United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Keisuke Suzuki (“Suzuki”) has filed this lawsuit
against Defendant Abiomed, Inc. (“Abiomed”)
asserting numerous claims, including the sole remaining claim
for a breach of the implied covenant of good faith and fair
dealing (Count I). D. 1; D. 18; D. 59 at 3, n.3. Abiomed has
moved for summary judgment. D. 44. For the reasons stated
below, the Court ALLOWS the motion. The Court DENIES
Abiomed's motion to strike portions of the record, D. 71;
D. 87, as moot.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
movant bears the burden of demonstrating the absence of a
genuine issue of material fact. Carmona v. Toledo,
215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant meets
its burden, the non-moving party may not rest on the
allegations or denials in her pleadings, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but
“must, with respect to each issue on which she would
bear the burden of proof at trial, demonstrate that a trier
of fact could reasonably resolve that issue in her
favor.” Borges ex rel. S.M.B.W. v. Serrano-
Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a
general rule, that requires the production of evidence that
is ‘significant[ly] probative.'” Id.
(quoting Anderson, 477 U.S. at 249) (alteration in
original). The Court “view[s] the record in the light
most favorable to the nonmovant, drawing reasonable
inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009).
Relevant Factual Background
following facts are drawn primarily from Abiomed's
statement of undisputed facts, D. 46, Suzuki's response
to Abiomed's statement of undisputed facts, D. 63,
Suzuki's statement of disputed material facts, D. 64, and
supporting documents. The facts are undisputed unless
is a publicly traded company that is a leading provider of
temporary mechanical circulatory support devices-also known
as “heart pumps.” D. 46 ¶ 1; D. 63 at 2. The
specific line of heart pumps that Abiomed develops,
manufactures and markets is called “Impella.” D.
46 ¶ 1; D. 63 at 2.
has worked as a manager or director in the medical device
field since 1998. D. 60 ¶ 2. From 1998 until 2006, he
worked in Japan at Guidant Japan, K.K.
(“Guidant”), a Japanese subsidiary of a large
medical device company. Id. In or about January
2007, Suzuki left Guidant and established Kaye Suzuki Device
Consulting, LLC (“Suzuki Consulting”), which
provided consulting services to companies seeking to
introduce medical devices into the Japanese market.
Id. ¶ 3. One of Suzuki consulting's clients
was Abiomed and Suzuki provided consultation services
relating to its seeking approval in Japan of its Impella line
of heart pumps. Id. ¶ 4.
Terms of Suzuki's Employment and Compensation Package
late 2009 to early 2010, Suzuki engaged in discussions
regarding potential employment at Abiomed with Abiomed's
CEO Michael Minogue (“Minogue”), its Vice
President of Healthcare Solutions Andrew Greenfield
(“Greenfield”) and its head of Human Resources
Frank LeBlanc (“LeBlanc”). D. 46 ¶¶
3-4; D. 1 ¶ 13. Suzuki and the various representatives
from Abiomed discussed his compensation package consisting of
a combination of salary, bonuses, shares of Abiomed stock and
potential commissions. D. 46 ¶ 3; D. 63 at 2-3. Suzuki
related to Minogue and Greenfield that his annual earnings at
Guidant and Suzuki Consulting were much greater than what
Abiomed was offering, but that he would be willing to work at
Abiomed for a lesser salary because “[h]opefully the
equity [would be] huge to make this up.” D. 64 ¶
1; D. 60 ¶ 7; D. 60-2.
April 1, 2010, Abiomed made a written offer of employment
(“Offer Letter”) to Suzuki for the position of
Vice President of Asia, reporting to Greenfield. D. 46 ¶
6; D. 50-10; D. 63 at 3. The Offer Letter detailed
Suzuki's annual salary, annual bonus potential and a
commission opportunity. D. 46 ¶ 6; D. 50-10; D. 63 at
3-5. It also provided that “this letter shall not be
construed as an agreement, either express or implied, to
employ you for any stated term, and shall Case
1:16-cv-12214-DJC Document 94 Filed 01/04/19 Page 4 of 24 in
no way alter Abiomed policy under which both you and the
Company remain free to end the employment relationship at any
time and for any reason.” D. 50-10 at 4. Additionally,
the Offer Letter reflected that Suzuki would be awarded up to
45, 000 shares of Abiomed common stock, which would be
contingent on meeting three milestones. D. 46 ¶ 7; D.
50-10; D. 63 at 3-5. Specifically, (1) a performance share of
10, 000 shares of Abiomed's stock would issue upon the
successful submission of an application to Japan's
Pharmaceutical and Medical Device Agency (“PMDA”)
for Impella use in Japan; (2) a performance share of 20, 000
shares of Abiomed's stock would issue when Japan's
Ministry of Health, Labor, and Welfare (“MHLW”)
approved Impella for “general use”; and (3) a
performance share of 15, 000 shares of Abiomed's stock
would issue “when Approval for targeted reimbursement
level of Impella is gained.” D. 46 ¶ 7; D. 50-10;
D. 63 at 3-5. The Offer Letter further stated that the
performance share awards “require that you continue to
be employed by the Company on the date that any of these
milestones are achieved . . . ” and that “[o]nce
approval is gained for Impella General Use in Japan and
provided that you remain and are qualified to be employed in
the Commercial leadership role, we will present to you a
commission structure.” D. 46 ¶ 7; D. 50-10; D. 63
response to the Offer Letter, Suzuki emailed Greenfield and
LeBlanc with several follow-up questions. D. 46 ¶ 8; D.
50-12; D. 63 at 5. Among other things, Sukuzi asked:
3) What do you mean but [sic] ‘General Use' of
Impella? I can not [sic] predict what will MHLW approve as
intended use. Our goal is to gain the same as CE
[Conformité Européenne] mark which I am not
sure if you can describe as General Use. But the risk is that
it will be the same with present FDA [Food and Drug
Administration] max of 6 hours . . . .
D. 46 ¶ 8; D. 50-12 at 3; D. 63 at 5. Greenfield
responded to Suzuki's question: “3) An approved
indication, could be FDA or CE type approval. Specifically
not a clinical trial prior to approval.” D. 46 ¶
9; D. 50-12 at 2; D. 63 at 5. It is undisputed that
“indication” in this context means a
“patient population [that] can be treated.” D. 46
¶ 9; D. 63 at 5-6. Abiomed also alleges that Greenfield
verbally told Suzuki “general use” was
“defined as the same type of approvals [Abiomed] had in
the United States, which is from the FDA, as well as in
Europe for what is called a CE mark, which were very broad,
crossed our main indications for clinical, and in Europe was
actually more specific, so it was a restricted [sic], but it
was still a series of multiple . . . indications . . .
.” D. 46 ¶ 9; D. 50-2 at 4-5. Suzuki acknowledges
the conversation took place but could not recall its content.
D. 50-1 at 46.
receiving the Offer Letter, Suzuki also emailed Matthew
Fairshter, who was both a friend and an attorney to Suzuki,
asking Fairshter to review the Offer Letter and provide his
“personal legal advise [sic].” D. 46 ¶ 11;
D. 50-13 at 2; D. 63 at 7. Fairshter responded the next day,
advising Suzuki that:
the stock awards need to be confirmed that they are fully
vesting at time of award. You also need some interim period
protection. What happens if you submit the application, and
then it becomes apparent that you are going to achieve the
stated ends of your employment, i.e. the approvals being
sought? They can presently terminate you prior to the
milestone being reached, and thereby preclude you from
receiving the stock. This is a common problem when it comes
to milestone arrangements.
D. 46 ¶ 11; D. 50-13 at 2; D. 63 at 7. Suzuki relayed
the advice to Greenfield and LeBlanc and requested a three or
six month interim protection period to get the equity if he
were terminated without cause. D. 46 ¶ 12; D. 50-14 at
3; D. 63 at 8. LeBlanc responded Abiomed could not
accommodate Suzuki's request because it was Abiomed's
“process” to grant performance-based shares
“only after the event has occurred, and only to active
employees.” D. 46 ¶ 13; D. 50-14 at 3; D. 63 at 8.
Suzuki responded: “Fair enough. I had to ask.” D.
46 ¶ 13; D. 50-14 at 2; D. 63 at 8. Suzuki signed the
Offer Letter on April 2, 2010. D. 46 ¶ 16; D. 50-11 at
3; D. 63 at 10. When Suzuki signed the letter, the price of
Abiomed's stock was $10.00 per share. D. 64 ¶ 30; D.
62 ¶ 2; D. 62-1. In an email drafted shortly before
Suzuki signed the letter, Greenfield calculated the value of
Abiomed's stock upon the completion of the three
milestones at $20.00 per share and $25.00 per share. D. 64
¶ 31; D. 62-3 at 5; D. 62-4.
April 10, 2010, Suzuki signed an Employment, Nondisclosure,
and Non-Competition Agreement (the “Nondisclosure
Agreement”). D. 64 ¶ 10; D. 60 ¶ 29; D. 60-6.
The Nondisclosure Agreement stipulated that Abiomed
“may terminate [Suzuki's] employment without cause,
” but after six months of employment, it would give him
twenty-eight days written notice of same. D. 64 ¶ 10; D.
60 ¶ 29; D. 60-6 at 1.
Delays in Japanese Approval for Impella
March 31, 2011, Suzuki had met the first milestone under the
Offer Letter by submitting the “Shonin
Application” to the PMDA for pre-market approval for
the Impella 2.5 and 5.0 pump devices. D. 46 ¶¶ 20,
22; D. 63 at 11. Pursuant to the Offer Letter, Abiomed issued
Suzuki 10, 000 shares of common stock. D. 46 ¶ 24; D. 63
March 2011 and summer 2014, Suzuki and others on his team
worked on answering questions from the PMDA relating to the
Shonin Application. D. 46 ¶¶ 26-28; D. 63 at 13-14.
Abiomed's progress in Japan was much slower than
expected. D. 46 ¶ 29, 32; D. 63 at 14; D. 64 ¶ 32.
Each party casts blame on the other for this lack of
progress. Compare D. 46 ¶¶ 52, 55, 58, 59,
63-65, 68 n.35, 70 with D. 63 at 19, 52; D. 64
¶¶ 60, 62-65, 68-70, 73; D. 60 ¶ 5; D. 60-1.
Whatever the reason, according to Suzuki, the delays gave
Abiomed “a reason to regret not having a temporal
limitation in the Offer Letter, ” D. 64 ¶ 32,
unlike Minogue's contract, which provided for an equity
incentive triggered upon Impella approval in Japan with a
time limitation of December 31, 2015, id. ¶ 35.
The June 9, 2015 Abiomed Meeting ...