The Gillette Co. v. Provost
AC 16-P-42
Mass. App. Ct. UMar 7, 2017Background
- Gillette sued four former employees and their new employer, ShaveLogic, alleging misappropriation of trade secrets and related claims tied to magnetic attachments and elastomeric pivot razor technology, and sought a constructive trust on a patent owned by ShaveLogic.
- ShaveLogic counterclaimed for intentional interference with business relationships and violations of G. L. c. 93A, alleging Gillette sent threatening prelitigation letters and filed suit to scare off investors and distribution partners.
- ShaveLogic submitted declarations (including from the individual defendants and its CEO) denying use of Gillette confidential information and showing prior public domain use of the general concepts at issue; Gillette submitted a single declaration from counsel asserting good-faith protection of IP.
- Gillette moved to dismiss the counterclaims under the Massachusetts anti‑SLAPP statute, G. L. c. 231, § 59H, and on the basis of the litigation privilege; the motion judge denied dismissal and allowed discovery to proceed.
- Gillette appealed interlocutorily; the Appeals Court reviewed whether (1) ShaveLogic met its burden under § 59H of showing Gillette’s petitioning activity was devoid of reasonable factual support and caused actual injury, and (2) whether the litigation privilege barred the counterclaims.
Issues
| Issue | Plaintiff's Argument (Gillette) | Defendant's Argument (ShaveLogic) | Held |
|---|---|---|---|
| Whether Gillette’s filing is protected petitioning activity under § 59H so as to warrant dismissal of counterclaims | Filing is petitioning activity; § 59H should dismiss counterclaims | Counterclaims are based on petitioning activity but Gillette’s claims were devoid of reasonable factual support and caused actual injury | Court: ShaveLogic met its burden by preponderance; anti‑SLAPP dismissal denied (counterclaims proceed) |
| Whether ShaveLogic proved "devoid of any reasonable factual support" for Gillette’s suit | Complaint had factual basis and alleges misuse of confidential info | ShaveLogic produced declarations, prior-public-domain evidence, and CEO documents showing independent development | Court: On the record, judge could reasonably find Gillette’s complaint lacked reasonable factual support |
| Whether ShaveLogic proved "actual injury" from Gillette’s petitioning activity | Prelitigation letters and suit were legitimate IP enforcement; no actionable injury | Lost investors and a distribution partner, and broken acquisition talks caused by letters/lawsuit | Court: Declarations sufficed at this stage to show actual injury; counterclaims may proceed |
| Whether the litigation privilege bars ShaveLogic’s counterclaims | Privilege covers communications preliminary to and during litigation and therefore bars claims based on those communications | Counterclaims seek to hold Gillette liable for conduct (filing a baseless suit), not for the content of statements; privilege should not shield abusive litigation conduct | Court: Privilege does not bar claims alleging conduct of filing a groundless suit; privilege protects statements, not alleged abusive conduct |
Key Cases Cited
- Van Liew v. Stansfield, 474 Mass. 31 (affirming anti‑SLAPP standards and burden shifting)
- Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156 (discussing § 59H scope and petitioning activity)
- Baker v. Parsons, 434 Mass. 543 (standard for proving lack of reasonable factual support under § 59H)
- Correllas v. Viveiros, 410 Mass. 314 (describing absolute litigation privilege and its scope)
- Sriberg v. Raymond, 370 Mass. 105 (litigation privilege covers statements preliminary to or during litigation)
- G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262 (groundless lawsuit can support interference and c.93A claims)