United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE
SimpliVity Corporation (“SimpliVity”) brings this
action against its former employee, Richard Bondranko, to
enforce the confidentiality and non-competition provisions of
the Proprietary Information and Inventions Agreement (the
“PIIA”) signed by Mr. Bondranko at the start of
his employment with SimpliVity. On May 31, 2016, after
spending approximately a year-and-a-half as a Technical
Support Manager at SimpliVity, Mr. Bondranko began working in
a similar position at Nutanix, Inc. (“Nutanix”).
SimpliVity alleges that Mr. Bondranko breached the PIIA by
working at Nutanix, and seeks both injunctive relief and
pending is SimpliVity's motion for a preliminary
injunction. For the reasons stated herein, the preliminary
injunction is GRANTED. Mr. Bondranko is ordered to
cease his employment with Nutanix and is enjoined from being
employed by or performing services for Nutanix for six months
from the date of this Order. In addition, he is ordered to
(1) refrain from using or disclosing SimpliVity's
Proprietary Information, as defined in the PIIA; (2)
immediately identify and return all Proprietary information
in his possession, custody, or control; (3) verify that (a)
all Proprietary Information has been returned to SimpliVity,
(b) no Proprietary Information has been retained by him, and
(c) no Proprietary Information in his possession, custody or
control has been deleted or destroyed; (4) produce a log to
SimpliVity describing any Proprietary Information previously
in his possession, custody, or control that has been deleted
or destroyed since he resigned from SimpliVity; (5) preserve
and not destroy any of the contents of his personal email
sent or received between May 1, 2016 and July 1, 2016, until
produced in discovery or this litigation is closed; and, (6)
for six months from the date of this Order, refrain from
soliciting any person to end their employment with SimpliVity
or from soliciting any person who has worked for SimpliVity
within the last six months to join Nutanix.
Factual and Procedural Background
is a technology start-up based in Westborough, Massachusetts
that develops and sells products aimed at simplifying IT for
businesses by converging a number of functionalities of
numerous disparate products, including server, storage, IT
protection and management, into “all-in-one”
products. [ECF No. 5 (“Compl.”) ¶¶ 4,
9, 12]. Its products are sold in the “hyperconverged IT
infrastructure and software defined data center
markets” and have been sold to customers around the
world. Id. ¶ 14.
Bondranko began working at SimpliVity on January 19, 2015 as
a Technical Support Manager. Id. ¶ 26. In this
position, Mr. Bondranko managed SimpliVity's technical
support engineers. [ECF No. 34 (“Day 3 Tr.”) at
41]. Working from Raleigh, North Carolina, Mr. Bondranko
oversaw the engineers who responded to and resolved technical
problems that existing customers had with SimpliVity's
products. Mr. Bondranko did not have a sales role and he
generally did not interact directly with SimpliVity's
customers. He does not have a technical background and was
not responsible for actually fixing customer's problems.
His primary role was to work behind the scenes to supervise
SimpliVity's technical support team and coordinate
SimpliVity's responses to customers' technical
when a customer became dissatisfied with SimpliVity's
technical support, the case would be “escalated,
” at which point Mr. Bondranko would work more closely
with the customer to assess the problem and manage
SimpliVity's response. Day 3 Tr. at 43. These escalated
cases were the only instances in which Mr. Bondranko
communicated directly with SimpliVity's customers. For
some of the escalated cases, Mr. Bondranko also helped draft
an incident report, a confidential document summarizing the
performance issue and corrective actions taken by SimpliVity.
[ECF No. 40 (“Day 2 Tr.”) at 42-43]. Mr.
Bondranko was also responsible for preparing “aging
cases reports, ” which tracked technical support cases
that had been open and unresolved for over a month. Day 3 Tr.
at 49; Compl. ¶ 41.
SimpliVity employees are assigned to one of seven levels of
access to confidential information based on their job
responsibilities. Day 2 Tr. at 17. As a technical support
manager, Mr. Bondranko was assigned to the second highest
level of access. Id. at 17-18. At this level, Mr.
Bondranko had access to SimpliVity's password-protected
Salesforce database, a customer relations management tool
used by the sales department to track current customers, as
well as sales leads and other salesforce information.
Id. at 46.
first day of work at SimpliVity, as a condition of his
employment, Mr. Bondranko executed the PIIA. [ECF No. 4-1].
SimpliVity requires all of its employees to enter into PIIAs.
Day 2 Tr. at 58. Under the PIIA, Mr. Bondranko agreed to: (1)
not disclose or use any of SimpliVity's Proprietary
Information outside the scope of his
employment; and (2) not work for a Competing Business
for a period of one year immediately following termination of
his employment at SimpliVity. Specifically, Mr. Bondranko
agreed to “hold in confidence and not disclose to
anyone or, except within the scope of [his] employment, use
any Proprietary Information.” Id. at 3. He
further agreed that, for a period of one-year following
termination, he would not “directly or indirectly . . .
act in Any Capacity in or with respect to any Competing
Business located within the Commonwealth of Massachusetts,
the rest of the region known as New England, the rest of the
United States, or anywhere else in the world, ” and
that he would inform SimpliVity of the identity of his future
employers. Id. at 4.
Bondranko resigned from SimpliVity on May 16, 2016. Compl.
¶ 3. He had been looking for a new job since April,
because he was concerned about his job security, and
ultimately accepted a job in the North Carolina call center
of Nutanix, another technology startup in the
hyperconvergence space. Day 3 Tr. at 36-37. On the day of his
resignation, when asked if he was going to work for a
competitor, Mr. Bondranko declined to identify his new
employer, and as result, SimpliVity terminated Mr.
Bondranko's employment that day, without allowing him to
stay for the two-week notice period. Day 3 Tr. at 45.
Bondranko began working at Nutanix on May 31, 2016, as
Manager, Global Technical Support. [ECF No. 11
(“Bondranko Decl.”) ¶ 12]. His job is
similar to one he had at SimpliVity; he manages a team of
support engineers in Nutanix's North Carolina call
center, who handle existing customers' issues with
Nutanix's products. Id.
did not confirm that Mr. Bondranko had joined Nutanix until
June 28, 2016. Compl. ¶ 56. SimpliVity contends that a
forensic analysis of Mr. Bondranko's SimpliVity laptop
revealed that Mr. Bondranko had visited my.nutanix.com, a
Nutanix portal requiring a username and password, prior to
turning in his laptop on his last day of employment with
SimpliVity and that he had continued to access his SimpliVity
Salesforce account on multiple occasions while employed at
Nutanix. Id. ¶¶ 51, 54. SimpliVity also
alleges that prior to resigning, Mr. Bondranko emailed
documents containing SimpliVity's Proprietary Information
to his personal email account, including an aged cases
presentation, which he sent to himself on May 3, 2016, after
he had already contacted a recruiter. Id. ¶ 52.
He also allegedly uploaded an unknown number of documents
from his SimpliVity laptop to a high-capacity storage drive
on May 13, 2016, and uploaded two customer incident reports
to his Dropbox account on the day he resigned. Id.
¶¶ 52, 53.
complaint that was first brought in state court on June 30,
2016 [ECF No. 5], and removed to federal court on July 1,
2016 [ECF No. 1], SimpliVity alleges that by leaving to work
for Nutanix, and taking SimpliVity's confidential
information with him, Mr. Bondranko has breached the
non-disclosure and non-competition provisions of the PIIA.
They claim that “Bondranko's vast knowledge of
SimpliVity's strengths and weaknesses, customer response
history, security measures, and near-term product road map
will provide Nutanix with ample basis to sow new [fear,
uncertainty, and doubt] into the marketplace.” Compl.
complaint, which seeks damages and injunctive relief,
contains four counts: breach of contract (Count I); breach of
the covenant of good faith and fair dealing (Count II);
misappropriation of confidential information and trade
secrets, under the common law (Count III) and under Mass.
Gen. L. 93 §§ 42 and 42A (Count IV). A trial has
been scheduled for December 5, 2016.
pending is SimpliVity's motion for a preliminary
injunction, filed on July 11, 2016. [ECF No. 13]. SimpliVity
has requested that the Court order Mr. Bondranko to: (1)
cease his employment with Nutanix and not perform any
services for Nutanix until May 15, 2017; (2) not use or
disclose SimpliVity's Proprietary Information; (3)
identify and return any SimpliVity Proprietary Information in
his possession, custody or control; (4) immediately make
available to SimpliVity all storage drives that he attached
to his SimpliVity computer; (5) provide access for SimpliVity
to the Dropbox account referenced in the Complaint; (6)
identify the physical and/or electronic locations where all
SimpliVity Proprietary Information controlled by Mr.
Bondranko resided following his resignation from SimpliVity;
(7) verify that (a) all SimpliVity Proprietary Information
has been returned to SimpliVity, (b) no Proprietary
Information has been retained by him, and (c) no SimpliVity
Proprietary Information in his possession, custody or control
has been deleted or destroyed; (8) produce a log to
SimpliVity describing any SimpliVity Proprietary Information
in Bondranko's possession, custody, or control that has
been deleted or destroyed in the past sixty days; (9)
preserve and not destroy the contents of his personal email
account(s) and social media account; and (10) refrain from
soliciting any person to end their employment with
SimpliVity, or from soliciting any person who has worked for
SimpliVity within the last six months to join Nutanix.
Id. at 4-5.
Bondranko opposed the motion on July 13, 2016 [ECF No. 10],
and the Court heard evidence and argument over the course of
several days in July ...