Law360 (November 2, 2020, 6:12 PM EST) -- An Illinois federal judge on Monday granted Abbott Laboratories a temporary restraining order against a former marketing executive it alleges took trade secrets, including information related to its COVID-19 products, when he left the company for a similar role with a competitor.
U.S. District Judge Virginia Kendall said after arguments on the matter Monday that the circumstantial evidence Abbott presented was enough to warrant a two-week restraining order that will keep Jerome Clavel, its former vice president of global marketing, from starting a new position at Bio-Rad Laboratories and allow expedited discovery for Abbott to investigate what information was allegedly taken.
Based on that evidence, trade secrets have already been misappropriated, Judge Kendall said, pointing to Abbott's assertion that Clavel connected at least five USB devices on his work laptop the day he surrendered it to the company and forwarded to his personal email account documents containing confidential demand forecasts and market assumptions for an Abbott COVID-19 test.
Per the temporary restraining order, Clavel has 24 hours to turn over the USB storage devices and seven days to turn over personal emails, the judge said.
Rebecca Fitzpatrick of Kirkland & Ellis LLP, arguing for Abbott, told the judge the order was immediately necessary because Clavel was set to start a similar job this week at Bio-Rad, in violation of his employment agreement with Abbott.
Clavel repeatedly lied about taking a job elsewhere and refused to give passwords to his Abbott-owned devices before he left the company on Oct. 30, Fitzpatrick said. A forensic analysis of his work laptop also revealed he was forwarding emails containing Abbott's confidential information to himself, she said.
"It's unfortunate that we're here, but we feel Mr. Clavel left us no choice," Fitzpatrick said.
While at Abbott, Clavel's responsibilities included being part of the team dedicated to setting global strategy for the company's entire line of COVID-19 products, she said. He knew plans for what new products were coming and when; pricing strategies; demand and financial forecasts and targets; and ways Abbott planned to differentiate itself from competitors, Fitzpatrick said.
Abbott is being asked to "rely on his word," but Clavel lied to Abbott's human resources department about accepting the Bio-Rad job and lied in his exit interview when he claimed he didn't use USB storage devices, she argued.
But Clavel's attorney, Darlene A. Vorachek of Abrahamson Vorachek & Levinson, urged the court to allow corporate counsel for Abbott and Bio-Rad to work out a solution among themselves rather than issue an order, saying Clavel took pains to ensure the sanctity of Abbott's confidential information.
Clavel left Abbott because the work environment was abusive and negatively impacting his health, but he asked Bio-Rad to make clear in his offer letter that Abbott's confidential information would be preserved, Vorachek said. And Bio-Rad does most of its COVID-19 work in a division Clavel won't be involved in, she said.
What Abbott claims are lies "are in fact all truths," she said.
For example, when Clavel told human resources he hadn't taken a new job, he hadn't yet signed his offer letter from Bio-Rad — he did so later that day, after that conversation, Vorachek said.
While he did send things to his personal email, many employees mix together their personal and work emails on their various devices, Vorachek said. There was "no nefarious intent here, and Abbott offers nothing to the contrary," she said.
Clavel has since deleted Abbott documents on all his devices, Vorachek said, though she told the court that he missed three documents that she has since advised him not to delete in the interest of full disclosure.
"Largely, the claim of the impact or harm to Abbott was all theoretical: 'If he took this document, he could do this,'" Vorachek said. "There is nothing to suggest that Abbott's secrets are in fact in danger."
While Abbott frequently implements firewalls and guardrails when their employees leave to go to competitors, that arrangement requires those employees to be straightforward, Fitzpatrick said.
"Mr. Clavel did not do that. He did the opposite," she said.
A hearing has been set for after the temporary restraining order expires on Nov. 16.
Abbott Laboratories is represented by Rebecca Cauley Fitzpatrick of Kirkland & Ellis LLP.
Clavel is represented by Darlene A. Vorachek of Abrahamson Vorachek & Levinson.
The case is Abbott Laboratories v. Clavel, case number 1:20-cv-06466, in the U.S. District Court for the Northern District of Illinois.
--Editing by Daniel King.
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