IMS HEALTH INFORMATION SOLUTIONS USA LLC v. LEMPERNESSE

Filing 29

OPINION fld. Signed by Judge Jose L. Linares on 1/19/16. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

IMS HEALTH INFORMATION
SOLUTIONS USA, LLC (f.k.a. Cegedim
Strategic Data USA, LLC)

Civil Action No.: 15-7561(JLL)
OPINION

Plaintiff,
V.

BRUI4O LEMPERNESSE.,
Defendant.
LINARES, District Judge.
Currently pending before the Court is Plaintiff IMS Health Information Solutions USA,
LLC (“Plaintiff’ or “IMS USA”)’s motion for a preliminary injunction, filed against Defendant
Bruno Lempernesse (“Defendant” or “Mr. Lempemesse”) on October 19, 2015. (ECF No. 1-5).
Specifically, Plaintiff, who alleges claims of misappropriation of trade secrets under the New
Jersey Trade Secrets Act (ECF No. 1, “Compl.”), seeks an order preliminarily enjoining Defendant
from competing with IMS USA pending the outcome of this action.
Defendant responded to Plaintiffs Motion on November 25, 2015 (ECF No. 19, “Defs.
Opp. Br.”), and Plaintiff filed a supplemental memorandum of law in support of its preliminary
injunction motion that same day (ECF No. 20, “P1’s. Supp. Br.”). The undersigned held a hearing
on Plaintiffs motion for a preliminary injunction on December 2, 2015, (see ECF No. 28,
Transcript, “Tr.”), and the Court reserved judgment on that motion.

After considering the

arguments made by the parties in their multiple filings, as well as the arguments raised during the

1

December 2, 2015 hearing, and for the reasons stated below, this Court denies Plaintiff’s motion
for a preliminary injunction.

BACKGROUND
A. Procedural Background

On October 19, 2015, Plaintiff IMS Health Information Solutions USA, LLC (“Plaintiff”
or “IMS USA”) filed a Verified Complaint alleging that Defendant Bruno Lempernesse, Plaintiff’s
former Chief Operating Officer, has misappropriated IMS USA’s trade secrets in violation of the
New Jersey Trade Secrets Act, N.J.S.A. 56:15-1, et seq. (ECF No. 1, Compl.). Accompanying
the Complaint was Plaintiff’s Motion for a Temporary Restraining Order (“TRO”), Preliminary
Injunction and Expedited Discovery. (ECF No. 1-4). On October 20, 2015, this Court granted
Plaintiff’s requests for a TRO and an Expedited Discovery schedule. (ECF No. 5). Among other
directives, the Court temporarily enjoined Defendant from competing with Plaintiff’s business and
required Defendant to return all tangible trade secrets and other proprietary information in his
possession to Plaintiff. (Id.). On October 28, 2015, the parties executed a Consent Order, which
this Court signed on October 29, 2015. (ECF Nos. 10, 11). To date, that Consent Order remains
binding on the parties.
Defendant responded to Plaintiff’s Motion on November 25, 2015 (ECF No. 19, “Def’s.
Opp. Br.”), and Plaintiff filed a supplemental memorandum of law in support of its motion that
same day (ECF No. 20, “P1’s. Supp. Br.”). The undersigned held a hearing on Plaintiff’s motion
for a preliminary injunction on December 2, 2015, but reserved judgment on Plaintiff’s motion.
(See ECF No. 28).
Afler considering the parties’ arguments, the Court determined that further briefing was
necessary with regards to the issue of whether IMS USA was bound by a Settlement Agreement
2

entered into between Defendant and IMS France, a non-party to the instant action. Accordingly,
on December 15, 2015, the Court ordered further briefing on this point. (ECF No. 25). In
accordance with this Court’s Order, Defendant filed his brief on December 23, 2015 (ECF No. 26,
“Def’s, Dec. 23, 2015 Br.”), and Plaintiff filed its opposition on December 30, 2015 (ECF No. 27,
“P1’s Dec. 30, 2015 Br.”). In short, Plaintiff’s motion for a preliminary injunction has been
thoroughly briefed, and is now ripe for this Court’s adjudication.
B. Factual Background

i.

The Parties

Plaintiff IMS USA is a Delaware corporation with its principle of place of business in Jersey
City, New Jersey.

(Compi.

¶

6).

Plaintiff is a wholly-owned subsidiary of IMS Health

Incorporated (“IMS Health”), which, “is a leading information, services, and technology company
dedicated to improving healthcare platforms.” (Id.

¶

11). According to the Complaint, “IMS

Health and its subsidiaries, such as IMS [USA], help customers improve patient outcomes and
operate more efficiently by providing clients with real-world evidence, advanced analytics, and
proprietary software platforms.” (Id). Healthcare providers, payers, and medical device and
consumer health manufacturers represent some of IMS Health’s clients. (Id.).
Defendant Bruno Lempernesse is a French citizen, currently residing in Bethesda, Maryland.
(ECF No. 19-1, Declaration of Bruno Lempemesse, “Lempernesse Decl.” 2). In 1995, Defendant
¶
began his employment with BKL Consultants, a French company. (Id. 3). In 2006, Defendant’s
¶
employment contract was transferred to a division of Cegedim, S.A., known as Cegedim Strategic
Data, which operates out of France (“CSD France”). (Id.

¶ 3).

According to Mr. Lempemesse,

“CSD collected medical data concerning patients and physicians from third parties, organized
it
and then analyzed it so that this information could be sold to and utilized by pharmaceutical

3

companies, research institutions, universities, and other customers.” (Id.). In 2011, CSD France
expanded its business into the United States. (Id.

¶ 4). At that time, Mr. Lemprenesse was

employed as the Chief Operating Officer of CSD’s global operation, with a goal of assisting with
the development of CSD USA’s business.

(Id.).

To that end, Defendant entered into an

expatriation agreement with CSD France, providing that although he would be paid directly by
CSD USA, he would remain employed by CSD France. (Id.

¶ 5). Defendant and his family then

relocated to the United States, where Mr. Lempemesse took on the responsibilities of Chief
Operating Officer of CSD USA. (Id.

¶ 4).

On April 1, 2015, IMS Health acquired certain assets of Cegedim S.A., the parent company of
CSD France and CSD USA. (Id.

¶ 11; Compi. ¶ 12). As a result of the acquisition, CSD USA

became IMS HIS (“IMS USA”, for purposes of clarity in this Opinion), and CSD France became
IMS France. (Compi.

¶ 12). Before this acquisition was consummated, Mr. Lempemesse and

CDS France had entered into a Change of Control Agreement, which provided that Defendant
would be entitled to certain benefits in the event that he was demoted as a result of the merger.
(Lempernesse DecI.

¶ 11). After the acquisition, Defendant and IMS France disagreed over

whether Mr. Lempernesse had suffered a demotion in his role, and Mr. Lempernesse sought to
enforce the benefits he believed he was entitled to under the Change of Control Agreement. (Id.

¶ 17; Compi. ¶ 28).
On September 11, 2015, following discussions between June 25 and September 1, 2015
between Defendant’s French counsel, IMS France, and IMS France’s counsel, IMS France and
Mr. Lempemesse executed a Settlement Agreement regarding Defendant’s termination with IMS
France. (Lempemesse Dccl.

¶ 17; Compl. ¶ 32; ECF No. 1-1, Settlement Agreement). Pursuant

4

to that Agreement, Mr. Lempernesse’ s employment contract with IMS France terminated effective
November 30, 2015. (See Settlement Agreement).
ii.

Plaintiff’s Allegations

Following Plaintiff’s termination with IMS France, IMS USA retained a forensic analyst
to examine Mr. Lempernesse’s work computer. (Compi.

J 33). According to Plaintiff and its

expert, the forensic examination revealed “highly unusual activity on at least two key dates of [Mr.
Lempemesse’ s] employment” that suggests that Defendant stole confidential proprietary
information from IMS USA, as well as its parent company. (Id.

¶J 30-45).

The first of these “two key dates” is June 8, 2015, which is the date that Plaintiff alleges
“Lempernesse rejected IMS France’s re-employment offer.” (Id.

¶ 34). Plaintiff alleges that on

that date, Defendant “inserted two USB storage devices into his work laptop and accessed over
1,400 documents and files from those devices..

.

.

[a] vast majority [of which] contained highly

confidential trade secrets belonging to [Plaintiff].” (Id.). Then, on September 1, 2015, on “the last
day of [Defendant’s] employment and mere hours before he was required to return all of the
Company’s documents, files, and devices,” Mr. Lempernesse allegedly inserted another USB
storage device and again accessed hundreds of documents containing Plaintiff’s trade secrets. (Id.

¶

38).

Examples of information allegedly stolen include highly confidential pricing grids,

information on key customers, copies of customer agreements, and “documents containing highly

confidential and proprietary information concerning IMS USA’s database analytics
and
composition methodologies that go to the core of the Company’s business.” (Id.

¶ 35).

Adding to Plaintiff’s concern of Defendant’s use or threatened misappropriation of trade
secrets is the fact that, despite this Court’s Order requiring Plaintiff to produce for forensic
examination the USB storage devices identified in IMS USA’s moving brief (ECF No. 11,

5

¶ 3),

Plaintiff has apparently failed to provide the USB drives. (P1’s. Dec. 30, 2015 Br. at 1). Moreover,
Plaintiffhas “testified to two different and conflicting theories to explain why he has not produced”
one of those USB drives. (P1’s. Dec. 30, 2015 Br. at 1).
Plaintiff explains that Mr. Lempemesse’s alleged theft of trade secrets is particularly
troublesome in light of evidence that Defendant intends to start a new business in direct
competition with IMS USA. (Id.

¶ 49). Plaintiff’s allegations of Mr. Lempernesse’s intent to

compete are premised upon, among other things, IMS USA’s knowledge, gained through its
industry contacts, that Bruno Sarfati—Defendant’s former boss (and former CEO of Cegedim’s
Strategic Data Business)—and Defendant are in the process of forming a new business by the
name of “Real Data Consulting.” (Id. ¶J 49-57). Indeed, at the December 2, 2015 hearing on this
matter, Plaintiff confronted Defendant with evidence that he and Mr. Sarfati had recently created
a company by the name of Real Life Data. (Tr. at 86-93). While Defendant initially represented
to

the

Court

that

this

is

a

“sleeping”

company

that

“is doing nothing,” (Tr. at 89:18-19), he later admitted that the company will be “about consulting
services” in the pharmaceutical context. (Id. at 98:13-20).
Against this backdrop, Plaintiff now alleges a single count against Defendant for
misappropriation of trade secrets in violation of the New Jersey Trade Secrets Act. (Compl.
58-67).

¶J

Currently pending before the Court is IMS USA’s motion to preliminarily enjoin

Defendant “from competing against IMS USA in any capacity, and specifically with Bruno Sarfati,
until (1) IMS USA has the opportunity to take further discovery; and (2) a fmal hearing for a
permanent injunction takes place and a ruling is issued by this Court.” (Def’s. Dec. 30, 2015 Br.
at 20).

6

LEGAL STANDARD

The granting of a preliminary injunction “is an extraordinary remedy.

.

.

which should be

granted only in limited circumstances.” Frank’s GMC Truck Center, Inc. v. General Motors
Corp., 847 F.2d 100, 102 (3d Cir. 1988). “The purpose of such an injunction is to protect the
moving party from irreparable injury until the court can render a meaningful decision on the
merits.” Caplan v. Feliheimer Eichen Braverman & Kaskly, 68 F.3d 828, 839 (3d Cir. 1995).
Before a court can enter a preliminary injunction, the moving party must show: “(1) a likelihood
of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that
granting preliminary relief will not result in even greater harm to the nonmoving party; and (4)
that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004); see also Ortho Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 812 (3d Cir. 1989).
While a district court is required to balance these four factors, the Third Circuit has held
that a court may not enter a preliminary injunction where the plaintiff has not carried its burden of
showing a likelihood of success on the merits. See In re Arthur Treacher Franchisee Litig., 689
F.2d 1137, 1143 (3d Cir. 1982) (“[A] failure to show a likelihood of success or a failure to
demonstrate irreparable injury[

]

must necessarily result in the denial of a preliminary

injunction.”); see also Morton v. Beyer, 822 F.2d 364, 367 (3d Cir. 1987).

DISCUSSION

Plaintiff’s basis for seeking a preliminary injunction is its allegation that Defendant has
violated the New Jersey Trade Secrets Act, which “prohibits the actual or threatened
misappropriation of a trade secret.” N.J.S.A.

§

56:15-3; see also Diverszfted Industries, Inc. v.

Vinyl Trends, Inc., No. 13-cv-6194, 2014 WL 1767471 (D.N.J. May 1, 2014) (Simandle, C.J.).
Thus, the Court must decide whether Plaintiff is likely to succeed on his claims of misappropriation
7

under the Act. In considering Plaintiff’s likelihood of success on the merits, however, the Court
must also consider the defenses offered by Mr. Lempernesse.
Among other defenses, Mr. Lempemesse contends that the Settlement Agreement entered into
between Defendant and IMS France on September 11, 2015, either precludes this action to begin
with, or, at the very least, that the Agreement’s Forum Selection Clause requires that this action
be brought in France, for the French courts to determine whether Plaintiff’s lawsuit against
Defendant is barred.
i.

The Settlement Agreement

In Defendant’s brief in opposition to Plaintiff’s motion for a preliminary injunction (ECF No.
19), he stated that the instant lawsuit is barred because the September 11, 2015 Settlement
Agreement “expressly provides that the parties release each other from all claims that have arisen
or that may arise out of the performance and termination of Mr. Lempernesse’s employment
.”
(Dci’s. Opp. Br. at 35). Defendant also argued that “[i]f nothing else, whether the Settlem
ent
Agreement, as interpreted under French law, precludes IMS USA’s claims of misappropriat
ion is
a disputed issue that should preclude entry of preliminary injunctive relief, at least until such time
as the French court decides this issue in the prior pending French action.” (Id. at n.21). Plainti
1
ff
foresaw this argument in its moving brief, and argued that the Settlement Agreement is not
applicable to TMS USA because it did not sign the Agreement, and that even if IMS USA were

According to Mr. Lempemesse, “[o]n October 7, 2015, [he] received a letter from the law
firm
of Morgan Lewis & Bockius, on behalf of IMS Health, the parent company of IMS France
and
IMS USA, accusing [him] of misappropriating IMS Health’s confidential information, deman
ding
the return of its information and threatening legal action.” (Lempernesse Decl. 32). Believ
ing
¶
the October 7, 2015 letter to constitute a breach of the September 11, 2015 Settlement Agreement,
Defendant filed a lawsuit in France against IMS France. (Id. 32; Del’s. Opp. Br. at 5, n.3).
¶
8

bound by the Agreement, that the Agreement would not bar this action as its claims of
misappropriation are “not related to or dependent on” that Agreement. (P1’s. Mov. Br. at 16 n.4).
After reviewing the parties’ briefs and hearing the parties’ arguments as to the effect of the
Settlement Agreement on the instant action, the Court Ordered Defendant to file a brief
“specifically addressing his position that IMS USA, a non-signatory to the Settlement Agreement,
is nevertheless bound by its terms” as well as “the effect, if any, that Article 9 (the Forum Selection
Clause) of the Settlement Agreement has on the pending action.” (ECF No. 25). The Court also
permitted Plaintiff the opportunity to respond. (Id.). Per this Court’s Order, Mr. Lempernesse
filed his supplemental brief on December 23, 2015. (ECF No. 26, “Del s. Dec. 23, 2015 Br.”).
Plaintiff responded on December 30, 2015. (ECF No. 27, “P1’s. Dec. 30, 2015 Br.”).
Defendant now argues, inter alia, that IMS USA, albeit a non-signatory to the Settlement
Agreement, is nevertheless bound to the Agreement’s waiver and forum selection clauses as a
third-party beneficiary of that Agreement. (Def’s. Dec. 23, 2015 Br. at l01l).2
ii

Legal Standard: The Third Party Beneficiary Doctrine

“Ordinarily, a party not a signatory to a contract cannot be bound by the terms of that contract.
As a general matter, the Third Circuit is reluctant to enforce a contractual clause against a nonparty, unless ‘accepted principles of agency or contract’ make it appropriate.” Beth Schiffer Fine
Photographic Arts, Inc. v. Colex Imaging, inc., No. 10-cv-5321 (WHW), 2014 WL 1908500, *3

Mr. Lempernesse also argues that IMS USA is bound to the Agreement by the contractual
principle of assumption and equitable estoppel. (Id. at 10-16). Lastly, Defendant contends
that
IMS USA is bound to Article 9’s forum selection clause under the “closely related” party doctrine.
(Id. at 16-20). Plaintiff contests the applicability of these doctrines to bind IMS USA to
the
Agreement. (P1’s. Dec. 30, 2015 Br.). Because the Court agrees with Defendant that IMS USA
is
bound to the Settlement Agreement as a third-party beneficiary, the Court need not address the
alternative theories offered by Defendant.
2

9

(D.N.J. May 13, 2014) (quoting E.I. DuPont de Nemours & Co v. Rhone Poulenc Fiber & Resin
Intermediates, S.A.S., 269 F.3d 187, 194, 202 (3d Cir. 2001)); see also Bedwell Co. v. Camden
County Improvement Auth., No. 14-cv-1531 (JET), 2014 WL 3499581, *3 (D.N.J. July 14, 2014)

(“Except for limited circumstances not present here, a contract cannot define the legal obligations
between two entities unless those two entities are parties to the contract.”). That said, courts have
held a non-signatory bound to a contract where that signatory can be said to be a “third party
beneficiary” of the contract. See, e.g., First Nat. State Bank ofNew Jersey v. Commonwealth Fed.
Say. & Loan Ass’n ofNorristown, 610 F.2d 164, 170 (3d Cir. 1979).

For a third party to be bound to a contract as a third party beneficiary, it must be shown that
the contract was “made for the benefit of said third party within the intent and contemplation of
the contracting parties.” First Nat. State Bank ofNew Jersey v. Commonwealth Fed. Say. & Loan
Ass’n of7Vorristown, 610 F.2d 164, 170 (3d Cir. 1979) (quoting Gold Mills, Inc. v. Orbit Processing

Corp., 121 N.J. Super. 370, 373 (Law Div. 1972)). Stated differently, “[ujnder New Jersey law,
‘the intention of the parties to recognize a right of performance in the third party is the critical
factor that governs the characterization of the beneficiary.” Coastal Group, Inc. v. Westholme
Partners, Civ. No. 94-3010, 1998 WL 34233133, *13 (D.N.J. 1998) (Hayden, J); see also Borough

ofBrookiawn v. Brookiawn Housing Corp., 11 A.2d 83, 85 (N.J. 1940). Interpreting New Jersey
contract law, the Seventh Circuit has recognized that in order to prove one’s status as a third-party
beneficiary, an individual must show that “the benefit to [the party] must have been, to some
extent, a motivating factor in the parties’ decision to enter the contract.” Corrugated Paper
Products v, Longview Fibre Co., 868 F.2d 908, 912 (7th Cir.1989); see also Coastal Group, Inc.,
1998 WL 34233133, *14.
iii.

IMS USA is a Third-Party Beneficiary of the September 11, 2015 Settlement
Agreement

10

Defendant argues that IMS USA is a third party beneficiary of the Settlement Agreement
because it received numerous benefits under the Agreement. (Defs. Dec. 23, 2015 Br. at 12).
Specifically, he notes that under the Agreement, he expressly “confirm[ed] that he is fully satisfied
in his right resulting from the termination of his expatriation contract with CSD USA (the
predecessor to IMS USA) and that no amount is owed to him in this respect.” (Def’s. Dec. 23,
2015 Br. at 12; Agreement, Article 1.2). Mr. Lempernesse also agreed “not to use for himself or
to the benefit of any third party or entity, any confidential information.

.

.

as well as any other

confidential information concerning the Company, CSD USA or any other company of the IMS
group that operates within the business acquired from the Cegedim group” (Id. at 13; Agreement,
Article 5) and he promised to “reimburse the Company or CSD USA, for any taxes that they may
have to pay on his behalf’ (Id.; Agreement, Article 7). Lastly, in Article 3 of the Settlement
Agreement, Mr. Lempernesse agreed that “all accounts between him and the Company, CSD USA
and all other companies of the group are settled, without any exceptions or reservations
whatsoever,” and also expressly released IMS USA from “any claim, request, action or proceeding
relating, in particular, to the events detailed in the preamble to this agreement, but more generally
for any reason whatsoever” (id.).
Plaintiff responds that the evidence does not show that the contract was made for the benefit
of IMS USA. (P1’s. Dec. 30, 2015 Br. at 10). Instead, Plaintiff states that
the purpose of the Agreement was to resolve a dispute between IMS
regarding the Change of Control Agreement.

.

.

“[ut is undisputed that

[] France and Lempernesse

[which] does not even mention IMS [USA] or its

predecessor.” (Id.). The purpose of the Agreement was so that “IMS France could avoid
paying
[j
the full liability under the Change of Control Agreement and Lempemesse would avoid
the risk

11

and burden of litigation.” (Id. at 11). IMS USA also notes that none of its attorneys were involv
ed
in the making of the contract. (Id.).
The Court agrees with Mr. Lempernesse that IMS USA is a third-party beneficiary of
the
Settlement Agreement. As discussed above, for a non-signatory to be bound to a contrac
t as a
beneficiary, it must be shown that the contract was ‘“made for the benefit of said third party
within
the intent and contemplation of the contracting parties.” First Nat. State Bank of New
Jersey v.
Commonwealth Fed. Say. & Loan Ass’n ofNorristown, 610 F.2d 164, 170 (3d Cir. 1979)
(quoting

Gold Mills, Inc. v. Orbit Processing Corp., 121 N.J. Super. 370, 373 (Law Div. 1972))
. Courts
consider whether a party is named in the contract as evidence of the signatories’ intenti
ons that a
third party benefit from that contract. See, e.g., E.I. DuPont de Nemours and Co. v. Rhone
Poulenc

Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 196 (3d Cir. 2001) (finding the
parent
corporation was not an intended third party beneficiary of a contract where the contrac
t itself
identified three beneficiaries—of which the parent corporation was not one); see, also, I.I-LO
.P
No. 46-3 v. International House ofPancakes, Inc., Civ. No. 11-1044, 2011 WL 93878 *3
7,
(D.N.J.

Mar. 16, 2011) (Martini, J) (“The mere fact that Plaintiffs are not specifically named in
the lease
is not a bar to a court finding that they are intended third-party beneficiaries—whethe
r a party is
named in a contract is only one form of evidence of the parties’ intentions.”); Beth Schiffe
r, 2014
WL 1908500, *4 (finding that defendant failed to show that plaintiff was a third party
beneficiary
of a warranty where, among other things, the warranty “d[id] not name or reference
[pjlaintiff’).
Here, the Settlement Agreement expressly names CSD USA (the predecessor
to IMS USA)
numerous times.

Moreover, it is evident from the four corners of the Agreement that Mr.

Lempernesse and IMS France intended that IMS USA would reap significant
benefits from the

12

parties’ contract. The following provisions of the Settlement Agreement are telling of the parties’
concern that the Settlement Agreement benefit IMS USA:
•

Article 1.2. Relocation.
“The Employee confirms that he is fully satisfied in his right
resulting from the termination of his expatriation contract with CSD USA and that no
amount is owed to him in this respect.”

•

Article 3. Concessions made by the Employee.
“The Employee hereby declares that
all accounts between him and the Company, CSD USA and all other companies of the
group are settled, without any exceptions or reservations whatsoever... As a result, the
Employee. waives any claim. connected with the conclusion, execution, modification
or termination of his employment contract with the Company, against the Company, CSD
USA or any other company of the IMS group.”

.

.

.

.

.

.

.

.

•

.

.

Article 5. Confidentiality and non-disparagement.. “The Employee undertakes not
to use for himself or to the benefit of any third party or entity, any confidential information
(that is to say not generally known by the public). concerning the Company, CSD USA
or any other company of the IMS group.
.

.

.

•

.

.

.

Article 7. Tax Regime.
“The Employee undertakes, as the case may be, to reimburse
the Company or CSD USA, for any taxes that they may have to pay on his behalf for the
amounts paid to him under this agreement.”
.

.

.

In short, the Settlement Agreement clearly demonstrates the parties’ “contractual intent to
recognize a right to performance in” IMS USA. Broadway Maintenance Corp. v. Rutgers, State
University, 90 N.J. 253, 259 (1982). Moreover, the Restatement (Second) of Contracts

§ 302,

which has been cited approvingly by the New Jersey Supreme Court, see Broadway Maintenance,
90 N.J. at 259, provides that a non-signatory is an intended beneficiary where, inter alia, “the
circumstances indicate that the promisee intends to give the beneficiary the benefit of the promise
performed.” It is clear that by executing the Settlement Agreement, Defendant agreed to give IMS

13

USA the benefit of its promises, as listed above. For these reasons, the Court finds that IMS
3
USA
is a third-party beneficiary of the Settlement Agreement.
iv.

As a Third-Party Beneficiary, Plaintiff is Bound by Article 9’s Forum Selection
Clause

Article 9 of the Settlement Agreement provides: “Any dispute arising out of difficulties in the
interpretation or performance of this Agreement shall be governed by French law and submit
ted
to the French courts ofcompetentjurisdiction.” (ECF No. 26-2, Declaration of Christopher Gould
)
(emphasis added). As the Court has found that Plaintiff is a third-party beneficiary to the instant
4
action, the Court necessarily finds that Plaintiff is bound to Article 9’s Forum Selection Clause
,
requiring that the instant dispute be governed by French law, in the French courts. (Id.).
Moreover, the Court finds that the Forum Selection Clause in the Settlement Agreem
ent is
enforceable in this Court. “In federal court, the effect to be given a contractual forum
selection
clause in diversity cases is determined by federal not state law.” Jumara v. State Farm
Ins. Co.,
55 F.3d 873, 877 (3d Cir.1995); see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S.
22, 27—32
(1988). Under federal law, in order for a forum selection clause to be enforceable, “the
choice of
forum must be mandatory rather than permissive. To assess whether a forum selecti
on clause is
mandatory, the court looks to the wording of the agreement and applies ordina
ry principles of
The question of whether Defendant did, in fact, maintain the sanctity of the Compa
ny’s
proprietary information and uphold his promise to not misappropriate that information,
is a
question that the Court need not opine on in light of its finding that Defendant’s “Settle
ment
Agreement” defense has merit.
Defendant has provided a Declaration of Christopher Gould, an American lawyer and
translator
of French legal documents, who attests to this English translation of Article 9, which
differs from
IMS USA’s English translation. IMS USA does not dispute the accuracy of Defend
ant’s
translation; instead, it merely argues that the Court should disregard Plaintiff’s transla
tion
because Mr. Lempernesse should not be allowed to “cherry-pick only certain portion
s of IMS
[USAJ’s English translation to support his affirmative defense.” (P1’s. Dec. 30, 2015
Br. at 7,
n.2), Given that Plaintiff does not refute the accuracy of Defendant’s translation,
the Court will
accept the translation certified to by Christopher Gould.
14

contract interpretation.”

Union Steel Am. Co. v. M/V Sanko Spruce, 14 F.Supp.2d 682, 687

(D.N.J, 1998) (internal citations and punctuation omitted). In short, the Court must determ
ine
whether the plain language of the contract “unambiguously states the parties’ intentions” to
make
jurisdiction exclusive. John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1074
(3d
Cir. 1997) (citation omitted). The forum selection clause, however, does not have to contain
language such as “exclusive” or “sole” to be mandatory. Wall Street Aubrey Goif LLC v. Aubrey
,
189 Fed. App’x 82, 84—86 (3d Cir.2006) (upholding a forum selection clause, which stated “[t]his
Lease shall be construed in accordance with the laws of the Commonwealth of Pennsylvania,
with
venue laid in Butler County, Pennsylvania,” and finding it unambiguous “[djespite the provis
ion’s
failure to use words like ‘exclusive’ or ‘sole’ with respect to venue”). Overall, the “clause must
be reasonably capable of only one construction.” Wyeth, 119 F.3d at 1074 (citation omitted).
A forum selection clause is presumptively valid and enforceable by the forum unless the
objecting party establishes (1) that it is the result of fraud or overreaching, (2) that enforc
ement
would violate a strong policy of the forum, or (3) that enforcement would, in the
particular
circumstances of the case, result in litigation in a jurisdiction so seriously inconvenient
as to be
unreasonable. See See Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190,
202 (3d
Cir,1983); see also Days Inns Worldwide, Inc. v. Royal Hospitality Grp., LLC, No. 12—5028,
2013
WL 538343, at *3 (D.N.J. Feb.13, 2013) (citing standard).
Here, the Forum Selection Clause unambiguously indicates the parties’ intention
to litigate
“[ajny dispute arising out of difficulties in the interpretation or performance of this
Agreement,”
in French courts, and Plaintiff has not disputed the validity of the Clause; rather,
Plaintiff disputes
the applicability of the clause to its claims of misappropriation.

The Court is cognizant of

Plaintiff’s argument that its claims are “independent and distinct from the
Agreement” and
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therefore “should not be subject to the forum selection or choice of law provisions in that
document.”

(P1’s. Dec. 30, 2015 Br. at 17).

However, whether Plaintiff’s claims of

misappropriation and threated misappropriation of trade secrets are in fact independent of the
Settlement Agreement is an issue relating to the “interpretation” of the Agreement, and therefore
subject to the Forum Selection Clause.
v

Plaintiff has Failed to Show a Likelihood of Success on the Merits

In light of the above finding that Plaintiff is bound by the Settlement Agreement’s Forum
Selection Clause as a third-party beneficiary, the Court finds that, regardless of the strength of IMS
USA’s prima facia case for violation of the New Jersey Trade Secrets Act, Plaintiff cannot show
a likelihood of success on the merits, as this case is destined to be handed by the French judicial
system.
CONCLUSION

For the reasons stated herein, the Court DENIES Plaintiff’s motion for a preliminary
injunction. An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
DATED: January

JO. LINARES
U14iTED STATES DISTRICT JUDGE

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