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SolmeteX, LLC v. Dube

Superior Court of Massachusetts, Suffolk

August 31, 2016

SolmeteX, LLC
v.
Al Dube et al No. 134823

          MEMORANDUM OF DECISION AND ORDER ON (1) DEFENDANTS ENPRESS, LLC'S AND APAVIA, LLC'S MOTION FOR SUMMARY JUDGMENT AND (2) DEFENDANT AIR TECHNIQUES, INC.'S MOTION FOR SUMMARY JUDGMENT

          Janet L. Sanders, Justice

         Plaintiff SolmeteX, LLC produces and sells amalgam separators, which are products that dentists use to remove amalgam from the wastewater created in their offices before the water is released into the environment. SolmeteX contends that its former employee, defendant Al Dube, together with other defendants wrongfully obtained trade secrets and other confidential information as they attempted to compete with SolmeteX in the amalgam separator market. The case is now before this Court on two motions for summary judgment, one brought by defendants Enpress, LLC and Apavia, LLC (collectively " Enpress") and the other brought by defendant Air Techniques, Inc. (Air Techniques). In essence, the defendants argue that SolmeteX has no reasonable expectation of proving any of its claims. After careful review of a voluminous summary judgment record, this Court disagrees, and concludes that the defendants' motions must be Denied .[1]

         BACKGROUND

         As an initial matter, it must be noted that the parties' 9A(b)(5) submissions were less than helpful. Enpress and Air Techniques filed separate (and quite lengthy) fact statements with separate sets of exhibits. SolmeteX then decided to disregard the rule and filed its own 91-page " Counter-Statement of Uncontested Material Facts" in connection with its oppositions along with its own appendix of exhibits. Having expressed its displeasure at plaintiff's counsel's disregard of the rules at the motion hearing, this Court nevertheless declines to strike the improper Counter-Statement (as requested by defendants) since that would needlessly delay resolution of these motions, which have been fully briefed and argued. That said, the Rule 9A(b)(5) submissions were not easy to decipher: plaintiff disputed many of the facts relied upon by the defendants, and each side attempted to characterize those facts in a way that supported their positions. The materials upon which these submissions were based filled four banker's boxes, and the arguments made in support of the summary judgment were fact intensive. In short, this is not a case which lends itself to disposition on summary judgment. Indeed (notwithstanding the business bar's increasing reliance on it), Rule 56 was never intended as a proxy for trial.

         Without detailing all of the facts (both disputed and undisputed) that are set forth in the parties' submissions, the Court would highlight the following, drawing reasonable inferences in favor of the nonmoving party.

         SolmeteX develops, manufactures, and sells the Hg5 amalgam separator. It generates revenues through sales of that device to and replacement cartridges for it. Dube began working at SolmeteX from its inception in 1994, working closely with founder Owen Boyd, and rose to a senior position in the company. A reasonable inference can be drawn from the facts in the record that Dube had access to proprietary and confidential information of the company by virtue of his position. An employment agreement Dube signed in 1996 prohibited him from disclosing proprietary or confidential information. In 2007, when SolmeteX was acquired by Layne Christenson Company, Dube and Boyd signed supplemental agreements that contained similar prohibitions.

         In 2012, SolmeteX began exploring the possibility of selling the company and approached defendant Air Techniques. Air Techniques has a patent on Acadia, also an amalgam separator, which it manufactures and sells in competition with SolmeteX. At SolmeteX's direction, Dube met with Air Techniques president John Scott and discussions ensued. In 2013, however, Dube (unbeknownst to SolmeteX) suggested to Scott in an email, using his private account that a different approach be taken whereby Air Techniques would " buy the people rather than buy the company." Dube indicated that he was considering other opportunities himself and noted that Boyd (no longer with SolmeteX by that time) had recently established a company that would have three product lines, including an amalgam separator. Dube asked Scott if Air Techniques was interesting in " looking at this opportunity."

         In early April 2013, Scott and Boyd spoke on the phone to discuss a possible joint venture involving, among other things, the development of an amalgam separator in concert with another company, defendant Enpress that Boyd was already assisting. Scott expressed interest in a joint venture whereby Air Techniques would help finance the development of a new amalgam separator and use Dube to market it. Dube was at that time the Director of Business Development for SolmeteX's Hg5 line; during this period, he met with Enpress' vice president of sales Michael Mormino. There are facts in the summary judgment record indicating that Enpress and Air Techniques, working with Dube, planned to sell replacement Hg5 cartridges and develop a new competing amalgam separator.

         What happened thereafter is largely disputed. The defendants contend that the proposed joint venture never came to fruition. Although Dube did go to work for Air Techniques, Techniques denies that he shared any trade secrets or that it knew that Dube was subject to any restriction that would prevent him from working there. For its part, Enpress asserts that, although Dube provided it with advice on the amalgam separator business, none of it was helpful; in any event, much of it was already in the public domain. Strongly disputing those factual positions, SolmeteX contends that Dube did indeed funnel to the defendants confidential information of SolmeteX, and that with this information, Enpress and Air Techniques planned to sell replacement SolmeteX cartridges and develop a new competing amalgam separator. There is some support for SolmeteX's position in the summary judgment record, including facts that show that Dube provided to Enpress dealer pricing information and information relating to SolmeteX's design, testing, and manufacturing.

         One set of facts before the Court critical to resolution of the instant motions is what Dube did before his departure from SolmeteX. Based on a forensic review of Dube's company issued laptop, he inserted nine different data storage devices into the computer from April 20, 2013 to February 26, 2014, the date he left SolmeteX. Some of the recovered documents from the USB memory drives include SolmeteX training and marketing presentations, a SolmeteX marketing strategy document, photographs of Hg5 dental installations, and detailed sales comparisons between major SolmeteX dealers. Immediately after learning about the instant lawsuit, Dube deleted files from his personal Apple laptop. A forensic examiner was able to recover, however, copies of multiple SolmeteX investor presentations and business contact information, among other things. What was done with this information turns on the credibility of the witnesses--Dube in particular.

         DISCUSSION

         As is apparent from the recitation above, there are disputes of material fact that make summary judgment inappropriate as to both defendants. By way of explanation, this Court states as follows:

         1. Misappropriation of Trade Secrets (Count I and II)

         Both Enpress and Air Techniques contend that SolmeteX has no reasonable expectation of proving that the defendants acquired any trade secrets, much less that they knew or should have known that any information they did receive was improperly taken. Both arguments ...


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