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`BRISTOL-MYERS SQUIBB CO.,
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`Plaintiff,
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`- against -
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`DAVID BERMAN,
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`Defendant.
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`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`Civil Action No. 11076-VCL
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`: : : : : : : : :
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`DEFENDANT DAVID BERMAN’S BRIEF IN OPPOSITION TO
`PLAINTIFF BRISTOL-MYERS SQUIBB CO.’S MOTION FOR A
`TEMPORARY RESTRAINING ORDER
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`
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`OF COUNSEL:
`Samuel M. First
`Richard E. Miller
`Jacobs Law Group
`2005 Market Street, Suite 1120
`Philadelphia, PA 19103
`(215) 569-9701
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`
`
`Proctor Heyman Enerio LLP
`Kurt M. Heyman (# 3054)
`Samuel T. Hirzel II (# 4415)
`300 Delaware Avenue, Suite 200
`Wilmington, DE 19801
`(302) 472-7300
`Attorneys for Defendant
`Dr. David Berman
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`Dated: June 1, 2015
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`118209053_1
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`EFiled: Jun 01 2015 07:22PM EDT
`Transaction ID 57319242
`Case No. 11076-VCL
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION ........................................................................................... 1
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`LEGAL ARGUMENT..................................................................................... 2
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`A.
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`B.
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`The Standard For Issuing a Temporary Restraining Order. .................. 2
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`Because BMS Cannot Demonstrate That It Has A Colorable
`Claim for Relief, No TRO Should Issue. .............................................. 3
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`1.
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`The Plain Language Of The Non-Compete Covenant – Which
`Was Entirely Omitted From BMS’s Brief And Block
`Quotations – Expressly Permits Dr. Berman’s Contemplated
`Employment With MedImmune. ................................................ 3
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`a.
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`b.
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`Dr. Berman’s role at MedImmune will not require him to
`be involved in drugs that compete with BMS Restricted
`Drugs. ................................................................................ 5
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`Dr. Berman’s role at MedImmune will not require him to
`use or disclose any of BMS’s confidential information. .. 8
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`2.
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`BMS’s Unsupported Interpretation That The Non-Compete
`Covenant Precludes Dr. Berman From Working In The Entirety
`of the I-O Field Overbroad And Not Narrowly Tailored To
`Protect Its Legitimate Business Interest. ...................................10
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`C.
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`D.
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`BMS Has No Evidence That Dr. Berman’s Employment With
`MedImmune Would Put BMS At Risk Of Imminent And
`Irreparable Harm. ................................................................................ 12
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`The Balance of the Harms Weighs Against Issuing the
`Requested Relief, Even on a Temporary Basis, Because BMS
`Has No Evidence that Dr. Berman’s Employment with
`MedImmune Could Violate the Non-Compete Covenant................... 14
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`III. CONCLUSION ..............................................................................................16
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`118209053_1
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`TABLE OF AUTHORITIES
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`Bernard Personnel Consultants, Inc. v. Mazarella,
`1990 WL 124969 (Del. Ch. Aug. 28, 1990) ........................................................... 9
`
`Bernstein v. Vestron, Inc.,
`1986 WL 3138 (Del. Ch. Mar. 11, 1986) .................................................... 2, 3, 12
`
`Comfort, Inc v. Mcdonald,
`1984 WL 8216 (Del. Ch. June 1, 1984) ...............................................................15
`
`Concord Steel, Inc. v. Wilmington Steel, Inc.,
`2009 WL 3161643 (Del. Ch. Sept. 30, 2009).......................................................14
`
`Delaware Exp. Shuttle, Inc. v. Older,
`2002 WL 31458243 (Del. Ch. Oct. 23, 2002) ............................................... 13, 14
`
`Gamble t/a Pet World v. Walker,
`1994 WL 384617 (Del. Ch. July 18, 1994) ......................................................3, 12
`
`Hough Assocs., Inc. v. Hill,
`2007 WL 148751 (Del. Ch. Jan. 17, 2007) ................................................... 12, 13
`
`LewMor, Inc. v. Fleming,
`1986 WL 1244 (Del. Ch. Jan. 29, 1986) ..........................................................9, 10
`
`McCann Surveyors, Inc. v. Evans,
`611 A.2d 1 (Del. Ch. 1987) ..................................................................................10
`
`Nutzz.com v. Vertrue Inc.,
`2005 WL 1653974 (Del. Ch. July 6, 2005) ..........................................................14
`
`Research & Trading Corp. v. Pfuhl,
`1993 WL 93369 (Del. Ch. February 26, 1993) ....................................................15
`
`Stirling Investment Holdings, Inc. v. Glenoit Universal, Ltd.,
`1997 WL 74659 (Del. Ch. Feb. 12, 1997) .............................................................. 2
`
`Take-A-Break Coffee Service, Inc. v. Grose,
`1990 WL 67392 (Del. Ch. May 30, 1990) ................................................ 9, 10, 12
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`118209053_1
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`I.
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`INTRODUCTION
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`The extraordinary remedy of a temporary restraining order is not warranted
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`in this case. There is simply no evidence proffered that Defendant David Berman’s
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`employment will violate the terms of his non-compete covenant with Plaintiff
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`Bristol-Myers Squibb (“BMS”). Curiously, while BMS has attached
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`the
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`agreements containing the relevant restriction as Exhibits B and C to its Verified
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`Complaint, it has steered clear of apprising the Court of the complete text of the
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`restriction, which actually permits Dr. Berman’s contemplated employment with
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`MedImmune, LLC (“MedImmune”), the biologics research and development arm
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`of AstraZeneca Pharmaceuticals LP (“AZ”).
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`Specifically, Dr. Berman’s covenant expressly permits him to work for a so-
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`called “Competing Business” as long as he is not involved with drugs (whether
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`products or investigational compounds under development) that are directly
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`competitive with drugs with which he was involved within the last twelve months
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`of his employment with BMS. As a factual matter, Dr. Berman will not be working
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`on any drugs for MedImmune that are directly competitive to drugs that he worked
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`on for the past twelve months at BMS. There is no evidence to the contrary, nor
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`could there be, because Dr. Berman and his new employer respect the scope of his
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`post-employment obligations to BMS and are structuring his employment to honor
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`them. As such, there is no risk of imminent harm to BMS, and the balance of
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`harms weigh heavily in Dr. Berman’s favor.
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`For these reasons, Dr. Berman respectfully submits that this Court: (a) deny
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`BMS’s Motion for a Temporary Restraining Order; (b) permit the parties to engage
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`in bilateral expedited discovery based on a schedule to be agreed upon by the
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`parties reasonably tailored to aid the presentation of evidence at a preliminary
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`injunction hearing; and (c) set this matter for a prompt hearing on BMS’s request
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`for a preliminary injunction.
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`II. LEGAL ARGUMENT
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`A. The Standard For Issuing a Temporary Restraining Order.
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`A court may only issue an injunction under exceptional and extraordinary
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`circumstances, and it is the plaintiff’s burden to demonstrate entitlement to such
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`relief. Bernstein v. Vestron, Inc., 1986 WL 3138, at *3 (Del. Ch. Mar. 11, 1986)
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`(“The extraordinary remedy of a temporary restraining order will be granted only
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`when it appears that immediate action is required to preserve the status quo and
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`save plaintiff from an immediately threatened irreparable injury.”)
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`To prevail on its instant motion, BMS must demonstrate: (1) it has a
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`colorable claim on the merits; (2) it will suffer immediate and irreparable harm if
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`relief is not granted; and (3) the balance of hardships weighs in its favor. Stirling
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`Investment Holdings, Inc. v. Glenoit Universal, Ltd., 1997 WL 74659, at *2 (Del.
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`Ch. Feb. 12, 1997); see alo Gamble t/a Pet World v. Walker, 1994 WL 384617, at
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`*1 (Del. Ch. July 18, 1994) (citation omitted).
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`In assessing whether BMS can demonstrate an entitlement to the
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`extraordinary remedy it seeks, this Court must consider the facts that appear in the
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`Verified Complaint as well as in the affidavits of record. Bernstein, 1986 WL
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`3138, at *1. Upon review of these materials, this Court must conclude that BMS
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`has not, and cannot, meet any of the three prongs in the test outlined above.
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`B.
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`Because BMS Cannot Demonstrate That It Has A Colorable
`Claim for Relief, No TRO Should Issue.
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`1.
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`The Plain Language Of The Non-Compete Covenant –
`Which Was Entirely Omitted From BMS’s Brief And Block
`Quotations
`– Expressly
`Permits Dr. Berman’s
`Contemplated Employment With MedImmune.
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`
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`Although BMS attached the agreements to its Verified Complaint that
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`contain the pertinent restrictive covenant (“Non-Compete Covenant”), curiously
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`absent from the text that BMS quoted, is the provision of the Non-Compete
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`Covenant that actually allows Dr. Berman to work for MedImmune. Specifically,
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`this safe-harbor provision, hereinafter referred to as the “Competitor Allowance,”
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`permits Dr. Berman to work for a competitor so long as he does not work on drugs
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`that directly compete with ones he worked on in the last twelve months at BMS.
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`The Competitor Allowance, which is an integral part of the text of the Non-
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`Compete Covanant, is replaced in BMS’s filings by a provision that does not even
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`appear in the actual agreement.
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`As the Court will note, Section 3(a) in Exhibit B and Section 10(a) in
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`Exhibit C (the language of which are identical) contains the general – and clearly
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`overbroad – restriction on working for a Competing Business that BMS quoted
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`throughout its brief. However, those same Sections also contain the following
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`carve-out language that allows Dr. Berman to engage in certain competitive
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`employment:
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`Notwithstanding the foregoing, after your employment
`with the Company or a subsidiary of the Company
`terminates for any reason, you may be affiliated with a
`Competitive Business provided that your affiliation does
`not involve any product, investigational compound,
`technology or service, that competes with any product,
`investigational compound, technology or service with
`which you were involved within the last twelve months
`of your employment with the Company or a subsidiary
`of the Company, including any product, investigational
`compound, technology or service which the Company is
`developing and of which you had knowledge, and you
`and the Competing Business provide the Company
`written assurances of this fact prior to your commencing
`such affiliation.
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`
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`The Competitor Allowance is an indispensable component of the Non-
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`Compete Covenant to which Dr. Berman agreed to be bound. Most significantly, it
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`permits Dr. Berman to work for MedImmune as long as he is not involved in drugs
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`that directly compete with those he was most involved at BMS (collectively, the
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`“BMS Restricted Drugs”). Both Dr. Berman and MedImmune have confirmed
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`through their attached affidavits that Dr. Berman will not be involved with drugs
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`that are competitive to the BMS Restricted Drugs. They have also instituted
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`appropriate and effective safeguards for preventing even the inadvertent use or
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`disclosure of any BMS confidential information by Dr. Berman. Berman Affidavit,
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`¶¶25-26, 28-29; Jallal Affidavit, ¶¶11-12. Because of this, BMS has no colorable
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`claim that Dr. Berman’s employment will violate the terms of his Non-Compete
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`Covenant.
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`a.
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`Dr. Berman’s role at MedImmune will not require
`him to be involved in drugs that compete with BMS
`Restricted Drugs.
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`BMS has offered no evidence – nor could it – that Dr. Berman’s
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`employment will violate the Competitor Allowance language of the Non-Compete
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`Covenant. Indeed, its only evidence is that, at the time of his resignation, Dr.
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`Berman informed Michael Burgess that he would be working at MedImmune in a
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`“substantially similar” role to his role at BMS. Plaintiff’s Brief p6 (citing Burgess
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`Affidavit, ¶35).
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`In actuality, Dr. Burgess threatened Dr. Berman with legal action at his mere
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`mention of potential employment with MedImmune, without any inquiry into or
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`exploration of Dr. Berman’s contemplated duties and how those would square with
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`his obligations under the Non-Compete Covenant. Berman Affidavit, ¶¶ 31-32. Dr.
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`Berman made it clear to BMS that he was fully aware of his restrictions and
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`understood that his work for MedImmune would be consistent with the Competitor
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`Allowance language. Berman Affidavit, ¶33.
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`Notably, Dr. Berman accepted the position with MedImmune only after
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`familiarizing himself with MedImmune’s portfolio and ensuring that there was
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`enough research he could perform that was not competitive with the BMS
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`Restricted Drugs. Berman Affidavit, ¶23. For example, of the four publicly
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`available and most advanced protein targets that Dr. Berman worked on in the past
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`year and which he can discuss without breaking confidentiality, MedImmune has
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`no drugs in development against these targets. Berman Affidavit, ¶40; Jallal
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`Affidavit, ¶9. Additionally, MedImmune’s portfolio includes drugs or therapies
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`that Dr. Berman has never worked on or become familiar with while at BMS.
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`Berman Affidavit, ¶40. As a further precaution, Dr. Berman’s exact job
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`responsibilities at MedImmune are presently in the process of being tailored to
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`ensure that, for the next twelve months, he will not be involved in the development
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`of any drug competitive to the BMS Restricted Drugs. Jallal Affidavit, ¶14. Such
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`responsibility will be handled by another senior oncology executive, as designated
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`by the Head of MedImmune, Dr. Bahija Jallal. Jallal Affidavit, ¶12.
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`BMS argues that Dr. Berman’s work at BMS in the Early Clinical stage
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`development of certain I-O drugs prevents him from working in any capacity in the
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`entire I-O field for the duration of the Non-Compete Covenant. However, Dr.
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`Berman never agreed to such a restriction, and there is no support in the record that
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`such a restriction – if even enforceable – exists. If there was, it would effectively
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`preclude Dr. Berman from utilizing any knowledge and skill he developed over the
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`course of his career, without regard to the projects he most recently worked on at
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`BMS.
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`As Dr. Berman explains in his Affidavit, the I-O field is vast and
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`encompasses five major categories and at least twenty-one sub-categories of
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`ongoing research and development. Berman Affidavit, ¶50 and Ex. 1 attached
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`thereto. See also http://www.forbes.com/sites/arleneweintraub/2015/05/28/asco-
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`immunotherapy-preview-these-cancer-killing-viruses-may-save-lives/,
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`attached
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`hereto as Exhibit A, (highlighting some of the wide-ranging types of I-O therapies
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`currently being developed, such as antigen receptors, checkpoint inhibitors, and
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`virotherapy). Importantly, while at BMS, Dr. Berman worked on only a small
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`subset of therapies within the I-O field.
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`Highlighting the diversity of I-O therapies, some therapies target specific
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`proteins (such as the NK-cell therapy or checkpoint receptor therapy), while others
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`do not (such as vaccines, oncolytic viral therapy or engineered T cells). Berman
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`Affidavit, ¶¶51-53. With respect to drugs which target a specific protein, there are
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`currently dozens of potential protein targets in many different cell types. Berman
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`Affidavit, ¶54.
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`The two drugs that BMS describes at length in its brief, Opdivo and Yervoy,
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`target two different proteins on a T cell. Dr. Berman’s involvement with these
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`drugs ended in October 2013, well over one year before his resignation from BMS,
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`and he retains no confidential or proprietary information specific to those drugs or
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`the targeted proteins. Berman Affidavit, ¶¶43, 67, 78-80. To claim Dr. Berman’s
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`involvement with these specific protein targets over eighteen months ago should
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`prevent him from working at MedImmune on the contemplated terms is not
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`necessary to protect BMS from risk of his use or disclosure of the limited
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`confidential information. This is all the more true given that both drugs are now
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`being marketed by BMS and much of the information that Dr. Berman knows
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`about them has been made public by BMS.
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`b.
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`Dr. Berman’s role at MedImmune will not require
`him to use or disclose any of BMS’s confidential
`information.
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`Dr. Berman and MedImmune have both affirmed their intent to honor his
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`obligations to BMS and protect against the use or disclosure of BMS’s confidential
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`information. Berman Affidavit, ¶¶10, 25-26, 28; Jallal Affidavit, ¶¶ 11-12. Dr.
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`Berman has not taken any confidential documents or other information belonging
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`to BMS, has not used any of BMS’s confidential information for his own benefit or
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`for the benefit of any party other than BMS, and has not disclosed any of BMS’s
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`confidential information. Berman Affidavit, ¶10. Meanwhile, BMS cannot identify
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`any confidential information which is at risk of being disclosed in light of the
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`procedural safeguards being implemented.
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`This Court has refused to enforce non-competition covenants simply on the
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`bare assumption that a former employee may reveal confidential information. See
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`Take-A-Break Coffee Service, Inc. v. Grose, 1990 WL 67392, at *2 (Del. Ch. May
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`30, 1990); see also Bernard Personnel Consultants, Inc. v. Mazarella, 1990 WL
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`124969, *4 (Del. Ch. Aug. 28, 1990) (holding that an employee may use
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`knowledge learned while in the employ of another so long as he does not disclose
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`or use protected trade secrets in the process).
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`Additionally, this Court has found sufficient protection against disclosure in
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`the establishment of procedures and restrictions designed to prevent the release of
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`any confidential information, such as Dr. Berman and MedImmune have
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`undertaken. See, e.g., LewMor, Inc. v. Fleming, 1986 WL 1244, at *1-2 (Del. Ch.
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`Jan. 29, 1986) (new employer’s limitation of employee’s current activities for the
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`period of the non-compete and the employee’s agreement not to use any
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`proprietary information in his new employment rendered requested relief
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`unnecessary); Take-A-Break, 1990 WL 67392 at *4-5 (no legitimate business
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`interest was at risk where the new employer established procedures calculated to
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`minimize or prevent the release of confidential information).
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`While BMS’s interest in protecting its confidential information may be
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`legitimate, given the limited scope of information at issue and the safeguards that
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`have been put into place to protect it, the extraordinary relief that BMS requests is
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`not reasonably tailored – or even necessary – to achieve that goal.
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`2.
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`BMS’s Unsupported Interpretation That The Non-Compete
`Covenant Precludes Dr. Berman From Working In The
`Entirety of the I-O Field Overbroad And Not Narrowly
`Tailored To Protect Its Legitimate Business Interest.
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`Delaware courts consistently hold that restrictive covenants cannot be
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`mechanically or automatically enforced. McCann Surveyors, Inc. v. Evans, 611
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`A.2d 1, 3 (Del. Ch. 1987); Take-A-Break 1990 WL 67392, at *3. Rather, courts
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`look first to whether the agreement was validly executed, and second to whether
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`the circumstances require specific enforcement at the time of application. LewMor,
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`1986 WL 1244, at *2. To be considered enforceable, a restrictive covenant must go
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`no further than the legitimate economic interests of the employer require. Id.;
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`McCann, 611 A.2d at 4.
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`BMS advances only one interest that it seeks to protect: the confidentiality
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`of its non-public information. While Dr. Berman does not dispute the importance
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`of protecting such information, restricting him from working in the entire I-O field
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`is not reasonably tailored to protect such an interest. Indeed, this interpretation
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`would prevent Dr. Berman from using the knowledge and skill he has developed
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`over the course of his career, and is not at all appropriately limited to keeping him
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`from using only confidential information that he learned as a result of working at
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`BMS in the past year. Although Dr. Berman cannot speak to the intent of the
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`drafter, the inclusion of the language in the text of Competitor Allowance in
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`BMS’s Non-Compete Covenant was likely to ensure the restriction on competition
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`is reasonably tailored and would permit BMS to defend against claims of
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`overbreadth and unreasonable restraints of trade.
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`Dr. Berman’s work at BMS represents merely the tip of the proverbial
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`iceberg in the I-O field. He will not be working on drugs that compete with the
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`BMS Restricted Drugs, and both he and MedImmune have represented that he will
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`not use or disclose any BMS confidential information.1 Berman Affidavit ¶¶25-26,
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`28; Jallal Affidavit, ¶¶11-12. To adopt BMS’s interpretation of the Non-Compete
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`Covenant would unquestionably prevent him from working for a BMS competitor
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`in any capacity, without regard to whether his work would put him at risk of
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`
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`1 To the extent that Dr. Berman had any confidential information relating to BMS’s
`prized products, Opdivo and Yervoy, that information became publically available
`in April 2015 when BMS presented the results of key clinical trials at the meeting
`of the American Association of Cancer Researchers, and more recently at the
`ASCO conference this past weekend. Berman Affidavit, ¶77. See also “Pairing of
`Two Bristol-Myers Drugs Sees Success in Battling Skin Cancer, Study Says”,
`http://www.wsj.com/articles/pairing-of-two-bristol-myers-drugs-sees-success-in-
`battling-skin-cancer-study-says-1433072559.
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`revealing BMS’s confidential information. Such an interpretation is not reasonably
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`tailored to protect BMS’s legitimate business interests. LewMor, Inc., 1986 WL
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`1244 (denying injunctive relief where “plaintiff is motivated in this action . . . not
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`to protect good will, proprietary information or other legitimate interests of his
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`business but rather seeks to hamper future competition.”); see also Take-A-Break,
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`1990 WL 67392 at *5 (emphasizing that non-competition covenants are only
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`enforceable to the extent they prevent unfair competition, not all competition).
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`C. BMS Has No Evidence That Dr. Berman’s Employment With
`MedImmune Would Put BMS At Risk Of Imminent And
`Irreparable Harm.
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`BMS has proffered no legitimate evidence that it will suffer immediate and
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`irreparable harm should the Court refuse to grant its motion for a Temporary
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`Restraining Order. Instead, BMS argues it may suffer irreparable harm if Dr.
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`Berman ultimately breaches his Non-Compete Covenant. This argument is not only
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`mooted because Dr. Berman and MedImmune have affirmed that such a breach
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`will not occur, but also because the grant of a TRO requires evidence of imminent
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`harm. Gamble t/a Pet World, 1994 WL 384617, at *1 (citation omitted). As this
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`Court held in Bernstein v. Vestron, Inc., “[t]he extraordinary remedy of a
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`temporary restraining order will be granted only when it appears that immediate
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`action is required to preserve the status quo and save plaintiff from an
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`immediately threatened irreparable injury.” 1986 WL 3138, at *3 (Del. Ch. Mar.
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`11, 1986) (emphasis added).
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`BMS has not demonstrated any harm, let alone irreparable and imminent
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`harm. Tellingly, none of the cases BMS cites to in its brief were decided on a TRO
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`standard, and thus the issue of imminent harm was not before those courts. For
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`example, in Hough Associates, Inc. v. Hill, the Court was faced with an irreparable
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`harm analysis on a motion for preliminary injunction. In deciding to grant the
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`injunction, the Court found a threat of irreparable injury “when a covenant not to
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`compete is breached.” 2007 WL 148751, at *18 (Del. Ch. Jan. 17, 2007) (emphasis
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`added). BMS cannot avail itself of Hough’s analysis as it cannot demonstrate that
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`Dr. Berman has or will breach his Non-Compete Covenant. See also Delaware
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`Express Shuttle, Inc. v. Older, 2002 WL 31458243 (Del. Ch. Oc. 23, 2002)
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`(analyzing irreparable harm on a motion for permanent injunctive relief).
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`Similarly, the fact that Dr. Berman’s Non-Compete Covenant contains an
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`acknowledgment as
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`to
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`irreparable harm
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`is not dispositive. First,
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`the
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`acknowledgment was inextricably linked to proof of an actual violation of the
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`Non-Compete Covenant, which BMS cannot show. Second, irreparable harm must
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`be proven — it cannot be presumed. Even where the language of an agreement
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`shows that the employee “consents” to injunctive relief, the moving party must still
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`prove each and every element of the injunction standard to obtain such relief. See
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`Concord Steel, Inc. v. Wilmington Steel, Inc., 2009 WL 3161643, at *3 (Del. Ch.
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`Sept. 30, 2009) (though there was a contractual provision that held that the
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`employer would be irreparably harmed in the event of a breach and monetary
`
`damages would not suffice, the court still conducted an independent irreparable
`
`harm analysis).
`
`Other than unsupported allegations and general notions of concern, BMS has
`
`not proffered any evidence that it will be harmed, irreparably harmed, or
`
`imminently harmed. Such a cursory and conclusory showing is insufficient to
`
`demonstrate that BMS faces an imminent risk of irreparable harm in the absence of
`
`injunctive relief. See Nutzz.com v. Vertrue Inc., 2005 WL 1653974, at *10 (Del.
`
`Ch. July 6, 2005) (finding that plaintiff failed to show irreparable harm because its
`
`showing of irreparable harm was “quite cursory and largely conclusory”). For this
`
`further reason, the requested relief should be denied.
`
`D. The Balance of the Harms Weighs Against Issuing The Requested
`Relief, Even On A Temporary Basis, Because BMS Has No
`Evidence That Dr. Berman’s Employment with MedImmune
`Could Violate the Non-Compete Covenant.
`
`Finally, this Court should refrain from granting even the temporary relief
`
`requested because the balance of the harms do not favor BMS and are inconsistent
`
`with general principals of equity. Before enforcing even a temporary restriction,
`
`courts must weigh the interests the plaintiff seeks to protect against the harm to the
`
`defendant that would result from the restraint. Delaware Exp. Shuttle, Inc., 2002
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`118209053_1
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`14
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`
`
`
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`WL 31458243, at *11 (“Equity may decline to grant specific enforcement if the
`
`interests that the employer seeks to protect are ephemeral in contrast to the grave
`
`harm to the employee resulting from enforcing the restriction.”).
`
`The interests of equity require this Court to deny BMS’s instant request, as
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`the harm to BMS is nonexistent, while the harm in enjoining Dr. Berman would be
`
`substantial. Since Dr. Berman fully intends to comply with the restrictions in his
`
`Non-Compete Covenant, BMS has not and will not suffer any harm. By contrast,
`
`granting even a temporary restraint will have negative and lasting implications on
`
`Dr. Berman’s personal and professional life, including preventing him from
`
`earning a living and supporting his family. Research & Trading Corp. v. Pfuhl,
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`1993 WL 93369, *3 (Del. Ch. February 26, 1993) (“generally equity should not
`
`issue an injunction where the effect is to injure the defendant, but to supply no
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`substantial benefit to the plaintiff”). Dr. Berman’s decades of schooling, research,
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`and experience have rendered him uniquely suitable to conduct research in the vast
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`field of Immuno-Oncology and aid in the worldwide search for cures to the
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`complex disease that is cancer. Berman Aff. at ¶¶ 5-7. To deprive those like Dr.
`
`Berman who are working to cure cancer, not to mention those actually fighting it,
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`from his vital research is an irreparable harm in and of itself.
`
`BMS’s contention that any harm suffered by Dr. Berman is of his own doing
`
`is simply misplaced. The comparison to its cited case law, Comfort, Inc v.
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`118209053_1
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`15
`
`
`
`
`
`Mcdonald, is equally unavailing as that court’s analysis was premised upon the fact
`
`that the employee was working in the same capacity with his new employer as he
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`was with his old employer. 1984 WL 8216 (Del. Ch. June 1, 1984). Indeed, Dr.
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`Berman and MedImmune are fully prepared for him to abide by the Competitor
`
`Allowance and ensure he can live up to the obligations he knowingly assumed to
`
`BMS. To grant the requested relief, however, would mean that this Court would
`
`ignore the plain language of the Non-Compete Covenant and impose far broader
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`obligations on Dr. Berman than he accepted.
`
`When the damaging consequences that Dr. Berman, MedImmune, and the
`
`public at large would suffer by entry of any order limiting Dr. Berman’s activities
`
`are weighed against BMS’s unsupported concerns, it is clear that harm inflicted on
`
`Dr. Berman would far outweigh any harm to BMS. Consequently, for this further
`
`reason, the Court should deny the requested relief.
`
`III. CONCLUSION
`
`BMS has failed to meet its burden of establishing that a temporary
`
`restraining order is needed. Not only does BMS misquote the Non-Compete
`
`Covenant, and entirely ignore the plain and critical text of the Competitor
`
`Allowance, it proffers no evidence that Dr. Berman’s employment will violate his
`
`obligations. To adopt BMS’s interpretation would be to prevent Dr. Berman from
`
`performing any work in the I-O field without regard to whether his work would put
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`118209053_1
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`16
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`
`
`
`
`him at risk of revealing BMS’s confidential information. That is not the obligation
`
`that Dr. Berman agreed to, and it should not be the remedy this Court embraces.
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`Consequently, the Court should decline to issue the temporary restraining order
`
`BMS has requested.
`
`
`
`OF COUNSEL:
`Samuel M. First
`Richard E. Miller
`Jacobs Law Group
`2005 Market Street, Suite 1120
`Philadelphia, PA 19103
`(215) 569-9701
`
`
`
`Proctor Heyman Enerio LLP
`
`/s/ Samuel T. Hirzel
`Kurt M. Heyman (# 3054)
`Samuel T. Hirzel II (# 4415)
`300 Delaware Avenue, Suite 200
`Wilmington, DE 19801
`(302) 472-7300
`
` Attorneys for Defendant
`Dr. David Berman
`
`Dated: June 1, 2015
`
`
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`118209053_1
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`17
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`
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`C E R T I F I C A T E O F S E R V I C E
`
`Samuel T. Hirzel, II, Esq., hereby certifies that on June 1, 2015, copies of the
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`foregoing Defendant David Berman’s Brief in Opposition to Plaintiff Bristol-Myers
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`Squibb Co.’s Motion for Temporary Restraining Order were served upon the
`
`following:
`
`Gregory P. Williams
`Chad M. Shandler
`J. Scott Pritchard
`Richards Layton & Finger
`One Rodney Square
`920 North King Street
`Wilmington, DE 19801
`
`
`
`
`
`
`/s/ Samuel T. Hirzel, II
`Samuel T. Hirzel, II (# 4415)
`
`
`
`
`
`118209053_1
`
`
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