UNITED STATES DISTRICT COURT THE MIDDLE … - Vistakon... · BAUSCH & LOMB, INC., a New York...

H U N T O N & WI L L I A M S LLP

1 1 1 1 B R I C K E L L A V E . , S U I T E 2 5 0 0 , M I A M I , F L 3 3 1 3 1 • T E L E P H O N E ( 3 0 5 ) 8 1 0 - 2 5 0 0 • F A C S I M I L E ( 3 0 5 ) 8 1 0 - 2 4 6 0

UNITED STATES DISTRICT COURT THE MIDDLE DISTRICT OF FLORIDA

Jacksonville Division

Case No. 3:09-CV-176-J-32MCR

VISTAKON PHARMACEUTICALS, LLC, Plaintiff, v. BAUSCH & LOMB, INC., a New York Corporation, Defendant. ______________________________________/

AMENDED COMPLAINT (Injunctive Relief Sought)

Plaintiff VISTAKON® Pharmaceuticals, LLC (“VISTAKON®”), a corporation

organized under the laws of the State of Florida, having its principal place of business at

7500 Centurion Parkway, Jacksonville, Florida, 32256, by way of Amended Complaint

against defendant, says:

INTRODUCTION

1. This is a civil action seeking injunctive relief and damages against

defendant Bausch & Lomb, Inc. (“B&L”), a direct competitor of plaintiff. To prevent

immediate and irreparable harm, plaintiff seeks injunctive relief to stop the flagrant

pirating of plaintiff’s sales force by B&L and to prevent B&L from continuing its

intentional and unjustified efforts to induce plaintiff’s sales force to violate their

employee secrecy, non-competition and non-solicitation agreements (the “Agreements”).

Case 3:09-cv-00176-TJC-MCR Document 4 Filed 03/05/2009 Page 1 of 23

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2. B&L is attempting to expand its sales force in the United States by forty

(40) representatives in preparation for the April 2009 launch of its new ophthalmic (eye)

anti-bacterial product that will compete with plaintiff’s ocular anti-bacterial products.

This new product is B&L’s first and only branded ocular anti-bacterial product, which is

unlike B&L’s other products such as contact lenses and contact lens solutions. Thus,

B&L’s current sales force does not have experience marketing and selling ocular anti-

bacterial products.

3. Plaintiff’s sales force, on the other hand, has significant experience

regarding such products because plaintiff has marketed and sold ocular anti-bacterial

products for years. As a result, in the past two to three weeks, plaintiff is aware that

B&L has solicited at least one-fourth of plaintiff’s sales representatives and is inducing

them to breach their Agreements with plaintiff. As one example, B&L has informed

these sales representatives that if they joined B&L, they would be promoting a competing

product in the same territories and, therefore, to the same clients, that they currently

service for plaintiff, thereby misappropriating plaintiff’s customer relationships and good

will.

4. Also, the sales representatives that B&L has solicited are some of

plaintiff’s best performers. To make matters worse, these representatives would have left

plaintiff en masse since B&L has been soliciting them during the past two to three weeks

for the launch of its new product in April 2009, with training to begin in March 2009. If

they were to leave simultaneously, plaintiff would be without one-fourth of its sales

force. This presents B&L with a “win win” situation – B&L would obtain a highly


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successful sales force that has knowledge of plaintiff’s confidential, proprietary and trade

secret information (collectively “Confidential Information”), including client information

and customer relationships, while at the same time leaving plaintiff, a direct competitor,

without at least one-fourth of its sales force, thereby inflicting significant damage to

plaintiff’s business and good will.

5. B&L contacted these sales representatives on their private unpublished

cell phones, through company e-mail and, at times, their homes, indicating that to

accomplish this raid on plaintiff’s talent, B&L has inappropriately obtained and used an

internal confidential contact roster of plaintiff’s sales force.

6. In addition to injunctive relief, plaintiff seeks an award of damages which

it has sustained or will sustain.

THE PARTIES

7. Johnson & Johnson (“J&J”) is the parent company of subsidiaries engaged

in the business of developing, manufacturing and marketing a wide variety of health care

products, and providing related services, for the consumer, pharmaceutical, medical

device and diagnostics markets. J&J’s subsidiaries and operating companies market their

products to customers located throughout the United States and the world.

8. Plaintiff VISTAKON® is a subsidiary of J&J. Plaintiff develops and

markets pharmaceutical products that treat certain ophthalmic conditions such as ocular

irritation due to allergies and certain bacterial infections such as bacterial conjunctivitis

(“pink eye”) and bacterial keratitis (corneal ulcers). Plaintiff markets and sells the

following products, among others: (A) IQUIX®, an anti-bacterial drug used for the


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treatment of corneal ulcers caused by susceptible strains of certain bacteria; (B)

QUIXIN®, another anti-bacterial drug that kills many types of bacteria that may cause

pink eye; (C) ALAMAST®, an anti-allergy drug that is used to prevent itchy eyes caused

by allergies; and (D) BETIMOL®, a medicine used to lower intraocular eye pressure due

to elevated (intraocular) pressure resulting from ocular hypertension or open-angle

glaucoma.

9. Defendant Bausch & Lomb, Inc. is a New York corporation, with its

principal place of business located at One Bausch & Lomb Place, Rochester, NY 14604.

B&L’s products are marketed and sold throughout the United States, including Florida.

B&L has purposefully, systematically and continually directed contacts to and conducted

business in Florida. B&L is subject to the personal jurisdiction of this Court.

10. B&L is a direct competitor of plaintiff in the development, manufacture

and marketing of products that treat ophthalmic conditions. For example, when it

receives FDA approval, B&L’s new product, Optura®, and plaintiff’s existing product,

QUIXIN®, will both be approved for the treatment of bacterial conjunctivitis.

Accordingly, both B&L and plaintiff will market their drugs to the same physicians for

the same indication. In addition, Optura®, QUIXIN®, and IQUIX® are in the same class

of drugs known as fluroquinelones (“FQs”). Opthalmic surgeons routinely prescribe FQs

as part of the standard of care for the prevention and treatment of eye infections in

surgical patients. Thus, without regard to how B&L and plaintiff market the attributes of

their respective products, the same universe of surgeons will choose among Optura®,


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QUIXIN®, IQUIX® and other FQs when determining the appropriate medication for use

in patients undergoing eye surgery.

JURISDICTION AND VENUE

11. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1332 as

there is complete diversity of citizenship between plaintiff VISTAKON® and defendant

B&L, and the amount in controversy exceeds $75,000.00 exclusive of interest and costs.

12. Venue is proper in the Middle District of Florida pursuant to 28 U.S.C. §

1391(a)(2) since plaintiff is located in the Middle District of Florida and defendants

products are promoted and sold throughout this District.

OTHER EMPLOYEES THAT B&L HIRED AND/OR ATTEMPTED TO HIRE

13. In the past few years, B&L has employed several former executives of

Johnson & Johnson Vision Care, Inc. (“Vision Care”), which is another J&J subsidiary

and the world’s leading manufacturer of disposable contact lenses and other products for

vision care health. These highly placed upper management employees were in positions

that steered the overall strategy for Vision Care and plaintiff. These employees included,

among others: (A) Michael Gowen, the former Vice President of Global Operations and

Supply Chain for Vision Care; (B) Clifford Wright, O.D., the former Director of Business

Development and Technology Transfer for Vision Care; (C) Peter Valenti, the former

Vice President of Marketing for Vision Care; (D) David Edwards, the former President of

Vision Care for Asia Pacific; (E) Carol Panzor, the former Executive Director of

Knowledge Management for Vision Care; and (F) Seevali Fernando, the former IT

Director of Vision Care for Asia Pacific. B&L also employed, Gerald Ostrov, the former


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J&J Company Group Chairman. All of these former employees are aware that

VISTAKON® employees have employment agreements that contain non-disclosure,

non-competition, and non-solicitation covenants.

14. In addition, B&L has recently, and is currently, soliciting at least the

following sales representatives and district manager (collectively “Sales

Representatives”) of plaintiff that cover territories spanning the United States: (1) Kevin

Ledwith – District Manager of the Northeast; (2) Tracy Scafariello – Sales Representative

for Connecticut; (3) Eric Lopez – Sales Representative for Brooklyn, Queens and

Manhattan, New York; (4) Barry Carter – Sales Representative for Virginia; (5) Josh

Meredith – Sales Representative for North Carolina; (6) Melanie Lupo – Sales

Representative for North Georgia; (7) Brian Gardner – Sales Representative for Arizona

and part of Nevada; and (8) Peter Benitez – Sales Representative in the area from San

Francisco through the Silicon Valley peninsula and San Jose. Not only do these Sales

Representatives represent a wide geographic area, but also they are among plaintiff’s best

performers.

PLAINTIFF AND SOME OF ITS CONFIDENTIAL INFORMATION

15. The market for products that treat ophthalmic conditions has become more

and more competitive in recent years and plaintiff has been developing innovative

responses to better position its products in these markets. The pharmaceutical industry

for the treatment of ophthalmic conditions is a several hundred million dollar, world-wide

market.


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16. In recent years, plaintiff has expended large amounts of time, resources

and money in researching, developing, and testing innovative, new products for treating

ophthalmic conditions. Due to its significant efforts, plaintiff has innovative, new

products in its pipeline for the short-term (1 year), mid-term (3 to 5 years) and long-term

(+ 5 years). Such information about plaintiff’s pipeline products and research and

development efforts and plans are considered Confidential Information.

17. Plaintiff has also expended large amounts of time, resources and money in

developing Confidential Information relating to strategies in connection with the

marketing and sale of its current and pipeline products in the United States. Such

information includes, but is not limited to, products in development, customer focus and

pricing strategies.

18. Plaintiff also invested a considerable amount of time, resources and

money in developing its sales force in the United States. For a sales force to be effective,

it is important to have the right number of salespersons, properly and fully trained, and

each placed in a strategically defined geographic territory. Plaintiff has invested

considerable resources in developing the optimal strategy for the alignment of its sales

force in the United States. Presently, plaintiff employs thirty-four (34) sales

representatives across the United States and four district managers. The recruitment and

training of a single sales representative costs over $25,000. Plaintiff also loses

approximately $75,000 to $100,000 in sales by the time a new sales representative

becomes acclimated in his/her territory.


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19. Plaintiff takes measures to protect its Confidential Information. All

employees have IDs and there is a sign-in procedure for visitors at all facilities. No one

visits a facility without an escort. All computers have secure access features and fire

walls. Plaintiff also has security and confidentiality policies and agreements which it

enforces. Plaintiff maintains contact with its sales representatives through electronic and

telephone networks that are not available to outsiders and through use of non-published

cellular phone numbers.

THE SALES REPRESENTATIVES AND THE AGREEMENTS

20. As a condition of their employment, and because of their access to

Confidential Information, each of the Sales Representatives executed an Agreement,

which, among other things, contain three covenants.

21. First, each Agreement contains a “non-compete” covenant whereby each

Sales Representative promised not to work for a competitor, for a period of eighteen (18)

months after termination for any reason, if he or she would work on the competitor’s

products that competes with plaintiff’s products and he or she had access to Confidential

Information regarding plaintiff’s products that could be used to enhance the use or

marketability of the competitor’s products.

22. Second, each Agreement contains a non-solicitation covenant whereby the

Sales Representative, for a period of 18 months after termination for any reason, cannot

solicit any business from, sell to, or render any services to, or, directly or indirectly, help

others solicit business from or render any service or sell to, any of the accounts,

customers or clients with whom they had contact during the last 12 months of


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employment with plaintiff, for any purpose related to the sale of a product or service that

could compete with a product or service being sold or developed by plaintiff.

23. Third, each Agreement contains a non-solicitation covenant whereby the

Sales Representative, for a period of 12 months after termination for any reason, cannot

solicit or hire on their own behalf, or on behalf of others, any employees of plaintiff.

24. Each Sales Representative has considerable experience with plaintiff’s

products. Through their positions, each of the Sales Representatives had access to and

acquired intimate knowledge of plaintiff’s Confidential Information, including the

following:

• strategic priorities and objectives for the short-term (1 to 2 years), mid-term (3 to 5 years) and long-term (+ 5 years);

• pipeline products; • product development plans and strategies for new products; • regulatory progress of products; • marketing and sales plans; • pricing strategies with regard to managed care organizations; • targeting strategies, such as information concerning clients in their

territory, the areas where plaintiff should stress its marketing and sales force based on activities of certain clients, which products better match the needs of certain clients and the amount of sales made per client;

• clients, including key clients; • sales objectives, sales forecasts and quotas; • contracting status with managed care organizations; • sales force alignment plans and strategies to change the alignment,

including how the company breaks down its territories; • inventory strategies; • names, addresses, cell phone numbers and sales numbers of sales

representatives; • net sales and revenue projections for various markets; • training and recruiting strategies; and • compensation plans.


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25. For example, each Sales Representative is intimately knowledgeable of,

and had access to, plaintiff’s Confidential Information regarding its customers and sales

force plan concerning their respective territories, including: (1) how plaintiff breaks down

the territories; (2) how a sales force that markets and sells products that treat ophthalmic

conditions should be geographically divided; (3) the areas where plaintiff should focus its

marketing and sales force based on the activity level of certain physicians and

pharmacies; (4) plaintiff’s customers; (5) which products better match the needs of

certain clients; and (6) the volume of sales made through these efforts.

26. The Sales Representatives, therefore, have intimate knowledge of

plaintiff’s most Confidential Information with respect to the territories they cover and

products they sell, respectively. To a great extent, plaintiff’s customer relationships are

developed and maintained through plaintiff’s sales representatives, while on plaintiff’s

payroll, such that the sales representative is perceived by the customer as the equivalent

of plaintiff. If plaintiff’s sales representatives were to work at B&L in connection with

B&L’s ocular anti-bacterial product, especially if they do so within the same territory and

contact the same customers, it is inevitable that they would disclose plaintiff’s

Confidential Information and use, exploit and misappropriate plaintiff’s customer

relationships and goodwill.

27. Plaintiff and B&L are direct competitors and if B&L were to gain

knowledge of even some of the Confidential Information, plaintiff would be immediately,

irreparably and severely harmed. Similarly, if B&L, through the services of the Sales

Representatives, were permitted to misappropriate plaintiff’s customer relationships


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across the country, plaintiff would suffer immediate, irreparable and severe harm.

Money damages would not adequately compensate plaintiff for the losses and injuries it

would suffer, leaving plaintiff with no adequate remedy at law, particularly if its sales

representatives were to leave in numbers and simultaneously across its geographic

territories.

28. This Confidential Information would be of critical importance to B&L

because it is attempting to expand its national sales force in anticipation of its April 2009

launch of its new product, Optura®. Optura® is B&L’s first and only branded product

that is for the treatment of certain ocular bacterial infections. It is unlike B&L’s other

products such as contact lenses and contact lens solutions. As a result, B&L’s sales force

lacks experience in promoting and marketing products that treat certain ocular bacterial

infections.

29. Because plaintiff has had products that focus on treating certain ocular

bacterial infections for years, plaintiff’s Sales Representatives are intimately familiar

with Confidential Information concerning plaintiff’s sales force plan, marketing and sales

plans, and customers that focus on treating ocular bacterial infections. Thus, plaintiff’s

Sales Representatives could use, consciously or unconsciously, this Confidential

Information to improve the marketability of B&L’s product, Optura®, and unfairly

compete with plaintiff. In fact, B&L can create a sales force that mimics plaintiff’s sales

force overnight and use it for the promotion of Optura®.

30. In addition, as explained above, plaintiff has invested over $25,000 for

each sales representative in recruiting and training. Instead of incurring those expenses in


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building its own sales force, B&L is attempting to take plaintiff’s sales force.

Furthermore, whenever a sales representative leaves, plaintiff loses approximately

$75,000 to $100,000 in sales by the time a new sales representative is trained and

acclimated in the territory.

31. As another example, the Sales Representatives are intimately

knowledgeable of plaintiff’s short-term (1 year), mid-term (3 to 5 years) and long-term (+

5 years) pipeline products. The Sales Representatives can steer B&L’s development of its

pipeline products by, for example, identifying pipeline products that B&L should focus

on that would allow B&L to unfairly compete with plaintiff, or they can provide new

ideas for pipeline products to B&L based on plaintiff’s pipeline products.

DEFENDANTS’ MISCONDUCT

32. As explained above, B&L has already employed a significant number of

Vision Care’s former highly placed upper management employees and B&L’s raiding

campaign continues. In anticipation of the April 2009 launch of Optura®, B&L is

seeking to expand its national sales force by forty (40) sales representatives that have

experience with ocular anti-bacterial products since B&L’s current sales force lacks that

experience. It is apparent that B&L seeks to fill most of these positions with plaintiff’s

sales representatives who have experience marketing and promoting such products.

33. B&L has engaged in a raiding campaign of plaintiff’s sales

representatives. In doing so, B&L has utilized improper means, has an improper purpose,

is inducing the sales representatives to breach their Agreements, and is tortiously

interfering with those Agreements.


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34. Plaintiff maintains contact with its sales representatives through use of

company issued telephones and electronic mail, the access to which is not publicly

shared. Only someone with internal rosters would have access to this contact information

across plaintiff’s national sales force.

Solicitation of Eric Lopez

35. Mr. Lopez is a Professional Medical Sales Representative for plaintiff

covering Brooklyn, Queens and Manhattan, New York. In this position, Mr. Lopez

promotes plaintiff’s products to those who prescribe or sell ophthalmic products,

including doctors and retail outlets such as pharmacies.

36. Recently, Mr. Lopez had an in-person conversation with a sales

representative from B&L. She informed Mr. Lopez that B&L was going to expand into

the ocular anti-bacterial marketplace and that B&L was not subject to the Pharma

guidelines. She let him know that they would be taking doctors to dinner and providing

“kits” to doctors to provide to patients in post-surgical recovery. She also informed Mr.

Lopez that B&L was about to release a new product that is in the same class as IQUIX®.

Mr. Lopez’s cell phone number is not publicly available, but it is on an internal company

list kept by plaintiff, except when he has specifically provided it to a physician.

37. On February 16, 2009, Mr. Lopez received a telephone call on his cell

phone from “Kat” Ollin whose telephone number is (732) 688-9085. Ms. Ollin told Mr.

Lopez that she represented B&L and that B&L was expanding. She invited Mr. Lopez to

an in-person interview for a sales position with B&L in Newark, New Jersey the next

day. If Mr. Lopez were to work for B&L in the same territory that he covers for plaintiff,


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then he would be calling on the same clients for B&L that he currently calls for plaintiff.

Mr. Lopez informed her that he was not interested in the position, but that he knew a

friend, who did not work for plaintiff, that might be interested. From his friend, Mr.

Lopez learned that B&L’s minimum qualifications include three years of specialty sales

in the ophthalmic anti-bacterial field.

Solicitation of Melanie Lupo

38. For the past three years, Ms. Lupo has been a Professional Medical Sales

Representative for plaintiff covering North Georgia. In that position, she promotes

plaintiff’s products to those who prescribe or sell ophthalmic products, such as doctors

and retail outlets like pharmacies.

39. About a week ago, Ms. Lupo received an unsolicited email from “Kat”

Ollin of B&L. The email from Ms. Ollin asked whether Ms. Lupo was interested in

joining B&L to cover the “Sandy Springs territory,” which is in the same territory that

she currently covers for plaintiff. In such a position, Ms. Scafariello would be calling on

the same clients for B&L that she currently calls on for plaintiff in the same territory.

Ms. Ollin then called Ms. Lupo’s cell phone, even though her cell phone and internal

email address are not generally available to the public and Ms. Lupo’s cell phone number

is not printed on her business card. Ms. Lupo did not respond to the email or the call.

Then, on or about February 17, 2009, another B&L recruiter, Jeanne Storm, called Ms.

Lupo to invite her to interview for a position as a B&L representative in her same

territory. She did not respond to the call.


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Solicitation of Tracy Scafariello

40. Ms. Scafariello has been employed by plaintiff for five years. She is a

Senior Professional Medical Sales Representative for plaintiff covering the entire state of

Connecticut. At one time, she also covered Westchester, New York. In her position, she

promotes plaintiff’s products to those who prescribe or sell ophthalmic products such as

doctors and retail outlets like pharmacies.

41. On Monday, February 16, 2009, Ms. Scafariello received a phone call on

the “land line” of her home also from a Jeanne Storm, who identified herself as a B&L

recruiter whose phone number is (609) 953-1402. Ms. Storm stated that she knew Ms.

Scafariello worked for plaintiff and that B&L was expanding its sales force and asked if

she would be interested in taking a territory for Connecticut and West Chester, New York

to promote B&L’s new anti-bacterial product. If she took that position, Ms. Scafariello

would be calling on the same clients for B&L that she currently calls for plaintiff as well

as West Chester, where she was previously assigned.

42. Ms. Scafariello informed Ms. Storm that she was not interested and asked

how Ms. Storm got her home phone number since it is listed under a different name. Ms.

Storm responded that she had “different resources.”

Solicitation of Josh Meredith

43. Mr. Meredith has been a Professional Medical Sales Representative for

plaintiff since January 2007 and covers North Carolina. In that position, he promotes

plaintiff’s products to those who prescribe or sell ophthalmic products, including doctors

and retail outlets such as pharmacies. Approximately a week ago, Mr. Meredith received


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a phone call on his cell phone from someone identifying herself as a representative of

B&L who was seeking to recruit him to a sales position in North Carolina. Had he taken

the position, Mr. Meredith would be calling on the same clients for B&L that he currently

calls on behalf of plaintiff. Mr. Meredith explained that he was not interested in taking a

position with B&L.

Solicitation of Peter Benitez

44. Mr. Benitez has been a Senior Professional Medical Sales Representative

for plaintiff for the past five years. He promotes plaintiff’s products in an area from San

Francisco through the Silicon Valley peninsula and San Jose to those who prescribe or

sell ophthalmic products such as doctors and retail outlets like pharmacies. Mr. Benitez

recently received a message on his cell phone from a B&L representative even though he

does not provide that phone number to people outside the company except for actual

customers. The B&L caller said that he wanted to “network with [Mr. Benitez] on a

national expansion of their sales force” and invited a call back. If Mr. Benitez took a

sales position with B&L that covers the territory that he covers with plaintiff, then he

would be calling on the same clients for B&L that he currently calls for plaintiff.

Solicitation of Barry Carter

45. Mr. Carter has been a Professional Medical Sales Representative for the

past five years for plaintiff. In that position, he promotes plaintiff’s products in Virginia,

except for the Washington DC suburbs, to those that prescribe or sell ophthalmic

products such as doctors and retail outlets like pharmacies.


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46. Approximately a month ago, Mr. Carter received a call on his cell phone

from a woman who identified herself as “Kat.” She had a phone number of (732) 688-

9085 and, upon information and belief, is the same Kat Ollin who called several others on

their unpublished cell numbers or sent them emails to their company email accounts. She

told Mr. Carter that she was recruiting for B&L for a position in Virginia, that B&L was

expanding its sales force, and that she would like Mr. Carter to consider coming to work

for B&L in Virginia. Mr. Carter is familiar with B&L’s products and sales approach. If

he took the position, Mr. Carter would be calling on the same customers for B&L that he

currently calls on behalf of plaintiff. Mr. Carter informed “Kat” that he was not

interested.

47. Mr. Carter does not have his cell phone number on his business cards and

the number is not published. He does not know how “Kat” got his number.

Solicitation of Brian Gardner

48. Mr. Gardner has been with various J&J companies for the past ten years.

He has been working for plaintiff in the position of Professional Medical Sales

Representative for the past nine months. In that position, he promotes plaintiff’s

products in Arizona and parts of Nevada to those who prescribe or sell ophthalmic

products, such as doctors and retail outlets like pharmacies.

49. In February 2009, Mr. Gardner received a series of messages from

someone he believes was named “Vavid.” This person called Mr. Gardner’s business cell

phone number, left a message separately on his office line and sent him an email at his


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work email address. He also reached Mr. Gardner one evening at approximately 7:00

p.m. Arizona time at his home and on his cell phone.

50. Vavid identified himself as an in-house recruiter for B&L, told Mr.

Gardner that B&L was going to be adding 40 sales representatives, that B&L was

launching a new product and that the salary would be in the $60,000 to $80,000 range,

but could be “creative.” During the conversation, Mr. Gardner informed Vavid that he

currently covers Arizona for plaintiff. Vavid began trying to persuade Mr. Gardner to

apply for an opening with B&L in Arizona. In such a position, Mr. Gardner would be

calling on the same customers for B&L that he currently calls on behalf of plaintiff. Mr.

Gardner informed Vavid that he was not interested.

51. Also, Mr. Gardner asked Vavid how he got his contact information.

Vavid responded that B&L “had their sources” but did not say more. In the course of the

conversation, however, Vavid told Mr. Gardner that B&L had hired other J&J people

including “top executives” and suggested that he look on the B&L website to confirm.

Solicitation of Kevin Ledwith

52. Mr. Ledwith is a District Manager for plaintiff for the Northeast Region.

He supervises nine sales representatives in connection with their promotion of plaintiff’s

pharmaceutical products to doctors and retail outlets, such as pharmacies, prescribing or

selling plaintiff’s products for ophthalmic care.

53. On or about January 14, 2009, Mr. Ledwith received an email contact

from Michael Vargas who identified himself as a recruiter for B&L and sought to recruit


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him as a team leader for B&L in connection with the expansion by B&L into the

ophthalmic pharmaceutical space.

54. Mr. Ledwith also received telephone messages on his cellular phone.

Neither his cellular phone number nor his company email address are published or

publicly available.

FIRST COUNT (Intentional Interference with a Contractual Relationship)

55. Plaintiff repeats the allegations contained in the foregoing paragraphs and

incorporates those allegations in this Count by reference.

56. B&L is aware that the Sales Representatives have entered into

employment agreements with plaintiff. Those agreements, among other things, prohibit

employees from selling or working on competing products, or soliciting plaintiff’s

customers for 18 months after termination of the employment relationship, and are

specifically enforceable under Fla. Stat. § 542.33 and irreparable harm will be presumed.

57. B&L is also aware that the Sales Representatives possess highly

Confidential Information that belongs to plaintiff. B&L is aware that hiring the Sales

Representatives to call on plaintiff’s customers for B&L would constitute a breach of

their respective Agreements and common law duties to plaintiff.

58. Despite that knowledge, B&L is encouraging and tortiously inducing the

Sales Representatives to breach both their Agreements and their common law duties to

plaintiff and, therefore, are tortiously and maliciously and without privilege interfering

with plaintiff’s contractual relationship with the Sales Representatives and with their

common law duties of loyalty.


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59. As a result of B&L’s actions, unless this interference is enjoined, plaintiff

will suffer immediate, severe and irreparable harm to its business, and other damages and

injuries.

SECOND COUNT (Interference with Beneficial Relationship)

60. Plaintiff repeats the allegations contained in the foregoing paragraphs and

incorporates those allegations in this Count by reference.

61. By using Confidential Information to contact and solicit plaintiff’s sales

representatives, including those identified above, B&L is engaging in raiding, unfair

competition and is tortiously interfering with the contractual relationships and

prospective economic advantageous relationships plaintiff has both with its sales

employees and with its customers.

62. The acts of B&L constitute raiding and wrongful and malicious conduct

undertaken without legal justification and with the knowledge and intent that its actions

will cause substantial damage and injury to plaintiff.

63. Unless B&L is immediately enjoined and restrained, plaintiff will suffer

immediate and irreparable injury for which it has no adequate remedy at law or in money

damages, and other damages and injuries.

THIRD COUNT (Violation of The Florida Deceptive and Unfair Trade Practices Act)

64. Plaintiff repeats the allegations contained in the preceding paragraphs and

incorporates them for reference in this count.


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65. B&L’s use, or attempted use, of plaintiff’s internal Confidential

Information, including plaintiff’s internal roster, to its improper advantage in launching a

product competitive with plaintiff’s is an unfair and deceptive trade practice in violation

of Fla. Stat. § 501.204.

66. Plaintiff seeks a declaration from this Court that B&L’s acts or practices

violate the Unfair Trade Practices Act and an injunction against B&L’s continuing and

threatened violation pursuant to Fla. Stat. § 501.211.

WHEREFORE, plaintiff demands judgment against defendant:

A. Permanently enjoining and restraining B&L and its officers, agents and

employees from causing or permitting any employees of plaintiff to hold

any employment position or engage in any employment activity with

B&L, directly or indirectly, that in any way relates to or involves

Optura®, or any other position that would place them in a position of

using or disclosing plaintiff’s Confidential Information, in violation of any

non-compete agreements those employees have executed with plaintiff;

B. Permanently enjoining B&L from soliciting or hiring any employee of

plaintiff for a period of 12 months from the date hereof;

C. Ordering B&L to turn over and return to plaintiff any of plaintiff’s

documents and or information regarding plaintiff’s business that any

former employee of plaintiff or any other J&J company, that is now

employed by B&L, has removed, copied, taken, used, disseminated, or


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otherwise have in their possession, custody or control, including, but not

limited to, any contact lists;

D. Permanently enjoining and restraining B&L from otherwise causing or

permitting any employee of plaintiff to violate any terms of their non-

complete agreements or common law obligations to plaintiff;

E. Awarding compensatory damages to plaintiff;

F. Awarding punitive damage to plaintiff;

G. Awarding costs of this action and attorneys’ fees to plaintiff;

H. Awarding such other and further relief as the Court deems just and

equitable.

Respectfully submitted, HUNTON & WILLIAMS LLP Counsel for Vistakon, Pharmaceuticals, LLC 1111 Brickell Avenue, Suite 2500 Miami, Florida 33131 Telephone: 305.810.2517 Facsimile: 305.810.1605 By: _/s/ Terence G. Connor___________ Terence G. Connor Trial Counsel Florida Bar No. 291153 [email protected]


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CERTIFICATE OF SERVICE

A true and correct copy of this Complaint has been served on Robert Bailey, Vice

President and General Counsel for Bausch & Lomb, One Bausch & Lomb Place,

Rochester, NY 14604 by Federal Express this 5th day of March.

/s/ Terence G. Connor For Hunton & Williams LLP

62376.000043 EMF_US 26936294v1


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