Poller v. Bioscrip, Inc.

974 F.Supp.2d 204

Judy POLLER, Plaintiff,

v.BIOSCRIP, INC., Defendant.

No. 11 Civ. 1675(JPO).

United States District Court, S.D. New York.

Sept. 25, 2013.

James P. Milbrand, Hiscock & Barclay, Buffalo, NY, Brian E. Whiteley, Carolyn Anne Marcotte, Hiscock & Barclay, L.L.P., Boston, MA, for Plaintiff.

A. Michael Weber, Gregory Bertram Reilly, III, Robert Anthony Cirino, Littler Mendelson, P.C., New York, NY, for Defendant.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiff Judy Poller brought this declaratory judgment action against her former employer, BioScrip, Inc. (“BioScrip”), seeking a judgment declaring invalid and unenforceable a certain portion of the Restrictive Covenant Agreement (“RCA”) between the parties. BioScrip counterclaimed, asserting eleven claims against Poller and her new employer, third—party defendant American Outcomes Management, Inc. (“AOM”). AOM also asserts a counterclaim against BioScrip. Before the Court are Poller's motion for summary judgment on her declaratory judgment claim, Poller and AOM's motion for summary judgment on BioScrip's counterclaims, and BioScrip's motion for summary judgment on Poller's claim, three of its own counterclaims, and AOM's counterclaim. For the reasons that follow, the motions are granted in part and denied in part.

I. Background¹A. Factual Background

BioScrip is a company that provides pharmaceutical products and services across the United States. One such service is so-called “chronic care,” whereby patients receive various long-term treatments, often administered in their homes. BioScrip's chronic care business centers on intravenous immunoglobulin therapy (“IVIG”). IVIG is a blood product, containing immunoglobulin antibody, which is administered intravenously or subcutaneously, and is generally used in the treatment of patients suffering from neurological or immune deficiencies, or those receiving organ transplants. Poller was a salesperson for the chronic care aspect of BioScrip's business, and the bulk of her work involved IVIG.

AOM, a private company run by oncology physician Samuel Jampolis, also provides home infusion services, meaning the intravenous injection of medications, and primarily serves patients in New York, New Jersey, and Connecticut. AOM's home infusion services also focus on chronic care, and the principal home infusion service provided by AOM is IVIG, comprising 84% of AOM's business. Both AOM and BioScrip rely on salespersons, like Poller, to develop referral sources—primarily doctors—who, in turn, refer patients for chronic care.

Poller, currently a salesperson at AOM, has worked in the home infusion industry for over 18 years, and has been involved in pharmaceutical sales for over 24 years. Throughout her career, Poller has developed relationships with referral sources, primarily doctors, in the IVIG therapy industry. And while Poller asserts that she formed many of these relationships prior to joining BioScrip, BioScrip contends that no fewer than 85% of Poller's referral sources represent relationships that she developed after joining BioScrip.

In April 2002, Poller began work with ADIMA Scrip Solutions, whose then-parent—MIM Corporation—changed its name to BioScrip in 2005. Prior to her resignation in March 2011, Poller had worked for BioScrip as a salesperson for nine years, as an at-will employee. As a salesperson, she received commissions based on patient numbers and therapy sessions. BioScrip's Strategic Business Units President, Michael Saracco, notes that “[a]s a long-term Sales Representative[,] Poller represented over $12 million in revenue to BioScrip in the geographic region of New York and Long Island.” Saracco also contends that this revenue was generated by service to fewer than 200 patients. Accordingly, given the small number of patients and limited number of prescribing physicians, all parties agree that successful chronic care representatives, such as Poller, tend to be familiar with the treating doctors and nurses.

As a chronic care sales representative for BioScrip, Poller reached out to physicians who had patients requiring home infusion services and then would relay to BioScrip information obtained from doctors regarding to patients for whom IVIG would be provided in the home. While Poller claims that she identified all of her referral sources through publicly available information, such as medical directories in the New York City area, phone books, and internet searches, BioScrip contends that referral source information is identified through a variety of channels, some public and others not.

In January 2009, BioScrip provided Poller with the RCA, which conditioned future employment with BioScrip on acceptance of its terms. (Ex. B–2 ² “Your acceptance of the terms of this RC Agreement is a condition of your initial or continued employment with the Company.”). Whereas Poller states that she was threatened with termination by BioScrip and pressured into signing the agreement, BioScrip claims that no one threatened Poller, that she possessed the agreement for several months before signing it, and that she reviewed its contents with her attorney. In any event, Poller did sign the RCA on April 8, 2009.

The RCA included, inter alia, a Covenant Against Competition, which provided, in pertinent part: (1) a restriction on competition prohibiting Poller from participating in any “competing activities” in her territory for a period of one year with “competing activities” defined as “any activities that are the same as or similar in function or purpose to those you performed or supervised performance of on behalf of [BioScrip] in the two year period preceding your termination if such activities are being undertaken for the benefit of a business ... that provides a product or service that would disclose one or more of [BioScrip's] business opportunities ....”; and (2) a restriction on customer and employee solicitation, barring Poller from soliciting BioScrip customers, clients, or referral sources, during a period of two years following termination, “for the purpose of inducing or helping the Covered Customer to cease or reducing doing business for [BioScrip] or for the purpose of diverting business opportunities away from [BioScrip].” (Ex. 3 at ¶ 3.) The RCA also included a provision relating to confidential information, prohibiting Poller from using for her own “benefit or for the benefit of others ... all confidential and proprietary matters relating to [BioScrip] and the Business learned by [Poller]” during her employment. ( Id. at ¶ 4.) The RCA defined confidential information as, inter alia:

Information or compilations of information with respect to (i) the strategic plans, budgets, forecasts, intended expansions of product, service or geographic markets of the Company, (ii) sales figures, contracts, agreements, and undertakings with or with respect to customers, (iii) profit or loss figures, and (iv) customers, clients, suppliers, sources of supply and customer lists, and shall not disclose such Confidential Information to anyone outside of the company except with the Company's express written consent and except for Confidential Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of you or is received from a third party no under an obligation to keep such information confidential and without breach of this RC Agreement.

( Id.)

In February 2011, Poller met with AOM director, Dr. Jampolis, to discuss joining AOM. At that meeting, Poller told Dr. Jampolis that she planned to leave BioScrip, and engaged in a negotiation concerning her level of compensation. All parties agree that Dr. Jampolis told Poller that he thought AOM could address Plaintiff's compensation needs. On Thursday, March 4, 2011, AOM's attorneys, on Poller's behalf, filed—but did not serve on BioScrip—her declaratory judgment action against BioScrip in New York state court. (Ex. 1.) Also on March 4, Poller signed an employment agreement with AOM, although the “effective” date of the agreement was listed as March 7, 2011. (Ex. E–3.) This agreement includes an indemnification provision, by which AOM agrees to indemnify and hold harmless Poller for all liabilities arising from her “immediately preceding employer, BioScrip, Inc.” ( Id. at ¶ 9.) These obligations are wholly associated with Poller's “non-competition agreement and/or claims relating to the solicitation of clients, employees or business from Employee's immediately preceding employer.” ( Id.) Additionally, the AOM–Poller employment agreement includes a provision entitling Poller to her base salary of $160,000, even in the event of an injunction barring Poller from working for AOM. ( See id.; id. at ¶ 3.)

Poller prepared and signed a resignation letter to BioScrip on March 4, 2011, and she sent the letter to BioScrip by Federal Express on March 5, for delivery on Monday, March 7. Poller told one individual at BioScrip—the employee who handled her intake—about her departure on Sunday, March 6, 2011, but other than that, no one at BioScrip was aware of her departure until receiving her resignation letter on Monday, March 7.

It is undisputed that, over the course of the weekend of March 4–6, 2011, and during the week prior, Poller sent various work-related documents to her personal email account. While BioScrip asserts that this correspondence was for the purpose of utilizing the information in her new position at AOM, Poller contends that she frequently sent information to her personal email, as it was easier to work on her home computer, as opposed to her BioScrip-issued laptop. Poller notes that her direct supervisor, Sal Ralinelli, in fact had authorized the routine transfer of work-related documents to her home computer to facilitate printing.

BioScrip also contends that, in addition to the transfer of BioScrip-related information to her personal email, Poller downloadedinformation from her BioScrip...