NuVasive, Inc. v. Day
1:19-cv-10800
D. Mass.Feb 18, 2021Background
- NuVasive sued former sales reps Timothy Day and Adam Richard alleging breach of proprietary-information / restrictive-covenant agreements (PIIAs) and, as to Day, tortious interference with NuVasive’s Sales Agreement with Rival Medical.
- Day was a long-time NuVasive sales rep who transitioned to Rival (the exclusive NuVasive distributor) and then left to work for competitor Alphatec in April 2019; Richard was hired by NuVasive in 2018, moved to Rival in Jan. 2019, and also joined Alphatec in April 2019.
- Both defendants signed NuVasive PIIAs (Delaware law) that barred disclosure of Proprietary Information and contained one-year post-termination non-solicit and non-compete covenants; Richard also signed a Rival PIIA (Mass. law) with similar terms and naming NuVasive as a third‑party beneficiary.
- NuVasive alleges defendants used NuVasive client contacts, product knowledge, and custom-instrument details at Alphatec to solicit or provide services to NuVasive customers (e.g., BIDMC, Brigham & Women’s, Drs. Glazer, Zaidi, Kwon).
- The court considered cross-motions for summary judgment: NuVasive sought liability rulings on remaining claims; Day and Richard moved to dismiss or for summary judgment on various counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Day tortiously interfered with NuVasive’s contract with Rival | Day, as an individual, induced Rival to breach/dissolve the Sales Agreement and improperly caused performance to stop | Day was indistinguishable from Rival (alter ego) or acted within corporate duties; conduct lacked improper motive or means | Court: Day’s motion granted; NuVasive failed to show improper motive/means actual malice required for corporate official — tortious interference dismissed against Day |
| Whether Day breached his PIIA non-compete and non-solicit covenants | Day used NuVasive Proprietary Information and client contacts at Alphatec and served as Alphatec’s primary contact for NuVasive customers | Day argued earlier that Alphatec was not shown to be a "Conflicting Organization" and his actions advanced legitimate competitive interests | Court: NuVasive entitled to partial summary judgment — Day breached both non-compete and non-solicit provisions and NuVasive was harmed |
| Whether Richard breached his PIIA(s) (NuVasive PIIA and Rival PIIA) | Richard provided recon reports, attended dinners and meetings with NuVasive surgeons, and contacted prior NuVasive customers on Alphatec’s behalf | Richard contends contacts were insufficient solicitation; argues Rival PIIA non-compete may be invalid under MNCA (no garden‑leave; presented after hiring) | Court: NuVasive entitled to summary judgment on breach — Richard used Proprietary Information and violated non-compete/non-solicit (NuVasive PIIA sufficient even if Rival PIIA issues exist); Richard’s summary judgment denied |
| Whether NuVasive established harm/causal connection from breaches | PIIAs acknowledge irreparable harm; record shows customers and surgeons reengaged with Alphatec after defendants’ contacts | Defendants argue damages speculative and contacts insufficient to show causation | Court: Sufficient evidence of harm and causal link for liability stage; damages to be determined later |
Key Cases Cited
- García-González v. Puig-Morales, 761 F.3d 81 (1st Cir. 2014) (summary-judgment standard and material-fact definition)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (nonmovant cannot rest on pleadings at summary judgment)
- G.S. Enter., Inc. v. Falmouth Marine, Inc., 410 Mass. 262 (1991) (elements of tortious interference with contract)
- Harrison v. NetCentric Corp., 433 Mass. 465 (2001) (party to a contract or alter ego cannot be held liable for intentional interference)
- Weiler v. PortfolioScope, Inc., 469 Mass. 75 (2014) (actual malice standard for corporate officials in interference claims)
- United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990) (improper means include threats, misrepresentations; absence undermines interference claim)
- VLIW Tech., L.L.C. v. Hewlett–Packard Co., 840 A.2d 606 (Del. 2003) (elements of breach of contract)
- Coll v. PB Diagnostic Sys., Inc., 50 F.3d 1115 (1st Cir. 1995) (breach-of-contract elements under Massachusetts law)