It’s clear that Burton Brillhart loves his job. The Varsity Brands general counsel feels privileged that his role allows him to contribute to his company’s mission every day: empower young people by encouraging participation, recognizing achievement and building community and school spirit.
“It’s a rare opportunity that I’m grateful to have and that my team has with this very powerful, mission-driven experience,” he tells The Texas Lawbook. “It’s something I’m very proud to be able to do.”
Given his enthusiasm for his employer, Brillhart was not afraid to go to trial last month after its graduation products affiliate, Herff Jones, lost dozens of clients in Alabama after two sales representatives left for a competitor and violated their noncompete agreements in the process.
Brillhart invested three years in the litigation, including a two-week trial in Mobile, which resulted in a $3.1 million judgment for Herff Jones and sales representative Brent Gilbert, an independent contractor who heads sales for parts of Herff Jones’ Alabama operations.
“The confidence comes from believing in your own people and believing in the integrity of your business,” Brillhart said. “When you have those things, you don’t shrink from them.”
The jurors found after seven hours of deliberation on April 12 that Herff Jones’ biggest competitor, Jostens Inc., conspired with former Herff Jones sales associates John Wiggins and Chris Urnis to steal trade secrets and confidential information from Herff Jones and Gilbert.
Herff Jones and Jostens’ legal teams are headed back to the courtroom Friday to argue a few post-trial motions, including Jostens’ renewed motion for judgment as a matter of law that there was insufficient evidence presented at trial to prove the defendants’ actions caused the damages awarded to Herff Jones.
If Mobile County Circuit Judge Robert H. Smith denies the defense’s motion, Jostens will have 42 days to appeal. He has already affirmed the jury’s verdict, which he did April 16.
The case
Herff Jones is the entity in charge of the achievement segment of Dallas-based Varsity Brands’ business model. The Indiana-based company considers itself the leading provider of class rings, caps and gowns, yearbooks and other graduation products to schools across the U.S.
Gilbert recruited Wiggins to join Herff Jones from Jostens in 2004; in 2006, Urnis also came on board. Both had noncompete agreements with Jostens that prohibited them from selling scholastic products for one year.
According to court documents, Gilbert’s company, GradPro Recognition Products, paid Wiggins $105,000 during his noncompete year, which he spent fishing and volunteering at his church and a retirement home. GradPro paid Urnis $30,000 to supplement his income during his noncompete year, which he spent coaching and teaching at a school in Prattville, Alabama.
Over the next decade, Herff Jones steadily built up a book of business from the schools Urnis and Wiggins serviced while they were at Jostens.
Jostens came calling again in 2015, and asked Wiggins and Urnis if they would be interested in rejoining the company. Unbeknownst to Herff Jones, Wiggins and Urnis provided Jostens with confidential information about their employer during the months leading up to their spring 2016 resignations. This included information about Herff Jones’ pricing, sales and commissions.
Wiggins and Urnis also contacted many of their schools before resigning to let them know they were going to Jostens. In some instances, court documents say, they gave school representatives the false pretense that Herff Jones may be going out of business.
Herff Jones and Gilbert sued Jostens, Urnis and Wiggins in 2016 after it became clear that the sales associates had violated their noncompete agreements; 47 of Herff Jones’ schools transferred to Jostens within 12 weeks of Wiggins’ and Urnis’ resignations.
Herff Jones later discovered that Wiggins signed a “consulting agreement” with Jostens in which he “parked” all of his schools with Jostens sales representative Scott Moore, who held onto the schools for a year until Wiggins could return, court documents say.
Brillhart put together a legal team that included Mobile attorneys Cecily Kaffer of The Kullman Firm and Forrest Latta of Burr & Forman and Dothan, Alabama attorney Harry Hall of Farmer Price. When it became apparent that the case would go to trial, Brillhart decided to hire Michael Hurst, Andrés Correa and John Adams of Lynn Pinker Cox & Hurst.
Brillhart and Hurst have known each other for 15 years, and previously practiced together at Godwin Gruber.
“I determined I needed a No. 1 first-class trial team to take the matter to trial, and I knew that was Michael and his team at Lynn Pinker Cox & Hurst,” Brillhart said. “I’ve known Michael a long time. I know of his capabilities and he’s one of the most tenacious, effective lawyers in the business.”
At the time Brillhart put together the Herff Jones legal team, he had not even brought on board the three other in-house attorneys that are currently at Varsity Brands with him.
Brillhart said the most critical moment of the litigation was the beginning, during which the Herff Jones legal team employed the discovery tactics crucial to obtaining the “smoking gun” evidence they presented at trial that helped them win the case.
Some key pieces of evidence presented to jurors at trial were communications that Wiggins and Jostens executive Louis Kruger exchanged via their wives’ email accounts before Wiggins resigned with Herff Jones. The legal team also obtained an affidavit from a school principal who said Wiggins contacted him from his wife’s and daughter’s cell phones on multiple occasions before his noncompete period expired April 1, 2017.
“We knew all these things were happening in an underhanded way, but we needed to develop that evidence through discovery, which we did,” Brillhart said. “I credit a lot of it to Michael and his team and Cecily for all their hard work in the case in developing the evidence appropriately to show at trial to convince the jury that what had been done was wrong.”
Brillhart said the second most critical part of the litigation was the credibility of the witnesses presented at trial.
“Our side told a very credible story and the other side just didn’t,” he said.
Jostens argued at trial that it didn’t do anything wrong, that Wiggins and Urnis’ moves were part of an industry standard, and that Herff Jones itself once recruited Wiggins and Urnis away from Jostens.
A dramatic moment that offset Jostens’ arguments at trial came when Hurst was cross-examining Wiggins. Hurst repeatedly asked Wiggins about others he had put blame on, and asked him to confirm his position that he was putting none of the accountability on himself.
Unexpectedly, according to court documents, Wiggins answered: “I may very well be the reason why we’re all here today. And I do accept responsibility for a lot of this. And I wouldn’t say that I haven’t done anything wrong.”
When Hurst indicated to the court that he was done with his questioning, Wiggins exclaimed from the witness stand, “Praise Jesus!”
Hurst said Wiggins’ confession at trial was akin to being caught “with his hand in the cookie jar.”
Brillhart said the trial win is important for Varsity Brands and Herff Jones because it “upholds the integrity of the contracts” they use with the more than 2,000 salespeople that the company does business with nationally who “work with us on a day-to-day basis and who go into schools on our behalf every day.”
“We were serious about protecting the integrity of our agreements and seeing it all the way through,” Brillhart said. “It’s why I built a substantial legal team that included the finest attorneys, not just from Mobile, but from Dallas.”