SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
I, Devon Archer, declare as follows:
1. My name is Devon Archer. I am a licensed attorney in the State of California, admitted to the Bar of the State of California and bearing State Bar Number 301462. I am a Senior Associate at the law firm of Calderwood & Harkness LLP, located at 777 South Flower Street, Suite 4200, Los Angeles, California 90017. I am one of the attorneys of record for Defendant and Cross-Complainant Aurelius Media Americas Inc. ("AMA") in this action. I make this declaration based upon my personal knowledge and upon my review of the pleadings, discovery, and the record in this matter. If called as a witness, I could and would competently testify to the matters stated herein.
2. I have been the lead associate on this matter since the engagement of Calderwood & Harkness LLP by AMA first opened on November 1, 2022. This matter is identified on the firm's internal docketing and billing systems as C&H Matter No. 1017-00004. In my capacity as lead associate, I have been responsible for the day-to-day management of this litigation, including the drafting and filing of pleadings, the review and production of documents in connection with discovery, and communications with opposing counsel. I am fully familiar with the pleadings, discovery, and overall litigation posture in this action, including the Cross-Complaint filed by AMA on January 20, 2023, the motion practice that has followed, and the specific issues raised by Plaintiff Gavin Aldrich's ("Aldrich") pending Motion to Strike Allegations Relating to Non-Competition Clause from Cross-Complaint (the "Motion to Strike").
3. Attached hereto as Exhibit A is a true and correct copy of the Employment Agreement between Aurelius Media Americas Inc. and Gavin Aldrich, dated September 5, 2017 (the "Employment Agreement"). I obtained the original of this document from AMA's legal department files, which are maintained at AMA's corporate offices in Los Angeles, California. The Employment Agreement was executed by Aldrich and AMA at the commencement of Aldrich's employment with AMA as Vice President of Original Content, a position to which he was subsequently promoted to Senior Vice President of Original Content & Executive Producer, effective January 1, 2020. The Employment Agreement contains restrictive covenant provisions in Section 9, including the following:
(a) Section 9.1 — Non-Competition. Section 9.1 of the Employment Agreement sets forth an eighteen (18)-month post-termination prohibition on Aldrich working for, consulting with, or providing services to any "Competing Enterprise." The Employment Agreement defines the term "Competing Enterprise" as any entity deriving twenty-five percent (25%) or more of its annual revenue from the production, licensing, or distribution of unscripted or reality television content in North America.
(b) Section 9.2 — Non-Solicitation of Employees. Section 9.2 of the Employment Agreement prohibits Aldrich, for a period of twenty-four (24) months following the termination of his employment with AMA, from directly or indirectly soliciting, inducing, recruiting, or encouraging any employee, independent contractor, or consultant of AMA to leave the employ of AMA or to accept employment or an engagement with any other person or entity.
(c) Section 9.3 — Non-Solicitation of Business Relationships. Section 9.3 of the Employment Agreement prohibits Aldrich, for a period of twenty-four (24) months following the termination of his employment with AMA, from directly or indirectly soliciting, diverting, or taking away any business, customer, client, network partner, distribution partner, or vendor of AMA, or from interfering with any existing business relationship between AMA and any such person or entity.
(d) Section 9.4 — Confidentiality. Section 9.4 of the Employment Agreement imposes an indefinite confidentiality obligation on Aldrich, covering proprietary content, show formats and format bibles, revenue data, financial projections, talent agreements, production budgets, marketing strategies, viewer data, and any other information that AMA designates or treats as confidential or proprietary.
The Employment Agreement also contains a choice-of-law clause at Section 14.3, which provides that the Employment Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Additionally, the definition of "Cause" for purposes of termination by the Company is set forth in Section 7.2(b) of the Employment Agreement. A complete copy of the Employment Agreement, including all exhibits and schedules thereto, is attached hereto as Exhibit A.
4. Attached hereto as Exhibit B is a true and correct copy of the First Amendment to the Employment Agreement between Aurelius Media Americas Inc. and Gavin Aldrich, dated August 1, 2020 (the "First Amendment"). I obtained the original of this document from AMA's legal department files. The First Amendment was executed in connection with Aldrich's promotion to Senior Vice President of Original Content & Executive Producer, which promotion was effective as of January 1, 2020. The First Amendment modified certain compensation provisions of the Employment Agreement, including an increase in Aldrich's base salary to Four Hundred Eighty-Five Thousand Dollars ($485,000) per year and the grant of Forty-Two Thousand Five Hundred (42,500) restricted stock units ("RSUs") in AGMG (Aurelius Global Media Group plc, AMA's ultimate parent company), subject to the vesting schedule set forth in Appendix A to the First Amendment. Critically, the First Amendment did not alter, amend, or modify the restrictive covenant provisions set forth in Section 9 of the Employment Agreement, including Sections 9.1, 9.2, 9.3, and 9.4, nor did it alter the definition of "Cause" set forth in Section 7.2(b) of the Employment Agreement. The First Amendment expressly reaffirmed all other terms and conditions of the original Employment Agreement not expressly modified by the First Amendment, stating in Section 4 thereof: "Except as expressly amended by this First Amendment, all terms and conditions of the Employment Agreement shall remain in full force and effect and are hereby ratified and confirmed in all respects."
5. Attached hereto as Exhibit C is a true and correct copy of AMA's Acceptable Use and Confidentiality Policy (the "Policy"), last revised in March 2021. I obtained this document from AMA's Human Resources department. The Policy was distributed to all AMA employees, including Aldrich, and governs the use of AMA's information technology systems, networks, and confidential information. Among its provisions, the Policy expressly prohibits employees from "transmitting, forwarding, or copying Company proprietary information, trade secrets, or confidential data to personal email accounts, personal cloud storage, or non-Company-approved third-party recipients." The Policy further requires employees to use only AMA-approved channels and systems for the transmission or storage of any information classified as "Confidential," "Restricted," or "Internal Use Only." The Policy is referenced in the Employment Agreement at Section 9.4(c) and is also referenced in AMA's Cross-Complaint as one of the bases for AMA's breach of contract and trade secret misappropriation claims. A complete copy of the Policy, including all appendices, is attached hereto as Exhibit C.
6. Attached hereto as Exhibit D is a true and correct copy of the signed acknowledgment of the Acceptable Use and Confidentiality Policy executed by Gavin Aldrich on April 12, 2021 (the "Acknowledgment"). I obtained this document from AMA's Human Resources department. By signing the Acknowledgment, Aldrich confirmed that he received, read, and understood the terms of the Policy, and agreed to comply with its terms and conditions as a condition of his continued employment with AMA and his continued access to AMA's information technology systems and proprietary data. The Acknowledgment was maintained in Aldrich's personnel file by AMA's Human Resources department under the supervision of Lorraine Okafor, Senior Vice President of Human Resources.
7. I submit this paragraph to clarify AMA's litigation posture with respect to Section 9.1 of the Employment Agreement in response to the arguments raised in the Motion to Strike. AMA's Cross-Complaint, filed on January 20, 2023, asserts four causes of action against Aldrich: (1) Breach of Employment Agreement; (2) Misappropriation of Trade Secrets under the California Uniform Trade Secrets Act, California Civil Code Section 3426 et seq. ("CUTSA"); (3) Breach of Fiduciary Duty; and (4) Conversion. The First Cause of Action for Breach of Employment Agreement references Sections 9.1, 9.2, 9.3, and 9.4 of the Employment Agreement in its caption. However, the operative factual basis for the breach of contract claim rests on Aldrich's violation of Section 9.4 (Confidentiality) — specifically, the unauthorized transmission of approximately three hundred and forty (340) emails containing AMA proprietary information, including but not limited to show concepts, format outlines, production schedules, talent compensation data, network deal terms, and internal revenue analyses, from Aldrich's AMA corporate email account to Aldrich's personal email account (galdrich.private@Northgate Software.com) over the period from approximately July 2021 through September 2022. The operative factual basis further includes Aldrich's transmission of three (3) unscripted show format bibles (for the programs internally code-named "Alpine," "Breakpoint," and "Castaway Redux"), two (2) pilot sizzle reels, and a detailed revenue model for AMA's "Summit Challenge" franchise to Halcyon Creek Productions LLC ("Halcyon Creek"), at the email address info@halcyoncreekprod.com. Halcyon Creek is a California-based production company that operates as a direct competitor of AMA in the unscripted and reality television space. To be clear: AMA does not seek injunctive relief preventing Aldrich from competing in the unscripted television industry, nor does AMA seek injunctive relief preventing Aldrich from accepting employment with any particular employer, production company, network, or studio. AMA does not seek monetary damages based solely on Aldrich's alleged violation of the non-competition clause set forth in Section 9.1 of the Employment Agreement. AMA's references to Section 9.1 in the Cross-Complaint are included as factual context for the broader restrictive covenant framework to which Aldrich voluntarily agreed and for AMA's efforts to protect its trade secrets and confidential information — matters that are directly relevant to AMA's CUTSA claim, which requires proof that AMA took "efforts that are reasonable under the circumstances to maintain [the] secrecy" of its trade secrets, as required by California Civil Code Section 3426.1(d)(2).
8. On February 22, 2023, I sent a letter via electronic mail and United States first-class mail to Aldrich's counsel of record, Cameron Whitfield, Principal of Whitfield & Associates, at 9465 Wilshire Boulevard, Suite 320, Beverly Hills, California 90212 (the "February 22 Letter"). In the February 22 Letter, I offered, on behalf of AMA, to file an Amended Cross-Complaint that would address the concerns raised informally by Mr. Whitfield during our meet-and-confer teleconference on February 17, 2023. Specifically, AMA offered to file an Amended Cross-Complaint that would: (a) remove the reference to Section 9.1 from the caption of the First Cause of Action for Breach of Employment Agreement; (b) include an express statement that AMA does not seek injunctive or monetary relief based on the enforcement of Section 9.1, the non-competition clause; and (c) retain references to Section 9.1 solely as factual context relevant to AMA's claims under Section 9.4 (Confidentiality), CUTSA, and breach of fiduciary duty. As of the date of this declaration, Aldrich's counsel has not responded to this proposal, notwithstanding that the meet-and-confer obligations under California Code of Civil Procedure Section 435.5 contemplate a good-faith effort to resolve disputes regarding pleadings before resorting to motion practice. AMA's offer to amend demonstrates AMA's good faith willingness to address Aldrich's concerns regarding Section 9.1 without the need for court intervention, and underscores that the Motion to Strike is both unnecessary and procedurally premature in light of AMA's voluntary willingness to narrow the scope of its First Cause of Action.
9. The existence and scope of the restrictive covenant provisions in Section 9 of the Employment Agreement — including Section 9.1 — are relevant to multiple issues in this case beyond the enforcement of the non-competition clause itself. Specifically:
(a) Aldrich's Knowledge and Intent. Aldrich was fully aware that his Employment Agreement contained broad restrictive covenants, including a non-competition provision, a non-solicitation of employees provision, a non-solicitation of business relationships provision, and a comprehensive confidentiality provision. The existence of these overlapping restrictive covenants is directly relevant to establishing Aldrich's knowledge and intent at the time of his alleged misconduct. Aldrich's decision to transmit AMA proprietary materials — including unscripted show format bibles and revenue models — to a direct competitor, Halcyon Creek Productions LLC, a company owned and operated by his former business associate Nina Castellanos, while still employed by AMA and bound by these covenants, demonstrates that Aldrich was aware that his conduct violated his contractual obligations and supports AMA's claims of willful breach and willful misappropriation. The breadth of Section 9, including Section 9.1, bears directly on Aldrich's state of mind and on the issue of whether Aldrich's misappropriation was undertaken knowingly, willfully, and in bad faith — a finding that, if made, would entitle AMA to exemplary damages under California Civil Code Section 3426.3(c).
(b) AMA's Trade Secret Protection Program. Under CUTSA, a plaintiff asserting misappropriation of trade secrets must demonstrate, among other things, that the plaintiff took reasonable efforts under the circumstances to maintain the secrecy of the information at issue. See Cal. Civ. Code § 3426.1(d)(2). Courts routinely consider the existence and scope of restrictive covenants in employment agreements as evidence of the employer's overall program of trade secret protection. See, e.g., FLIR Systems, Inc. v. Parrish, 174 Cal. App. 4th 1270, 1279-80 (2009) (considering employer's use of confidentiality and non-competition agreements as evidence of reasonable efforts to maintain secrecy). The restrictive covenant provisions in Section 9 of the Employment Agreement — including Section 9.1 — constitute an integral part of AMA's overall and comprehensive program of trade secret protection. Even if Section 9.1 is unenforceable on its own terms under California Business and Professions Code Section 16600, as Aldrich contends, its existence in the Employment Agreement is relevant to demonstrate AMA's intent and affirmative efforts to protect its confidential information and trade secrets from unauthorized use and disclosure. AMA does not ask this Court to enforce Section 9.1; AMA asks only that the Court permit reference to Section 9.1 as contextual evidence relevant to AMA's remaining claims.
(c) Aldrich's Own Declaratory Relief Claim. Aldrich himself has placed the enforceability of the restrictive covenant provisions of Section 9 squarely at issue in this litigation by seeking declaratory relief in his Complaint. Specifically, the Third Cause of Action of Aldrich's Complaint seeks a judicial declaration that Section 9.1 is void and unenforceable under California Business and Professions Code Section 16600 and that the remaining restrictive covenants in Sections 9.2 and 9.3 are overbroad and unenforceable. Having placed the enforceability and scope of the entire Section 9 framework at issue, Aldrich cannot simultaneously move to strike AMA's references to Section 9.1 in the Cross-Complaint. AMA is entitled to reference and respond to all provisions that Aldrich has challenged, including Section 9.1, and to present the full contractual context in which the challenged provisions operate. Striking AMA's references to Section 9.1 from the Cross-Complaint would deprive AMA of the ability to present the complete factual and contractual background relevant to both AMA's affirmative claims and AMA's defense against Aldrich's declaratory relief cause of action.
10. I have personal knowledge of the matters set forth in this declaration. The exhibits attached hereto as Exhibits A through D are true and correct copies of the documents they purport to be. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on March 1, 2023, in Los Angeles, California.
________________________________________
Devon Archer Senior Associate, Calderwood & Harkness LLP State Bar No. 301462
EXHIBIT LIST
| GAVIN ALDRICH, | Case No. 22STCV41087 |
| Plaintiff, | Assigned for All Purposes to: |
Hon. Catherine Villanueva, Dept. 52
v.
DECLARATION OF DEVON ARCHER IN
AURELIUS MEDIA AMERICAS INC.,
COMPLAINANT AURELIUS MEDIA
Defendant and Cross-Complainant.
PLAINTIFF'S MOTION TO STRIKE
ALLEGATIONS RELATING TO NON-
COMPETITION CLAUSE FROM CROSS-
COMPLAINT
Date: March 22, 2023
Time: 9:00 a.m.
Dept.: 52
Filed: March 1, 2023
| Exhibit | Description |
| Exhibit A | Employment Agreement between Aurelius Media Americas Inc. and Gavin Aldrich, dated September 5, 2017 |
| Exhibit B | First Amendment to the Employment Agreement between Aurelius Media Americas Inc. and Gavin Aldrich, dated August 1, 2020 |
| Exhibit C | Acceptable Use and Confidentiality Policy, Aurelius Media Americas Inc., last revised March 2021 |
| Exhibit D | Signed Acknowledgment of Acceptable Use and Confidentiality Policy by Gavin Aldrich, dated April 12, 2021 |