» The Gillette Company v. Provost, et al. (Lawyers Weekly No 12-040-17)

The Gillette Company v. Provost, et al. (Lawyers Weekly No 12-040-17)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT.
1584CV00149-BLS2
____________________
THE GILLETTE COMPANY
v.
CRAIG PROVOST, JOHN GRIFFIN, WILLIAM TUCKER, DOUGLAS KOHRING, and SHAVELOGIC, INC.
____________________
MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
The Gillette Company alleges that four former employees helped ShaveLogic, Inc., develop a new disposable cartridge shaving razor using Gillette’s confidential information. Gillette claims that in so doing Defendants violated G.L. c. 93A, the individual defendants breached non-disclosure agreements with Gillette, and all five Defendants engaged in a civil conspiracy. It also claims that ShaveLogic’s patents and patent applications should be subjected to a constructive trust in favor of Gillette. Gillette does not claim that any of the individual defendants breached a covenant not to compete with Gillette. The parties previously stipulated to the dismissal with prejudice of Gillette’s trade secret claims.1
ShaveLogic claims, in turn, 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 products.
The parties have filed cross-motions for summary judgment on all remaining claims and counterclaims. The Court concludes that Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because Gillette cannot prove that Defendants misused any of Gillette’s confidential information or that the individual defendants breached any non-disclosure agreement. The Court
1 The Court (Salinger, J.) previously ordered the dismissal with prejudice of Gillette’s claims against three other defendants. It dismissed Gillette’s claims that ShaveLogic’s general counsel breached fiduciary duties that he owed as a former Gillette patent counsel and that ShaveLogic’s CEO, its president, and the other individual defendants aided and abetted that alleged breach of fiduciary duty and conspired to bring it about.
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also concludes that Gillette is not entitled to summary judgment on ShaveLogic’s counterclaims because a reasonable fact finder could conclude that Gillette had deliberately brought baseless claims in an attempt to bully ShaveLogic out of the market. The Court will schedule a final pre-trial conference to discuss trial of ShaveLogic’s counterclaims.
1. Gillette’s Claims. Defendants are entitled to summary judgment in their favor on Gillette’s remaining claims because the undisputed material facts show that Gillette has “no reasonable expectation of proving” at least one element of each of its claims. See Boazava v. Safety Ins. Co., 462 Mass. 346, 350 (2012). “A nonmoving party’s failure to establish an essential element of her claim ‘renders all other facts immaterial’ and mandates summary judgment in favor of the moving party.” Roman v. Trustees of Tufts College, 461 Mass. 707, 711 (2012), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991).
1.1. Unfair Competition—G.L. c. 93A. In Counts III and VIII of its amended complaint, Gillette claims that the remaining Defendants used confidential information belonging to Gillette to design competing products that ShaveLogic has patented or is seeking to patent, and that this constitutes an unfair trade practice in violation of G.L. c. 93A. The intentional misappropriation and use of trade secrets to compete against the owner of that confidential information can violate c. 93A. See Jillian’s Billiard Club of America, Inc. v. Beloff Billiards, Inc., 35 Mass. App. Ct. 372, 373-375 & 377 (1993).
Since Gillette has been unable to muster any evidence that Defendants used Gillette’s confidential information to develop razors for ShaveLogic, Defendants are entitled to summary judgment on these claims. See Kourouvacilis, supra, at 715 (“If the nonmoving party cannot muster sufficient evidence to make out its claim, a trial would be useless and the moving party is entitled to summary judgment as a matter of law.” (quoting Celotex Corp. v. Catret, 477 U.S. 317, 328 (1986) (White, J., concurring)).
1.1.1. Using Well Known Concepts. Gillette’s amended complaint alleges that Gillette owns, and that Defendants committed an unfair
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trade practice by making use of, “magnetic attachment, elastomeric pivot, and front-loading engagement design concepts.”
Gillette describes these three design concepts as follows. The concept of a “front-loading engagement design” is the idea of attaching a razor handle to a disposable shaving cartridge that contains razor blades by bringing the handle down onto the top of the cartridge. The concept of a “magnetic attachment” is the idea of using a combination of a magnetic and a mechanical engagement to keep the cartridge attached to the handle. The concept of an “elastomeric pivot” is the idea of designing a razor cartridge that can pivot and that uses an elastomeric element (i.e., a loop-like structure at least part of which is a polymer with elastic properties) to make the cartridge return to its original position.
ShaveLogic has shown that these general concepts were already publicly known and readily understood by people outside of Gillette who design disposable cartridge razors before the individual defendants started working for ShaveLogic. Thus Gillette cannot prove that any of these concepts was confidential information. See generally J. T. Healy & Son v. James A. Murphy & Son, 357 Mass. 728, 736 (1970) (“The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret.” (quoting Restatement of Torts, § 757, comment b)).
Although Gillette vigorously contested this point in its summary judgment papers, and expressly alleged in its complaint that these concepts belonged only to Gillette, at oral argument Gillette conceded that none of these general concepts is confidential. The summary judgment record confirms that these ideas were publicly known before the individual defendants went to work for ShaveLogic.
Gillette’s claims under c. 93A therefore fail as a matter of law. Using publicly available information to compete is not an unfair trade practice. Jillian’s Billiard Club, 35 Mass. App. Ct. at 375-376.
1.1.1.1. Front-loading engagements are not and were not secret. Gillette itself publicly disclosed the concept of front-loading engagements in 1985 when it began selling its Atra razors. In 1990 Gillette began selling a razor called the Sensor that also uses a front-loading engagement. Gillette’s Atra and
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Sensor razors load from the same direction and roughly the same angle as the razor disclosed in ShaveLogic’s patent. In addition, Gillette’s competitor Schick has also been selling front-loading razors for years.
Gillette argued in its summary judgment papers that its Atra and Sensor razors are materially different from ShaveLogic’s designs because the Atra and Sensor cartridges attach to the razor handle at two points while the ShaveLogic cartridge attaches to its handle at a single point of contact.
But the idea that a stable razor system could be designed using cartridges that attach to a handle at a single point has also long been disclosed publicly. Gillette’s Mach 3 and Fusion products, both of which have been sold publicly for years, use single-point loading. It was therefore obvious to anyone skilled in the art that one could design a front-end loading razor that attaches to the cartridge at a single point. No confidential information from Gillette was needed to figure out that one could combine the idea of a front-loading engagement with the idea of using a single point of attachment.
Defendants committed no unfair trade practice by using well-known design principles or obvious combinations of them. See Dynamics Research Corp. v. Analytic Sciences Corp., 9 Mass. App. Ct. 254, 267 (1980) (concepts that would be obvious to an inertial guidance engineer were not protectable as trade secrets); Strategic Directions Grp., Inc. v. Bristol-Myers Squibb Co., 293 F.3d 1062, 1065 (8th Cir. 2002) (obvious combination of known elements not a trade secret); Julie Research Labs., Inc. v. Select Photographic Eng’g, Inc., 998 F.2d 65, 67 (2d Cir. 1993) (particular combination of design choices not a trade secret if “obvious, widely known, easy for others to discover legitimately, or disclosed” publicly by manufacturer ).
1.1.1.2. Magnetic Attachments. The idea of using a combination of magnetic and mechanical means to attach a razor cartridge to a handle is also not secret and does not belong to Gillette. A Chinese patent published in 2009 (no. CN 101612740, or the “Jian patent”) and a United States patent published in 2000 (U.S. Patent No. 6,035,535) both disclose razors that use a combination of magnetic and mechanical engagements. Gillette cannot claim as
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confidential information that was publicly disclosed in a patent. See, e.g., Atlantic Research Mktg. Sys., Inc. v. Troy, 659 F.3d 1345, 1357 (Fed. Cir. 2011) (applying Massachusetts law).
Gillette has now conceded that the concept of using both a magnetic and a mechanical engagement is a publicly available idea or invention. It did so in a filing with the United States Patent and Trademark Office made by Gillette to challenge ShaveLogic’s patent for a razor using magnetic and mechanical engagements (U.S. Patent 8,789,282, or the “ ’282 patent”).2 Gillette made that filing in March 2016, just two months after Gillette filed its amended complaint in this case.
Whether the individual defendants knew of or relied upon the Jian patent in their work for ShaveLogic is immaterial. Gillette cannot prove that the concept of magnetic attachments was confidential if it had already been disclosed in a publicly available patent, whether or not Defendants had seen that prior patent. Gillette expressly argued to the Patent Office that the claims in ShaveLogic’s ’282 patent are not novel because the Jian patent had already made publicly available the idea that a shaving cartridge assembly can be mounted on a handled using a “magnetic and mechanical connection” between the two. Gillette’s statement to the Patent Office that this prior art was publicly available belies its unsupported claim to the contrary in this action. And Gillette’s Rule 30(b)(6) designee in this lawsuit confirmed under oath that the Jian patent discloses a means for a magnetic attachment and a mechanical attachment.
1.1.1.3. Elastomeric Pivots. Similarly, the idea of designing a shaving cartridge that pivots and is returned to its original position by
2 Gillette’s filing was a petition for Inter Partes review of ShaveLogic’s ’282 patent. An Inter Partes petition asks the Patent Office to reexamine the claims of a previously-issued patent and to determine whether any of them is invalid and should be cancelled because it is “unpatentable in light of prior art,” meaning either that the claimed invention is not novel because prior art shows that the invention was already known or used by others, or that the claimed invention is an obvious variation or combination of subject matter that was already known. Cuozzo Speed Technologies, LLC v. Lee, 136 S.Ct. 2131, 2136 (2016); see also 35 U.S.C. § 311(b) (scope of inter partes review), § 102 (requiring novelty to obtain patent), and § 103 (disqualifying patent claims that “would have been obvious … to a person having ordinary skill in the art to which the claimed invention pertains”).
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a loop with an elastomeric element is also publicly known and therefore cannot be Gillette confidential information. A company called King of Shaves received a United State patent first published in May 2005 (U.S. Patent no. 7,100,284) that disclosed the possibility of using an elastomeric loop to return a pivoting shaving cartridge to its original position. In addition, Gillette itself publicly disclosed several other ways of designing a razor that uses an elastomeric loop to return a pivoting razor cartridge to its original position. It did so in a United States patent that was first published in January 2011 (U.S. Patent 8,273,205 B2).
1.1.1.4. Source of Public Information Irrelevant. Since the general design concepts of front-loading engagements, magnetic attachments, and elastomeric pivots were not secret and did not belong to Gillette, the individual defendants were free to use those ideas even if they learned about these concepts while working for Gillette.
Although Gillette may bar a former employee from using Gillette’s confidential information against it, it “may not prevent the employee from using the skill and general knowledge acquired or improved through his employment.” Abramson v. Blackman, 340 Mass. 714, 715-16 (1960); accord, e.g., Richmond Bros., Inc. v. Westinghouse Broadcasting Co., Inc., 357 Mass. 106, 111 (1970); Woolley’s Laundry v. Silva, 304 Mass. 383, 387 (1939). Employees are free to quit their job, start working for a competitor, and use their “general knowledge, experience, memory and skill” to compete against their former employer. Dynamics Research, 9 Mass. App. Ct. at 267, quoting J. T. Healy & Son, 357 Mass. at 740; accord Club Aluminum Co. v. Young, 263 Mass. 223, 226-227 (1928).
If the individual defendants took skills they developed and public information they learned while working for Gillette, and used them to help ShaveLogic design new products to compete with Gillette, that would not constitute an unfair trade practice in violation of G.L. c. 93A as a matter of law.
1.1.2. Gillette Sketches or Models. Gillette also alleges that Defendants used Gillette confidential information that was contained in sketches, samples, or models of possible razor designs that were created at Gillette and kept by Craig Provost, John Griffin, and William Tucker when they stopped working
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there. Once again, however, the undisputed facts show that Gillette cannot prove that Defendants engaged in unfair competition by using those materials.
There is no evidence that any confidential information embodied in or discernable from those materials and items made its way into any ShaveLogic patent, patent application, or product design. Gillette concede this point at oral argument. Without evidence that any of the remaining Defendants actually used confidential Gillette information to design products for ShaveLogic, the mere fact that some of the individual defendants have Gillette materials in their possession cannot support a finding in Gillette’s favor on its claims under c. 93A.
Gillette argues that it need not show that Gillette confidential information reflected in these sketches, samples, or models became part of any ShaveLogic design, so long as it can prove that ShaveLogic could not have conceived of its patented inventions and other designs without using Gillette’s confidential information. At oral argument Gillette asserted that the expert opinion of Fred P. Smith, a mechanical engineer, provides evidence that Defendants could not possibly have come up with the razor design in ShaveLogic’s patent and patent applications without using confidential information regarding Gillette designs and prototypes found in the retained sketches, samples, and models.
This argument fails because it mischaracterizes Mr. Smith’s expert opinions. Mr. Smith states that he “was not asked to opine on what was confidential or a trade secret” but instead was told to assume that whatever information he was given by Gillette’s attorneys qualified as confidential information. He then explains his understanding that the general concepts of front-loading engagements, magnetic attachments, an elastomeric loop returns are confidential information that belong to Gillette. He also refers to some of the specific sketches or models retained by the individual defendants as examples of these general concepts. But Smith never opines that Defendants probably used confidential information contained in these sketches and models to design the ShaveLogic razors. Instead, Smith’s opinion is that Defendant could not have developed the ShaveLogic razors without using some part of all of the information he describes, including the three general concepts that were the focus of Gillette’s amended complaint.
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Mr. Smith’s opinions do not create any triable issue of fact because they are based on the mistaken assumption that the general concepts of front-loading engagements, magnetic attachments, and elastomeric returns belonged to Gillette, when in fact they were all publicly available information. At no point in Mr. Smith’s expert report does he conclude or opine that Defendants could not have developed ShaveLogic’s razor designs without using truly confidential information obtained from the sketches and models kept by the individual defendants.
Nor can Gillette salvage its c. 93A claims with evidence that an initial ShaveLogic design looks very similar to a purportedly confidential Gillette design. Gillette asserts that the initial design sketched out by ShaveLogic’s founder Robert Wilson for a razor using a magnetic attachment is very similar in appearance and functionality to a prototype design that belongs to Gillette and is shown in a sketch kept by defendant Craig Provost. This evidence cannot support Gillette’s unfair competition claims for two reasons. First, as discussed above, the idea of using magnetic attachments is public information and does not belong to Gillette. Second, the undisputed evidence shows that Wilson independently created his design in 2009 before he ever met Provost and the other individual defendants.
In sum, the summary judgment record makes clear that no reasonable fact finder could conclude that Defendants made use of any confidential information obtained from Gillette without engaging in rank speculation or conjecture. Defendants are therefore entitled to summary judgment on these claims.
1.2. Breach of Confidentiality Agreements. Gillette claims in Count II that each of the individual defendants breached contractual duties not to use or disclose Gillette’s confidential information.
Defendants are entitled to summary judgment on this claim because Gillette has mustered no evidence that any of the defendants used or disclosed any Gillette confidential information after they left Gillette to work for ShaveLogic. As explained above, Gillette cannot point to any evidence that the individual defendants used Gillette confidential information to design any product for ShaveLogic. Nor is there any evidence that the individual defendants used Gillette
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confidential information in any other way after leaving Gillette, or that they disclosed any such information to ShaveLogic.
The evidence on which Gillette relies cannot support a finding in Gillette’s favor on this contract claim. Mr. Griffin and Mr. Provost retained hard drives, documents, and razor models when they left Gillette, and Mr. Kohring retained backup copies of some old Gillette files. But no contract barred Defendants from retaining or looking at Gillette materials; their only obligation on this score was not to use or disclose Gillette confidential information. Merely possessing or even accessing arguably confidential information does not violate the parties’ contracts.
1.3. Civil Conspiracy. Gillette claims in Count IX that the remaining Defendants entered into a civil conspiracy “to misappropriate Gillette’s confidential information and trade secrets” and “to compete unfairly with Gillette.”3 This claim fails because, as explained above, there is no evidence that Defendants used any confidential information belonging to Gillette to benefit ShaveLogic.
To succeed on its claim for conspiracy, Gillette would have to prove at trial that Defendants acted together either (1) to exercise some power of coercion over the plaintiff that they would not have had if they had acted independently, or (2) pursuant to “a common plan to commit a tortious act.” Kurker v. Hill, 44 Mass. App. Ct. 184, 188-189 (1998); accord Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563-1564 (1st Cir. 1994) (applying Massachusetts law).
Gillette alleges the second kind of civil conspiracy, involving a purportedly tortious “common plan.”
There can be no civil conspiracy of this kind without “an underlying tortious act” carried out by two or more defendants acting together. Bartle v. Berry, 80 Mass. App. Ct. 372, 383-384 (2011). “Key to this cause of action is a defendant’s substantial assistance, with the knowledge that such assistance is contributing to a common tortious plan.” Kurker, supra, at 189.
3 As noted above, the Court previously dismissed the portion of Count IX alleging a civil conspiracy to cause ShaveLogic’s general counsel to breach his fiduciary duty to Gillette.
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It is not clear that Gillette could prevail on its conspiracy claim even if it could prove its factual allegations, because neither the claimed unfair use of confidential information in violation of G.L. c. 93A nor the claimed breach of the nondisclosure agreements would constitute an underlying tortious act. See generally Kattar v. Demoulas, 433 Mass. 1, 12-13 (2000) (G.L. c. 93A creates substantive new rights by barring conduct that is neither a common law tort nor a breach of contract);4 Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997) (breach of contract “is not a tort”).
Defendants would be entitled to summary judgment on this claim even assuming that the alleged misconduct could, in theory and if proved, satisfy the element of an underlying tortious act.
Gillette has no evidence that Defendants misappropriated Gillette’s confidential information or used it to compete unfairly with Gillette, as discussed above. Defendants are therefore entitled to judgment as a matter of law on the conspiracy claim. See Bartle, supra (affirming summary judgment for defendants).
1.4. Constructive Trust Remedy. Gillette claims in Count IV that the individual defendants used or disclosed Gillette confidential information for the benefit of ShaveLogic, that ShaveLogic has been unjustly enriched as a result, and that ShaveLogic’s ’282 patent and pending patent applications should therefore be subject to a constructive trust for the benefit of Gillette.
A constructive trust “is imposed ‘in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was
4 The Supreme Judicial Court has “classified some G.L. c. 93A claims as contract-based, others as tort-based, and still others as ‘neither wholly tortious nor wholly contractual in nature.’ ” Kraft Power Corp. v. Merrill, 464 Mass. 145, 156 (2013) (citations and footnotes omitted), quoting Kattar, 433 Mass. at 12. For example, “tort actions ‘for fraud and deceit are within the contemplation of an ‘unfair act’ under [G.L. c. 93A].’ ” Kraft Power, supra at n.16, quoting Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 778 (1986).
Gillette has not accused Defendants of committing an unfair trade practice by engaging in fraud or any other tortious act. Although Gillette previously claimed that Defendants committed the tort of misappropriating trade secrets, it has dismissed those claims with prejudice. The allegation that Defendants used Gillette’s confidential information to benefit ShaveLogic is the kind of c. 93A claim that is neither tort-based nor contractual in nature.
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obtained by fraud or in violation of a fiduciary relation or arose where information confidentially given or acquired was used to the advantage of the recipient at the expense of the one who disclosed the information.’” Meskell v. Meskell, 355 Mass. 148, 151 (1969), quoting Barry v. Covich, 332 Mass. 338, 342 (1955).
ShaveLogic is entitled to summary judgment in its favor on this claim because Gillette has no evidence that any of its confidential information was used or disclosed for the benefit of ShaveLogic. See Northrup v. Brigham, 63 Mass. App. Ct. 362, 370 (2005) (affirming summary judgment for defendant on constructive trust claim because record showed no unjust enrichment). Gillette makes no claim that ShaveLogic obtained its patent or developed its patent applications by fraud or in violation of a fiduciary obligation.
2. ShaveLogic’s Counterclaims. Gillette is not entitled to summary judgment on ShaveLogic’s two counterclaims because a reasonable jury could conclude that Gillette deliberately asserted baseless claims against ShaveLogic in an attempt to scare off ShaveLogic’s investors and potential business partners, and thereby drive ShaveLogic out of the market for wet-shaving products.
A claim cannot be resolved on a motion for summary judgment where “a reasonable jury could return a verdict for the nonmoving party.” Dennis v. Kaskel, 79 Mass. App. Ct. 736, 741 (2011), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For this reason, in evaluating the motion for summary judgment the Court “must … draw all reasonable inferences” from the evidence presented “in favor of the nonmoving party,” as a jury would be free to do at trial. Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010). A request for summary judgment must be denied where a claim turns on disputed issues of fact or on disputed inferences from admitted facts. See Molly A. v. Commissioner of Dept. of Mental Retardation, 69 Mass. App. Ct. 267, 284 (2007) (“summary judgment cannot be granted if the evidence properly before the motion judge reveals a genuine issue of disputed material fact”); Flesner v. Technical Communications Corp., 410 Mass. 805, 811-812 (1991) (“Where a jury can draw opposite inferences from the evidence, summary judgment is improper.”).
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2.1. Intentional Interference with Advantageous Relations. In its first counterclaim, ShaveLogic alleges that Gillette intentionally interfered with ShaveLogic’s relationships with investors and marketing and distribution companies for improper anti-competitive purposes and by improper means. Specifically, ShaveLogic claims that Gillette tortiously interfered with those relationships by threatening to bring and then filing a baseless lawsuit in an attempt to prevent ShaveLogic from entering the wet-shaving market.
To make out its claim for tortious interference with advantageous relations, ShaveLogic will have to prove that:
(1) [it] had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant’s interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.
Blackstone v. Cashman, 448 Mass. 255, 260 (2007).
Gillette argues that ShaveLogic cannot establish that Gillette intentionally interfered with any advantageous relationship. Specifically, Gillette asserts that there is no evidence that it was aware of any particular relationship between ShaveLogic and some third party or that Gillette did anything that in fact interfered with that relationship. These arguments are without merit.
A reasonable jury could find that Gillette knew that a new entrant to the market would need to establish relationships with manufacturing and distribution partners, that Gillette intended to interfere with ShaveLogic’s ability to form those relationships by bringing a baseless lawsuit, that Gillette succeeded in scaring off potential manufacturing and distribution partners from working with ShaveLogic, and that ShaveLogic suffered economic harm as a result. It would certainly be a permissible inference that Gillette was unhappy with ShaveLogic’s plans to market a competing razor and wanted to find a way to prevent ShaveLogic from consummating relationships with companies that could manufacture or distribute products for ShaveLogic. Indeed, Gillette complains in its complaint that ShaveLogic “actively leveraged” its relationships with former Gillette employees “to develop relations” with potential business and manufacturing partners and that
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Gillette was purportedly harmed by these attempts “to commercialize wet-shaving products for ShaveLogic.”
Gillette’s insistence that ShaveLogic must present direct evidence that Gillette knew that particular manufacturers or distributors were exploring business relationships with ShaveLogic is without merit. A party claiming tortious interference with prospective (rather than existing) business relationships is not required to prove that the defendant was aware of a potential relationship with a specific third party. It is enough that the defendant knowingly interfered with a prospective relationship between the plaintiff and an identifiable class or category of third persons. Dube v. Likins, 167 P.3d 93, 101 (Ariz. App. 2007); Downer’s Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., 546 N.E.2d 33, 37 (Ill. App. 1989); Jae Enterprises, Inc. v. Oxgord, Inc., no. 5:15-CV-228-TBR, 2016 WL 865328, *12 (W.D. Kentucky 2016) (applying Kentucky law); Lucas v. Monroe County, 203 F.3d 964, 979 (6th Cir. 2000) (applying Michigan law); McDonald Apiary, LLC v. Starrh Bees, Inc., no. 8:14-CV-351, 2015 WL 11108873, *3 (D.Neb. 2015) (applying Nebraska law); Hayes v. Northern Hills General Hosp., 590 N.W.2d 243, 249-250 (S.D. 1999); Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002).
2.2. Violation of G.L. c. 93A. In its second counterclaim, ShaveLogic asserts that the same alleged misconduct by Gillette, in purportedly threatening to bring and then filing a baseless lawsuit in an attempt to prevent ShaveLogic from entering the wet shaving market, constitutes an unfair trade practice that violates G.L. c. 93A, §§ 2 and 11.
Gillette argues that this claim fails because ShaveLogic has no direct evidence that Gillette knew its claims were baseless when it filed suit. This argument is also without merit.
“There is no need to prove actual knowledge” through direct evidence; “it may be inferred from the circumstances.” Commonwealth v. Aponte, 71 Mass. App. Ct. 758, 762 (2008). And “the inferences drawn by a jury from the relevant evidence ‘need only be reasonable and possible and need not be necessary or inescapable.’ ”
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Commonwealth v. Sullivan, 469 Mass. 621, 624 (2014), quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980).
A reasonable fact finder could infer that Gillette deliberately brought baseless claims against ShaveLogic in order to interfere with prospective business relationships. It could draw such an inference from the facts that Gillette: asserted but then dismissed trade secret claims; is unable to present any evidence that Defendants misused Gillette’s confidential information; claimed in this litigation that Gillette owns the concept of magnetic attachments, but argued to the United States Patent Office that this concept was publicly known; claimed that widely-known design concepts belong to Gillette but then conceded that was incorrect. As a result, Gillette is not entitled to summary judgment on ShaveLogic’s claim under c. 93A. See G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 276 (1991) (reversing summary judgment for defendant on similar claim).
There is also no merit to Gillette’s further assertion that it cannot be held liable under c. 93A because it had no direct commercial relationship with ShaveLogic. A claimant can prove that a defendant’s alleged malfeasance took place in a business context, and thus implicates c. 93A, by showing either “that the defendant had a commercial relationship with the plaintiffs or that the defendant’s actions interfered with ‘trade or commerce’ ” in some other way. See First Enterprises, Ltd. v. Cooper, 425 Mass. 344, 347 (1997). “Parties need not be in privity for their actions to come within the reach of c. 93A.” Ciardi v. F. Hoffmann-La Roche, Ltd., 436 Mass. 53, 60 (2002), quoting Kattar, 433 Mass. at 14–15. For example, a lawyer can be sued under c. 93A for knowingly or recklessly conveying false information in order to help a client bring about a commercial transaction with a third party. See, e.g., Kirkland Const. Co. v. James, 39 Mass. App. Ct. 559, 563-564 (1995) (reversing dismissal of 93A claim against lawyers who conveyed alleged misrepresentation by client and thereby allegedly induced plaintiff to contract with client). It follows that knowingly conveying false information by bringing a baseless lawsuit to interfere with prospective commercial transactions also violates c. 93A.
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It is true that the mere filing or a lawsuit or conduct of litigation does not, in and of itself, constitute trade or commerce within the meaning of c. 93A. See, e.g., Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 564 (2008); Morrison v. Toys “R” Us, Inc., 441 Mass. 451, 457 (2004); First Enterprises, 425 Mass. at 347.
But “each case requires examination of its own circumstances to determine whether it arose in a ‘business context.’ ” Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 24 (1997) (holding defendant’s status as charitable corporation not dispositive of whether c. 93A applies), quoting Planned Parenthood Fed’n of America, Inc. v. Problem Pregnancy of Worcester, Inc., 398 Mass. 480, 493 (1986).
A reasonable fact finder could conclude that Gillette was acting in a business context because it brought a baseless lawsuit in an attempt to keep ShaveLogic from entering the wet-shaving market. Such conduct, if proved at trial, would constitute an unfair trade practice in violation of c. 93A. See G.S. Enterprises, 410 Mass. at 273-274, 277 (bringing baseless lawsuit in order to block purchase of property would violate G.L. c. 93A, §§ 2(a) and 11; reversing grant of summary judgment in favor of defendant); Brooks Automation, Inc. v. Blueshift Technologies, Inc., Suffolk Sup. Ct. 05-3973-BLS2, 20 Mass. L. Rptr. 541, 2006 WL 307848 (2006) (Gants, J.) (filing frivolous complaint “becomes an act done in the conduct of trade or commerce when, as here, it is motivated by an intent to interfere with a competitor’s contractual relationship with a key and much coveted customer”), aff’d, 69 Mass. App. Ct. 1107 (2007) (unpublished).
2.3. Litigation Privilege. Gillette argues that the conduct giving rise to ShaveLogic’s counterclaims is absolutely protected by the common law privilege for statements made during a judicial proceeding or in connection with a contemplated lawsuit. Cf. Correllas v. Viveiros, 410 Mass. 314, 320 (1991); Sriberg v. Raymond, 370 Mass. 105, 108-109 (1976).
Gillette made the same litigation privilege argument when it moved to dismiss ShaveLogic’s counterclaims earlier in the case. The court (Sanders, J.) rejected that argument when it denied Gillette’s motion to dismiss the counterclaims. Judge Sanders held that the “conduct of filing (and threatening to file) a baseless lawsuit” is not protected by the litigation privilege. Gillette appealed.
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The Appeals Court recently affirmed that ruling, holding that the litigation privilege does not require dismissal of ShaveLogic’s counterclaims because they are based on “Gillette’s purported acts of sending letters threatening a baseless lawsuit with the knowledge that ShaveLogic would have to disclose them to potential partners and investors, and then actually filing a baseless lawsuit[].”The Gillette Co. v. Provost, 91 Mass. App. Ct. 133, 141 (2017). It explained “that statements preliminary to litigation are only privileged if they ‘relat[e] to a proceeding [that] is contemplated in good faith[].” Id. at 142, quoting Sriberg, supra, at 109.
The Appeals Court’s decision disposes of Gillette’s invocation of the litigation privilege. For the reasons stated above, the summary judgment record demonstrates that ShaveLogic will be able to present evidence that would allow a reasonable jury to conclude that Gillette’s threats to sue ShaveLogic and its actual conduct in bringing and prosecuting this lawsuit were not made in good faith, because Gillette knew or should have known that it could not prove any of its claims. As a result, the litigation privilege does not bar ShaveLogic’s counterclaims.
2.4. Anti-SLAPP Arguments. Finally, Gillette also argues that ShaveLogic’s counterclaims must be dismissed under G.L. c. 231, § 59H, the so-called anti-SLAPP (strategic lawsuits against public participation) statute.
Once again, Judge Sanders already considered and rejected this argument when she denied Gillette’s motion to dismiss the counterclaims. And, once again, the Appeals Court affirmed that ruling. It held that Gillette was not entitled to dismissal under the anti-SLAPP statute because ShaveLogic “met its burden of showing that Gillette’s petitioning activity was ‘devoid of any reasonable factual support’ and caused ShaveLogic ‘actual injury.’ ” Gillette v. Provost, 91 Mass. App. Ct. at 134, quoting § 59H..
There is no reason to revisit this issue. The summary judgment record confirms the prior conclusions by Judge Sanders and the Appeals Court that Gillette’s claims are devoid of any factual support. As discussed above, the summary judgment record confirms that the general concepts of using magnetic attachments, front-loading engagements, and elastomeric pivots and returns in shaving razors have all been publicly known for a long time. Gillette has been unable to muster any
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evidence that ShaveLogic used any Gillette confidential information in developing its product. And the summary judgment also confirms that ShaveLogic has evidence that if suffered actual injury as a result of Gillette’s actions in filing and pursuing this baseless lawsuit. The anti-SLAPP statute therefore does not apply.
The Court would exercise its discretion not to reconsider Judge Sander’s denial of the anti-SLAPP motion to dismiss even Judge Sanders and the Appeals Court had not already addressed the issue. A special motion to dismiss may be filed as of right under the anti-SLAPP statute within 60 days of the service of the challenged claims. See G.L. c. 231, § 59H. A court has discretion to allow such a motion to be filed “at any later time upon terms it deems proper,” but is not required to do so. Id. Thus, “[t]he anti-SLAPP statute contemplates that, ordinarily, a special motion to dismiss is to be brought within sixty days of the service of the complaint[.]” Burley v. Comets Cmty. Youth Ctr., Inc., 75 Mass. App. Ct. 818, 822 (2009). Gillette has no right to assert or reassert an anti-SLAPP defense in a motion for summary judgment brought after the close of discovery, and far more than sixty days after ShaveLogic asserted its counterclaims.
ORDER
Defendants’ motion for summary judgment as to Plaintiff’s claims against them is ALLOWED. Plaintiff’s cross-motion for summary judgment as to Defendants’ counterclaims is DENIED.
A final pre-trial conference will be held on May 23, 2017, at 2:00 p.m. to discuss resolution of ShaveLogic’s counterclaims against Gillette, which are the only claims that remain in the case.
April 18, 2017
___________________________
Kenneth W. Salinger
Justice of the Superior Court

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