This section contains the nature of the case and procedural background.

BDO (P) is a national accounting firm that has 40 offices nationwide. Hirshberg (D) began employment with P in its Buffalo office through a merger acquisition. D was eventually promoted to manager and was required to sign a Manager’s Agreement. In that agreement, D expressly acknowledged that there was a fiduciary relationship between him and P because of various disclosures which gave him advantages in attracting P clients. Because of this relationship, D agreed that 18 months following his termination that if he served any former client of P in Buffalo that he would compensate P for loss and damages suffered. D resigned from P in October 1993. P sued D in January 1995 claiming the loss of 100 clients to D from the Buffalo office. D denied serving some of the clients, averred that a substantial number were personal clients that he recruited for P and that with some of the other clients he had no real and substantive contacts with them during his tenure at P even though they were P customers. D got summary judgment, and the court dismissed the lawsuit; the reimbursement clause was overbroad and unenforceable. The appeals court agreed and held the entire agreement invalid.

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