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First American Title Insurance Co. v. Northwest Title Insurance Agency LLC

United States District Court, D. Utah, Central Division

November 23, 2016

FIRST AMERICAN TITLE INSURANCE COMPANY and FIRST AMERICAN TITLE COMPANY, LLC, Plaintiff,
v.
NORTHWEST TITLE INSURANCE AGENCY, LLC; MICHAEL SMITH; JEFF WILLIAMS; and KRISTI CARRELL, Defendants.

         MEMORANDUM DECISION AND ORDER MOOTING IN PART AND DENYING IN PART DEFENDANTS' [163] MOTION FOR SUMMARY JUDGMENT; GRANTING PARTIAL SUMMARY JUDGMENT UNDER RULE 56(f); BUT RESERVING RULING ON SOME ISSUES UNDER 56(f); AND DENYING DEFANDANTS' [309] MOTION TO RECONSIDER

          David Nuffer United States District Judge

         BACKGROUND

         Parties

         Plaintiffs First American Title Insurance Company and First American Title Company, LLC (collectively “First American”) brought suit against Northwest Title Insurance Agency, LLC (Northwest) and Michael Smith, Jeff Williams, and Kristi Carrell (collectively “Individual Defendants”).[1] The Individual Defendants are former employees of First American, and before that were employed by Equity Title Insurance Agency, Inc. (“Equity”) which was absorbed by First American when the two merged. The Individual Defendants formed Northwest which competes with First American and employs dozens of other former First American employees.

         Claims

         The Complaint alleges 13 causes of action. The first three causes of action are for breach of contracts: Count I, against Michael Smith;[2] Count II, against Jeff Williams;[3] Count III, against Kristi Carrell.[4] Some of those contracts were entered into with First American and some were acquired by First American from Equity. Counts IV and V are, respectively, against Northwest and the Individual Defendants for tortious interference with contracts.[5] Count VI is against Smith for breach of fiduciary duty.[6] Counts VII-VIII are, respectively, against the Individual Defendants and Northwest for misappropriation of trade secrets.[7] Count IX is against the defendants for unfair competition.[8] Count X is against Northwest for tortious interference with economic relations.[9] Count XI is against the defendants for conspiracy.[10] Count XII is against the defendants for conversion.[11] Count XIII is against the Individual Defendants for violation of the Computer Fraud and Abuse Act.[12]

         Motion for Summary Judgment

         In this motion, [13] the defendants “seek summary dismissal of all claims.”[14] First American opposed this motion.[15] The defendants replied to First American's opposition.[16]

         Some issues relating to the first three causes of action were resolved by a previous order.[17] That order held that:

1. The employment agreements executed with Equity survived First American's purchase of Equity stock and the First American-Equity merger, thus transferring the right to enforce those contracts to First American;
2. Smith and Williams breached the non-solicitation provisions of their employment agreements; and
3. Williams and Carrell breached the non-compete provisions of their employment agreements, and Smith did not.[18]

         For the first three causes of action, the Order on the Motion for Partial Summary Judgment left the following issues regarding the Equity employment agreements for this Motion:

1. First American's performance under the Employment Agreement;
2. the conscionability of the Equity employment agreements; and
3. damages.

         Motion to Reconsider

         Defendants filed a motion to reconsider the Order on the Motion for Partial Summary Judgment or reconsider and certify questions to the Utah Supreme Court.[19] First American opposed the motion.[20] The defendants replied to First American's opposition.[21] Defendants' motion to reconsider is denied.

         56(f) Notice

         After carefully reviewing the undisputed material facts, the parties were given notice that pursuant to Rule 56(f) of the Federal Rules of Civil Procedure

“the court may . . . grant summary judgment for the non-movant, ” plaintiffs, on the following:
1. Argument sections IV(C)(1)(b, c, and e) in the 163 Motion, relating to causes of action I-III;
2. The first three elements of a breach of contract claim (i.e. 1. existence of an enforceable contract; 2. performance by the party seeking recovery; and
3. breach of the contract by the other party) for the First American Employee Handbook and Code of Ethics and Conduct, relating to causes of action I-III; 3. Causes of action IV, V, and X: Defendants' tortious interference with contracts and economic relations; and
4. Cause of action XI: Civil Conspiracy.[22]

         Both First American[23] and the defendants[24] provided additional briefing.

         Stipulated Dismissal

         The parties stipulated to dismiss the following causes of action against the defendants: Counts VII-VIII for misappropriation of trade secrets; Count IX for unfair competition; Count XII for conversion; and Count XIII for violation of the Computer Fraud and Abuse Act.[25] An order was entered dismissing those causes of action with prejudice.[26]

         Renewed Motion for Summary Judgment

         After the order was entered dismissing those causes of action, the defendants filed a Renewed Motion for Summary Judgment, and Motion for Expedited Briefing Schedule and Consideration.[27] In that motion the defendants argue that, in light of the dismissal, tortious interference with contracts and economic relations (Causes of Action IV, V, and X) and civil conspiracy (Cause of Action XI) are no longer viable. An expedited briefing schedule was ordered.[28] This order will not address those causes of action, and the undisputed facts related to those claims will follow in a separate order.

         Summary of Order

         In favor of First American, this order grants partial summary judgment under Rule 56(f):

• First American can, unless barred by equitable estoppel, enforce the Equity employment agreements.
o First American did not materially breach the Individual Defendants' Equity employment agreements.
o Enforceability of the Equity employment agreements is not barred by an increase in their geographic scope.
o Duration, nature of interest, and the import of the Individual Defendants' positions do not render the non-competition provisions of the employment agreements unenforceable.
• The Confidential Information and Inventions Agreement is not void for unconscionability.
• The Employee Handbook and the Code of Ethics and Conduct are enforceable, unilateral contracts and are not illusory.

         Contents

         Background ..................................................................................................................................... 1

         Parties 1 Claims 2 Motion for Summary Judgment .......................................................................................... 3

         Motion to Reconsider .......................................................................................................... 3

         56(f) Notice ......................................................................................................................... 4

         Stipulated Dismissal ............................................................................................................ 4

         Renewed Motion for Summary Judgment .......................................................................... 5

         Summary of Order .............................................................................................................. 5

         Contents .............................................................................................................................. 6

         Undisputed Material Facts .............................................................................................................. 7

         1. The Individual Defendants' relevant employment history. . ................................... 7

         Mike Smith .............................................................................................................. 7

         Jeff Williams ......................................................................................................... 10

         Kristi Carrell ......................................................................................................... 12

         2. Employment at First American ............................................................................. 14

         3. Setting up Northwest Title .................................................................................... 17

         4. After opening Northwest ....................................................................................... 23

         Standard of Review ....................................................................................................................... 24

         Discussion ..................................................................................................................................... 25

         The fact and amount of damages remains at issue ............................................................ 25

         Counts I-III: If First American is not Equitably Estopped, The Equity Employment Agreements Are Valid and Enforceable by First American; There are Issues of Material Fact for the Remaining Contracts....................... 26

         1. The Equity Employment Agreements are valid contracts and First American fulfilled its obligations. . ........................................................................................ 26

a. The Order on the Motion for Partial Summary Judgment stands and no question will be certified to the Utah Supreme Court ............................... 27
b. First American did not materially breach the Individual Defendants' employment agreements. . ............ 27
c. No impermissible expansion of geographic scope bars First American's enforcement of the employment agreements. . .......................................... 31
d. Duration, nature of interest, and Individual Defendants' positions do not render the non-competition provisions of the employment agreements unenforceable. . .......................................................................................... 33

         2. First American may be equitably estopped from enforcing the Equity employment agreements. . ................... 37

         3. Unconscionability does not bar enforcement of the CIIA. . .................................. 38

a. The CIIA may have some procedural unconscionability .......................... 39
b. Substantively unconscionable aspects of the CIIA will not be enforced........ . 42

         4. The Employee Handbook and the Code of Ethics and Conduct are enforceable contracts but issues of fact relating to versions remain for the jury. . ................... 45

         Count VI: Smith may be liable for breaching his fiduciary duty to First American; questions of material fact Exist as to causation and damages. . ............................................................. 51

         1. Smith had a fiduciary relationship with First American. . ..................................... 51

         2. Smith breached that duty. . .................................................................................... 51

         3. All elements remain for the jury. . ......................................................................... 54

         Conclusion .................................................................................................................................... 54

         Order 54

         UNDISPUTED MATERIAL FACTS[29]

         1. The Individual Defendants' relevant employment history.

         Mike Smith

         1. Mike Smith is an attorney who practiced real property law from 1987 through 1993. In 1993, he became General Counsel for Realty Title. Courtesy Title acquired Realty Title and Mike Smith became General Counsel for Courtesy Title. In 1995, Courtesy Title became Equity Title.[30]

         2. In 2004, Mike Smith entered into the Employment Agreement between Equity Title Insurance Agency, Inc., and Michael M. Smith (Smith/Equity Agreement).[31]

         3. Between 2003 and 2006, Equity had approximately 150 employees and between 18 and 20 offices throughout Utah.[32]

         4. In the Smith/Equity Agreement, Mike Smith agreed to be employed to serve as Chief Operating Officer and General Counsel of Equity. As COO of Equity, Mike Smith supervised all operations of Equity throughout Utah.[33]

         5. In September 2003, First American Title Insurance Company acquired a 25% ownership interest in Equity. First American Title Insurance Company acquired a further 25% ownership interest in Equity in March 2005. In December 2008, First American Title Insurance Company purchased an additional 45% ownership interest in Equity, making it the majority owner. First American Title Insurance Company acquired the remaining 5% ownership interest in Equity in February 2009, making it the sole owner.[34]

         6. On October 12, 2012, Equity merged with First American Title Company, LLC.[35]

         7. In May 2012, Smith refused to sign a new employment agreement with First American.[36]

         8. After First American acquired a majority interest in Equity in 2008, it began managing Equity's back office functions such as payroll, accounting, and title plant operations.[37]

         9. After 2011, Mike Smith was no longer Equity's General Counsel; he became State Underwriting and Legal Counsel.[38]

         10. As State Underwriting and Legal Counsel, Smith was to act as a lawyer for First American.[39]

         11. No one at First American complained to Smith about his legal work during the relevant time.[40]

         12. Under the Smith/Equity Agreement, Smith was entitled to a base salary with yearly cost of living adjustment (COLA) increases for those calendar years in which Equity earned a pre-tax net income of 5% or greater.[41]

         13. First American does not usually give salary increases that are designated as COLA increases.[42]

         14. Under the Smith/Equity Agreement, Smith was entitled to bonuses based on Equity's pre-tax net income.[43]

         15. Smith avers that “[i]n May 2012, Kurt Andrewsen [First American's former Regional Human Resources Manager], told [him] that Equity was gone, that [his] Equity contract no longer existed, and asked [him] to sign an employment agreement with [First American] that contained, among other things, restrictive covenants regarding non-competition, non-solicitation, in favor of [First American].”[44]

         16. Kurt Andrewsen denies having told Smith that his Equity contract no longer existed.[45]

         17. Smith later signed the Utah Legal Counsel Production Bonus Plan, which “supersede[d] and replaced all previous production bonus plans, written or otherwise.”[46]

         18. After signing the Utah Legal Counsel Production Bonus Plan, Smith received bonuses based on that plan.[47]

         19. On March 9, 2015, Smith resigned from First American.[48]

         20. Upon resigning, Smith took First American documents.[49]

         21. His assistant, Casey Buhler, helped him gather those documents.[50]

         22. When Smith resigned from First American, he left no project undone which had an imminent deadline, and First American had other lawyers who were also handling, or were capable of handling, regulatory matters.[51]

         Jeff Williams

         23. Jeff Williams was hired by Courtesy Title-which later became Equity-as a runner and typist. In 1997, he became a licensed escrow officer. In 1999, he became Manager of Equity's West Jordan office.[52]

         24. On May 16, 2006, Williams entered into the Employment Agreement with Equity Title Insurance Agency, Inc. (Williams/Equity Agreement).[53]

         25. In the Williams/Equity Agreement, Williams agreed to be employed as the “Senior Vice President of Escrow Operations of Equity.”[54]

         26. Under First American's ownership, Williams's title was changed to Statewide Escrow Administrator.[55] He shared these responsibilities with another First American employee[56]

         27. Later, Williams's position changed again. He was appointed Northern Regional Manager.[57]

         28. Under the Williams/Equity Agreement, Williams was entitled to base salary with yearly COLA increases for those calendar years in which Equity earned a pre-tax net income of 5% or greater.[58]

         29. Under the Williams/Equity Agreement, Williams was entitled to bonuses consisting of 2.5 percent of “Equity's net profits.”[59]

         30. Smith signed the Williams/Equity Agreement on behalf of Equity.[60]

         31. In 2012, Williams entered into a Director, Escrow Staff Development Production Bonus Plan.[61]

         32. The Production Bonus Plan states that it “supersedes and replaces all previous production bonus plans, written or otherwise.”[62]

         33. The Production Bonus Plan changed Williams's bonus compensation structure.[63]

         34. Williams voluntarily terminated his employment with First American on March 10, 2015, without providing 30-days' notice.[64]

         Kristi Carrell

         35. Kristi Carrell began working for Equity in 1998 as an Escrow Assistant. She obtained her escrow license in 1999 and became an Escrow Officer. In 2003, she became the Manager of Equity's West Jordan office, and was made a Vice President of Equity.[65]

         36. In 2003, Carrell entered into a letter agreement regarding her employment, (Carrell/Equity Agreement).[66]

         37. The Carrell/Equity Agreement provides for Carrell's employment as “Vice President/Manager of the West Jordan Office.”[67]

         38. In 2004, Equity moved Carrell to the Sugar House office, where she continued to function as a Vice President of Equity and where she became the Manager of the Sugar House office.[68] But Equity did not enter into a new agreement with Carrell.[69]

         39. In the Carrell/Equity Agreement, Carrell agreed to be employed as the Vice President/Manager of the West Jordan office of Equity.[70]

         40. Under the Carrell/Equity Agreement, Carrell was entitled to a bonus of 15 percent of the net income of her office.[71]

         41. Carrell avers the following: “In late 2012, Cherry Dornbier, a [First American] manager, came to my office in Sugarhouse to speak to me about the necessity of signing a new bonus plan with [First American] effective January 1, 2012. At that time, she told me that Equity was gone, and that any former Equity contracts no longer existed.”[72]

         42. In 2012, Carrell entered into an Escrow Branch Manager Production Bonus Plan.[73] This plan “supersedes and replaces” all prior bonus plans whether “written or otherwise.”[74]

         43. Carrell's bonuses were determined according to the terms of the Production Bonus Plan.[75]

         44. Aspects of Carrell's job changed, including the authority to make hiring, firing, and compensation decisions and to make vendor decisions.[76]

         45. When Carrell resigned from First American on March 10, 2015, she was an escrow officer who managed the Sugar House office, one of First American's most successful and profitable branches.[77]

         46. Carrell was very good at her job and had formed many important relationships with customers.[78]

         2. Employment at First American

         47. By the time Equity offices were rebranded as First American offices at the end of 2011, Equity had only seven offices, located in Draper, Union Heights, Sugar House, West Jordan, Orem, South Ogden, and St. George.[79]

         48. First American was and is the second largest title company in North America, with an unknown number of offices in all 50 states and in 60 countries.[80] In Utah, at the end of 2011, First American had at least 23 offices, located in Union Heights, Orem, South Ogden, Downtown Salt Lake City, Foothill Drive in Salt Lake City, American Fork, Bountiful, two in Union Park, Delta, Ephraim, Fillmore, Heber City, Layton, two in Park City, Richfield, South Jordan, St. George, and Cedar City.[81]

         49. First American had over 17, 000 employees in its offices throughout the United States and in 60 countries. In Utah-assuming that each First American office had four or five employees-First American had at least 100 employees.[82]

         50. Utah has approximately 1, 300 licensed escrow agents.[83]

         51. Utah has licensed 159 separate title and escrow companies. Many of these have multiple branch offices.[84]

         52. First American employees are frequently required to look at online e-training, consisting of presentations and documents that employees are required to acknowledge online.[85]

         53. Among the documents which First American employees must open and acknowledge are the First American Employee Handbook, the Code of Ethics and Conduct, and the Confidential Information and Inventions Agreement (CIIA).[86]

         54. The First American Employee Handbook[87] sets forth employee privileges and obligations, provides complaint protocol, and outlines consequences for failure to comply with the handbook, specifically discipline and termination.[88]

         55. When accessing the Employee Handbook employees receive a prompt that, at the end of a description of the privileges and obligations associated with the handbook, states, “By clicking ‘I Acknowledge, ' I confirm that I have read and agree to the terms noted above.”[89]

         56. First American reserves the right to change any of the terms of the Employee Handbook at any time, without notice. When the Employee Handbook is revised employees are asked to review and agree to its terms again.[90]

         57. The acknowledgement of the Code of Ethics and Conduct[91] states that the employee has “read and understood the Code's contents” and that employees “are expected to know and abide by the [its] rules of ethical conduct.”[92]

         58. The acknowledgement of the CIIA[93] states “I acknowledge that I have read and that I understand all provisions of this agreement, a copy of which has been delivered to me. By signing below, I agree to be bound by all its terms.”[94]

         59. Before accessing the CIIA, the employees are prompted to “contact [their] local division human resources representative or Corporate Human Resources at” a specific email address if they had any questions.[95]

         60. Employees were given time to read the CIIA before agreeing to its terms.[96]

         61. The CIIA is four pages long.[97]

         62. Those former First American employees who were deposed did not recall seeing or agreeing to the CIIA.[98]

         63. First American's records show that they did.[99]

         64. While the Individual Defendants claim they do not recall signing the CIIA, none deny that they did sign it.[100]

         65. None of the Individual Defendants denies acknowledging the First American Handbook and Code of Ethics.[101]

         66. First American's record shows that the designation under the “Completion Status” column for the Handbook and the Code of Ethics varies among the Individual Defendants.[102]

         67. First American's record also shows that the Individual Defendants last viewed different versions of the Employee Handbook and Code of Ethics than the one attached to the Complaint.[103]

         68. First American's analyst for learning and professional development at First American states:

In addition to capturing the initial instance an employee acknowledges an agreement or completes a training, KnowledgeSPOT captures every instance in which an employee updates his acknowledgement to an agreement or completes an updated or revised training. So long as an employee completes what he has begun on KnowledgeSPOT, KnowledgeSPOT records every instance an employee logs in to the system.[104]

         69. All the employment contracts between the Individual Defendants and First American were at-will contracts.[105]

         3. Setting up Northwest Title

         70. Discussions about forming Northwest Title began nearly two years ago. Casey Willoughby was working as the Branch Manager of First American's Orem office and an Escrow Officer. He contemplated leaving First American, and talked to Doug Smith about it at family events. Doug Smith-an attorney whose wife is a first cousin of Willoughby's wife-suggested that Willoughby start his own title business.[106]

         71. Doug Smith is not related to the defendant Mike Smith.[107]

         72. Doug Smith and Clark Olsen had no experience in the title and escrow industry. Nor did Willoughby have the knowledge and experience necessary to manage the operations of a title company. To move forward, they knew they would need to involve someone with experience running a title business.[108]

         73. Willoughby arranged a meeting to introduce Doug Smith and Clark Olsen to his colleague at First American, Mike Smith. The first meeting occurred in early spring of 2014. Prior to that meeting, Mike Smith had never met Doug Smith or Clark Olsen.[109]

         74. At the meeting, the four men discussed the possibility of opening a title business. The idea was that Olsen would contribute capital and Mike Smith would run the company. Mike Smith expressed his interest in the proposed venture and agreed to consider it further.[110]

         75. Several months later, Willoughby called Doug Smith to inform him that Mike Smith was interested in rekindling the discussions. At that point, having made the necessary introductions and expressed his desire to move forward, Willoughby left the details to the others.[111]

         76. A second meeting between Mike Smith, Doug Smith, and Clark Olsen took place in November or December of 2014. They met to discuss further the possibility of opening a title business. Specifically, Doug Smith testified:

Q: Okay. And what did you discuss in that regard?
A: Primarily that day-to-day operations would be run by Mike, and Clark would contribute capital to the venture.[112]

         77. They also discussed who the owners of the business would be, including Doug Smith, Clark Olsen, Mike Smith, Casey Willoughby, and Jeff Williams-the latter three were all employees of First American.[113]

         78. Ownership of Northwest is divided up as follows: Clark Olsen, 51 percent; Mike Smith, 29 percent; Doug Smith, 10 percent; Jeff Williams, five percent; and Casey Willoughby, five percent.[114]

         79. Around the same time, in October or November of 2014, Mike Smith began communicating with Mike Koloski of Westcor Land Title Insurance Company (Westcor). Westcor is a national title insurance underwriter that competes with First American.[115]

         80. Smith informed Koloski that he was interested in starting his own title company. He told Koloski that the name of the company would be Northwest Title, and they began working to formalize a relationship so that Northwest Title could become a title insurance issuing agent for Westcor.[116]

         81. Mike Smith, Doug Smith, and Clark Olsen met for a third time in January 2015. At that meeting, they discussed the terms of an operating agreement and the ownership percentages that each owner of Northwest Title would have.[117]

         82. Later in January 2015, Mike Smith arranged a meeting to introduce Jeff Williams and Casey Buhler, his long-time administrative assistant at First American, to Doug Smith.[118]

         83. During that meeting, Doug Smith presented Williams with a draft operating agreement and they discussed Williams' ownership percentage in Northwest Title. The participants also discussed things they were working on and tasks they had been assigned to move forward with creating Northwest Title.[119]

         84. Meanwhile, Jeff Williams was working with a contact he had to establish an underwriting relationship between Northwest Title and another competitor of First American, Stewart Title Guaranty Company (Stewart Title).[120]

         85. On January 17, 2015, Mike Smith signed a Regional Agency Application on behalf of Northwest Title and submitted it to Westcor. He identified himself as the “President/Manager” of Northwest Title and the “Primary Application Contact.”[121]

         86. Mike Smith listed himself, Jeff Williams, Casey Willoughby, and Casey Buhler as employees of Northwest Title. This was almost two months before any of them left First American.[122]

         87. Around the same time, Doug Smith filed a Certificate of Organization on behalf of Northwest Title with the Utah Department of Commerce.[123]

         88. The registration was approved and the company was certified to do business on January 26, 2015.[124]

         89. Under Article II of the certificate, Northwest Title was formed for the purpose of providing “Ti[t]le and settlement services”-the same services that First American provides.[125]

         90. The efforts to open Northwest Title continued in February of 2015. By February 4, 2015, Northwest Title already had signed a lease for its Corporate/Sugar House office. Mike Smith negotiated the lease. Doug Smith signed it.[126]

         91. The location of that office is in the building next door to First American's Sugar House office.[127]

         92. On February 28, 2015, Mike Smith wrote to Mike Koloski:

We are doing well. Our title guy starts tomorrow, so we have at least that in place. Actually, we have a lot in place. Our main office space is ready to go. I am still working on a critical issue on the space we are trying to tie down in Union Heights . . . I am not yet ready to leave that group behind without getting them in the barn.[128]

         93. Northwest Title applied for its title escrow and title search licenses on February 7, 2015.[129]

         94. The application was approved by the Utah Insurance Department and the licenses were issued on February 18, 2015.[130]

         95. As a result, Northwest Title could formalize its relationship with Westcor. The same day, those companies executed an Issuing Agency Agreement, which was signed by Mike Smith on behalf of Northwest Title.[131]

         96. Mike Smith appointed himself as a licensed title agent for Northwest Title on February 18, 2015-three weeks before he left First American.[132]

         97. In an e-mail to Mike Smith the same day, Mike Koloski exclaimed: “We have a new agent in Utah . . . Northwest Title . . . Mike Smith, President.”[133]

         98. When Koloski asked when Westcor should report the new agency relationship to the state, Smith responded: “Please wait a few days to appoint us if there is a chance someone will see it.” He made that request because he did not want First American to discover that he was involved with Northwest.[134]

         99. Williams was responsible for opening Northwest Title's bank accounts.[135]

         100. He opened an operating account and a payroll account at Zions Bank in February 2015.[136]

         101. Like Mike Smith, Jeff Williams attempted to conceal his activities by using his wife's personal e-mail account to communicate about Northwest Title business.[137]

         102. On March 3, 2015, Jeff Williams prepared the Schedule of Minimum Charges for Escrow Services that Northwest Title needed to file with the Utah Department of Insurance. He used his First American computer to complete the form, then e-mailed it to his wife's personal account so another employee of Northwest Title could file it.[138]

         4. After opening Northwest

         103. Besides Smith, Williams, and Carrell, twenty-five other First American employees left First American to join Northwest at its inception.[139]

         104. Between March 10, 2015, and March 24, 2015, Northwest Title hired twenty-eight employees from First American.[140]

         105. Immediately after joining Northwest Title, the former First American employees began contacting First American's customers exclaiming, for example, that the “whole office switched companies”; “[t]he whole office went;-)”; or “we've all switched title companies” and “are located in the bldg. next to where we were with First American.”[141]

         106. Geraldine Jensen promised: “New name same great customer service.”[142]

         107. Others, like Elizabeth Cole, added that “[w]e are transferring everything over here” and “I still plan to close your deal (we have all of the info).” When one customer asked Cole what happened, she responded that “Mike Smith left FATCO and started his own company” and “[m]ost people followed.”[143]

         108. As a result, less than three weeks after opening its doors, Northwest already had “600 orders” with Westcor. Mike Koloski characterized getting that many customers in such a short period of time as “getting slammed.”[144]

         109. Northwest Title profited from at least 150 transactions that were opened at First American but ...


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