BankUnited: Overbroad Non-Solicitation Clauses and a Weak Preliminary Record Defeated an Injunction

In BankUnited, N.A. v. Shulick, No. 2025-0956-BWD (Del. Ch. Jan. 2, 2026), the Delaware Court of Chancery denied a preliminary injunction against departing employees and their new employer. The result rested on two distinct problems: The asserted contractual restrictions were not enforceable as presented, and the preliminary evidence did not establish likely breaches of fiduciary duties. The court dissolved the temporary restraining order, but did not enter a final merits judgment exonerating the defendants.

The Team Departure and the Agreements Discovered Later

Brett Shulick led BankUnited’s National Title Solutions division. He and three colleagues became dissatisfied with technology, compensation, and leadership, discussed other opportunities, and decided that any move would be together. Shulick met with Customers Bank about developing a similar business there. The group sought legal advice and supplied handbook, code-of-conduct, and equity omnibus documents. Those materials did not reveal the particular restrictions later asserted. BankUnited, slip op. at 1–6.

The four resigned on August 15, 2025. Customers Bank then offered positions to other BankUnited employees, and eleven accepted that weekend. The opinion also recounts disputed client outreach after resignation. On August 22, BankUnited sent cease-and-desist letters identifying non-solicitation provisions in specific annual equity award agreements. The employees then located those agreements through the benefits portal. Customers Bank paused outreach. Id. at 7–12.

BankUnited sued for breach of contract and fiduciary duty, and asserted interference and aiding-and-abetting claims against Customers Bank. A September 26 temporary restraining order limited use of confidential information and certain solicitation. Ten witnesses testified during the December preliminary-injunction hearing, with further deposition testimony submitted afterward. Id. at 12–13.

The Preliminary-Injunction Standard Was Decisive

The court required a reasonable probability of success on the merits, imminent irreparable harm, and a favorable balance of equities. BankUnited’s failure on the first element ended the motion. The opinion expressly declined to reach irreparable harm and the equities; it did not find that harm was absent or that the balance independently favored defendants. Id. at 14, 31.

The Code of Conduct Did Not Create the Claimed Contract

The code of conduct contained an express disclaimer that it was not a contract and did not create contractual rights. The court rejected the attempt to enforce its non-solicitation wording as a contractual promise. BankUnited could not use the document’s substantive instruction while disregarding its disclaimer. Id. at 15–17.

The annual award agreements raised a different issue. The employees denied seeing the restrictions, while the portal affidavit described a process requiring review and acceptance. On the preliminary record, the court found BankUnited likely to prove assent. That did not resolve enforceability: The court went on to test the scope of the accepted provisions. Id. at 17–19.

The Customer Restriction Exceeded the Interest Being Protected

The customer clause extended to clients and prospective clients about whom an employee received information during the preceding two years. It was not confined to confidential information or customers the employee had actually served. BankUnited applied it to a daily report with more than 4,500 entries, representing roughly 1,200 households when affiliated entities were grouped. Id. at 20–22.

The court recognized an interest in employee-developed goodwill, but found no legitimate interest in barring each departing employee from soliciting thousands of businesses with which that employee had never interacted. Compliance required a cumbersome supervisory checking process. The inclusion of unidentified prospective clients further widened the restriction, and its attempted-contact language could reach even an unanswered call. These features made the clause insufficiently tailored to the claimed economic interest. Id. at 21–23.

The Employee Restriction and Refusal to Narrow the Clauses

The employee clause barred encouraging current or certain former employees to leave for any other entity. The court concluded that this captured noncompetitive conduct, including discussions about work at a nonprofit better aligned with someone’s values. It therefore exceeded the protection of legitimate business interests. Id. at 23–24.

Delaware courts have discretion to narrow overbroad covenants, but the court declined to exercise it here. It contrasted the routine portal acceptance and employees’ lack of awareness with circumstances involving meaningful negotiation or equal bargaining power. Likely proof of assent did not compel equitable rewriting of the restrictions. Id. at 25–26.

The Loyalty Claim Required More Than a Coordinated Departure

The court considered whether the employees were managerial personnel owing fiduciary duties. On the underdeveloped preliminary record, it found BankUnited unlikely to prove that status for four defendants. It assumed without deciding that Shulick owed such duties and still found the breach claim unlikely to succeed. Id. at 26–27.

The opinion distinguished preparation to compete from unfair conduct, customer solicitation during employment, misuse of confidential information, and other disloyal acts. The evidence supported a collective decision by the four leaders, rather than pre-resignation solicitation by Shulick. BankUnited also lacked persuasive proof that confidential information was taken. Shulick’s last-day access to a customer report was credibly explained by his existing business-reporting duty, and there was no evidence he downloaded, copied, or took it. Id. at 27–29.

The small number of client contacts stored in personal phones—fewer than a dozen for Shulick— undermined the asserted intentional information-taking theory on this record. A proposed competitor budget used publicly available names, positions, and vesting information; the court credited testimony that confidential compensation information was not used. These are evidence findings supporting the likelihood assessment, rather than permission to retain customer files or recruit subordinates before leaving. Id. at 29–30.

Claims Against the Competitor and the Result

The interference claim lacked an enforceable contractual predicate because the relied-on non-solicitation provisions were unenforceable. The aiding-and-abetting theory likewise lacked a demonstrated underlying fiduciary breach. The court denied the preliminary injunction and dissolved the temporary restraining order. Id. at 30–31.

The analysis applies Delaware law to the agreements and preliminary evidence before this court. It is not a California enforceability decision or a final determination of every defendant’s liability. The companion team-departure chronology guide explains which events and documents should remain separate when reviewing a dispute. See our employment services for document-specific review.