Sep. 11, 2014
A. Barry Cappello
See more on A. Barry CappelloCappello & Noël LLP | Santa Barbara | Practice Type: complex commercial litigation | Specialties: lender liability, class actions, catastrophic personal injury matters, environmental litigation
He served as lead counsel with John P. Barry from Proskauer Rose LLP's New Jersey office.
At issue, Sientra had recently entered the breast implant business as a competitor of Johnson & Johnson's Mentor Worldwide LLC, which sells breast implants.
When 15 Mentor sales representatives chose to leave the company to join Sientra, Mentor sued each of them, claiming that they did not have the right to enforce their at-will employment agreements and seek work elsewhere.
The plaintiffs alleged interference with prospective economic advantage, contract interference, breach of fiduciary duty and misappropriation of trade secrets. Mentor Worldwide LLC v. Sientra Inc., et al, 1402207 (Santa Barbara Super. Ct., filed Aug. 30, 2013).
But, Cappello said, "California allows the freedom of employees to leave without notice, unless the contract is for a specific term."
He added, "Their contracts said that the company could fire them at any time without notice, as well."
The plaintiffs also accused the employees of taking proprietary customer lists and pricing information.
But, Cappello said, "The employees turned over all materials and didn't access any computers."
This type of scenario has spawned what Cappello calls "a whole cottage industry" of legal specialists who deal with "employee liftouts."
"One company hires key employees from another company, a competitor, and then it devotes millions of dollars in litigation costs to defend itself," he added.
Proskauer had developed a "clean-hands policy," which was rigidly followed, he said.
"We convinced the jury that the policy was legally and morally sound, that Mentor was completely protected and our new employees and Sientra did everything correctly."
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