CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRETT MCGONEGAL

CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRETT MCGONEGAL

The Court found on the evidence the defendants acted independently and not in concert and that the plaintiffs failed to prove breaches of fiduciary duties or conspiracy. Ambiguous reporting and non-compete clauses were construed against the plaintiffs and many restrictive covenants were held unenforceable as too wide or unsupported by evidence. Mandatory provisions of the Employment Ordinance applied to notice and payment in lieu, overriding contracted foreign choice of law for employees engaged in Hong Kong; as a result Boyer’s employment terminated on 30 May 2011 (payment in lieu), Ainslie and McGonegal validly tendered statutory payments in lieu of three months’ notice. The Cash AD was...

Citation
CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRETT MCGONEGAL
Parties
1st Plaintiff: Cantor Fitzgerald Europe; 2nd Plaintiff: Cantor Fitzgerald (Hong Kong) Capital Markets Limited; 1st Defendant: Jason Jon Boyer; 2nd Defendant: Bradford Ainslie; 3rd Defendant: Brett McGonegal; 4th Defendant: Uwe Henke von Parpart
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 February 2012
Case Number
HCA42/2012
Procedural Posture
Civil Employment and Equity Dispute (breach of Contract, Fiduciary Duties, Restrictive Covenants, Injunctions) / Trial Judgment (court of First Instance)
Outcome
Judgment partly for plaintiffs and partly for defendants: most claims by plaintiffs dismissed; specific monetary orders entered for payment in lieu and Cash AD repayment and reimbursement of wrongly applied grant-unit deductions; costs orders made in favour of defendants as specified.
Legal Topics
Resignation and Notice, Payment in Lieu of Notice, Non Solicitation Covenants, Conspiracy and Acting in Concert, Damages and Account of Profits, Bonus Loan (cash Ad), Choice of Law Vs Mandatory Local Employment Law, Legal Professional Privilege
Source Language
EN
Employment Law Company Law Equity (fiduciary Duties) Contract Law Restrictive Covenants Injunctions Resignation and Notice Payment in Lieu of Notice +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 7 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Cantor Fitzgerald Europe

1st Plaintiff

Cantor Fitzgerald (Hong Kong) Capital Markets Limited

2nd Plaintiff

Jason Jon Boyer

1st Defendant

Bradford Ainslie

2nd Defendant

Brett McGonegal

3rd Defendant

Uwe Henke von Parpart

4th Defendant

Procedural Posture

Civil Employment and Equity Dispute (breach of Contract, Fiduciary Duties, Restrictive Covenants, Injunctions) / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether defendants procured or acted in concert to resign and join competitor
  2. 2 Whether defendants breached fiduciary duties or duties of fidelity by failing to disclose approaches or intentions
  3. 3 Whether defendants conspired to injure Cantor HK by unlawful means

Ratio Decidendi

The Court found on the evidence the defendants acted independently and not in concert and that the plaintiffs failed to prove breaches of fiduciary duties or conspiracy. Ambiguous reporting and non-compete clauses were construed against the plaintiffs and many restrictive covenants were held unenforceable as too wide or unsupported by evidence. Mandatory provisions of the Employment Ordinance applied to notice and payment in lieu, overriding contracted foreign choice of law for employees engaged in Hong Kong; as a result Boyer’s employment terminated on 30 May 2011 (payment in lieu), Ainslie and McGonegal validly tendered statutory payments in lieu of three months’ notice. The Cash AD was...

Court Disposition

Judgment partly for plaintiffs and partly for defendants: most claims by plaintiffs dismissed; specific monetary orders entered for payment in lieu and Cash AD repayment and reimbursement of wrongly applied grant-unit deductions; costs orders made in favour of defendants as specified.

Orders

  • Order that Jason Jon Boyer pay US$400,000 as payment in lieu of notice to Cantor Fitzgerald Europe (payment tendered previously by Boyer and refused)
  • Order that Jason Jon Boyer pay US$425,793.23 representing outstanding balance under the Cash AD as at 30 May 2011