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Proskauer Non-Compete & Trade Secrets Group Secures Landmark Victories for Medical Device Manufacturer Sientra, Inc.

Tuesday, September 10, 2013

Global law firm Proskauer and its Non-Compete & Trade Secrets Group secured significant victories on behalf of Sientra, Inc., a start-up medical device manufacturer with a portfolio that includes a new breast implant product, in a lawsuit brought by Sientra’s competitor, Mentor Worldwide, LLC. The Proskauer team was led by Non-Compete & Trade Secrets Group co-head John P. Barry and included Special Employment Litigation Counsel Mark A. Saloman and Partner Allan H. Weitzman.

On August 30, after a nearly eight-week trial in the Superior Court of California, a Santa Barbara jury needed fewer than four hours to return a defense verdict in favor of Sientra and its West Coast Regional Director of Sales, Jeffrey Lewis, rejecting Mentor’s claims of misappropriation of trade secrets, tortious interference with contract and prospective business relations, breach of fiduciary duty, and aiding and abetting the breach of duty of loyalty. Following a subsequent four-day bench trial, the Honorable Thomas P. Anderle ruled that “the jury got it right” and rejected Mentor’s additional claims seeking, among other things, a permanent injunction removing Sientra’s products from the market.

In its lawsuit, Mentor, an operating company of Johnson & Johnson, sought $27 million in damages, along with a permanent injunction removing Sientra’s breast implant products from the market. Following Sientra’s receipt of FDA approval to sell its breast implant products in March 2012, Sientra hired 20 Mentor sales personnel including Mr. Lewis, who previously served as Mentor’s west coast regional manager. Two weeks later, Mentor unleashed 13 lawsuits against their former employees in 10 different states. In seven of those lawsuits, Mentor sought injunctions to prevent the employees from working for Sientra. Proskauer defeated each application for injunctive relief and Mentorsubsequently dismissed 11 of the 13 lawsuits. Shortly thereafter, Mentor filed the lawsuit in California against Sientra and Lewis.

Contributing to the defense verdict was the fact that Sientra adhered to a “Clean Hands” policy that prohibited each new hire from taking, disclosing or using Mentor property; barred each from soliciting or speaking to any Mentor employee about job opportunities at Sientra; and required the new hires to return or delete everything known to be in their possession that belonged to Mentor.

Commenting on the successful litigation, Sientra’s General Counsel Joel Smith stated, “These victories were the product of the insightful advice we received from John Barry and the Proskauer team before we hired anyone. John knew where the pressure points of the litigation would unfold and he helped us shape compliance procedures that allowed us to minimize risk and avoid legal landmines. After that phase was complete and during scores of hearings and an 8-week jury trial, John, Mark and Allan brought their characteristically thorough preparation to courtrooms around the country and proved themselves to be charismatic trial lawyers, whom the jury loved and respected. Proskauer is a leader in this field.”

Proskauer’s Non-Compete & Trade Secrets Group lawyers are among the best at handling these complex matters involving once-independent disciplines—employment, trade secrets, executive compensation, IP—that are now intertwined, and which once required only knowledge of local law but now require national and international breadth.

About Proskauer

Founded in 1875, Proskauer is a global law firm serving clients’ critical legal needs from offices in Beijing, Boca Raton, Boston, Chicago, Hong Kong, London, Los Angeles,New Orleans, New York, Newark, Paris, São Paulo and Washington, DC. Additional information about the firm can be found at

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