Public Information Cannot Be Considered Confidential

Non-Compete Agreement

Cynosure, a company that manufactures high end laser and light based systems for minimally invasive medical procedures moved for preliminary injunction against three former employees, Spencer Detter, (“Detter”) John Featherstone (“Featherstone”) and Kipp Davit (“Davit”) (collectively “Defendants”) alleging that the three were in violation of a non-compete agreement and confidentiality agreement after they began working for a competitor, Cutera, Inc. Plaintiff had previously employed the Defendants as salesmen.

Cynosure sought relief to prohibit the Defendants from working for Cutera on the basis that the Defendants possessed proprietary and confidential information and, armed with this knowledge, their employment with Cutera violated Defendants’ non-compete obligations.

The Court found that Plaintiff did not meet its burden of showing that any of the Defendants possessed any proprietary or confidential information and denied Plaintiff’s motion for preliminary injunction. The court emphasized that an allegation of “intimate awareness” of a product’s functionality does not translate into proof that the product information constitutes a trade secret or any other type of confidential information that would warrant a preliminary injunction.

The Court found Cynosure failed to show that the Defendants knew anything about its product that it could not have found by attending a trade show, visiting Cynosure’s website, or reading p a product brochure that Cynosure readily distributed to any potential customer, Cynosure could not enforce a non-compete agreement. The Court found that Cynosure must do more than make conclusory allegations that the Defendants were ‘privy to’ confidential information and that it is Cynosure’s obligation to allege the nature of the confidential information and that the company actually regarded the information as confidential and took affirmative steps to keep it that way. The Court also found that Defendants access to “sell sheets” does not provide a basis to enforce the non-compete. The Court again found that, while the sell sheets provide ideas on how to promote and sell Cynosure’s products, Cynosure has not shown that the sell sheets contain any information that could reasonably be considered confidential.

Finally, the Court found that although Cuter could use Defendants’ knowledge of Cynosure’s pricing practices, Cynosure failed to present any evidence to the Court that Cutera had actually done so, or that Cynosure has suffered, or may suffer, any actual damages. The Court wrote, ” “In contrast, Detter, Featherstone, and Davit all support families that depend on their incomes from Cutera. They and their dependents would likely be irreparably harmed if the Court ordered them to stop working for Cutera before Cynosure has proved its claims and obtained final judgment in its favor.”

Cynosure, Inc. v. Detter, et al., unpublished (Middlesex Superior Court, Salinger, J.) Civil Action No. 15-00724. Feb. 26, 2015

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