Motion to Quash Service of Subpoena in Toptal, Llc v. Workgenius, Inc., Sabaina Bukhari| Trellis.Law

On November 02, 2023 a Exhibit,Appendix was filed involving a dispute between Toptal, Llc, and Sabaina Bukhari, Workgenius, Inc., for Special Proceedings - Other (Discovery in Aid of Arb) in the District Court of New York County.

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EXHIBIT 1

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JUDICIAL ARBITRATION & MEDIATION SERVICES INC.

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JAMS Ref No. 5425000743
TOPTAL, LLC,
Christopher M. Kwok, Arbitrator
Claimant,
Catrina Barnes, Case Administrator
-v-
SUBPOENA DUCES TECUM
AND AD TESTIFICANUM
SABAINA BUKHARI,

Respondents.
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To: WorkGenius, Inc.
108 W. 39th Street, 7th Floor
New York, NY 10018

GREETINGS:

WE COMMAND YOU, that all business and excuses being laid aside, you appear at Carter

Ledyard & Milburn LLP, 28 Liberty Street, 41st Floor, New York, NY 10005, on October 31, 2023 at

10:00 A.M., 1 and at any recessed or adjourned date, to testify at a deposition in this arbitration proceeding,

and produce at that time and place, and permit the inspection, copying and testing of, the following

documents, electronically stored information or objects in your possession, custody and/or control the

documents listed on Exhibit A of this Subpoena.

PLEASE TAKE NOTICE that you are being subpoenaed to testify and provide documents on

behalf of Claimant Toptal, LLC, which alleges that its former employee, Respondent Sabaina Bukhari,

violated her post-employment restrictive covenants to Toptal, LLC by becoming employed by

WorkGenius, Inc. and/or one of its subsidiaries or affiliates (e.g., TeamJBC LLC, JBC Team, WorkGenius

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Production may be made electronically prior to the deposition date to the email address for counsel set forth below. The
deposition may be scheduled to take place via Zoom or another remote electronic video platform. Please contact counsel in
advance of the deposition to coordinate remote access to the deposition.
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Holding Company, WorkGenius Holdings Inc., WorkGenius Group, JBC and Agency WorX) and

soliciting Toptal talent and customers to do business with WorkGenius, Inc. and/or one of its affiliates,

and Toptal, LLC believes that you possess information and documents that are material and necessary to

the claims and defenses set forth in this proceeding. A copy of the Statement of Claim dated November

11, 2022 is attached as Exhibit B. A copy of the Answer to the Respondent’s Response to Claimant’s

Statement of Claim filed by Ms. Bukhari on or about December 16, 2022 is annexed as Exhibit C.

Ms. Bukhari has been preliminary enjoined from being employed by WorkGenius, pursuant to

Order No. 2 of Arbitrator Chris M. Kwok, filed on March 27, 2023, a copy of which is annexed as Exhibit

Dated: September ____,
25 2023 Signed:

_____________________________,
Arbitrator
Requested by:

Jacob H. Nemon
Carter Ledyard & Milburn LLP
28 Liberty Street, 41st Floor
New York, New York 10005
Tel. (212) 732-3200
Email: nemon@clm.com

Counsel for Claimant Toptal, LLC

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With notice to:

J. Gregory Lahr, Esq.
Concepcion A. Montoya, Esq.
Jacinda Chen-Nguyen, Esq.
Hinshaw & Culbertson LLP
800 Third Avenue, 13th Floor
New York, NY 10022
T: (212) 471-6218
E: glahr@hinshawlaw.com
cmontoya@hinshawlaw.com
jchen-nguyen@hinshawlaw.com
Counsel for Respondent Sabaina Bukhari

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EXHIBIT A – DOCUMENTS TO BE PRODUCED

DEFINITIONS

A. “Appendix 1” refers to an appendix to these document requests which Toptal will provide

to you upon your agreement to be bound by the Confidentiality Order governing the litigation prohibiting

the use and dissemination of highly confidential information. Appendix 1 will be designated “Highly

Confidential” thereunder.

B. “Bukhari Answer” refers to the Answer to the Respondent’s Response to Claimant’s

Statement of Claim filed by Bukhari in the Proceeding on or about December 16, 2022, and any actual or

functional amendments thereto.

C. “Bukhari” refers to Respondent Sabaina Bukhari and present or former agents, employees,

consultants, and representatives of Sabaina Bukhari, or any one or more of the foregoing.

D. “Claimant” refers to Toptal.

E. “JBC” refers to TeamJBC LLC and present or former agents, employees, consultants,

representatives and affiliates of TeamJBC LLC (including without limitation WorkGenius and JBC

Team), or any one or more of the foregoing.

F. “Proceeding,” or any pronoun referring to the Proceeding, means the above-captioned

arbitration proceeding, including all pleadings and proceedings filed or had therein.

G. “Statement of Claim” or “SOC” refers to the Statement of Claim filed by Toptal in the

Proceeding on November 11, 2022, and all exhibits annexed thereto.

H. “Strauss” refers to Yafim Strauss and present or former agents, employees, consultants,

and representatives of Yafim Strauss, or any one or more of the foregoing.

I. “Oblianda” refers to Carol Oblianda and present or former agents, employees, consultants,

and representatives of Carol Oblianda, or any one or more of the foregoing.

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J. “Order No. 2” refers to the Order of Chris M. Kwok, Arbitrator, filed in the Proceeding on

March 27, 2023.

K. “Toptal Clients” refers to those persons, whether individuals or entities, who (i) have

engaged Toptal to provide services (, or were in discussions or negotiations with Toptal to engage Toptal,

or (ii) are known by you to have been solicited by Toptal, or whom have reached out to Toptal, to provide

services or engage in discussions or negotiations regarding the provision of Toptal services.

L. “Toptal Personnel” refers to those individuals, or groups of individuals, who are or have

been hired or engaged by Toptal as employees, independent contractors, or other core team members.

M. “Toptal Proprietary Information” refers to Toptal’s internal documents and

communications concerning: client account information; computer and website usernames and passwords;

non-public information concerning Toptal’s websites or platform; strategies Toptal uses to compete with

other companies; any data, reports, studies, interpretations, forecasts, know-how, compositions, plans,

strategies, strategic partnerships, employee information, financial records, intellectual property, product

development plans, research, ideas, concepts, designs, formulas, technology, devices, inventions, methods

or processes (whether or not patented or patentable); the substance of agreements with clients, suppliers

and any third party; customer lists; supplier lists; marketing arrangements; pricing policies and records;

and such other information normally understood to be confidential; as well as information discerned from,

based on or relating to any of the foregoing concerning Toptal.

N. “Toptal Talent” refers to those individuals, or groups of individuals, who are, were, or who

have been recruited by Toptal to be, part of Toptal’s network of highly-skilled knowledge workers, such

as software engineers, developers, product managers, designers and other freelancers, whom Toptal

matches to provide services for or at the request of Toptal Clients. Toptal Talent includes without

limitation the individuals identified in Appendix 1.

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O. “Toptal” refers to Claimant Toptal, LLC and present or former agents, employees,

consultants, representatives and affiliates of Toptal, LLC, or any one or more of the foregoing.

P. “WorkGenius” refers to WorkGenius, Inc. and present or former agents, employees,

consultants, representatives and affiliates of WorkGenius, Inc. (including without limitations WorkGenius

Holding Company, WorkGenius Holdings Inc., WorkGenius Group, JBC and Agency WorX) or any one

or more of the foregoing.

Q. The terms “communication” or “communications” mean the transmittal of information (in

the form of facts, ideas, inquiries, or otherwise) by any means or methodology, including (without

limitation) any meeting, conversation, discussion, document, correspondence, message, email, note, text

message, direct or instant message, or other means of transmittal.

R. The terms “concern” or “concerning” mean referring to or mentioning in any way, whether

explicitly or implicitly.

S. The terms “document” and “documents” have the same meaning and scope as the broadest

usage given to these terms, including (without limitation) the following: all writings and records of any

kind; electronic or computerized data compilations; embedded data and metadata; originals, drafts, all

non-identical copies; written or electronic correspondence, email, Bloomberg Terminal messages,

communications, records, memoranda, notes, diaries, calendars, statistics, letters, telegrams, minutes,

contracts, agreements, reports, price lists, agendas, manuals, studies, checks, statements, ledgers of

account, and work papers; inter-office and intra-office communications; notes and notations in any form;

recordings of telephone calls; minutes of meetings, or other communications; bulletins; printed matter

(including newspapers, magazines, and other communications and articles and clippings); press releases;

printouts; teletypes and telecopies; ledgers; work sheets; graphic or oral records of representations or

presentations of any kind (including, without limitation, photographs, charts, graphs, and PowerPoint

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presentations); microfiche, microfilm, and digital, video or film recordings; electronic, mechanical, or

electrical records; tapes, cassettes, disks, recordings, or transcriptions thereof; any drafts, alterations,

modifications, changes, and amendments of any of the foregoing; and any other documents. The terms

“document” and “documents” specifically include electronic data or information contained in or on

computer networks, mainframes, computer files, smartphones, cellular phones, pocket organizers,

personal digital assistants, personal computers, LAN’s local workstations, computer disks, file servers,

email systems, cd-roms, e-mails, hard drives, printer buffer or memories, fax memories, voice mail

systems, cloud storage or other storage media, or any related back-up or archived systems or tapes.

T. The terms “person” or “persons” mean natural persons as well as legal entities, including,

without limitation, firms, companies, proprietorships, corporations, partnerships, limited liability

companies, associations, unincorporated associations, and governmental bodies, agencies, and officials,

and every other type of organization or entity.

U. The terms “representative” or “representatives,” when used in reference to a person, mean

any past or present officer, director, partner, associate, member, employee, consultant, agent, subsidiary,

or affiliate of such persons, and any other person acting on behalf of, or in concert with, such person.

V. The terms “you,” “your,” and “yourself” refer to Bukhari, jointly or severally, or former

agents, employees, consultants, and representatives, or any one or more of the foregoing.

W. Unless otherwise specified, the term “Relevant Period” means June 1, 2022 through the

present.

RULES OF CONSTRUCTION

A. The use of the singular form of any word includes the plural and vice versa.

B. The masculine includes the feminine and neutral genders, and vice versa.

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C. The connectives “and” and “or” shall be construed either disjunctively or conjunctively as

necessary to bring within the scope of these document requests all responses that might otherwise be

construed to be outside of its scope.

D. The use of the terms “any” and “all” shall be construed to mean “any and all” as necessary

to bring within the scope of these document requests all responses that might otherwise be construed

outside of its scope.

E. The term “including” shall not be construed as a limiting phrase but, rather, shall be

construed to mean “including, without limitation.”

F. The use of a verb in any tense shall be construed as the use of the verb in all other tenses

as necessary to bring within the scope of these document requests all responses that might otherwise be

construed to be outside of its scope.

INSTRUCTIONS

A. These document requests shall be deemed continuing and, to the extent that your responses

may be enlarged, diminished, supplemented, or otherwise modified by documents or information acquired

subsequent to your initial response to this notice to produce, you shall promptly supplement your

responses and production. Plaintiff specifically reserves the right to seek supplementary responses to this

notice to produce before trial.

B. In producing documents and other things, you shall furnish all responsive documents or

things in your possession, custody, or control.

C. Documents and things requested herein shall be produced as they are kept in the usual

course of business or organized and labeled to respond to the specific categories set forth in this notice to

produce and with information indicating their source (e.g., the person(s) from whom the documents were

obtained).

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D. A request calling for the production of any document shall be deemed to include, in

addition to the document itself, a request for any and all exhibits or attachments to the document and any

enclosures sent or kept with the document. Documents attached to each other shall not be separated.

E. Documents maintained or stored electronically may be produced on CD, DVD, File

Transfer Protocol site, portable hard or flash drive, or other reasonably accessible media format. All such

documents shall be produced in TIFF format with Optical Character Recognition (“OCR”) and standard

load files for Concordance, and shall include all metadata (including, without limitation, document

boundaries and custodian identification information) associated with any file converted to TIFF. In

addition to producing TIFF files with OCR, metadata, and standard load files, native files shall be

produced for any PowerPoint presentations containing audio or video, any Excel documents, any Access

databases, or documents created under equivalent or similar software packages. Data files shall not be

zipped, encrypted, or otherwise restricted or proprietarily protected for specific use. If the native file

format is derived from software not accessible with Microsoft Office applications (or other common

applications), please state so in your response.

F. Documents maintained in hardcopy shall be produced in TIFF image format with

corresponding OCR text, associated data identifying the beginning and ending bates numbers, and, to the

extent applicable, information associating document families or attachment ranges.

G. Documents requested herein shall be produced in such fashion as to identify the

department, branch, or office in whose possession it was located, and, where applicable, the natural person

in whose possession it was located or stored, and the business address of each document’s custodian.

H. The file or other container in which a document is kept is deemed to be an integral part of

the document and shall be produced with the document. Whenever a document or group of documents is

maintained in the ordinary course of business in any file, folder, container, box, or other document storage

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or organization device, each request herein shall be deemed to call for the production of copies of, or the

identification of, such file, folder, container, box, or other document storage or organization device, and

any labels or other form of identification set forth thereon.

I. Unless otherwise indicated, the documents to be produced include all documents prepared,

sent, dated or received, or which otherwise exist at any time during the time period covered by this notice

to produce.

J. You shall produce both original and all non-identical copies of all responsive documents

in your possession, custody, or control, regardless of the location where the documents are stored or the

manner in which the documents are stored, electronically, or otherwise. As such, you shall produce all

responsive documents stored in or originating from personal computers or laptops, smartphones, or any

devices similar to any of the foregoing used by your officers, directors, or employees, whether or not such

documents were sent or received through any of your corporate computer network(s). You shall also

produce all audio, video, graphic, electronic, or handwritten responsive documents.

K. Each document and thing requested herein shall be produced in its entirety and without

deletion or excisions, regardless of whether you consider the entire document to be relevant or responsive

to this request. If you have redacted any portion of the document, you shall stamp the word “redacted”

on each page of the document that you have redacted. If any document covered by these requests contains

a redaction, you shall identify such document and all redactions on a log specifically identifying the

following: (i) the type of document; (ii) any addressor and addressee; (iii) any indicated or blind copies;

(iv) the document’s date; (v) the general subject matter of the document, number of pages, and a

description of any attachments or appendices; (vi) all persons to whom the document was distributed,

shown, or explained; and (vii) the nature and basis of the privilege or grounds for redaction being asserted.

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L. If any document requested herein is withheld from production on the basis of any claim or

privilege or other protection or immunity from disclosure, you shall furnish a log specifically identifying

the following: (i) the type of document; (ii) any addressor and addressee; (iii) any indicated or blind

copies; (iv) the document’s date; (v) the general subject matter of the document, number of pages, and a

description of any attachments or appendices; (vi) all persons to whom the document was distributed,

shown, or explained; and (vii) the nature and basis of the privilege or grounds for withholding being

asserted.

M. Documents not otherwise responsive to this notice to produce shall be produced if such

documents mention, discuss, refer to, or explain the documents which are called for by this notice to

produce or constitute routing slips, transmittal memoranda or letters, comments, evaluations, or similar

materials.

N. If any documents requested herein have been lost, discarded, or destroyed, they shall be

identified as completely as possible, including, without limitation, the following information: (i) the date

of disposal; (ii) the manner of disposal; (iii) the reason(s) for disposal; (iv) the person authorizing disposal;

and (v) the person disposing of the document.

O. Unless otherwise indicated, these requests call for all documents created, sent, received, or

otherwise possessed during the Relevant Period.

DOCUMENT REQUESTS

1. All employment offer letters, employment agreements, stock options agreements or

applicable policies, bonus agreements or applicable policies, indemnity agreements and any other

agreements concerning the terms and conditions of Bukhari’s employment or any other engagement for

WorkGenius, JBC, or any WorkGenius or JBC subsidiaries or affiliate.

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2. All documents concerning the job description(s) or duti(ies) for any position(s) Ms.

Bukhari held at WorkGenius, JBC, or any WorkGenius or JBC subsidiaries or affiliates.

3. Bukhari’s W-2 and all other tax documents and records from WorkGenius, JBC, or any

other entity that paid her for the year 2022.

4. All of Bukhari’s paystubs from WorkGenius, JBC, or any other entity that paid herfor

services or work performed during the Relevant Period.

5. A report of all individuals or entities Bukhari solicited on behalf of WorkGenius, JBC, or

any of their subsidiaries or affiliates to be employees, talent or customers, including the gross revenues

earned by WorkGenius, JBC, or any of their subsidiaries or affiliates on account of such individuals or

entities.

6. A report of all Toptal Personnel or Toptal Talent Bukhari solicited to perform services or

work for WorkGenius, JBC, or any of their subsidiaries or affiliates, including the gross revenues earned

by WorkGenius, JBC or any of their subsidiaries or affiliates on account of such individuals.

7. A report that details any commissions or other monetary renumeration Bukhari earned for

the work or services she performed for WorkGenius, JBC, or any of their subsidiaries or affiliates.

8. Copies of all Toptal Proprietary Information provided by Bukhari to WorkGenius.

9. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates

and Bukhari concerning Toptal or this Proceeding.

10. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates

and Bukhari concerning or sharing Toptal Proprietary Information.

11. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates

and Bukhari concerning solicitations, discussions, negotiations, offers, agreements or arrangements for

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Bukhari to provide services to WorkGenius or its affiliates (including without limitation JBC), whether as

an employee, independent contractor, consultant or in any other capacity.

12. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates

and Bukhari concerning solicitation of any individuals known to be affiliated with Toptal based on her

interactions with such individuals while employed by Toptal, information Bukhari learned while at Toptal

or information available to Bukhari from LinkedIn or other public sources.

13. All communications between any other employee or independent contractor of

WorkGenius, JBC or any of their subsidiaries or affiliates and Bukhari in which Bukhari requested or

suggested that such other person solicit any individual who was a Toptal Talent or Toptal Personnel.

14. All communications between WorkGenius, JBC, or any of their subsidiaries or affiliates

and Bukhari concerning policies, protocols or strategies with respect to soliciting, recruiting, interviewing

and vetting processes for individuals who have already been approved as Toptal Talent.

15. All communications with Bukhari regarding the voluntary or involuntary termination of

Bukhari’s employment with WorkGenius or JBC, JBC, or any affiliate or subsidiary of WorkGenius or

JBC.

16. All communications amongst WorkGenius executives and/or employees regarding the

voluntary or involuntary termination of Bukhari’s employment with WorkGenius or JBC, JBC, or any

affiliate or subsidiary of WorkGenius or JBC.

17. All communications with Bukhari concerning the transfer of Bukhari’s employment from

WorkGenius to JBC as a result of this Proceeding or Order No. 2.

18. All communications amongst WorkGenius executives and/or employees concerning the

transfer of Bukhari’s employment from WorkGenius to JBC as a result of this Proceeding or Order No. 2.

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19. All communications with Bukhari concerning this Proceeding or WorkGenius’ agreement

to indemnify or defend claims by Toptal against Bukhari.

20. All communications amongst WorkGenius executives or employees concerning this

Proceeding or WorkGenius’ agreement to indemnify or defend claims by Toptal against Bukhari.

21. All records of payments made by WorkGenius, JBC, or any of their subsidiaries or

affiliates to Bukhari or on her behalf in connection with the duty to indemnify or defend Bukhari.

22. All communications between Bukhari and WorkGenius, JBC, or any other entity or

individual concerning Order No. 2.

23. All communications amongst WorkGenius executives and/or employees concerning Order

No. 2.

24. All communications between Strauss and Bukhari concerning Toptal or this Proceeding.

25. All communications between Strauss and Bukhari concerning Bukhari’s employment by

WorkGenius, JBC, or any of their subsidiaries or affiliates.

26. All communications between Strauss and Bukhari concerning solicitation of any Toptal

Talent, Toptal Client, or Toptal Personnel.

27. All communications between Strauss and Bukhari concerning Oblianda.

28. All communications between Oblianda and Bukhari or Strauss.

29. All communications between Bukhari or Strauss and anyone affiliated with WorkGenius,

JBC, or any of their subsidiaries or affiliates regarding Oblianda.

30. All communications amongst WorkGenius executives and/or employees regarding

Oblianda.

31. The WorkGenius or JBC contract or offer letter sent by Bukhari to Oblianda.

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32. All communications sent by Bukhari during the period of her employment by WorkGenius,

JBC, or any other entity to any Toptal Talent, Toptal Client, or Toptal Personnel, including without

limitation through LinkedIn.

33. All communications sent by Bukhari during the period of her employment by WorkGenius,

JBC or any of their subsidiaries or affiliates to any of the persons identified in Appendix 1, including

without limitation through LinkedIn.

34. A report of the gross revenues earned by WorkGenius, JBC, or any of their subsidiaries or

affiliates on account of their engagement of any of the persons identified in Appendix 1.

35. All documents and communications concerning any compensation paid or to be paid to

you by WorkGenius, JBC, or any other entity to or on behalf of Bukhari since the issuance of Order No.

36. Documents evidencing the various industries and geographical covered by Bukhari’s

position of Director of Talent Operations at WorkGenius,

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APPENDIX 1 – TALENT LIST

“HIGHLY CONFIDENTIAL” – TO BE PROVIDED UPON EXECUTION OF AGREEMENT TO BE
BOUND BY CONFIDENTIALITY ORDER

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EXHIBIT B

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JUDICIAL ARBITRATION & MEDIATION SERVICES INC.
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TOPTAL, LLC, Case No. _____________

Claimant, STATEMENT OF CLAIM

-v-

YAFIM STRAUSS and SABAINA BUKHARI,

Respondents.
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Claimant Toptal, LLC (“Toptal”), for its Statement of Claim, alleges the following:

PARTIES

1. Toptal is a limited liability company organized and existing pursuant to the laws of

the State of Delaware, with a principal mailing address at 2810 N. Church St. #36879, Wilmington,

DE 19802. Toptal is a fully remote company with no fixed headquarters or executive office.

2. Respondent Yafim Strauss (“Mr. Strauss”) is a resident of the State of New Jersey,

with an address at 9 Bluebird Lane, Marlboro, NJ 07746.

3. Mr. Strauss is a former employee of Toptal, who was employed from approximately

October 16, 2017 until his resignation without notice on June 9, 2022.

4. As a condition of his employment for Toptal, on August 28, 2020, Mr. Strauss

executed (a) the effective Proprietary Information and Inventions Assignment Agreement

(“Agreement”), and (b) the Mutual Arbitration Agreement (“Strauss Arbitration Agreement”).

True and correct copies of the Strauss Agreement and Strauss Arbitration Agreement are attached,

respectively, as Exhibits A and B.

5. Respondent Sabaina Bukhari (“Ms. Bukhari”) is a resident of the State of Texas,

with an address at 24115 Orange Orchard Lane, Katy, Texas 77493.

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6. Ms. Bukhari was an independent contractor for Toptal from August 4, 2016 through

January 10, 2017, when she became an employee until her resignation effective August 5, 2022.

7. As a condition of her employment, on June 22, 2020, Ms. Bukhari executed (a) the

effective Proprietary Information and Inventions Assignment Agreement (“Bukhari Agreement”),

and (b) the Mutual Arbitration Agreement (“Bukhari Arbitration Agreement”). True and correct

copies of the Bukhari Agreement and Bukhari Arbitration Agreement are attached, respectively,

as Exhibits C and D.

8. Mr. Strauss and Ms. Bukhari are presently employed by WorkGenius, Inc.

(“WorkGenius”), a Delaware corporation with its principal place of business in the State of New

York at 110 E. 25th Street, New York, NY 10010.

9. As set forth below, WorkGenius directly competes with Toptal, and Respondents’

employment by WorkGenius directly violates the noncompete provisions in their respective

agreements with Toptal.

ARBITRATION AGREEMENTS

10. Pursuant to each of the Respondents’ Arbitration Agreements, each agreed:

The Company and I agree to the resolution by binding arbitration of all
claims or controversies, past, present or future, whether or not arising out
of our employment relationship or its termination, and whether against the
employee, the Company, its officers, directors employees or agents in their
capacity as such or otherwise, the Company’s parent, subsidiary and
affiliated entities, the Company’s benefit plans or plan’s sponsors,
fiduciaries, administrators, affiliates and agents and/or all successors and
assigns of them. The Company and I agree that any arbitration will be
administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”),
pursuant to its Employment Rules & Procedures (the “JAMS Rules”),
which are available at http://www.jamsadr.com/rules-employment-
arbitration/. The Company and I agree that any arbitration under this
Agreement shall be conducted at the site of the closest JAMS office to my
place of employment by the Company.

Exhs. B and D, at ¶ 1.

11125913.6
FILED: NEW YORK COUNTY CLERK 11/02/2023 11:23 AM INDEX NO. 160750/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/02/2023

The Arbitration Agreements provide with respect to the arbitrator’s authority:

Arbitrator’s Authority: The arbitrator shall base the decision on the facts
presented at the hearing and in accordance with governing law, including statutory
and judicial authority. The arbitrator shall not have authority to apply any law or
impose any remedy other than that which a court would apply or impose in the
absence of the Agreement. The arbitrator shall have the power to decide any
motions brought by any party to the arbitration, including motions for summary
judgment and/or adjudications, and motions to dismiss. The arbitrator shall issue a
written decision on the merits and shall have the power to award any remedies
available under applicable law. The Company and I agree that the decree or award
rendered by the arbitrator may be entered as a final and binding judgment in any
court having jurisdiction thereof. Both the Company and I will each bear our own
attorneys’ fees and costs in connection with the arbitration. However, as provided
by applicable law, if the Company or I prevail on a claim which affords the
prevailing party attorneys’ fees and costs, the arbitrator may award reasonable
attorneys’ fees and/or costs to the prevailing party, applying the same standards a
court would apply under the law applicable to the claim(s). The Company agrees
that it will pay for any administrative or hearing fees charged by the arbitrator or
the Company except that I shall pay any filing fees associated with any arbitration
that I initiate, but only so much of the filing fees as I would have paid had I filed a
complaint in a court of law.

Exhs. B and D, at ¶ 7.

11. The Arbitration Agreements further provide with respect to the law governing

arbitrarily:

Governing Law: The Company and I acknowledge that the Company is engaged
in interstate commerce and that my employment will involve interstate commerce.
Accordingly, the Company and I agree that this Agreement will be governed and
construed in accordance with the Federal Arbitration Act (FAA). If for any reason
the FAA is found not to apply, then this Agreement will be governed and construed
in accordance with the laws pertaining to arbitration of the State of Delaware
(unless I primarily reside and work in California, in which case, in the event the
FAA is found not to apply, this Agreement will be governed by California law).

Exhs. B and D, at ¶ 13.

11125913.6
FILED: NEW YORK COUNTY CLERK 11/02/2023 11:23 AM INDEX NO. 160750/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/02/2023

FACTS

I. Background Concerning Toptal’s Business

12. Toptal – short for “top talent” – is a United States-based company that curates a

proprietary talent network of select, highly skilled independent contractors, such as engineers,

software developers, designers, finance experts and product managers, and rapidly matches that

talent to its clients in the United States and globally. Founded in 2010 by its current CEO Taso

Du Val, Toptal is now one of the world’s largest fully distributed companies and operates what

the company believes is the largest high-skilled, on-demand talent network in the world. Toptal

currently serves over 1,000 clients in more than a dozen countries and has members of its talent

network in countries throughout the world.

13. Through Toptal’s meticulously designed proprietary vetting process, developed

after substantial time and investment over the past decade, Toptal can meet its clients’ needs by

matching them promptly and “on demand” with top talent in its curated global talent network to

work remotely on diverse client projects needing just the right set of skills at just the right time.

14. Toptal has also made considerable investment in establishing, developing, and

promoting the Toptal name and its trademarks through various media, including its web site at

https://www.toptal.com/ and through https://www.toptalent.com.

15. As a result of its efforts, Toptal has developed substantial goodwill in its brand

because clients recognize the quality of Toptal talent and the value of Toptal’s proprietary

screening and matching services. Likewise, Toptal’s talent value the extent to which Toptal’s

extensive and growing client base allows Toptal’s talent to be quickly matched to work on projects

that are professionally challenging and rewarding.

11125913.6
FILED: NEW YORK COUNTY CLERK 11/02/2023 11:23 AM INDEX NO. 160750/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/02/2023

Mr. Strauss’s Employment with Toptal

16. From approximately October 16, 2017 until June 9, 2022, Mr. Strauss was a Toptal

employee, serving in multiple, full-time client-facing positions.

17. Mr. Strauss initially signed and accepted an offer letter for employment by Toptal

dated October 16, 2017, together with an At-Will Employment, Confidential Information,

Invention Assignment, and Arbitration Agreement.

18. Mr. Strauss’s positions for Toptal through more than 5 ½ years of employment

included the following:

a. Beginning on in October 2017, Mr. Strauss was an Enterprise Sales Executive,

reporting directly to the Chief Operating Officer of Toptal;

b. Beginning in November 2018, Mr. Strauss was promoted to the position of Director

of Strategic Partnerships;

c. Beginning in December 2019, Mr. Strauss was promoted to the position of Global

Enterprise Director of Sales; and

d. Beginning in June 2021, Mr. Strauss was promoted to the position of Principal

Global Portfolio Lead.

19. In such positions, Mr. Strauss had substantial one-on-one interaction with Toptal’s

largest enterprise customers, and was responsible for sales and overseeing the daily, routine tasks

involved with addressing the clients’ needs and concerns and maintaining their account activities.

Mr. Strauss serviced a worldwide client base for international clients in places like Mongolia,

Australia and the Middle East, and did not have a focus on any particular geographic region.

11125913.6
FILED: NEW YORK COUNTY CLERK 11/02/2023 11:23 AM INDEX NO. 160750/2023
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 11/02/2023

20. Mr. Strauss was a top sales executive for Toptal and therefore privy to Toptal sales

strategies, customer contacts, and other key aspects of Toptal’s business. Therefore, the

information he holds is invaluable for a competitor seeking to solicit Toptal’s customers,

employees and talents or to otherwise replicate Toptal’s business model and success.

21. As a condition of Mr. Strauss’s continued employment for Toptal, on August 28,

2020, he executed the Strauss Agreement and Strauss Arbitration Agreement. See Exhs. A and B.

II. Ms. Bukhari’s Employment with Toptal

22. From approximately August 4, 2016 until August 5, 2022, Ms. Bukhari was either

an independent contractor or employee of Toptal, serving in multiple, full-time client-facing

positions.

23. Ms. Bukhari initially signed an independent contractor agreement with Toptal

effective August 4, 2016, and later signed and accepted an offer letter for employment by Toptal

dated January 10, 2017, together with a Proprietary Information and Inventions Agreement.

24. Ms. Bukhari’s positions for Toptal through six years of engagement or employment

included the following:

a. Beginning

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