427 Mass. 46 | Mass. | 1998
The plaintiff, Warner-Lambert Company (Warner-Lambert), brought an action against Execuquest Corporation for injunctive relief and damages, alleging unfair and deceptive trade practices, G. L. c. 93A, §§ 2 and 11,
1. For purposes of reviewing disposition of a motion to dismiss, “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor, are to be taken as true.” Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995). In evaluating the allowance of a motion to dismiss, we are guided by the principle that a complaint is sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It is a “relatively light, burden to be carried in maintaining a complaint.” Gibbs Ford, Inc. v. United Truck Leasing Corp., 399 Mass. 8, 13 (1987). We summarize the facts alleged from this perspective.
Warner-Lambert, a Delaware corporation, regularly conducts business in Massachusetts. Execuquest is a Massachusetts corporation that provides executive employee search services. Over several days in November, 1996, Execuquest agents made numerous telephone calls to various Warner-Lambert offices throughout the United States. The Execuquest agents misrepresented themselves by using various aliases and titles, including misrepresenting themselves as employees in Warner-Lambert’s corporate headquarters. The Execuquest callers requested information from the various Warner-Lambert offices, including names, addresses, telephone numbers, and positions of managerial employees and of minority and female sales representatives. Warner-Lambert employees disclosed some of this information to the callers.
On December 10, 1996, Warner-Lambert filed its complaint. On February 25, 1997, the judge granted Execuquest’s motion to dismiss pursuant to rule 12 (b) (6) for failure to set forth any allegations as to damages and for lack of standing to sue for invasion of privacy under G. L. c. 214, § IB. Warner-Lambert appealed from the judgment of dismissal, and we transferred the case to this court on our own motion.
2. The judgment of dismissal fails to make any distinction
In order to succeed on the G. L. c. 93A claim, the plaintiff must prove that it suffered “loss of money or property.” G. L. c. 93A, § 11. Alternatively, if it has not suffered any loss of money or property, it may obtain an injunction “if it can be shown that the aforementioned unfair method of competition, act or practice may have the effect of causing such loss of money or property.” Id. Thus, to succeed in its request for injunctive relief, Warner-Lambert need not already have suffered loss of money or property due to Execuquest’s alleged unfair and deceptive conduct. See Advanced Sys. Consultants Ltd. v. Engineering Planning & Mgt., Inc., 899 F. Supp. 832, 833 (D. Mass. 1995) (injunction pursuant to G. L. c. 93A granted after plaintiff had “nipped the scheme in the bud,” and but for plaintiff’s action, “there is little doubt but that it would have suffered extensive damages”). The issue then is whether Execuquest’s acquisition of employee information constituted loss of property to Warner-Lambert or may have the effect of causing loss of money or property.
As to the first of these questions, we have never decided whether a list of employees and associated information is property protectible against misappropriation. In one of our cases, which frequently has been cited as a seminal case on
Having in mind these precedents, we are unable to conclude as a matter of law that the information acquired by Execuquest is not proprietary business information entitled to protection. A factual inquiry is required to determine that question. The
3. Warner-Lambert’s claim for invasion of privacy under G. L. c. 214, § IB,
We vacate the dismissal of the G. L. c. 93A and deceit claims, affirm the dismissal of the privacy claim, and remand the case for further proceedings consistent with this opinion.
So ordered.
General Laws c. 93A, § 2, declares unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . .” General Laws c. 93A, § 11, creates a cause of action for persons engaged in business who are injured by conduct declared unlawful in § 2.
On appeal, Execuquest makes a single argument to support the judgment of dismissal on both the G. L. c. 93A and the deceit claims. Both claims require proof of damages. See Weeks v. Harbor Nat’l Bank, 388 Mass. 141, 144 n.2 (1983) (G. L. c. 93A claim); J.R. Nolan & L.J. Sartorio, Tort Law § 141 (2d ed. 1989) (identifying elements of intentional tort of deceit as “the misrepresentation of an existing material fact, made with knowledge of the falsity of the misrepresentation or with recklessness, intending that the plaintiff rely and with resulting damage from the reliance”). We will evaluate the sufficiency of the damages element common to both claims by focusing on the G. L. c. 93A claim.
See, e.g., Sandlin v. Johnson, 141 F.2d 660, 661 (8th Cir. 1944); Herold v. Herold China & Pottery Co., 257 F. 911, 913 (6th Cir. 1919); Associated Press v. International News Serv., 245 F. 244, 247 (2d Cir. 1917), aff'd, 248 U.S. 215 (1918).
In that case we stated that “[t]he law puts its imprimatur on fair dealing, good faith, and fundamental honesty. Courts condemn conduct which fails to reflect these minimum accepted moral values by penalizing such conduct whenever it occurs.” USM Corp. v. Marson Fastener Corp., 379 Mass. 90, 104 (1979), S.C., 392 Mass. 334 (1984).
These factors are (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and its competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835, 840 (1972), S.C., 377 Mass. 159 (1979), citing Restatement of Torts § 757 comment b (1939).
The statute provides in pertinent part that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.” G. L. c. 214, § IB.
For the first time at oral argument, Warner-Lambert raised a theory of representational standing by which it could assert the privacy rights of its employees. The theory is not discussed in the appellate briefs, nor was it raised with the Superior Court judge. We do not consider it here. Com