Aspect Software Inc. v. Barnett

• Decision Date: 14 September 2011
• Docket Number: Civil Action No. 11–10754–DJC.
• Citation: 787 F.Supp.2d 118
• Parties: ASPECT SOFTWARE, INC., Plaintiff,v.Gary BARNETT, Defendant.
• Court: U.S. District Court — District of Massachusetts

787 F.Supp.2d 118

ASPECT SOFTWARE, INC., Plaintiff,

v.Gary BARNETT, Defendant.

Civil Action No. 11–10754–DJC.

United States District Court, D. Massachusetts.

May 27, 2011.Order Denying Motion to Amend Sept. 14, 2011.

Lawrence P. Murray, Michael V. Samarel, Burns & Levinson, Boston, MA, for Plaintiff.Russell Beck, Stephen B. Reed, Beck Reed Riden LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER

CASPER, District Judge.I. Introduction

Plaintiff Aspect Software, Inc. has sued Gary Barnett (“Barnett”), its former Executive Vice President and Chief Technology Officer, alleging that Barnett breached his contract with Aspect Software when he accepted a position with a rival corporation. Aspect Software has moved for a preliminary injunction. For the reasons discussed below, Aspect Software's motion is GRANTED.

II. Burden of Proof and Standard of Review

In ruling on a preliminary injunction, courts must state the factual findings or conclusions that support the court's ruling. Fed.R.Civ.P. 52(a)(2). The burden of providing a factual basis sufficient to justify a preliminary injunction rests with the party seeking the injunction. Nieves–Marquez v. Puerto Rico, 353 F.3d 108, 120 (1st Cir.2003). Unless the parties' competing versions of events are “in sharp dispute such that the ‘propriety of injunctive relief hinges on determinations of credibility,’ ” Rohm & Haas Elec. Materials, LLC v. Elec. Circuits Supplies, Inc., 759 F.Supp.2d 110, 117 (D.Mass.2010) (quoting Campbell Soup Co. v. Giles, 47 F.3d 467, 470 (1st Cir.1995)), the Court is free to accept as true “well-pleaded allegations [in the] complaint and uncontroverted affidavits.” Id. at 114 n. 2 (quoting Elrod v. Burns, 427 U.S. 347, 350 n. 1, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)).

III. Factual BackgroundA. Employment at Aspect

Aspect Software is a Delaware corporation formed in 2005 with its principal place of business in Massachusetts. Aspect Software develops, licenses and sells customer contact center products and services to customers around the world. Their products and services allow businesses to provide customer service, collections, sales and telemarketing directly to customers through contact centers. Aspect Software maintains substantial volumes of confidential information and trade secrets relating to its existing and potential customers and to the development of Aspect Software's product line.

Barnett was the President and CEO of a telecommunications company called Aspect Communications. In 2005, Barnett's company was acquired by Concerto Software and the two companies formed Aspect Software (hereinafter “Aspect”). On September 30, 2005, Aspect hired Barnett to be its Executive Vice President of Research and Development, Chief Technology Officer, and Executive Vice President of Global Support. Barnett served on Aspect's Executive Management team and was one of the company's four Executive Vice Presidents. Barnett's job responsibilities at Aspect were described at length in the record, see Affidavit of Aspect's Chief Executive Officer James Foy, D. 1–2, 44–45 at ¶ 17, ¹ but to summarize, he was responsible for managing all aspects of the customer contact center business, including software and hardware development, technology standards, employee recruitment and retention, and customer relations, as well as general strategic and business management with regard to the customer contact center business. His home base was an Aspect office in Tennessee, but he also had an office at Aspect's headquarters in Massachusetts.

Barnett signed an employment agreement (“Agreement”) with Aspect that contained a provision entitled “Noncompete; Non–Solicitation” at section seven. The provision included the following language:

(a) Employee acknowledges that Employee's services to the Company require the use of information including a formula, pattern, compilation, program, device, method, technique, or process that the Company has made reasonable efforts to keep confidential and that derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use (“Trade Secrets”). Employee further acknowledges and agrees that the Company would be irreparably damaged if Employee were to provide similar services requiring the use of [the Company's] Trade Secrets to any person or entity competing with the Company or engaged in a similar business. Therefore, Employee agrees that during the Employment Period and during the twelve (12) month period immediately thereafter (the “Protection Period”), he or she will not, either directly or indirectly, for himself or herself or any other person or entity ... (iv) Participate in any business in which he would be reasonably likely to employ, reveal, or otherwise utilize Trade Secrets used by the Company prior to the Executive's termination in any geographical area in which the Company or any of its affiliates conducts business. “Participate” includes any direct or indirect interest in any enterprise, whether as officer, director, employee ... [or] executive....

The Agreement also included the following provision, titled “Choice of Law,” at section 17:

All issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the schedules hereto shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without giving effect to any choice of law or conflict of law rules or provisions (whether of the Commonwealth of Massachusetts or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the Commonwealth of Massachusetts.

During the course of his employment, Barnett generated and was given access to information Aspect's complaint describes as trade secrets, including 1) strategic decisions concerning Aspect's “roadmap” for future technological advancement, 2) the design of Aspect's flagship “Unified IP” product and the timeline for its release to the public, 3) details of the relationship between Aspect and the Microsoft corporation as to both technical and strategic matters, 4) the internal structure of Aspect products' components as well as the strengths and weaknesses of individual components, 5) negotiations between Aspect and Aspect's clients, 6) marketing strategies and specific customer targeting objectives, 7) Aspect products' ability to deploy across multiple servers, 8) the interfaces used to connect Aspect products to third-party products, 9) functionality, strengths and weaknesses of Aspect products, 10) cloud computing technology strategies, 11) Aspect's use of Microsoft's SQL server for reporting and analytics and plans for future use, 12) Aspect's use of other Microsoft software and platforms, and 13) Aspect's research and development budgets and resources, including the quality of Aspect's individual employees and Aspect's fiscal constraints.

B. Employment at Avaya

Avaya is a global telecommunications company that, according to an affidavit submitted by Alan Baratz, Avaya's Senior Vice President and President, Global Communications Solutions, self-identifies as “the world leader in the contact center business.” Avaya is one of Aspect's main competitors.² On April 17, 2011, Baratz offered Barnett the position of Avaya's Vice President and General Manager, Contact Center Business Unit. Baratz offered the position to Barnett because Baratz “consider[ed] Mr. Barnett to be a worldwide authority and luminary on contact center technology and solutions.” ³ The position included an annual base salary of $500,000 and annual target bonus of $350,000. On April 18, 2011, Barnett accepted the offer, informed Aspect that he was going to work for Avaya and resigned from Aspect.

Barnett and Avaya both claim that they took steps to protect Aspect's trade secrets before Barnett started his new job. Barnett turned off his Aspect-issued Blackberry immediately after tendering his resignation, left his laptop computer in his office, and boxed all Aspect property in his home and made arrangements for a representative from Aspect to retrieve the boxes. Avaya included language in its employment offer to Barnett that specifically forbade him from using any Aspect trade secrets in the course of his employment with Avaya and, separately, incorporated by reference Barnett's Agreement with Aspect.⁴ Avaya and Barnett subsequently entered into an “Employee Agreement Regarding Intellectual Property” that included similar protections. Additionally, on April 21, 2011, Alan Baratz, Avaya's Senior Vice President and President, Global Communication Solutions, sent Barnett an e-mail that provided, in relevant part:

Given your current obligations to Aspect, I have put together the “ground rules” below, which I need you to follow:

1. Do not retain any documents or information relating to Aspect's business, in any form, that you obtained in your role as an Aspect employee.

2. Do not disclose any document or information relating to Aspect's business to anyone at Avaya and do not use such documents or information in your employment with Avaya.

3. If Aspect comes up in any discussion or meeting that you are attending in your role as an Avaya employee, you should not provide any input.

4. If, in the course of your employment with Avaya, you are asked for information relating to Aspect's business, you must refrain from providing the information.

5. Until April 19, 2012, do not have any communications with any Aspect employee about leaving his or her employment with Aspect.

6. Until April 19, 2012, do not play any role in hiring anyone who was employed with Aspect in the 180 days prior to your involvement in the hiring process.

7. Until April 19, 2012, do not have any communications with any Aspect customer, supplier, licensee, licensor or business relation about doing business with Aspect or Avaya.

8. Until April...