Superior Court of Massachusetts, Suffolk, Business Litigation Session
AMGEN USA, INC.
KARYOPHARM THERAPEUTICS, INC.
(with first initial, no space for Sullivan, Dorsey, and
Walsh): Kaplan, Mitchell H., J.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT
KARYOPHARM THERAPEUTICS, INC.âS MOTION TO DISMISS
Mitchell H. Kaplan, Justice
plaintiff, Amgen USA, Inc., is a biotechnology company with a
principal place of business in California; among the products
it produces and sells is the prescription medication:
Krypolis. The defendant, Karyopharm Therapeutics, Inc., is an
early stage biotechnology company with a principal place of
business in Newton, Massachusetts. Karyopharm has announced
that the FDA has accepted its drug, Selixnor, for
accellerated approval and it hopes to begin sale of Selixnor
in 2019. In this action, Amgen alleges that Karyopharm hired
a group of Amgenâs leading sales managers and these former
Amgen sales managers used trade secret information to target
and hire away from Amgen fifteen of Amgenâs most effective
sales representatives involved in the sale of Krypolis. Amgen
pleads its complaint in three counts: misappropriation of
trade secrets in violation of G.L.c. 93, Â§ 42 (Count I);
tortious interference with contract (Count II); and violation
of G.L.c. 93A (Count III).
case is presently before the court on Karyopharmâs motion to
dismiss the complaint for failure to state a claim on which
relief may be granted. See Mass.R.Civ.P. 12(b)(6). On May 22,
2019, the court heard oral arguments on the motion. For the
following reasons, Karyopharmâs motion to dismiss is
following summary of the facts is drawn from the allegations
in the Complaint, which are assumed to be true for the
purposes of this motion.
is a prescription medication used to treat patients with
relapsed or refractory multiple myeloma (a type of blood
cancer). Selixnor, if approved, is intended to treat the same
employs a national sales force consisting of a national sales
manager, regional sales managers, district managers, and
individual specialty sales representatives who specialize in
selling Krypolis (the Sales Force). Each member of the Sales
Force is required to sign a confidentiality and
non-solicitation agreement, which states that employees must
keep confidential, among other things, Amgenâs business
plans, budgets, financial statements, contracts, prices,
suppliers, and customers, as well as information regarding
the skills and compensation of Amgenâs employees.
closely tracks and ranks each member of the Sales Force and
posts weekly sales data, accessible only to authorized
personnel who can access this data by username and password;
sales managers can access this data for all employees they
supervise. Amgen also periodically creates Talent Management
Plans that track and rank the skill and performance of sales
representatives to assist Amgen in making critical decisions
regarding compensation and other adjustments in order to
retain top sales talent. The password protected Talent
Management Plans are marked confidential and are only
accessible to sales managers.
Amgen generates a weekly Customer Data Report (CDR) that
provides detailed information about customer purchasing
information, including products purchased, the amount of
product the customer has purchased, and the potential growth
of the customer account. Sales representatives receive a CDR
for their accounts, district sales managers receive a CDR for
accounts in their district, and regional sales managers
receive a CDR for accounts in their region. Amgen also
maintains and updates a report on the top 500 Krypolis
accounts; only sales managers can access this report.
February of 2018, Perry Monaco, an Amgen regional sales
manager, resigned from the company and began working for
Karyopharm as Vice President of Sales. At the time of his
resignation, Monaco had access to Amgenâs Sales Force
information and customer account information. Monaco was
bound by a confidentiality and non-solicitation agreement,
which stated that, for one year after his last day of
employment with Amgen, he would not directly or indirectly
solicit, induce, or encourage an employee of Amgen to leave
the company to work for any other entity.
allegedly hired Monaco for the purpose of using Amgenâs trade
secrets to build its blood cancer sales force in preparation
for marketing Selixnor. Then, in July and September of 2018,
three district sales managers at Amgen resigned from the
company and joined Karyopharm. They too had access to
confidential sales staff and customer information and were
similarly bound by confidentiality and non-solicitation
agreements. Thereafter, Monaco and the three other sales
managers breached their obligations to Amgen by using
confidential and trade secret information to solicit Amgenâs
top Krypolis sales representatives to join Karyopharm.
November 30, 2018, Kristina Schultz, a "top-tier"
sales representative at Amgen resigned from the company to
join Karyopharm. Thereafter, on December 21, 2018, fourteen
of Amgenâs "top-tier" sales representatives
resigned from Amgen to join Karyopharm. All fourteen sales
representatives submitted similar notices of resignation ...