Download - GroupM vs. Firm Decisions
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7/25/2019 GroupM vs. Firm Decisions
1/8
IN
THE
HIGH COURT
OF
JUSTICE
CHANCERY
DIVISION
BETWEEN:
Claim
No: V
k
L--2.0
0010
(1)GROUPM
UK LIMITED
(2)
MINDSHARE MEDIA
UK
LIMITED
(3)
MEDIACOM HOLDINGS LIMITED
(4)
MEDIAEDGE:CIA
UK
LIMITED
(5)
MAXUS
COMMUNICATIONS
UK)
IMITED
Claimants
and
FIRMDECISIONS
LIMITED
Defendant
PARTICULARS
OF
CLAIM
The
First
Claimant
( GroupM ) is
and
was
at ll
material
times
a
company
incorporated in
England
and
Wales with
a
company
number
of
04736785 and
registered
office
of
27
Farm
Street, London,
W1J
5RJ.
GroupM's
business is the
provision of
media
investment
management
services
including
media
buying services
for
commercial
clients
( the
Clients ).
GroupM
conducts
its
business
on
its
own
account
and
also
manages and
represents
the
Second
-Fifth
Claimants
( the GroupM
Agencies ),
whose
registered offices
are
set
forth
in
Appendix A
ttached
hereto.
2. The
Claimants
are
all
part
of the
worldwide
business
of
the WPP
Group
of
companies,
the
world's
leading
marketing
communications
services
group,
and
are
wholly
owned
subsidiaries of
WPP lc
( WPP ).
3. The
Defendant
( FirmDecisions )
is a
company which
offers auditing
services in
respect
of
dvertising
spends
in
marketing and
media.
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4. From time
to time,
FirmDecisions
is engaged
by the
clients of
GroupM and the
GroupM
Agencies
to
carry
out
a
media
compliance
audit
in
respect of one
of
the
GroupM Agencies
or a
wholly
owned
subsidiary.
When
FirmDecisions
carries
out
such
an
audit,
it
does
so
pursuant to
the
terms
of
a
standard
form
Non
-Disclosure
Agreement
( the
NDA )
ntered
into with
the
relevant GroupM
Agency
or their
wholly
owned
subsidiaries.
5. The
terms of the
standard form
NDA
were
agreed
between
Stephen
Broderick,
Managing
Partner
and Global
CEO
of
FirmDecisions
and
Scott
Smith,
Global
Commercial
Director
of
GroupM
in
or about
June
2012
and are
always used
whenever
FirmDecisions
undertakes
an
audit of
ny GroupM
Agency
anywhere in
the
world.
The Non
-Disclosure
Agreement
6.
The
NDA
s
confidential and
its terms
(which will
be
referred
to
at
trial
for their
full
terms
and true
effect)
are
included in
the
Confidential
Schedule
attached
to
these
Particulars of
laim at
Appendix
B.
7.
When
carrying
out its
media
compliance
audits
of
GroupM
Agencies
or
their
subsidiaries,
FirmDecisions
is and
was,bound
by
the
obligations
of
onfidence
(and
other
obligations
as
more
particularly
identified
in
the
Confidential
Schedule)
n
the
NDAs
entered
into
with
the
Second
-Fifth
Claimants
and/or
their
wholly owned
subsidiaries.
8.
Further
or
alternatively,
by reason
of its
agreement
with
GroupM to
enter
into
standard
form
NDAs
with the
GroupM
Agencies,
FirmDecisions
was at all
material
times under
a
duty
of
onfidence
to
GroupM
and/or to the
GroupM
Agencies
i)
not
o
use
Confidential
Information
(as
defined in
the
NDA)
or any
purpose
other
than the
limited
Purpose
identified in the
NDA;
ii)
not to
disclose
Confidential
Information
to
any
third
party; and
(iii) upon
request,
to
deliver
up
all
materials in
whatever form
including
record
-bearing media
within its
possession, power,
custody or
control
comprising,
containing,
derived
from, or based
on
Disclosing Party s
Confidential
Information.
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Facts
giving
rise to
the
Claim
9.
In
an
email
dated 5 May
2016
from
Stephen
Broderick
of
FirmDecisions
to Scott
Smith, Mr
Broderick
stated that:
we
have 4
or 5
nstances
this
year
where your
agencies
have
sent us
confidential
information
for other
clients
by
mistake
In one
instance
this year,
your agency
sent
us
the whole
list
of
media
differences
by
mistake .
10.By
a etter
dated 11
May 016
from
Squire
Patton
Boggs,
cting
on
behalf
of
GroupM
and
WPP
to
FinriDecisions,
GroupM
sought
full details
of the
4
or
5
nstances
referred
to in
the 5
May 2016
email,
together
with
details
of any
other
incidents
of
which
FirmDecisions
was
aware. In
particular,
in
respect
of
each
incident,
GroupM
sought a
full
description
of
he incident,
how
t
arose,
details
of
he
offices
involved,
the
client
audit and
the names
of he
GroupM
or
GroupM
Agency
staff
involved. It
also
sought
copies of
the
documents disclosed,
details
of
action
taken by
FirmDecisions
to
respond to
the
incident
and
confirmation
that
information
disclosed
had
been
deleted by
FirmDecisions. In
respect
of the
list
of
media
differences
document
( the
List ),
GroupM
sought a
copy of
the List
together
with a
full
explanation
as to
how
he
List
had
come into
the
possession
of
irmDecisions.
The
information
and
documents
sought
were
requested
by
close of
usiness on
Friday 13
May
016.
11. Save
for a
holding
response
dated 12
May
016
which
gave no
indication
as to when
GroupM
could
expect a
eply,
FirmDecisions
did not
eply to
the
requests made n
the
letter
of
11 May
2016.
Accordingly,
on
23 May
2016,
Squire
Patton
Boggs sent a
second
letter to
FirmDecisions
requesting a
response
to
the
queries
and
requests
already
made
and
stating that
FirmDecisions
is
also
obliged
to return
GroupM's
confidential
information, and ll
documents
containing,
derived
rom or based
on that
information, by
clause
f he
NDA . A
ull
response to
this
letter
was
requested
by
close
of
usiness on
Friday 27
May
016, ailing
which
Squire
Patton
Boggs
made
t
clear that
they
were
instructed
to
commence
proceedings.
12.
In
a
etter
dated 27
May
016,
irmDecisions
purported
to
address the
issues
raised
in
the letters
of 11
May
2016
and 23
May
2016, albeit
that
it
asserted
that
it
was
not
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familiar
with
the
corporate
structure
of
he
WPP
Group and
did not
know
whether
GroupM
constituted a
egal
entity.
13.
For
the first
time,
t
asserted
that
both
the
List
and
the
documents
which t did not
identify)
received on the
other
r
5
ncidents had been
deleted, but,
inexplicably,
it
refused to
provide details of
hose
incidents
without
confirmation
that the
disclosure
of
nformation to
GroupM
would
not
amount
to
a
breach of he
NDAs and
without
written
undertakings from
GroupM i)
to procure
that none of he
GroupM
Agencies
would
invoke
their
rights
under
the
NDAs and (ii) to
hold
harmless and
indemnify
FirmDecisions
for
any
loss
suffered
by
reason
of a
claim
made
by
the
GroupM
Agencies.
14.In
light
of
FirmDecisions'
refusal to
provide
information, the
Claimants have
no
information as
to
the
identity of the
GroupM
Agency and/or
the
wholly
owned
subsidiary of he
GroupM
Agency
from
which the
Confidential
Documents
came. In
the
premises, t
has been
necessary to
join each
of
he
Second
-Fifth
Claimants to
this
claim.
Breach of
the Non
-Disclosure
Agreement/Breach
of
Confidence
15.
As set forth
in
paragraph 9
bove,
FirmDecisions
has admitted
that it has
received
confidential
information
from
GroupM
Agencies
on
4 or
5
occasions ( the
Confidential
Documents )
nd
that
the
Confidential
Documents
ncluded the
List.
16.
For
the
avoidance
of
oubt,
the
Confidential
Documents
fall
within
the
definition
of
Confidential
Information
in
the NDA
and
Firm
Decisions
knows that
they
f ll
within
this
definition.
Further
or
alternatively, the
Confidential
Documents contain
the
Claimants'
Confidential
Information.
17. Despite a
request
for
return of
he
Confidential
Documents,
irmDecisions has
failed
or
refused
to
return,
or suitably
account
for,
the
Confidential
Documents
including
copies
of the
same), including
the
List,
and has
failed or
refused to
provide any
information
about
how
the
Confidential
Documents
came into
its
possession.
FirmDecisions'
belated
assertion in its
letter of27
May 2016
that it
has
deleted
the
Confidential
Documents is
wholly
inadequate in
circumstances
where t
has
failed to
identify
the
detailed
circumstances in
which it came
into
possession of
those
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documents and
the
individuals
to
whom he
Confidential
Documents
were
shown. It
has
also failed
to confirm
that the
Confidential
Documents
have
not been
disclosed
to
third
parties and,
notwithstanding its
purported
concern as
to
the identity of
GroupM,
it
has
made
no offer
to
provide
the
information
sought
to the
relevant
GroupM
Agencies
concerned.
Furthermore,
FirmDecisions'
statement at the
end of ts
letter
of
27 May
2016
that
it believes
it has
minimal
Confidential
Information as
defined in
the
NDA
n
its
possession
is of rave
concern
to the
Claimants.
18.In the
premises,
FirmDecisions has
acted in
breach
of
he
NDA
nd/or
in breach
of
confidence
and/or
FirmDecisions
has
misused
the
Confidential
Information
contained
in the
Confidential
Documents n
that:
18.1
FirmDecisions has
received
Confidential
Information
and
has
refused to
return,
or
suitably
account
for, ll
materials in
whatever
form
including
record
-bearing
media
within
its
possession, power,
ustody
or
control
comprising,
containing,
derived
from,
or
based on
the
Confidential
Information
received,
including
the
Confidential
Documents,
and
copies
of he
same,
n breach
of
clause
9
of
he
NDA;
18.2 t
is
reasonable to
infer
from
the
failure to
return
the
Confidential
Information
whether contained in the Confidential
Documents
or
in
other
documents
created
by
FirmDecisions)
and
from
the
terms of
he
letter
of
27 May
2016
that
(i)
it
has
in
fact
been
misused by
FirmDecisions,
alternatively that
there is a
threat that
it will be
misused
by
FirmDecisions
and/or
(ii)
t
has
been
disclosed
and/or there
is
a
threat
that
it
will be
disclosed to
third
parties, in
breach of
clause
5.3(a)of
he NDA.
19.
Pending
disclosure and
due
to
FirmDecisions'
refusal
properly
to
respond to
the
letters
of
11
May
016
and
23
May
016, he
Claimants are
unable
to
give
particulars
of
he
extent
to
which
FirmDecisions
has
acted
in
breach
of the
provisions
of
the
NDA
and in
breach of
onfidence
and/or
has
misused
Confidential
Information for
a
Purpose
which alls
outside the
limited
Purpose
identified
in the
NDA.
20.
nless
restrained
from doing
so,
FirmDecisions
threatens
and
intends to
retain
and/or
to make
use of
the
Confidential
Documents
and the
Confidential
Information
contained
therein) or
its
own
urposes
and/or to
disclose the
Confidential
Documents
and
the
Confidential
Information
contained
therein)
to third
parties.
In
support
of
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this
contention the
Claimants will
rely
upon
the
inadequate
nature of he
27
May 016
letter
(including the
reference
to
FirmDecisions having
minimal
Confidential
Information... n its
possession )
together with
the
expressed intention
of a senior
FirmDecisions'
employee, n
respect
of
a
GroupM
confidential
document,
hat
it
was
best to keep
it up our
leeve
to
use
when
needed. I ust
don't want
o be
seen
to be
in
breach of
he
NDA .
21.The
Claimants
reserve the
right
to
seek
an
inquiry
as
to
damages,
an
indemnity under
clause
11 of
the NDA
and/or an
account
of
he
profits
made
by
FirmDecisions
for
which
they
are
liable to
GroupM
and/or the
GroupM
Agencies,
should
evidence
come
to
light
which
shows
hat they
have
suffered a oss.
22.
Should it be
necessary,
at
the trial
of his
claim, the
Claimants
will seek
to
rely on,
and seek
appropriate reliefin
respect of,
each and
every act of
misuse and
disclosure
of
Confidential
Information by
FirmDecisions,
including
by
its
directors,
officers,
employees
or
agents,
or
otherwise
howsoever.
23.
The
Claimants
seek and
are
entitled to
an
Order
pursuant
to article
15 of
the
Enforcement
Directive
and
paragraph
26.2 of
he
Practice
Direction
to CPR
art 63
for the
appropriate measures
for dissemination
and
publication
of
he
judgement
o
be
taken at the
expense
of
irmDecisions.
AND THE
CLAIMANTS
AND
EACH OF
THEM)
LAIM:
(1)
An
injunction to
restrain
FirmDecision,
whether acting
by
its
directors,
officers,
employees, or
agents
or
otherwise
howsoever
from
misusing
the
Confidential
Information
in the
Confidential
Documents
whether by
communicating or
disclosing
it
to
third parties,
using
it
for
its own
purposes
or using
it
in
any
other
way
whatsoever
in
breach
of
he
terms of he
NDA;
(2) In
respect
of
each
Confidential
Document
received
by
FirmDecisions,
an
Order
that
FirmDecisions
do
forthwith
disclose to
the
Claimants the date
on
which
the
Confidential
Document was
provided
to
it
the
identity
of
the
individual (legal
or
natural) who
disclosed
the
Confidential
Document,
he identity
of each and
every
person
to
whom t
has
been
disclosed, and
information as
to
precisely what
Firm
Decisions, its
directors,
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officers,
or agents, did
with the
Confidential
Document,
ncluding what use
if any) t
made
of
he
Confidential
Information
contained therein.
3)
An Order
for
the
delivery
up
on
oath
to the
Claimants
of
he
Confidential
Documents,
including
the List
together with
all
documents in the
possession,
power,
custody or
control of
FirmDecisions
comprising,
containing, derived
from, or
based on the
Confidential
Documents,
ncluding copies
of he
same;
4) An
Order for
the
deletion
on
oath of
ll
electronic
copies of he
Confidential
Documents,
including the
List,
and of
ll
electronic
documents in the
possession,
power,
custody
or
control
of
FirmDecisions
comprising,
containing,
derived
from, or
based on
the
Confidential
Documents;
5)
An
Order that Firm
Decisions
shall
disseminate and
publish
the
judgment
at
ts
own
expense;
6)
Costs;
7)
Further or
other
relief.
JOANNA SMITH
Q
RICHARD
MUN EN
Statement of
Truth
The
Claimants
believe
that
the
facts
stated
in
these
Particulars of
Claim are
true.
Signed
Nicola
McCormick, eneral
Counsel of
GroupM
Dated
31
May 016
Served
this
31
day
of May
2016
by Squire
Patton Boggs
UK) LP,
7
evonshire Square,
London
EC2M
4YH,
elephone 020
7655 1000,
eference
PAO/LT1/WPP.2-1642,
olicitors
for
the
Claimants.
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Claim
No:
IN THE
HIGH COURT
OF
JUSTICE
CHANCERY
DIVISION
BETWEEN
1)
GROUPM UK
LIMITED
2)
MINDSHARE
MEDIA UK
LIMITED
3)
MEDIACOM
HOLDINGS
LIMITED
4)
MEDIAEDGE:CIA
UK
LIMITED
5)
MAXUS
COMMUNICATIONS
UK)
IMITED
Claimants
and
FIRMDECISIONS
LIMITED
Defendant
PARTICULARS
OF CLAIM
Squire
Patton
Boggs
UK) LP
7
evonshire Square
London
EC2M
4YH
Ref: WPP.002-1642
8