[caption id="" align="alignright" width="120"]Barry A. Guryan Barry A. Guryan[/caption]

In a recent case decided by the Massachusetts Superior Court’s Business Litigation Session (which typically handles restrictive covenant cases), Gillette lost its attempt to obtain a broad injunction against a former in-house counsel who became the General Counsel at a competitor, Shavelogic.  In THE GILLETTE COMPANY v. CRAIG PROVOST, ET AL., Civil Action No. 15-0149 BLS 2 (Dec. 22, 2015), the Court found Gillette unlikely to succeed on its claims that  the General Counsel, who left Gillette ten years earlier and joined Shavelogic six years ago, must have inevitably disclosed Gillette’s trade secrets to Shavelogic and that he otherwise breached his fiduciary duty to Gillette.

The former employee had a non-compete with Gillette which is unusual since non-competes are not enforceable against lawyers in Massachusetts.  The Court did not rely on this, but noted that the non-compete had long expired.

Gillette’s claims focused on the lawyer’s ethical duty not to represent his new “client,” Shavelogic, in matters “substantially related” to those on which he worked at Gillette, specifically on technology relating to the development of a wet shaver.  Gillette also argued that due to the nature of the General Counsel’s responsibilities, he would inevitably draw upon and disclose to his new employer confidential information that he obtained during his tenure at Gillette.

On the facts presented, the Court determined there was insufficient evidence presented that the General Counsel had given any advice on any work relating to the Gillette patents or even that he worked on any of those patents at Gillette.   The Court further noted that many of the patents and the 10-year old technology were outdated and already publicly available. The Court also refused to apply the legal theory of “inevitable disclosure of trade secrets” (i.e., that the General Counsel would inevitably disclose Gillette’s trade secrets in his new position), stating that “Massachusetts courts have not embraced the doctrine of inevitable disclosure, since it has the potential for severely curtailing one’s employment opportunities.”

This case is a noteworthy reminder that “time is of the essence” in restrictive covenant and trade secret litigation.  Gillette brought this action about 10 years after the former in-house counsel had left Gillette and over three years after he became Shavelogic’s General Counsel.  In addition to other flaws with Gillette’s request for injunctive relief, this delay in acting was fatal.

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