Boston Scientific Corporation v. Takahashi, et al. (Lawyers Weekly No. 09-060-17)



SUFFOLK, so                                                                                            SUPERIOR COURT


  1. 2017-02976 BLS 2














This is an action against three former employees of the plaintiff Boston Scientific Corporation (Boston Scientific) and their current employer, the  Nuvectra Corporation (Nuvectra) alleging misappropriation of confidential information and violations of a nonsolicitation clause in the individual defendants’ employment agreements with plaintiff.  Each  of those agreements contains clauses designating Massachusetts as the forum and Massachusetts law as the governing law for any legal disputes arising from the agreements.  The defendants now move to dismiss the action based on the doctrine of forum non conveniens.   This Court concludes that the Motion must be Denied.

In support of their Motion, the defendants point out that at all relevant times, the former employees worked and resided in California.  Before their departure in September of this year, they worked for Boston Scientific’s sale team in the Los Angeles area; they currently work for Nuvectra, a competitor of Boston Scientific, as part of its sales team in the same geographical region.  Relying on G.L.c. 223 § 5A, the defendants argue that “the interest of substantial justice” supports dismissal of this action because the balance of private and public concerns favor a California forum.  Gianocostas v. Interface Grp.-Massachusetts Inc., 450 Mass. 715, 723 (2008).   In particular, they argue that  California’s strong policy against the enforcement of restrictive covenants suggests that this case is best decided in a California forum.  This Court is not convinced.

The doctrine of forum non conveniens   “leaves much to the discretion of the court to which plaintiff’s resorts…”  Gulf Oil Corp., v. Gilbert, 330 U.S. 501, 508 (1947) (outlining the public and private concerns a court should consider in applying the doctrine).  However, this Court must exercise that discretion keeping in mind that there is a strong presumption in favor of plaintiff’s choice of forum.  “Assuming jurisdiction and venue are proper, dismissal on the ground of forum non conveniens will rarely be granted; ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’” Kearsarge Metallurgical Corp. v. Peerless Ins. Co., 383 Mass. 162 , 169 (1981) (footnote omitted), quoting from New Amsterdam Cas. Co. v. Estes353 Mass. 90 , 95 (1967). See also Joly v. Albert Larocque Lumber, Ltd., 397 Mass. 43 (1986).   In the instant case, the defendants face an additional  hurdle in convincing this Court that dismissal is warranted in that each of the employment agreements designates Massachusetts as an appropriate forum.  Indeed, in one of the three agreements, it is exclusive to Massachusetts.  Massachusetts courts routinely honor such clauses, as does California.  See e.g. Jacobson v. Mailboxes Etc.,, U.S.A. , 419 Mass. 573, 574-575 (1995); see also Restatement (Second) Conflict of Laws Section 80 (1988) (“The parties’ agreement as to the  place of the action will be given effect unless it is unfair or unreasonable.”)

Defendants argue that these forum selection clauses should not be enforced because    they are manifestly unfair.   This Court disagrees.  The plaintiff  correctly notes that Boston Scientific is based in Massachusetts and that Massachusetts therefore has some interest in deciding the rights and obligations of those employed by a Massachusetts-based company.  The individual defendants agreed to the forum selection clause when they accepted employment with Boston Scientific; there is nothing before the Court to suggest that these are contracts of adhesion.  In this age of electronic discovery and videotaped depositions, travel to collect information before trial is not as necessary so that the burden of litigating in Massachusetts will not be particularly onerous.

Also relevant is the fact that the employment agreements at issue require that Massachusetts law be applied to this dispute, thus enhancing “the desirability of the trial of a case in a forum that is at home with the governing law.”   W.R. Grace & Co., v. Hartford Accident & Indemnity Co., 407 Mass. 572,580 (1980).  Defendants contend that this Court should disregard this choice of law provision.  Although Massachusetts courts generally honor such provisions (just as they do forum selection clauses), they will decline to do so where:

(1) “the chosen [S]tate has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice,” or (2) “application of the law of the chosen [S]tate would be contrary to a fundamental policy of a [S]tate which has a materially greater interest than the chosen [S]tate in the determination of the particular issue and which . . . would be the state of the applicable law in the absence of an effective choice by the parties.”


Restatement (Second) Conflict of Laws, § 187(2) (1971), quoted with approval in Taylor v. E. Connection Operating, Inc., 465 Mass. 191, 196 (2013).  Defendants argue that application of Massachusetts law would be contrary to the “fundamental policy” of California, which prohibits the enforcement of noncompetition agreements.  This Court agrees with Boston Scientific that defendants have mischaracterized what is at  issue in this case, however.

The Introduction of the Complaint  states that it is based on the individual defendants’ misappropriation of confidential information and their alleged “’poaching” of Boston Scientific employees.  On these issues, California and Massachusetts law are not all that different.   See e.g. Arthur J. Gallagher & Co. v. Lang, 2014 WL 2195062 at *4 (N.D.Cal. May 23, 2014) (California law permits an employer from prohibiting its former employees from actively recruiting or soliciting its current employees) ; see also Loral Corp. v. Moyes, 174 Cal.App.3d 268, 280 (1985).   This case is therefore distinguishable from Oxford Global Resources, LLC v. Hernandez,   34 Mass.L.Rptr. 266, 2017 WL 2623137 (2017) (Salinger, J.).   In Oxford, the court  (Salinger, J.)  declined to enforce the choice of law provision  mandating the application of Massachusetts law where the plaintiff  employer was seeking to enforce a noncompetition agreement  against a former employee who worked and resided in California.  Here, there is no attempt (at least directly) to prevent the individual defendants from actually working for Nuvectra.  Therefore,  the contrast between the laws of the two states with regard to the relevant issues is  less striking.

For these reasons and for other reasons set forth in the plaintiff’s Opposition, the Motion to Dismiss  for Forum Non Conveniens is DENIED.



Janet L. Sanders

Justice of the Superior Court


Dated: December 5, 2018




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