Moving to a Competitor With Coworkers: Separate Planning, Solicitation, and Resignation Dates

When coworkers plan to join the same competitor, the dates and the actual communications matter. A shared career decision, an invitation to a subordinate, a client contact, and a transfer of employer information are different events. Keep them distinct when reviewing a threatened non-solicitation or loyalty claim.

The January 2, 2026 Delaware decision in BankUnited, N.A. v. Shulick, No. 2025-0956-BWD, supplies an example of why that distinction matters. The court denied a preliminary injunction after examining the agreements and a two-day evidentiary record. It did not enter a final judgment clearing every departure activity. This is a Delaware decision, not a guide to California statutory enforceability.

Start With the Actual Agreements, Including Equity Awards

Collect the employment and equity documents you are entitled to retain, including the version accepted through an online benefits portal. Do not assume that the handbook or an equity plan is the entire agreement. In BankUnited, the employees initially provided counsel with handbook and equity omnibus documents that did not reveal the disputed restrictions. The employees were unaware of the specific award agreements and had not supplied them to counsel; they located them after cease-and-desist letters identified the restrictions. BankUnited, slip op. at 5, 9–11.

For each document, identify its date, parties, acceptance mechanism, governing-law language, and restricted activity. A customer provision and an employee provision may have different wording. A handbook disclaimer may matter to one document without invalidating another. Whether an agreement was accepted and whether its restrictions are enforceable are also separate questions.

Build a Chronology That Describes Conduct Accurately

A useful chronology records who initiated a discussion, who participated, what was said, and whether the person was still employed at the time. Keep independent decisions to explore jobs separate from recruiting someone to leave. Record offer and resignation dates without changing or recreating communications to fit a preferred sequence.

In the case, four leaders discussed alternatives and decided to leave together. The preliminary record did not show that Shulick solicited those colleagues before resigning. Offers to other employees were made by the competitor after the four resigned. Those facts supported the court’s assessment of the loyalty claim; they do not make every coordinated departure lawful. Id. at 3–7, 27–28.

Preserve Evidence Without Taking Employer Information

Do not export customer lists or confidential files to prepare your own defense or a competitor’s business. Obtain preservation and production advice through counsel. A log of the relevant event can identify a document without creating an unauthorized personal copy of the employer’s database.

BankUnited pointed to metadata showing that Shulick accessed a customer report on his last day. The court credited his explanation that he accessed it for a standing business meeting and found no evidence that he downloaded, copied, or took that report to the competitor. The distinction was between access for existing work and taking information—not a general permission to copy a small amount. Id. at 7 n.31, 28–29.

Likewise, the court’s discussion of limited contacts already stored in personal phones was part of its evidentiary assessment. It was not a rule allowing departing employees to retain or use all client information. The source of information, confidentiality obligations, and actual use need separate review.

Do Not Treat Resignation as Clearance for Client Outreach

The opinion describes post-resignation client contacts that BankUnited contested. After the cease-and-desist letters, the new employer paused outreach while investigating. An employment end date does not itself answer a continuing contractual or confidentiality restriction. Bring the actual disputed communication and agreement to counsel before assuming that outreach is permitted. Id. at 8–12.

The court found the award restrictions overbroad under Delaware law and declined to narrow them for enforcement on this record. That conclusion depended on their wording and adoption circumstances. It is not a nationwide invalidation of non-solicitation agreements, and it does not decide the California rules for a different contract.

Read our BankUnited case analysis for the injunction reasoning. Our employment practice can help evaluate the actual documents and applicable jurisdiction.