GroupM vs. Firm Decisions

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.

1


2/8

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.

2


3/8

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

3


4/8

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


5/8

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

5


6/8

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,

6


7/8

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.

7


8/8

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

GroupM vs. Firm Decisions

Documents

Transcript of GroupM vs. Firm Decisions