Motion to Amend in Russian School Of Mathematics, Inc. v. Irene Sinyavin, Logicus, Llc| Trellis.Law

On May 24, 2017 a Exhibit,Appendix was filed involving a dispute between Russian School Of Mathematics, Inc., and Irene Sinyavin, Logicus, Llc, for Other Matters - Contract - Other in the District Court of Westchester County.

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FILED: WESTCHESTER COUNTY CLERK 09/27/2023 06:41 PM INDEX NO. 65180/2023
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EXHIBIT
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

RUSSIAN SCHOOL OF MATHEMATICS, INC. Case No. 7:23-cv-8103-PMH

Plaintiff,
DEFENDANTS IRENE SINYAVIN
v. AND LOGICUS, LLC’S AMENDED
NOTICE OF REMOVAL OF CIVIL
IRENE SINYAVIN and LOGICUS, LLC, ACTION

Defendants.

PLEASE TAKE NOTICE that Defendants Irene Sinyavin and Logicus, LLC

(collectively, “Defendants”), by and through their attorneys The Ottinger Firm, P.C., hereby files

this Amendment (“Amended Notice of Removal”) to the Notice of Removal filed on September

13, 2023 which removed the above captioned action from the Supreme Court for the State of New

York, County of Westchester, to the United States District Court for the Southern District of New

York. 1 Because Plaintiff’s claims arise under federal law, this action is removable pursuant to 28

U.S.C. §§ 1331, 1338, 1441 and 1446. In support of this Amended Notice of Removal, Defendants

state the following:

PROCEDURAL HISTORY AND BACKGROUND

1. On August 14, 2023, Plaintiff Russian School of Mathematics, Inc. (“Plaintiff” or “RSM”)

commenced an action in the Supreme Court of the State of New York, Westchester County,

captioned Russian School of Mathematics, Inc. v. Irene Sinyavin, et al, Index No. 65180/2023. A

1
In removing this action, the Removing Defendants preserve any and all defenses. See, e.g., Cantor Fitzgerald, L.P.
v. Peaslee, 88 F.3d 152, 157 n.4 (2d Cir. 1996) (“[r]emoval does not waive any Rule 12(b) defenses,” including
“defense of lack of personal jurisdiction”); Gay v. Carlson, No. 89 Civ. 4757 (KMW), 1991 WL 190584, at *5
(S.D.N.Y. Sept. 17, 1991) (“[M]erely by removing a case from state to federal court a party does not waive any of its
defenses under Rule 12(b), including a motion to dismiss for improper service.”).

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true and correct copy of the Docket Report for Index No. 65180/2023 is attached as EXHIBIT 1.

2. Plaintiff’s action against Defendants includes a Summons and Verified Complaint (filed

on August 14, 2023), as well as an Order to Show Cause (Proposed), Affidavit in Support of

Proposed OSC/Ex Parte Application, Exhibits A through D thereto, and Memorandum of Law in

Support. (Docket Nos. 1 through 9). A true and correct copy is attached hereto as EXHIBIT 2.

An Affidavit in Opposition to Order to Show Cause and Exhibits attached thereto were filed by

Defendants on August 21, 2023. (Docket Nos. 10 through 14). A true and correct copy is attached

hereto as EXHIBIT 3 and EXHIBIT 4. An Affidavit in Reply to Order to Show Cause (“OSC”)

and Exhibits attached thereto were filed by Plaintiff on August 23, 2023. (Docket Nos. 15 through

17). A true and correct copy is attached hereto as EXHIBIT 5. Correspondence to the Judge was

filed by Defendants on August 25, 2023. (Docket No. 18, See EXHIBIT 5). The Court’s order

granting Plaintiff’s Order to Show Cause and Entering a Temporary Restraining Order (“TRO”)

was filed on August 25, 2023. (Docket No. 19, See EXHIBIT 5). A Bond/Undertaking and two

Affidavits of Service were filed by Plaintiff August 30, 2023. (Docket Nos. 20 through 22, See

EXHIBIT 5). A Notice of Appeal and Notice of Amended Appeal were filed by Defendants on

August 31, 2023. (Docket Nos. 24 through 25). A true and correct copy is attached hereto as

EXHIBIT 6.

3. The Verified Complaint asserts claims against Defendants for: (1) Breach of Contract

(Non-Compete) Against Sinyavin; (2) Breach of Contract (Non-Solicit) Against Sinyavin; (3)

Breach of Contract (Non-Disclosure) Against Sinyavin; (4) Breach of Contract (Non-

Disparagement) Against Sinyavin; (5) Breach of Contract (Separation Agreement) Against

Sinyavin; (6) Tortious Interference with Contract Against Logicus, LLC; (7) Misappropriation of

Trade Secrets Against All Defendants; and (8) Unfair Competition Against All Defendants seeking

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a temporary restraining order and preliminary injunction and compensatory damages, among other

relief requested. See EXHIBIT 2, Verified Complaint Docket No. 1 pp. 9 - 18.

4. On August 30, 2023, Plaintiff filed two Affidavits of Service alleging service was made on

August 29, 2023, on Defendants (Defendants dispute the validity of service alleged to be made on

an unrelated construction worker, Vladimir [sic], and the First Class Mail alleged to be sent to Ms.

Sinyavin on April 29, 2023, several months before the commencement of this action).

5. This Notice of Removal is being filed in the United States District Court for the Southern

District of New York, the district in which the case is pending.

6. Defendants filed a Notice of Removal on September 13, 2023, within (30) days of

Defendants’ receipt of service of the initial pleadings setting forth the claims for relief upon which

this action is based. Removal was thus timely under 28 U.S.C. § 1446(b).

7. Defendants may freely amend their Notice of Removal within 30 days of the Defendants’

receipt of the Complaint. See CBS Inc. v. Snyder, 762 F. Supp. 71, 73 (S.D.N.Y. 1991). This

Amended Notice of Removal is filed within 30 days of the Removing Defendants’ receipt of the

Complaint as calculated under Federal Rule of Civil Procedure 6, and is therefore timely under 28

U.S.C. § 1446(b). See id.

8. In accordance with 28 U.S.C. § 1446(d), Defendants will promptly file a copy of this

Amended Notice of Removal with the Clerk of the Supreme Court of the State of New York,

County of Westchester.

9. Defendants have served all parties with a copy of this Amended Notice of Removal.

GROUNDS FOR REMOVAL

10. The Court has original jurisdiction over the Action under 28 U.S.C. §§ 1331 and 1338,

and the Action is therefore properly removable under 28 U.S.C. §§ 1441 and 1446. In particular,

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this Court has jurisdiction under 28 U.S.C. § 1331 because the gravamen of Plaintiff’s claims in

the Complaint arises under the United States Copyright Act, 17 U.S.C. § 301(a) et seq. (“Copyright

Act”). Specifically, Plaintiff’s claims for relief under the Sixth through Eighth Counts of the

Complaint necessarily depend on the resolution of substantial questions of federal copyright law

involving the Copyright Act and are subject to preemption.

11. As explained in Briarpatch Ltd., L.P v. Phoenix Pictures, Inc., the Copyright Act

exclusively governs and completely preempts state law claims when: (1) the particular work to

which the claim is being applied falls within the type of works protected by the Copyright Act

under 17 U.S.C. §§ 102 and 103 (“subject matter requirement”); (2) the claim seeks to vindicate

legal or equitable rights that are equivalent to one of the bundles of exclusive rights already

protected by copyright law under 17 U.S.C. § 106 (“scope requirement”); and 3) the claim does

not “include any extra elements that make it qualitatively different from a copyright infringement

claim.” (“extra element requirement”) 373 F.3d 296, 305-306 (2d. Cir 2004).

12. In the Sixth through Eighth Counts of the Complaint, Plaintiff alleges the following: 6)

Logicus induced Sinyavin to compete, solicit, disclose and/or exploit “Confidential Information

Compl. at ¶ 77; 7) Logicus induced Sinyavin to disclose, an/or improperly use the Confidential

Information” and trade secrets to use to its advantage in violation of the employment agreement

Compl. at ¶ 83; 8) Logicus and Sinvayin engaged in unfair competition by misappropriating and

using “Confidential Information” and trade secrets for competitive advantage. Compl. at ¶ 86.

13. Paragraph 19 of the Complaint defines “Confidential Information” to include:

any information, in any form, which is not generally disclosed to the

public and belongs to or concerns the Company or any past, current or

prospective client, student, parent, vendor, contractor or employee of the

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Company, including, but not limited to: (a) products or services, whether

or not reduced to practice, in development or contemplated; (b) RSM’s

business strategies, planning data and sales and marketing strategies; (c)

fees, costs and pricing structures; (d) RSM’s financial results and

information about its business condition; (e) teaching modules,

curriculum, practices, methods, materials, and lesson plans; (f) the names

of, and information about, clients and prospects, including contact

persons; (g) computer software, including operating systems, applications

and program listings; (h) training manuals and documentation; (i) data

bases; (j) new developments, methods and processes, whether patentable

or unpatentable and whether or not reduced o practice, in development or

contemplated; (k) information relating to the RSM’s personnel matters;

(1) copyrightable works; (m) all technology and trade secrets; and (n) all

similar and related information in whatever form, including information

developed by me.

Compl. at ¶ 19.

14. Despite intentionally omitting any reference to the Copyright Act, it is abundantly clear

that Plaintiff is relying on federal copyright law as the basis for its claims because as outlined

above a vast majority of the categories of “Confidential Information” enumerated in the

Complaint, are protected by federal copyright law. For example, in Plaintiff’s Seventh Cause of

Action seeks protection for “proprietary teaching and testing materials.” Compl. at ¶ 80.

Additionally, the definition of “Confidential Information” for which Plaintiff seeks monetary

damages and injunctive relief preventing Defendants from continuing to use, explicitly includes

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“copyrightable works” and refers to various categories of copyrightable property including

“teaching modules, curriculum, practices, methods, materials, and lesson plans,” “computer

software,” and “training manuals and documentation.” Compl. at ¶ 19. Therefore, Plaintiff’s

claims, regardless of how they are pleaded, in substance arise under federal law and can only be

resolved under the Copyright Act. As such, Plaintiff’s claims satisfy the subject matter

requirement.

15. The second prong of the statutory preemption test, "looks at the right being asserted

(over a work that comes within the 'subject matter of copyright') and requires (for preemption to

apply) that the right be 'equivalent to any of the exclusive rights within the general scope of

LLC v. Google LLC, No. 20-3113, 2022 U.S. App. LEXIS 6206, at *7 (2d Cir. Mar. 10, 2022).

Thus, for preemption to apply, "the state law claim must involve acts of reproduction, adaptation,

performance, distribution or display." Id. Accordingly, the scope requirement is satisfied because

Plaintiff is seeking monetary damages and injunctive relief preventing Defendants from allegedly

continuing to use and/or exploit “Confidential Information” (i.e. copyrightable works), including

“proprietary teaching and testing materials,” that belongs to Plaintiff. Compl. at ¶ ¶ 77, 80 83, 86

16. "To determine whether a claim is qualitatively different, we look at what the plaintiff seeks

to protect, the theories in which the matter is thought to be protected and the rights sought to be

enforced." And "[i]f unauthorized [use] is the gravamen of [the plaintiff's] claim, then it is clear

that the right they seek to protect is coextensive with an exclusive right already safeguarded by the

Act-namely, control over reproduction and derivative use of copyrighted material.” MLGenius

Holdings LLC v. Google LLC, No. 20-3113, 2022 U.S. App. LEXIS 6206, at *7-8 (2d Cir. Mar.

10, 2022). For example, in Editorial Photocolor Archives, Inc. v. Granger Collection, 61 N.Y.2d

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517, 474 N.Y.S.2d 964, 463 N.E.2d 365 (1984), the Court held that even though the claims were

couched as state law claims, “Those rights asserted in plaintiffs’ complaint and sought to be

protected by the preliminary injunction are equivalent to the exclusive rights of use and

reproduction given by the copyright laws. Id. at 521-22. Accordingly, the Court held that there

was no jurisdiction because “all legal and equitable rights equivalent to copyrights are governed

exclusively by that act. States may not, by statute or common law, provide equivalent rights, and

State courts are divested of jurisdiction to consider claims to enforce those rights.” Id. at 522.

Likewise, in Durham Indus. v. Tomy Corp., 630 F.2d 905 (2d Cir. 1980), the defendant “asserted

nine counterclaims against Durham: eight counterclaims alleging copyright infringement in regard

to eight specified toys and the ninth counterclaim alleging unfair competition under both the

Lanham Act, 15 U.S.C. § 1125(a), and state law, in regard to the same eight toy products.” Id. at

907-08. Once again, because there were copyright claims in the case, the Court held that any state

law unfair competition claims were preempted by statute. Id at 919.

17. Although Plaintiff’s claims were artfully drafted to appear as if they arise solely out of

state law, the adjudication of these claims will ultimately turn on an interpretation of the Copyright

Act and specifically, whether: (1) Plaintiff owns the exclusive rights under the Copyright Act to

reproduce and use “Confidential Information”; (2) Logicus and Sinvayan misappropriated and

used “Confidential Information”; and 3) Logicus induced Sinvayan to use and exploit

“Confidential Information.” Therefore, it is undisputable that Plaintiff’s claims against Logicus

arise solely from the rights and remedies guaranteed to copy right owners under the Copyright Act.

That is, Plaintiff’s claim against Logicus is preempted because it does not contain any “extra

element” to render the claim qualitatively distinct. See Comput. Assocs. Int'l v. Altai, 982 F.2d 693,

719 (2d Cir. 1992) (agreeing that the district court correctly stated that a state law claim based

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solely upon the wrongful use of a work protected by trade secret and copyright could not satisfy

the governing "extra element" test and subject to preemption.)

18. Whatever the dubious merits of Plaintiff’s claims – each of which Defendants contest –

they are federal in nature. Even where state law creates a plaintiff’s causes of action, federal

jurisdiction lies if the well pleaded complaint establishes that the plaintiff’s right to relief under

state law requires resolution of a substantial question of federal law in dispute between the parties.

See City of Chicago v. Int’l Coll. Of Surgeons, 522 U.S. 156, 164 (1997) (upholding removal of

state court action where plaintiff used state administrative review statute to raise federal

constitutional challenges to local landmarks ordinances).

19. As a corollary to this rule, the federal courts may assert jurisdiction in the absence of a

federal law claim on the face of the complaint where the plaintiff has, through artful pleading,

sought to avoid removal “by framing in terms of state law a complaint the real nature of [which]

is federal, regardless of plaintiff’s characterization, or by omitting to plead necessary federal

questions in a complaint. Marcus v. AT&T Corp., 138 F.3d 46, 55 (2d Cir. 1998) (alterations and

internal quotation marks omitted) (upholding removal where plaintiff’s state law breach of

warranty claim arose from tariff that defendant was required by federal statute to file with the

FCC). As explained above, Plaintiff’s Sixth through Eighth Counts are quintessentially federal

questions. The fact that such a claim arises in the context of a disruption of contractual

arrangements and presents certain contract issues should not remove it from that jurisdiction.”

Ryan v. Volpone Stamp Co., 107 F. Supp. 2d 369, 377 (S.D.N.Y. 2000) (citing Daniel Wilson

Productions, Inc. v. Time-Life Films, Inc., 736 F. Supp. 40, 43 (S.D.N.Y. 1990)) (holding that

plaintiff’s assertion of a claim for infringement and prayer for remedies expressly granted by the

Lanham Act was sufficient to confer subject matter jurisdiction upon the District Court,

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notwithstanding his additional claims for breach of contract and violations of New York State

statutory law). See also Comput. Assocs. Int'l v. Altai, 982 F.2d 693, 719 (2d Cir. 1992) (holding

Plaintiff’s claim against company that allegedly used work stolen by another individual in violation

of confidentiality agreement was subject to preemption.)

20. For these reasons, this Court has federal question jurisdiction over Plaintiff’s claims.

Plaintiff’s Complaint independently raises on its face substantial federal issues in addition to

raising federal issues “by way of a cause of action created by state law,” City of Chicago, 522 U.S.

at 164, and frames in state law terms a claim whose real nature is federal, see Marcus, 138 F.3d at

55. “By raising several claims that arise under federal law, [Plaintiffs] subjected . . . [themselves]

to the possibility that [Defendants] would remove the case to the federal courts.” City of Chicago,

522 U.S. at 164.

21. In addition, this action is one that may be removed to this Court pursuant to 28 U.S.C.

1454(a), which provides that "[a] civil action in which any party asserts a claim for relief arising

under any Act of Congress relating to patents, plant variety protection, or copyrights may be

removed to the district court of the United States for the district and division embracing the place

where the action is pending.” Indeed, 1454, which became law as part of the America Invents Act

of 2011, was intended to abrogate Holmes Grp., Inc. v. Vornado Air Circulation Sys,, Inc. by

expressly allowing a defendant to remove based on copyright-related counterclaims. See Andrews

v. Daughtry, 994 F. Supp. 2d 728, 731 (M.D.N.C. 2014) (“Congress passed the so-called 'Holmes

Group fix,'" allowing federal courts to assert subject matter jurisdiction on the basis of a

counterclaim arising under federal patent or copyright law.) (citing Joe Matal, A Guide to the

Legislative History of the America Invents Act: Part II of II, 21 Fed. Cir. B.J. 539, 539 (2012)).

22. Defendants allege declaratory judgment counterclaims regarding non-infringement of

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Plaintiff’s alleged “copyrightable works” and regarding unenforceability of the restrictive

covenants prohibiting the use and distribution of Plaintiff’s alleged “copyrightable works.” Thus,

removal is proper under 1454(a) because a party – Defendant Sinvayin and Defendant Logicus --

asserts claims for relief "arising under any Act of Congress relating to Copyrights.”

23. For all claims (if any) not subject to jurisdiction under 28 U.S.C. § 1331, supplemental

jurisdiction lies under 28 U.S.C. § 1367 because all claims in this case form part of the same

controversy. See Id. at 164-65.

CONCLUSION

24. This Court has original jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1367,

1334, and this action may be removed to this Court pursuant to 28 U.S.C. §§ 1441(b) and 1452(a).

Dated: September 27, 2023
New York, New York
Respectfully submitted,

THE OTTINGER FIRM, P.C.

/s/ Robert Ottinger
Robert Ottinger
79 Madison Avenue
New York, New York 10016
Telephone: (347) 492-1904
robert@ottingerlaw.com

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

RUSSIAN SCHOOL OF MATHEMATICS, INC., :
:
Plaintiff, : Index No. __________
:
v. :
:
IRENE SINYAVIN and :
LOGICUS, LLC :
: SUMMONS
Defendants. :

TO IRENE SINYAVIN:

YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and

to serve a copy of your Answer, or, if the Verified Complaint is not served with this summons, to

serve a notice of appearance, on the plaintiff’s attorneys within 20 days after the service of this

summons, exclusive of the day of service (or within 30 days after the service is complete if this

summons is not personally delivered to you within the State of New York); and in case of your

failure to appear or answer, judgment will be taken against you by default for the relief demanded

in the Verified Complaint.

The basis of the venue designated is the contract giving rise to plaintiff’s claims was

executed in Westchester County and because defendants reside and do continuous and systemic

business in Westchester County.

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Dated: August 14, 2023
New York, New York
Respectfully submitted,

By: /s/ Daniel J. LaRose
Lawrence Peikes
lpeikes@wiggin.com
Daniel LaRose
dlarose@wiggin.com
Wiggin and Dana LLP
437 Madison Avenue
35th Floor
New York, New York 10022
(212) 551-2600

Attorneys for Plaintiff
RUSSIAN SCHOOL OF MATHEMATICS,
INC.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

RUSSIAN SCHOOL OF MATHEMATICS, INC., :
:
Plaintiff, : Index No. __________
:
v. :
:
IRENE SINYAVIN and :
LOGICUS, LLC :
: SUMMONS
Defendants. :

TO LOGICUS, LLC:

YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and

to serve a copy of your Answer, or, if the Verified Complaint is not served with this summons, to

serve a notice of appearance, on the plaintiff’s attorneys within 20 days after the service of this

summons, exclusive of the day of service (or within 30 days after the service is complete if this

summons is not personally delivered to you within the State of New York); and in case of your

failure to appear or answer, judgment will be taken against you by default for the relief demanded

in the Verified Complaint.

The basis of the venue designated is the contract giving rise to plaintiff’s claims was

executed in Westchester County and because defendants reside and do continuous and systemic

business in Westchester County.

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Dated: August 14, 2023
New York, New York
Respectfully submitted,

By: /s/ Daniel J. LaRose
Lawrence Peikes
lpeikes@wiggin.com
Wiggin and Dana LLP
437 Madison Avenue
35th Floor
New York, New York 10022
(212) 551-2600

Attorneys for Plaintiff
RUSSIAN SCHOOL OF MATHEMATICS

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER

RUSSIAN SCHOOL OF :
MATHEMATICS, INC., :
: Index No. __________
Plaintiff, :
:
v. :
:
IRENE SINYAVIN and :
LOGICUS, LLC : VERIFIED COMPLAINT
:
Defendants.

Plaintiff, Russian School of Mathematics, Inc. (“plaintiff” or “RSM”), by and through its

attorneys, Wiggin and Dana LLP, alleges for its Complaint against defendants Irene Sinyavin and

Logicus, LLC (collectively “defendants”), as follows:

Nature Of The Action

1. This is an action to enforce RSM’s legal and contractual rights and prevent its

former employee, Irene Sinyavin (“Sinyavin”), from continuing to violate certain restrictive

covenants contained in her Employment Agreement. Sinyavin has breached the Employment

Agreement in myriad ways. First by founding Logicus, LLC (“Logicus”), a direct competitor of

RSM in the mathematics tutoring business. Second by brazenly soliciting RSM’s clients. Third

by making negative or disparaging statements or communications about RSM. And fourth by

exploiting RSM’s confidential business information to the competitive advantage of Logicus. As

a remedy for these transgressions, plaintiff seeks a temporary restraining order and preliminary

injunction, as well as monetary damages.

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The Parties

2. RSM, a corporation organized under the laws of the Commonwealth of

Massachusetts with its principal place of business located at 200 Wells Avenue, Suite 101,

Newton, Massachusetts, consists of after-school math learning centers that provide after school

math programs for students in grades K-12.

3. Defendant Irene Sinyavin is an individual residing at 6 Grand Park Avenue,

Scarsdale, New York 10583. RSM hired Sinyavin to serve as the Principal of RSM’s Scarsdale

location effective March 12, 2021. Sinyavin agreed to accept employment by RSM pursuant to,

inter alia, the terms of a simultaneously executed Employment Agreement. Sinyavin remained

employed by RSM as Principal until January 11, 2023, at which point her employment was

terminated. While employed by RSM, Sinyavin was privy to RSM’s confidential client

information and trade secrets, such as lesson plans, teaching methodologies, marketing strategies,

and so on.

4. Defendant Logicus, LLC is a corporation organized under the laws of the State of

New York with its principal place of business located at 1875 Palmer Avenue,

Larchmont, New York 10538. Like RSM, Logicus is also an after-school math learning center

providing after school math programs for students in grades K-12. Sinyavin founded Logicus in

or about March 2023 and acts as its Principal, the same role she held at RSM.

Jurisdiction and Venue

5. This Court has jurisdiction because the contract that forms the basis for this action

was executed in New York and is governed by New York law. In addition, Logicus, and Sinyavin

reside in New York, and RSM and Logicus do business in New York. Moreover, Sinyavin, acting

on behalf and for the benefit of Logicus solicited current RSM clients in New York in violation of

her contractual obligations, as more fully detailed below. By operation of the contract that forms
2

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the basis for this action Sinyavin and RSM consent to the jurisdiction of New York courts over

any dispute concerning the contract and Sinyavin’s employment relationship with RSM.

6. Venue is proper pursuant to CPLR § 503(a) because Sinyavin resides in

Westchester County, Sinyavin worked for RSM in Westchester County, and the contract giving

rise to RSM’s claims was executed in Westchester County. In addition, Logicus, resides in

Westchester County.

Relevant Facts

I. The Agreements

7. Sinyavin commenced employment with RSM as the principal of the Scarsdale

location on March 12, 2021. Sinyavin signed the Employment Agreement on March 12, 2021.

Ralitsa Dimitrova, RSM’s VP, People and Culture, countersigned the agreement.

8. The Employment Agreement included non-disclosure, non-competition, non-

solicitation, and non-disparagement provisions. A true and accurate copy of the Employment

Agreement is attached to the Affirmation of Daniel LaRose as Exhibit A.

9. Sinyavin separated from employment with RSM on January 11, 2023, and four days

later, on January 17, 2023, Sinyavin signed a Separation Agreement.1 The Separation Agreement,

incorporates the terms of the Employment Agreement, including the restrictive covenants

described in detail below. A true and accurate copy of the Separation Agreement is attached to the

Affirmation of Daniel LaRose as Exhibit B.

10. Section 9 of the Separation Agreement, entitled “Employment Agreement,” reads,

in part, “The Employee acknowledges she signed an Employment Agreement on March 12, 2021

1
The Separation Agreement erroneously states Sinyavin’s separation date as January 11, 2022
instead of January 11, 2023.
3

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which contains provisions governing Confidential Information, Non-Competition, Non-

Solicitation, and Ownership of Programs, Inventions, and Intellectual Property (Paragraphs 5-9,

12, 13), attached as Exhibit A. The Employee agrees that these provisions remain in effect and that

she will abide by all such terms that survive termination.”

11. The Separation Agreement also contains an independent non-disparagement clause,

which reads:

Employee agrees not to disparage, demean or criticize the Company, or any
owner, officer or employee of the Company at any time for any reason.
Without limiting the generality of the foregoing, Employee will not make
any negative, disparaging or critical comments about the Company, its
owners, officers or employees, to any of the Company's past, present or
future employees, clients, owners, vendors or contractors. Without limiting
the forgoing, this provision applies to any postings on social media or on-
line platforms, even if done anonymously.

Ex. B § 6.

12. The non-competition and non-solicitation provisions of the Employment

Agreement run for a period of two years after the end of Sinvayin’s employment with RSM.

However, per the Employment Agreement, “the Non-Solicit Term and the Non-Compete Term

shall be measured solely by the time during which Employee is complying with this Agreement.

Any period during which Employee is in violation of this Agreement will not be considered in

computing either the Non-Solicit Term or the Non-Compete Term, but will extend the duration of

those Terms.”

13. As discussed herein, Sinyavin has been in breach on these terms since at least

March 31, 2023. Accordingly, the duration of the non-compete and non-solicit terms shall be

extended beyond January 11, 2025, which is two years after the date Sinvayin’s employment

relationship with RSM ended.

14. The non-compete provision of the Employment Agreement provides:

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To protect the Company’s Resources and Confidential Information, at any
time during his/her employment and for a period of two years after the end
of Employee's employment ("Non-Compete Term") the Employee:

S/he will not become employed by, advise, consult with, provide services
to, or act as an agent for, any Competitive Business. A “Competitive
Business” is any entity which is, or plans to become, engaged in any activity
which is competitive with the Company’s business, including but not
limited to, tutoring mathematics, or providing services to any program
offering mathematics instruction. Nothing in this Agreement will prohibit
Employee from continuing the activities listed in Appendix B (Approved
Activities) or from working as a mathematics teacher in a public or private
full-day school setting after this Agreement is terminated.

In addition, Employee will not acquire an ownership interest in any
Competitive Business during the Non-Compete Term. However, Employee
may acquire stock in a Competitive Business that is publicly traded,
provided my stock constitutes less than three percent (3%) of the
outstanding securities of the Competitive Business. Employee may also
own mutual funds which hold stock in a Competitive Business, provided
Employee cannot control or direct the purchase of stock by the mutual fund.

Ex. A § 9(c).

15. The non-solicit (of clients) provision of the Employment Agreement provides:

During Employee’s employment with RSM and for a period of two years

Case Info

Judge

Thomas Quinones Track Judge’s New Case

Case No.

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Document Filed Date

September 27, 2023

Case Filing Date

May 24, 2017

County

Parties

GRUBIN, SCOTT GEOFFREY Attorney for the Defendant
HARTZBAND, ALEX JEFFREY Attorney for the Defendant
Irene Sinyavin Defendant
LAROSE, DANIEL J Attorney for the Plaintiff
Logicus, LLC Defendant
OTTINGER, ROBERT WALTER Attorney for the Defendant
PEIKES, LAWRENCE D Attorney for the Plaintiff
Russian School of Mathematics, Inc. Plaintiff
Umoh, Uwem, Umoh Law Firm Attorney for the Defendant
Daniel Lange Attorneys for Plaintiffs

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Exhibit,Appendix: Russian School Of Mathematics, Inc. v. Irene Sinyavin, Logicus, Llc

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