Martelet v. AVAX Techs., Inc., CIVIL ACTION NO. 09-cv-2925-JD

• Decision Date: 02 May 2012
• Docket Number: CIVIL ACTION NO. 09-cv-2925-JD
• Parties: FRANCOIS MARTELET, Plaintiff, v. AVAX TECHNOLOGIES, INC.; JOHN K.A. PRENDERGAST; EDSON D. DE CASTRO; ANDREW W. DAHL; and CARL SPANA, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

FRANCOIS MARTELET, Plaintiff,
v.
AVAX TECHNOLOGIES, INC.; JOHN K.A. PRENDERGAST; EDSON D. DE
CASTRO; ANDREW W. DAHL; and CARL SPANA, Defendants.

CIVIL ACTION NO. 09-cv-2925-JD

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

May 2, 2012

DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This case arises out of an employment contract between plaintiff Francois Martelet and his former employer AVAX Technologies, Inc. ("AVAX"). After AVAX terminated plaintiff from his position as CEO, plaintiff filed suit against AVAX and members of its Board of Directors—John K.A. Prendergast, Edson D. De Castro, Andrew W. Dahl, and Carl Spana— alleging breach of contract, violations of the New Jersey Wage Payment Law, detrimental reliance, and unjust enrichment. AVAX asserted counterclaims against plaintiff for breach of contract, detrimental reliance, and breach of fiduciary duty based on plaintiff's alleged misdeeds during his tenure as CEO.

Plaintiff filed a Motion for Partial Summary Judgment on May 17, 2011, ("plaintiff's First Motion for Summary Judgment") seeking summary judgment as to his claim for back pay. The parties thereafter engaged in settlement discussions, which were unsuccessful. On December

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9, 2011, plaintiff filed a Motion for Summary Judgment to Dismiss Counterclaims of Counter-Plaintiff, AVAX Technologies, Inc. ("Plaintiff's Second Motion for Summary Judgment"). That same day, defendants filed a Motion for Summary Judgment seeking judgment in their favor on all of plaintiff's claims. For the reasons stated below, the Court grants in part and denies in part plaintiff's First Motion for Summary Judgment, grants plaintiff's Second Motion for Summary Judgment, and denies defendants' Motion for Summary Judgment.

II. BACKGROUND

A. The Employment Contract

In late 2007, plaintiff, a New Jersey resident, and defendants began negotiating an employment contract under which plaintiff would serve as the CEO of AVAX, a biotechnology company with a principal place of business in Philadelphia, Pennsylvania. (Statement Material Facts Supp. Pl.'s Mot. Partial Summ. J. ("Pl.'s First SOF") ¶¶ 1, 6.) On December 1, 2007, plaintiff and AVAX entered into an Employment Agreement. (Id. ¶ 11; Employment Agreement, Pl.'s First Mot. Summ. J. Ex. E.) The Employment Agreement provided as follows:

1. Plaintiff was hired as President and CEO of AVAX. (Employment Agreement, Pl.'s First Mot. Summ. J. Ex. E, ¶ 2.1.)

2. Plaintiff could serve on AVAX's Board of Directors but would not receive an additional fee for doing so. (Id. ¶ 2.2.)

3. Plaintiff's annual base salary was $450,000. (Id. ¶ 3.1.)

4. Plaintiff was

entitled to participate in the Company's annual discretionary bonus program, which shall have a target range of up to 50% of [plaintiff's] Base Salary based on milestones to be mutually agreed on between the Compensation Committee and [plaintiff] and prior to the beginning of each bonus period. For the first year of the

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Employment Period, [plaintiff] shall receive a minimum bonus of 30% of the Employee's base salary, which bonus shall be paid no later than thirty (30) days after the first anniversary date of the employment period. After the first year of the Employment Period, [plaintiff] shall not be entitled to a minimum bonus amount. (Id. ¶ 3.2.)

5. Plaintiff's employment could be terminated in one of six ways:

a. The expiration of the term of the Employment Agreement, which was to occur on December 1, 2010, (id. ¶ 4.1);

b. At the election of AVAX, for "Cause," immediately upon written notice by AVAX to plaintiff, (id. ¶ 4.2);

c. Upon the death or disability of plaintiff, (id. ¶ 4.3);

d. At the election of plaintiff for "Good Reason," upon written notice of not less than sixty days, (id. ¶ 4.4);

e. Following a change in control, (id. ¶ 4.5); or

f. "At the election of either party, upon written notice of termination," (id. ¶ 4.6).

6. If plaintiff terminated his own employment for "Good Reason," or if AVAX terminated plaintiff's employment without "Cause," plaintiff would be entitled to severance payments consisting of twenty months' salary and benefits. (Id. ¶¶ 5.2(b), 5.3.)

7. If AVAX terminated plaintiff's employment for "Cause," or if plaintiff terminated his own employment without "Good Reason," plaintiff would be entitled to receive only his unpaid salary and accrued vacation. (Id. ¶¶ 5.2(a), (c).)

8. "Cause" was defined as, inter alia:

(i) [plaintiff's] material breach of, or habitual neglect or failure to perform the material duties which he is required to perform under, the terms of this Agreement; (ii) [plaintiff's] willful and intentional failure to follow the reasonable directives or policies established

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by or at the direction of the Board; or (iii) [plaintiff's] engaging in conduct that is materially detrimental to the interests of [AVAX] such that [AVAX] sustains a material loss or injury as a result thereof, provided that the breach or failure of performance by [plaintiff] under subparagraphs (i) through (iii) hereof is not cured, to the extent cure is possible, within thirty (30) days of the delivery to [plaintiff] of written notice thereof. (Id. ¶ 6.1(a).)

9. "Good Reason" was defined as, inter alia,

the occurrence of any of the following circumstances, and [AVAX's] failure to cure such circumstances within thirty (30) days of the delivery to [AVAX] of written notice by the Employee of such circumstances:

(a) any material adverse change in [plaintiff's] duties, authority or responsibilities . . . which causes [plaintiff's] position with [AVAX] to become of significantly less responsibility or assignment of duties, responsibilities or title inconsistent with [plaintiff's] position; [or]
(b) a reduction in [plaintiff's] salary . . . except if such reduction affects all executive officers similarly. (Id. ¶ 6.5.)

10. The Employment Agreement constituted "the entire agreement between the parties and supersede[d] all prior agreements and understandings." (Id. ¶ 10.)

11. The Employment Agreement was governed by New Jersey law. (Id. ¶ 12.)

12. The titles and captions of the paragraphs of the Employment Agreement were "for convenience of reference only" and did not alter the terms thereof. (Id. ¶ 15.1.)

B. Suspension of Manufacturing at French Subsidiary

AVAX controlled a French company, Genopoietic, which manufactured cancer vaccines. (See Deposition of Henry Schea ("Schea Dep."), Defs.' Resp. Pl.'s Second Mot. Summ. J. Ex. F, at 77.) In the spring of 2009, plaintiff undertook a series of steps that had the effect of ending vaccine manufacturing at Genopoeitic. (See generally Statement Material Facts Supp. Pl.'s Second Mot. Summ. J. ("Pl.'s Second SOF") ¶¶ 6-12.) The parties dispute whether those steps

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were taken unilaterally and whether French law obligated plaintiff to take these steps. Regardless, by May 2009, Genopoietic was no longer making cancer vaccines for AVAX. (Id.)

C. Cash Shortages and Plaintiff's Termination

Beginning in late 2008, AVAX began experiencing cash shortages, making it difficult to meet payroll obligations. (Pl.'s First SOF ¶ 25.) In April 2009, plaintiff, along with some other members of the AVAX management team, stopped receiving an annual salary. (Pl.'s First SOF ¶ 27; Dep. Andrew Dahl ("Dahl Dep."), Defs.' Mot. Summ. J. Ex. C, at 29.) The parties dispute who was primarily responsible for making the decision to suspend salaries, but it is clear that, even if plaintiff had made the decision to do so, "he would have consulted the [B]oard in relation to that." (Dep. John Prendergast ("Prendergast Dep."), Pl.'s First Mot. Summ. J. Ex. B, at 107.) Further, plaintiff never received any bonus for 2008. (Pl.'s First SOF ¶ 26¹ ; Aff. Pl. Francois Martelet, Pl.'s Second Mot. Summ. J. Ex. C ("Martelet Aff.") ¶ 34.)

On May 14, 2009, plaintiff's counsel sent AVAX a letter stating,

This letter shall serve as Dr. Martelet's written notice to AVAX, pursuant to paragraph 6.6 ("Good Reason") of the Employment Agreement . . . of several circumstances constituting a breach of that Agreement. Per paragraph 6.5, AVAX has thirty (30) days from the date of this notice to cure the breaches identified herein. In the event these breaches are not cured within that time frame, Dr. Martelet shall be entitled to exercise his rights under paragraph 5.3 ("Termination By Employee Election For Good Reason") of the Agreement.

(Letter from Robin Bond, Esq., to Faith Charles, Esq., & AVAX Technologies, Inc., Pl.'s First Mot. Summ. J. Ex. G.) The May 14, 2009, letter listed three alleged breaches of the Employment

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Agreement by AVAX: (1) failure to pay unpaid wages, (2) failure to pay directors' and officers' liability insurance and health care insurance, and (3) failure to pay plaintiff's first-year bonus, which plaintiff argues is a mandatory thirty percent bonus. (Id.) Defendants made no attempt to cure the alleged breaches. (Dep. Carl Spana ("Spana Dep."), Pl.'s First Mot. Summ. J. Ex. C, at 40-41, 64.) Plaintiff sent similar letters and/or emails on May 20, 2009,² May 28, 2009, and June 10, 2009. (Pl.'s First...