Preview
FILED
DALLAS COUNTY
3/21/2018 3:17 PM
FELICIA PITRE
DISTRICT CLERK
2-CIT ES
DC-18-03754 Marissa Pittman
CAUSE NO. _____________
SOUTHWEST RISK, LP, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. §
§ DALLAS COUNTY, TEXAS
§
KEITH ROSS and MIKAEL SCOT §
FLEENOR §
134TH
§
Defendants. § _____ JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION
AND APPLICATION FOR INJUNCTIVE RELIEF
Plaintiff Southwest Risk, LP (Southwest) files this Original Petition and Application for
Injunctive Relief against Defendants Keith Ross (Ross) and Mikael Scot Fleenor (Fleenor)
(collectively, Defendants) and would respectfully show the Court the following:
I. SUMMARY
Southwest is a specialized wholesale insurance brokerage company. Ross was employed
by Southwest as a Senior Vice President until January 2, 2018. Fleenor was employed by
Southwest as an Associate Broker until he resigned without notice on February 23, 2018. In
their roles with Southwest, Defendants had access to and utilized Southwest’s confidential
information and trade secrets, including, but not limited to, confidential business plans, terms of
insurance coverage for Southwest’s clients, lists of Southwest’s clients, terms of Southwest’s
contracts, client referral sources, and marketing strategies.
After Fleenor’s resignation, Southwest conducted a forensic investigation of the
computers Defendants used while employed by Southwest. Southwest was dismayed to discover
that this inspection identified that both Defendants connected external storage devices to their
Southwest computers: (1) in Ross’s case, immediately prior to the arrival of a courier to pick up
the computer and return it to Southwest’s Dallas office; and (2) in Fleenor’s case, immediately
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 1
4605088.1
prior to his resignation. In each case, while the external storage devices were connected to
Defendants’ Southwest computers, Defendants were simultaneously accessing Southwest’s
customer lists and other trade secret information. Moreover, at the time the devices were
connected to the computers used by Defendants, the Defendants had unfettered access to
Southwest’s confidential information and trade secrets.
Upon information and belief, Defendants have misappropriated Southwest’s confidential
and proprietary information and trade secrets in clear violation of their employment agreements
and in violation of the Texas Uniform Trade Secrets Act (“TUTSA”). Of even greater concern,
based on information and belief, Southwest has strong reason to believe that Defendants took its
confidential and proprietary information for the use and benefit of their new employer, R-T
Specialty, LLC, which is Southwest’s direct competitor. Accordingly, Southwest requests that
the Court order Defendants to immediately return Southwest’s confidential and proprietary
information and enjoin Defendants from using, copying, transmitting, or otherwise accessing
Southwest’s confidential and proprietary information.
II. DISCOVERY
1. Discovery in this case should be conducted in accordance with a Level 3 tailored
discovery control plan pursuant to TEX. R. CIV. P. 190.4.
III. PARTIES
2. Plaintiff Southwest Risk, LP is a Texas limited partnership with its principal place
of business located at 8144 Walnut Hill Ln., Suite 1400, Dallas, TX 7523.
3. Defendant Keith Ross is an individual who resides at 4616 Locust St., Bellaire,
TX 77401. Ross may be served with process at 820 Gessner, Suite 850, Houston, TX 77024 or
wherever he may be found.
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 2
4605088.1
4. Defendant Mikael Scot Fleenor is an individual who resides at 14107 Hunters
Lake Way Court, Houston, TX 77044. Fleenor may be served with process at 820 Gessner, Suite
850, Houston, TX 77024 or wherever he may be found.
IV. VENUE AND JURISDICTION
5. Venue is proper in Dallas County, Texas against Fleenor pursuant to Paragraph 7.4
of Fleenor’s employment agreement, which states that “Dallas County and the State of Texas
shall be the exclusive venue for any litigation, special proceeding, or other proceeding as
between the parties that may be brought, or arise out of, in connection with or by reason of this
Agreement.”
6. Venue is proper in Dallas County, Texas against Ross pursuant to Paragraph 7.4 of
Ross’s employment agreement, which states that “Dallas County and the State of Texas shall be
the exclusive venue for any litigation, special proceeding, or other proceeding as between the
parties that may be brought, or arise out of, in connection with or by reason of this Agreement.”
7. Jurisdiction is proper in Texas district court against Defendants because
Defendants are Texas residents.
8. Pursuant to the Constitution of the State of Texas, subject matter jurisdiction lies
with the district courts because the amount in controversy is within the Court’s jurisdictional
limits.
V. REQUEST FOR DISCLOSURE
9. Plaintiff demands that Defendants provide all information set forth in Texas Rule
of Civil Procedure 194.2 within fifty (50) days of service of this Petition.
VI. BACKGROUND FACTS
10. Southwest is a specialized wholesale insurance brokerage company. Southwest
works with its clients to identify and provide comprehensive insurance solutions.
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 3
4605088.1
11. As a result, Southwest develops intimate knowledge of the identity, specific risks
and ongoing needs of its clients, with whom Southwest has developed close, long-standing
relationships. This knowledge and confidential information provides Southwest with a
competitive advantage over other wholesale brokerage companies in a highly competitive
marketplace.
12. Recognizing the proprietary information gained and utilized by Southwest’s
employees and desiring to protect its critical client relationships, Southwest requires certain
employees to execute employment agreements containing confidentiality clauses, thereby
safeguarding Southwest’s confidential and proprietary information and trade secrets, as well as
the confidential information of its clients.
13. Beginning on September 1, 2009, Ross was employed by Southwest as a Vice
President. On October 27, 2010, Ross entered into an Employment Agreement with Southwest
(Ross Agreement). A true and correct copy of Ross’s executed Employment Agreement is
attached hereto as Exhibit A.
14. Beginning on December 3, 2012, Fleenor was employed by Southwest as an
Associate Broker. On March 14, 2013, Fleenor entered into an Employment Agreement with
Southwest (Fleenor Agreement). A true and correct copy of Fleenor’s executed Employment
Agreement is attached hereto as Exhibit B. During Fleenor’s employment with Southwest, he
was Ross’s subordinate as a member of “Team Ross” and worked closely with Ross as the
team’s second in command.
15. During the course of Defendants’ employment, Southwest provided Defendants
access to its proprietary, confidential information and trade secrets, including a wide variety of
confidential materials, including, but not limited to, market data, strategic planning, annual
forecasting, client information, client purchasing history, sales strategies, account development,
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 4
4605088.1
marketing plans, client lists and preferences, terms of client insurance coverage, terms of
Southwest’s contracts, and client referral sources. Southwest provided Defendants access to
information which was particular to the Southwest’s business and not available to Defendants
from any other source.
16. Southwest has invested considerable resources developing the confidential
information and trade secrets provided to Defendants, and Southwest goes to great lengths to
maintain and protect the confidentiality of this information. One of those safeguards, and perhaps
the most critical in this case, is its employment agreements. Realizing the amount of intimate
knowledge that Defendants would acquire about Southwest, and more importantly, Southwest’s
customers, the Employment Agreement was necessary to protect Southwest’s interests.
17. In their employment agreements, Defendants each agreed that they had access to
Southwest’s confidential information. Specifically, the Fleenor Agreement and the Ross
Agreement both provide:
The Company promises, that during Employee’s employment with
the Company, Employee will be shown and provided the use of
and have access to the Company’s and its Affiliates’ confidential
business plans, methods of operations, employment terms and
policies (including, without limitation, those set forth in this
Agreement), compensation methods and formulas (including,
without limitation, those set forth in this Agreement), terms of
insurance coverage, insurance limits, performance standards,
pricing policies, marketing strategies, records, contracts, referral
sources, and other information about the Company’s and its
Affiliates’ operations and business of a confidential nature (the
“Confidential Information”) and the Company’s trade secrets, and
the Company agrees to provide Employee with such Confidential
Information and trade secrets in connection with Employee’s
employment with the Company under this Agreement. In exchange
for that promise, during this Term of this Agreement and
thereafter, Employee shall not in any manner, directly or indirectly,
disclose or divulge to any person or other entity whatsoever,
including particularly any person or entity directly or indirectly in
competition with the Company or its Affiliates, or use for any
purpose, any such Confidential Information and trade secrets,
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 5
4605088.1
except as required by law or to perform Employee’s duties
hereunder or as expressly authorized in writing by the
Company. . . . The Employee shall not use or disclose the
Company’s Confidential Information and trade secrets that are
retained in the knowledge of the Employee, except as required by
law or to perform Employee’s duties hereunder or as expressly
authorized in writing by the Company.
Fleenor Agreement, Ex. A, at Paragraph 4.1; Ross Agreement, Ex. B, at Paragraph 4.1.
18. In that same regard, Defendants expressly agreed to return confidential
information upon the termination of their employment with Southwest. Specifically, Defendants
both agreed that:
Upon the expiration or termination of this Agreement for any reason,
Employee shall immediately return to the Company any and all
Confidential Information and trade secrets in Employee’s possession
or control in any form, whether electronic, paper copies, or other form
or format, including, but not limited to, any originals or copies of, or
computer discs, or other media, containing policies, procedures,
records, operation or employment materials, client or customer lists
and information, and billings or billing information and Confidential
Information and trade secrets, wherever located and in whatever
device or place retained or stored. Employee shall not retain any
Confidential Information in any form or format (e.g., computer hard
drive, computer disc, flash drive, paper copies, etc.) upon the
expiration or termination of this Agreement.
Fleenor Agreement, Ex. A, at Paragraph 4.1; Ross Agreement, Ex. B, at Paragraph 4.1.
19. Defendants further agreed that any violation of the confidentiality or return of
confidential information provisions—both contained in Article IV of their respective
employment agreements—would necessarily require an injunction to protect Southwest’s rights.
Specifically, Defendants acknowledged that:
the covenants of Employee set forth in this Articles IV and V are
necessarily of a special, unique, and extraordinary nature and that the
loss arising from a breach thereof cannot reasonably and adequately
be compensated by money damages, as such a breach will cause the
Company and itsAffiliates to suffer irreparable harm. Accordingly,
upon failure of Employee to comply with the terms and conditions of
Articles IV and V at any time, (i) the term of the covenants set forth
in Articles IV and V will be extended by the period of the duration of
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 6
4605088.1
such breach; (ii) the Company and its successors or assigns will be
entitled to receive from Employee any and all damages, losses or
expenses related thereto or arising therefrom in addition to any
amounts which may be otherwise due under this Section 6.1; and (iii)
the Company and its successors or assigns will be entitled to obtain
injunctive or other equitable relief to restrain any breach or threatened
breach or otherwise to specifically enforce the provisions of Article
IV and V without the necessity of the Company posting a bond,
which extraordinary relief shall be cumulative to, but not in limitation
of, any other remedies that may be available.
Fleenor Agreement, Ex. A, at Paragraph 6.1; Ross Agreement, Ex. B, at Paragraph 6.1.
20. On January 2, 2018, Southwest terminated Ross’s employment pursuant to
Paragraph 3.2(f) of the Ross Agreement. Ross had approached Southwest management with an
ultimatum. Ross stated that he had received an offer of employment from a competitor and that
Southwest must pay him $275,000 and Fleenor $75,000 to convince them to stay. Southwest
management opted to terminate Ross’s employment.
21. Following Ross’s termination, Southwest sent Ross a letter reminding him of,
among other things, his confidentiality obligations under the Ross Agreement and demanding the
immediate return of all confidential information. See January 2, 2018 Letter to Ross, attached
hereto as Exhibit C.
22. Ross had been working remotely from home and had left personal items in
Southwest’s Houston office. A courier was arranged by Southwest to deliver Ross’s personal
items on January 10, 2018. Ross was to then provide his computer to the courier to return it to
Southwest’s Dallas office.
23. On February 23, 2018, Fleenor voluntarily terminated his employment with
Southwest without notice. Although Fleenor’s emailed resignation asserted it was effective
immediately, the Fleenor Agreement explicitly required Fleenor to provide ten business days’
advance notice of resignation, which he did not comply with. See Fleenor Agreement, Ex. A, at
Paragraph 3.2(d).
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 7
4605088.1
24. Similar to Ross, Southwest also sent Fleenor a letter reminding him of, among
other things, his confidentiality obligations under the Fleenor Agreement and demanding the
immediate return of all confidential information. See February 26, 2018 Letter to Fleenor,
attached hereto as Exhibit D. To date, Southwest has received no response from Fleenor to
Southwest’s letter.
25. Following Fleenor’s resignation, Southwest conducted a forensic investigation of
the computer Fleenor used at Southwest.
26. The forensic investigation revealed that Fleenor had connected an external storage
device to his computer prior to his departure.
27. Based on the results of the forensic investigation of Fleenor’s computer,
Southwest conducted a similar forensic investigation on Ross’s computer.
28. That forensic investigation revealed that Ross had also connected an external
storage device to his computer immediately preceding the return of his computer.
29. Based on these facts, Southwest has reason to believe that: (1) Defendants failed
to turn over all of Southwest’s confidential information at the end of their employment with
Southwest; (2) prior to returning his computer, Ross surreptitiously transferred Southwest’s
confidential information and trade secrets to a personal device; (3) prior to his resignation,
Fleenor surreptitiously transferred Southwest’s confidential information and trade secrets to a
personal device; and (4) Defendants have used or plan to use Southwest’s confidential
information and trade secrets for their own benefit and/or the benefit of their new employer, R-T
Specialty, LLC, a direct competitor of Southwest.
30. Defendants’ conduct is intentional, unlawful and immeasurably harmful to
Southwest. Accordingly, Southwest seeks temporary and permanent injunctions from this Court
enjoining Defendants from the wrongful use or disclosure of Southwest’s confidential
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 8
4605088.1
information and trade secrets and requiring the return of all of Southwest’s confidential and
proprietary information and trade secrets in Defendants’ possession, custody, or control.
31. Pursuant to Texas Rule of Civil Procedure 682, Plaintiff’s Original Petition and
Application for Injunctive Relief is supported by: (1) the Verification of Alicia Koo, attached
hereto as Exhibit E, as to Paragraphs 10 – 24, 28 – 29, and 45 – 46; and (2) the Affidavit of
Dennis Williams attached hereto as Exhibit F, as to Paragraphs 25 – 28.
VII. CAUSES OF ACTION
A. Texas Uniform Trade Secrets Act
32. The above paragraphs are incorporated herein as if fully set forth.
33. Defendants’ use of Southwest’s confidential information and trade secrets—which
includes a wide variety of information regarding Southwest and Southwest’s clients—constitutes
a misappropriation of trade secrets under TUTSA. See Tex. Civ. Prac. & Rem. Code § 134A.001,
et. seq.
34. Defendants have a duty to refrain from using or disclosing Southwest’s trade
secrets and/or confidential information.
35. Defendants breached this duty in violation of TUTSA.
36. As a direct and proximate result of Defendants’ misappropriation, Southwest has
suffered and will continue to suffer damages.
37. As a result of Defendants’ violations of TUTSA, Southwest seeks its actual
damages and lost profits. See Tex. Civ. Prac. & Rem. Code § 134A.004. Southwest also seeks its
reasonable attorneys’ fees because Defendants’ misappropriation was willful and malicious. See
id. § 134A.005.
B. Breach of Contract
38. The above paragraphs are incorporated herein as if fully set forth.
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 9
4605088.1
39. Southwest entered into valid and enforceable employment agreements with
Defendants.
40. By engaging in the conduct described above, Defendants have materially
breached these agreements.
41. As a direct and proximate result of Defendants’ breaches, Southwest has suffered,
and will continue to suffer, actual damages, although such damages are not readily ascertainable
or measurable.
VIII. APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
42. The above paragraphs are incorporated herein as if fully set forth.
43. The facts above establish the required elements for Southwest to obtain a
temporary injunction against Defendants. Those elements are: (1) a cause of action against the
defendants; (2) a probable right to the relief sought; and (3) a probable, imminent, and
irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
44. The first two elements of Southwest’s request for a temporary injunction are
easily satisfied. Establishing a probable right to relief does not require the applicant to establish
that it will prevail at trial. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). Rather, this
element merely requires the applicant to allege a cause of action and present evidence that tends
to sustain that cause of action. See Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597
(Tex. App.—Amarillo 1995, no writ).
45. The evidence contained herein clearly establishes that Southwest will succeed in
showing that Defendants breached their employment agreements and violated TUTSA.
Defendants are currently in possession of, misappropriating, accessing, copying, and using
Southwest’s confidential and proprietary information and trade secrets. Further, upon
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 10
4605088.1
information and belief, Defendants are currently employed by R-T Specialty, LLC, Southwest’s
direct competitor.
46. Further, Defendants’ possession, use, and/or disclosure of Southwest’s
confidential and proprietary information and trade secrets will result in immediate, irreparable
injury to Southwest’s goodwill, competitive advantage, and market share. In particular, if
Defendants are not enjoined, they will continue to cause immediate, irreparable harm to
Southwest for which there is no adequate remedy at law, including, without limitation, loss of
business, reputational harm, loss of goodwill, loss of competitive position in the marketplace,
loss of confidential and proprietary information, and interference with business relationships.
Each of the foregoing constitutes irreparable harm for which injunctive relief is appropriate. See
Liberty Mut. Ins. Co. v. Mustang Tractor & Equip. Co., 812 S.W.2d 663, 666 (Tex. App.—
Houston [14th Dist.] 1991, no writ) (holding that disruption of business constitutes irreparable
harm in awarding a temporary injunction); Graham v. Mary Kay, Inc., 25 S.W.3d 749, 753 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied) (“Irreparable harm for purposes of a temporary
injunction may include noncompensable injuries such as a company’s loss of goodwill, clientele,
marketing technique, office stability and the like.” (quotation marks omitted)).
47. Southwest has no adequate remedy at law to compensate it for Defendants’
possession, use, and/or disclosure of Southwest’s confidential and proprietary information and
trade secrets. Because the harm is unknown and immeasurable, Southwest cannot be
compensated by money damages for the losses it have incurred, and will continue to incur, by
Defendants’ unlawful possession, use, and/or disclosure of Southwest’s confidential and
proprietary information and trade secrets. Without enforcement of Defendants’ employment
agreements and TUTSA, Southwest will continue to suffer irreparable harm.
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 11
4605088.1
A. Request for a Temporary Injunction
48. For these reasons, Southwest requests the Court enter a temporary injunction
ordering that:
a. Defendants and their agents, servants and employees, and those acting in concert
or participation with them, are enjoined from accessing, using, reviewing,
referring to, copying, or disclosing Southwest’s confidential and proprietary
information and trade secrets accessed, made available, used, or obtained by
virtue of Defendants’ employment with Southwest;
b. Defendants and their agents, servants and employees, and those acting in concert
or participation with them, are enjoined from deleting, destroying, modifying,
moving, or altering any of Southwest’s confidential, proprietary, or trade secret
information which Defendants have stored on in any written or electronic form;
c. Defendants and their agents, servants and employees, and those acting in concert
or participation with them, are enjoined from accessing, using, disclosing,
transmitting, or referring to any Southwest current or prospective client
information accessed, made available, used, or obtained by virtue of Defendants’
employment with Southwest;
d. Defendants and their agents, servants and employees, and those acting in concert
or participation with them, must return to Southwest, within 3 days of this Order,
any and all records, documents, and/or other materials or information, whether in
original, copy, computerized, electronic, handwritten, or in any other form, and all
reproductions thereof, relating to Southwest and which were obtained from it by
virtue of Defendants’ employment with Southwest; and
e. Defendants must submit all electronic devices used to store or access any
documents, materials or electronic files of Southwest to the Forensics Examiner
identified below,1 or another forensic examiner of the Court’s choosing, for a
forensic imaging and analysis within 3 days of this Order.
B. Request for Temporary Injunction Hearing
49. Southwest requests this Court set its request for a temporary injunction for
hearing, and after the hearing, issue a temporary injunction against Defendants with the scope of
restrictions outlined above.
1
Forensic Examiner:
Dennis Williams
Pathway Forensics
14405 Walters Road, Suite 630
Houston, TX 77014
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 12
4605088.1
C. Request for Permanent Injunction
50. Southwest further requests this Court, upon final trial of this cause, issue a
permanent injunction against Defendants with the same scope of restrictions requested for the
temporary injunction above.
IX. BOND
51. Southwest is willing and able to post an appropriate bond.
X. CONDITIONS PRECEDENT
52. All conditions precedent necessary to the prosecution of this suit have been
performed, have occurred, or have been waived.
XI. ATTORNEYS’ FEES
53. Southwest is entitled to and does seek an award of its reasonable and necessary
attorneys’ fees pursuant to Texas Civil Practice and Remedies Code § 134A.005.
XII. EXEMPLARY DAMAGES
54. Defendants’ actions were undertaken with the kind of willfulness and malice for
which the law allows the imposition of exemplary damages. Accordingly, Southwest hereby
seeks an award of exemplary damages in an amount to be determined by the trier of fact.
XIII. RULE 47 DECLARATION OF DAMAGES SOUGHT
55. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Southwest pleads that
it seeks monetary relief over $200,000.00 and under $1,000,000.00 and equitable relief against
Defendants.
XIV. PRAYER
WHEREFORE, Plaintiff Southwest Risk, LP prays that Defendants Keith Ross and
Mikael Scot Fleenor be cited to appear, and that the Court enter a final judgment for Southwest
against Defendants as follows:
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 13
4605088.1
a. for injunctive relief as set forth herein;
b. for all actual damages proved at trial;
c. for prejudgment interest as provided by law;
d. for reasonable attorneys’ fees and expenses;
e. for post-judgment interest as provided by law;
f. for exemplary damages as provided by law;
g. for all costs of court; and
h. for such other and further relief, both general and special, legal or equitable, to
which Southwest may show themselves to be justly entitled.
Respectfully submitted,
GRAY REED & McGRAW, LLP
By: /s/ Ralph Perry-Miller
Ralph Perry-Miller
Texas Bar No.: 15810300
rperry-miller@grayreed.com
Marcus Fettinger
State Bar No.: 24078500
mfettinger@grayreed.com
Jake Lewis
State Bar No.: 24087924
jlewis@grayreed.com
1601 Elm Street, Suite 4600
Dallas, Texas 75201
(214) 954-4135
(214) 953-1332 (Facsimile)
ATTORNEYS FOR PLAINTIFF SOUTHWEST
RISK, LP
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 14
4605088.1
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EMPLOYMENT AGREEMENT
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(“Agreement”) is
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the execution
execution
date
date specified
specified on the
the signature
signature page
page hereof
hereof and
and to be
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the date
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attached hereto,
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if different
different than
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the date
date of
of execution
execution (the
(the "Effective
“Effective Date"),
Date”), by
by and
and
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between SOUTHWEST RISK,
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LP, aa Texas
Texas limited
limited partnership
partnership (the
(the "Company")
“Company? and
and the
the
undersigned employee
undersigned employee ("Employee").
(“Employee”).
WITNESSETH:
'WITNESSETH:
WHEREAS, the
the Company desires
Preview
FILED DALLAS COUNTY 3/21/2018 3:17 PM FELICIA PITRE DISTRICT CLERK 2-CIT ES DC-18-03754 Marissa Pittman CAUSE NO. _____________ SOUTHWEST RISK, LP, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § § DALLAS COUNTY, TEXAS § KEITH ROSS and MIKAEL SCOT § FLEENOR § 134TH § Defendants. § _____ JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Plaintiff Southwest Risk, LP (Southwest) files this Original Petition and Application for Injunctive Relief against Defendants Keith Ross (Ross) and Mikael Scot Fleenor (Fleenor) (collectively, Defendants) and would respectfully show the Court the following: I. SUMMARY Southwest is a specialized wholesale insurance brokerage company. Ross was employed by Southwest as a Senior Vice President until January 2, 2018. Fleenor was employed by Southwest as an Associate Broker until he resigned without notice on February 23, 2018. In their roles with Southwest, Defendants had access to and utilized Southwest’s confidential information and trade secrets, including, but not limited to, confidential business plans, terms of insurance coverage for Southwest’s clients, lists of Southwest’s clients, terms of Southwest’s contracts, client referral sources, and marketing strategies. After Fleenor’s resignation, Southwest conducted a forensic investigation of the computers Defendants used while employed by Southwest. Southwest was dismayed to discover that this inspection identified that both Defendants connected external storage devices to their Southwest computers: (1) in Ross’s case, immediately prior to the arrival of a courier to pick up the computer and return it to Southwest’s Dallas office; and (2) in Fleenor’s case, immediately PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 1 4605088.1 prior to his resignation. In each case, while the external storage devices were connected to Defendants’ Southwest computers, Defendants were simultaneously accessing Southwest’s customer lists and other trade secret information. Moreover, at the time the devices were connected to the computers used by Defendants, the Defendants had unfettered access to Southwest’s confidential information and trade secrets. Upon information and belief, Defendants have misappropriated Southwest’s confidential and proprietary information and trade secrets in clear violation of their employment agreements and in violation of the Texas Uniform Trade Secrets Act (“TUTSA”). Of even greater concern, based on information and belief, Southwest has strong reason to believe that Defendants took its confidential and proprietary information for the use and benefit of their new employer, R-T Specialty, LLC, which is Southwest’s direct competitor. Accordingly, Southwest requests that the Court order Defendants to immediately return Southwest’s confidential and proprietary information and enjoin Defendants from using, copying, transmitting, or otherwise accessing Southwest’s confidential and proprietary information. II. DISCOVERY 1. Discovery in this case should be conducted in accordance with a Level 3 tailored discovery control plan pursuant to TEX. R. CIV. P. 190.4. III. PARTIES 2. Plaintiff Southwest Risk, LP is a Texas limited partnership with its principal place of business located at 8144 Walnut Hill Ln., Suite 1400, Dallas, TX 7523. 3. Defendant Keith Ross is an individual who resides at 4616 Locust St., Bellaire, TX 77401. Ross may be served with process at 820 Gessner, Suite 850, Houston, TX 77024 or wherever he may be found. PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 2 4605088.1 4. Defendant Mikael Scot Fleenor is an individual who resides at 14107 Hunters Lake Way Court, Houston, TX 77044. Fleenor may be served with process at 820 Gessner, Suite 850, Houston, TX 77024 or wherever he may be found. IV. VENUE AND JURISDICTION 5. Venue is proper in Dallas County, Texas against Fleenor pursuant to Paragraph 7.4 of Fleenor’s employment agreement, which states that “Dallas County and the State of Texas shall be the exclusive venue for any litigation, special proceeding, or other proceeding as between the parties that may be brought, or arise out of, in connection with or by reason of this Agreement.” 6. Venue is proper in Dallas County, Texas against Ross pursuant to Paragraph 7.4 of Ross’s employment agreement, which states that “Dallas County and the State of Texas shall be the exclusive venue for any litigation, special proceeding, or other proceeding as between the parties that may be brought, or arise out of, in connection with or by reason of this Agreement.” 7. Jurisdiction is proper in Texas district court against Defendants because Defendants are Texas residents. 8. Pursuant to the Constitution of the State of Texas, subject matter jurisdiction lies with the district courts because the amount in controversy is within the Court’s jurisdictional limits. V. REQUEST FOR DISCLOSURE 9. Plaintiff demands that Defendants provide all information set forth in Texas Rule of Civil Procedure 194.2 within fifty (50) days of service of this Petition. VI. BACKGROUND FACTS 10. Southwest is a specialized wholesale insurance brokerage company. Southwest works with its clients to identify and provide comprehensive insurance solutions. PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 3 4605088.1 11. As a result, Southwest develops intimate knowledge of the identity, specific risks and ongoing needs of its clients, with whom Southwest has developed close, long-standing relationships. This knowledge and confidential information provides Southwest with a competitive advantage over other wholesale brokerage companies in a highly competitive marketplace. 12. Recognizing the proprietary information gained and utilized by Southwest’s employees and desiring to protect its critical client relationships, Southwest requires certain employees to execute employment agreements containing confidentiality clauses, thereby safeguarding Southwest’s confidential and proprietary information and trade secrets, as well as the confidential information of its clients. 13. Beginning on September 1, 2009, Ross was employed by Southwest as a Vice President. On October 27, 2010, Ross entered into an Employment Agreement with Southwest (Ross Agreement). A true and correct copy of Ross’s executed Employment Agreement is attached hereto as Exhibit A. 14. Beginning on December 3, 2012, Fleenor was employed by Southwest as an Associate Broker. On March 14, 2013, Fleenor entered into an Employment Agreement with Southwest (Fleenor Agreement). A true and correct copy of Fleenor’s executed Employment Agreement is attached hereto as Exhibit B. During Fleenor’s employment with Southwest, he was Ross’s subordinate as a member of “Team Ross” and worked closely with Ross as the team’s second in command. 15. During the course of Defendants’ employment, Southwest provided Defendants access to its proprietary, confidential information and trade secrets, including a wide variety of confidential materials, including, but not limited to, market data, strategic planning, annual forecasting, client information, client purchasing history, sales strategies, account development, PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 4 4605088.1 marketing plans, client lists and preferences, terms of client insurance coverage, terms of Southwest’s contracts, and client referral sources. Southwest provided Defendants access to information which was particular to the Southwest’s business and not available to Defendants from any other source. 16. Southwest has invested considerable resources developing the confidential information and trade secrets provided to Defendants, and Southwest goes to great lengths to maintain and protect the confidentiality of this information. One of those safeguards, and perhaps the most critical in this case, is its employment agreements. Realizing the amount of intimate knowledge that Defendants would acquire about Southwest, and more importantly, Southwest’s customers, the Employment Agreement was necessary to protect Southwest’s interests. 17. In their employment agreements, Defendants each agreed that they had access to Southwest’s confidential information. Specifically, the Fleenor Agreement and the Ross Agreement both provide: The Company promises, that during Employee’s employment with the Company, Employee will be shown and provided the use of and have access to the Company’s and its Affiliates’ confidential business plans, methods of operations, employment terms and policies (including, without limitation, those set forth in this Agreement), compensation methods and formulas (including, without limitation, those set forth in this Agreement), terms of insurance coverage, insurance limits, performance standards, pricing policies, marketing strategies, records, contracts, referral sources, and other information about the Company’s and its Affiliates’ operations and business of a confidential nature (the “Confidential Information”) and the Company’s trade secrets, and the Company agrees to provide Employee with such Confidential Information and trade secrets in connection with Employee’s employment with the Company under this Agreement. In exchange for that promise, during this Term of this Agreement and thereafter, Employee shall not in any manner, directly or indirectly, disclose or divulge to any person or other entity whatsoever, including particularly any person or entity directly or indirectly in competition with the Company or its Affiliates, or use for any purpose, any such Confidential Information and trade secrets, PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 5 4605088.1 except as required by law or to perform Employee’s duties hereunder or as expressly authorized in writing by the Company. . . . The Employee shall not use or disclose the Company’s Confidential Information and trade secrets that are retained in the knowledge of the Employee, except as required by law or to perform Employee’s duties hereunder or as expressly authorized in writing by the Company. Fleenor Agreement, Ex. A, at Paragraph 4.1; Ross Agreement, Ex. B, at Paragraph 4.1. 18. In that same regard, Defendants expressly agreed to return confidential information upon the termination of their employment with Southwest. Specifically, Defendants both agreed that: Upon the expiration or termination of this Agreement for any reason, Employee shall immediately return to the Company any and all Confidential Information and trade secrets in Employee’s possession or control in any form, whether electronic, paper copies, or other form or format, including, but not limited to, any originals or copies of, or computer discs, or other media, containing policies, procedures, records, operation or employment materials, client or customer lists and information, and billings or billing information and Confidential Information and trade secrets, wherever located and in whatever device or place retained or stored. Employee shall not retain any Confidential Information in any form or format (e.g., computer hard drive, computer disc, flash drive, paper copies, etc.) upon the expiration or termination of this Agreement. Fleenor Agreement, Ex. A, at Paragraph 4.1; Ross Agreement, Ex. B, at Paragraph 4.1. 19. Defendants further agreed that any violation of the confidentiality or return of confidential information provisions—both contained in Article IV of their respective employment agreements—would necessarily require an injunction to protect Southwest’s rights. Specifically, Defendants acknowledged that: the covenants of Employee set forth in this Articles IV and V are necessarily of a special, unique, and extraordinary nature and that the loss arising from a breach thereof cannot reasonably and adequately be compensated by money damages, as such a breach will cause the Company and itsAffiliates to suffer irreparable harm. Accordingly, upon failure of Employee to comply with the terms and conditions of Articles IV and V at any time, (i) the term of the covenants set forth in Articles IV and V will be extended by the period of the duration of PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 6 4605088.1 such breach; (ii) the Company and its successors or assigns will be entitled to receive from Employee any and all damages, losses or expenses related thereto or arising therefrom in addition to any amounts which may be otherwise due under this Section 6.1; and (iii) the Company and its successors or assigns will be entitled to obtain injunctive or other equitable relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of Article IV and V without the necessity of the Company posting a bond, which extraordinary relief shall be cumulative to, but not in limitation of, any other remedies that may be available. Fleenor Agreement, Ex. A, at Paragraph 6.1; Ross Agreement, Ex. B, at Paragraph 6.1. 20. On January 2, 2018, Southwest terminated Ross’s employment pursuant to Paragraph 3.2(f) of the Ross Agreement. Ross had approached Southwest management with an ultimatum. Ross stated that he had received an offer of employment from a competitor and that Southwest must pay him $275,000 and Fleenor $75,000 to convince them to stay. Southwest management opted to terminate Ross’s employment. 21. Following Ross’s termination, Southwest sent Ross a letter reminding him of, among other things, his confidentiality obligations under the Ross Agreement and demanding the immediate return of all confidential information. See January 2, 2018 Letter to Ross, attached hereto as Exhibit C. 22. Ross had been working remotely from home and had left personal items in Southwest’s Houston office. A courier was arranged by Southwest to deliver Ross’s personal items on January 10, 2018. Ross was to then provide his computer to the courier to return it to Southwest’s Dallas office. 23. On February 23, 2018, Fleenor voluntarily terminated his employment with Southwest without notice. Although Fleenor’s emailed resignation asserted it was effective immediately, the Fleenor Agreement explicitly required Fleenor to provide ten business days’ advance notice of resignation, which he did not comply with. See Fleenor Agreement, Ex. A, at Paragraph 3.2(d). PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 7 4605088.1 24. Similar to Ross, Southwest also sent Fleenor a letter reminding him of, among other things, his confidentiality obligations under the Fleenor Agreement and demanding the immediate return of all confidential information. See February 26, 2018 Letter to Fleenor, attached hereto as Exhibit D. To date, Southwest has received no response from Fleenor to Southwest’s letter. 25. Following Fleenor’s resignation, Southwest conducted a forensic investigation of the computer Fleenor used at Southwest. 26. The forensic investigation revealed that Fleenor had connected an external storage device to his computer prior to his departure. 27. Based on the results of the forensic investigation of Fleenor’s computer, Southwest conducted a similar forensic investigation on Ross’s computer. 28. That forensic investigation revealed that Ross had also connected an external storage device to his computer immediately preceding the return of his computer. 29. Based on these facts, Southwest has reason to believe that: (1) Defendants failed to turn over all of Southwest’s confidential information at the end of their employment with Southwest; (2) prior to returning his computer, Ross surreptitiously transferred Southwest’s confidential information and trade secrets to a personal device; (3) prior to his resignation, Fleenor surreptitiously transferred Southwest’s confidential information and trade secrets to a personal device; and (4) Defendants have used or plan to use Southwest’s confidential information and trade secrets for their own benefit and/or the benefit of their new employer, R-T Specialty, LLC, a direct competitor of Southwest. 30. Defendants’ conduct is intentional, unlawful and immeasurably harmful to Southwest. Accordingly, Southwest seeks temporary and permanent injunctions from this Court enjoining Defendants from the wrongful use or disclosure of Southwest’s confidential PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 8 4605088.1 information and trade secrets and requiring the return of all of Southwest’s confidential and proprietary information and trade secrets in Defendants’ possession, custody, or control. 31. Pursuant to Texas Rule of Civil Procedure 682, Plaintiff’s Original Petition and Application for Injunctive Relief is supported by: (1) the Verification of Alicia Koo, attached hereto as Exhibit E, as to Paragraphs 10 – 24, 28 – 29, and 45 – 46; and (2) the Affidavit of Dennis Williams attached hereto as Exhibit F, as to Paragraphs 25 – 28. VII. CAUSES OF ACTION A. Texas Uniform Trade Secrets Act 32. The above paragraphs are incorporated herein as if fully set forth. 33. Defendants’ use of Southwest’s confidential information and trade secrets—which includes a wide variety of information regarding Southwest and Southwest’s clients—constitutes a misappropriation of trade secrets under TUTSA. See Tex. Civ. Prac. & Rem. Code § 134A.001, et. seq. 34. Defendants have a duty to refrain from using or disclosing Southwest’s trade secrets and/or confidential information. 35. Defendants breached this duty in violation of TUTSA. 36. As a direct and proximate result of Defendants’ misappropriation, Southwest has suffered and will continue to suffer damages. 37. As a result of Defendants’ violations of TUTSA, Southwest seeks its actual damages and lost profits. See Tex. Civ. Prac. & Rem. Code § 134A.004. Southwest also seeks its reasonable attorneys’ fees because Defendants’ misappropriation was willful and malicious. See id. § 134A.005. B. Breach of Contract 38. The above paragraphs are incorporated herein as if fully set forth. PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 9 4605088.1 39. Southwest entered into valid and enforceable employment agreements with Defendants. 40. By engaging in the conduct described above, Defendants have materially breached these agreements. 41. As a direct and proximate result of Defendants’ breaches, Southwest has suffered, and will continue to suffer, actual damages, although such damages are not readily ascertainable or measurable. VIII. APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTIVE RELIEF 42. The above paragraphs are incorporated herein as if fully set forth. 43. The facts above establish the required elements for Southwest to obtain a temporary injunction against Defendants. Those elements are: (1) a cause of action against the defendants; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). 44. The first two elements of Southwest’s request for a temporary injunction are easily satisfied. Establishing a probable right to relief does not require the applicant to establish that it will prevail at trial. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). Rather, this element merely requires the applicant to allege a cause of action and present evidence that tends to sustain that cause of action. See Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 597 (Tex. App.—Amarillo 1995, no writ). 45. The evidence contained herein clearly establishes that Southwest will succeed in showing that Defendants breached their employment agreements and violated TUTSA. Defendants are currently in possession of, misappropriating, accessing, copying, and using Southwest’s confidential and proprietary information and trade secrets. Further, upon PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 10 4605088.1 information and belief, Defendants are currently employed by R-T Specialty, LLC, Southwest’s direct competitor. 46. Further, Defendants’ possession, use, and/or disclosure of Southwest’s confidential and proprietary information and trade secrets will result in immediate, irreparable injury to Southwest’s goodwill, competitive advantage, and market share. In particular, if Defendants are not enjoined, they will continue to cause immediate, irreparable harm to Southwest for which there is no adequate remedy at law, including, without limitation, loss of business, reputational harm, loss of goodwill, loss of competitive position in the marketplace, loss of confidential and proprietary information, and interference with business relationships. Each of the foregoing constitutes irreparable harm for which injunctive relief is appropriate. See Liberty Mut. Ins. Co. v. Mustang Tractor & Equip. Co., 812 S.W.2d 663, 666 (Tex. App.— Houston [14th Dist.] 1991, no writ) (holding that disruption of business constitutes irreparable harm in awarding a temporary injunction); Graham v. Mary Kay, Inc., 25 S.W.3d 749, 753 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“Irreparable harm for purposes of a temporary injunction may include noncompensable injuries such as a company’s loss of goodwill, clientele, marketing technique, office stability and the like.” (quotation marks omitted)). 47. Southwest has no adequate remedy at law to compensate it for Defendants’ possession, use, and/or disclosure of Southwest’s confidential and proprietary information and trade secrets. Because the harm is unknown and immeasurable, Southwest cannot be compensated by money damages for the losses it have incurred, and will continue to incur, by Defendants’ unlawful possession, use, and/or disclosure of Southwest’s confidential and proprietary information and trade secrets. Without enforcement of Defendants’ employment agreements and TUTSA, Southwest will continue to suffer irreparable harm. PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 11 4605088.1 A. Request for a Temporary Injunction 48. For these reasons, Southwest requests the Court enter a temporary injunction ordering that: a. Defendants and their agents, servants and employees, and those acting in concert or participation with them, are enjoined from accessing, using, reviewing, referring to, copying, or disclosing Southwest’s confidential and proprietary information and trade secrets accessed, made available, used, or obtained by virtue of Defendants’ employment with Southwest; b. Defendants and their agents, servants and employees, and those acting in concert or participation with them, are enjoined from deleting, destroying, modifying, moving, or altering any of Southwest’s confidential, proprietary, or trade secret information which Defendants have stored on in any written or electronic form; c. Defendants and their agents, servants and employees, and those acting in concert or participation with them, are enjoined from accessing, using, disclosing, transmitting, or referring to any Southwest current or prospective client information accessed, made available, used, or obtained by virtue of Defendants’ employment with Southwest; d. Defendants and their agents, servants and employees, and those acting in concert or participation with them, must return to Southwest, within 3 days of this Order, any and all records, documents, and/or other materials or information, whether in original, copy, computerized, electronic, handwritten, or in any other form, and all reproductions thereof, relating to Southwest and which were obtained from it by virtue of Defendants’ employment with Southwest; and e. Defendants must submit all electronic devices used to store or access any documents, materials or electronic files of Southwest to the Forensics Examiner identified below,1 or another forensic examiner of the Court’s choosing, for a forensic imaging and analysis within 3 days of this Order. B. Request for Temporary Injunction Hearing 49. Southwest requests this Court set its request for a temporary injunction for hearing, and after the hearing, issue a temporary injunction against Defendants with the scope of restrictions outlined above. 1 Forensic Examiner: Dennis Williams Pathway Forensics 14405 Walters Road, Suite 630 Houston, TX 77014 PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 12 4605088.1 C. Request for Permanent Injunction 50. Southwest further requests this Court, upon final trial of this cause, issue a permanent injunction against Defendants with the same scope of restrictions requested for the temporary injunction above. IX. BOND 51. Southwest is willing and able to post an appropriate bond. X. CONDITIONS PRECEDENT 52. All conditions precedent necessary to the prosecution of this suit have been performed, have occurred, or have been waived. XI. ATTORNEYS’ FEES 53. Southwest is entitled to and does seek an award of its reasonable and necessary attorneys’ fees pursuant to Texas Civil Practice and Remedies Code § 134A.005. XII. EXEMPLARY DAMAGES 54. Defendants’ actions were undertaken with the kind of willfulness and malice for which the law allows the imposition of exemplary damages. Accordingly, Southwest hereby seeks an award of exemplary damages in an amount to be determined by the trier of fact. XIII. RULE 47 DECLARATION OF DAMAGES SOUGHT 55. Pursuant to Rule 47 of the Texas Rules of Civil Procedure, Southwest pleads that it seeks monetary relief over $200,000.00 and under $1,000,000.00 and equitable relief against Defendants. XIV. PRAYER WHEREFORE, Plaintiff Southwest Risk, LP prays that Defendants Keith Ross and Mikael Scot Fleenor be cited to appear, and that the Court enter a final judgment for Southwest against Defendants as follows: PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 13 4605088.1 a. for injunctive relief as set forth herein; b. for all actual damages proved at trial; c. for prejudgment interest as provided by law; d. for reasonable attorneys’ fees and expenses; e. for post-judgment interest as provided by law; f. for exemplary damages as provided by law; g. for all costs of court; and h. for such other and further relief, both general and special, legal or equitable, to which Southwest may show themselves to be justly entitled. Respectfully submitted, GRAY REED & McGRAW, LLP By: /s/ Ralph Perry-Miller Ralph Perry-Miller Texas Bar No.: 15810300 rperry-miller@grayreed.com Marcus Fettinger State Bar No.: 24078500 mfettinger@grayreed.com Jake Lewis State Bar No.: 24087924 jlewis@grayreed.com 1601 Elm Street, Suite 4600 Dallas, Texas 75201 (214) 954-4135 (214) 953-1332 (Facsimile) ATTORNEYS FOR PLAINTIFF SOUTHWEST RISK, LP PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF – PAGE 14 4605088.1 7"'·-----------."2~--------------.!11. 1!..--\(j•E•I•""i'•tt-~-~-~-~-A-rJ•Kl-~-,...-S--- "'''i;• i i KE|T|+ 1632mm ms EMPLOYMENT AGREEMENT E~LOYMENTAGREEMffiNT SOUTHWEST RISK (Producer) (Producer) This This EWLOYMENT EMPLOYMENT AGREEMENT ("Agreement") (“Agreement”) is is entered entered into into on on the the execution execution date date specified specified on the the signature signature page page hereof hereof and and to be t0 be effective effective ·as as of of the the date date specified specified on on the the Schedule A attached attached hereto, hereto, if if different different than than the the date date of of execution execution (the (the "Effective “Effective Date"), Date”), by by and and between between SOUTHWEST RISK, RISK, LP, LP, aa Texas Texas limited limited partnership partnership (the (the "Company") “Company? and and the the undersigned employee undersigned employee ("Employee"). (“Employee”). WITNESSETH: 'WITNESSETH: WHEREAS, the the Company desires