IN THE COURT OF CHANCERYOF THE STATE OF DELAWARE
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`EFiled: Jun 02 2015 09:37AMERT
`7
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`4
`)”
`Transaction ID 57319927
`LG EF
`6 wees
`Case No. 11076-VCL
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`
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`BRISTOL-MYERS SQUIBB CO.,
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`Plaintiff,
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`C.A. NO. 11076-VCL
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`- against -
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`DAVID BERMAN,
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`Defendant.
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`REPLY AFFIDAVIT OF MICHAEL F. BURGESS
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`Michael F. Burgess, being duly sworn, states as follows:
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`1.
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`I am overthe age of 21 and am competentto give this affidavit.
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`I am
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`providing this affidavit based on my personal knowledge. If called to testify to the
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`facts contained herein, I could do so competently.
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`2.
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`As
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`I have previously testified,
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`I
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`am Senior Vice President,
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`Exploratory Clinical & Translational Research for Bristol-Myers Squibb Company
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`(“BMS”). David Berman was BMS’s Vice President, Lead of Immuno-Oncology
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`(“I/O”) Exploratory Development Team (“EDT”).
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`I was hisdirect supervisor.
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`3.
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`I submit this reply affidavit in response to the affidavit and brief filed
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`by Mr. Berman yesterday evening at 7:30 PM (“Berman Aff.” and “Opp. Br.”).
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`Many of the statements in Mr. Berman’s affidavit and brief are inaccurate or, at
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`minimum, worded to create a misleading impression. The purpose ofthis reply
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`EFiled: Jun 02 2015 09:37AM EDT
`Transaction ID 57319927
`Case No. 11076-VCL
`
`
`
`
`
`
`
`
`
`
`EFiled: Jun 02 2015 09:37AMERT
`7
`;
`4
`)”
`Transaction ID 57319927
`LG EF
`6 wees
`Case No. 11076-VCL
`
`
`
`BRISTOL-MYERS SQUIBB CO.,
`
`Plaintiff,
`
`C.A. NO. 11076-VCL
`
`- against -
`
`DAVID BERMAN,
`
`Defendant.
`
`REPLY AFFIDAVIT OF MICHAEL F. BURGESS
`
`Michael F. Burgess, being duly sworn, states as follows:
`
`1.
`
`I am overthe age of 21 and am competentto give this affidavit.
`
`I am
`
`providing this affidavit based on my personal knowledge. If called to testify to the
`
`facts contained herein, I could do so competently.
`
`2.
`
`As
`
`I have previously testified,
`
`I
`
`am Senior Vice President,
`
`Exploratory Clinical & Translational Research for Bristol-Myers Squibb Company
`
`(“BMS”). David Berman was BMS’s Vice President, Lead of Immuno-Oncology
`
`(“I/O”) Exploratory Development Team (“EDT”).
`
`I was hisdirect supervisor.
`
`3.
`
`I submit this reply affidavit in response to the affidavit and brief filed
`
`by Mr. Berman yesterday evening at 7:30 PM (“Berman Aff.” and “Opp. Br.”).
`
`Many of the statements in Mr. Berman’s affidavit and brief are inaccurate or, at
`
`minimum, worded to create a misleading impression. The purpose ofthis reply
`
`EFiled: Jun 02 2015 09:37AM EDT
`Transaction ID 57319927
`Case No. 11076-VCL
`
`
`
`
`
`
`
`
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`affidavit is to attempt to correct some of the more egregious inaccuracies made in
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`Mr. Berman’s affidavit. Because of the short notice before this morning’s hearing,
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`this affidavit cannot correct all of them.
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`The Scopeof “Competition”
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`4.
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`I understand that Mr. Berman claims he is permitted work for
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`MedImmune/AstraZeneca “as long as he is not involved in drugs that directly
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`compete with those he was most involved at BMS.” Opp. Br. at 4-5.
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`(emphasis
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`added).
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`5.
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`The portion of the Non-Compete that Mr. Berman cites, however,
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`does not contain such language.
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`Instead, he is prohibited from anyaffiliation that
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`“involve[s] any product,
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`investigational compound,
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`technology or service that
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`competes with product,
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`investigational compound,
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`technology or service with
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`which you were involved in the past twelve months .. .” Market Share Units
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`Agreement, Exh. B to Verified Compl. (“MSU”), at {| 3(a)(ii) (emphasis added).
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`The Court will notice that the provision does not contain the phrases “directly
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`competes” or “most involved.”
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`6.
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`Further, I understand that Mr. Berman hastestified that, in order for
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`two drugs to “compete,” those two drugs have to have “the same mechanism.”
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`Berman Aff. §21. That is clearly contrary to the concept of “competition” within
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`the pharmaceutical industry, and would essentially mean that only true copycat or
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`
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`generic drugs could ever be considered competitors.
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`Such a definition would
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`render the concept of competition meaningless.
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`7.
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`Instead, drugs (or targets for potential drugs) are considered to
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`“compete” when they are used for (or have potential uses for) the same diseases,
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`which here would be types of cancer.
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`In that regard, two I/O drugs that both are
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`being developed to treat, for example, metastatic melanoma, may be considered
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`competitors even though they operate somewhat differently from each other. To
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`give an example, a physician may be presented with a patient who has metastatic
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`melanoma,and will thereafter select from a number of competing medicines which
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`to prescribe.
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`The Scope of BMS’s I/O Activities
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`8.
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`As Mr. Berman acknowledges, BMS’s I/O efforts are not limited to
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`the targets (i.e., investigational compounds or molecules) named in its verified
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`complaint, or to the indications (i.e,
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`types of cancer) named in its verified
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`complaint, or to its drugs Yervoy® and Opdivo®.
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`Indeed, at BMS, Mr. Berman
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`himself focused on early-stage investigations, though he had involvement with the
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`entire I/O portfolio.
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`9.
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`In fact, BMSis actively researching numeroustargets for potential use
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`as I/O medicines. Such targets have potential indications widely in many types of
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`cancer. While at BMS, Mr. Berman was“involved” with all such I/O targets.
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`
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`10.
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`As regards its drugs Yervoy® and Opdivo®, BMSis actively
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`researching their use for numerous other potential indications, both alone and in
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`combination with other medicines for the treatment of a variety of cancers. While
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`at BMS, Mr. Berman’s responsibilities related to that research.
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`Further, Mr.
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`Berman was involved in research related to Yervoy®’s and Opdivo®’s potential
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`uses in combination with other drugs or othertargets.
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`11.
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`BMS’s non-compete covenant is designed to protect the company not
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`only in the event of competition for current products that have current approval,
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`but also to protect the integrity and confidentiality of BMS’s non-public research
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`and competitive intelligence. For example, BMS understands that AstraZenecais
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`developing a target, NKG2a,that will compete with KIR, a target that BMShas in
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`Phase If trials and which Mr. Berman worked on. KIR is similar to NKG2a, and
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`information is transferable between targets as they act on the samecell.
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`In fact,
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`Mr. Berman was on the steering committee between BMS and Innate Pharma
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`regarding KIR.
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`12.
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`In fact, many of the targets and indications that BMSis investigating
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`and combinations of medicines have not even been disclosed to the public. Like
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`many of its competitors, BMS does not announceearly-stage investigation targets
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`to the public, because it does not want to tip its hand to competitors, including
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`AstraZeneca or MedImmune. Because of that,
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`it will be impossible for Mr.
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`
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`Berman to work within the I/O space without
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`revealing confidential BMS
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`information, even inadvertently. Even the act of recusal with respect to a potential
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`AstraZeneca target will make clear that BMS is pursuing the same target and
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`indicate that such target is therefore worth pursuing. That is precisely the type of
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`competitive harm that the non-compete covenant and confidentiality agreement are
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`designed to prevent. Confidentiality Agreement, Exh. A to Verified Compl. at § 4
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`(“I will not use, disclose to others .
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`.
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`. discoveries and inventions or any other
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`information not publicly available .
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`.
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`. .”) (emphasis added).
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`Mr. Berman’s Involvement in BMS’s I/O
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`13. Mr. Bermaninsists that his “role at BMS wassignificantly narrower
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`than BMS claims.” Berman Aff. § 41. That is not true. Given that the language of
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`the non-compete focuses on what BMS products and targets Mr. Berman was
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`“involved” with, I will use that language in describing his activities in manner
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`consistent with my understanding of “involved.”
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`14. During his time at BMS,
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`including within the last twelve months,
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`Berman was “involved” with BMS’s entire I/O portfolio. Some specific examples
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`of his involvement follow:
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`15. Mr. Berman wasoneof a few employees involved in crafting BMS’s
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`long-term strategic plan for its entire I/O portfolio.
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`In fact, I rememberclearly
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`being asked by Mr. Bermanto pay for his travel expenses from Florida, as he was
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`
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`on vacation, out of my own budget, so that he could attend the meeting in New
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`York at which a five-year I/O plan was prepared. He was one of eleven
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`workstream leaders at that meeting. His claim that he was merely one of dozens
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`understates the significance of his involvement.
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`
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`16. On September 15, 2014, Mr. Berman madeapresentation to the
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`Science and Technology Committee of the Board of Directors. His presentation
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`topic was _Immuno-Oncology: Next Wave of Indications. The agenda for that
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`meeting is attached as Exhibit 1. Mr. Bermanhas presented on the I/O portfolio to
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`the Board on other occasionsas well.
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`17.
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`On February 3-4, 2015, Mr. Berman attended a Global Leadership
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`Team meeting of approximately 200 BMSexecutives. At this meeting he was one
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`of the leaders of a session where he presented on the strategy for BMS’s entire I/O
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`portfolio. The slide deck for that meeting notes that Mr. Bermanis part of IO
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`Leadership for the mid- to long-term pipeline strategy.
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`18.
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`On February 24, 2015, Mr. Berman participated in the 2015 Strategic
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`Planning Meeting for I/O. The slide deck for the meeting noted Mr. Berman as a
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`member of the I/O Working Team which would “have responsibility for
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`developing the I-O R&D Strategy.”
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`19. Mr. Berman makes other vague assertions
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`that
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`are
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`similarly
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`misleading. For example, he states that he was “not responsiblefor evaluation and
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`
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`development of new I-0 targets, was not closely connected to the entire I-0
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`portfolio and was certainly not responsible for BMS's entire worldwide 1-0
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`portfolio.” Berman Aff. at § 41 (emphasis added). Berman doesnot state, because
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`he cannot, that he was not “involved” with those functions; he certainly was
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`involved for at least the reasons described inthis affidavit.
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`20. Mr. Berman further
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`states
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`that he did not have “oversight”
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`responsibilities and did not make “major decisions.” Berman Aff. at 41. While
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`Mr. Bermandid, clearly, report to more senior personnel within the company, he
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`was “involved”in the process by which major decisions were made. Asis set forth
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`herein, Mr. Berman not only served in leadership roles within I/O, he also directly
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`presented to the Board of Directors.
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`21. Mr. Berman further attempts to state that he has had no role with
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`Yervoy® or Opdivo® since 2013. Berman Aff. at §41. That is incorrect. First,
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`Mr. Berman has been involved with the CTLA4 probody program within the last
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`twelve months;
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`that program is developing the next generation of Yervoy®.
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`Second, Mr. Berman has within the last
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`twelve months been involved with
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`research and development of combination treatments comprising Yervoy® and/or
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`Opdivo® in conjunction with other molecules or compounds.
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`Conclusion
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`22.
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`Because Mr. Berman’s responsibilities at BMS extended to BMS’s
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`entire I/O portfolio,
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`including targets and indications still
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`in the research and
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`development stage, BMS interprets Mr. Berman’s non-compete obligations to
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`extendto all of I/O for its twelve-month duration.
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`23.
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`If Mr. Bermanis permitted to work in I/O in AstraZeneca, he will be
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`working with full non-public knowledgeof:
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`e What I/O targets and pathways BMSis and is not researching and the
`status of each such program;
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`e What types of cancer BMS is and is not targeting as part of its I/O
`strategy;
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`e What additional indications BMSis seeking for its drugs Yervoy® and
`Opdivo®;
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`e What combinations of I/O medicines BMSis exploring;
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`e Where BMS’s strengths and weaknesseslie in I/O; and
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`e What competitive intelligence (regarding AstraZeneca and others) BMS
`does and does not possess.
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`24.
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`For the foregoing reasons, BMS submits that any employment within
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`V/O at a competing businesswill result in an inevitable use or disclosure of BMS’s
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`confidential information, even if inadvertently or indirectly.
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`25.
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`I swear underpenalty of perjury that the foregoingis true and correct.
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`
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`MichaelF, Burgess
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`Sworn to before me this “2,.day of June, 2015.
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`Notary tsa
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`CIAL SEAL"
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`:NotaryPublic,State ofIinois
`
`Mabra L. McCumber
`
`
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