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Gillette Company v. Provost

Appeals Court of Massachusetts, Suffolk

March 7, 2017

CRAIG PROVOST & others. [1]

          Heard: October 13, 2016.

         Civil action commenced in the Superior Court Department on January 16, 2015.

         A special motion to dismiss was heard by Janet L. Sanders, J.

          Christopher Morrison for the plaintiff.

          Brian C. Swanson, of Illinois, for the defendants.

          Present: Wolohojian, Carhart, & Shin, JJ.

          SHIN, J.

         The Gillette Company sued four of its former employees (the individual defendants), claiming that they misappropriated Gillette's trade secrets and other confidential information to develop a wet-shaving razor for the benefit of their new employer, the defendant ShaveLogic, Inc. After ShaveLogic counterclaimed, alleging that Gillette brought its lawsuit in bad faith, Gillette moved to dismiss the counterclaims on grounds that the filing of the lawsuit was petitioning activity protected by G. L. c. 231, § 59H (commonly known as the anti-SLAPP[2] statute), and was protected by the litigation privilege. A judge of the Superior Court denied the motion, and Gillette filed this interlocutory appeal.

         We conclude that, based on the record before her, the judge could have found that ShaveLogic met its burden of showing that Gillette's petitioning activity was "devoid of any reasonable factual support" and caused ShaveLogic "actual injury." Under the anti-SLAPP statute, that showing was sufficient to allow the counterclaims to go forward. We further conclude that the litigation privilege does not bar the counterclaims because they seek to hold Gillette liable not for speech, but for conduct (its act of filing an allegedly groundless lawsuit), to which the privilege does not apply. We therefore affirm that part of the judge's order resolving these two issues in ShaveLogic's favor.[3]


         We summarize the allegations made by each party, reserving other facts as they become relevant to our analysis of the issues raised.

         1. Gillette's claims.

         The complaint alleges the following facts: Gillette is in the business of "designing, manufacturing, and marketing razors and other shaving products." As a leader in this field, Gillette holds "thousands of patents covering razors and other shaving technology." It is also "constantly researching and designing new technology and advancing current technology" and "has taken affirmative steps to protect the confidentiality of" information related to those efforts.

         Each of the individual defendants once worked for Gillette in positions that gave them access to Gillette's confidential information and trade secrets, including confidential information "relating to magnetic attachments for shaving cartridges and elastomeric pivots."[4] In addition, at least one of the individual defendants, while at Gillette, "produced and/or otherwise worked on sketches and/or prototypes with respect to several magnetic attachment and elastomeric pivot concepts." Upon their respective separations from Gillette, the individual defendants agreed that they would not use Gillette's confidential information or share it with any non-Gillette employee or entity. They also agreed "to disclose and assign to Gillette any invention, idea, or improvement made or conceived during their employment at Gillette."

         ShaveLogic is one of Gillette's competitors "in the wet shaving field." At some point after the individual defendants left Gillette, ShaveLogic hired them as employees or retained them as consultants. Thereafter, ShaveLogic filed several patent applications relating to the use of magnetic attachments and elastomeric pivots in razors. One of those applications, which was directed to a magnetic attachment for a shaving cartridge, became U.S. Patent No. 8, 789, 282 (the '282 patent). ShaveLogic is the owner of the '282 patent, and two of the individual defendants are named inventors.

         Based on these allegations, the complaint asserts that the individual defendants "used Gillette confidential information and trade secrets to design, invent, and/or otherwise contribute to the technology covered by the '282 patent and the [p]atent [a]pplications, including but not limited to magnetic attachment and elastomeric pivot concepts." Against the individual defendants, the complaint raises claims for breach of contract, misappropriation of trade secrets, and unfair and deceptive acts and practices in violation of G. L. c. 93A. Against ...

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