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The Gillette Co. v. Provost

Superior Court of Massachusetts, Suffolk, Business Litigation Session

May 5, 2016

The Gillette Company
Craig Provost et al No. 133515


          Kenneth W. Salinger, Justice of the Superior Court.

         The Gillette Company is unhappy that one of its former in-house patent lawyers, Chester Cekala, is now working for a competitor. The original complaint alleged that four other Gillette employees went to work for ShaveLogic, Inc., and took with them trade secrets or other confidential information belonging to Gillette. Gillette has amended its complaint to add claims that (i) Cekala is breaching his ongoing fiduciary duties to his former client by helping ShaveLogic compete with Gillette, [1] (ii) ShaveLogic's chief executive officer (Robert Wilson) and president (Duwayne Miller), together with several other defendants, have aided and abetted Cekala in breaching his fiduciary duty to Gillette, and (iii) all of the Defendants have conspired to help Cekala breach his fiduciary duties to Gillette. Cekala, Wilson, and Miller now move to dismiss all claims against them.

         The Court concludes that the first amended complaint does not state a viable claim for breach of fiduciary duty against Cekala. It is perfectly lawful for Gillette's former patent attorney to help a competitor avoid infringing Gillette patents, so long as he does not disclose or use any confidential information obtained from Gillette. The facts alleged by Gillette do not plausibly suggest that Cekala misused any confidential information belonging to Gillette or that Cekala's work for ShaveLogic is otherwise " substantially related" to anything he did for Gillette within the meaning of Mass. R. Prof. Conduct 1.9.

         Since the alleged breach of fiduciary duty is a necessary element of the aiding and abetting claim and so much of the conspiracy claim alleging that other defendants conspired with Cekala in breaching his fiduciary duty, those claims must also be dismissed. The Court will therefore ALLOW the motion to dismiss.

         1. Factual Allegations and Legal Claims

         The first amended complaint that Gillette filed in January 2016 alleges the following facts and makes the following claims with respect to the issues raised in the pending motion to dismiss.

         Cekala worked as a patent lawyer for Gillette from 1987 to 1990 and again from 1992 through May 2006. While he represented Gillette as its lawyer, Cekala " had access to privileged communications and information" regarding Gillette's patents and technologies. Cekala also developed " detailed knowledge" of Gillette's patents and related licensing agreements while he was employed by Gillette.

         ShaveLogic competes with Gillette in the market for wet shaving products. Cekala started working for ShaveLogic on patent matters in June 2012. He became employed by ShaveLogic as its general counsel in April 2013. Cekala still holds that position today. ShaveLogic has told its investors and prospective business partners that Cekala's " intimate knowledge of Gillette's intellectual property portfolio and patent strategy" gives ShaveLogic " a competitive edge in the market." ShaveLogic hired Cekala " to provide freedom to operate opinions respecting Gillette patents, including patents whose prosecution he oversaw, and to identify potential voids in Gillette's patent portfolio." While employed by ShaveLogic, Cekala has also provided similar assistance to other companies that compete with Gillette.

         Gillette claims that Cekala has represented ShaveLogic in matters that are substantially related to those in which he previously represented Gillette, that Cekala has done so without Gillette's consent, and that as a result Cekala has breached his continuing fiduciary duty to Gillette. Gillette further claims that ShaveLogic and its chief executive officer Robert Wilson, its president Duwayne Miller, and its employees John Griffin and William Tucker have all aided and abetted Cekala in breaching his fiduciary duty to Gillette. Finally, Gillette claims that all of the Defendants have conspired " to cause Cekala to breach his fiduciary duty to Gillette."

         2. Legal Standard

         To survive a motion to dismiss under Mass.R.Civ.P. 12(b)(6), a complaint must allege facts that, if true, would " plausibly suggest[ ] an entitlement to relief." Lopez v. Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012), quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), and Bell A. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). For the purpose of deciding Thornton's motion to dismiss Fritz's complaint, the Court must assume that the factual allegations in the complaint and any reasonable inferences that may be drawn from the facts alleged are true. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011). In so doing, however, it must " look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief." Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336, 339 (2015), quoting Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011).

         3. Analysis

         3.1. Scope of Fiduciary Duty

         Cekala owes a continuing fiduciary duty to Gillette even though he stopped representing Gillette in patent matters ten years ago. However, the scope of Cekala's fiduciary duty to Gillette today is narrower than the broad duty of undivided loyalty that Cekala ...

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