Superior Court of Massachusetts, Suffolk, Business Litigation Session
June 12, 2017
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
TO REPORT SUMMARY JUDGMENT DECISION PURSUANT TO RULE
Kenneth W. Salinger, Justice.
prior rulings, the Court dismissed or granted partial summary
judgment against all of The Gillette Company's claims.
Most recently the Court decided that the remaining Defendants
are entitled to summary judgment on Gillette's claims
that four of its former employees helped ShaveLogic, Inc.,
develop a new disposable cartridge shaving razor using
Gillette's confidential information. The only remaining
claims to be decided are ShaveLogic's counterclaims that
Gillette intentionally interfered with prospective business
relations and violated c. 93A, by threatening to bring and
then filing baseless legal claims in an attempt to keep
ShaveLogic from entering the market for so-called wet-shaving
the Court granted partial summary judgment in Defendants'
favor on Gillette's " confidential information"
claims, it did not enter separate and final judgment under
Mass.R.Civ.P. 54(b) because doing so would be inconsistent
with the appellate courts' strong policy against
piecemeal appeals. Gillette therefore has no right to
appeal the Court's interlocutory decision granting
partial summary judgment in Defendants' favor on what had
been Gillette's remaining claims.
has now asked the Court to report its summary judgment
decision for interlocutory appellate review under
Mass.R.Civ.P. 64(a). The Court will DENY this request for the
reasons discussed below.
64(a) authorizes a trial court to report an interlocutory
order to the appeals court for immediate review. However,
" [s]uch a report should be reserved for novel and
difficult issues, the appellate decision of which may
expedite resolution of the case." Morrison v.
Lennett., 415 Mass. 857, 859, 616 N.E.2d 92 (1993).
" Interlocutory matters should be reported only where it
appears that they present serious questions likely to be
material in the ultimate decision, and that subsequent
proceedings in the trial court will be substantially
facilitated by so doing." Globe Newspaper Co. v.
Massachusetts Bay Transp. Auth. Ret. Bd., 412 Mass. 770,
772, 592 N.E.2d 1325 (1992), quoting John Gilbert Jr. Co.
v. C.M. Fauci Co, 309 Mass. 271, 273, 34 N.E.2d 685
argues that the summary judgment decision in this case turned
on the resolution of two unsettled questions of law that
should be reviewed by the Appeals Court before
ShaveLogic's counterclaims go to trial. The Court is not
Third-Party Patent Disclosures
believes that the Court erred in ruling that disclosure of a
design concept by a third party in a patent establishes that
the concept is not confidential. Although Gillette concedes
that a third-party patent disclosure defeats any claim of
confidentiality if the disclosure is well known to others, it
argues that information can still be protected as
confidential if it is disclosed in an obscure third-party
patent that is not generally known in the relevant field.
issue does not warrant an interlocutory report and review for
begin with, the principle that a business cannot seek to
protect as confidential any information that is known by
someone outside the business, even if it is not generally
known in the industry, is well established under
Massachusetts law. See, e.g., Augat, Inc. v. Aegis,
Inc., 409 Mass. 165, 170, 565 N.E.2d 415 (1991) (sales
volume " known outside the business" by several
securities analysts was not confidential). For example, an
employee is free to carry away his or her memory of
customers' names, needs, and habits and to use that
information to solicit business from those very customers.
Such " remembered information" is not confidential
because the information itself, as distinguished from an
employer's compilation of such information into a list or
database, is known to the customers and thus not kept secret
by the employer. American Window Cleaning Co. v.
Cohen, 343 Mass. 195, 199, 178 N.E.2d 5 (1961) ("
Remembered information as to the plaintiff's prices, the
frequency of service, and the specific needs and business
habits of particular customers was not confidential");
accord Woolley's Laundry v. Silva, 304 Mass.
383, 391-92, 23 N.E.2d 899 (1939); May v. Angoff,
272 Mass. 317, 320, 172 N.E. 220 (1930). There is no good
reason why the sharing of information with a few securities
analysts as Augat, or between one customer and one
service provider as in American Window would destroy
any claim of confidentiality but disclosure of information in
a public patent would not.
case, the legal question flagged by Gillette regarding
third-party patent disclosures is immaterial because Gillette
concedes that the general concepts of designing razors using
a front-loading engagement, a magnetic attachment, or an
elastomeric pivot are not confidential to Gillette. In its
prior decision, the Court noted that Gillette had made this
concession during the summary judgment oral argument. It
nonetheless went on to explain why the undisputed summary
judgment record was consistent with Gillette's
concession. The Court discussed third-party patent
disclosures only as part of its explanation of why it made
sense for Gillette to concede that these three general design
concepts were not confidential. Those parts of the
Court's decision played no other role in its analysis.
More recently, during oral argument on Gillette's motion
for a report under Rule 64, Gillette expressly reiterated its
concession that these general design concepts are
not confidential as a matter of fact. It therefore
does not matter whether the Court's prior discussion of
third-party patent disclosures was correct or incorrect as a
matter of law.
Court explained in its prior summary judgment ruling, the
ShaveLogic defendants were entitled to judgment in their
favor as a matter of law because Gillette could not muster
any evidence that ShaveLogic used any Gillette confidential
information in developing any product. That prior ruling did
not turn on any novel and difficult issue of law. It turned
on Gillette's inability to present any evidence to
support its claims.
reiterates its prior argument that the expert opinion of its
expert witness, that misuse of Gillette confidential
information gave ShaveLogic a head start in designing its
razor, creates a triable jury question. That argument is
still incorrect for the reasons that the Court discussed in
its prior decision. Although Gillette's expert opined
that Defendants must have used Gillette confidential
information to design ShaveLogic's razors, he reached
that conclusion based on his mistaken assumption that the
general design concepts of front-loading engagements,
magnetic attachments, and an elastomeric pivot or loop ...