Banking & Finance  May 9, 2019

Sunflower denies BOKF allegations in trade-secret spat

DENVER — Sunflower Bank NA has denied allegations made in a trade-secrets lawsuit filed in April by BOKF NA, the Oklahoma-based bank that acquired Colorado Business Bank in October 2018.

BOKF filed suit April 9 in U.S. District Court in Denver against Sunflower and Kelly Condon, a former senior business-development executive for CoBiz and now a senior vice president and director of market development for Denver-based Sunflower.

The lawsuit accused Condon of transferring contact information of BOKF customers to solicit business on behalf of Sunflower, his new employer. He’s alleged to have contacted those customers through his personal email account, emailing the customers, “Today I will be resigning to take an awesome position at Sunflower Bank as SVP – Director of Market Development. . . after I am plugged in I will reach out to discuss how we can work together.”

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The lawsuit accuses Condon of breach of fiduciary duty, violation of federal and state trade-secrets laws, civil theft, civil conspiracy, and breach of a confidentiality agreement and contract. It accuses Sunflower of violation of federal and state trade-secrets laws, aiding and abetting breach of fiduciary responsibility, civil theft and civil conspiracy.

Sunflower, in a response filed May 1, denied that it had violated trade-secrets laws, that it had aided and abetted breach of fiduciary responsibility by Condon, or that it had engaged in civil theft or civil conspiracy.

“Sunflower admits that it lawfully competed with BOKF for the business of a customer who independently approached Sunflower,” read a response filed on behalf of Sunflower by Denver attorneys Jeffrey Cohen and Anthony Garcia of Cohen LLC, a Denver-based law firm. “Sunflower lacks knowledge or information sufficient to form a belief about the truth of the remainder of the allegations made [regarding whether Condon transferred BOKF customer information] … and therefore denies them.”

Sunflower’s attorneys said BOKF’s “claim against Sunflower, including its failed claim for injunctive relief, lack substantial justification and are substantially vexatious, frivolous, and groundless, and Plaintiff has multiplied the proceedings unreasonably and vexatiously.” Sunflower might seek attorney’s fees and costs as a remedy.

Sunflower also claimed that BOKF itself created the situation that allowed an alleged misappropriation of trade secrets “by having lax or non-existent data security measures and by failing to adequately and reasonably safeguard information Plaintiff believed was a trade secret or confidential.”

Cohen said in a telephone interview with BizWest that Sunflower is confident in its denials.

“We just have done nothing wrong,” Cohen said, “and it was painfully clear at the hearing, and frankly, it was painfully clear before the hearing.”

Attorneys for BOKF and Condon did not respond to BizWest’s requests to comment.

Condon has not yet responded to the complaint but must file and serve an answer or motion within 60 days of April 12.

U.S. District Court Judge Philip Brimmer on April 17 granted a temporary restraining order against Condon, prohibiting him from “disclosing, disseminating, or copying any client or referral source contact information that he acquired, or that may exist on his personal telephone, as a result of his employment with plaintiff.” The judge denied a temporary restraining order against Sunflower, asserting that there was little likelihood of BOKF prevailing on the merits.

“Because the court said that there was no likelihood of success on the merits of BOKF’s claims against Sunflower, we don’t really expect that BOKF will pursue its claims against Sunflower,” he added. “I can’t speak for them, obviously. They can do whatever they want. But they failed at the first go-around. It was a high-risk gamble from their point of view, and they lost.”

The temporary restraining order against Condon was to expire May 1, but the court on April 29 extended that temporary restraining order to July 30.

The dispute between BOKF and Sunflower comes amidst heated competition within the Colorado banking industry, with banks vying for skilled and experienced workers, and with employees shifting from one institution to another.

“It’s common. It happens,” Cohen said. “This is not the first time it’s happened, obviously. It’s common, especially when there are combinations, and mergers and acquisitions in a very competitive industry, which Denver banking is. It’s intensely competitive.”

BOKF is represented by attorneys with Wheeler Trigg O’Donnell LLP, a Denver law firm.

Condon is represented by Timothy Kratz, an attorney with Jackson Lewis PC, a Denver law firm.

DENVER — Sunflower Bank NA has denied allegations made in a trade-secrets lawsuit filed in April by BOKF NA, the Oklahoma-based bank that acquired Colorado Business Bank in October 2018.

BOKF filed suit April 9 in U.S. District Court in Denver against Sunflower and Kelly Condon, a former senior business-development executive for CoBiz and now a senior vice president and director of market development for Denver-based Sunflower.

The lawsuit accused Condon of transferring contact information of BOKF customers to solicit business on behalf of Sunflower, his new employer. He’s alleged to have contacted…

Ken Amundson
Ken Amundson is managing editor of BizWest. He has lived in Loveland and reported on issues in the region since 1987. Prior to Colorado, he reported and edited for news organizations in Minnesota and Iowa. He's a parent of two and grandparent of four, all of whom make their homes on the Front Range. A news junkie at heart, he also enjoys competitive sports, especially the Rapids.
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