Citations
- 25 F. Supp. 3d 617
Full opinion text
MEMORANDUM
BUCKWALTER, District Judge.
TABLE OF CONTENTS FOR CROSS-MOTIONS FOR SUMMARY JUDGMENT TO LIABILITY
I.STATEMENT OF FACTS.
A. Persons Relevant to the Suit.
1. The Parties.
2. Other Relevant Individuals.
B. Background of the Key Players’ Employment With Synthes
1. Defendant Marotta’s Employment With Synthes.
2. Defendant Brown’s Employment With Synthes.
3. Powell’s Employment With Synthes.
4. Trafka’s Employment with Synthes and Magnum Tool.
C. Written Obligations of the Parties and Other Individuals ..
1. Synthes Written Obligations..
a. Contractual Obligations.
b. Employment Policies and Obligations.
2. Emerge’s Written Contracts and Policies.
3. Vendors’ Written Contractual Obligations to Synthes .
4. SIMS and Customers’ Written Contractual Obligations to Synthes
D. The Formation of Emerge Prior to April 15, 2010.
1. Brief Background of Emerge.
2. Detailed Timeline of Emerge-Related Activities Prior to April 15, 2010.
3. Emerge’s Business Plans and Investor Materials (Pre-April 2010)
a. The Private Placement Memorandum.
b. Investor Presentations.
c. Additional Statements Regarding Emerge’s Business Model
4. of Investors and
5. Early Design and Development of Emerge Product.
E. Use of Products and Information.
1. Acquisition and Use of Synthes Product. 05 CR CR
2. Acquisition, Use, and Disclosure of Synthes’s Confidential and Proprietary Information. 05 CR CR
a. Information Related to Synthes’s Manufacturing Costs _ 05 CR CR
b. Information Related to Synthes’ External Fixation and LCP Products. 05 CR 05
c. Information Related to Synthes’s Critical Features, Dimensions, and Tolerances. 05 CR 05
d. Information Related to Synthes’s Engineering Specifications 05 CR -3
e. Information Related to Synthes’s Cortical and Cancellous Screws. .657
f. Information Related to Synthes’s Usage Data in Emerge’s Early Accounts. 00 LO to
g. Information Related to Synthes’s Cannulated Screw Comparison Chart. 00 lO to
h. Synthes Documents Marotta Emailed to His Personal Email Address. 00 LO CO
i. Marotta’s & Powell’s Retention of Synthes’s Emails. 05 iO co
j. Information Related to Synthes’s Strategic Business
Obtains FDA Clearance. lO CO
Emerge’s Pilot Customers.. CO CO
1. Banner Health. CO CO
2. AOSH/USPI. CO CO
3. Catholic Healthcare West. CO co
4. System-Wide Sales and Early Targets. CO CO
Emerge’s Sales Process, Strategy, Implementation, and Commingling W 03 to co
I. Cardinal Health. "ÑP CO co
J. 'Procedural History. lO CO co
STANDARD OF REVIEW . II. LO CO co
DISCUSSION.. III. co to
A. Claim Against Marotta for Breach of Fiduciary Duty (Count I) co CO
1. Defendant’s Motion for Partial Summary Judgment on Breach of Fiduciary Duty.'. 00 CO CO
2. Plaintiffs’ Motion for Summary Judgment on Breach of Fiduciary Duty. 05 o
B. Claim of Aiding and Abetting Breach of Fiduciary Duty Against Emerge. 05 £
C. Claim Against Marotta for Breach of Contract Under the Non-competition and Non-Disclosure Agreements (Count II). 3 00
1. The Assignment Provision of the Non-Disclosure Agreement. 3 00
2. The Non-Competition and Non-Solicitation Provisions of the RM NCA. a. Breach of the Non-Competition Provision. 05 05 00 00 ÜUJ5.
b. Breach of the Non-Solicitation of Customers Provision... 05 00 CD
c. Breach of the Non-Solicitation of Employees Provision .. 05 co M
3. Sales Consultant Non-Competition Provision. 05 to CO
4. Return of PropertyFrovision and Confidentiality and Non-
Disclosure Provisions in the RM NCA and NDA. 05 CO CO
a. Small Fragment Set. 05 CO CO
b. Synthes Product in Marotta’s Garage. —d O ) — I
c. Synthes Emails. -vj O co
D. Misappropriation... -^3 O iffe
1. Whether the Items at Issue Constituted Trade Secrets. O CR
a. Synthes Information Regarding Manufacturing Costs and
Usage Data.•_ 705
b. Product Design Information.707
2. Whether Emerge Misappropriated Synthes’s Trade Secrets.710
a. Information Regarding Manufacturing Costs and Usage Data.710
b. Synthes Product Drawings and Information Related to External Fixation Products .712
c. Synthes Product Drawings and Information Related to Critical Features, Dimensions, and Tolerances for Screws Emerge Developed and Screws Emerge Identified as Additional Product Offerings.712
d. Synthes Engineering Specifications and Information Related to Products Emerge Designed and Identified as Additional Product Offerings.713
e. Drawings and Information Related to Synthes Cortical and Cancellous Screws and Product Emerge Identified as • Additional Product Offerings.■.714
f. Strategic Business Planning Information Related to Companies Affiliated with Prospective Emerge Investors and Advisors.715
3. Conclusion as to Misappropriation .715
False Advertising Under the Lanham Act.715 E.
Computer Fraud and Abuse Act.718 F.
Trespass to Chattels.721 G.
Fraud.•.723
Tortious Interference With Contract.727 I.
1. Tortious Interference with Marotta’s Contracts With Synthes.727
a. Whether Emerge Had Knowledge of Marotta’s Contractual Agreements with Synthes.728
b. Whether Emerge Did Anything to Induce Marotta to Breach Either His NDA, His RM NCA, or His SC NCA With Synthes .,.729
2. Tortious Interference with Powell’s Non-Compete Agreement With
3. Tortious Interference With Brown’s Agreements With Synthes “VI CO co
4. Tortious Interference With Synthes’s Contractual Relationships
With Any of Its Customers or Vendors. CO
a. Tortious Interference With Vendors. CO ^
b. Tortious Interference with Customers. CO oi
5. Marotta’s Tortious Interference With Synthes’s Contractual Relations With Other Synthes Employees. CO or
Civil Conspiracy . *“■3 to cn
IV. CONCLUSION. .737
Currently pending before the Court are the Cross-motions for Summary Judgment of Plaintiffs Synthes, Inc., Synthes USA-HQ, Inc., Synthes USA, LLC, Synthes USA Sales, LLC, and Synthes USA Products, LLC (collectively “Synthes”) and Defendants Emerge Medical, Inc., John P. Marotta, and Charles Q. Powell (collectively “Defendants”). For the following reasons, Synthes’s Motion is granted in part and denied in part and Defendants’ Motion is granted in part and denied in part.
I. STATEMENT OF FACTS
The factual history of this case, while not particularly long in a temporal sense, contains numerous discrete events and actions that give rise to the multitude of claims at issue. As the parties have already engaged in lengthy motion practice, as well as a preliminary injunction hearing, the general facts are well-known to both the parties and the Court. While the Court declines to recite every fact set forth by the parties, the Court will engage in a somewhat detailed summafy in order to encompass the facts pertinent to resolution of the motions at issue.
A. Persons Relevant to the Suit 1. The Parties
Synthes, Inc. is a Delaware corporation with its principal place of business in' Pennsylvania, and is the parent company of the other Plaintiffs, which are also Delaware entities with their principal places of business in Pennsylvania. (Plaintiffs’ Statement of Undisputed Facts '(“PSUF”) ¶ 1; Defendants’ Response to Plaintiffs’ Statement (“DRPS”) ¶ 1.) Synthes has been described as a global leader in the highly competitive orthopedic device market. (PSUF ¶ 2;. DRPS ¶ 2.) Its sales and marketing plan depends exclusively upon the preferences of orthopedic surgeons to influence the purchasing decisions of the hospitals and surgical centers where orthopedic surgeons practice. (PSUF ¶ 5;DRPS ¶ 5.)
Emerge- Medical, Inc. (“Emerge”) is a Colorado corporation formed on January 13, 2010, under the name Emerge Surgical, Inc. (PSUF ¶ 7; DRPS ¶ 7.) On June 23, 2010, Emerge Surgical, Inc. officially changed its name to Emerge Medical, Inc. (PSUF ¶ 8; DRPS ¶ 8.) Emerge competes with Synthes and was formed to produce and sell Generic Device Fixation Hardware “similar, but not identical to” that which Synthes also produces and sells. (PSUF ¶¶ 9-10; DRPS ¶¶ 9-10.) According to Emerge, it has “devised a new approach to the sales of [drill bits, guide wires, and screws] providing the American public with a like-numbered product that is similar to” drill bits, guide wires, and cannulat-ed screws sold by Synthes. (PSUF ¶ 11; DRPS ¶ 11.) As of July 2012, Emerge sold only “drill bits, guide wires, and screws.” (PSUF ¶ 12; DRPS ¶ Í2.) Emerge’s drill bits, guide wires, and screws may be “used to hold Synthes[’] sophisticated implants in place.” (Plaintiffs’ Appendix (“Pis.’ Appx.”) 2, Emerge Answer to Am. Compl. ¶ 156; PSUF ¶ 13; DRPS ¶ 13.) Currently, Cardinal Health, Inc. (“Cardinal Health”) serves as the exclusive distributor of Emerge products. (PSUF ¶ 15; DRPS ¶ 15.)
Defendant John P. Marotta is a former Synthes Sales Consultant and Regional Manager in Synthes’s Trauma Division. (PSUF ¶ 16; DRPS ¶ 16.) Marotta was a founding member of Emerge and currently serves as Emerge’s Chief Executive Officer, President, and Director. (PSUF ¶ 17; DRPS ¶ 17.) As Chief Executive Officer (“CEO”) of Emerge, Marotta has been responsible for operations and all aspects of Emerge’s business, including product development, managing timelines, sales and marketing strategies, oversight of the development of sales and sales growth within the business, manufacturing, quality systems, financial responsibility for'all aspects of the operation, and investor relations. (PSUF ¶ 18; DRPS ¶ 18.)
Zachary Stassen was a founding member of Emerge and was Emerge’s Chief Operating Officer and Director until July or August 2010, when he became Chief Financial Officer. (PSUF ¶¶ 19-20; DRPS ¶ 19-20.) On November 4, 2011, Stassen resigned as an officer and employee of Emerge. (PSUF ¶ 21; DRPS ¶ 21.) Nonetheless, Stassen remains a shareholder of Emerge. (PSUF ¶ 25; DRPS ¶ 25.) Although originally a named Defendant in this action, Synthes and Stassen reached a settlement and the Court dismissed him from this action, without prejudice, on January 23, 2013. (PSUF ¶¶ 28-29; DRPS ¶¶ 28-29.)
Eric Brown is a former Area Vice President of Sales for Synthes Trauma. (PSUF ¶ 30; DRPS ¶ 30.) At some point during his employment with Synthes, Marotta reported directly to Brown. (PSUF ¶ 31; DRPS ¶ 31.) In 2009, during Brown’s employment with Synthes, Brown was contemplating a new business that involved providing consulting services to distributors and start-up companies that sold orthopedic medical devices, and had hired Stassen as a business consultant in connection with that idea. (PSUF ¶ 32; DRPS ¶ 32.) Following the introduction of Mar-otta to Stassen in or about the summer of 2009, Brown, Marotta, and Stassen began to discuss other possible means for a new business, including the idea to sell generic medical device commodities. (PSUF ¶ 34; DRPS ¶ 34; Pis.’ Appx. 26, at Interrog. Resp. No. 2.) Brown, however, was focused on a sales force model rather than the business model envisioned by Marotta and Powell. (Pis.’ Appx. 19, Dep. of Zachary Stassen (“Stassen Dep.”), 228:16-229:3, July 22, 2011.) Nonetheless, Brown remained involved in discussions with Marot-ta and Stassen regarding the formation of a new company. (PSUF ¶ 36; DRPS ¶ 36.) By the time of incorporation, however, it was determined that Brown would have no place in either the formation or management of Emerge because Stassen and Marotta believed that Brown’s Non-Compete Agreement would be a barrier to his participation. (PSUF ¶¶ 37-38; DRPS ¶¶ 37-38; Pis.’ Appx. 3, Dep. of John Mar-otta (“Marotta Dep.”), 151:24-152:24, July 5, 2011.) Although Brown was originally sued in connection with this lawsuit, he was dismissed without prejudice on January 23, 2013, as part of a settlement between him and Synthes. (PSUF ¶¶ 40-41; DRPS ¶¶ 40-41.) In that regard, Brown signed a settlement agreement which purports to assign to Synthes any and all interests that he held in Emerge or in certain intellectual property associated with Emerge. (PSUF ¶ 41; DRPS ¶41; Pis.’ Appx. 27-28.)
Charles (Chaun) Q. Powell is a former Synthes Sales Consultant for Synthes Trauma who, during Marotta’s tenure as Regional Manager of the Rocky Mountain Region, reported directly to"' Marotta. (PSUF ¶ 42; DRPS ¶42.) On March 15, 2010, Powell resigned from Synthes to work for Sonoma. Orthopedic Products, Inc. (PSUF ¶ 43; DRPS ¶43.) In the summer of 2010, Powell agreed to an August 1, 2010 start date with Emerge, after which he would work on a part-time basis in a consulting position. (PSUF ¶ 44; DRPS ¶ 44.) On August 30, 2010, Powell left Sonoma Orthopedic Products, Inc. and, the following day, joined Emerge as Director of U.S. Sales. (PSUF ¶44; DRPS ¶ 44.) In connection with his employment, Powell executed a Revised Offer of Employment letter with Emerge dated August 1, 2010, signed by Marotta as Chief Executive Officer of Emerge. (PSUF ¶¶ 45-46; DRPS ¶¶ 45-46.) In this letter, Emerge stated that “we understand that you may be subject to certain confidentiality and competition restrictions under a confidentiality and non-compete agreement with one or more former employers (each, a ‘Non-Competition Agreement’).” (Pis.’ Appx. 32; PSUF ¶ 47; DRPS ¶ 47.) In addition, Powell “acknowledge[d] that John P. Marotta, Chief Executive Officer, [was] also bound by the provisions of a similar agreement with his prior employer (the ‘Marotta Agreement’)” and “agree[d] to abide by the terms of any Non-Compete Agreement and will not do anything in [his] capacity as an employee of the Company to breach any Non-Compete Agreement nor to cause any action to be taken against the Complaint [sic] or Mr. Marotta for breach of the Marotta Agreement.” (Pis.’ Appx. 32; PSUF ¶48; DRPS ¶ 48.) Around January 1, 2012, Powell became Emerge’s Vice President of U.S. Sales. (PSUF ¶49; DRPS ¶ 49.) Since beginning his employment, Powell has reported directly to Marotta. • (PSUF ¶ 50; DRPS ¶ 50.) Powell testified that he was responsible for overseeing all aspects of marketing the majority of Emerge’s products; strategic planning; identifying potential products for development; the creation, review, and approval of Emerge’s marketing materials generally; performing on-site implementation of Emerge products; generating price quotations for Emerge products; website development; providing suggestions on products Emerge was in the process of making; and helping Cardinal Health understand the sales end of Emerge’s business. (PSUF ¶ 51; DRPS ¶ 51; Pis.’ Appx. 31, Dep. of Charles Powell (“Powell Dep.”), 63:8-66:10, 71:1-72:1, 76:1-19, 91:20-92:17, June 10, 2013.)
2. Other Relevant Individuals
Marcy Slone served as Emerge’s Vice President of Operations from the summer of 2010 until her termination in January 2011. (PSUF ¶ 52; DRPS ¶ 52.) In that role, her responsibilities included overseeing the operations of the company, supplier management responsibilities, some inventory management responsibilities, day-to-day management responsibilities, and some interaction with Orchid on the design of Emerge’s products. (PSUF ¶ 53; DRPS ¶ 53.) According to Marotta, Slone had intimate knowledge of the design and development efforts of Emerge’s “initial phase products,” including Emerge’s can-nulated screws, drill bits, and guide wires. (PSUF ¶ 54; DRPS ¶ 54; Pis.’ Appx. 36, Marotta Dep., 654:13-55:8, July 6, 2011.)
Victoria Trafka was employed by Synthes in 1998 as a manufacturing engineer at Synthes’s Monument facility. (PSUF ¶ 58; DRPS ¶ 58.) In 2009, Mar-otta contacted Trafka regarding potential assistance with Emerge. (PSUF ¶ 59; DRPS ¶ 59.) Thereafter, in March 2010, Trafka began working for Emerge as a part-time consultant to assist Emerge in developing product concepts. (PSUF ¶ 60; DRPS ¶ 60.) During the period of time for which she served as a part-time engineering contractor for Emerge, Trafka’s position included contract design work paid on an hourly basis. (PSUF ¶ 61; DRPS ¶ 61.) In this role, she referred to herself as “VP Engineering” for “Emerge Medical, Inc.” (PSUF ¶62; DRPS ¶ 62.) As of March 2011, Trafka was a part-time, salaried employee of Emerge and, at times, worked over forty hours in a week. (PSUF ¶ 63; DRPS ¶ 63.) On August 1, 2012, Trafka became a full-time employee of Emerge under the title of Vice President of Engineering and Quality. (PSUF ¶¶ 65-66; DRPS ¶¶ 65-66.) Her responsibilities in that role included, among other things: the design and development of inr strumentation and devices used in trauma-based surgeries, as well as establishing and assuring compliance of Quality Systems to applicable regulations and standards; overseeing certain outside contractors; determining the materials used by Emerge in the production of its products; maintaining the design history file for Emerge’s products; developing nécessary regulatory strategies; reviewing all associated regulatory submissions for clinical research and marketing approval; communicating and resolving quality issues and applying root cause analysis to drive corrective and preventative actions; and coordinating the reporting of adverse events. (PSUF ¶ 67; DRPS ¶ 67.)
Preston Baus is a former Synthes Sales Consultant for Synthes Trauma and began working for Synthes in June 2004. (PSUF ¶ 72; DRPS ¶ 72.) In March 2006, Synthes promoted Baus to a new role within Synthes as a Market Development Manager in Solothurn, Switzerland, where he was responsible for driving sales of Synthes’s trauma product line within his assigned areas of responsibility. (PSUF ¶ 73; DRPS ¶ 73.) Thereafter, in January 2009, Baus became Business Manager of EMEA Vet in Oberdorff, Switzerland, where he oversaw efforts to grow business for Synthes Veterinary in .his area. (PSUF ¶ 74; DRPS ¶ 74.) In September 2010, he became a Sales Consultant for Synthes Trauma again, and remained in that position until he resigned from Synthes on April 7, 2011. (PSUF ¶ 75; DRPS ¶ 75.)
B. Background of the Key Players’ Employment With Synthes
1. Defendant Marotta’s Employment With Synthes
From June 2004 through April 15, 2010, Marotta-was employed by Synthes in its Trauma Division. (PSUF ¶ 79; DRPS ¶ 79.) Prior to his employment , with Synthes, Marotta had no experience in the orthopedic medical device industry. (PSUF ¶ 80; DRPS ¶ 80.) As part of his employment with -Synthes, Marotta received specialized training, had some limited access to Synthes’s resources and information, and would travel to existing and prospective customers of Synthes. (PSUF ¶¶ 81-82, 85-86; DRPS ¶¶ 81-82, 85-86.) On occasion, Marotta would have access to Synthes’s product development and manufacturing facilities. (PSUF ¶ 87; DRPS ¶ 87.)
When Synthes first hired Marotta in 2004, he was employed as a sales consultant in a territory in the Desert Valley region of Arizona. (PSUF ¶ 88; DRPS ¶ 88.) In connection with his hiring, and as a condition of his employment with Synthes, Marotta entered into two agreements with Synthes: a Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreement (“SC NCA”) and an Employee Innovation and NonDisclosure Agreement (“NDA”). (PSUF ¶ 89; DRPS ¶ 89.) According to Marotta’s resume, his responsibilities as a Synthes Sales Consultant included “[m]anag[ing] a customer base including 97 surgeons,” and “[pjroduct specialties includ[ing] Locked Plates, Cannulated Screws, IM Nails, External Fixation, Bio-Materials, and Power Equipment.” (Pis.’ Appx. 17; PSUF ¶ 90; DRPS ¶ 90.) As a Sales Consultant, Mar-otta had responsibility to develop, maintain, and' expand customer relationships, including relationships at the hospital level with the operating room, materials management, sterile processing and other hospital staff, and physicians. (PSUF ¶ 92; DRPS ¶ 92.) In that role, he established direct contact with orthopedic surgeons, some of whom were Synthes customers, and became familiar with their preferences. (PSUF ¶ 93; DRPS ¶ 93.) His responsibilities included being physically present in the operating room to support surgeries with respect to all Synthes products. (PSUF ¶ 94; DRPS ¶ 94.)
Marotta received a substantial amount of field inventory to help support operations in his territory. (PSUF ¶ 98; DRPS ¶ 98.) His territory included, among others, the following customer accounts: Banner Gateway Medical Center, Banner Bay-wood Medical Center, Banner Desert Medical Center, Chandler Regional Hospital, Mercy Gilbert Medical Center, and Arizona Orthopedic Hospital. (PSUF ¶ 99; DRPS ¶ 99.) Some of the physicians that worked at sales facilities within Mar-otta’s Sales Consultant Territory include: Neil Motzkin, Peter Seipel, Dan Aschen-brener, Salvatore La Cognata, John Dug-gan, Danton Dungy, Dennis Armstrong, Daniel Mullen, Earl Feng, Jason Tani, and Anthony Theiler. (PSUF ¶ 100; DRPS ¶ 100.)
Marotta was a highly successful sales consultant in his Synthes Sales Consultant territory and had developed very good relationships and goodwill with both'the physician customers and the hospitals. (PSUF ¶ 110; DRPS ¶ 110.) As such, Synthes promoted Marotta to Regional Manager for the Rocky Mountain Region in September 2007. (PSUF ¶ 111; DRPS ¶ 111.) Marotta’s promotion took effect on February 1, 2008, however, Marotta indicated that he effectively became acting Regional Manager of Rocky Mountain Region back in October 2007. (PSUF ¶¶ 113-14; DRPS ¶¶ 113-14.) In connection with this promotion, Marotta received a compensation package, which included a minimal annual income guarantee of $320,000 for two years, and he executed a Regional Manager Confidentiality, Non-Solicitation, and Non-Competition Agreement (“RM NCA”). (PSUF ¶¶ 115-16; DRPS ¶ 115-16.) In addition, Marotta received a relocation package of approximately $190,000. (PSUF ¶ 117; DRPS ¶ 117.)
According to Marotta’s resume, his responsibilities as Synthes Regional Manager involved management of a “$36 million P & L” and a total of twenty-six direct reports. (PSUF ¶ 118; DRPS ¶ 118.) He handled high level, multi-mil-lion dollar sales and negotiations in major integrated delivery networks (“IDN”) and established warehouse, distribution, and office operations in Colorado. (PSUF ¶ 119; DRPS ¶ 119.) In addition, among other job duties, Marotta had responsibility for maintaining and growing sales in his region; leading a sales time to achieve ongoing company sales goals; handling Regional business; establishing and nurturing effective working relationships with key accounts, surgeons, and AO faculty in the Region; and maintaining good customer relations with the hospitals and physicians in his region. (PSUF ¶¶ 120-22; DRPS ¶ 120-22.) Customer accounts within Marotta’s region during this time included: Denver Health, Swedish Medical Center, University of Colorado University Hospital, St. Mary’s Hospital and Regional Medical Center, Banner Health Facilities, USPI Facilities, Centura Health Facilities, an Intermountain Healthcare facility. (PSUF ¶ 124; DRPS ¶ 124.)
One of the physicians who worked at the Denver Health facility in the Rocky Mountain Region was Dr. Steve Morgan. (PSUF ¶ 128; DRPS ¶ 128.) Dr. Morgan is a leader in the field of orthopedics, is regarded as an expert in orthopedic trauma surgery, and is a member of the AO faculty. (PSUF ¶¶ 130-31; DRPS ¶¶ 130-31.) Marotta first met Dr. Morgan in Arizona and continued to have dealings with him on Synthes’s behalf. (PSUF ¶¶ 126-27; DRPS ¶¶ 126-27.)
During Marotta’s tenure as a Synthes Regional Manager, Synthes dispatched Marotta to Arizona in January 2010 while the assigned Regional Manager for that region, Chance Leonard, was on medical leave. (PSUF ¶ 132; DRPS ¶ 132.) As a regional manager, Marotta made some introductions between Leonard and the physicians in Marotta’s former Sales Consultant territory. (PSUF ¶ 134; DRPS ¶ 134.) Marotta also attended some meetings with customer accounts in his former Sales Consultant territory. (PSUF ¶ 136; DRPS ¶ 136.) While Regional Manager, Marotta also assisted Leonard with his role in Arizona and helped him with an initiative called “Operation Checkmate.” (PSUF ¶ 138; DRPS ¶ 138.)
During his employment, Synthes provided Marotta with information regarding its products and customers. (PSUF ¶ 141; DRPS ¶ 141.) Marotta also had access to and received technical, customer, prospect, financial, and other information that is proprietary and confidential to Synthes. (PSUF ¶ 142; DRPS ¶ 142.) Among this information was Synthes sales data, product introduction plans, profit and loss information, information related to the performance and ranking of Synthes Sales Consultants and territories/regions, information related to Synthes product development plans and product-specific promotions, information related to the compensation of Synthes’s Sales Consultants, and information related to Synthes pricing strategies and negotiations. (PSUF ¶¶ 143-44; DRPS ¶¶ MS-44.) Marotta also visited Synthes’s product development and manufacturing facilities, including Synthes’s facilities in Monument, Colorado and Paoli, Pennsylvania. (PSUF ¶ 145; DRPS ¶ 145.)
During his career with Synthes, Marotta earned in excess of $2.5 million. (PSUF ¶ 146; DRPS ¶ 146.) In addition to his compensation and relocation package, Marotta received business expense advances and tuition reimbursement for his MBA degree received in March 2010. (PSUF ¶¶ 148-50, 152; DRPS ¶¶ 148-50, 152.) According to Synthes’s employee policy manuals and the applications for tuition reimbursement, if an employee leaves Synthes within one year of completing the courses for which reimbursement was paid by Synthes, the employee is required to reimburse Synthes for any tuition reimbursement paid within the past year. (PSUF ¶ 153; DRPS ¶ 153.) Mar-otta acknowledged this policy. (PSUF ¶ 154; DRPS ¶ 154.) .
2. Defendant Brown’s Employment With Synthes
Brown was employed by Synthes from November 9, 1995 to August 2, 2010. (PSUF ¶ 159; DRPS ¶ 159.) Prior to commencing employment, Brown was required to execute an Employee Innovation and Non-Disclosure Agreement (“Brown NDA”). (PSUF ¶ 160; DRPS ¶ 160.) In addition, Brown received and reviewed Synthes’s Employee Policy Manuals and Sales Policy Manual, and Synthes’s Global Code of Business Conduct and Ethics and IT Security Policy. (PSUF ¶ 162; DRPS ¶ 162.) During his tenure with Synthes, Brown also received specialized training concerning the trauma industry, product segments, human anatomy, the treatment of traumatic fractures, and the application of trauma products in the surgical environment. (PSUF ¶ 164; DRPS ¶ 164.)
In April 2006, Brown received a promotion to Regional Manager of the Rocky Mountain Region, effective June 1, 2006. (PSUF ¶ 165; DRPS ¶ 165.) As a condition of his promotion,' Brown executed a Regional Manager Confidentiality, Non-Solicitation and Non-Competition Agreement (“Brown RM NCA”) on April 24, 2006. (PSUF ¶ 166; DRPS ¶ 166.) He then received a second promotion to Area Vice President of the Rocky Mountain Area effective January 1, 2008, a condition of which required execution of an Area Vice President Confidentiality, Non-Solicitation and Non-Competition Agreement (“AV NCA”). (PSUF ¶¶ 167-68; DRPS ¶¶ 167-68.)
During his employment with Synthes, Brown had regular and direct contact with Synthes’s customers and became intimately familiar with their business needs. (PSUF ¶ 170; DRPS ¶ 170.) In addition, he had access to Synthes’s confidential, sensitive, proprietary, and trade secret information. (PSUF ¶ Í71; DRPS' ¶ 171.)
Around the same time that Marotta and Powell tendered their resignations from Synthes on March 15, 2010, • Brown requested and obtained a transfer to a lower level position with Synthes as Regional Manager of the Lone Star Region of Texas, effective April 1, 2010. (PSUF ¶ 174; DRPS ¶ 174.) In close proximity to his transfer, Brown contacted Synthes Human Resources to inquire into the effect of his AVP NCA after taking the position as Regional Manager in Texas and whether a Regional Manager Non-Competition Agreement would supersede his AVP NCA. (PSUF ¶ 175; DRPS ¶ 175.) Synthes indicated that if Brown signed a Regional Manager Non-Competition,' Agreement for this new position in Texas, his AVP NCA would remain in effect. (Id.)
3. Defendant Powell’s Employment With Synthes
Defendant Powell applied to Synthes on March 11, 2004, without any background in the orthopedic medical device industry. (PSUF ¶ 176; DRPS ¶ 176.) On March 18, 2004, Powell accepted a position as a Territory Assistant in Synthes’s Trauma division based in the Great Lakes West Territory in the area of Chicago, Illinois. (PSUF ¶ 177; DRPS ¶ 177.) In connection with his hiring, Powell executed an Employee Innovation and Non-Disclosure Agreement (“Powell NDA”). (PSUF ¶ 178; DRPS ¶ 178.) Powell also received and reviewed Synthes’s Employee Policy Manual and amended. Employee Policy Manual, Sales Policy Manual, Global Code of Business Ethics, and IT Security Policy. (PSUF ¶ 179; DRPS ¶ 179.)
In September 2004, Synthes promoted Powell to Associate Sales Consultant and, in June 2006, to Sales Consultant for the' territory covering Vail, Colorado. (PSUF ¶ 180; DRPS ¶ 180.) As part of his promotion, Powell reviewed and executed a Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreement on June 1, 2006. (“Powell SC NCA”). (PSUF ¶ 181; DRPS ¶ 181.) One of Powell’s key responsibilities as a Sales Consultant was to build relations with surgeons, operating room personnel, and other key hospital personnel. (PSUF ¶ 183; DRPS ¶ 183.) Powell reported directly to Marotta during the time period when Mar-otta was Regional Manager for the Rocky Mountain Region. (PSUF ¶ 187; DRPS ¶ 187.)
During his tenure with Synthes, Powell earned approximately $300,000 in 2008, and just over half of that in 2009. (PSUF ¶ 188; DRPS ¶ 188.)' Synthes also paid over $34,000 in tuition reimbursement in connection with the MBA degree Powell obtained from the University of Denver while employed by Synthes. (PSUF ¶ 189; DRPS ¶ 189.) Powell completed his MBA program in August 2010. (PSUF ¶ 190; DRPS ¶ 190.) Powell was under the same tuition reimbursement policy as Marotta and acknowledged that he would have to reimburse Synthes for any tuition if he left within one year of completing the courses for which reimbursement was paid by Synthes. (PSUF ¶¶ 191-92; DRPS ¶¶ 191-92.)
On March 15, 2010, Powell tendered his resignation to his direct supervisor, Marot-ta. (PSUF ¶ 197; DRPS ¶ 197.) Prior to that time, Powell had'given his. resume to Marotta for other positions within Synthes. (PSUF ¶ 198; DRPS ¶ 198.) Ultimately, Powell was offered employment with Sono-ma Orthopedic Products, Inc., on February 25, 2010. (PSUF ¶ 199; DRPS ¶ 199.) He accepted the offer on March 1, 2010, and signed an employment agreement with Sonoma on March 15, 2010. (PSUF ¶ 200; DRPS ¶ 200.) Powell then disclosed to Synthes that he would be joining a competitor. (PSUF ¶ 201 DRPS ¶ 201.) In turn, Synthes sent a letter to Powell, on March 25, 2010, enclosing copies of the Powell SC NDA and Powell NDA, and indicating, in part, as follows:
Dear Chaun,
I am writing to remind you of our continuing obligations to Synthes under the Confidentiality, Non-Solicitation and Non-Competition Agreement (“Non-competition Agreement”) that you signed June 1, 2006 and the Innovation and Non-Disclosure Agreement (“NonDisclosure Agreement”) that you signed on March 14, 2004. Copies of these Agreements are enclosed for your reference.
The Agreements prohibit you from disclosing Synthes’ or its customers’ confidential and proprietary information to any competitor or third party at any time. They also prohibit you from using such information for any purpose after leaving Synthes The Non-Competition Agreement also prohibits you from disclosing Synthes’ or its customers’ confidential and proprietary information to any competitor or third party at any time. It also prohibits you from using such information for any purpose after leaving Synthes. The Non-Competition Agreement also prohibits you, for a period of one-year following your employment with Synthes, from soliciting the prospects or customers or their affiliates with whom you had contact for Synthes. You are similarly prohibited from soliciting or hiring any Synthes employee to work elsewhere. Finally, you are required to return all materials that belong to Synthes immediately upon the termination of your employment. If you have not done so already, you should talk to your supervisor about returning these materials.
(PSUF ¶ 202; DRPS ¶ 202; Pis.’ Appx. 113.) On the same day, Synthes sent a letter to Sonoma Orthopedic Products, Inc., which enclosed copies of the Powell SC NCA and Powell NDA, and stated, in part, as follows:
Dear Sir or Madam:
You should be made aware that one of your newly hired employees, Charles (Chaun) Powell, was recently employed by our company, Synthes (USA), and had signed an “Employee Innovation and Non-Disclosure Agreement” and a “Non-Competition Agreement” with us, in which he assumed certain legal obligations that extend to his subsequent employment activities. A copy of the Agreements, signed by Chaun, is enclosed for your reference.
The “Employee Innovation and NonDisclosure Agreement” prohibits Chaun from disclosing Synthes’ or its Customers’ confidential and proprietary information, as defined in the agreement, to any competitor or third party at any time and from using such information for any purpose after leaving Synthes. Such information or knowledge would include, but not limited to, any or all product information gained as a result of his participation in our product technology, project information, manufacturing methods, technology, reports or reporting systems, product development process, test market activities, Sales Meetings and/or Annual Meetings, as well as any other proprietary information to which they have had access.
The “Non-Competition Agreement” also prohibits Chaun, for a period of one-year following his employment with Synthes, from soliciting the prospects or customers or their affiliates with whom he had contact for Synthes.
Any violation of the “Employee Innovation and Non-Disclosure Agreement” is also a violation of the Federal Uniform Trade Secrets Act which makes illegal any misappropriation or disclosure of Trade Secrets.
(PSUF ¶ 203; DRPS ¶203; Pis.’ Appx. 115.)
Powell began his employment with So-noma Orthopedic Products, Inc. as a Trauma Sales Representative on March 15, 2010. (PSUF ¶ 204; DRPS ¶ 204.) That employment included a three-month guarantee of $10,000 per month. (PSUF ¶ 205; DRPS ¶ 205.) On August 2, 2010, Powell tendered his resignation to Sonoma Orthopedic Products, Inc., to take effect on September 1, 2010. (PSUF ¶ 206; DRPS ¶ 206.)
4. Trafka’s Employment with Synthes and Maynum Tool
Synthes offered Trafica a position as a manufacturing engineer at Synthes’s Monument, Colorado facility on May 29, 1998. (PSUF ¶ 207; DRPS ¶ 207.) In connection with her employment, Trafica executed an Employee Innovation and Non-Disclosure Agreement and reviewed Synthes’s Employee Policy Manual. (PSUF ¶¶ 208-09; DRPS ¶ 208-09.) As a manufacturing engineer at Monument, Trafka’s duties were to create aid to manufacturing processes and then document those manufacturing processes. (PSUF ¶ 211; DRPS ¶ 211; Pis.’ Appx. 39, Dep. of Victoria Trafica (“Trafica Dep.”), 44:15^4:1, June 12', 2013.) In that role, she worked directly with, both product development engineers and quality control engineers. (PSUF ¶ 212; DRPS ¶ 212; Trafica Dep. 48:9-49:14.) In April or May of 2001, Trafica resigned from Synthes. (PSUF ¶ 213; DRPS ¶ 213.)
From May 2005 until December 2010, Trafica was employed by Magnum Tool (“Magnum”). (PSUF ¶ 214; DRPS ¶ 214.) Magnum was a vendor used by Synthes for certain manufacturing products. (PSUF ¶ 218; DRPS ¶218.) At Magnum, Trafica held positions as project engineer, engineering manager, senior project development engineer, and International Standards Organization manager. (PSUF ¶ 215; DRPS ¶ 215.) During this time, Trafica agreed to maintain the confidentiality of Synthes’s proprietary and confidential information accessible to Magnum employees in connection with Magnum’s vendor relationship with Synthes. (PSUF ¶ 219; DRPS ¶ 219.) Indeed, she personally signed an agreement on behalf of Magnum, providing that:
The Parties agree that any business and technical information, including but not limited to volume, forecasts, drawings, specifications, formulae and manufacturing processes, whether marked or unmarked, verbal or written, provided by either Party are to be considered proprietary and confidential, and are to be treated in a confidential manner by both the supplier and Synthes.
It is further understood that duplication or disclosure of such information to a third party without written permission of the disclosing party is prohibited. This information and any material supplied by either Party remain the property of the disclosing Party and shall be returned in their entirety upon request.
(PSUF ¶ 220; DRPS ¶ 220; Pis.’ Appx. 122.) During Trafka’s employment with Magnum, she also entered into additional non-disclosure agreements with Synthes. (PSUF ¶ 221; DRPS ¶ 221.)
In connection with her employment with both Synthes and Magnum, Trafka was privy to information about Synthes’s specifications for raw materials, machining and manufacturing of product, the finishing of Synthes products, and the inspection of Synthes products. (PSUF ¶ 222; DRPS ¶222.) She was also given information about how and where Synthes stores its product drawings and how and where Synthes stores specifications related to raw materials, machining and manufacturing, finishing, and inspection. (PSUF ¶ 223; DRPS ¶223.) Finally, Trafka admitted that she had access to Synthes specifications and information regarding raw materials, machining, manufacturing, finishing, and inspection. (PSUF ¶ 224; DRPS ¶ 224.)
C. Written Obligations of the Parties and Other Individuals
1. Synthes Written Obligations
a. Contractual Obligations
Under Synthes’s employee policies, “All employees are required to sign an Employee Innovation and Non-Disclosure agreement prior to employment.” (PSUF ¶¶ 225-26; DRPS ¶¶ 225-26.) In addition, Non-Competition Agreements are required as a condition of employment for all new Sales Consultants and other positions which may have access to proprietary and/or confidential business information. (PSUF ¶¶ 227-28; DRPS ¶¶ 227-28.) Further, in connection with a promotion, Synthes also requires employees, such as Regional Managers, to execute Synthes’s Confidentiality, Ñon-Solicitation, and Non-Competition Agreements. (PSUF ¶ 229; DRPS ¶ 229.)
Marotta’s Regional Manager Non-Competition Agreement (“RM NCA”) required that he acknowledge the following:
I acknowledge that: (1) Synthes (U.S.A.), its partners, and its and their parents, affiliates, subsidiaries, divisions, and related companies or entities, including but not limited to Synthes, Inc., Synthes Spine Company, L.P., Synthes Maxillofacial, Synthes North America, Inc., Spine Solutions, Inc., SYTH, Inc. and Norian Corporation (collectively referred to herein as “Synthes”), are engaged in the business of developing, designing, manufacturing, and selling surgical, medical and veterinary implants, medical biomaterial and endoscopic technologies, products and services in connection with osteosynthe-sis, musculoskeletal, maxillofacial and spine surgery, including, but not limited to, compression plates and screws, in-termedullary nails, external fixation devices, percutaneous devices, cranio-facial implants, mandible implants, spinal implants and screws, surgical instruments, osteobiologic and disc replacement products, and minimally invasive and endoscopic products (the “Business”); (2) the Business encompasses a broad range of technologies, products and services that Synthes now provides and may in the future develop internally or obtain through acquisitions, merger, sub-contracting or otherwise; (3) Synthes is in a highly competitive industry; (4) Synthes invests substantial time, money, and effort, on an ongoing basis, to train its employees with specialized skill and knowledge unique to Synthes and its Business, to develop technologies, products and services for the Business, to develop and maintain a proprietary data base of prospects, to maintain and expand its customer base, and to improve and develop its technologies, products and services; (5) from the outset of and during my employment with Synthes, I have had and will. continue to have access to, receive, learn, develop and/or conceive technical, customer, prospect, financial or other information that is proprietary and/or confidential to Synthes; (6) this information must be kept in strict confidence to protect Synthes’ Business and maintain its competitive position in the marketplace, and this information would be useful to Synthes’ existing and potential competitors for indefinite periods of time; (7) from the outset of and during my employment with Synthes, I have had and will continue to have access to and will be required to maintain, supervise, develop and initiate customer relationships and goodwill that are valuable to Synthes and which it has a legitimate interest in protecting; (8) Synthes would be irreparably harmed by my subsequent work with, for or as a competitor 'of Synthes, in an executive, managerial, marketing, sales, technical, administrative, or product development capacity, due to the possibility that there would be inadvertent or other disclosures of Synthes’s proprietary and/or confidential information or that there would be improper intererence with its valuable customer relationships and goodwill; (9) I acknowledge that my promotion to Regional Manager constitutes adequate consideration for signing this agreement and that, as further consideration for this agreement and the restrictions contained herein, I acknowledge that I have been given access to confidential, proprietary and trade secret information of Synthes; and (10) the restrictions in this, agreement are reasonable and necessary to protect Synthes’ legitimate business interests.
(PSUF ¶ 230; DRPS ¶230; Pis.’ Appx. 68.) This language is typical of many of the other NCA’s signed by Synthes employees, including those of Brown and Powell. (PSUF ¶ 231 (citing similar agreements).) These agreements also specified what constituted confidential and proprietary information, including information concerning: (1) the identity of customers and prospects, their specific requirements, and their names, addresses, and telephone numbers; (2) prices, renewal dates, and other detailed terms of customer and supplier contracts and proposals; (3) pricing policies, methods of delivering services and products, marketing and sales strategies, product know-how, product technology, and product development strategies; (4) physical security systems, access control systems, network, and other equipment designs; (5) employment and payroll records; (6) forecasts, budgets, and other non-public financial information; (7) product performance information, product technical information, and product know-how; and (8) expansion plans, management policies, and other business strategies and policies. (PSUF ¶ 232; DRPS ¶ 232; Pis.’ Appx. 49, 68, 98,104.)
Under these agreements, Marotta, Brown, and Powell agreed that, upon termination of their employment with Synthes, they would immediately return “all correspondence files, business card files, customer and prospects lists, price lists, product lists, software, manuals, technical data, forecasts, budgets, notes, electronically stored information or data, and other materials that contain any of this information.” (PSUF ¶ 233; DRPS ¶ 233.) The agreements indicated that the provisions applied “even to information of this type that is developed or conceived by me, alone or with others, at Synthes’ instruction or otherwise” and that “these provisions apply to all information I may receive that is confidential and/or proprietary to any customer or other person or entity who does business with Synthes.” (PSUF ¶ 234; DRPS ¶ 234; Pis.’ Appx. 49, 68, 98,. 104.)
Under Marotta’s, Brown’s, and Powell’s and Employee Innovation and Non-Disclosure Agreements (“NDA-s”), the three individuals agreed to the following:
... to disclose and assign to SYNTHES as its exclusive property, all inventions and technical or business innovations, including computer software developed or conceived by me solely or jointly with others on company time or on my own time during the term of my employment, (1) that are along the lines of the businesses, work or investigations of SYNTHES or its affiliates to which my employment relates, or as to which I may receive information due to my employment, or (2) that result from or are suggested by any work which I may do for SYNTHES or (3) that are otherwise made through the use of SYNTHES time, facilities or materials ...
... upon any termination of my employment to deliver to SYNTHES promptly all items which belong to SYNTHES or which by their nature are for the use of SYNTHES employees only, including, without limitation, all written and other materials which are of a secret or confidential nature relating to the business of the Company or its affiliates ...
... not to use, publish or otherwise disclose (except as my SYNTHES duties may require) either during or subsequent to my employment, .any secret or confidential information or data of SYNTHES or any information or data of others, such as, but not limited to, sales dollars or units, product technology or product development, project information, manufacturing methods or technology, reports or reporting systems, which SYNTHES is obligated to maintain in confidence.'
(PSUF ¶ 237; DRPS ¶237; Pis.’ Appx. 52, 96, 100.) Synthes employees Victoria Trafka, Chance Leonard, Sean North, Brennen Warren, Preston Baus, Brian Hahn, and Craig Lynn had similarly-worded obligations under their respective Employee Innovation and Non-Disclosure Agreements. (Pis.’ Appx. 118, 126, 127, 128, 129, 130, 131.) Baus also maintained an additional confidentiality and non-disclosure obligation in connection with his promotion within Synthes to Market Development Manager in Solothurn, Switzerland, as follows:
The Employee shall not, during the term of his employment and thereafter disclose to any party of use for his own benefit any information concerning the business of the Company or any of its affiliated companies, which have become known to the Employee. “Information about the business” includes, without limitation, all business, organization and technical knowledge, know-how, proprietary or confidential information, names or addresses of customers of the Company or any of its affiliated companies and any other information which is known only to a limited number of persons and which is not intended to become known outside of the Company or any of its affiliated companies.
All written and other record and all tangibles concerning the Company or any of its affiliated companies and their business which are in the possession of the Employee shall be carefully kept and shall be immediately returned to the Company upon its request, and in any case upon termination of the employment.
(Pis.’ Appx. 132.)
Under their respective Sales Consultant Non-Competition Agreements (“SC NCA”), Marotta and Powell agreed as follows:
I will not, for a period of one year after my employment with Synthes terminates for any reason, solicit or contact, directly or through others, for the pur- ■ pose of competing or interfering with any part of Synthes’ business, (1) any customer of Synthes that I solicited at any time during the last three years of my employment; -(2) any prospective customer of Synthes that received or requested a proposal or offer from me on behalf of Synthes at any time during the last three years of m employment; or (3) any customer or prospective customer of Synthes for which I had any responsibility, directly or indirectly, at any time during the last three years of my employment ...
I agree I will not, for a period of one year after my employment terminates for any reason, work for (as an employee, consultant, contractor, agent or representative) any competitor of Synthes in the territory or territories that I am now, or have been responsible for at any time during the last year of my employment with Synthes.
(PSUF ¶ 240; DRPS ¶ 240; Pis.’ Appx. 49, 104.) “Competitors” as stated in the SC NCAs, were deemed to be “any persons or entities who now, or in the future, sell, or intend to sell, orthopedic, bone fixation, maxillofacial, medical, endoscopic and/or spinal implant devices or instrumental technologies, products, or services.” (PSUF ¶ 241; DRPS ¶241; Pis.’ Appx. 49, 104.) Again, Synthes employees Colin Brown and Brennen Warren had similarly-worded obligations in their own Confidentiality, Non-Solicitation, and Non-Competition Agreements. (Pis.’ Appx. 133, 135.)
Upon his promotion to Regional Manager, Marotta again agreed to certain non-competition provisions in his RM NCA, as follows:
NO CONTACT WITH OR SOLICITATION OF CUSTOMERS & PROSPECTS:
I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not solicit, contact, or provide services to (or attempt to do any of the foregoing), directly or indirectly, for the purpose or effect of competing or interfering with any part of Synthes’ Business: (1) any customer of Synthes within my assigned territory; (2) any Customer of Synthes that I contacted, solicited, received compensation on sales, to whom I provided coverage, or in any way supported or dealt with at any time during the last two years of my employment; (3) any prospective Customer of Synthes that I contacted, for whom I had coverage responsibility, or who received or requested a proposal or offer from me on behalf of Synthes at any time during the last two years of my employment; (4) any existing or prospective Customer of Synthes for which I had any direct or indirect responsibility at any time during the last two years of my employment ...
NO SOLICITATION OR HIRING OF EMPLOYEES:
Pagree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not directly or indirectly, (1) solicit, induce, or encourage any employee of Synthes to leave his/her employment with Synthes, (2) offer any employee of Synthes employment elsewhere, (3) participate in the recruitment of any employee of Synthes to work elsewhere, or (4) hire any employee of Synthes to work elsewhere.
NO COMPETITION IN SAME REGION:
I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not, directly or indirectly, compete in my former Region with Synthes’ Business. This means that I will not work for or be involved in the Business of any Competitor of Synthes in an executive, managerial, marketing, sales, technical, administrative or product development capacity, whether as an owner, principal, partner, employee, consultant, contractor, agent or representative.
(PSUF ¶ 243; DRPS ¶ 243; Pis.’ Appx.' 68.) The term “Customer” included hospitals, hospital employees that influenced medical device purchasing decisions “including material management, operating room, sterile processing, and related personnel; and physicians who may use the devices, together with their partners, employees, and staff nurses.” (PSUF ¶ 245; DRPS ¶ 245; Pis.’ Appx. 68.)
Synthes employees Chance Leonard, Colin Brown, Mike Saunders, Sean North, and Andy White had similarly-worded obligations under their respective Regional Manager Confidentiality, Non-Solicitation, and Non-Competition Agreements. (Pis.’ Appx. 134, 136, 137, 139.) Likewise, Synthes employees Josh Gorman, Jason Fowler, Brian Hah, and Preston Baus had similarly-worded obligations under their respective Sales Consultant Confidentiality, Non-Solicitation, and Non-Competition Agreements, with the exception of the non-competition covenant limiting competition in their former Sales Consultant territory, as opposed to a regional manager region. (Pis.’ Appx. 140,141,142,143.)
Under his Area Vice-President Non-competition Agreement (“AVP NCA”), Brown agreed to similar prohibitions on a national scale, as follows:
NO CONTACT WITH OR SOLICITATION OF CUSTOMERS & PROSPECTS
I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not solicit, contact, or provide services to (or attempt to do any of the foregoing) directly or indirectly, for the purpose or effect of competing or interfering with any part of Synthes’ Business: (1) any Customer of Synthes within the United States; (2) any Customer of Synthes that I contacted, solicited, received compensation on sales, to whom I provided coverage, or in any way support or dealt with at any time during the last two years of my employment; (3) any prospective Customer of Synthes that I contacted, for whom I had coverage responsibility, or who received or requested a proposal or offer from, me on behalf of Synthes at any time during the last two years of my employment; (4) any existing or prospective Customer of Synthes for which I had any direct or indirect responsibility at any time during the last two years of my employment ...
NO SOLICITATION OR HIRING OF EMPLOYEES:
I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not directly or indirectly, (1) solicit, induce, or encourage any employee of Synthes to leave his/her employment with Synthes, (2) offer any employee of Synthes employment elsewhere, (3) participate in the recruitment of any employee of Synthes to work elsewhere, or (4) hire any employee of Synthes to work elsewhere.
NO COMPETITION IN SAME REGION:
I agree that, during my employment and for a period of twelve (12) months after my employment with Synthes terminates for any reason, voluntary or involuntary, I will not, directly or indirectly, compete with Synthes’ Business within the United States. This means that I will not work for or be involved in the Business of any Competitor of Synthes in an executive, managerial, marketing, sales, technical, administrative or product development capacity, whether as an owner, principal, partner, employee, consultant, contractor, agent or representative.
(PSUF ¶ 251; DRPS ¶ 251; Pis.’ Appx. 98.)
All of the Synthes Confidentiality, Non-Solicitation, and Non-Competition Agreements cited above, including Marotta’s SC NCA and RM NCA, Brown’s AVP NCA, and Powell’s SC NCA, have choice of law provisions under which Pennsylvania law is to govern the agreements. (PSUF ¶ 257; DRPS ¶ 257.)
b. Employment Policies and Obligations
In connection with his employment at Synthes, Marotta received the Synthes Employee Policy Manual, the Global Code of Business Ethics, the Synthes Sales Policy Manual, and Synthes’s IT Security Policy, and, in 2009, Marotta received and reviewed Synthes’s amended Employee Policy Manual. (PSUF ¶259; DRPS ¶ 259.) Marotta was trained on all of these policies. (PSUF ¶¶ 261, 263, 265, 267; DRPS ¶¶ 261, 263, 265, 267.) Marot-ta generally understood, based on these policies, that computer systems belonged to Synthes, that he was expected to operate in accordance with the terms of the Employee Policy Manuals, that he understood that he had an obligation to abide by Synthes’s rules as an employee of Synthes, and that, as a Regional Manager, he should enforce Synthes’s rules. (PSUF ¶¶ 269-72; DRPS ¶¶ 269-72.)
2. Emerge'’s Written Contracts and Policies
Upon joining Emerge, Marotta executed an Executive Employment Agreement. (PSUF ¶ 273; DRPS ¶273.) Marotta’s Executive Employment Agreement contained, among others, the following relevant provisions:
6. Confidential Information.
6.1 Company Information. Except for the benefit of Company, Executive agrees at all times ... to hold in strictest confidence, and not to use, or to disclosure to any person, firm or corporation without written authorization ... any Confidential Information (as defined below) of the Company. For purposes of this Agreement
“Confidential Information” is defined as any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information ...
6.2 Former Employer Information.
Executive agrees that he will not, during his employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer or other person or entity and that he will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entiiy. ' The Company and Executive acknowledge that Executive is subject to certain confidentiality and competition restrictions with his former employer under the terms of a confidentiality, non-solicitation and non-competition agreement with his former employer (the “NCA Agreement”). Executive will not and will not cause Company to breach the NCA Agreement and shall indemnify the Company from any costs and expenses which may be incurred by the Company as a' result of a claimed breach of the NCA Agreement.
(Pis.’ Appx. 146 (emphasis in original).) In addition, this Employment Agreement contained its own non-competition and confidential information provisions. (Id.)
Emerge also required its employees-including Marotta and Powell-to sign'Confidential Information and Innovations and Proprietary Rights Assignment Agreements. (PSUF ¶ 276; DRPS ¶ 276.) Aside from provisions'regarding the protection of Emerge proprietary information, the document contained the following provision:
1.4 No Improper Use of Information of Prior Employers and Others. During my employment or business relationship with the Company I will not improperly use or disclose any confidential information or trade secrets, if any, of any former employer or any other person to whom I have an obligation of confidentiality, and I will not bring onto the premises of the Company any unpublished documents or any property belonging to any former employer or any other person to whom I have an obligation of confidentiality unless consented to in writing by that former employer or person. I will use in the performance of my duties only information which is generally known and used by persons with training and experience comparable to my own, which is common knowledge in the industry or otherwise legally in the public domain, or which is otherwise provided or developed by the Company....
(Pis.’ Appx. 147.)
3. Vendors’ Written Contractual Obligations to Sgnthes
Synthes entered into Supplier Quality Agreements and Non-Disclosure Agreements with the following vendors for the provision of the vendors’ goods or services to Synthes: Orchid Unique, Orchid Stealth, Orchid Bio-Coat, LLC, Magnum Tool Company, Inc., and Precision Edge Surgical Product Company, LLC. (Pis.’ Appx. 148, 149.) Each of the Supplier Quality Agreements required vendors to adhere to certain Synthes-specific requirements regarding' the manufacture of Synthes products. (Pis.’ Appx. 148.) The Non-Disclosure Agreements required the vendors not to disclose any “Confidential Information” of Synthes. (Pis.’ Appx. ' 149.)
4. SIMS and Customers’ Written Contractual Obligations to Synthes
Synthes’ Inventory Management Systems (“SIMS”) are cabinets which store Synthes products. (PSUF ¶ 283; DRPS ¶ 283.) The SIMS