
see documents Bates-stamped HUBOOOOI - HUBOOOO6, HUB000014 - HUB000015,
HUBOOO05Z, HUBOOOl16 - HUBOOO21 I.
REOUEST ~O. 7~
All documents that reflect, refer or relate to any statements made by Hub or any of its
Employees, in vvriting or otherwise, to anyone conceming Delaney's prospective Qr actual
resignation from Hub, andlor her contemplated employment with Trailer Transport Systems.
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RESPONSE:
See General Objection Nos. 3,4, and 5_ The terms and phrases "statements," "Delaney's
prospective or actual resignation from Hub," and "her contemplated employment with Trailer
Transport Syst<:ms" are unde:fined, vague. and ambiguous. Subject to and without waiving the
foregoing obje<:tions, see documents Bates-stamped HUBOOOOlO - HUB000014, HUBOOOO16-
HUBOOO024. Mc.reover. Hub has been conducting an investigation that is reasonable under the
relevant roles and will provide additional responsive docwnents to the extent that its continuing
investigation mvcals their existence.
REQUEST NO.8:
Samples of all employment agreements, non.competition, non-disclosure, non-
solicitation, and confidentiality agreements which Hub has required its Employees to sign
(excluding employees who have never occupied a position similar to that occupied by Delaney
during her employment at Hub).
RESPONSE:
See GeJleral Objection Nos. 3, 4, and 5. This request is vague, ambiguous, and
confusing. M(,re,)ver, it is not reasonably calculated to lead to the discovery of admissible
evidence, in that the contractual obligations of other Hub employees are not relevant to
Delaney's brCf.ch of her own contractual obligations. Subject to the foregoing objections, Hub
further objects to this request on the grounds that it is not limited in geographical or temporal
scope and, furlher, is not limited to other employees in Delaney's job classification in her
geographical r~gion who reported to the same supervisors and managers as Delaney.
Additionally, Hub objects to this request on the grounds that it needlessly invades the privacy of
Huh employees.
REOUEST NO.9:
All doc:uments relating to the recroiting, hiring, interviewing. and/or potential
employment of Delaney by Hub.
s
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RESPONSE:
See docwnents Bates-stamped HUB 000001 - HUBOOO007, HUB000014 - HUBOOOOI6.
REOUEST NO. 10:
:?roduc~: for inspection the original of Delaney's Non-Competition Agreement.
RESPONSE,;,
Hub ';vj11 do so at a mutually-convenient location and time.
REOUEST IS!). 11:
All Do(:uments reflecting or concerning any and all actual or proposed contacts or
communications that occurred between Delaney, on the one hand, and the Customers, on the
other hand, sin,;e the date on which Delaney was last employed by Hub.
RESPONSE:
See General Objection Nos. 5 and 6. Moreover, the phrase "proposed contacts or
corrununicatiolls" is undefined, vague, and ambiguous. Subject to and without waiving the
foregoing otde~ti()llS, Hub will produce non-privileged, responsive documents upon the court's
entry of an appropriate protective order. Moreover, Hub has been conducting an investigation
that is reasonable under the relevant rules and will provide additional respollsive doclilllents to
the extent that its continuing investigation reveals their existence.
REOUESTNO. 12:
All Documents that Hub intends to use as exhibits in any hearing or trial of this Civil
Action.
RESPONSE:
Hub objects to this request on the grounds that it is premature. Hub will make all
necessary disclosures concerning its hearing and/or trial exhibits in the manner and at the time
required by thl: court.
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REOOEST NO. 13:
All Documents, including internal COmI01ll1ications, that refer to or concern Delaney
since the date on which Delaney was last employed by Hub, including without limitation, any
deposition transcripts.
RESPONSE:
See General Objection Nos. 1,2,3, 5, and 6. Hub further objects to this request on the
grolUlds that th: l",quested deposition transcripts are equally available to Defendant in this action,
and this request represents ilJl improper attempt on Defendant's part to shift unfairly the costs of
obtainiDll said deposition transcripts entirely to Hub. Copies of the deposition transcripts may be
obtained from t:he court reporter. Her contact information appears below:
Donna Abboud
Veritext Court Reporting
1845 Walnut Street, 15th Floor
Philadelphia, Pennsylvania 19103
(215) 241-1000.
Subject to and without waiving the foregoing objections, see documents Bates-stamped
HUBOOOOIO - HTJBOOOO 13, HUBOOOO16 -lIUB000024. Moreover, Hub has been conducting
an investigation that is reasonable under the relevant rules and will provide additional responsive
documents to the extent that its continuing investigation reveals their existence.
REOUEST NO. 14:
All Do,;urnents referring to, concerning, reflecting and/or evidencing any solicitation of
Customers by Delaney since the date on which Delaney was last employed by Hub.
RESPONSE:
See General Objection Nos. 5 and 6. Subject to and without waiving the foregoing
objections and upon the court's entry of an appropriate protective order (where applicable), Hub
will produce non.privileged, responsive documents. Moreover, Hub has been conducting an
7
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investigation that is reasonable under the relevant roles and will produce additional responsive
documents to the \:xtent that its continuing investigation reveals their existence.
REQUEST NO. 15:
All Documents identified by Hub in respollse to interrogatories numbers one (I) through
seventeen (17) of Defendant Marcia Delaney's First Set ofInkrrogatories Directed to Plaiutiff
Hub Group, JIll:.
RESPONSE:
Hub hall produced and/or will produce non-privileged, responsive documents.
REOUEST NO. 16:
,
All DomlIJlents concerning the actual, pmported, attempted, and/or failed assignment of
the Non-Competition Agreement by Hub City Pittsburgh, L.P. to Hub Group, Inc.
RESPONSE:
Hub objects to this request on the grounds that the phrase "actual, purported, attempted,
and/or failed assignment" is undefined, vague. and ambiguous. Subject to and without waiving
the foregoing obj,:ction, /fee General Objection Nos. 1,2,4, and 5 and see documents Bates-
stamped HUB000089 - HUB000091, HUB000099 - HUBOOOI00, HUBOOOl14 - HUB000115,
HUB000212 - H"UBOOO245, HUBOOO249.
REOUEST1iQJ1.;
Docl.ll1l.ents sufficient to demonstrate the corporate relationship betWeen Hub City
Pittsburgh, L.I'. and Hub Group, Inc.
RESPONS~~
See General Objection No.5. Hub objects to this request on the grounds tbat it is vague,
ambiguous, and l:Onfusing. Subject to and without waiving the foregoing objections, /fee
Response to Req\lest No- 16 and documents produced in connection therewith.
REOUEST NO. 18:
Plea~e make available for inspection the computer referred to by Hub in paragraph 34 of
Hub's Complaint filed in this Civil Action.
8
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RESPONSE:
Upon the court's entry of an appropriate protective order, Hub will make the computer
available for iItlpection at its corporate headquarters, located in illinois, at a mutually convenient
time.
REOUEST NO. 19:
All Documents reflecting, referring to, concerning, and/or evidencing any consideration
provided to Delan.ey in exchange for her purported agreement to abide by the teons ofthe Non-
Competition Agre,ement.
RESPONSE,,;,
See General Objection No.2. This request impermissibly calls for the mental
impressions and other work product of Hub's attomeys. Subject to and without waiving the
foregoing obje<;tions, see documents produced in connection with Responses to Request Nos. 1
and 2.
J{EOUEST NO. 20:
All COlnmunications between Delaney and Jeff Clancy since the date on which Jeff
Clancy was last employed by Hub.
RESPONSE:
See General Objection No.6. Subject to and without waiving the foregoing objectiol1 and
upon the court's entry of an appropriate protective order (where applicable), Hub will produce
non-privileged, responsive documents. Moreover, Hub has been conducting an investigation that
is reasonable under the relevant rules and will produce additional responsive documents to the
extent that its ,;ontinuing investi gation reveals their existence.
REOUEST NQ,.1!;.
All Documents reflecting, conceming OT referring to any Communications between
Delaney and J~ff Clancy since the date on which Jeff Clancy was last employed by Hub.
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RESPONSE:
See Respome to Request No. 20.
REOUEST N<h,;:1i
All Documents discussing, concerning or referring to Delaney's actual or prospective
employment with Trailer Transport SystClIls,Inc.
RESPONSE:
See docwnents Bates-stamped HUBOOOOll, HUB000013, HUB000081- HUB000082,
HUBOO0246 - HUBOOO248. Hub will produce additional non-privileged, responsive documents.
Moreover, Hub hilS been conducting an investigation that is reasonable under the relevant roles
and will prodUl:e additional responsive documents to the extent that its continuing investigation
reveals their ell istence.
REQUEST NO. ~
All deposition transcripts from the civil action comIllenced by Hub Group, Inc. against
Jeff Clancy in l:he United States Dismct Court for the Eastern District of Pennsylvania.
RESPONSE:
See Ge11eral Objection No.6. Hub further objects to this request on the grounds that the
requested depc.sition transcripts are equally available to Defendant in this action, and this request
represents an improper attempt on Defendant's part to shift unfairly and improperly the costs of
obtaining saId deposition transcripts entirely to Hub.
REQUEST NQ"M;.
All Documents reflecting or concerning any Communications between Hub, on the one
hand, and Delaney, on the other hand, between March 23, 2005 and March 30,2005.
RESPONSE:
Upon the court's entry of an appropriate protective order (where applicable), Hub will
produce nor,-pri"ileged, responsive documents. Moreover, Hub has been conducting an
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investigation. that i.s reasonable under the relevant rules and will produce additional responsive
documents to the ...xtent that its continuing investigation reveals their existence.
REOUEST N(!:.}5:
All Documents that support and relate to Hub's allegation set forth in paragraph 54 of
Hub's Complaint in this Civil Action staling that "Delaney has violated her non-compete
agreement by comacting and soliciting Hub Group's Customers on behalf ofTTS, a direct
competitor of Hub Group, while she worked for Hub Group and after she began working for
TIS."
RESPONSE:
See General Objection No.6. Subject to and without waiving the foregoing objection and
upon the court's entry of an appropriate l'rotective order (where applicable), Hub will produce
responsive, non-privileged docwnents. Moreover, Hub has been conducting an investigation that
is reasonable UIlckl'T the relevant rules and will produce additional responsive documents to the
extent that its continuing investigation reveals their existence.
REQUEST NO, 26:
All DOl;uments reflecting and/or concerning the alleged ..e-mail couununications"
referred to by Hub in paragraph 55 of Hub's Complaint in this Civil Action.
RESPONSE:
See General Objection No. 6. Subject to the foregoing objection and upon the court's
entry of an appropriate protective order (where applicable), Hub wi]] produce non-privileged,
responsive doc.uments. Moreover, Hub has been conducting an investigation that is reasonable
under the relevant rules and will prOduce additional responsive documents to the extent that its
continuing investigation reveals their existence.
REOUEST NQ.,,12i
All Documents that support and relate to Hub's allegation set forth in paragraph S6 of
Hub's Compumt in this Civil Action stating that "In addition, immediatclyafter leaving Hub
Group, Delem,y began contacting Hub Group's Customers for the purpose of soliciting those
clients to pllTChase services that c0111pete directly with those sold by Hub Group."
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RESPONSE:
See General Objection No.6. Subject to the foregoing objection and upon the court's
entry of an appropriate protective order (where applicable), Hub will produce non-privileged,
responsive doc'cunents. Moreover, Hub has been conducting an investigation that is reasonable
under the relevant rules and will produce additional responsive documents to the extent that its
continuing inVI~tjgation reveals their existence.
REOUEST NO. ~
All DOl,uments that support and relate to Hub's allegation set forth in paragraph 56 of
Hub's Compla:lnt in this Civil Action stating that "1brough her solicitation, Delaney used Hub
Group's confid.ential and proprietary customer contact and pricing infonnation."
RESPONSE:
See GClleral Objection No.6. Subject to the foregoing objection and upon the court's
entry of an appropriate protective order, Hub will produce non-privileged, responsive documents.
Moreover, Huh has been conducting an investigation that is reasonable under the relevant rules
and will produce additional responsive documents to the extent that its continuing investigation
reveals their existence.
REOUEST NO. 29:
All DO._UIIlents that support and relate to Hub's allegation set forth in paragraph 57 of
Hub's Complaint in this Civil Action stating that "During Delaney's solicitation of some of these
Customers, Shll sought to undercut Hub Group's rates using her knowledge of Hub Group's
confidential information."
RESPONSE:
See Geaeral Objection No.6. Subject to the foregoing objection and upon the court's
entry of an llppropriate protective order, Hub will produce non.privileged, responsive documents.
Moreover, Hub has been conducting an investigation that is reasonable under the relevant rules
12
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and will produc~ additional responsive documents to the extent that its continuing investigation
reveals their existence.
REOUEST NO:..1Q.;.
All Doc~unents that support and relate to Hub's allegation set forth in paragraph 58 of
Hub's Complamt in this Civil Action stating that "Delaney has improperly and unlawfully
utilized Hub Group's trade secrets and confidential information to solicit Hub Group's
Customers and potential customers on behalf ofTTS."
RESPONSE:
See General Objection No.6. Subject to the foregoing objection and upon the coun's
entry of an apprcpriate protective order, Hub win produce non-privileged, responsive documents.
Moreover, Huh has been conducting an investigation that is reasonable under the relevant rules
and will produce additional responsive documents to the extent that its continuing investigation
reveals their existence.
REOUEST NO. J1.
The "e-m,iiI comm.unication" refened to by Hub in paragraph 60 of the Complaint filed
by Hub in this Civil Action.
RESl'ONSE:
See Gerleral Objection No.6. Subject to the foregoing objection and upon the coun's
entry of an appropriate protective order, Hub will produce non-privileged, responsive documents.
Moreover, Hub hilS been conducting an investigation that is reasonable under the relevant rules
and will produce llllclitional responsive documents to the extent that its continuing investigation
reveals their exiswnce.
REQUEST NO.. ~!1l
The "e-mall communication" referred to by Hub in paragraph 62 of the Complaint filed
by Hub in this Civil Action.
13
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RESPONSE:
See Generill Objection No.6. Subject to the foregoing ,>bjection and upon the court's
entry of an appropriate protective order, Hub will produce non-privileged, responsive documents.
Moreover, Hub has been conducting an investigation that is reasonable under the relevant rules
and will produce additional responsive documents to the extent that its continuing investigation
reveals their exi.stence.
REOUEST NO. 33:
The ",:-mail conununication" referred to by Hub in paragraph 63 of the Complaint filed
by Hub in this Civil Action.
RESPONSE:
See General Objection No.6. Subject to the foregoing objection and upon the court's
entry of an appropriate protective order, Hub will produce non-privileged, responsive docwnents.
Moreover, Hub has been conducting an investigation that is reasonable under the relevant mles
and will produce additional responsive documents to the extent that its continuing investigation
reveals their ""x'istence.
REOUEST NO. 34:
All Documents that support and relate to Hub's allegation set forth in paragraph 65 of
Hub's Complaint in this Civil Action stating that "Hub Group has lost and is threatened with
losing even more '~ustomers...."
RESPONSE;
See General Objection No.6. Subject to the foregoing objection and upon the court's
entry of an app:ropriate protective order (where applicable), Rub will produce non-privileged,
responsive documents. Moreover, Hub has been conducting I\l'l investigation that is reasonable
under the reli.lv.mt rules and will produce additional responsive documents to the extent that its
continuing inV(:stigation reveals their existence.
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Dated: August Z6, 2005
~
By:
BrianP. Downey (PA 59891)
Justin G. Weber (P A 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downevb~epJl~rlaw .com
weberig@pellJ)erla.w.com
Daniel F. Lanciloti (Phv)
Anne E. Duprey (Phv)
Molly Eastman (Phv)
Seyfarth Shaw UP
55 East Monroe Street, Suite 4200
Chicago, TIlinois 60603
(312) 346-8000
Attorneys for Plaintiffs Hub Group, Inc. and
Hub City Terminals LLC
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CERTIFICATE OF SERVICE
The uhdersigned anorney certifies ilia! she caused a true and correct copy of the
foregoing Ptf.INTIFF' S SUPPJ..EMENTAL OBJECTIONS AND RESPONSES To DEFENDANT'S FIRST SET
,
,
OF REQUES~; FOR PRODUCTION OF DOCUMENTS AND THlNGS to be served upon the following by
facsimile on this 26th day of August, 2005.
Michael R. Greco
SAUL EWING LLP
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087
~)~ \/'\/
Anne E. Duprey
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PEPPER HA.MILTON LLP
Brian P. Downey (FA 59891)
Justin G. Webc:r (PA 89266)
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
SEYFARTH SHAW LLP
Daniel F. Lanciloti
Anne E. DUprey
Molly Eastman
55 East Monroe Street
Suite 4200
Chicago, llJinois 60603
(312) 346-8000
Attorneys for Plaintiffs Hub Group, Inc. and Hub City Terminals LLC
HUB GROlJP, INC. and IDJB CITY
TERMINAlS LLC,
Plaintiffs,
IN TIIE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYL VANIA
v.
No. 05.3550
MARCIA D.ELA~Y
Defendant.
PLAINTIFF'S OBJECTIONS AND ANSWERS TO
DEFENDANT'S FIRST SET OF REQUESTS FOR
;U>MISSION AND FIRST SET OF INTERROGATORIES
NOW COMES Plaintiff, Hub Group, Inc. ("Hub"), by and through its attorneys, and
states as follows for its objections and answers to Defendant Marcia Delaney's first set of
requests for :ld:rni'lsion and first set of interrogatories:!
GENERAL OBJECTIONS
I. Hub objects to the requests for admission and interrogatories on the basis that
they call for di:;cl,~sure of information protected by the attorney-client privilege. All agreements
set forth below to produce information responsive to a request for admission or interrogatory arc
J Hub provide'l these obj ections and answers on behalf of itself and Plaintiff Hub City Terminals
LLC, an entity added as a plaintiff in this case on August 15, 2005.
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specifically conditioned upon this objection. Hub will provide an appropriate privilege log
covering all inJbnnatiou it withholds on the basis of the attorney-client privilege upon request.
2. Hub objects to the requests for admission and interrogatories on the basis that
they call for di:;closure of information protected by the attorney work product doctrine and any
other applicable privilege or immunity. All agreements set forth below to produce infonnation
responsive to a request for admission or interrogatory are specifically conditioned upon this
objection. Hub Vlill provide an appropriate privilege log for all information it withholds on the
basis of the atlclroey work product doctrine and/or related doctrines upon request.
3. Hub objects to the requests for admission and interrogatories on the basis that
they seek information that is neither relevant nor reasonably calculated to lead to the discovery
of admissible evidence, or are otherwise beyond the scope of discovery permitted by applicable
law.
4. Hlib objects to the requests for admission and interrogatories on the basis that the
time and expeIJ.se it would incur to provide the information requested therein would be so great
and the quantity and/or amount of relevant information, if any, provided would be so minimal,
that they are undu.1y burdensome.
5. Hub objects to the requests for admission and interrogatories on the basis that
they do not cleilfly identify the information sought from Hub, rendering them vague and
ambiguous and improperly requiring Hub to speculate about their intended meaning.
The ELbove'-stated General Objections are incolJlorated into each and every one of the
following answer:; to the requests for admission and interrogatories, regardless ofwbetber
specifically referenced therein.
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REOUEST iFOR ADMISSION NO.1:
Hub City Pittsburgh, L.P. did not assign the Contract to Hub Group, Inc. (For pUlposes
of this Requ,~t for Admission, "Contract" shall mean the non-competition agreement referenced
in paragraph 36 of Hub's Complaint).
ANSWER: .
Deny.
INTERRO(j;ATORY NO.1:
Unless your response to Request for Admission No. I is an unqualified affirmative
admission, state, separately and specifically, the following information: (a) state, with
particularity, any and all facts which support your failure to unqualifiedly admit such request; (b)
identify any 1l11d all Documents relating or referring to any and all facts which allegedly support
your failure to unqualifiedly admit the request; and (c) identify any and a11 persons who have
information or knowledge which relates or refers to any and all of the facts which allegedly
support yom failure to unqualifiedly admit Request for Admission No.1.
ANSWER: .
See General Objection Nos. 3 and 4. Moreover, Hub objects to this interrogatory because
it is overly broad llJld unduly burdensome. Hub further objects to this inteuogatory on the
grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden, or
expense bec&UJ;.e the interrogatory calls for a narrative response more appropriately addressed
through depc,si1:ion testimony. Subject to and without waiving the foregoing objections, see
docwnents prodU\",ed by Hub in discovery. Phil Bayle and David Zeilstra have information
relating to Hllb's denial of Request for Admission No.1.
REQUEST FOR ADMISSION NO.2:
Hub terminated Delancy on the day that she provide notice of her resignation from Hub.
ANSWER: .
Deny.
INTERROGATORY NO.2:
Unless your response to Request for Admission No.2 is an unqualified affirmative
admission, stal<>, separately and specifically, the following information: (a) state, with
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particularity, any and all facts which support your failure to unqualifiedly admit such request; (b)
identify any and all Documents relating or referring to any and all facts which allegedly support
your failure to unqualifiedly admit the request; and (c) identify any and all persons who have
information or knowledge which relates or refers to any and all of the facts which allegedly
support your frdlure to unqualifiedly admit Request for Admission No.2.
ANSWER:
Hub obje(:ts to this interrogatory all the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative response more appropriately addressed through deposition testimony. Subject to and
without waivin.g the foregoing objections, see documents produced by Hl1b in discovery.
Moreover, Delan(:y admitted at her deposition that she continued to work for Hub following the
date of her issuance of her notice of resignation from Hub. Additionally, Delaney sent and
received e-rnails from her Hub account following that date that evidence that she remained
employed by Hub for a period of time. Marcia Delaney, Jeffrey M. Clancy, Phil Bayle, and Ed
Peterson have :information relating to these facts.
REOUEST FOR ADMISSION NO.3:
Dela1Jey returned the Computer to Hub. (For purposes of this Request for Admission,
"Computer" shall have the same meaning as the computer refmed to by Hub in paragl'aph 23 of
its Complaint)
ANSWER: .
Admit.
INTERROGAJ:,ORV NO.3:
Unless your response to Request for Admission No.3 is an Wlqualified af.firmative
admission, stale, separately and specifiCally, the following information: (a) state, with
particularity. allY and all facts which support your failure to unqualifiedly adroit such request; (b)
identify any and nil Documents relating or referring to any and all facts which allegedly support
your failure to unqualifiedly admit the request; and (c) identify any and all persons who have
information or knowledge which relates or refers to any and all of the facts which allegedly
support your fllilllrc to unqualifiedly admit Request for Admission No.3.
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ANSWER:
REQUEST FOR ADMISSION NO.4:
Prior t<:o November 1, 1999, Hub did not inform Delaney that she would be required to
enter into a nOll-competi.tion agreement.
ANSWER:
Deny.
fNTERROGATORY NO.4:
Unless your response to Request for Admission No.4 is an unqualified affirmative
admission, state, separately and specifically, the following information: (a) state, with
particularity, any and all facts which support your failure to wlqualifiedly admit such request; (b)
identifY any arld all Documents relating or referring to any and all facts which allegedly support
your failure to unqua1ifiedly admit the request; and (c) identify any and all persons who have
information or knowledge which relates or refers to any and all of the facts which allegedly
support your f;rilure to unqualifiedly admit Request for Admission No.4.
ANSWER:
Hub ol~ects to this interrogatory on the grounds that it would cause unreasonable
annoyance, '~IIlbaITassmenl, oppression, burden, or expense because the interrogatory calls for a
narrative respclllse more appropriately addressed through deposition testimony. Subject to and
without waivil1gthe foregoing objections, see documents produced by Hub in discovery.
REQUEST FOR ADMISSION NO.5:
Delaney did not receive any consideration in exchange for executing the Contract. (For
purposes of this Request for Admission, "Contract" shall mean the non-competition agreement
referenced in paragraph 36 of Hub's Complaint)
ANSWER:
Deny.
INTERROGATORY NO.5:
Unless YCIIE response to Request for Admission NO.5 is an unqualified affirmative
admission, state, separately and specifically, the [ullowing information: (a) state, with
particularity, "ny and all facts which support your failme to unqua1ifiedlyadmit such request; (b)
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identify anYll11.d all Documents relating or referring to any and all facts which allegedly support
your failure ;to unqualifiedly admit the request; and (e) identify any and all persons who have
information :or knowledge which relates or refers to any and all of the facts which allegedly
support yout failw-e to unqualifiedly admit Request for Admission No.5.
ANSWER: I
See Answer to Request for Admission NO.5. Hub further objects to this interrogatory on
,
the grounds ,that it would cause unreasonable annoyance, embarrassment, oppression, burden, or
expense becaul;e the interrogatory calls for a narrative response more appropriately addressed
through deposition testimony. Subject to and without waiving the foregoing objections, see
documents produced by Hub in discovery. Moreover, in exchange for signing the Non.
Competition Agreement at or ncar the time of the commencement of her employment with Hub,
Plaintiff obtained employment with Hub. In other words, Delaney's employment with Hub
served as consideration for her execution of the Non-Competition Agreement.
REOUESTiFOR ADMISSION NO.6:
,
Delaney did not receive any consideration in exchange for executing the Receipt and
Acknowledgement of the Hub Group Code of Business Conduct and Ethics attached as Exhibit
"B" to the Complaint.
ANSWER:
Den)'.
,
INTERROG~J.ORY NO.6:
Unless your response to Request for Admission No.6 is an unqualified affirmative
admission, stale, separarely and specifically, the following information: (a) srare, wirh
particularity" a:tlyand all facts which support your failure to unqualifiedly admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support yom failure to unqualifiedly admit the request; and (c) identify any and all persons who
have ioformati 00 or knowledge which relates or refers to any and all of the facts which allegedly
support your lidhlTe to unqualilledly admit Request for Admission No.6.
ANSWER: .
See Answer to Request for Admission No.6. Hub further objects to this interrogatory on
the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden, or
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expense bccaw;c me interrogatory calls for a narrative response more appropriately addressed
through deposition testimony. Moreover, Hub objects to this interrogatory on the grounds that it
seeks irrelevant information, in that Delaney's violation of the Hub Group Code of Business
Conduct and Ethics is not cited as a basis for Hub's breach of contract clainl against Delaney In
the amended complaint. Subject to and without waiving the foregoing objections, see documents
produced by Hub in discovery.
INTERROGAillORY NO. 7:ISICl
Delaney did not receive any consideration in exchange for executing the Receipt and
Acknowledgernel1t of the Hub GToup's Employee Guide attached as Exhibit "D" to the
Complaint.
ANSWER:
Deny.
INTERROGATORY NO.7:
Unless your response to Request for Admission No.7 is an unqualified affirmative
admission, state, separately and specifically, the following information: (a) state, with
particularity, any and all facts which support your failure to Wlqualified1y admit such request;
(b) identity any and all Documents relating or referring to any and all facts which allegedly
support your failure to unqualifiedly admit the request; and (c) identify any and all persons who
have inform.stion or knowledge which relates or refers to any and all of the facts which allegedly
support yoor flLilure to unqualifiedly admit Request for Admission No.7.
ANSWER:
See Answer to Request for Admission No.7 (i.e., Interrogatory No.7: [SIC]). Hub
further objects 10 this Interrogatory on the grounds that it would cause unreasonable annoyance,
emharrassmem, appression, borden, or expense because the interrogatory calls for a narrative
response more appropriately addressed through deposition testimony. Moreover, Hub objects to
this interrogat(lry on the grounds that it seeks irrelevant infonnation, in that Delaney's violation
of the policies contained in the Employee Guide are not cited as a basis for Hub's breach of
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contract claim against Delaney in the amended complaint. Subject to and without waiving the
foregoing ot~ections. see documents produced by Hub in discovery.
REQUEST FOR ADMISSION NO.8:
After Del:mey provided notice of her intended resignation from Hub, Phil Bayle told
Delaney that h~ was told "to fire that fucking bitch" or words to that effect.
ANSWER:
Deny.
INTERROGATORY NO. 8:
Unless your response to Request for Admission No.8 is an unqualified affIrmative
admission, state, separately and specifically, the following information: (a) state, with
particularity, allY and all facts which support your failure to unqualifiedly admit such request; (b)
identify any all.d all Documents relating or referring to any and all facts which allegedly support
your failure to unqualifiedly admit the request; and (c) identify any and all persons who have
information or kn.owledge which relates or refers to any and an of the facts which allegedly
support your fililu,e to unqualifiedly admit Request for Admission No.8.
ANSWER:
Hub objects to this interrogatory on the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative response more appropriately addressed through deposition testimony. Subject to and
without waiving the foregoing objections, see documents produced by Hub in discovery. Phil
Bayle has infOrlnltion relating to Hub's denial of Request for Admission No.8.
REQUEST FOR ADMISSION NO.9:
Delaney has not violated any of the provisions of the Contract. (For purposes of this
Request for AdmIssion, "Contract" shall mean the non.competition agreement referenced in
paragraph 36 of Hub's Complaint)
ANSWER;
Deny.
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INTERROGATORY NO.9:
Unless younesponse to Request for Admission No.9 is an unqualified affirmative
admission, state, separately and specifically, the fullowing information: (a) state, with
particularity, any and all facts which support your failure to unqualified! y admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support your fidlure to unqualifiedly admit the request; and (c) identify any and all persons who
have infonnati.)n or knowledge which relates or refers to any and an of the facts which allegedly
support your f,dlme to unqualifiedly admit Request for Admission No.9.
ANSWER:
See }\nlwer to Request for Admission No.9. Hub further objects to this interrogatory on
the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden, or
expense because the interrogatory calls for a narrative response more appropriately addressed
through deposition testimony. Subject to and without waiving the foregoing objections, see
documents Fooduced by Hub in discovery. Hub will produce further responsive docunlents
subject to th.: entry of an appropriate protective Order. Investigation continues.
REQUEST FOR ADMISSION NO. 10:
Delancy h.as not contacted any Hub clients for the pUIpose of soliciting those clients to
purchase servkes that compete directly with those sold by Hub.
ANSWER:
Deny.
INTERROGATORY NO. 10:
Unless your response to Request for Admission No. 10 is an unqualified affirmative
admission, state, separately and specifically. the following information: (a) state, with
particularity, any and an facts which sUjlport your failure to unqualifiedly admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support your fllilure to unqualifiedly admit the request; and ( c) identify any and all persons who
have information or knowledge which relates or refers to any and all of the facts which allegedly
support your fililurc 10 unqualifiedly admit Request for Admission No. 10.
ANSWER:
Hub obj"';ts to this interrogatory on the grounds that it would cause unreasonable
annoyance, em.barrassment, oppression, burden, or expense because the interrogatory calls for a
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narrative response more appropriately addressed through deposition testimony. Subject to and
without wai~riIJ.g the foregoing objections, see documents produced by Hub in discovery. Hub
will produce ftllther responsive docwnents subject to the entry of an appropriate protective order.
InvestigatiOIl continues.
REOUEST 'FOR ADMISSION NO. 11:
,
Delaney has not used any of Hub's Confidential and Proprietary Customer Contact and
Pricing Infolmation since her last date of employment with Hub. (For purposes of this Request
for Admissi~n, "Confidential and Proprietary Customer Contact and Pricing Information" shall
have the sanile meaning as the Confidential and Proprietary Customer Contact and Pricing
Infonnation'feferred to in paragraph 56 of the Complaint.)
ANSWER: I
Deny.
INTERROGATORY NO. 11:
Unl"JSs your response to Request for Admission No. 11 is an unqualified affirmative
admission, ~tate, separately and specifically, the following information: (a) state, with
particularity: any and all facts which support your failure to unqualifiedly admit such request;
(b) identify any atld all Documents relating or referring to any and all facts which allegedly
support yo.rr flLilurc to unqualifiedly admit the request; and (c) identify any and all persons who
have infonn~tion or knowledge which relates or refers to any and all of the facts which allegedly
support yow failure to unqualifiedly admit Request for Admission No. 11.
I
ANSWER: ~
Hub objects to this interrogatory on the grounds that it would cause unrea$onable
annoyance, embarrassment, oppression, burden, Or expense because the interrogatory calls for a
narrative response more appropriately addressed through deposition testimony. Subject to and
without WaiiliIig the foregoing objections, see documents produced by Hub in discovery. Hub
will produc~ further responsive docwnents subject to the entry of an Ilppropriate protective order.
InvestigatiOll continues.
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~
REOUEST FOR ADMISSION NO. 12:
Delaney has not sought to undercut Hub's Rates using knowledge of Hub's Confidential
Information; ((10" purposes of this Request for Admission, "Rates" shall have the same meaning
as the rates iefem:d to in paragraph 57 of the Complaint. For pmpases of this Request for
Admission, ~'Confidential Information" shall have the same meaning as the confidential
information rel:erred to in paragraph 57 of the Complaint.)
ANSWER:
Deny.
INTERROGATORY NO. U:
Unless your response to Request for Admission No. 12 is an unqualified affumative
admission, stale, separately and specifically, the fol1owing information: (a) state, with
particularity', any and all facts which support your failure to unqua1ifiedly admit such request; (b)
identify anyiand all Documents relating or referring to any and all facts which -allegedly support
your failure ~o unqualifiedly admit the-request, and (c) identify any and all persons who have
information.or knowledge which relates or refers to any and all of the facts which allegedly
support your fiulure to unqualifiedly admit Request for Admission No. 12.
ANSWER:.
Hubotde<:ts to this interrogatory on the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative reSponse more appropriately addressed through deposition testimony. Subject to and
without wai!ving the foregoing objections, see documents produced by Hub in discovery. Hub
will produce fimher responsive documents subject to the entry of an appropriate protective order.
Investigation c:ontinues.
REOUEST' FOR AnMISSION NO. 13:
Dehiney has not utilized Hub's Trade Secrets and Confidential Information to solicit
Hub's Cust<:>mers and Potential Customers on behalf of ITS. (For purposes oflhis Request for
Admission, .~Trade Secrets", ~Confidentia1 Information", Customers", and "Potential Customers"
shall have the same meaning as the trade secrets. confidential information, customers, and
potential cuStcm<;:Ts referred to in paragraph 58 of the Complaint.)
ANSWER:
Deny.
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INTERROGA.TORY NO. 13:
Unless your response to Request for Admission No. 13 is an unqualified affirmative
admission, stale, separately and specifically, the following information: (a) state, with
particularity, aJUyand all facts which support your failure to unqualifiedly admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support your failure to unqualifiedly admit the request; and (c) identify any and all persons who
have information or knowledge which relates or refers to any and all ofthe facts which allegedly
support your f<lilure to unqualifiedly admit Request for Admission No. 13.
ANSWER:
Hub objec:ts to this interrogatory on the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative response more appropriately addressed through deposition testimony. Subject to and
without waivir,g ilie foregoing objections, see documents produced by Hub in discovery. Hub
will produce further responsive documents subject to the entry of an appropriate protective order.
Investigation continues.
REOUESTFOR ADMISSION NO. 14:
Delaney has not utilized Hub's Trade Secrets and Confidential Information in her
capacity as TIS's Intermodal Dispatcher. (For purposes oflhis Request for Admission, "Trade
Secrets" and "Confidential Information" shall have the sam.e meaning as the trade secrets,
confidentiaHnformation, customers, and potential customers referred to in paragraph 59 of the
Complaint.)
ANSWER:
Deny.
INTERROGATORY NO. 14:
Unless your response to Request for Admission No. 14 is an unqualified affirmative
admission, stale, separately and specifically, the following information: (a) state, with
particularity, allY and all facts which support your failure to unqualifiedly admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support your fllihlre to nnquaJifiedly admit the request; and (c) identify any and all persons who
have information or knowledge which relates or refers to any and all of the facts which a1Jegedly
support your firllure to unqualifiedly admit Request for Admission No. 14.
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ANSWER:
Hub b~jects to this interrogatory on the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative reS"pOn5'l more appropriately addressed through deposition testimony. Subject to and
without wahing the foregoing objections, see documents produced by Hub in discovery. Hub
will produce fbrther responsive documents subj eet to the entry of an appropriate protective order.
Investigation continues.
REOUESTFOR ADMISSION NO. 15:
Hub has not lost any Customers as a result of any conduct undertaken by Delaney. (For
purposes of mis Request for Admission, "Customers" shall have the same meaning as the
customers referred to in paragraph 65 of the Complaint.)
ANSWER:
Deny.
INTERROGATORY NO. 15:
Un1ess your response to Request for Admission No. 15 is an unqualified affirmative
admission, stale, separately and specifically, the following information: (a) state, with
particularity, ao.y and all facts which support your failure to unqualifiedly admit such request; (b)
identify any;al1d all Documents relating or referring to any and all facts which allegedly support
your failure ~o unqualifiedly admit the request; and (c) identify any and all persons who have
infoouationlor 1010wledge which relates or refers to any and all of the facts which allegedly
support your fllilure to unqualifiedly admit Request for Admission No. 15.
ANSWER:
Hubotjects to this interrogatory on the grounds that it would cause unreasonable
annoyance, embarrassment, oppression, burden, or expense because the interrogatory calls for a
narrative respc'use more appropriately addressed through deposition testimony. Subject to and
without waiving 111e foregoing objections, see documents produced by Hub in discovery.
Moreover, Hub bas lost business and accounts from Reeds Cioger Brew, Fry Communications,
AC. Moore~ Ettline Foods. and Knouse Foods. Huh will produce further responsive documents
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subject to the entry of an appropriate protective order. Investigation continues into the full
nature and ext,:nt of Hub's damages on account of Delaney's conduct.
REOUEST FOR ADMISSION NO. 16:
Delaney has not removed any Information from Hub. (For pUlposes of this Request for
Admission, "Information" shall have the same meaning as the information referred to in the
second sentence "fparagraph 75 of the Complaint)
ANSWER:
Hub objec:ts to this request for admission on the grounds that the term ''removed'' is
undefined, vague, and ambiguous. To the extent this request requires an admission or denial,
Hub denies the request
INTERROGATORY NO. 16:
Unless your response to Request for Admission No. 16 is an unqualified affirmative
admission. state, 5eparatelyand specifically, the following information: (a) state, with
particularity, auy and all facts which support your failure to unqualifiedly admit such request;
(b) identify any and all Documents relating or referring to any and all facts which allegedly
support your f"ilure to unqualifiedly admit the request; and (c) identify any and all persons who
have information or knowledge which relates or refers to any and all of the facts whiCh allegedly
support your ftlilure to unqualifiedly admit Request for Admission No. 16.
ANSWER:
See Answer to Request for Admission No. 16. Hub further objects to this interrogatory
on the grounds that it would cause unreasonable annoyance, embarrassment, oppression, burden,
or expense because the interrogatory calls for a narrative response more appropriately addressed
through deposition testimony. Subject to and without waiving the foregoing objections, see
docwnents produced by Hub in discovery. Hub will produce further responsive documents
subject to the c:ntry of an appropriate protective order. Investigation continues.
REOUEST FOR ADMISSlON NO. 17:
Delaney has not removed from Hub any Property and Customer and Rate Information.
(For pUlposesofthis Request for Admission, "Property and Customer and Rate Information"
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shall have the !:arne meaning as the "property and customer and rate informati.on" referred to in
paragraph 87 ofthe Complaint)
ANSWER:
Hub o~je~.ts t.o this request for admission on the grounds that the term "removed" is
undefined, vague,. and ambiguous. To the extent this request requires an admission or denial,
Hub denies the request.
INTERROGA.I.ORY NO. 17:
Unless your response to Request for Adnrission No. 17 is an unqualified affinnative
admission, state, separately and specifically, the following information: (a) state, with
particularity, a~y and all facts which support your failure to unqualifiedly admit such request;
(b) identify any aod aU Documents relating or referring to any and all facts which alJegedly
support your failure to unqualifiedly admit the request; and (c) identify any and all persons who
have inform:m on or knowledge which relates or refers to any and all of the facts which allegedly
support your failure to unqualifiedly admit Request for Admission No. 17.
ANSWER:
See Answer to Request for Admission No. 17. Hub furfuer objects to this interrogatory
on the grounds that it would cause umeasonable annoyance, embarrassment, oppression, burden,
or expense because the interrogatory calls for a narrative response more appropriately addressed
through deposi.tie,n testimony. Subject to and without waiving the foregoing objections, see
documents produced by Hub in discovery. Hub will produce furfuer responsive documents
subject to the t'.ntry of an appropriate protective order. Investigation continues.
INTERROGATORY NO. 18
Idemi~f the "20 active accounts" referred to in paragraph 35 of Hub's Complaint in this
Civil Action.
ANSWER:
See dOt:uments produced by Hub in discovery. Hub will produce further responsive
documents sul~ect to the entry of an appropriate protective order.
15
CHI 10944619,1
05-Au;-26 09:41pm From-seylarth shaw
+3123468000
T-450 P.018/046 F-015
INTERROGATORY NO. 19:
Identify the "former Hub Group customers" referred to in paragraph 53 of Hub's
Complaint in tl:ds Civil Action.
ANSWER:
See documents produced by Hub in discovery. Hub will produce further responsive
documents subject to the entry of an appropriate protective order. Investigation continues_
Respectfully submitted,
----!A/'-J
.......
Brian P. Downey (pA 59891)
Justin G. Weber(pA 89266)
PEPPER HAMlLTON LLP
200 One Key~tone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PAl 71 08-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Daniel F. Lanciloti (Phv)
Anne E. Duprey (Phv)
Molly Eastman (Phv)
Seyfarth Shaw LLP
55 East Monroe Street, Suite 4200
Chicago, minois 60603
(312) 346-8000
Date: August 26, 2005
Altomeys for Plaintiffs Hub Group, Inc. and
Hub City Tem:rinals LLC
16
CHI1D94A/519.1
05-Au;-26 09:41pm ,rom-"ylarth ,haw
+3123468000
T-450 P019!046 ,-015
CERTIFICATE OF SERVICE
The UIlllersigned attorney certifies that she caused II true alld correct copy of the
foregoing PLAlNT1FP'S OBJECTIONS AND ANSWERS To DEFENDANT'S FIRsT SET OF REQUJ::STS
FOR ADMISSIoN AND FIRST SET OF INTERROGA TORJES to be served upon the following by
facsimile Oll this 26th day of August, 2005.
Michael R. Greco
SAUL EWING LLP
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087
~.i:YV-
CH110944619.1
Message
Page lof2
Greco, Michael R.
To:
Greco, Michael R.
Saturday, August 27,200510:35 AM
Greco, Michael R.; 'ADuprey@seyfarth.com'; 'DLanciloti@seyfarth.com';
'weberjg@pepperlaw.com'
Cc: Greene, Risa; Stief, Christopher P.
Subject: Plaintiffs' failure to comply with their discovery obligations
Importance: High
From:
Sent:
Dear Anne, Dan and Justin:
I received Plaintiff's [sic] Supplemental Objections and Responses to Defendant's First Set of Requests
fPr Production of Documents and Things and Plaintiff's [sic] Objections and Answers to Defendant's
First Set of Requests for Admission and First Set of Interrogatories, I write to address numerous
deficiencies in Plaintiffs' responses.
Document Requests
Pa.R.Civ.P. 4009. I 2(a)(2) provides that the "party upon whom the [document] request has been served
slli\n}Yi1billthirtj'days<lfterJhes~rvjce9fthe request ..._pmQ!lceor make ayail<lble to the partj'
submitting 1.I1<lfe<nteslfuose documents and thi~J!~_Sl:ril,-~jn the request towbich ther~isno
objection." Moreover, Rule 4009(b)(5) provides that in the event there are no responsive documents to a
particular request, the written responses must "state that after reasonable investigation, it has been
determined that there are no documents responsive to the request."
Thus, the rules provide plaintiffs cannot respond to the document requests, as they have done repeatedly,
by stating that they are conducting an investigation and will produce documents if they turn up.
Plaintiffs are obligated to produce responsive documents within 30 days (i.e~, no later than August 30,
2005), or to state definitively that "it has been determined that there are no documents responsive to the
request." This is particularly true in a case such as the present case in which plaintiffs sought an order
that discovery be completed on an expedited basis. Stated differently, despite seeking expedited
discovery, plaintiffs are failing to meet the deadlines imposed by the rules in non-expedited discovery.
Moreover, many of the documents that plaintiffs claim to be searching for are documents referenced in
plaintiffs' complaint. Clearly, plaintiffs' claim that they are searching for responsive documents is
disingenuous.
IDJ~rrogatories
In a large number of responses to interrogatories, plaintiffs state "See documents produced by Hub in
discovery." The responses do not specify the documents from which the answer to the interrogatory
may be ascertained. In some instances, plaintiffs refer to documents that have not been produced. This
does not comply with the rules. Specifically, Pa.R.Civ.P. 4006(b) provides that under certain limited
circumstances, "a sufficient answer to such an interrogatory shall be to specify the records from which
the answer may be derived or ascertained and to afford the party serving the interrogatory reasonable
opportunity to examine, audit or inspect those records". The comment to Rule 4006(b) explains that the
option to produce records "is not intended to give an answering party carte blanche to foist upon the
inquiring party a jumble of personal records."
8/29/2005
Message
Page 2 of2
Plaintiffs' interrogatory responses are deficient for another reason. Namely, plaintiffs do not answer the
interrogatories. Instead, plaintiffs respond to every interrogatory by stating that the information sought
is "more appropriately addressed through deposition testimony." This objection is not appropriate.
Pa.R.Civ.P. 4007.3 provides that "the fact that a party is conducting discovery, whether by deposition or
otherwise, shall not operate to delay any other party's discovery."
Demandf(tr CQIDItliance
We have been extraordinarily patient in the face of plaintiffs' failure to comply with the rules of
discovery. We have granted extension after extension, and we have attempted to resolve our disputes
informally by conferring with you telephonically and in writing. Given the fast approaching preliminary
injunction hearing, and the need to conduct discovery in advance of the hearing, we require your
unconditional assurance in writing no later than 12:00 noon, on Monday, August 29,2005 that plaintiffs
will do the following:
I.P roduce all non-privileged documents responsive to the following document requests no later than
5 :00 p.m., August 30, 2005: Document Request nos. 7, 11, 13 through 15, 20 through 22, and 24
through 34.
2.P rovide full, complete, and direct written responses to all interrogatories (specifYing documents
by Bates numbers where appropriate) no later than 5:00 p.m., August 30, 2005.
If you fail to provide the requested written assurance no later than 12:00 noon, on Monday, August 29,
2005, we will seek judicial relief as soon thereafter as possible. This written communication serves as
our notice to you that we will appear at the courthouse on Monday, August 29, 2005 to seek judicial
relief arising from plaintiffs' failure to meet its discovery obligations. Our motion may include any of
the following: (a) a request to compel production of documents and written responses to document
requests and interrogatories; (b) a request to postpone depositions until such time as plaintiffs comply
with their discovery obligations; (c) a request to postpone the preliminary injunction hearing; and (d)
any other relief we and/or the Court deems necessary and appropriate.
Thank you.
Mike Greco
Michael R. Greco
Saul Ewing LLP
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
Telephone: 610-251-5757
Facsimile: 610-408-4413
8/29/2005
Greco. Michael R.
From:
To:
Sent:
Subject:
Your message
Lanciloti, Daniel [DLanciloti@seyfarth.com]
Greco, Michael R.
Saturday, August 27,200510:57 AM
Read: Plaintiffs' failure to comply with their discovery obligations
DLanciloti@seyfarth.com
To:
Subject:
was read on 8/27/200510:57 AM.
1
Greco. Michael R.
From:
To:
Sent:
Subject:
Your message
To:
Subject:
was read on 8/27/2005 10:43 AM.
Duprey, Anne [ADuprey@seyfarth.comj
Greco, Michael R.
Saturday, August 27,200510:43 AM
Read: Plaintiffs' failure to comply with their discovery obligations
ADuprey@seyfarth.com
1
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HUB GROUP, INC. and HUB CITY
TERMINALS LLC,
Plaintiffs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
v.
No. 05.3550
MARCIA DELANEY
Defendant.
AGREED PROTECTIVE ORDER
WHEREAS, during the course of this litigation, the paJties hereto may be provided or
seek to obtain discovery of information some of which are claimed to relate to or contain trade
secrets or other confidential information;
WHEREAS, disclosure of such information might be harmful to the parties and/or to the
person or entity producing the information; and
WHEREAS, however, the parties reserve the right to object to any discovery request that
they believe should not require the production of any documents;
IT IS HEREBY ORDERED that:
I. Scope of Order. This Protective Order ("Order") shall govern the use and
disclosure of all alleged confidential, proprietary or trade secret information ("Protected
Information") produced by or on behalf of any party or furnished by any person associated with
any party on or after the date ofthis Order in any pleading, deposition, interrogatory, request for
admission, document production, subpoena, or any other disclosw-e or discovery proceeding in
this action until order of this Court. Any alleged confidential or proprietary or trade secret
information produced in discovery shall only be used for the purposes of preparing for and
conducting this action (including any appeals or retrials) and only as provided in this Order.
10946957
This Order also applies to information obtained from the computers owned by TTS and Hub
Group, Inc., respectively, and used by Jeffrey Clancy (which occurred in the course of the
litigation of the case of Hub Group, Inc. v. Jeffrey M Clancy, currently pending in the United
States District Court for the Eastern District of Pennsylvania).
2. Confidentialitv Designations. Any party, person or entity producing information
in this action may designate any document, information, thing, or discovery response as
protected by marking it at or before the time of production or <~xchange with the legend
"CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL". If it is
impracticable to mark something with such a legend (e.g., information contained on a computer
hard drive), the designation may be made in writing. Such designations may also be made in the
course of depositions. All "CONFIDENTIAL - ATTORNEYS' EYES ONLY" designations
must be based on the good faith belief that the information constitutes highly sensitive business
or commercial information. All "CONFIDENTIAL" designations must be based on the good
faith belief that the information constitutes (a) proprietary or sensitive business, personal or
financial information or (b) information subject to a legally prot<:cted right of privacy.
3. Undertaking. Any documents or materials marked either "CONFIDENTIAL-
ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" shall be held in confidence by each
person to whom it is disclosed according to the procedures set fOlth in this Order; shall be used
only for purposes of preparation, trial, and appeal of this action; shall not be used for any
business or commercial purpose; and shall not be disclosed to any person who is not authorized
to receive such information as provided herein. All documents or materials so marked shall be
carefully maintained in secure facilities and access to such information, document, material,
-2-
10946957
item. or thing shall be permitted only to persons properly having access thereto under the terms
of this Order.
4. Manner of Designation.
a. The designation of documents or other materials shall be made by written notice
in the documents or materials by affixing to it, in a manner that shall not interfere with its
legibility, the word "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL"
on all or any part of the document or thing. Wherever practicabl,e, the designation of
"CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" shall be made
prior to, or contemporaneously with, production or disclosure. Documents or information
designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL"
before entry of this Order shall be treated as "CONFIDENTIAL -- ATTORNEYS' EYES
ONL Y" or "CONFIDENTIAL" within the meaning of this Order.. The non-designating party
may challenge any designation of confidentiality in accordance with Paragraph II.
b. All deposition transcripts in this action shall be treated by all parties as
provisionally protected as "CONFIDENTIAL . ATTORNEYS' EYES ONLY" for a period of
fourteen (14) calendar days following receipt of the transcripts. Within the fourteen (14) day
period, any party may designate particular portions of a transcript as "CONFIDENTIAL" or
"CONFIDENTIAL - ATTORNEYS' EYES ONLY" information by giving written notice of
such designation to every other party to the action. To the extent possible, the party making the
designation shall be responsible for assuring those portions of the deposition transcript and
exhibits designated "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY"
are appropriately bound by the reporter. The parties should avoid designating entire transcripts
as "CONFIDENTIAL" or "CONFIDENTIAL . ATTORNEYS' EYES ONLY" where only a
- 3 -
10946957
portion thereof or the exhibits used therewith qualify for protection under this Order; to the
extent reasonably practicable, only such portions or exhibits should be designated. Failure of a
party to so designate any particular portion of the transcript establishes that such portion is not
subject to this Order.
c. In the event that a party is permitted by agreement or by order of this Court to
inspect or review documents prior to production, all documents and things produced at such
inspection will be considered to be ATTORNEYS' EYES ONLY. At the time documents and
things are actually produced, however, an appropriate designation will be placed on each
document or thing in accordance with this Protective Order.
5. Use and Access of Confidential Information.
a. CONFIDENTIAL - ATTORNEYS' EYES ONL Y~ Except as set forth herein or
in any subsequent order of the Court or by express written consent of counsel of record, no
documents, things or information designated as "CONFIDENTIAL - ATTORNEYS' EYES
ONLY" shall be, directly or indirectly, delivered, exhibited or disclosed to persons other than:
(i) the Court; or any Court personnel, including any court reporter or typist recording
or transcribing testimony in this action; and
(ii) Counsel for the parties in this proceeding and their paralegals, law clerks, and
clerical staff who are providing active assistance with this action. "Counsel," as used herein,
shall mean outside counsel for the parties who have entered appearances in this case and other
lawyers in their respective law firms who are directly involved in this litigation, but not corporate
counsel for any of the parties; and
(iii) any person identified from the four corners of the information, document or thing
itself as having authored or previously received the information, document or thing; and
- 4-
10946957
(iv) any expert or technical advisor retained or employed by any party for the
purposes ofthis action, provided that said experts or consultants have executed a certification in
accordance with Paragraph 6 below; and
(v) other persons who may be specifically designated by consent of all attorneys of
record or pursuant to an order of the Court, provided that said person has executed a certification
in accordance with Paragraph 6 below.
b. CONFIDENTIAL: Except as set forth herein or in any subsequent order of the
Court or by express written consent of counsel of record, no documents, things or information
designated as "CONFIDENTIAL" shall be, directly or indirectly, delivered, exhibited or
disclosed to persons other than:
(i) the Court; or any Court personnel, including any court reporter or typist recording
or transcribing testimony in this action; and
(ii) counsel for the parties in this proceeding and to other attorneys, paralegals, law
clerks, and clerical staff working with those attorneys;
(iii) any person identified from the four comers of the information, document or thing
itself as having authored or previously received the information, document or thing;
(iv) the parties to this action, provided, however, that disclosure may be made only to
the extent necessary for the prosecution or defense ofthis litigation;
(v) any actual or potential witness, provided that said witness has executed a
certification in accordance with Paragraph 6 below; and
(vi) any person testifying at a deposition, provided that said person has executed a
certification in accordance with Paragraph 6 below; and
.5-
10946957
(vii) any expert or technical advisor retained or employed by any party for the
purposes ohhis action, provided that said experts or consultants have executed a certification in
accordance with Paragraph 6 below; and
(viii) other persons who may be specifically designated by consent of all attorneys of
record or pursuant to an order of the Court, provided that said person has executed a certification
in accordance with Paragraph 6 below.
6. Disclosure to Witnesses and Technical Advisers and Certification of
Confidentiality. Before giving any witness, or technical adviser access to information,
documents or things designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
"CONFIDENTIAL" , the parties' Counsel who seeks to disclose such information to such
witness, or technical adviser shall require the witness or technical adviser to read and agree to be
bound by this Order by signing the following certification:
I certify my understanding that documents, infomlation, answers,
and responses are provided to me pursuant to the terms and
restrictions of the Court's Protective Order on Confidentiality in
Hub Group. Inc.. et al. v. Marcia Delaney ("Order"). I have been
given a copy and have read that Order.
I have had its meaning and effect explained to me by counsel who
provided me with the information. I understand that such
information and documents, and any copies, any notes or other
memoranda regarding information in such documents, shall not be
disclosed to others except in accordance with that Order, and shall
be used only for purposes of this proceeding.
.6-
10946957
The term "technical adviser" shall mean any person, including but not limited to a
proposed expert witness or consultant, with whom counsel may deem it necessary to consult
concerning technical, financial, or other aspects of this case for the preparation or trial thereof;
provided, however, that no party, or person currently employed by a party, or person currently
employed by any competitor shall so qualify hereunder.
7. Safeguarding Confidential Information. The recipient of any "CONFIDENTIAL
- ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" material provided pursuant to this
Order shall maintain such information in a secure and safe area Imd shall exercise due and proper
care with respect to its storage, custody and use. so long as it remains so designated.
8. Filing Procedures. Any party incorporating protl:cted material into another
document, including any document filed with the court, shall designate any affected portions of
such a document as protected pursuant to this Protective Order. In the event "CONFIDENTIAL
- ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" infomIation is included with, or the
contents thereof are in any way disclosed in any pleading, motion, deposition transcript, or other
paper filed with this Court, such information shall be filed and kept under seal by the Clerk until
further order of this Court by the following procedure: The document shall be submitted to the
Court for filing in a sealed envelope or other appropriate sealed container on which shall be
endorsed the title of this action, an indication of the nature of the contents of such sealed
envelope or other container, the words "CONFIDENTIAL INFORMATION - UNDER
PROTECTIVE ORDER" and a statement substantially in the following form:
This envelope contains information designated by one or more of
the parties to this case as "confidential" and filed in this case by
[name of party] in connection with its [motion for. . .] and is not to
- 7 -
10946957
be opened nor the contents thereofto be displayed or revealed
except by order of the Court.
All material previously designated as such that is filed with or submitted to the Court shall be
conspicuously marked "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
"CONFIDENTIAL" as set forth above in paragraph 4 prior to filing or submission. In the event
that "CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" material is
used or disclosed in any hearing or at trial, that portion of the hearing or trial proceedings at
which such material is disclosed shall be closed to the public and such material shall not lose its
protected status by reason of such use or disclosure. If any person fails to file protected
documents, things or information under seal, the party or non-party claiming confidentiality for
the documents, things, or information, or any part thereof, may request that the Court place the
filing under seal.
9. Final Disposition. Within ninety (90) days of the conclusion of this action,
including any appeals, all "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES
ONLY" information furnished pursuant to the terms of this Order, any notes reflecting Protected
Information and all copies thereof, which are not in the custody of the Court, shall be returned to
the party furnishing that Information or be destroyed (and certified by affidavit as having been
destroyed) by the party in possession thereof, provided that counsel for the parties may retain
their notes and any work product materials.
10. No Presumption of Protected Status. This Protectiw Order does not address
discovery objections nor preclude any party from moving for any rdief cognizable under the
Pennsylvania Rules of Civil Procedure or this Court's inherent powers. In addition, the entry of
this Order and the designation of any document or information as "CONFIDENTIAL -
.8-
10946957
ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" is not an admission or acknowledgment,
and may not be used to argue, that such information or document actually constitutes
confidential or trade secret information.
11. Challenging Confidential Designation. A party may oppose the designation of
protected material at any time before trial by notifying the opposing party in writing. If a party
opposes the designation of any particular document designated as "CONFIDENTIAL -
ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" the parties shall attempt to resolve the
dispute by agreement. If the parties are unable to resolve the dispute within five (5) business
days after receiving written notice, then the party opposing the designation may file a motion
with the Court to have the designation modified or removed. The burden remains on the
designating party to demonstrate that the material in question contains "CONFIDENTIAL -
ATTORNEYS' EYES ONLY" or "CONFIDENTIAL" information as described in Paragraph 2
of this Order. Until a motion is filed and resolved by the Court, all documents and materials with
which a confidential designation is being challenged shall be tn:ated in the confidential manner
that they have been designated by the producing party as prescribed in this Order.
12. Modification of Order. Nothing in this Order shall preclude any party from
applying to the Court for an appropriate modification of this Order; provided, however, that
before such an application, the parties involved shall make a good faith effort to resolve the
matter by agreement. Furthermore, the parties can agree, without approval from the Court, on
the exclusion of particular information, documents, answers, or responses from the scope of this
Order.
13. Inadvertent Production. The inadvertent production pursuant to discovery by any
party of any document or communication that is protected by privilege, work product doctrine or
-9-
10946957
statutory confidentiality will not operate as a waiver of the produdng party's right to assert a
defense to production of that document or communication, or any other document or
communication, and any such material shall be returned promptly to the party producing it on
timely written demand identifying the specific document(s). Any information, document or
thing mistakenly produced or disclosed without a "CONFIDENTIAL" or "CONFIDENTIAL _
ATTORNEYS' EYES ONLY" designation may be subsequently designated by the producing
party as "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" at any time
pursuant to the terms of this paragraph without waiving the confidential nature of the document
or information. In each such case, the designating person shall provide to all other parties notice.
either orally followed by written notice within five (5) business days or by written notice, of that
subsequent designation and a copy of the document or thing marked in accordance with this
paragraph.
14. Continuing Jurisdiction. Unless superseded by later order, this Order shall remain
in full force and effect after the termination of this litigation and the Court shall retain
jurisdiction over the parties, their attorneys, and all other persons to whom protected information
has been disclosed for the purposes of enforcing the terms of this Order andlor redressing any
violations thereof.
15. Non-Parties. The existence of this Order shall be disclosed to any non-party
producing documents or information in this action who may reasonably be expected to desire
confidential treatment of such information. Such non-parties may avail themselves of the
protections of this Order. By availing themselves of the protections ofthis Order, such non.
parties consent to the jurisdiction of this Court for purposes of enforcing the terms of this Order
only.
- 10-
10946957
-
16. Exclusions. The restrictions set forth in any of the paragraphs hereof with respect
to information, documents or things designated as "CONFIDENTIAL" or "CONFIDENTIAL _
ATTORNEYS' EYES ONLY" shall not apply to:
a. any information, document or thing which at the time of disclosure to a
receiving party is in the public domain;
b. any information, document or thing which after disclosure to a receiving
party becomes part of the public domain as a result of publication not involving a violation of
this Order; or
c. any information, document or thing which a receiving party can show was
received by it, whether before or after the disclosure, from a sourcl~ who obtained the
information lawfully and under no obligation of confidentiality to the producing party.
IT IS SO ORDERED this
day of
,2005.
Entered:
APPROVED AS TO FORM AND CONTENT.
DATED: hg~ 2..,2005
DATED:
August ]CJ, 2005
Seyfarth Shaw LLP
By: !)-:f F: Lc....2 k 1.., jlAAr
Daniel F. Lanciloti f
Attorneys for Plaintiffs Hub Group, Inc.
and Hub City Terminals LLC
3", E~7.\'; ~
By: / I'l{~
Michael R. Greco
Attorneys for Defendant Marcia Delaney
- II -
10946957
.
HUB GROUP, INC., a Delaware Corporation,
and HUB CITY TERMINALS, INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
MOTION FOR ENTRY OF AGREED PROTECTIVE ORDER
Plaintiffs Hub Group, Inc. and Hub City Terminals, Inc., by their undersigned
attorneys, request that the Court enter the Agreed Protective Order, and aver as follows:
I. This action involves allegations regarding a non-compete agreement and
this action may involve the discovery of information that relates to or contains trade secrets or
other confidential information.
2. The disclosure of such information might be harmful to the parties and/or
the person or entity producing the information.
3. The parties' counsel have executed the "Agreed Protective Order" to
govern the use of information designated as confidential, proprietary or trade secret.
4. The undersigned counsel has contacted GOunsel for Defendant Delaney,
Michael R. Greco, and was informed that Defendant Delaney has agreed to the protective order
merely to facilitate the discovery process, although Ms. Delaney does not concede that any of the
information at issue is confidential or that a protective order is warranted but does not intend to
file an opposition to this motion.
WHEREFORE. Plaintiffs Hub Group, Inc. and Hub City Terminals, Inc.
respectfully request that this Court enter the Agreed Protective Order.
Respectfully submitted,
. h I....f--
B an P. Downey (PA 59891)
ustin G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 17108-1181
(717) 255-1155
(717) 238-0:575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, llIinois 60603
(312) 346-8000
Dated: September 2, 2005
Attorneys for Plaintiffs
Hub Group, Inc, and Hub City Terminals, Inc.
-2-
CERTIFICATE OF SERVICE
I certify that on September 2, 2005, I served a copy of the foregoing Motion for
Entry of Agreed Protective Order on counsel of record by United States mail, first class postage
prepaid, addressed as follows:
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
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HUB GROUP, INC.,
A Delaware Corporation, and
HUB CITY TERMINALS, INC.
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
MARCIA DELANEY, a citizen of : NO. 2005 - 3550 CIVIL TERM
Pennsylvania
ORDER OF COURT
AND NOW, this' I ST day of SEPTEMBER, 2005, upon consideration of the
parties request to reschedule the preliminary injunction hearing scheduled for September
7,2005, a hearing on Plaintiffs Motion for a Preliminary Injunction is scheduled for
WEDNESDAY, SEPTEMBER 21, 2005. at 8:30 a.m. in Courtroom # 5 of the
Cumberland County Courthouse, Carlisle, Pa.
Edward E. Guido, 1.
~tin G. Weber, Esquire
200 One Keystone Plaza
North Front and Market Streets, P.O. Box 1181
Harrisburg, Pa. 17108
.,;baniel Lanciloti, Esquire
55 East Monroe Street
Suite 4200
Chicago, Illinois 60603
;,iichael R. Greco, Esquire
1200 Liberty Ridge Drive
Suite 200
Wayne, Pa. 19087
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HUB GROUP, INC., and
HUB CITY TERMINALS, INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
vs.
NO. 05-3550 CNIL TERM
MARCIA DELANEY,
CNIL ACTION - EQUITY
Defendant
CERTIFICATE PREREQUISITE TO SERVICE OF SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Plaintiffs Hub Group, Inc. and Hub City Terminals, Inc. certify that:
Michael R. Greco, counsel for Defendant Delaney, has informed
Plaintiffs' counsel that Defendant Delaney waives the written
notice of intent and 20-day period pursuant to Pa. R. Civ. P.
4009.21 and 4009.22.
Respectfully submitted,
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, lllinois 60603
(312) 346-8000
ria P. Downey (PA 59891)
Ju n G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Date: September 2, 2005
Attorneys for Plaintiffs
HUB GROUP, INC., and
HUB CITY TERMINALS, INC.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiffs
vs.
NO. 05-3550 CNIL TERM
MARCIA DELANEY,
Defendant
CNIL ACTION - EQUITY
To: Trailer Transport Systems, Inc.
c/o Michael R. Greco, Esquire
600 Rutherford Road
Harrisburg, Pennsylvania 17109
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
Within twenty (20) days after service of this subpoena, you are ordered by the
court to produce the following documents or things:
I. Any and all documents evidencing or relating to communications between
Marcia Delaney and TTS since January 1,2005.
2. Any and all documents evidencing or relating to any efforts by Marcia
Delaney to solicit or induce any customer or prospective customer to do business with or become
a customer of TTS.
atTTS.
3. Any and all documents describing the job that Marcia Delaney now holds
4. Any and all documents evidencing or relating to any contracts or
agreements between Marcia Delaney and TTS.
5. Any and all documents evidencing or relating to the terms and conditions
of Marcia Delaney's employment at TTS.
6. Any and all documents that Marcia Delaney provided to TTS up through
the first date of her employment with TTS.
7. Any and all documents that TTS provided to Marcia Delaney up through
the first date of her employment with ITS.
8. Any and all documents evidencing or relating to Marcia Delaney's efforts
to contact, communicate with, solicit, conduct business with, and/or take any steps preparatory to
solicit or do business with any customer or prospective customer since March I, 2005.
9. Any and all documents Marcia Delaney created on behalf of or for ITS
since March 23, 2005.
10. Any and all documents evidencing any business that Marcia Delaney has
performed, transacted, or undertaken, including documents showing sales generated, services
provided, and/or products sold through (in whole or in part) her efforts, on behalf of TTS.
DEFINITIONS
I. The term "TTS" means Trailer Transport Systems, Inc., its parents,
subsidiaries, predecessors, successors, agents and assigns.
2. The term "Hub" or Plaintiffs, or any variation thereof, means Hub Group,
Inc. and/or Hub City Terminals, Inc., and their parents, subsidiaries, predecessors, successors,
agents and assigns.
3. "And" or "or" shall be construed conjunctively or disjunctively as
necessary in order to bring within the scope of the interrogatory all responses which might
otherwise be construed to be outside its scope.
4. As used herein, any words or terms in the singular include the plural, and
words and terms in the plural include the singular.
5. The term "correspondence between" is defined as any correspondence
authored by or received by you.
6. As used herein, the term "documents" encompasses the fullest extent
permitted under the Pennsylvania Rules of Civil Procedure and means and includes any and all:
tangible object and original (any copy of any original and any copy which differs in any way
from any original) of every writing and recording, photograph, or other memorialization, of
every kind or description, whether handwritten, typed, drawn, sketched, printed or recorded by
any physical, mechanical, magnetic, optical, electronic, or electrical means whatsoever, and shall
include, by way of illustration only and not by way of limitation, notes, correspondence,
communications of any nature, telegrams, memoranda, advertisements, notebooks, surveys,
graphs, charts, plans. summaries or records of personal conversations, appointment books,
diaries, reports, publications, photographs, minutes or records of meetings, transcripts of oral
testimony or statements, reports and/or summaries of interviews, negotiations or investigations,
agreements and contracts, including all modifications and/or revisions thereof, brochures,
pamphlets, drafts, revisions of drafts and translations of any documents, tape recordings, audio
recordings. video recordings, records, e-mail, voice mail, computer records, personal digital
assistants, data bases and facsimiles to which Plaintiff now has or has had access to in the past.
Any document with any marks on any sheet or side thereof, including by way of illustration only
and not by way of limitation, initials, stamped indicia, any comment or any notation of any
character and not part of the original text, or any reproduction thereof, is to be considered a
separate document for purposes of these Requests.
-2-
INSTRUCTIONS
I. If you contend that this Request for Production includes documents,
information and/or communications that are privileged and/or not subject to discovery, you must
identify for each such document(s):
a. The type, nature and basis of the privilege claimed;
b. The type of document, its date, its title, its author, its subject matter
and substance, and, if any, its addressee, and any other particulars as may be reasonably
necessary to enable Plaintiffs to understand the nature and general purpose of the writing in
relation to the claimed privilege.
2. In producing these documents, you are requested to furnish all documents
known or available to you regardless of whether these documents were possessed directly by you
or your agents, employees, representatives or investigators, or by your attorneys or their agents,
employees, representatives or investigators.
3. If any of these documents cannot be produced in full, produce all
documents to the extent possible, specifying the reasons for your inability to produce the
remainder and stating whatever information, knowledge, or belief you have concerning the
unproduced portion.
4. If any documents requested were at one time in existence but are no longer
in existence, please state, for each such document or thing:
a. The type of document or thing;
b. The type of information contained therein;
c. The date upon which it ceased to exist;
d. The circumstances under which it ceased to exist; and
e. The identity of all persons having knowledge or who had
knowledge of the contents thereof.
5. This request is a continuing one. If, after producing documents, you
obtain or become aware of any other documents responsive to this request, you are required to
produce to Plaintiff such additional documents.
6. Any original or copy of a document containing thereon or having attached
thereto any alterations, notes, comments, or other material not included in the first document
shall be deemed a second document.
7. Unless otherwise stated in a specific request, all requests are limited to the
period from August 1,2004, to the present.
-3-
The above requested documents should be produced for inspection and copying,
at the offices of Seyfarth Shaw LLP, 55 East Monroe, Suite 4200, Chicago, Illinois 60603.
You may deliver or mail legible copies of the documents or produce things
requested by this subpoena, together with the certificate of compliance, to the party making this
request at the address listed above. You have the right to seek in advance the reasonable cost of
preparing copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within
twenty (20) days after its service, the party serving this subpoena may seek a court order
compelling you to comply with it.
This subpoena was issued at the request of the following person:
Justin G. Weber
Pepper Hamilton LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 17108-1181
(717) 255-1170
Attorney for Plaintiffs
BY THE COURT:
Date:
By:
(Prothonotary)
Sea] of the Court
-4-
CERTIFICA TE OF SERVICE
I certify that on September 2,2005, I served a copy of the foregoing document on
counsel of record by United States mail, first class postage prepaid, addressed as follows;
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
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6106515930
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.
HUB GROUl' INC. and HUB CITY
TERMlNA~: INC..
Plainti 1fs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
v.
No. 05.3550
MARCIA DE.] ANEY
Defenc ant
CONSENT DECREE
By consent of the parties, Hub Group, Inc. and Hub City Terminals Inc.
(collectively, . 'Hub"), and Marcia Delaney ("Delaney"). and non.-party Trailer Transport
Systems, J.nc. :"TI'S") (collectively, the "Parties"), it is hereby ordered as follows:
WHEREAS, on AllguS! IS, 2005, Hub filed an Amended Complaint against
Delaney in tl; l Court of Common Pleaa Cumberland County Pennsylvania, styled Hub Group.
Tnc. and Hub ::ity Terminals Inc. v. Marcia De[anfQI, Case No. 05.3550 (the "Complaint"),
alleging. Inle, alia, breach of contract, misappropriation of lI1Idl~ secrets. breach of fiduciary
duty, and con rel'!lion (the "Lawsuit");
WHEREAS. the Parties enter into this Consent Decree ("Decree"), not lIS any
admission of iability by any Party or as any admission of the merit or lack of me.rit of any claim
of any Party, lut rather as a means of avoiding the costs of litig,!tion and of fully, fairly, and
finally resoh' ng the instant dispute between the Parties;
NOW, THEREFORE, in consideration of the mutual promises and covenants as
expressed hel ein. and good and valuable consideration, it is hereby ordered, judged, and decreed
as follows:
CHI l09l66lO.1
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PAGE 05/19
. '
1. Recitals. The above recitals are heretlY incClrporated into this Decree and made a
part hereof.
2. ITS Consents To Jurisdiction. 'ITS cClnsents to the jurisdiction of the Court of
Common Plell of Cumberland County, Pennsylvania solely for purposes of the entry and
enforcement tt is Decree.
3. Activity Restriction, For a period of twelve (12) months from the date of entry of
this Decree (~l: "Restricted Time Period"), Delaney shall not, dimctly or indirectly, contact,
communicate' vith, transact any business, and/or perl'onn any services whatsoever for the
customeJll ider lifted in Exhibit A (the "Customers") attached hereto. By way of example only,
these restrictil)~s, without limitation, prohibit Delaney, directly or indirectly or in any way, from
(a) communic; ling with. assisting, or managing any person with regard to any transaction or
business invol ling the Customers; (b) contacting, calling on, or otherwise communicating or
doing busineE! with any Customers (i) l'Cgardless of whether the Customers contact TIS and/or
Delaney and I:i i) regardless of whether the communication is pel'llonal or business: (c) receiving
any bonus, in: :ntive pay, or other compensation whatsoever arising out of or relating to any of
the Customers: and (d) moving or martging for the movement olf freight for the Customers. If a
Customer coni acts or communicates with Delaney by telephone or in person, she may inform the
Customer onll that she is bound by the Consent Decree and that pursuant to the Consent Decree,
she may not (' ,mmunlcate with the Customer during the Restricted Time Period.
Notwithstandi 19 the above, nothing herein shall preclude Delanl~y from communicating with
Bob Senft wi:ll respect to personal mattcrs provided she docs nc,t otherwise violate the provisions
of Paragraph: .
2
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PAGE 06/19
4. Return of Confidentiallnfol!llation. Delaney wanants and represents that she has
returned 10 Hld, any and all of Hub's alleged trade secrets and conJidentiaJ infonnation, as
identified in p1 ragraphs 14 - 33 of the Complaint ("Confidential InfOlTllation"), in her
possession. I), Janey further warrants and represents that she does not have possession, custody,
or control of, l1d has not distributed or disclosed to any person or entity other than Hub, any
physical or el" :tronic documents or media that contain any of Hub's Confidential Information,
including, but lot limited to, Hub's pricing information (excluding e.mails that have been
produced by tt e Parties in this Lawsuit).
5. Non-Disclosure and Non-Use of Confidential Infonnation. Delaney warrants and
represents that that she has not used and will not use for any purpose (other than a legitimate
business purplse on behalf of Hub) and has not disclosed and win not disclose to TIS or its
agents or employees or any other entity any of Hub's Confidential Information. Including, but
not limited to, Hub's pricing information (excluding e.mails thaI have been produced by the
PartieS in this :.awsuit).
6. Non.Use of Confidentiallnfonnation. TIS wmants and represents that Delaney
has not di.sclc!ed to it and TIS has not used and wlll not use any of Hub's Confidential
Information,: J ,cluding, but not limited to, Hub's pricing information (excluding e-mails that
have been p!"("luced by the Parties in this Lawsuit),
7. Notification of Activity Restriction. With resp<:l:t to any Customers whom
Delancy has 1;"Mced s.ince joining 'ITS, 'ITS shall send to those Customers notice of Delaney's
Activity Restr clion, as set forth in this Decree. ThaI notice shllll be on TIS lettemead and shall
state: "As ym may know, there was a dispute between MlU'Cia Delaney and her fonner
employer. Hr.), Group. Inc. As part of the parties' resolution o:fthat dispute. Ms. Delaney may
CHI 109866,0.2
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not service yo, r account for a period of one year froIll [insert date of entry of Consent Decree].
If you have a.r:' questions, you Illay contact [insert name of appropriate TIS representative]."
With respect te any other Customers who contact Delaney andlor ITS at any time during the
Restricted TirJ~ Period, TIS shalt upon receiving such contact immediately provide the same
notice to those Customers.
8. Mutual General Release between Hub and Delanev,
(A) In ~ :msideration of the mutual covenants executed herein, the sufficiency of which is
hereby ackno',ledged, Delaney, on her own behalf and on behalf 13f her heirs, executors,
administrato~\ representatives, and assigns, does fully and completely hereby remise, release,
and forever d',1 charge Hub and its employees, agents, attorneys, affiliates, successors, assigns,
representativl:: , owners, officers, directors and shareholders (the "'Hub Releasees") of and from,
and covenant, not to prosecute or sue the Hub Releasces for or OJ, aCCOlll'lt of, all manner of
liability, acticnls, causes, suits, debts, sums of money, accounts, reckonings, bonds, bills,
damages, judi ments, executions, costs, expenses, attorneys' fees, claims and demands
whatsoever, it law or ,in equity, which Delaney has, had O! will have against the Hub Releasces
as a result of t ny act, omission and/or event from the beginning of time through the date of entry
of this Order. Without limiting the generality of the foregoing, this Release specifically includes
the claims cor Jprising the Lawsuit, any claims relating to Hub which could have been raised in
the Lawsuit,lld any claims Delaney could have brought again!it Hub, including, but not limited
to claims ansi Jg under O! relating to ber employment with Hub, claims arising unde! O! relating
to the Fair Lahor Standards Act of 1938, 29 D,S.C. ~ 201, et seq. ("FLSA"), and claims arising
under or reb;;ing to the Age Discrimination in Employment Act of 1967, as amended, 29 D,S.C.
~ 621 ("ADE,\").
4
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(B) In., Jnsideration of the mutual covenants executed herehl, the sufficiency of which is
hereby acknow ,edged, Hub, for itself, its employees, agents, attornElYs, affiliates, ~uccessors,
assigns, tepre! I ntatives, ownetS, officers, directors and shareholdets, does hereby fully and
completely !'ell ise, release, and forever discharge Delaney, her heir'S, executors, administratorn,
representatives and assigns, (the "Delaney Rcleasees") of and from, and covenants not to further
prosecute or S'l e the Delaney Releasees for or on account of, all m:anner of liability, actions,
causes, suits, Ii :bts, sums of money, accounts, reckonings, bonds, bills, damages, judgments,
executions, CC~ ts, expenses, attorneys' fees, claims and demands whatsoever, in law or in equity,
which Hub na!, had or will have against the Delaney Releasees as II result of any act, omission
and/or event fr Jill. the beginning of time through the date of entry of this Order. Without limiting
the generality Ilf the foregoing, this Release specifically includes the claims comprising the
Lawsuit, any ',iaims relating to Delaney which Hub could have nlised in the Lawsuit, any claims
regarding TIll's employment of Delaney, any claims that Delan~'y has violated the terms of her
Non-competili 3D Agreement with Hub, andlor any claims that Delaney has taken or used any of
Hub's ConfidE ntial Infonnation.
9. ~utual limited Release between Hub and TIS.
(A) In ( onsidcralio\:l of the mutual covenants executed hc,rein, the suffi.clency of which is
hereby ackno, 'Iedged, TIS, for itself, its employees, agents, attorneys, affiliates, successol'S,
assigns, repre! entatives, owners, officers, directors and shareholders, does hereby fully and
complete,ly ,." aise, release, and forever discharge the Hub Releasees, of and from, and covenants
not to proseCll;e or sue the Hub Releasees for or on account of, all manner of liability, actions,
causes, suits. debts, sums of money, accounts, reckonings, bonds, bills, damages, judgments,
executions, o:sts, expon,."., attorneys' fees, claims and demands whatsoever, in law or ill equity,
5
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PAGE 09/19
which TIS ha; had or wi.\1 have against the Hub Releasees as a res1alt of any act, omission,
and/or event fl" 1m the beginning of time through the date of entry of this Order; provided,
however, that, 'Iotwithstanding anything to the contrary, the scope Qf this Mutual Limited
Release is limil ed to the c1aiIlls comprising the Lawsuit. any claims relating to Delaney which
11'S could ha", asserted against Hub in the Lawsuit, and/or any c1:ums regarding 1TS or Hub's
employment 01 Delaney.
(B) In t onsideration of the mutual covenants executed hettin, the sufficiency of which is
hcreby aclmo," (edged, Hub, for itself, its employees, agents, attorneys, affiliates, successors,
assigns, repre!O, 'ntatives, owners, officers, directors and sharehollk:rs, does hereby fully and
completely rell ~se, release, and forever discharge TIS, its employees, agents, attorneys,
affiliates, suet:! :ssors, assigns, representatives, owners, officers, directors and shareholders (the
"'ITS Releasee s"), of and from, and covenants not to prosecute or sue the 11'S Releasees for or
on account of, ill Manner of liability, acti.ons, causes, suits, debts, sums of mOney, accounts,
reckonings, bOlds, bills, damages, judgments, executions, costs, eJl:penses, attorneys' fees,
claims and den laI1ds whatsoever, in law or in equity, which Hub has, had or will have against the
TIS Releasee! as a result of any act, omission and/or event from the beginning of time through
the date of enn y of this Order; provided, however, that, notwithstanding anything to the contrary,
the scope of th s Mutual Limited Release is limited to the claims comprising the Lawsuit, any
claims directly relating to Delaney which Hub could have assert'ed against TIS, any claims
regarding TIS s or Hub's employment of Delaney, andlor any claims that Delaney has taken or
used any of HI b's Confidential Information. This Release does not release, extinguish or affect
any claims thll Hub may have against TIS that relate in any manner to (i) Jeffrey M. Clancy
("Clancy"); (ii ,ITS's employment of Clancy; and/or (Hi) ITS's use or possession of Hub
6
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confidential 0" trade secret information that TIS may have obtained, directly or indirectly, from
Clancy.
10. Dismissal of the Lawsuit The Parties, through their respective counsel, shall sign
and Hub shall 1 ile the Praecipe to Discontinue attached hereto and Jncolporated herein as Exhibit
B, causing the ~awsuit to be dismissed with prejudice and without costs or fee." no later than
seven (7) dayl' after the Coun's entry of this Order.
11. Retention of Jurisdiction. The Court of Common Pleas of Cumberland County,
Pennsylvania. j >er Judge Edward E. Guido, or any judge sitting in his stead, shall retain
jurisdiction o/his matter to interpret and enforce this Decree. The Parties irrevocably consent
to exclusive jll isdietion and venue in the Coun of Common Pleas of Cumberland County,
Pennsylvania f lr the resolution of any disputes arising out of or rdated to the interpretation or
enforcement cd this Decree. Eaeh Party waives any objection to the jurisdiction or venue of The
Court of Coror lOll PIcas of Cumberland County, Pennsylvania for the resolution of any disputes
arising out of [' r relating to the interpretation or enforcement of this Decree. Each Party
acknowledge! :hat a violation ofthis Decree is subject to sanctions, including without limitation
being punlshec as a contempt of court.
12. CaDacitvand Authoritv. TIS and its representative who signs this Decree
warrant and l'l'I,resent that they have the legal capacity and authClrity to enter into this Decree.
Delaney Warr:llts and represents that she has the legal capacity and authority to cnter into this
Decree. Hub, nd its representative who signs this Decree warrant and represent that they have
the legal capa: ity and authority to enter into this Decree.
13. Comoromise. This Decree is a compromise of disputed claims, and is not to be
construed as IT. admission of liability or wrongdoing on the part of Delaney or TIS. who
7
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expressly dcnl' Hub's allegations and disclaim any liability. All Parties enter into this Decree in
good faith.
14. "10 Waiver. No waiver by any Patty ofa breach ohny provision of this Decree
by any other F'~ rty, or of compliance with any condition Of provision of this Decree to be
performed by a oy other Party, will operate or be constrUed as a waiver of any subsequent breach
by that Qther Pi Irty or any similar or dissimilar provisions and conditions at the same or any prior
or subsequent time. The failure Qf any Party to take any action by reason of such breach will not
deprive that P'liy of the rigbt to take action at any time while such breach continues.
15. ::omDlete AIl:~ment. This Decree contains ~he complete and entire agreement
between the Pi roes and, unless otherwise stated herein, supersede.q all prior agreements,
representation!, warranties, statements, promises, and understandi'ogs, whether oral or written.
The terms of tt is Decree are contractual and not a mere recital.
16. p,ll:reed Protective Order. This Decree shaH not impair each Party's obligations
under the Agt'~ zd Protective Order entered on September 2, 2005, which shall survive the
execution of th lS Decree.
17. Bindin~ effect. Delaney and TIS acknowledge that the non-competition, non-
solicitation, Cll lfidentiality, and other restrictions set fonh in this Decree are binding and
enforceable an I agree not to contest the validity or enforceability of these terms.
J 8. Modification. Each Party agrees that this Decree may only be modified by a
written ins\nur ent signed by all Parties and that no party will assert any claim against the other
based on any il.leged agreement affecting or related to the terms of this Decree not in writing and
signed by all I'll'tles. Each Party acknowledges that reliance on any such agreement not in
writing would )e unreasonable.
8
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19. :hoice of Law. This Decree shall be governed by arLd interpreted in accordance
with the substll nive law of the Commonwealth of Pennsylvania, without regard to its law of
conflicts.
20. :onsttucUon. This Decree shall not be construed more strictly against one Party
than against an lther by virtue of the fact that an Initial draft of It may have been prepared by
counsel for ODE of the Parties.
21. :ounteroarts. This Decree may be executed by facsimile and in two or more
counterparts, ." ICh of which shall be deemed an original, but all of which together shall constitute
a single agreell\ent.
22. Successors. This Decree shall be binding upon and shall inure to the benefit of
the Parties and their respective predecessors, successors, and assigns.
23. Beneficiaries. This Decree is intended to confer rights and benefits only on the
Parties and isn ot intended to confer any right or benefit upon any other person or entlty. No
person or entit:' other than the Parties shall have any legally enfolrceable right under this Decree.
24. :aotlons. The captions in this Decree are for convenience and organization only,
and are not inl. nded to be a part of the body of this Agreement, Tlor are they intended to be
referred to in .: mstruing the provisions of this Decree.
25. Enforcement. ElIccpt as provided above. in the event that any of the Parties takes
action, i,n law ( r equity, for an alleged breach of the Decree, the prevaUing party shall be entitled
to its reasonat'l ~ attorneys' fees and costs incurred in connection with such action, such
attorneys' fee" and costs to be paid by the nonprevailing, breaching party or partje.~.
9
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EACH PART'! HERETO ACKNOWLEDGES THAT SHE OR IT HAS READ TIllS
CONSENT D]: CREE, THAT SHE OR IT HAS DISCUSSED TInS CONSENT DECREE AND
ITS TERMS ~, ITH COUNSEL OF HER OR ITS CHOOSING; TIfAT SHE OR IT FULLY
KNOWS, UNl: ERSTANDS, AND APPRECIATES THE CONTENTS AND EFFECT OF THIS
CONSENT DI:CREEj AND THAT SHE OR IT EXECUTES TIDS: CONSENT DECREE
YOLUNTARIl.Y AND OF HER OR ITS OWN FREE WILL.
DELANEY Ft RTliER ACKNOWLEDGES THAT SHE HAS BEEN ACCORDED ALL OF
HER RIGHTS UNDER THE OLDER WORKERS BENEFITS PROTECflON Act OF 1990
("OWBPA") JIND, IN PARTICULAR, THAT HER WANER OF RIGHTS UNDER THE
MUTUAL GElffiRAL RELEASE BETWEEN HUB AND DELANEY IS KNOWING AN])
YOLUNTAR'i, THAT SHE UNDERSTANDS ALL OF THE IUGaTS AND OBUGATIONS
CONTAINED [N lHIS CONSEN'I' DECREE, THAT HER WAIVER DOES WAIVE ANY
RIGHTS OR I: LAIMS ARISING AFTER TIm DATE SHE EXEc::lJTES 1'HJS CONSENT
DECREE, THi.T THE CONSIDERATION BEING PROVIDED TO HER IS IN ADDITION
TO ANYTHm G OF Y ALUE TO WHICH SHE IS ALREADY Bl'ITITLED, THAT SHE HAS
BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER HER AGREEMENT TO mE TERMS
OF THlS CONSENT DECREE, THAT SHE HAS BEEN ADVISED TO CONSULT AN
A ITORNEY I ~ CONNECTION WITH THE SAME AN]) HAS DONE SO, THAT SHE HAS
BEEN GIVEN SEVEN (7) DAYS IN WHICH TO REVOKE HER AGREEMENT TO THE
TERMS OF TIITS CONSENT DECREE, AND THAT, PURSUANT TO TInS CONSENT
DECREE. SHE, IS RECEIVING CONSIDERATION ABOVE mAT TO WHICH SHE
WOULD OTH~WlSB BE ENTITLED AND WHICH SHE WOULD NOT RECEIVE BUT
FOR HER AS! ENT TO THIS CONSENT DECREE.
THIS COURT, FURTHER, FINDS AND DECLARES THAT TIrn TE.RMS Of THIS
CONSENT o:E CREE, INCLODING TIlE MtJTU AL GENERAl. RELEASE BETWEEN HUB
AND DELANEY, AND, IN PARTICULAR, DELANEY'S RELEASE OF ANY AND ALL
CLAIMS AG,l INST HUB UNDER THE FLSA, AND THE MUTUAL LIMITED RELEASE
BETWEEN HUB AND TIS, TO BE FAIR AND REASONABLE.
ENTERED: T lis _ day of
Judge Edward E. Guido
eMl J0956630.2
10
CONSENTED TO BY:
HUB GROUP, INe.
By .P~~ ~kl
Its ~8Gre-h.r'l
Dated ~/i}..C)/d-O/5)5
(
HUB CITY TERMINALS INC.
By .D-::-/./ -/y~
t7
Its 4$-f. >e-e:-t't!:-T;",,/
Dated '7 ~l> /,.I.C)C:> S-
MARCIA DELANEY
Dated
TRAILER TRANSPORT SYSTEMS, INC.
By
Its
Dated
CH I 10956630.2
11
CONSENTED TO BY:
HUB GROUP, INC.
By
Its
Dated
HUB CITY TERMINALS INC.
By
Its
Dated
~/h;) JJfllhor
MARCIA DELANEY
Dated q /":;6 /c700S:
I /
TRAILER TRANSPORT SYSTEMS, INC.
By
Its
Dated
11
CHI 10956630.2
CONSENTED TO BY:
HUB GROUP, INC.
By
Its
Dated
HUB CITY TERMINALS INC.
By
Its
Dated
MARCIA DELANEY
Dated
TRAILER TRANSPORT SYSTEMS, INe.
BY~~~-
Its F>l'.e..,'l..l....... 1-
Dated 4.} 2,.0 I )..01) S'
11
CHI 10956630.2
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PAGE 17/19
1. A.C. M lOre
2, ACCO :hain & Lifting Products
3, Ames 'r rue Temper Hardware
4. Anvillt .temational, Inc.
5. Beck Manufacturing
6. ,8erwkJ: Industries
7. Bon To 1 Department Stores
8. BumhlU n Corp.
9. Carlisi., Syntec Systems
10, Carlisl! Tue and Wheel Co.
11. Chroml Acrylics
12: Clark I; istribution Systems
13. Dodge J ~egopu1
14, Ettlinc ] 'oods Corporation
15. First QI ality Products, Ine.
16. Fry COI1lllunications
17. Genel1J Moton
18. Global. :>rganic Brands, LLC
19. Good J' xxl
20. Grabau Packaging
21. Jersey ~ hare Steel
22. Knous,: Foods, Jnc.
23. L W B . ~efractories
24. Merit ],anufacturing Corporation
25. Nissan . 'oods
CHI 109'6H6,]
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PAGE 18/19
,
"
'.
~
,,1
-'4
26. Quaker ::>ats
27. Reeds ': ,inger Brew
28. Schindlll' Elevator
29. Sealed. \ir Corporation
30. T B W:ods. Inc.
31. Taylor..1Vharton
32. Woodst ream Corporation
2
CHI 10956176.1
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PAGE 19/19
..
HUB GROUP, INC., a Delaware Corporation,
and HUB ern TERMINALS, INC., a
Delaware Corp )ratlon,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO. 05-3~;50
CIVIL TERM
MARCIA DEL ANEY, a citizen of Pennsylvania,
CIVJL ACTION - EQUITY
Defendant.
plUII'.ClPE TO DISCONTINUE
TO THE PRO :'HONOT ARY:
Please nark the above-captioned matter discontinued. with prejudice, pursuant to PA.
R.C.P. 229. r Ie parties shall bea~ their own Cosl~ and attorneys' fees.
Brian P. Downey (pA 59891)
Juatin G. Weber (PA 89266)
PEPPER HAMn.TON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-115~;
(717) 238-OS7~; (Fax)
dowllt!)lb@pepperlaw.com
weberjg@pepperlaw.com
Daniel P. Lanciloti (pro hac vice)
Anile E. Duprey (pro hac vice)
Molly EastmaTl (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street. Suite 4200
Chicago, filinois 60603
(312) 346-8000
Dated: Septc:1 nber _. 2005
Attorneys for Plaintiffs
Hub Group, Inc. and Hub City Terminals, Inc.
.
CFfI 1095(11153.2
, D'-~--
,\,::",^,.
,-. "'""'Jd
)'J{fi -
HUB GROUP, INC., a Delaware Corporation,
and HUB CITY TERMINALS, INe.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
MOTION FOR ENTRY OF CONSENT DECREE
Plaintiffs Hub Group, Inc. and Hub City Terminals, Inc., (collectively "Hub") by
their undersigned attorneys, request that the Court enter the Consent Decree that is attached as
Exhibit A to this Motion, and aver as follows:
I. On August 15,2005, Hub filed an Amended Complaint in the above-
referenced action alleging, inter alia, breach of contract, misappropriation of trade secrets,
breach of fiduciary duty, and conversion;
2. The parties and non-party Trailer Transport Systems, Inc, (collectively
"Parties") have entered into and executed the Consent Decree as a means of avoiding the costs of
litigation and of fully, fairly, and finally resolving the instant dispute between the Parties.
3. The undersigned counsel has contacted counsel for Defendant Delaney
and Trailer Transport Systems, Inc., Michael R. Greco, and was informed that Mr. Greco concurs
in this motion.
WHEREFORE. Plaintiffs Hub Group, Inc. and Hub City Terminals, Inc.
respectfully request that this Court enter the Consent Decree.
Respectfully submitted,
rian . Downey CPA 59891)
J In G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, P A 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weberjg@pepperlaw.com
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000
Dated: October 3, 2005
Attorneys for Plaintiffs
Hub Group, Inc. and Hub City Terminals, Inc.
-2-
CERTIFICATE OF SERVICE
I certify that on October 3, 2005, I served a copy of the foregoing Motionfor
Consent Decree on counsel of record by United States mail, first class postage prepaid,
addressed as follows:
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
'e9120/2005 16: 10
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PAGE 04/19
HUB GROUP INC. and HUB CITY
TERMINAU; INC.,
Plainti I fs,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
v,
No. 05-3550
MARCIA DEI "ANEY
Defenc an\.
CONSENT DECREE
By consent of the partics, Hub Group, Inc. and Hub City Tenninals Inc.
(collectively, 'Hub"), and Marcia Delaney ("Delaney"), and non-party Trailer Transport
Systems, Inc. :'TIS") (collectively, the "Parties"), it is hereby ordered as follows:
WHEREAS, on August 15, 2005, Hub filed an Amended Complai,nt against
Delaney in tt:1 Comt of Common Pleas Cumberland County Pennsylvania, styled Hub Group.
lnc and Hub ~ily Terminals Inc. v. Marcia Delaney, Case No. 05-3550 (the "Complaint"),
alleging, inter alia, breach of contract, misappropriation of trade secrets, breach of fiduciary
duty, and eOll1ers;on (the "Lawsuit");
WHEREAS, the Parties enter into this Consent Decrec ("Decree"), not as any
admission of iability by any Party or as any admission of the merit or lack of me,rit of any claim
of any Party, lut !ather as a means of avoiding the costs of litigation and of fully, fairly, and
finally resol\' ng the instant dispute between the Parties;
NOW, THEREFORE, in consideration of the mutual promises and covenants as
expressed hel em, and good and valuable consideration, it is hereby ordered, judged, and decreed
as follows:
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1. Recitals. The above recitals are hereby incorpomted into th,is Decree and made a
part hercof.
2, TTS Consents To Jurisdiction. TIS consents to the jurisdiction of the Court of
Common Pleu of Cumberland County, Pennsylvania solely for purposes of the entry and
enforcement It is Decree.
3. Activitv Restriction. For a period of twelve (12) months from the date of entry of
this Decree (th; "Restricted Time Period"), Delaney shall not, directly or indirectly, contact,
communicate. vith, tmnsact any business, and/or perform any serviccs whatsoever for the
customers ider tified in Exhibit A (the "Customers") attached hereto. By way of example only,
these restricti!] as, without limitation, prohibit Delaney, directly or indirectly or in any way, from
(a) communi" ting with, assisting, or managing any person with regard to any transaction or
business invol, ling the Customers; (h) contacting, calling on, or otherwise communicating or
doing business with any Customers (i) regardless of whether the Customers contact TIS and/or
Delaney and Ii i) regardless of whether the communication is personal or business; (c) receiving
any bonus, in: .ntive pay, or other compensation whatsoever arising out of or relating to any of
thc Customers: and (d) moving or arranging for the movement of freight for the Customers. If a
Customer COli' acts or communicates with Delaney by telephone or in person, she may inform the
Customer onl) that she is bound by the Consent Decree and that pursuant to the Consent Decree,
she may not ".mmunicate with the Customer during the Restricted Time Period.
Notwithstandi,lg the above, nothing herein shall preclude Delaney from communicating with
Bob Senft wi:11 respect to personal mattcrs provided she does not otherwise violate the provisions
of Paragraph: '
2
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PAGE 06/19
4. Return of Confidentiallnfonnation. Delaney warrants and represcnts that she ha.~
returned 10 HI,I) any and all of Hub's alleged trade secrets and confidential infonnation, as
identified in p~ ragraphs 14 - 33 of the Complaint ("Confidential Information"), in her
possession. 01 ,laney further warrants and represents that she does not have possession, custody,
or control of, l1d has not distributed or disclosed to any pelllon or enti\)' other than Hub, any
physical or el" :tronic documents or media that contain any of Hub's Confidential Infonnation,
including, but lot limited to, Hub's pricing infonnation (excluding e-mails that have been
produced by t~ e Partics in this Lawsuit).
5. Non-Disclosure and Non-Use of Confidential Information. Delaney warrants and
represents that that she has not used and will not use for any purpose (o\her than a legitimate
business purpc se on behalf of Hub) and has not disclosed and will not disclose to TIS or its
agents or employees or any other entity any of Hub's Confidential Infonnation, including, but
not limited to. Hub's plicing infonnation (excluding e-mails that have been produced by the
Parties in this .awsuit).
6. Non-Use of Confidentiallnfonnation. TIS warrants and represents that Delaney
has not di,Sclc ~ ed to it alld TIS has not used and will not use any of Hub's Confidential
Infonnation, :lIcluding, but not limited to, Hub's pricing information (excluding e-mails that
have been pn),luced by the Parties in this Lawsuit).
7. Notification of Activitv Restriction. With respect to any Customelll whom
Delaney has ::i :rviced s,ince joining ITS, TIS shall send to those Customers notice of Delaney' s
Activity Restr ction, as sel forth in this Decree. That notice shall he on TIS letterhead and shall
state: "As YOl may know, there was a dispute bctween Marcia Delaney and her fonner
employer. Ht.I, Group, Inc. As part of Ihe parties' resolution of that dispute. Ms. Delaney may
3
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PAGE 07/19
not service yOt:r account for a period of one year from [inscrt date of entry of Consent Decree].
If you have a.r:' questions, you may contact [insert name of appropriate TIS representative],"
With respect Ie any oth,er Customers who contact Delaney and/or TIS at any time during the
Restricted Tin ~ Period, TTS shalt upon receiving such contact immediately provide the same
notice to thos,~ Customers.
8. Mutual General Release between Hub and Delanev,
(A) In ~ :msideration of the mutual covenants executed herein, the sufficiency of which is
hereby ackno', ledged, Delaney, on her own behalf and on behalf of her heirs, executors,
administrator,; representatives, and assigns, does fully and completely hereby remise, release,
and forever d:, charge Hub and it~ employees, agents, attorneys, affiliates, successors, assigns,
representativE:: , oWners, officers, directors and shareholders (the "Hub Releasees") of and from,
and covenant, not to prosecute or sue the Hub Releasces for or on accolll'lt of, all manner of
liability, acticn IS, causes, suits, debts, sums of money, accounts, reckonings, bonds, bills,
damages,judgments, executions, costs, eJ\penses. attorneys' fees, claims and demands
whatsoever, ir law or in equity, which Delaney has, had or will have against the Hub Releasccs
as a result of" ny act, omission and/or event from the beginning of time through the date of entry
of this Order. Without limiting the generality of the foregoing, this Release specifically includes
the claims cOI'lprising the Lawsuit, any claims relating to Hub which could have been raised in
the Lawsuit,lld any claims Delaney could have brought against Hub, including, but not limited
to claims ansi, 19 under or relating to her employment with Hub, claims arising under or relating
to the Pair L1i1lOr Standards Act of 1938, 29 U.S.C. ~ 201, et seq. ("FLSA"), and claims arising
under or rela::i ng to the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
~ 621 ("ADE.I.").
4
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(B) In ,; lnsideration of the mutual covenants e~ecuted herein, the sufficiency of which is
hereby acknoVl,edged, Hub. for itself, its employees, agents, attorneys, affiliates, successors,
assigns, repreH ntatives, owners, officers, directors and shareholders, does hereby fully and
completely ren,;se, release, and forever discharge Delaney, her heirs, executors, administrators,
representatives and assigns, (the "Delaney Rcleasees") of and from, and covenants not to further
prosecute or s' J e the Delaney Releasees for or on account of, all manner of liability, actions,
causes, suits, II :bIS, sums of money, accounts, reckonings, bonds, bills, damages, judgments,
executions, co.' IS, expenses, attorneys' fees, claims and demands whatsoever, in law or in equity,
which Hub ha!, had or will havc against the Delaney Releasees as a result of any act, omission
and/or event Ir l'll the beginning of time through the date of entry of this Order. Without limiting
the generality, ,f the foregoing, this Release specifically includes the claims comprising the
Lawsuit, any ,;Iaims relating to Delaney which Hub could have raised in the Lawsuit, any claims
regarding TII;' s employment of Delaney, any claims that Delaney has violated Ihe tenllS of her
Non-competili)n Agreement with Hub, and/or any claims that Delaney has taken or used any of
Hub's Confid(ntial Information.
9. Mutual Limited Release between Hub and ITS.
(A) In ( onsidcration of the mutual covenants executed herein, the sufficiency of which is
hereby acknm 'ledge<!, TTS, for itself, its employees, agents, attorneys, affiliates, successors,
assigns, rep~,' entatives, owners, officers, directors and shareholders, does hereby fully and
completely re' nise, release, and forever discharge the Hub Releasees, of and from, and covenants
not to prosecll:e or sue the Hub Releasees for or on account of, all manner of liability, a,ctions,
causcs, suits, debts, sums of money, accounts, reckonings, bonds, bills, damages, judgments,
executions. c,:: sts, expenses, attorneys' fees, claims and demands whatsoever, in law or in equity.
5
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PAGE 09/19
which ITS ha; had or will have against the Hub Releasccs as a result of any act, omission,
and/or event fn 1m the beginning of time through the date of entry of this Order; provided,
bowever, that, : ,otwithstanding anything to the contrary, the scope of this Mutual Limited
Release is Jimil ed to the claims eomprising the Lawsuit, any claims relating to Delaney which
TTS could ha" ~ asserted against Hub in the Lawsuit, and/or any claims regarding TTS or Hub's
employment of Delaney.
(B) In ( onsideration of the mutual covenants executed herein, the sufficiency of which is
hcreby ackno" ledged, Hub, for itself, its employees, agents, attorneys, affiliates, successors,
assigns, repre'" 'ntatives, owners, officers, directors and shareholders, does hereby fully and
completely rell ~se, release, and forever discharge TIS, its employees, agents, attorneys,
affiliates, suce" ,ssors, assigns, representatives, owners, officel1;, directors and shareholders (the
"ITS Releasee s"), of and from, and covenants not to prosecute or sue the TTS Releasees for or
on account of 1I1 manner of liability. actions, causes, suits, debl', sums of money, accounts,
reckonings, bo lds, bills, damages. judgments, executions, costs, expenses, attorneys' fees,
claims and den,ands whatsoever, in law or in equity, which Hub has, had or will have against the
TIS Releasees as a result of any act, omission and/or event from the beginning of time through
thc datc of cnll y of thi.s Order; provi.ded, however, that, notwithstanding anything to the contrary,
the scope of tll,s Mutual Limited Release is limited to the claims comprising the Lawsuit, any
claims directly relating to Delaney which Hub could have asserted against TIS, any claims
regarding TTS s or Hub's employment of Delaney, and/or any claims that Delaney has taken or
used any of HI, b's Confidential Information. This Release does not release, extinguish or affect
any claims tha Hub may have against TIS that relate in any manner to (i) Jeffrey M. Clancy
("Clancy"): (ii ,ITS's employment of Clancy; and/or (Iii) ITS's use or possession of Hub
6
CHI lO956630.2
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confidential or trade secret information that TIS lUay have obtained, directly or indirectly, from
Clancy.
10. Dismissal of the Lawsuit. The Parties, through their respectivc counscl, shall sign
and Hub shall j ile the Praecipe to Discontinue attached hereto and incorporated herein as Exhibit
B, causing the ~awsuit to be dismissed with prejudice and without costs or fees, no later than
seven (7) day! after the Court's entry of this Order.
1 1. Retention of Jurisdiction. The Court of Common Pleas of Cumberland County,
Pennsylvania, j 'er Judge Edward E. Guido, or any judge sitting in his stead, shall retain
jurisdiction of :his matter to interpret and enforce this Decree. The Parties irrevocably consent
to exclusive jll isdiction and venue in thc Court of Common Pleas of Cumberland County,
Pennsylvania f lr the resolution of any disputes arising out of or related to the interpretation or
enforcement cd this Decree. Each Party waives any objection to the jurisdiction or venue of The
Court of Comr Ion PIcas of Cumbcrland County, Pennsylvania for the resolution of any disputes
arising out of c r relating to the interpretation or enforcement of this Decree. Each Party
acknowledge, :hat a violation ofthis Decree is subject to sanctions, including without limitation
being punishe[ as a conternpt of court.
12. Capacity and Authoritv. TIS and its representative who signs this Decree
warrant and n'l ,resent that they have the legal capacity and authority to enter into this Decree.
Delaney Warr:llts and represents that she has the legal capacity and authority to enter into this
Decree. Hub a nd its representative who signs this Decree warrant and represent that they have
the legal capa; ity and authority to enter into this Decree.
13. Comoromise. This Decree is a compromise of disputed claims, and is not to be
construed as at, admission of liability or wrongdoing on the part of Dclaney orTIS, who
7
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PAGE 11/19
expressly dcn~r Hub's allegations and disclaim any liability. All Parties enter into this Decree in
good faith.
14. '<0 Waiver. No waiver by any Party of a breach of any p.rovi,sion of this Decree
by any other F'rty. or of compliance with any condition or provision of this Decree to be
performed by a ny other Party, will operate or be construed as a waiver of any subsequent breach
by that other P'lrty or any similar Or dissimilar provisions and conditions at the same or any prior
or subsequent 1 ime. The failure of any Party to take any action by reason of such breach will not
deprive that P'I iy of the ri,ght to take action at any time while such breach continues.
IS. ::omolete A2reement. This Decree contains ~he complete and entire agreement
between the P a mes and, unless otherwise stated herein, supersedes all prior agreements,
representations. warranties, statements, promises, and understandings, whether oral or written.
The terms of tt is Decree are contractual and not a mere recital.
16. t\.2reed Protective Order. This Decree shall not impair each Party's obligations
under the Ag~~ ~d Protective Order entered on September 2, 2005, which shall survive the
execution of 111 is Decree.
17. Bindilll?: effect. Delaney and TIS acknowledge that the non-competition, non-
solicitation, eOlfidentiality, and other restrictions set forth in this Decree are binding and
enforceable all, I agree not to contest the validity or enforceability of these terms.
18. Modification. Each Party agrees that this Decree may only be modified by a
written instrUlr ent signed by all Parties and that no Party will a.~sert any claim against the other
based on any il. ,leged agreement affecting or related to the terms of this Decree not in writing and
signed by all P Inies. Each Party acknowledges that reliance on any such agreement not in
writing would )e unreasonable.
8
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19, ::hoice of Law. This Decree shall be governed by and interpreted in accordance
with the substilltive law of the Commonwealth of Pennsylvania, without regard to its law of
conflicts.
20_ ::onstruction. This Decree shall not be construed more striclly against one Party
than agai,nst all lther by virtue of the faetlhat an initial draft of it may have been prepared by
counsel for OnE of the Parties.
21. ::ounteroarts. This Decree may be executed by facsimile and in two or more
counterparts, ,>: och of which shall be deemed an original, but all of which together shall constitute
a single agreen :ent.
22. Successors. This Decree shall be binding upon and shall inure to the benefit of
the Parties and their respective predecessors, successors, and assigns.
23. Beneficiaries. This Decree is intended to confer rights and benefits only on the
Parties and is not intended to confer any right or benefit upon any othcrperson or entity. No
person or entil:' other than the Parties shall have any legally enforceable right under this Decree.
24. ::aotions. The captions in this Decree are for convenience and organization only,
and are not inl, nded to be a part of the body of this Agreement, nor are they intended to be
referred to in " mstruing the provislons of this Decree.
25. Enforcement. Except as provided above, in the event that any of the Parties takes
action, in law c r equity, for an alleged breach of the Decree, the prevaUing pany shall be entitled
to its reasonat'l" attorneys' fees and costs incurred in connection with such action, such
attorneys' fee,; and costs to be paid by the nonprevailing, breaching party oe parties.
9
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EACH PART'! HERETO ACKNOWLEDGES THAT SHE OR IT HAS READ TInS
CONSENT m CREE; THAT SHE OR IT HAS DISCUSSED TIllS CONSENT DECREE AND
ITS TERMS ~\ lTH COUNSEL OF HER OR ITS CHOOSING; THAT SHE OR IT FULLY
KNOWS, UNl: ERSTANDS, AND APPRECIATES THE CONTENTS AND EFFECI' OF TIllS
CONSENT OJ: CREE; AND TIlAT SHE OR IT EXECUTES THIS CONSENT DECREE
VOLUNT ARll.Y AND OF HER OR ITS OWN FREE WILL.
DELANEY Ft RTHER ACKNOWLEDGES 1HA T SHE HAS BEEN ACCORDED ALL OF
HER RIGHTS UNDER THE OLDER WORKERS BENEFITS PROTECTION ACT OF 1990
("OWBPA");I ND, IN PARTICULAR, THAT HER W AJVER OF RIGHTS UNDER THE
MUTUAL GEl ffiRAL RELEASE BETWEEN HUB AND DELANEY IS KNOWING AND
VOLUNTAR'(, THAT SHE UNDERSTANDS ALL OF urn RIGHTS AND OBUGATIONS
CONTAINED [N THIS CONSENT DECREE, THAT HER W AlVER DOES W AlVE ANY
RIGHTS OR <: LAIMS ARISING AFI'ER TIIE DATE SHE EXECUTES THIS CONSENT
DECREE, TIII.T TIiE CONSIDERATION BEING PROVIDED TO HER IS IN ADDITION
TO ANYTHm G OF V AWE TO WHICH SHE IS ALREADY ENTIn.ED, THAT SHE HAS
BEEN GIVEN AT LEAST 21 DAYS TO CONSIDER HER AGREEMENT TO THE TERMS
OF THIS CON SENT DECREE, TBA T SHE HAS BEEN ADVISED TO CONSULT AN
A TIORNEY II/CONNECTION WITH TIlE SAME AND HAS DONE SO, TIlA T SHE HAS
BEEN GIVEN SEVEN (7) DAYS IN WHICH TO REVOKE HER AGREEMENT TO THE
TERMS OF TIllS CONSENT DECREE, AND THAT, PURSUANT TO THIS CONSENT
DECREE, SHE, IS RECEIVING CONSIDERA nON ABOVE TIlA 1'1'0 WHICH SHE
WOULD OTH ~RWTSE BE ENTIn.ED AND WHICH SHE WOULD NOT RECEIVE BUT
FOR HER AS5 ENT TO THIS CONSENT DECREE.
THIS COURT, FURTHER, FINDS AND DECLARES THAT THE TERMS OF THIS
CONSENT m CREE, INCLUDING THE MUTUAL GENERAL REIEASE BETWEEN HUB
AND DELANEY, AND, IN PARTICULAR, DELANEY'S RELEASE OF ANY AND ALL
CLAIMS AG.1 INST HUB UNDER THE FLSA, AND THE MUTUAL LIMITED RELEASE
BETWEEN Him AND TIS, TO BE FAIR AND REASONABLE.
BN"rnRED T,,7~"'"f odk, c-~
Judge Edward E. Guido
10
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HUB CITY TERMINALS INC.
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MARCIA DELANEY
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TRAILER TRANSPORT SYSTEMS, INC.
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09/20/2005 16:10
6106515930
PAGE 17/19
1. A.C. M lore
2, ACCO :hain & Lifting Product~
3, Ames 'r rue Temper Hardware
4. Anvil l1.temational, Inc.
5. Beck Manufacturing
6. Berwid : Industries
7. Bon To t Department Stores
8. BUmhl1.l n Corp,
9. CarlisI" Syntec Systems
10. Carlisl,! Tire and Wheel Co,
11. Chromt Acrylics
12. Clark I: istribution Systems
13. Dodge] tegopu1
14. Ettline ] 'oods Corporation
15. First Ql ality Products, Inc.
16. Fry COl1munications
17. Gener!! Motors
18. Global' )rga,nic Brands, LLC
19. Good F lod
20. Grabau Packaging
21. J ersey ~ hore Steel
22. Knous,; Foods, Inc.
23. L W B , tefractories
24, Meritl,anufacturing Corporation
25_ Nissan _ 'oods
CHll09S6176,l
89/28/2885 16:18
6106515938
PAGE 18/19
26. Quaker :)ats
27. Reeds ':i.nger Brew
28. Schindllr Elevator
29. Sealed, ,ir Corporation
30. T B W:ods, Inc.
31. Taylor.. ;Vharton
32. W oodst ream Corporation
2
CHl 10956176.1
09/20/2005 16:10
6106515930
PAGE 19/19
HUB GROUP, INC., a Delaware Corporation,
and HUB crn TERMINALS, INC" a
Delaware Corp Jration,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
v.
NO, 05-3550
CIVIL TERM
MARCIA DEI ANEY, a citizen of Pennsylvania,
CIVIL ACTION - EQUITY
Defendant.
PRAECIPE TO DISCONTINUE
TO THE PRO':HONOTARY:
Please nark the above-captioned matter discontinued, with prejudice, pursuant to PA.
RC,P_ 229. "lC parties shall beat their own costs and attorneys' fees.
Brian P. Downey (PA 59891)
Justin G_ Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box 1181
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepper/ow.com
weberjg@pepper/aw.com
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, llIinois 60603
(312) 346-8000
Dated: SepWI nber _, 2005
Attorneys for Plaintiffs
Hub Group, Inc. and Hub City Terminals, Inc.
CH11095Glti3.2
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HUB GROUP, INC., a Delaware Corporation,
and HUB CITY TERMINALS, INe.,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
NO. 05-3550 CIVIL TERM
MARCIA DELANEY, a citizen of
Pennsylvania,
CIVIL ACTION - EQUITY
Defendant
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Please mark the above-captioned matter discontinued, with prejudice, pursuant to
Pa. R.C.P. 229. The parties shall bear their own costs and attorneys' fees.
tJl-
Bri n P. Downey (PA 59891)
J in G. Weber (PA 89266)
PEPPER HAMILTON LLP
200 One Keystone Plaza
North Front and Market Streets
Post Office Box I 18 I
Harrisburg, PA 17108-1181
(717) 255-1155
(717) 238-0575 (Fax)
downeyb@pepperlaw.com
weber) g@pepperlaw.com
Daniel F. Lanciloti (pro hac vice)
Anne E. Duprey (pro hac vice)
Molly Eastman (pro hac vice)
SEYFARTH SHAW LLP
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
(312) 346-8000
Dated: October 13, 2005
Attorneys for Plaintiffs
Hub Group, Inc. and Hub City Terminals, Inc.
CERTIFICATE OF SERVICE
I hereby certify that on October 13, 2005 a true and correct copy of the foregoing
Praecipe to Discontinue was served via First Class U.S. mail upon the following:
Michael R. Greco, Esquire
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087-5569
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J in G. Weber
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