ALMAC CLINICAL SERVICES, LLC et al v. AERI PARK et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 10/11/16. 10/11/16 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALMAC CLINICAL SERVICES, LLC, et al.
AERI PARK, et al.
October 11, 2016
On September 13, 2016, plaintiffs Almac Sciences, LLC and Almac Clinical Services,
LLC filed a complaint against defendants Dr. Aeri Park and Triclinic Labs, Inc. in connection
with Dr. Park’s resignation from plaintiffs’ employ and subsequent employment by Triclinic.
Dkt. No. 1. The amended verified complaint seeks both damages and injunctive relief based on
claims of breach of contract against Dr. Park, violation of the Uniform Trade Secrets Act against
Dr. Park and tortious interference with existing and prospective contractual relations against Dr.
Park and Triclinic Labs. Dkt No. 6. Plaintiffs specifically request an injunction to prevent Dr.
Park from working for Triclinic Labs for six months in conformity with plaintiffs’ understanding
of her employment agreement. Dkt. No. 2. On September 13, 2016, I denied plaintiffs’ request
for a temporary restraining order. Dkt. No. 7.
Presently before me is plaintiffs’ request for a preliminary injunction and memorandum
of law in support, Dkt. No. 2, plaintiffs’ supplemental memorandum of law in support, Dkt. No.
20, and defendants’ response. Dkt. No. 19. Following a brief period of expedited discovery, I
held an evidentiary hearing and oral argument on October 5 and 6, 2016. For the following
reasons, I will deny plaintiffs’ motion.
Almac’s Industry and Employment of Aeri Park
Almac Group Ltd. is the parent company of several subsidiaries including Almac
Sciences, Ltd., a U.K.-based company operating a lab in Craigavon, Northern Ireland that
performs solid-state testing for pharmaceutical, academic and other customers, and Almac
Clinical, LLC a U.S.-based company in Souderton, Pennsylvania that sells clinical packaging.
Hr’g Tr. 17:3-18:4. In 2009, Almac Clinical, LLC hired Dr. Aeri Park, an expert in solid-state
chemistry, to establish a new company in the U.S. that would perform and sell solid-state and
analytical testing services. Hr’g Tr. 25:4-15; 26:11-19; 27:10-25. In 2010, under Dr. Park’s
leadership, the Almac Group (the collective entities referred to as “Almac”) created Almac
Sciences, LLC, a chemical testing company incorporated in Delaware and based in Souderton,
Pennsylvania. Hr’g Tr. 27:10-25; 140:2-7.
Unlike solid-state testing, analytical testing involves dissolving substances in a medium
before performing chemical tests. Hr’g Tr. 144:16-18. Solid-state testing, on the other hand, is a
newer process that involves testing materials without physically altering their structures. Hr’g
Tr. 144:19-24. Solid-state testing can detect chemical structures that are undetectable once a
product is dissolved. Hr’g Tr. 146:5-9. Dr. Park was involved in the early solid-state research
and litigation boom of the 1980s and invented some of the crystalline forms for which solid-state
testing is used. Hr’g Tr. 147:9-148:11.
During her first six months of employment with Almac Clinical, LLC, Dr. Park was
seconded to the Almac offices in the U.K for training. Hr’g Tr. 25:18-25. After those six
months, she moved to Souderton, Pennsylvania with instructions to launch a lab for Almac
Sciences, LLC that would perform both solid-state testing and analytical testing. Hr’g Tr. 26:4-
14. Although Dr. Park developed a business plan to this effect in April 2010, Almac determined
there was insufficient demand for solid-state testing in the U.S. and declined to pursue it. Hr’g
Tr. 71:17-74:2; 89:18-25; 143:1-24. To date, Almac Sciences, LLC performs only analytical
testing. Hr’g Tr. 134:17-18. According to Dr. Park, as of the time she left Almac, Almac
Sciences, LLC did not use any solid-state testing equipment and did not have the capacity to
perform solid-state services. Hr’g Tr. 143:1-24. The U.K. lab of Almac Sciences, Ltd. performs
all the solid-state testing for Almac. Hr’g Tr. 22:22-23:4. While at Almac, Dr. Park engaged in
such tasks as developing standard operating procedures, performing quality control, creating
contingency plans, drafting white papers, developing vendor relationships, providing quotations
and preparing requests for information and requests for proposals for clients, all on behalf of
Almac Sciences, LLC. Hr’g Tr. 28:22-37:11.
In 2015, the Almac Group evaluated Almac Sciences, LLC and found a number of
compliance issues. Hr’g Tr. 42:7-14; 149:9-12. Almac asked Dr. Park to come to the U.K. lab
for training and to manage the solid-state lab there. Hr’g Tr. 42:8-12. Dr. Park spent the last
year of her tenure at Almac in the U.K., but instead of managing the solid-state lab, she
performed sales duties and assisted in negotiating at least one deal to provide solid-state testing
for a customer of Almac’s U.K. lab. Hr’g Tr. 42:15-23; 149:12-21; 164:4-165:25. While in the
U.K., Dr. Park told Almac she would not return to her position as Director of U.S. Operations.
Hr’g Tr. 149:22-150:11. In the spring of 2016, Almac offered her a new position—Global Head
of Solid-State Testing. Hr’g Tr. 150:24-151:1. She declined the position and tendered her
resignation on May 13, 2016, but did not disclose any future employment plans. Hr’g Tr. 151:23; Pls.’ Ex. 40; 129:2-11. In connection with her resignation, Dr. Park also sought and received
from Almac a waiver to continue performing expert litigation services for one particular client.
Hr’g Tr. 107:1-5. Notably, Dr. Park is the only Almac employee who has ever provided such
expert litigation services on Almac’s behalf. Hr’g Tr. 132:7-9; 148:17-19.
Dr. Park’s Employment Agreement with Almac
When Dr. Park accepted employment with Almac in 2009, she had signed both (1) an
offer letter and (2) an employment agreement. Pls.’ Ex. 4. The offer letter stated that “Almac
Sciences” was offering her the position of Director of Operations (US). Pls.’ Ex. 4. The letter
went on to detail the proposed package of salary and benefits, as well as “Almac Sciences”
policies. Pls.’ Ex. 4.
Dr. Park’s employment agreement, on the other hand, was with Almac Clinical Services,
LLC. Pls.’ Ex. 4 at 1. The employment agreement reiterated that her title would be “Director of
Operations (US),” indicated she would initially work at the facility in Craigavon, Northern
Ireland and set forth various restrictions with respect to confidential information and inventions.
Importantly, § 8.0 of the employment agreement contained several “post-termination covenants
(e.g. non-interference non-solicitation/non-competition).” This case focuses on § 8.1(e), which
states in pertinent part:
For a period of six (6) months after such termination, [you shall
not] engage in any business activity that is competitive in any way
with the business of the Company in any state in the continental
United States and in Europe as well as any other state or foreign
country in which the Company does business or is planning to do
Pls.’ Ex. 4, § 8.1(e). The introductory paragraph of the employment agreement specifically
defines the term “Company” as Almac Clinical Services LLC and “all affiliates of the Company,
including but not limited to, all other divisions of Almac Group Limited, except for sections
8.1(d) and 8.1(e) where it shall mean Almac Clinical Services LLC only.” Id. at Intro.
Dr. Park’s New Employment at Triclinic Labs, Inc.
Following several months of discussions, Triclinic Labs, Inc., based in Lafayette,
Indiana, extended an offer of employment to Dr. Park on March 23, 2016. Pls.’ Ex. 43. Triclinic
is a small contract research organization specializing in solid-state chemical and solid-state
analytical work for pharmaceutical and other clients around the world. Pls.’ Ex. 52. In addition,
it offers patent prosecution and expert litigation services. Pls.’ Ex. 52. Triclinic presently
employs approximately twenty people, seventy-five percent of whom are scientific staff. Hr’g
Tr. 168:21-25. In the spring of 2016, Triclinic partnered with Novasep, a “supplier of services
and technologies for the life sciences industry.” Pls.’ Ex. 37; Hr’g Tr. 196:6-18.
Prior to offering a position to Dr. Park, Triclinic was aware of Dr. Park’s six-month noncompete obligations to Almac. Hr’g Tr. 182:17-21; 184:22-24. As such, Triclinic determined
that during her first six months of employment, Dr. Park would focus on “inward-facing
activities” involving no client contact, no research and no consulting other than the one project
for which she had obtained a waiver from Almac. Hr’g Tr. 173:6-13; 187:11-17. Since
beginning with Triclinic, Dr. Park’s work activities have included learning internal processes and
procedures, formulating contingency plans, monitoring existing internal research projects,
reviewing Triclinic’s standard operating procedures, reviewing existing white papers drafted by
Triclinic scientists, evaluating Triclinic’s computer and software systems, reviewing and revising
report templates, mentoring junior Triclinic scientists and evaluating Triclinic’s existing vendor
relationships. Hr’g Tr. 116:10-121:22; Pls.’ Ex. 42, ¶ 40. According to both Dr. Park and
Shawn Comella, Triclinic’s CEO, none of these activities have any relation to any of the clinical
packaging work performed by Allstate Clinical, LLC. Hr’g Tr. 136:20-23; 175:4-5.
Pre-litigation Discussions Between the Parties
In early July 2016, executives at Almac discovered Dr. Park’s new employment with
Triclinic when they saw her updated LinkedIn profile. Hr’g Tr. 46:22-25. Almac contacted her
at the end of July to determine if she had actually started work at Triclinic or simply intended to
go there after the expiration of her six month non-competition agreement with Almac. Pls.’ Ex.
33. Upon learning that she was already employed by Triclinic, Almac contacted both Dr. Park
and Triclinic on July 27, 2016 to advise that Dr. Park was violating § 8.1(e) of her employment
agreement. Pls.’ Ex. 6. On August 1, 2016, Triclinic responded that it had placed Dr. Park in a
position where she would be able to honor the terms of her agreement and that Triclinic offers
unique services not offered by Almac. Pls.’ Ex. 7. Following an exchange of additional letters
through August 23, 2016, Pls.’ Exs. 6 & 7, Almac initiated litigation against Dr. Park and
Triclinic on September 13, 2016.
Preliminary injunctive relief is an “‘extraordinary remedy . . . which should be granted
only in limited circumstances.’” S. Camden Citizens in Action v. NJ Dept. of Envtl. Prot., 274
F.3d 771, 777 (3d Cir. 2001) (quotation omitted). To obtain a preliminary injunction, the
moving party “must demonstrate: (1) the reasonable probability of eventual success in the
litigation, and (2) that it will be irreparably injured if relief is not granted. Moreover, the district
court also should take into account, when relevant, (3) the possibility of harm to other interested
persons from the grant or denial of the injunction, and (4) the public interest.” Id. A failure to
show either a likelihood of success or a failure to demonstrate irreparable injury “‘must
necessarily result in the denial of a preliminary injunction.’” Am. Express Travel Related Servs.,
Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012), quoting In re Arthur Treacher’s
Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982). “Moreover, establishing a risk of
irreparable harm is not enough. A plaintiff has the burden of proving a clear showing of
immediate irreparable injury.” Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (internal quotation
marks and brackets omitted).
Plaintiffs Almac Clinic Services, LLC and Almac Sciences, LLC seek a preliminary
injunction against defendants Aeri Park and Triclinic Labs, Inc. in connection with their claims
of (1) breach of post-employment covenants under Pennsylvania law; (2) violations of the
Pennsylvania Uniform Trade Secret Act, 12 Pa.C.S § 3501, et seq.; (3) tortious interference with
existing and prospective contractual relations with Almac’s customers and (4) tortious
interference with Dr. Park’s contractual relationship with Almac. Because I find that plaintiffs
have failed to prove likelihood of success on the merits as to any of these causes of action, I will
focus my discussion on that element without opining on whether plaintiffs have satisfied their
burden with respect to the remaining three elements of a preliminary injunction.
Breach of Contract
Plaintiffs argue that Dr. Park has breached her employment agreement by working for a
company that provides solid-state testing in competition with Almac Sciences, LLC. Defendants
respond that plaintiffs are not likely to succeed on the merits of this claim because (1) the noncompete provision of the employment agreement is not enforceable and (2) no evidence exists to
establish that Park has breached that agreement. Assuming that the non-compete provision is
enforceable for purposes of this motion,1 I find plaintiffs have not shown a likelihood of success
on the merits of their breach of contract claim.
I harbor some reservations about the enforceability of the non-compete provision at issue.
Because restrictive covenants are disfavored under Pennsylvania law, they are strictly construed
and must be carefully reviewed to ensure their reasonableness. Viad Corp. v. Cordial, 299 F.
“The paramount goal of contract interpretation is to determine the intent of the parties.”
Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 587 (3d Cir. 2009) (citations and
internal quotation marks omitted); see also Mellon, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d
1001, 1009 (3d Cir. 1980). Courts are to consider “not the inner, subjective intent of the parties,
but rather the intent a reasonable person would apprehend in considering the parties’ behavior.”
Am. Eagle, 584 F.3d at 582 (citations and internal quotation marks omitted); see also Camp
Ne’er Too Late, LP v. Swepi, L.P,
F. Supp. 3d
, 2016 WL 2594186, at *18 (M.D. Pa. May
5, 2016) (“Interpretation is not concerned with the parties’ “post hoc judgment [s] . . . as to what
should have been.”) (internal quotations omitted).
The strongest objective manifestation of intent is the language of the contract. Mellon
Bank, 619 F.2d at 1009. Pennsylvania courts 2 apply the “plain meaning rule” of interpretation of
contracts, which assumes that the intent of the parties to an instrument is “embodied in the
writing itself, and when the words are clear and unambiguous the intent is to be discovered only
from the express language of the agreement.” Cnty. of Dauphin v. Fid. & Deposit Co. of Md.,
770 F. Supp. 248, 251 (M.D. Pa.) (quotation omitted), aff’d, 937 F.2d 596 (3d Cir. 1991). Thus,
where the words of the contract clearly manifest the parties’ intent, a court need not “resort to
Supp. 2d 466, 476 (W.D. Pa. 2003). The provision at issue in this case restricts Dr. Park from
“engag[ing] in any business activity that is competitive in any way with the business of the
Company” in the United States, Europe or any other foreign country “in which the Company
does business or is planning to do business.” Pls.’ Ex. 2, ¶ 8.1(e). Such language, absent any
accompanying definitions, leaves the contract open for significantly different interpretations by
the employee and employer and seems to inadequately inform Dr. Park of the precise limitations
on her post-employment activity. See Fres-co System USA, Inc. v. Robert Bodell, No. 05-3349,
2005 WL 3071755 (E.D. Pa. 2005) (holding a non-compete forbidding employee from working
in the employer’s or its subsidiaries’ “line of business” overbroad and unenforceable). Although
such an ambiguity could render the entire non-compete provision unenforceable, I will assume it
is valid solely for purposes of the present motion.
The employment agreement at issue states that it shall be governed and construed in accordance
with the law of Pennsylvania. Pls.’ Ex. 4, ¶ 13.1.
extrinsic aids or evidence.” Am. Eagle, 584 F.3d at 587 (citation and internal quotation marks
omitted). The Court of Appeals has stated:
[a contract] will be found ambiguous if, and only if, it is
reasonably or fairly susceptible of different constructions and is
capable of being understood in more senses than one and is
obscure in meaning through indefiniteness of expression or has a
double meaning. A contract is not ambiguous if the court can
determine its meaning without any guide other than a knowledge
of the simple facts on which, from the nature of the language in
general, its meaning depends; and a contract is not rendered
ambiguous by the mere fact that the parties do not agree on the
Bohler–Uddeholm Am., Inc. v. Ellwood Grp., Inc., 247 F.3d 79, 93 (3d Cir. 2001) (quotations
omitted). Contracts must be read to avoid ambiguities if possible, and “specific provisions
ordinarily control more general provisions.” Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d
229, 247 (3d Cir. 2008) (citations omitted).
The non-compete provision at issue in this case is unambiguous and therefore the express
language of the agreement controls. Section 8.1(e) of the Employment Agreement provides:
For the periods of time set forth below after the termination of your
employment with the Company, for any reason, whether by you or
the company, whether with or without Cause, you shall not, for our
own benefit or for the benefit of any third party, directly or
indirectly, in any capacity (as an employee, independent
contractor, owner, partner or otherwise) participate in any of the
for a period of six (6) months after such
termination, engage in any business activity that is
competitive in any way with the business of the Company
in any state in the continental United States and in Europe
as well as in any other state or foreign country in which the
Company does business or is planning to do business. . . .
Pls.’ Ex. 4, ¶ 8.1(e). While the precise nature of the “competitive” activities prohibited by the
contract is undefined, the provision unequivocally precludes business activity that is competitive
“with the business of the Company.” The introductory paragraph of the employment agreement
specifically defines the term “Company” as Almac Clinical Services LLC and “all affiliates of
the Company, including but not limited to, all other divisions of Almac Group Limited, except
for sections 8.1(d) and 8.1(e) where it shall mean Almac Clinical Services LLC only.” Id. at
Intro. This provision expressly clarifies that Dr. Park is prohibited from engaging in only those
business activities that are competitive with Almac Clinical Services, LLC, and not any other
entity of Almac Group Limited.
Plaintiffs argue that such an interpretation fails to read the employment agreement in
conjunction with the accompanying offer letter to Dr. Park, the circumstances of her hiring, the
parties’ intention and Dr. Park’s subsequent course of conduct. They reason that at the time Dr.
Park was hired, Almac Sciences, LLC was a company in formation but not yet formed. As such,
for payroll purposes only, Plaintiff was hired by Almac Clinical, LLC. The parties fully
understood, however, that she was being hired as Director of Operations (US) for Almac
Sciences, LLC, as memorialized in the September 3, 2009 offer letter, and that the non-compete
provision was to be applicable to all of the business of Almac Sciences, LLC. In turn, plaintiffs
assert that under the only fair reading of the employment agreement, Dr. Park is barred from
engaging in business activities competitive with either Almac Clinical, LLC or Almac Sciences,
Notably, however, plaintiffs’ argument does not assert that the relevant portions of the
employment agreement are reasonably susceptible to any alternative interpretation. As discussed
above, under well-settled Pennsylvania contract law, where a contract is clear and unambiguous
a court may look only to the express language of the agreement to ascertain the parties’ intent.
The employment agreement’s introductory paragraph could not be clearer. It specifically
acknowledges the existence of the other Almac companies and makes the contract applicable to
all such companies with the express exception of the non-compete provisions set forth in §§
8.1(d) and 8.1(e). As to those provisions, the contract explicitly limits their applicability to
Almac Clinical Services, LLC. Given the absence of any ambiguity in that language, the law
does not permit reference to extrinsic evidence in order to determine the meaning of the contract.
To the extent plaintiffs had intended to extend the scope of the non-compete to the business
activity of Almac Sciences, LLC, the burden fell on them, as drafters of the agreement, to
indicate as much in the contract. As plaintiffs failed to do so, they remain bound by the
unambiguous language of the contract they prepared and signed.
Having determined that the unambiguous language of the contract prohibits Dr. Park
from engaging in business activities that are competitive “in any way” with the business of
Almac Clinical, LLC, I find that plaintiffs have not shown that Dr. Park is likely in breach of her
non-compete obligations. According to the evidence presented in this case, Triclinic—Dr.
Park’s current employer—is a contract research organization specializing in solid-state chemical
and solid-state analytical work. Hr’g Tr. 168:15–18. It also offers patent prosecution and expert
litigation services. Id. Since Dr. Park started with Triclinic, she has performed “inward-facing
activities.” Hr’g Tr. 187:7–20. More specifically, her work has been
limited to learning Triclinic’s internal processes and procedures,
formulating contingency plans for the company, addressing
personnel issues, monitoring existing internal research and
development projects, reviewing Triclinic’s SOPs, evaluating
Triclinic’s existing equipment and supervising certification of that
equipment, reviewing and editing existing white papers written by
Triclinic scientists, evaluating Triclinic’s computer software and
computer system, reviewing and revising Triclinic’s reports
template, mentoring junior Triclinic scientists, and evaluating
Triclinic’s existing vendor relationships.
Pls. Ex. 42, ¶ 40. The record contains no evidence that, in performing such tasks, she has used
any proprietary or confidential Almac information. Indeed, quite to the contrary, both Dr. Park
and Shawn Comella, Triclinic’s CEO, testified that Dr. Park has not used any Almac information
in connection with her work at Triclinic. Hr’g Tr. 131:7–137:6, 173:15–18.
By contrast, Almac Clinical Services, LLC engages in a distinct line of work. At the
preliminary injunction hearing, plaintiffs focused substantially on the business of Almac
Sciences, LLC, which, as noted above, is not protected by the non-compete. The only Almac
representative to testify was Stephen Barr, who is the president and managing director of the
various Almac Sciences entities but has no responsibility for Almac Clinical Services, LLC.
Hr’g Tr. 50:21–52:13. The limited evidence and testimony Dr. Barr could offer regarding Almac
Clinical Services, LLC revealed that the company engages in the packaging, labeling and
distribution of clinical trial packs, and offers associated analytical support to the manufacturer of
those products—services not offered by Triclinic. Hr’g Tr. 17:16–18:14. Almac Clinical is not
involved with any solid-state chemistry and does not offer expert litigation services or patent
prosecution or defense services. Hr’g Tr. 76:19–22, 146:23–147:1, 148:16–149:5. During the
course of her tenure with Almac, Dr. Park did not do any work related to clinical packaging.
Hr’g Tr. 136:19–22. In fact, although Almac Clinical and Triclinic may have some overlap in
clientele, plaintiffs never presented any evidence or made any specific argument that Almac
Clinical and Triclinic were actually competitors.
In light of this record, I find plaintiffs have not established a likelihood of success on the
merits of their breach of contract claim. Since beginning her tenure with Triclinic, Dr. Park has
engaged in internal business development activities related to Triclinic’s work with solid-state
testing and expert litigation services. Such activities are by no means competitive with the
business of Almac Clinical Services, LLC, which is a clinical trial packaging company and offers
no solid-state testing or expert litigation services. Given this obvious distinction, I hold that
plaintiffs will not likely succeed in proving that Dr. Park breached her employment agreement.
Pennsylvania Uniform Trade Secrets Act
Plaintiffs also seek an injunction in relation to Dr. Park’s alleged violation of the
Pennsylvania Uniform Trade Secrets Act. I again find that plaintiffs have not proven a
likelihood of success on the merits of this claim.
The Pennsylvania Uniform Trade Secrets Act (PUTSA) “creates a statutory cause of
action for injunctive relief, compensatory damages and exemplary damages for the actual loss
caused by misappropriation of trade secrets and the unjust enrichment caused by such
misappropriation.” Youtie v. Macy’s Retail Holding, Inc., 626 F. Supp. 2d 511, 522 (E.D. Pa.
2009) (citing 12 Pa. Cons. Stat. § 5303–4). To establish misappropriation of a trade secret, the
plaintiff must show “(1) the existence of a trade secret; (2) communication of the trade secret
pursuant to a confidential relationship; (3) use of the trade secret in violation of that confidence;
and (4) harm to the plaintiff.” Moore v. Kulicke & Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir.
2003); see also 12 Pa. Cons. Stat. § 5302. 3 Failure to establish any one of the elements defeats
the claim. Block v. Blakely, No. 02–8053, 2004 WL 1902520, at *3 (E.D. Pa. Aug. 25, 2004).
The full definition of “misappropriation” is: “(1) acquisition of a trade secret of another by a
person who knows or has reason to know that the trade secret was acquired by improper means;
or (2) disclosure or use of a trade secret of another without express or implied consent by a
person who: (i) used improper means to acquire knowledge of the trade secret; (ii) at the time of
disclosure or use, knew or had reason to know that his knowledge of the trade secret was: (A)
derived from or through a person who had utilized improper means to acquire it; (B) acquired
under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) derived
from or through a person who owed a duty to the person seeking relief to maintain its secrecy or
limit its use; or (iii) before a material change of his position, knew or had reason to know that it
Even assuming arguendo that the first two elements of this claim have been satisfied,
plaintiffs have not adduced sufficient evidence on either the third or fourth elements. As to the
element of use of the trade secret, plaintiffs contend that Dr. Park had access to substantial
amounts of highly confidential information. Under the standard set forth by the Court of
Appeals in Bimbo Bakeries USA, Inc. v. Botticella, plaintiffs claim they need not show actual
disclosure but only a “sufficient likelihood or substantial threat of disclosure of a trade secret.”
613 F.3d 102, 114 (3d Cir. 2010) (internal quotations omitted). Due to the competitive nature of
Triclinic’s business, they contend that Dr. Park will inevitably use her proprietary knowledge to
influence her operational decisions for Triclinic.
I do not find that plaintiffs have met their burden in this matter. The case of Centimark
Inc. v. Jacobsen, No. 11-1137, 2011 WL 5977668 (W.D. Pa. Nov. 29, 2011) offers significant
guidance as to what constitutes “sufficient likelihood or substantial threat of disclosure.” In that
case, the defendant had access to a great deal of confidential business information during his
employment with the plaintiff and accepted employment as the president of a competitor
following his resignation from the plaintiff’s employment. Id. at *12. The plaintiff argued that
the defendant “will inevitably call upon or otherwise misappropriate the confidential proprietary
and trade secret information he learned.” Id. The court found that the plaintiff had failed to
show the inevitability of such disclosure or even that there was “a sufficient likelihood or
substantial threat of disclosure.” Id. Specifically, the court observed that the plaintiff failed to
present any evidence that the defendant disclosed any confidential information to other
employers, the defendant turned over all equipment, documents and data to the plaintiff upon
was a trade secret and that knowledge of it had been acquired by accident or mistake.” 12 Pa.
Cons. Stat. § 5302.
announcing his resignation, the defendant reaffirmed his intent to fully abide by his employment
agreement when announcing his resignation, defendant’s new employer barred him from
soliciting any customers of the plaintiff or conducting sales activities, the plaintiff produced no
evidence that the defendant had contacted any of the plaintiff’s customers, the plaintiff and the
defendant’s new company did similar work but focused on different markets, the defendant
disclosed his restrictive covenants to his new company and, at the hearing, the defendant offered
credible testimony that he had no intent to disclose confidential information. Id. at *13–15.
Based on that evidence, the court determined that the plaintiff did not have a likelihood of
success on the merits of its trade secrets claim. Id. at *16.
The evidentiary record in this case presents substantial similarities. Primarily, plaintiffs
failed to present any evidence—and admitted they had none—that Dr. Park disclosed any
confidential information to Triclinic or approached any Almac customers. Hr’g Tr. 77:1–9.
Indeed, both Dr. Park and Shawn Commella affirmatively stated that Dr. Park had not disclosed
any Almac information in the course of her employment with Triclinic. Hr’g Tr. 131:7–137:6,
173:15–18. Second, plaintiffs have not suggested that Dr. Park failed to turn over any
proprietary equipment, documents or data to Almac upon tendering her resignation. 4 Third, prior
to starting her employment with Triclinic, Dr. Park provided Triclinic with a copy of her
employment agreement. Hr’g Tr. 130:7–18, 173:3–14. Fourth, Triclinic set up ground rules for
Dr. Park to ensure that she would not violate her obligations during her first six months of
At the hearing, plaintiffs presented evidence of two emails written from her Almac address that
Dr. Park still had in her possession following her resignation from Almac. Pls.’ Exs. 18, 51. Dr.
Park admitted that she technically violated § 9.2 of her employment agreement and she should
have deleted or returned the emails, but kept the emails for her own use in case any of her former
customers contacted her. Hr’g Tr. 122:5–125:16, 139:6–13. She further stated that she has not
disclosed these emails to anyone but counsel in this case. Hr’g Tr. 139:14–20. Given the limited
number and content of these emails, I find they do not evidence a substantial threat of disclosure.
employment. Fifth, as explained in detail above, Almac Clinical Services, LLC and Triclinic
engage in entirely separate markets: Almac Clinical sells clinical trial packaging while Triclinic
offers solid-state testing and expert litigation services. Finally, based on my observations of
plaintiff at the hearing and the description of her actions throughout the relevant time period in
this matter, I find her testimony credible that she has not disclosed and has no intention of
disclosing any of Almac’s confidential information to which she was privy.
As to the element of harm to plaintiffs, the record is devoid of evidence that any Almac
company has suffered damages as a result of Dr. Park’s actions. Dr. Barr, who is responsible for
ensuring the financial profitability of his companies, testified that as of 2015–2016 Almac
Sciences was growing and making money. Hr’g Tr. 77:13–19. Plaintiffs offered no evidence of
any lost customer, any lost revenue or any lost opportunities.
In short, I find that plaintiffs have not proven likelihood of success on the merits of their
PUTSA claim. Therefore, I will deny the preliminary injunction on this ground.
Tortious Interference With Existing and Prospective Contractual Relations
Almac’s final two claims allege tortious interference with existing and prospective
contractual relationships by both Dr. Park and Triclinic. Specifically, Count III of the amended
complaint asserts that both Dr. Park and Triclinic have used Almac’s confidential and trade
secret information to interfere in and harm Almac’s existing and future relationships with its
customers. Count IV claims that Triclinic has employed Dr. Park in a role that requires her to
breach her obligations under her employment agreement. Given the overlap in proof required for
these two claims, I address them jointly and find that plaintiffs have not shown a likelihood of
success on the merits of these claims.
Pennsylvania has adopted section 766 of the Restatement (Second) of Torts, which sets
forth the tort of intentional interference with an existing contract. Adler, Barish, Daniels, Levin
& Creskoff v. Epstein, 393 A.2d 1175, 1183 (Pa. 1978). Section 766 provides that:
One who intentionally and improperly interferes with the
performance of a contract . . . between another and a third person
by inducing or otherwise causing the third person not to perform
the contract, is subject to liability to the other for the pecuniary
loss resulting to the other from the third person’s failure to perform
Restatement (Second) of Torts § 766. To establish tortious interference with an existing or
prospective contract under Pennsylvania law, a plaintiff must prove four elements: (1) the
existence of a contractual relationship or prospective contractual relationship between the
plaintiff and another party; (2) an intent on the part of the defendant to harm the plaintiff by
interfering with that contractual relationship or preventing the relationship from occurring; (3)
the absence of privilege or justification on the part of the defendant; and (4) the occasioning of
actual damage as a result of defendant’s conduct. See Phillips v. Selig, 959 A.2d 420, 428 (Pa.
Super. Ct. 2008) (citing Restatement (Second) of Torts § 766B (1979); BP Envtl. Servs., Inc. v.
Republic Servs., Inc., 946 F. Supp. 2d 402, 407 (E.D. Pa. 2013).
Plaintiffs do not offer sufficient proof of any of these elements. First, plaintiffs produced
no evidence from which I can find the element of intent on the part of defendants to interfere
with Almac’s existing or prospective customer relationships or with Dr. Park’s employment
agreement. At the preliminary injunction hearing, plaintiffs attempted to create an inference of
intent from the fact that Dr. Park accepted a job offer from Triclinic months before tendering her
resignation to Almac and continued to work with confidential Almac information. Plaintiffs also
noted that Dr. Park never disclosed her plans to anyone at Almac to take employment with
Triclinic and Almac only discovered her new employment upon seeing her updated LinkedIn
profile. These facts standing alone, however, do not suggest Dr. Park intended to harm Almac’s
contractual relationships, but merely show her unwillingness to disclose her future career path to
the employer she planned on leaving.
By contrast, the undisputed evidence regarding Dr. Park’s and Triclinic’s actions strongly
negate any inference of intentional interference with Almac’s contractual relationships. Dr. Park
emailed her non-compete to Triclinic well before starting work. Hr’g Tr. 177:16–178:3. As a
result of that non-compete, Triclinic set up verbal ground rules so that Park could respect her
agreement with Almac. Hr’g Tr. 130:7–18, 173:3–14. According to those ground rules, Dr.
Park could have no contact with clients, perform no research and engage in no consulting except
for the projects for which Almac had previously given her a waiver. Hr’g Tr. 130:11–17, 173:5–
12, Pls.’ Ex. 42, ¶¶ 38–42. All record evidence suggests that since beginning at Triclinic, Dr.
Park has fully respected those ground rules and honored her non-compete. Hr’g Tr. 137:3–20,
173:13–14. Plaintiffs do not dispute that Dr. Park’s only customer contact since leaving Almac
involved the customer subject to Almac’s agreed-upon waiver to Dr. Park’s non-compete
agreement. Hr’g Tr. 137:20–138:1. Indeed, indicative of her continued awareness of and respect
for her non-compete obligations, Dr. Park recently reached out to Almac regarding an
opportunity to do consulting work for a South Korean colleague who needed assistance with
non-Almac-related project. Almac declined to give her a waiver from the non-compete and Dr.
Park has not pursued that opportunity. Hr’g Tr. 160:20–161:23. In short, far from showing
intent to harm, Dr. Park’s and Triclinic’s actions show concerted efforts to ensure that they
neither breached Dr. Park’s non-compete nor improperly interfered in Almac’s contractual
relationships with its customers.
Moreover, proof of actual damages—a factor required for tortious interference claims—is
conspicuously absent from the record. With respect to plaintiffs’ claim against Triclinic for
tortious interference with Dr. Park’s employment agreement, I determined above that no breach
of her contract has occurred or is likely to occur, meaning that plaintiffs’ have incurred no
damages for this claim. With respect to plaintiffs’ claim against both Dr. Park and Triclinic for
tortious interference with Almac’s customer contractual relationships, the record is bereft of
evidence. Dr. Barr, the sole Almac employee to testify, indicated that he is not aware of any lost
customers or opportunities since Dr. Park’s departure. Hr’g Tr. 77:1–8. While Dr. Barr
remarked that the blind bidding process for customers would make it difficult for him to
ascertain whether Almac lost any prospective customer contracts, the burden nonetheless
remains on plaintiffs to establish likelihood of success on this element.
To satisfy their burden on the tortious interference claims, plaintiffs must put forth
evidence on all four of the aforementioned elements. The evidentiary record, however,
undermines any finding of either intent to harm or actual damages. As such, I deny the
preliminary injunction on both of these claims.
Having found that plaintiffs have not met their burden of proving likelihood of success on
the merits as to any of their claims, I need not address any of the other elements required to grant
injunctive relief. I deny plaintiffs’ request for a preliminary injunction.
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