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    Defence filing submitted by FirmDecisions in the UK High Court.

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    Defence filing submitted by FirmDecisions in the UK High Court.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    5K views12 pages

    GroupM FirmDecisions - Defence

    Uploaded by

    Lara
    Defence filing submitted by FirmDecisions in the UK High Court.

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 12
    INTHE HIGH COURT oF Jt CHANCERY DIVISION BETWEEN: GROUPM UK LTD MINDSHARE MEDIA UK LIMITED MEDIACOM HOLDINGS LIMITED MEDIARDGE: CIA UK LIMITED -MAXUS COMMUNICATIONS (UK) LIMITED. and = FIRMDECISIONS LIMITED Defendant DEFENCE 1. Definitions issued in the Particulars of Claim are adopted in this Defence for convenience. The headings used in the Paniculars of Clim are not accepted and are therefore not adopted 2. Paragraph 1 103 are admited, save that: 2.1. FiemDevsions has no knowledge a to whether GroupM has authority to represent or ‘manages the Second to Filth Claimants, or whether the Claimants are wholly-owned subsidiaries of WPP, and doesnot admit any of those allegations. 2.2. The WPP Group is leading communication services group but the allegation that it isthe world leaders not admitted, Asto paragraph 4 3.4. Customers (Le. advertisers) who purchase media for advertising from GroupM Agencies typically contact on terms which entitle them to require the agency to permit and facilitae a peridie third party review and audit in onder to verify that the contractual artangements between the customer and the agency, including but not limited to those relating to cash flows and rebates, have been properly performed (contractual compliance reviews") 53.2. From time to time, FimDecisions is contracted by such customers to undertake contractual compliance reviews 33. GroupM Agencies typically require compliance specialist, including FirmDesions, to conclude non-disclosure agreements (-NDAs") before being permited access to ‘the information nesessary to conduct the review. 3.4. The NDA is in each case concluded with the principal relevant agency (‘the counterparty agerey") or the subsidiary holding the documents and_not with GroupM, and govemns (amongst other things) the provision of information relevant to the particular contactual compliance review by both the counterparty ageney and its alias ‘As to paragraph 5, the tems of each NDA are customised by specifying the relevant partis, elient and purpose. withthe result thatthe NDAs are not simply identical. The remaining allegations inthis paragraph are admitted, [As to paragraph 6, itis admitted thatthe definition of Confidential Informa NDAs expressly includes the content ofthe relevant NDA itself, and that annexure B to the Particulars of Claim contains a transcription of substantive clauses of the generic min the NDA which ae relevant for purposes ofthese proceedings. The right rely on the full agreement in each cases reserved, 6. Asto paragraph 7 and 8: 6.1. When carrying out any GroupM Agency contractual compliance review, FimDecisions is and was bound by the terms ofthe relevant NDA with the relevant «counterparty agency, including the obligations of confidence which they set ou 162. FirmDecsions will ely on the full terms of each relevant NDA, but admits thatthe NDAs provide that FimDecisions was under a duty in general terms not to use ‘Confidential Information for anything other than the limited purpose of the rlevant contractual compliance review, was obliged not to disclose Confidential Information to third partes, and was obliged upon request to account for oF tetum to the relevant agency any materials in its possession or contol containing or derived from Confidential Information disclosed for purposes ofthe contractual compliance review inguestion, 63, Whether information was provided by the relevant counterparty ageney or one of is affiliates, FimDecisions’ duties were owed to the relevant counterparty agency in cach case, and not to GroupM or to GroupM Agencies generally 64. The remaining allegations are denied 7. Asto paragraph 9: ‘74. Mr Broderick of FitmDecisions and Mr Smith and Mr Brook of GroupM have historically kept an informal channel of communication apen between them in order to resolve difficulties and protect the relationship between the parties as well es their chain in May 2016 pursuant 1 that respective commercial interests. In an em practice: 7.1, Me Broderick followed up on a meeting with Mr Brook on 4 May 2016, sought fo arrange further meeting, and complained about an email sent by the Fourth Claimants Mr Shllto a customer, which had implied that FirmDex 1 of unprofessional practices including breaches of confidentiality vas 7.4.2. Me Smith sought to just incident in Australia in 2014 in regard to FirmDecsions’ client and Mediacom fy Mr Shil's email on th basis of an isolated historic Australia Limited, which had long since been resolved and seed between its Paes (‘the Mediacom Australia incident), explained in further detail be 7.13. Mr Broderick replied saying amongst other things tat the Mediacom ‘Australia incident as not relevant. He illustrated what had been a co-operative ‘working relationship between FiemDecisions and the GroupM Agencies by noing — we have 4 or § instances this year where your agencies have sent us ‘confidential information for other clients by mistake ~ we don't make a meal fof it In one instance this year, your agency sent us the whole list of “media diferences” by mistake... [we] complied with our NDA. We never called any ‘lent on that ist. "72. Inthe Mediacom Australia incident 721. In July 2014, in the course of a contractual compliance review, a then ‘employee of FirmDecisions was provided with an invoice for television costs charged to FimDecisions client by an employee of FinancePlus, an Australian shared services conte acting on behalf of Mediacom Australia Limited. The FinancePlus employee mistakenly attached to the invoice a spreadsheet listing ‘mcnihly billings teach of Mediacom's clients with a reconeiliation against "AVD" (which FirmDecisions understood to mean Annual Volume Discount. 7.22. The employee did nt notify Mediacom Australia ofthe mistake but fora brief period retained the spreadsheet provided. FiemDecisions’ daft epor to its lient was made available to Mediacom for comment prior to distribution, in a form which included a marked up comment suggesting internally that while ‘was important not to breach the relevant NDA it might be "bes to deep i up ow sleeve when needed" 7.23, After this as detected, the relevant employees were reprimanded, Stephen Broderick of FinmDecisions isued a formal apology 1 Mediacom Australia Limited (through its solicitors, Norton Rose Fulbright) and any clectonic or paper copies ofthe spreadsheet were destroyed, 72.4. Mediacom Australia accepted the apology, and treated the ise as closed 173, The reference inthe $ May email 10 “4 or 5 instances this yar.” was transparently ‘an approximation, conveying and intending to convey only that this had occured several times. The reference to an agency having sent the “the whole list of media differences” was loose anu improvise reference to an incident where Mediacom Australia inited erroneously provided FitmDecisions with a media billings list for All of Mediacom’ clients during a contractual compliance review fara cient (“he media billings list") (lhe "Media Billings Australia incident"). These incidents (excluding the Mediacom Australia incident) are collectively refered (0 below as “the rlevantincidents. 8. Purter particulars ofthe relevant incidents are set out below: 8.1 Inthe Media Billings Australia incident 8.11. In September 2014, in the course ofa contractual compliance review on behall of a clint, an employee of FirmDevsions requested media billings for the relevant client. An employee ftom FinancePlus, an Atstralian shared services| conte ating on behalf of Mediacom Australia Limited, mistakenly provided the media tillings list which included information relating to other Mediacom Australia clients, 8.1.2. The FirmDevisions employee notified FinancePlus ofthat eror, and deleted the relesant emails attaching the media billings is. 8.2. In October 2015 during a consactual compliance review projet for a client in Sweden, an employee of Mindshare Sweden mistakenly sen: biling information for ‘other agency clients to a FirmDecisions employee over email. The agency sulbsequenty notified the FitmDesisions employee ofits enor and the information was removed fiom FirmDecisions’ sampling and analysis. The information was not referred to in FirmDevsions! report to its client and has been deleted from the relevant employee's email folder. '83. In Novernbe: 2015 during a contractual compliance review project fora client inthe UK, an employee of the Second Claimant mistakenly sent sn annual volume bonus listing document toa FirmDecisions employee by email. The agency later informed FirmDecisions that the contact review project did not include @ review of annual 5 volume bonuses and that the information ought not to ave been sent. The information was not refered to i FirmDecision’ report 1 is eient and hs been deleted from the elevat employee's email 8.4 In May 2015 during a contractual compliance review project fora client in Turkey, a MindShare Turkey employee mistakenly showed a FirmDedsions employee bard copy un-redacted contacts with media vendors, certain of which contained details relevant to other agency clients who were exprssly named ia ose contracts, The FirmDecisions employee did not rscive copies of the documents. 8.5. In November 2015 during two separate contractual compliance review projects in “Turkey a local agency employee mistakenly showed a FirmDecsions employee hard copy un-redacted contracts with media vendors, certain of which contained details relevant to other agency cients who were expressly named in those contracts. The FimDevisions employee di not recive copes ofthe documents. 8.6. In Ocuober 2015 during a contact review project for a eient inthe UK, an employee of the Second Claimant mistakenly showed a FirmDecisions smployee a hard copy tunredicted document which contained media spend data for a number of the agency's other clients, The FirmDecisions employee did not receive a copy of the document 8.7. In February 2016 during another contract review project for 3 client in the UK, an employee ofthe Third Claimant mistakenly showed a FirmDecisions employee hard copy un-redacted contacts with media vendors certain of which contained details relevant to other agency clients who were expressly named in those eontrats, The FimD-cisions employee did not receive copes of the documents 88, None of these incidents involved any breach or potential treach of the relevant NDAsby FimDeeisions. Poragraph 10 is edmitted. The leter dealt with other issues as well, and made other demands. The other allegations set out in it are denied. In regard to the portions of the Teter relevant tothe present lam: 9.1. The allegations in the leer that there wore “recent” incidents (Le, im the year preceding the date of the letter) where FirmDecisions had rettined confidential intimation belonging to CroupMt Geluding the media bilings list) and that Mr Broderick so admitted, are denied, 9.2. The letter suggested tha there was reason to question FirmDecisions atta t0 the protection of information under the NDAs. That allegation was not properly particularsed and is denied. ‘9.3. The leter contended that FinmDecisions did not have a choice and was obliged by clause 4(b) of the NDAS to notify GroupM and “reasonably cooperate with [Group's] efforts to ..prevent or ewrtail..or recover its confidential Information” ‘and demanded the particulars refered to in paragraph 10 upon thet premise, The premise was misstated and incorrect: 9.3.1. Clause 4(b) of each NDA obliges FirmDecisions to notify the relevant counterparty agency of any actual or threslened breach ofthe NDA (indluding by unauthorised use or disclosure of Confidential Information) or inthe event of loss of or inability to account for Confidential Information received, and then to ‘cooperate with that ageney to assis it in preventing or cursing any breach and recovering its Confidential Information. 9.3.2. The leter did not identify or particularise any actual or threatened breach of the NDA. ‘The “recent” incidents were in their own terms not breaches of the NDAs, FirmDecisions had thetefore not come under any relevant otligation under clause 4). 93.3. In any event, any obligation under clause 4(b) of any NDA is owed w the relevant counterparty agency and nat to GroupM. Disclosure of the informaiton called for t GroupM instead of the agency would ot might in law have ‘onstituted a breach ofthat NDA. 10, As to paragraph 11 10.1. The terms of the 5 May 2016 email did not justify any reasonable inference ‘that urgent aeton to protect confident information was required, anc the demand for a detailed response by 13 May 2016 was unreasonable 10.2. Ina letter of 12 May 2016, FismDecisions recorded that its relevant officers were travelling and that the matter could not be investigated unl later, but that @ response would be provided in du course. 10.3. Inthe leter of 23 May 2016, GroupM’s solicitors for the firs time specially made & request for return of confidential information under clause 9of an unspecified NDA. No partieaars ofthe information requested were provided, but when read with the letter of 11 May 2016 it was reasonably understood to have requested retum of ‘the media billings lis. 104. Under eeuse 9 of each NDA, the relevant agency (not GroupM) was entitled {request return of confidential information in FirmDecisions* possession or conto ‘The levers assumed without prior inquiry that FimDecisions continued to have the ‘media billings Tit in its possession of contol 10.5. Asset ou above, the media billings list had heen mistakenly sen by email to FirmDecisions ty FinancePlus on behalf of Mediacom Australia; FiraDecisions had noted the agency ofthat fact and had subsequently deleted the copy ofthe email in the relevant emloyce’s email folder. 11. As to paragraphs 12 and 13, M11. 0n27 May 2016 FitmDeecisions responded to both eters. 11.2. The allegation that it “forthe frst time asserted that bork the List andthe documents" had been deleted” is misleading and is denied. The leter records thatthe relevant documents had been deleted, but: 11.21. FirmDessions had not previously expressly or impliedly suggested that the documents remained in its possession; 11.22. Where information had been provided to FirmDecisions over email the relevant agencies in each underlying incident had atthe time been informed of ‘what had been received and what had been done or FitmDecisions was advised by the agency ofthe agency's oven enor. 11.23, Where FirmDecisions was mistakenly shown bardeopy un-edacted documents containing information about other customers it didnot refer to that information in ts reports and i id not retain any confidential information, 11.24, This was the fist time that FiemDecisions was in substance called on to adress that question to GroupM, 11.3. Firmecisions propery sought undertakings confirming thet the counterparty sages wine cael slevan NDA aul Grup woul a wanted Ut he provision ‘of the requested particulars would be regarded asa breach ofthe NDAs in question Its denied that that request was inexplicable. 12, Paragraph 14 is denied 12.1. The relevant agency had been told of what ad happened atthe tin «ase where a document had been sent or FitmDecisions was advised by the ageney of sch the agency's own error. No hard copy documents had been retained. It was open to GroupM to make enquires ofits agencies but it appears to have filed to do so. 122. Inany event, the obligations under each NDA are owed tothe counterparty ‘ageney in each cae, and only it could enforce ther. No dispute had yet arisen, but it ‘there had been one the relevant contacting parties would have had to bring the

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