CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRADFORD AINSLIE

CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRADFORD AINSLIE

Plaintiffs failed to prove concerted procurement, conspiracy or breach of fiduciary duties; many restrictive covenants were ambiguous or of unreasonable duration (12 months prima facie too long) and were therefore unenforceable; Employment Ordinance ss.6,7 and 70 are mandatory and governed termination/payment in lieu for employees in Hong Kong so Boyers employment terminated on 30 May 2011 upon valid payment in lieu; Cash AD was valid and Boyer must repay outstanding balance; specific monetary orders follow and the remainder of plaintiffs claims were dismissed.

Citation
CANTOR FITZGERALD (HONG KONG) CAPITAL MARKETS LTD v. BRADFORD AINSLIE
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
HCA41/2012
Procedural Posture
Employment and Commercial Litigation (restrictive Covenants, Fiduciary Duties, Bonus Loan Dispute) / Judgment at First Instance After Consolidated Trial (transfer From Labour Tribunal)
Outcome
Judgment largely for defendants; limited monetary relief granted to plaintiffs in respect of payment in lieu and repayment under Cash AD and restitution of wrongly deducted commissions; other claims dismissed; costs orders made.
Legal Topics
Restrictive Covenants, Non Solicitation, Breach of Fiduciary Duty, Payment in Lieu of Notice, Choice of Law Vs Mandatory Local Employment Law, Liquidated Damages, Bonus Loan (cash Ad) Enforceability, Grant Units/incentive Awards, Legal Professional Privilege, Remedies and Costs
Source Language
EN
Employment Law Contract Law Equity (fiduciary Duties) Restraints of Trade/restrictive Covenants Civil Procedure Restrictive Covenants Non Solicitation Breach of Fiduciary Duty +7 more

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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

Employment and Commercial Litigation (restrictive Covenants, Fiduciary Duties, Bonus Loan Dispute) / Judgment at First Instance After Consolidated Trial (transfer From Labour Tribunal)

Legal Issues

  1. 1 Whether Defendants breached duties of fidelity or fiduciary duties by procuring each other to resign or acting in concert
  2. 2 Whether Defendants breached contractual disclosure obligations about approaches by a competitor
  3. 3 Whether Defendants conspired to injure Cantor HK by unlawful means

Ratio Decidendi

Plaintiffs failed to prove concerted procurement, conspiracy or breach of fiduciary duties; many restrictive covenants were ambiguous or of unreasonable duration (12 months prima facie too long) and were therefore unenforceable; Employment Ordinance ss.6,7 and 70 are mandatory and governed termination/payment in lieu for employees in Hong Kong so Boyers employment terminated on 30 May 2011 upon valid payment in lieu; Cash AD was valid and Boyer must repay outstanding balance; specific monetary orders follow and the remainder of plaintiffs claims were dismissed.

Court Disposition

Judgment largely for defendants; limited monetary relief granted to plaintiffs in respect of payment in lieu and repayment under Cash AD and restitution of wrongly deducted commissions; other claims dismissed; costs orders made.

Orders

  • Boyer to pay CFE US$400000 as payment in lieu of notice
  • Boyer to pay CFE US$425793.23 being outstanding balance under the Cash AD as at 30 May 2011