Ocean Court Brief On Borgata Poaching Claim: Nothing To See Here, Move It Along

Borgata won't "accept the fact that former Borgata employees would rather be employed by Ocean," the latter claims in the latest brief.
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Borgata casino in Atlantic City has been involved in a lawsuit since last summer in which it claims that rival Ocean has been illegally “poaching” many of its top executives.

Of course, one man’s poaching could be another man’s aggressiveness — which is exactly the case made by Ocean’s attorneys in a filing to a U.S. District Court judge on Monday.

“Borgata has filed this action against Ocean not to protect its legitimate business interests and fair competition, but to hamper competition from Ocean in the Atlantic City market and attempt to punish Ocean for hiring former Borgata employees,” according to the Brief in Opposition to Plaintiff’s Motion for Leave to File Amended Complaint.

“Borgata would much rather blame Ocean for allegedly ‘raiding’ its employees, than accept the fact that former Borgata employees would rather be employed by Ocean, a rising competitor in the Atlantic City market.

“Since opening in 2018, Ocean has quickly become the fastest-growing casino in Atlantic City, and its success has been the product of investing in its business, its customers, and its employees. Ocean, like all of the other casinos in Atlantic City, has seen an increase in applicants from Borgata who have left employment with Borgata either because of layoff or to look for better opportunities.”

Speculation and innuendo?

The amended filing made by Borgata lawyers in February proves Ocean’s point, say the Ocean attorneys.

“In the Amendment, the Borgata has stripped out the factual allegations relating to its trade secret claims and instead replaced them with a strained story concerning how Ocean has — unremarkably — hired employees who used to work at the Borgata.

“The Amendment weaves a sensational narrative that Ocean is raiding the Borgata of its employees. While drafted in a manner to fuel media interest in the case, the Amendment is meaningless from a legal perspective. Borgata is essentially asking the Court to provide relief to impede a rising competitor, not due to any actionable conduct by Ocean. The purpose of the Amendment is clear — to scapegoat Ocean and single out individual employees who choose to leave employment with Borgata.”

“Like the original Complaint, the Amendment contains zero allegations that Ocean has actually used or disclosed any Borgata trade secrets. It is instead filled with speculation and innuendo:

  • “The aforementioned employees have knowledge of highly sensitive information that could be used by Borgata’s competitors”;
  • “Ocean could take advantage of Borgata’s trade secrets for its own benefit … Hiring [Kelly] Burke and [William] Callahan would also allow Ocean to capitalize on Borgata’s rich customer database and historical marketing information”;
  • “Ocean knew and intended they would inevitably use or disclose their knowledge of Borgata’s proprietary information in those roles”;
  • “the near simultaneous solicitation and hiring of these individuals … to work in positions which will require the immediate misuse of those trade secrets.”

The attorneys add that “notably absent from Borgata’s allegations is the legally-required allegation that Ocean used or disclosed any Borgata trade secrets.”

Giving a judge reasons to dismiss

In addition to the core argument, Ocean’s attorneys seek a court dismissal of the case via any of a number of procedural pathways.

One is an allegation that Borgata failed to meet a deadline to reply to Ocean’s motion to dismiss allegations of violations of trade secret laws or of RICO (Racketeer Influenced and Corrupt Organization Act) violations. Failing that, a judge is asked to dismiss the lawsuit due to its being “futile” given what Ocean attorneys call a lack of proof.

“Ocean initially moved to dismiss Plaintiff ’s RICO claim because it cited a completely irrelevant statute as the predicate act necessary under RICO,” according to Ocean’s filing. “Although Borgata attempts to correct the error in the Amendment by switching the predicate act, the RICO claim still fails as a matter of law because Plaintiff does not plead a ‘person’ separate and distinct from an ‘enterprise’ as required by RICO.

Claims of “tortious interference with contract and unfair competition” — poaching, basically — also are said to be unworthy because of an assertion that Ocean’s hiring practices have been completely acceptable.

Given that the case is now in its eighth month and that little headway has been achieved, it looks as if the archrivals may duke it out in filings until a judge finally rules.

Borgata attorneys, in their initial filing. described “Ocean’s intention to cripple Borgata’s casino operation and misappropriate both Borgata’s business relationships and its trade secrets and other confidential and proprietary information.”

Does that sound like language that was going to lead to anywhere but this direction? On top of that, Ocean has continued to hire — or it is poach? — more and more Borgata executives.

It all is starting to add up to be a saga that could be called “The War at the Shore” — had there not already been a book by that name about a decades-ago Atlantic City rivalry between Donald Trump and Steve Wynn.

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