On November 17, the Sixth circuit held that Orthofix, Inc.’s (Orthofix) non-disclosure and non-compete clauses protected Orthofix’s confidential information regardless of whether the information achieved trade secret status or not. The defendant, Eric Hunter (“defendant” or “Hunter”) was a medical device salesman for Orthofix from 2000 to November 2012. Hunter sold bone growth stimulators and Orthofix was among the three main competitors for this type of product. Upon his hiring with Orthofix, Hunter signed an employment agreement that contained both a non-compete and non-disclosure provision. During his time with Orthofix, Hunter developed relationships with prescribing doctors and acquired valuable information about their “schedules, prescribing habits, and preferred brands of bone growth stimulators.”
In July 2012, Hunter and a fellow employee began negotiations to join DonJoy Orthopedics with an area vice president of DonJoy Orthopedics, Orthofix’s competitor. In the course of the negotiations Hunter provided DonJoy with information he had acquired over his past twelve years at Orthofix which he would use if he became employed with DonJoy, “including his Orthofix employment agreement, his W-2 wage statement, copies of his Orthofix sales reports, and an account-by-account breakdown of some of his sales of bone growth stimulators.” Hunter, his fellow Orthofix employee, and DonJoy made a plan for Hunter and his fellow employee to join DonJoy and begin selling DonJoy bone growth stimulators to Orthofix customers. Additionally, Hunter introduced other DonJoy salesmen to Orthofix customers. Hunter also “maintained Orthofix confidential information in the form of documents and spreadsheets on his personal laptop and memory,” including “customer lists, wholesale price information, sales data, staff contacts, physician schedules and preferences, and physicians’ prescribing habits.” Orthofix claimed these materials are protected as a trade secret or as “confidential information” under Hunter’s employment agreement.
In considering the Non-disclosure agreement, the Sixth Circuit applied Texas state law holding that the “confidential information” covered by the agreement was not limited to only trade secrets. Further, the court found that when Hunter promised in the non-disclosure agreement “that he would ‘never use or disclose any confidential information which [he]… acquired during the term of his[] employment with [Orthofix],’” the referenced “confidential information” includes “Orthofix ‘customer lists or identification,’ ‘business and trade practices,’ ‘sales or distribution methods and techniques,’ ‘business strategies,’ ‘and ‘other confidential information pertaining to [Orthofix’s] business or financial affairs.’” The court also found that the non-disclosure agreement was not an unreasonable restraint of trade under Texas law, despite its absence of geographical or durational limits. Since Orthofix’s confidential information is protectable under the non-disclosure agreement and the information is not publicly available or the subject of Hunter’s general knowledge, the non-disclosure agreement is not an unenforceable non-compete agreement under Texas law.