Edwards Lifesciences LLC v. Thompson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-02558-RMR-KAS
EDWARDS LIFESCIENCES LLC, a Delaware limited liability company, and
EDWARDS LIFESCIENCES CORPORATION, a Delaware corporation,
Plaintiffs and Counter Defendants,
v.
MICHAEL THOMPSON, an individual,
Defendant and Counter Claimant, and
ABBOTT LABORATORIES, an Illinois corporation,
Defendant.
______________________________________________________________________
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
____________________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant Abbott Laboratories’ (“Abbott”)
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) [#112]. Plaintiffs
Edwards Lifesciences LLC and Edwards Lifesciences Corporation filed a Response
[#132] in opposition to the Motion [#112], Abbott filed a Reply [#143], and Plaintiffs filed a
Surreply [#188]. Also before the Court is Plaintiffs’ Motion to Dismiss Thompson’s
Counterclaims 	[#138]. 	Defendant 	Michael Thompson 	filed 	a Response 	[#145] 	in
opposition to the Motion [#138], Plaintiffs filed a Reply [#159], and each party also filed a
Notice of Supplemental Authority. [#179, #183]. The Motions [#112, #138] have been
referred to the undersigned. Orders Referring Motion [#114, #141]. The Court has
reviewed the briefing, the entire case file, and the applicable law. For the following
reasons, the Court RECOMMENDS Defendant Abbott’s Motion to Dismiss Pursuant to
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Fed. R. Civ. P. 12(b)(2) and 12(b)(6) [#112] be GRANTED in part and DENIED in part
and Plaintiffs’ Motion to Dismiss Thompson’s Counterclaims [#138] be GRANTED in
its entirety.
I. 	Plaintiffs’ Allegations
Plaintiffs design and manufacture artificial heart valves used to treat structural
heart disease. Am. Compl. [#102], ¶¶ 10-11, 13. Plaintiffs invest substantial resources in
product 	research, 	development, 	and 	manufacturing, 	developing 	physician 	training
programs and procedural guidance regarding the use of their products, and identifying
components for strategic sales plans in collaboration with sales representatives and
managers in each sales territory. Id., ¶¶ 12, 20. According to Plaintiffs, these efforts
generate 	significant 	amounts 	of 	confidential 	and 	trade 	secret 	information, 	which
competitors could exploit to shorten their own research, development, and sales cycles.
Id., ¶ 22.
To protect this information, Plaintiffs maintain physical security at their facilities,
implement cybersecurity protections for networks and electronic systems, monitor digital
workspaces, and require employees, contractors, and customers to comply with training,
policies, and contractual provisions designed to maintain confidentiality. Id., ¶ 21. Plaintiffs
also restrict certain employees, including those with access to sensitive information, from
engaging in competitive activities following the end of their employment. Id.
In May 2012, Plaintiffs hired Defendant Michael Thompson as a Field Clinical
Specialist II, where he worked closely with hospital staff and surgeons to introduce and
support the use of Plaintiffs’ products. Id., ¶ 12. Plaintiffs required Thompson to sign
employment agreements in 2012 and again in 2019. Id., ¶ 23. Both agreements required
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that he maintain the confidentiality of all confidential and trade secret information and
restricted his post-employment competitive activities. Id.
Also in 2012, Plaintiffs became the first to bring a transcatheter aortic valve
replacement (“TAVR”) to market. Id., ¶ 15. TAVR is a minimally invasive procedure that
replaces a diseased or calcified aortic valve with an artificial valve. Id., ¶ 13. Thompson
played a key role in launching and advancing Plaintiffs’ TAVR program, including receiving
intensive 	training 	on TAVR 	technical 	specifications, 	patient 	selection, 	implantation
techniques, and valve sizing. Id., ¶ 14. He worked directly with physicians and cardiac
surgeons in operating rooms, supporting TAVR implantation and discussing best practices
and potential product improvements. Id., ¶ 16.
Between 2011 and 2021, Plaintiffs promoted Thompson multiple times, ultimately
elevating him to Territory Manager. Id., ¶ 17. In April 2021, Thompson resigned to join
Abbott in a non-competitive sales role involving products unrelated to Plaintiffs’ products.
Id., ¶ 18. Thompson later requested to return to Plaintiffs, and he was rehired in July 2022
as Territory Manager responsible for Plaintiffs’ transcatheter mitral and tricuspid therapy
(“TMTT”) systems. Id., ¶ 19. Many of the same cardiologists, cardiac surgeons, and
hospital staff used and evaluated both TAVR and TMTT products. Id.
Upon his rehiring, Thompson executed a 2022 Employment Agreement, which
included covenants regarding the protection of confidential information and prevention of
unfair competition. Id., ¶ 24; Pls’ Ex. 1, 2022 Emp. Agreement [#102-1]. The Agreement
defined “Confidential Information” as including but not limited to trade secrets; vendor and
customer data; customer, patient, supplier, and competitor information, as well as sales,
pricing, cost, and financial data; and other information “relating to the present or planned
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business of Edwards which has not been released publicly”. Pls’ Ex. 1, 2022 Emp.
Agreement [#102-1], § 2.1.3. Section 2.4 imposed non-compete and non-solicitation
obligations spanning from the first date of Thompson’s employment and ending 18
months after termination; the obligations restricted Thompson from soliciting or diverting
Plaintiffs’ customers in relation to competing products. Id., §§ 2.1.4, 2.4, Schedule A(a).
Plaintiffs allege that, following his 2022 rehire, Thompson had access to and
regularly used Plaintiffs’ confidential information and trade secrets, including customer
identities and contact information, contract terms, assessments of product strengths and
weaknesses, strategic and high-revenue customer accounts, TAVR and TMTT technical
specifications, proprietary software, and future pricing and marketing strategies. Am.
Compl. [#102], ¶¶ 35-36. Although he managed TMTT, Thompson worked closely with
the TAVR team and, during the last five months of his employment, regularly visited TAVR
customers, including during surgical procedures. Id., ¶¶ 38-40. Plaintiffs allege Thompson
requested TAVR-related information not relevant to his TMTT role, including customer
contact 	information, 	in-service 	training 	documents, 	contract 	details, 	and 	regional
coverage assignments. Id., ¶¶ 41-42.
In August 2023, Thompson sent a 2017 TAVR business plan to an Abbott employee
and to his personal email. Id., ¶ 44. In November 2023, Abbott Vice President Chris
Waddell contacted Thompson regarding a potential sales position for TAVI, Abbott’s
version of TAVR. Id., ¶ 45. Thompson initially declined but on May 8, 2024, he contacted
Waddell to recommence discussions about returning to Abbott. Id., ¶ 46. By July 3, 2024,
Thompson and Waddell were discussing strategy for Abbott to expand into Kansas and
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Nebraska 	markets, 	including 	Thompon 	providing 	site 	recommendations, 	contact
information, and follow-up calls. Id., ¶¶ 47-50.
From late April through June 2024, Thompson accessed, downloaded, and
modified Plaintiffs’ TAVR documents on SharePoint, including site-specific TAVR program
summaries, 	training 	materials, 	account 	launch 	and 	planning 	documents, 	financial
performance data, personnel contact lists, sales process strategies, product launch
planning tools, and physician profiles for Plaintiffs’ Mountain West territory. Id., ¶¶ 54-55.
On July 8, 2024, Thompson sent a TMTT 2024 Planning Tool and career development
PowerPoint to his personal email, which included “Activated” and “Targeted” customer
names and contacts, resource options, and sales tactics. Id., ¶¶ 59-60. On July 10, the
day before he submitted his resignation to Plaintiffs, he accessed numerous TAVR
documents, including launch plans, hospital evaluation documents for launching new
valve clinics, and detailed economic reviews of hospitals, which Plaintiffs allege had no
TMTT-related business purpose. Id., ¶¶ 53, 56.
On July 11, 2024, Thompson notified Plaintiffs of his intent to resign. Id., ¶ 62. On
that date, Waddell texted Thompson that Abbott’s legal counsel “knows all about you and
your situation.” Id., ¶ 61. Plaintiffs permitted Thompson to notify customers of his
upcoming departure but did not authorize him to identify his new role or to solicit their
business. Id., ¶ 63. Despite that lack of authority, Thompson informed Plaintiffs’ customers
that he was moving to Abbott and that he was “looking forward to supporting you in my
new role.” Id. Plaintiffs terminated Thompson on July 15, 2024. Id., ¶ 64.
On July 18, 2024, Plaintiffs sent a letter to Abbott expressing concern about
Thompson’s solicitation of Plaintiffs’ customers and use of confidential information,
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requesting written confirmation that he would comply with contractual obligations. Id., ¶
74; Pls.’ Ex. 2, Correspondence [#102-2]. Thompson’s counsel responded that Plaintiffs
had no protectable interest and that Abbott would not restrict Thompson from contacting
Plaintiffs’ customers. Am. Compl. [#102], ¶ 75.
Thompson began employment with Abbott on July 29, 2024, as TAVI Regional
Sales Director. Id., ¶ 65. By August 14, he had contacted at least 10 accounts in the region
he previously managed for Plaintiffs. Id., ¶ 68. Shortly after Thompson’s departure,
Plaintiffs’ largest Colorado client ordered 10 TAVI units, and two more customers also
began purchasing TAVI for the first time. Id., ¶¶ 69-70.
By this action, Plaintiffs assert claims against both Abbott and Thompson under
the Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1832, et seq., and the Colorado
Uniform Trade Secrets Act (“CUTSA”), Colo. Rev. Stat. § 7-74-101, et seq. Id., ¶¶ 80-94.
Solely against Thompson, Plaintiffs assert state law claims for breach of contract and
breach of duty of loyalty. Id., ¶¶ 95-107. Solely against Abbott, Plaintiffs assert state law
claims of tortious interference with Thompson’s contract and tortious interference with
prospective business advantage regarding Plaintiffs’ customers. Id., ¶¶ 108-120. Plaintiffs
seek injunctive relief prohibiting Thompson from violating his Employment Agreement,
compensatory damages, statutory exemplary damages, allowable costs, disbursements,
and penalties, as well as attorneys’ fees under 18 U.S.C. § 1836(b)(3)(D). Id. at 31.
II. 	Thompson’s Allegations
Abbott, like Plaintiffs, develops markets, and sells products, including the TAVI,
designed to repair damage caused by structural heart disease. Countercls. [#113], ¶¶ 7-
9. In or around May 2021, Thompson left Plaintiffs’ employ to join Abbott as a Territory
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Manager in its Structural Heart Division, where he was responsible for selling Abbott’s
Amulet Left Atrial Appendage Occluder (“Amulet Occluder”) to certain hospitals in
Colorado, Utah, and Wyoming. Id., ¶ 18.
After approximately one year with Abbott, Plaintiffs contacted Thompson to offer
him a role in launching their recently approved TMTT products. Id., ¶ 19. In July 2022,
Thompson rejoined Plaintiffs as a Territory Manager supporting TMTT, where he was
responsible for selling TMTT products to certain hospitals in several states, including
hospitals he had previously serviced while selling Abbott’s Amulet Occluder. Id. According
to Thompson, Plaintiffs treat TAVR and TMTT as separate divisions, but the customer
bases overlap, with many of the same hospitals and physicians targeted for both product
lines. Id., ¶ 23.
In May 2024, Thompson learned from Waddell that Abbott might have a Regional
Sales Director (“RSD”) position available. Id., ¶ 26. Abbott offered Thompson the RSD
position on July 1, 2024, which Thompson accepted on July 2, 2024. Id. On July 11, 2024,
Abbott confirmed that Thompson had passed his background check, and Thompson
submitted his resignation to Plaintiffs. Id., ¶ 27. Plaintiffs terminated Thompson on July
15, 2024. Id., ¶ 29. During his exit interview, Plaintiffs’ in-house counsel asserted that
Thompson’s Employment Agreement restricted his potential sales role as Abbott’s RSD
and expressed surprise that Abbott would hire him given these restrictions. Id., ¶ 30.
Thompson’s role as an Abbott RSD encompasses Colorado, Kansas, Nebraska,
New Mexico, Utah, and West Texas. Id., ¶ 34. On July 18, 2024, Plaintiffs sent a letter to
Abbott requesting that Thompson confirm in writing that he would not violate his non-
solicitation obligations or use or disclose Plaintiffs’ confidential information. Id., ¶ 38.
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Plaintiffs also identified 20 customer accounts that Thompson allegedly was restricted
from soliciting or selling on behalf of Abbott for eighteen months. Id.
On August 1, 2024, Abbott responded that it required Thompson to sign an
employment agreement affirming his commitment not to disclose or use confidential
information obtained during his previous employment and to comply with ongoing
confidentiality obligations. Id., ¶ 39. Abbott stated that Plaintiffs’ proposed restrictions
preventing Thompson from supporting TAVI products were untenable because those
products did not compete with TMTT and because Thompson had previously serviced
most of the identified accounts while at Abbott. Id., ¶ 40. Abbott offered to restrict
Thompson from certain accounts, but Plaintiffs declined to engage in further negotiations.
Id., ¶ 41.
Thompson asserts two state-law counterclaims against Plaintiffs. Id., ¶¶ 49–63.
First, he asserts a claim under Colo. Rev. Stat. § 8-2-113, alleging that Plaintiffs’ attempt
to enforce non-compete and non-solicitation provisions in his Employment Agreement is
unlawful. Id., ¶¶ 49-53. Second, he asserts a claim for tortious interference with an
employment relationship, alleging that Plaintiffs’ efforts to enforce the non-compete and
non-solicitation provisions effectively prevent him from working for Abbott. Id., ¶¶ 54–63.
Thompson seeks monetary damages, including lost profits or compensation, costs,
attorneys’ fees, and other legal expenses, as well as pre- and post-judgment interest. Id.
at 67.
III. 	Legal Standards
A. 	Rule 12(b)(2)
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to
challenge a court's exercise of personal jurisdiction. The plaintiff bears the burden of
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establishing personal jurisdiction over a defendant. Rambo v. Am. S. Ins. Co., 839 F.2d
1415, 1417 (10th Cir. 1988). When, as here, the Court decides a Rule 12(b)(2) motion to
dismiss without holding an evidentiary hearing, “the plaintiff need only make a prima facie
showing of personal jurisdiction to defeat the motion.” AST Sports Sci., Inc. v. CLF Distrib.
Ltd., 514 F.3d 1054, 1057 (10th Cir. 2008). Courts resolved disputed factual allegations
in the light most favorable to the plaintiff. Infonow Corp. v. Zyme Sols., No. 12-cv-03255-
MSK-MEH, 2013 WL 4052183, at *2 n.1 (D. Colo. Aug. 6, 2013). Where a plaintiff merely
makes a contested prima facie showing, it must conclusively establish facts sufficient to
support personal jurisdiction at the time of trial. Id. at *2 n.1. “To obtain personal
jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that
jurisdiction is legitimate under the laws of the forum state and that the exercise of
jurisdiction does not offend the due process clause of the Fourteenth Amendment.” Far
W. Cap., Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir. 1995) (citing Rambo, 839 F.2d at
1416) (emphasis omitted).
B. 	Rule 12(b)(6)
Rule 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed] to state
a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A complaint
must contain ‘enough facts to state a claim to relief that is plausible on its face.’” Santa
Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th Cir. 2021)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the complaint
includes ‘well-pleaded factual allegations, a court should assume their veracity and then
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determine whether they plausibly give rise to an entitlement to relief.’” Carraway v. State
Farm & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotations and citation omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the
complaint alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC
Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule
12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]”
Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(citation omitted).
IV. 	Analysis
A. 	Defendant Abbott’s Motion to Dismiss [#112]
1. 	Personal Jurisdiction
Abbott challenges the Court’s exercise of personal jurisdiction. In a federal-
question case, courts apply a layered analytical framework. The first step asks whether
the governing statute authorizes service of process, and the second step asks whether
exercising jurisdiction comports with due process. Peay v. BellSouth Med. Assistance
Plan, 205 F.3d 1206, 1209 (10th Cir. 2000).
“The Due Process Clause of the Fourteenth Amendment constrains a State's
authority to bind a nonresident defendant to a judgment of its courts.” Walden v. Fiore,
571 U.S. 277, 283 (2014) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 291 (1980)). The Supreme Court has distinguished between two kinds of personal
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jurisdiction: “general (sometimes called all-purpose) jurisdiction and specific (sometimes
called case-linked) jurisdiction.” Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S.
351, 358 (2021) (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
919 (2011)).
The Due Process Clause requires that the defendant have sufficient “minimum
contacts” with the state, so that the exercise of jurisdiction would not violate “traditional
conception[s] of fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 464 (1985) (quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). The
“minimum contacts” test may be established by general jurisdiction or specific jurisdiction.
Otter Prods., LLC v. Phone Rehab, LLC, No. 19-cv-00206-RM-MEH, 2019 WL 4736462,
at *4 (D. Colo. Sept. 27, 2019).
Federal Rule of Civil Procedure 4(k)(1)(A) permits federal courts to exercise
personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of
general jurisdiction in the state where the district is located;” thus, Rule 4(k)(1)(A)
implicates Colorado's long-arm statute. “[T]he [DTSA] does not have nationwide service
of process that would confer personal jurisdiction over all Defendants.” Flux Drive, Inc v.
Sparks, No. 24-cv-02784-DDD-STV, 2025 WL 2331378, at *4 (D. Colo. May 28, 2025)
(citation omitted), report and recommendation adopted, 2025 WL 2331369 (July 11,
2025). Thus, the laws of the forum state, Colorado, dictate personal jurisdiction under
Federal Rule of Civil Procedure 4(k)(1)(A). Id. (citing Dudnikov v. Chalk & Vermilion Fine
Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008)).
Colorado's long-arm statute provides multiple bases for the exercise of personal
jurisdiction, including: (1) the commission of a tortious act in Colorado; (2) transaction of
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business in Colorado; and (3) the ownership, use, or possession of any real property
situated in this state. COLO. REV . S TAT. § 13-1-124(1). “The Colorado Supreme Court has
interpreted 	Colorado's long-arm 	statute 	to extend 	jurisdiction 	to 	the fullest 	extent
permitted by the Due Process Clause of the Fourteenth Amendment.” AST Sports Sci.,
514 F.3d at 1057 (citing Benton v. Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004)
(referencing Mr. Steak, Inc. v. Dist. Ct., 574 P.2d 95, 96 (Colo. 1978))).
A state court may exercise general jurisdiction over any claims against defendants
who are “essentially at home” in the state; this is true when an individual is domiciled in
the state. Ford Motor Co., 592 U.S. at 352 (quoting Goodyear Dunlop, 564 U.S. at 919).
In determining whether a forum State may assert specific jurisdiction over a nonresident
defendant, a court “focuses on the relationship among the defendant, the forum, and the
litigation.” Keeton v. Hustler Mag., Inc., 465 U.S. 770, 780 (1984) (internal quotation marks
and citations omitted). A plaintiff must establish: (1) the defendant “purposefully directed”
his activities toward the forum state, and (2) the litigation is a result of injuries that “arise
out of or relate to” the defendant's contacts with the forum state. Burger King Corp., 471
U.S. at 472 (citation omitted).
Here, Plaintiffs assert that the Court has specific jurisdiction over Abbott; they do
not assert that the Court has general jurisdiction over Abbott. See Response [#132] at 3-
5. Therefore, the Court limits its analysis to specific jurisdiction.
Plaintiffs must establish personal jurisdiction through uncontested allegations or
supporting materials that, if true, would establish jurisdiction. AST Sports Sci., 514 F.3d
1057. Thus, the Court may consider matters outside the pleadings without transforming
the Rule 12(b)(2) motion into one for summary judgment under Rule 56. Greenway
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Nutrients, Inc. v. Blackburn, No. 13-cv-01088-MSK-KMT, 2015 WL 1524941, at *2 (D.
Colo. Feb. 23, 2015). Here, Plaintiffs carry their burden.
a. 	The Purposeful Availment Requirement
Purposeful direction requires conduct by which a defendant purposefully avails
itself of the privilege of conducting activities in the forum state, rather than contacts that
are random, isolated, or fortuitous. Ford, 592 U.S. at 359. In other words, “a defendant
[must] have deliberately engaged in significant activities within the forum State or
deliberately directed its activities at the forum State, so that it has manifestly availed itself
of the privilege of conducting business there.” XMission L.C. v. Fluent LLC, 955 F.3d 833,
840 (10th Cir. 2020) (cleaned up). “Purposeful direction is a product of both the quantity
and quality of a defendant’s contacts with the forum.” Id. “The requirement ensures that
a defendant will not be subject to the laws of a jurisdiction solely as a result of random,
fortuitous, or attenuated contacts, the unilateral activity of another party or a third person,
or the mere foreseeability that its actions may cause injury in that jurisdiction.” Id. (internal
quotation marks and citation omitted).
In their quest to establish specific jurisdiction, Plaintiffs argue that Abbott has
exhibited a particular focus on Colorado in the following ways:
(1) It is registered to do business in Colorado, see Pls.’ Ex. 1, Colo. Sec’y of State
Certificate of Good Standing for Abbott [#132-1];
(2) It employs at least 260 employees in Colorado, Pls.’ Ex. 2, Abbott LinkedIn
Profile [#132-2];
(3) As of August 14, 2025, it advertised four open positions located in Colorado on
LinkedIn [#132-3], Pls.’ Ex. 3, LinkedIn Query;
(4) It maintains at least two Colorado offices, Id.; Pls’ Ex. 4, MapQuest Query
[#132-4];
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(5) It advertises through various means accessible in Colorado, including through
its website, Pls’ Ex. 5, Abbott Webpage [#132-5];
(6) It maintains a laboratory presence at the University of Colorado School of
Medicine Anschutz Medical Campus, Pls’ Ex. 6, CU Anschutz Dep’t of
Pediatrics Abbott Lab Overview [#132-6];
(7) It sells products to numerous hospitals throughout Colorado, Pls,’ Ex. 7,
Thompson Dep. [#132-7] at 15-21; and
(8) It sues Colorado residents in Colorado courts, Pls.’ Ex. 8, Colo. Courts E-Filing
Case Search [#132-8].
Response [#132] at 4.
In reply, Abbott argues that Plaintiffs have failed to “alleg[e] any suit-related
contacts,” Reply [#143] at 2, and that the cited examples of contact “conceivably could be
relevant to general personal jurisdiction, if [Plaintiffs] showed such ‘continuous and
systematic’ contacts by Abbott that it could be deemed essentially at home in Colorado,”
id. at 3 n.2.
The Court agrees with Defendants that the eight enumerated categories of contact
are not suit-related activities in Colorado and, therefore, irrelevant to the Court’s
determination of whether specific jurisdiction exists. Cf. Shrader v. Biddinger, 633 F.3d
1235, 1240 (10th Cir. 2011) (“The maintenance of a web site does not in and of itself
subject the owner or operator to personal jurisdiction . . . simply because it can be
accessed by residents of the forum state”); Auge v. Esbrook PC, 656 F. Supp. 3d 1275,
1281 (D. Colo. Feb. 15, 2023) (finding no general jurisdiction where the plaintiff failed to
establish that the defendant maintained offices, possessed property, or was registered to
conduct business in Colorado); Ball Metal Beverage Container Corp v. CML & J, LLC, No.
13-cv-00695-REB-MJW, 2013 WL 3270614, at *3 n.2 (D. Colo. June 27, 2013) (noting
the plaintiff’s inability to establish general jurisdiction because the defendant had no
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physical or commercial presence in Colorado, was not registered to conduct business in
Colorado, had no employees or representatives in Colorado, had never advertised in
Colorado, and had no contracts, licenses, or business relationships in the state).
For specific jurisdiction to apply, Abbott must have taken measures to solicit
business from Colorado residents or entities. See Soma Med. Int’l v. Standard Chartered
Bank, 196 F.3d 1292, 1299 (10th Cir. 1999) (concluding that “maintenance of a passive
website, 	merely 	providing 	information 	to 	interested 	viewers,” 	does 	not 	constitute
“purposeful availment of the benefits of doing business” in a particular state); Global
Power Supply LLC v. Acoustical Sheet Metal Inc., No. 18-cv-02098-REB-KMT, 2018 WL
5886495, at *3 (D. Colo. Nov. 8, 2018) (finding failure to establish specific jurisdiction
where the plaintiff, not the defendant, directed product shipments to Colorado and the
plaintiff failed to demonstrate that the defendant took measures to solicit business from
Colorado residents), report and recommendation adopted by 2019 WL 2106418 (D. Colo.
Mar. 12, 2019).
Courts employ “three distinct purposeful-direction frameworks, each focusing on a
particular aspect of a defendant’s contacts with the forum state[.]” XMission, L.C. v.
PureHealth Rsch., 105 F.4th 1300, 1309 n.9 (10th Cir. 2024). The first concerns whether
the defendant has “continuing relationships with forum state residents.” Id. (citation
omitted). The second concerns whether the defendant deliberately exploited the forum
state market. Id. The third concerns whether harmful effects were felt in the forum state.
Id.
Plaintiffs appear to employ the harmful effects test, though they do not expressly
do so. “To demonstrate purposeful availment in the harmful-effects context, a plaintiff must
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allege the defendant committed (a) an intentional action that was (b) expressly aimed at
the forum state with (c) knowledge that the brunt of the injury would be felt in the forum
state.” PureHealth Rsch., 105 F.4th 1309-10 (internal citation and quotation marks
omitted).
Plaintiffs allege that Abbott is a competing company that offers a product, Abbott’s
TAVI product, which competes with Plaintiffs’ TAVR product. Am. Compl. [#102] ¶ 32, ¶
67 (“Abbott’s TAVR valves are in direct competition with Edwards’ TAVR valves.”). About
three months after Thompson sent an Abbott employee Plaintiffs’ 2017 TAVR business
plan, the Area Vice President (Waddell) of Abbott’s competing TAVI product affirmatively
contacted Thompson to recruit him for a TAVI sales position. Id. ¶ 45. After Thompson
provided Abbott with information to help its TAVI business strategy, including Plaintiffs’
confidential business information, Thompson and Waddell held a call to discuss Abbott’s
potential strategy for opening territories in Kansas and Nebraska for Abbott’s TAVI
product. Id. ¶¶ 46-48. At Waddell’s request, Thompson sent names of implanters at five
sites where Abbott might be able to arrange TAVI trials in Kansas and Nebraska. Id. ¶ 50.
Plaintiff further alleges that, during this time, “Abbott was well aware of Thompson’s
contractual obligations to Edwards[.]” Id. ¶ 61.
Plaintiff also alleges that, as an Abbott employee, Thompson “solicited TAVR sales
. . . from the physicians and hospitals with whom he had developed relationships through
[his employment with Plaintiffs]” and contacted “at least 10 accounts in the region he
handled” while an employee of Plaintiffs.” Id. ¶¶ 66, 68. Further, shortly after Thompson
became an Abbott employee, “[Plaintiffs’] largest Colorado client . . . ordered 10 units of
Abbott’s . . . [TAVI] valve, at a cost of around $200,000,” and two other customers of
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Plaintiffs started stocking Abbott’s TAVI valves—even though they had not previously
used those valves. Id. ¶¶ 69-70.
Also as an Abbott employee, Thompson would attend Plaintiffs’ largest client’s
surgical procedures involving Plaintiffs’ TAVR products; on one such visit, Thompson
sought information about that client’s Vice President. Id. ¶ 71. Further, as an Abbott
employee, Thompson used his knowledge of Plaintiffs’ confidential information and trade
secrets to solicit the business of Plaintiffs’ customers, including their largest customer. Id.
¶ 73. When Plaintiffs confronted Thompson, they were informed that Abbott would not
restrict Thompson from contacting any of Plaintiffs’ clients. Id. ¶ 75. As a result of these
activities, including “Abbott’s unlawful interference with [Plaintiffs’] business relationships
with its customers,” Plaintiffs have “incur[red] substantial monetary damages[.]” Id. ¶ 79.
Abbott argues that Plaintiffs fail to allege that it directed acts at Colorado. Motion
[#112] at 6-91; Reply [#143] at 3-7. Abbott contends that Plaintiffs offer a single allegation
about Abbott’s “purposefully directed” conduct: after Abbott hired Thompson, it sold its
TAVI valves to one Colorado customer who had not previously purchased Abbott’s valves.
See Motion [#112] at 6-7. Abbott further argues that Plaintiffs do not allege that Abbott
traveled to Colorado to recruit or interview Thompson, and it points out that Abbott hired
Thompson to work in several states, not just Colorado. Id. at 7. In its Reply, Abbott seeks
to distance itself from or reframe Thompson’s distribution of Plaintiffs’ 2017 business plan
to an Abbott employee and the Thompson-Waddell communications regarding Plaintiffs’
client information and Abbott’s strategies for expanding the market for its competing
product. See Reply [#143] at 4-6. Abbott’s arguments, however, do not address the
________________________
1 Citations to page numbers refer to the numbering stamped at the top of each page by the Court’s
CM/ECF docketing system, not to the document’s original numbering.
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throughline in Plaintiffs’ allegations: that through Thompson, Abbott engaged in intentional
acts in Colorado with the aim of cutting into Plaintiffs’ market share.
It is well established that “a corporation can purposefully avail itself of a forum by
directing its agents . . .to take action there.” Daimler AG v. Bauman, 571 U.S. 117, 135
n.13 (2014). Additionally, courts have long recognized that deliberate solicitation of
business in a forum state strongly supports a finding of purposeful availment. See
Newsome v. Gallacher, 722 F.3d 1257, 1280 (10th Cir. 2013) (explaining that purposeful
availment may be established by evidence that a defendant reached into the forum state
to solicit business); Pro Polish, LLC v. Abkarian, No. 23-cv-02470-NYW-SBP, 2024 WL
2701314, at *3 (D. Colo. May 24, 2024) (recognizing that parties who reach beyond one
state to create continuing relationships and obligations with citizens of another state
subject themselves to regulation there). Here, Plaintiffs contend that, through Thompson,
Abbott committed intentional acts expressly aimed at Colorado with knowledge that the
brunt of the injury would be felt in Colorado. See PureHealth Rsch., 105 F.4th 1309-10
(internal citation and quotation marks omitted). The Court finds that this is sufficient to
make a prima facie showing of personal jurisdiction to defeat Abbott’s Rule 12(b)(2)
motion. See AST Sports Sci., 514 F.3d at 1057; see also Levesque v. Iberdrola, S.A., No.
2:19-cv-00389-JDL, 2021 WL 3476092, at *8 (D. Me. Aug. 6, 2021) (finding company
purposefully 	availed 	itself 	of 	privilege 	of 	conducting 	business 	in 	Maine 	where 	it
“deliberate[ly] act[ed]” to send employees to that state to work on a particular project that
was incorporated into the company’s global system).
This case is remarkably similar to Vessel Medical, Inc. v. Elliott, No. 6:15-cv-00330-
MGL, 2015 WL 5437170, at *5-6 (S.D.S.C. Sept 15, 2015). Like the case before the Court,
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Vessel involved claims of trade secret theft, breach of contract, breach of duty of loyalty,
tortious interference with contractual relations, and tortious interference with prospective
contractual relations. 2015 WL 5437170, at *1. The claims were brought by a medical
supply and equipment distributor and by a lab offering medical testing and monitoring. Id.
The plaintiffs alleged that one of the defendants, whom they hired as the strategic
business development director, misappropriated confidential and trade secret information
to which he had access and shared that information with a competing lab, with which he
desired to partner—despite applicable non-disclosure, non-solicitation, and non-compete
agreements. Id. That defendant also solicited clients using the plaintiffs’ customer lists
and information. Id. When that defendant resigned from the plaintiffs’ employment, the
plaintiffs lost clients to the defendant’s new venture with the competing lab, also a
defendant. The plaintiffs alleged that the lab defendant knew of the existence of the non-
disclosure, non-solicitation, and non-compete agreements but it intentionally caused the
individual defendant to breach the agreements through misappropriation of the plaintiffs’
protected information. Id. at *2.
Like Abbott, the lab defendant sought Rule 12(b)(2) dismissal and, like Plaintiffs,
the Vessel Medical plaintiffs focused on specific jurisdiction. Id. at *5. The plaintiffs argued
that the individual defendant’s “activities within the forum state [were] highly relevant to
the specific jurisdiction inquiry as it pertains to [the competing lab].” Id. at *5. The plaintiffs
further argued that because the individual defendant’s “intentional acts, targeted at [the]
[p]laintiffs in South Carolina, caused economic and reputational injury to [the] [p]laintiffs
in South Carolina,” the competing lab “purposely availed itself of South Carolina” by acting
through the individual defendant. Id. In response, the lab argued that the complaint failed
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to identify conduct by the lab that would have subjected it to specific jurisdiction in South
Carolina. Id. The court rejected that argument because the complaint “alleged that [the
competing lab] solicited the individual defendant and the plaintiffs’ clients, “knew of the
existence of [the individual defendant’s] contractual obligations with [the] [p]laintiffs, and
intentionally caused [the individual defendant] to breach the terms of the agreement by
misappropriating [the] [p]laintiffs’ trade secrets, soliciting [the] [p]laintiffs’ customers and
employees, and improperly competing against [the] [p]laintiffs.” Id. That is exactly the
situation now before the Court.
Just as the Vessel Medical court found that exercising jurisdiction over the
competing lab, an out-of-state corporate defendant, was “constitutionally proper,” the
Court does so here. The Court finds that Plaintiffs have made a prima facie showing that
Abbott purposefully availed itself of the privilege of conducting business in Colorado.
Plaintiffs therefore satisfy the first prong of the specific jurisdiction analysis.
b. 	The Arise Out of or Relate to Requirement
Abbott also challenges the second prong of the specific jurisdiction analysis.
Motion [#112] at 8. The relatedness requirement demands an affiliation between the forum
state and the underlying controversy. Ford, 592 U.S. at 359-60. The arising-out-of
requirement obligates courts to ensure an adequate link between the forum state and the
claims at issue, regardless of the extent of a defendant’s other forum-related activities.
XMission, 955 F.3d at 840. The Tenth Circuit Court of Appeals has “interpreted the ‘arise
out of’ language to require ‘some sort of causal connection between a defendant’s
contacts and the suit at issue.’” PureHealth Res., 105 F.4th at 1312 (quoting Dudnikov,
514 F.3d at 1078). The Circuit has used both proximate causation and “but-for” causation
tests to meet this requirement. Id. at 1312-13.
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Under the proximate-causation test, the Court must “examine[] whether any of the
defendant’s contacts with the forum are relevant to the merits of the plaintiff’s claim.”
Dudnikov, 514 F.3d at 1078 (citation and internal quotation marks omitted). “[T]he test for
proximate 	causation 	for 	purposes 	of 	personal 	jurisdiction 	may 	be, 	in 	appropriate
circumstances, somewhat looser than the tort concept of proximate causation.” Compañía
de Inversiones Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970
F.3d 1269, 1288 (10th Cir. 2000). In short, under this test, the Court must “determine
whether a nexus exists between a defendant’s forum contacts and a plaintiff’s cause of
action.” PureHealth Res., 105 F.4th at 1313 (citation and internal quotation marks
omitted). Under the “but-for” causation test, “any event in the causal chain leading to the
plaintiff’s injury is sufficiently related to the claim to support the exercise of specific
jurisdiction.” Dudnikov, 514 F.3d at 1078.
Here, Plaintiffs’ causes of action against Defendant Abbott are for violations of
federal and state trade secret laws, tortious interference with Thompson’s contract, and
tortious interference with prospective business advantage regarding Plaintiffs’ customers.
Plaintiffs allege that Abbott contacted Thompson in Colorado to obtain information about
Colorado hospitals it intended to target. Pls.’ Ex. 10, Text Messages [#132-10] at 2-3. At
Waddell’s request, Thompson provided information regarding several Colorado hospitals
and identified key implanters at those facilities. Id. at 3-4; Am. Compl. [#1-2], ¶ 49. Abbott
allegedly 	knew 	Thompson 	remained 	subject 	to 	non-compete 	and 	non-disclosure
agreements yet nonetheless reached into Colorado to recruit him for a competing
position. Am. Compl. [#102], ¶ 45. Within a month following Plaintiffs’ termination of him,
Thompson contacted at least 10 of Plaintiffs’ clients to solicit business on Abbott’s behalf,
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and one of Plaintiffs’ largest Colorado clients bought 10 units of Abbott’s competing
product—even though it had not previously purchased Abbott’s product. Id. ¶¶ 68, 69.
Two other clients of Plaintiffs began to stock Abbott’s competing product. Id. ¶ 70. These
allegations among others establish a causal chain leading to Plaintiffs’ injury; therefore,
Plaintiffs have met their burden with respect to the “arise out of or relate to” requirement.
Accordingly, the Court recommends that Abbott’s Motion [#112] be denied as to
its Rule 12(b)(2) personal jurisdiction challenge.
2. 	Defendant Trade Secrets Act and Colorado Uniform Trade Secrets Act
(Claims One and Two)
Plaintiffs bring a federal and state claim for misappropriation of trade secrets. Am.
Compl. [#102], ¶¶ 80-94. To state an actionable claim for misappropriation of trade secrets
under the DTSA, a plaintiff must plausibly allege: “(1) the existence of a trade secret that
relates to a product or service used in, or intended for use in, interstate or foreign
commerce; (2) the acquisition of the trade secret, or the use or disclosure of the trade
secret without consent; and (3) the person acquiring, using, or disclosing the trade secret
knew or had reason to know that the trade secret was acquired by improper means.” DTC
Energy Grp., Inc. v. Hirschfeld, 420 F. Supp. 3d 1163, 1175 (D. Colo. 2019) (internal
quotations omitted). Similarly, to state an actionable claim under CUTSA, a plaintiff must
plausibly allege that: (1) it “possessed a valid trade secret”; (2) “the trade secret was
disclosed or used without consent,” and (3) “the defendant knew, or should have known,
that the trade secret was acquired by improper means.” Id. at 1176 (internal quotations
omitted and citation). Abbott argues the Amended Complaint fails to sufficiently allege the
existence of a trade secret and that it used or acquired trade secrets by improper means.
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a. 	Trade Secrets
Beginning with the first element, Abbott argues that Plaintiffs have not identified
information that qualifies for trade secret protection. Motion [#102] at 8-9.2 The DTSA
defines a trade secret broadly to include “all forms and types of financial, business,
scientific, technical, economic, or engineering information,” regardless of how stored or
memorialized. 18 U.S.C. § 1839(3). Colorado law likewise protects “confidential business
or financial information, listing[s] of names, addresses, or telephone numbers, or other
information relating to any business or profession,” provided the information remains
secret and derives value from that secrecy. COLO. REV . S TAT. § 7-74-102(4). Under federal
and state law, the owner of the trade secret must have taken reasonable measures to
ensure the information’s secrecy, and the information must derive independent economic
value from not been generally known or readily ascertainable through proper means. See
18 U.S.C. § 1839(3)(A)&(B); COLO. REV . S TAT. § 7-74-102(4).
Plaintiffs allege their trade secrets include customer information; specific customer
contract terms such as customized rebate pricing, contract duration, and renewal dates;
customer preferences and physician-specific motivations; strengths and weaknesses of
TAVR and TMTT products; identification of strategic or profitable accounts and methods
for 	selling 	to 	them; 	technical 	product 	specifications 	not 	disclosed 	to 	physicians;
proprietary measurement software; and future pricing strategies and marketing plans.
________________________
2 As an initial matter, Abbott contends that to the extent Plaintiffs rely on the July 2024 text
messages between Thompson and Waddell, those messages cannot qualify as trade secrets
because Plaintiffs publicly filed them with the Court. Reply [#143] at 2, 7. Federal and state law
define misappropriation as the acquisition of a trade secret by a person who knows or has reason
to know that the trade secret was acquired by improper means. 18 U.S.C. § 1839(5)(A); C OLO.
REV. STAT . § 7-74-102(2)(a). The relevant inquiry therefore focuses on the status of the
information at the time of acquisition. In any event, Plaintiffs rely on more than the July 2024 text
messages to support their claims. See Am. Compl. [#102], ¶¶ 81(a)-(l), 92.
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Am. Compl. [#102], ¶¶ 81, 92. Plaintiffs contend that, in addition to technical product
knowledge, Thompson possessed detailed knowledge of Plaintiffs’ customers, which falls
within these categories. Plaintiffs claim this technical and customer-specific information
as the trade secrets at issue. Plaintiffs further allege that they have gone “to significant
lengths” 	to 	protect 	the 	confidentiality 	of 	their 	trade 	secret 	information, 	including
maintaining physical security of facilities; surveilling digital workspaces; and implementing
policies, trainings, and contractual provisions. Id. ¶ 21.
Courts 	have 	repeatedly 	recognized 	that 	detailed 	customer 	and 	business
information may qualify as trade secrets. See First W. Cap. Mgmt. Co. v. Malamed, No.
16-cv-1961-WJM-MJW, 2016 WL 8358549, at *8 (D. Colo. Sept. 30, 2016) (holding that
detailed customer knowledge may constitute a trade secret even if not maintained in
physical or digital form), rev’d on other grounds, 874 F.3d 1136 (10th Cir. 2017); Haggard
v. Spine, No. 09-cv-00721-CMA-KMT, 2009 WL 1655030, at *9 (D. Colo. June 12, 2009)
(holding that detailed information about doctors and hospitals, including specialties,
preferences, and contacts, obtained through employment, may qualify as trade secret
information); R & D Bus. Sys. v. Xerox Corp., 152 F.R.D. 195, 197 (D. Colo. 1993) (holding
that market strategy, customer lists, and related business information constitute trade
secrets under Colorado law).
Abbott also argues that information Thompson shared with Waddell regarding
clinical trials in Kansas and Nebraska was publicly available and therefore cannot
constitute a trade secret. Motion [#112] at 9. The Amended Complaint, however, alleges
that Thompson did more than identify hospitals where clinical trials occurred. Plaintiffs
allege that Thompson conveyed his assessment, based on knowledge gained through
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his employment, that those markets were sufficiently robust to justify Abbott’s expansion.
Am. Compl. [#102], ¶ 47; Pls.’ Ex. 10, Text Messages [#132-10] at 1.
Moreover, the public availability of certain underlying facts does not necessarily
defeat trade secret protection for the compiled or contextualized information. See Hertz
v. Luzenac Grp., 576 F.3d 1103, 1114 (10th Cir. 2009) (“A customer list can be a trade
secret when it is the end result of a long process of culling the relevant information from
lengthy and diverse sources, even if the original sources are publicly available.”) (citing
Conseco Fin. Servicing Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 819 (8th Cir. 2004)
(holding that the company’s “lead sheets” are trade secrets, despite being based largely
on public records); Haggard, 2009 WL 1655030, at *9 (holding that customer information,
which took years to develop and was “organized in a unique manner,” was entitled to
trade secret protection despite the fact many of the sources of the information were
publicly available)).
The Court finds Plaintiffs sufficiently identify information that may qualify as trade
secrets.
b. 	Improper Means
The Court next considers whether Plaintiffs plausibly allege that Abbott acquired
or used the identified information by improper means. To state a claim under the DTSA
and CUTSA, Plaintiffs must allege facts showing that Abbott knew or had reason to know
that Thompson acquired the information under circumstances giving rise to a duty to
maintain 	its 	secrecy, 	and 	that 	Abbott 	nevertheless 	obtained 	or 	used 	it 	without
authorization. See 18 U.S.C. § 1839(5); COLO. REV . S TAT. § 7-74-102(2).
Abbott argues that the only relevant action Plaintiff attributes to it is hiring
Thompson. Motion [#112] at 9. It contends that hiring an employee with access to trade
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secrets does not, by itself, constitute misappropriation. Id. (citing REMAX LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1175 (D. Colo. 2018)). Abbott further argues that
Plaintiffs’ theory would impose strict liability on any company that hires an employee who
possesses a competitor’s trade secrets. Id. at 9-10.
The Amended Complaint, however, alleges conduct beyond mere hiring. As
discussed, Plaintiffs allege that in early July 2024, Waddell solicited and received
information from Thompson regarding whether the Kansas and Nebraska markets
contained sufficient business to justify Abbott’s expansion. Pls.’ Ex. 10, Text Messages.
[#132-10] at 1; Am. Compl. [#102], ¶ 47. Plaintiffs contend this information derived from
Thompson’s employment with Plaintiffs.
Plaintiffs also allege that, on the day Thompson resigned, Waddell told him that
Abbott’s attorney “knows all about you and your situation.” Am. Compl. [#102], ¶ 61. This
allegation supports a reasonable inference that Abbott knew of Thompson’s non-
disclosure obligations yet nevertheless sought confidential information from him.
In addition, Plaintiffs allege that while still employed by Plaintiffs, Thompson
informed clients that he anticipated serving them as an Abbott salesperson; that within
weeks of joining Abbott, he contacted at least ten former clients; and that at least three of
those clients began purchasing Abbott’s competing product. Id., ¶¶ 36, 63, 68-70.
Plaintiffs further allege that Thompson’s knowledge of rebate-adjusted pricing enabled
him to negotiate directly competitive pricing for Abbott’s TAVI products. Id., ¶¶ 72-73.
According to the Amended Complaint, Abbott hired Thompson to work in markets that
overlapped with his prior role despite knowing of his non-compete and non-disclosure
obligations.
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Taken together, these allegations support a plausible claim that Abbott knew
Thompson possessed protected trade secret information and that Abbott acquired and
used that information through him. These allegations suffice to state plausible claims
under both the DTSA and the CUTSA.
Accordingly, the Court recommends that Abbott’s Motion [#112] be denied as to
Plaintiffs’ misappropriation of trade secrets claims under the DTSA and the CUTSA.
3. 	Tortious Interference with Thompson’s Contract (Claim Five)
Plaintiffs next assert that Abbott induced Thompson to breach his Employment
Agreement. Am. Compl. [#102], ¶¶ 108-15. To state a claim for tortious interference with
contract under Colorado law, a plaintiff must allege that (1) it had a valid contract with a
third party, (2) the defendant induced or otherwise caused the third party to breach the
contract, and (3) the defendant acted intentionally and through improper means. Insight
Glob. LLC v. McDonald, No. 17-cv-1915-MSK-MJW, 2018 WL 2092486, at *4 (D. Colo.
May 3, 2018) (citing Harris Grp. v. Robinson, 209 P.3d 1188, 1195-96 (Colo. App. 2009)).
Abbott argues that the Amended Complaint fails to allege facts showing it induced
Thompson to breach his agreement. Motion [#112] at 10-11. The Court agrees.
The Amended Complaint alleges that Thompson began increasingly accessing
TAVR documents in late April 2024, before contacting Waddell on May 8, 2024, to discuss
returning to Abbott. Am. Compl. [#102], ¶¶ 46, 54. Over the following two months,
Thompson 	continued 	accessing 	and 	downloading 	TAVR-related 	documents 	while
discussing with Waddell the feasibility of Abbott expanding into Nebraska and Kansas.
Id., ¶¶ 46-50, 52-55. These allegations indicate Thompson initiated and carried out the
alleged violations of his Employment Agreement independently, rather than at Abbott’s
direction or persuasion.
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The Court finds DTC Energy instructive on this issue. There, the complaint alleged
the former employee “began plotting” with the defendants to steal the plaintiff’s business
and suggested the employee initiated or joined the plan from the outset. DTC Energy, 420
F. Supp. 3d at 1179. The court held those allegations did not plausibly show the
defendants induced the breach because they did not explain how the defendants caused
or persuaded the employee to violate his agreement. Id.
Plaintiffs argue that Abbott’s argument fails for the same reason the DTSA claim
survives. Response [#132] at 13. The Court disagrees. The DTSA requires only that
Abbott acquired and used trade secrets without consent while knowing or having reason
to know that Thompson should not disclose them. DTC Energy, 420 F. Supp. 3d at 1178.
Tortious interference requires more. Plaintiffs must plausibly allege that Abbott caused
Thompson to breach his agreement. Insight Glob. LLC, 2018 WL 2092486, at *4. The
allegations instead support an inference that Thompson sought employment with Abbott
and voluntarily shared information, not that Abbott caused or persuaded him to breach
his obligations.
Accordingly, the Court recommends that Abbott’s Motion [#112] be granted as to
Plaintiffs’ tortious interference with Thompson’s contract claim.
4. 	Tortious Interference with Prospective Business Advantage (Claim
Six)
To state a claim for intentional interference with prospective business relations
under Colorado law, a plaintiff must show that the defendant intentionally and improperly
interfered with a prospective contractual relationship and caused pecuniary harm. Hertz,
576 F.3d at 1119. Abbott seeks dismissal of Plaintiffs’ claim arguing Plaintiffs have failed
to allege pecuniary harm. Motion [#112] at 12. Abbott also invokes the competitor’s
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privilege. Id. at 12-13. In their Response, Plaintiffs address their two tortious interference
claims collectively. Response [#132] at 12-16. The claims, however, are distinct: the first
concerns Abbott’s interference with Thompson’s Employment Agreement (Claim 5), and
the second concerns interference with Plaintiffs’ prospective business relationships with
customers (Claim 6). Am. Compl. [#102], ¶¶ 108-20.
a. 	Pecuniary Harm
Abbott requests dismissal of this claim based on Plaintiffs’ alleged failure to identify
the loss of a specific sale. Motion [#112] at 12. Colorado law, however, does not require
a plaintiff to identify “a specific customer relationship or a specific customer” with whom
the plaintiff had a prospective relationship. Pers. Dep’t, Inc. v. Pro. Staff Leasing Corp.,
297 F. App’x 773, 777 (10th Cir. 2008) (quoting Ervin v. Amoco Oil Co., 885 P.2d 246, 254
(Colo. Ct. App. 1994), rev’d on other grounds, 908 P.2d 493, 502 (Colo. 1995)). A plaintiff
may show a decline in sales or sales volume or allege that it likely would have obtained
business but for the interference. Ervin, 885 P.2d at 254; APS Biogroup, Inc. v. Sterling
Tech., Inc., No. 19-cv-02952-RM-MEH, 2021 WL 356467, at *3 (D. Colo. Jan. 6, 2021).
Plaintiffs allege that one client purchased multiple units of Abbott’s TAVI product
shortly after Thompson’s resignation, and that two customers who had not previously
used Abbott TAVI valves began stocking them. Am. Compl. [#102], ¶¶ 69-70. Because
only one TAVI or TAVR product can be used per patient, a hospital or physician adopting
a competitor’s product necessarily results in a lost sale for Plaintiffs. At the motion to
dismiss stage, these allegations allow a reasonable inference of pecuniary harm sufficient
to support a plausible claim. Cf. MSC Safety Sols., LLC v. Trivent Safety Consulting, LLC,
No. 19-cv-00938-MEH, 2020 WL 7425874, at *16 (D. Colo. Dec. 18, 2020) (denying
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summary judgment on tortious interference with prospective business relations claim,
despite the lack of particularity, because an inference of monetary loss sufficed).
b. 	Competitor’s Privilege
Abbott also invokes the business competition privilege, which permits a competitor
to interfere with another’s prospective business relations if it does not employ wrongful
means. SRS Acquiom Inc. v. PNC Fin. Servs. Grp., Inc., No. 19-cv-02005-DDD-SKC,
2023 WL 5564990, at *8 (D. Colo. July 7, 2023). “Wrongful means” include conduct that
can independently give rise to liability. Id. Abbott’s alleged misappropriation of trade
secrets constitutes wrongful means for purposes of this claim. See, e.g., id. (holding that
underlying trade-secret liability provides a sufficient basis to support a claim for intentional
interference 	with 	prospective 	business 	relations). 	Because 	the 	Court 	has 	already
determined Plaintiffs sufficiently allege misappropriation of trade secrets, Plaintiffs also
sufficiently allege wrongful means here.
Accordingly, the Court recommends that Abbott’s Motion [#112] be denied as to
Plaintiffs’ tortious interference with prospective business relations claim.
B. 	Plaintiffs’ Motion to Dismiss Thompson’s Counterclaims [#138]
1. 	First Counterclaim: Colo. Rev. Stat. § 8-2-113(8)
Thompson asserts a counterclaim under Colo. Rev. Stat. § 8-2-113, alleging
Plaintiffs violated the statute by attempting to enforce a non-compete agreement that
Colorado law renders void. Counterclaims [#113], ¶¶ 49-53. He seeks actual and statutory
damages, reasonable costs, and attorneys’ fees. Id., ¶ 53.
Although Colorado law generally disfavors non-compete agreements, it permits
enforcement when specific statutory exceptions apply. COLO. REV . S TAT. § 8-2-113.
Thompson maintains that none of those exceptions apply. Countercls. [#113], ¶ 51. The
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Court need not resolve that dispute because the version of the statute governing his
agreement did not authorize a private right of action for monetary damages.
Before August 2022, Colorado law prohibited non-compete agreements unless
they fell within one of four statutory exceptions. COLO. REV . S TAT. § 8-2-113(2) (2021);
Pls.’ Ex. 1 [#138-1]. If an agreement did not qualify for an exception, the statute rendered
it void. Id. The statute did not authorize monetary remedies against an employer who
attempted to enforce an unlawful non-compete agreement. Instead, employees could
pursue 	common 	law 	equitable 	remedies, 	such 	as 	rescission 	or 	voidability. 	See
Deschenes Consulting LLC v. Nu Life Mkt. L.L.C., No. 19-cv-03465-RM-SKC, 2020 WL
7025142, at *7 (D. Colo. Nov. 30, 2020) (explaining that, before August 2022, an
employee who signed an unlawful non-compete agreement “would have had remedies in
contract law and under § 8-2-113(2) to void or rescind the agreement”).
In 2022, the Colorado General Assembly substantially amended § 8-2-113. H.B.
22-1317, 73rd Gen. Assemb., 2nd Reg. Sess. (Colo. 2022); Pls.’ Ex. 2 [#138-2]. Among
other changes, the amendments created a private right of action and authorized monetary
damages against an employer who “attempt[s] to enforce any covenant [not to compete]
that is void under this section.” Id. The Act expressly applies to covenants not to compete
“entered into or renewed on or after” its effective date. Id. The Act took effect on August
10, 2022. Id.
The parties do not dispute that Thompson executed the Employment Agreement
on June 9, 2022, before the statute’s effective date. 2022 Emp. Agreement [#102-1] at 9.
Thompson nevertheless argues that subsection (8) applies because Plaintiffs’ attempt to
enforce the agreement occurred after the effective date. Response [#145] at 9-10. He
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contends the amended statute authorizes damages in three distinct scenarios for liability:
when an employer (1) enters into, (2) presents, or (3) attempts to enforce a void non-
compete. Id. He further argues that the Act’s provision stating that it applies to agreements
“entered into” on or after the effective date only applies to the “enters into” scenario. Id.
at 8 n.4.
Thompson relies on a state trial court decision that applied similar reasoning.
Notice of Suppl. Authority [#179, #179-1], Huset v. EIS Ultimate Holding, LP, No.
2023CV30661, 2025 WL 2491568 (Colo. Dist. Ct. June 18, 2025). In Huset, the court
analyzed the provisions within § 8-2-113 and concluded that certain provisions could
apply even when the underlying contract predated the amendments. Id. at *34. Like
Thompson, the Huset court concluded that subsection (8) creates three distinct scenarios
for employer liability and that the “attempt to enforce” scenario applies prospectively. Id.
The court found that a prospective application permits claims based on attempts to
enforce an unlawful non-compete agreement that occurs after the statute’s effective date.
Id.
Huset is currently on appeal. Notice of Appeal [#183-2]. Regardless, the state court
decision is not binding in this forum and the Court finds its reasoning unpersuasive.
Federal courts in this district have consistently held that the 2022 amendments do not
apply to employment agreements entered into before August 10, 2022. See, e.g., Adecco
USA, Inc. v. Simonov, No. 25-cv-01472-GPG-CYC, 2025 WL 2815297, at *10 n.9 (D.
Colo. June 17, 2025); Peterson v. Pickering, No. 22-cv-0320-WJM-KAS, 2024 WL
729672, at *3 (D. Colo. Feb. 22, 2024); MGA Home Healthcare Colorado, LLC v. Thun,
No. 22-cv-02534-NYW-STV, 2023 WL 7003489, at *7 n.8 (D. Colo. Oct. 24, 2023); Allstate
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Ins. Co. v. Cruz, No. 20-cv-03139-NYW-MEH, 2023 WL 6147077, at *8 n.5 (D. Colo. Sept.
20, 2023). These courts rely on the statute’s plain language, which limits application of
the amendments to covenants entered into or renewed on or after the effective date.
The Court finds that reasoning persuasive. The statutory text expressly ties the
amended Act’s applicability to the date the parties entered into or renewed the agreement.
H.B. 22-1317, § 2. Because Thompson executed his Employment Agreement before
August 10, 2022, the 2022 amendments do not apply. The amended statute therefore
does not provide Thompson a private right of action for damages.
Accordingly, the Court recommends that Plaintiffs’ Motion [#138] be granted as
to Thompson’s counterclaim under Colo. Rev. Stat. § 8-2-113.
2. 	Second 	Counterclaim: 	Tortious 	Interference 	with 	Employment
Relationship
In Thompson’s second counterclaim, he alleges tortious interference with an
employment relationship. Countercls. [#113], ¶¶ 54-63. To survive Plaintiffs’ challenge,
Thompson 	must 	allege 	sufficient 	facts 	to 	show 	that: 	(1) 	he had 	an 	employment
relationship with Abbott; (2) Plaintiffs knew or reasonably should have known of that
relationship; (3) Plaintiffs, through words or conduct, intentionally caused Abbott to
terminate or fail to perform the employment relationship; (4) Plaintiffs acted improperly;
and (5) Plaintiffs’ interference caused him damages. Ascentium Cap. LLC v. Premiere
Copier, Inc., 751 F. Supp. 3d 1164, 1170 (D. Colo. 2023).
The parties do not dispute the first two elements: Thompson had an employment
relationship with Abbott, and Plaintiffs knew of that relationship. Although the parties
dispute the remaining elements, the Court need not address the third and fourth elements
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because Thompson fails to adequately allege the fifth, that Plaintiffs’ alleged interference
caused him damages.
In his Counterclaims, Thompson alleges only that Plaintiffs’ interference “seeks to
effectively prevent Thompson from working for Abbott and has prevented him from selling
the TAVI product he was hired to sell.” Countercls. [#113], ¶ 62. At most, this allegation
suggests harm to Abbott. It does not allege that Thompson suffered actual damages, such
as termination, reduced compensation, or other quantifiable economic loss.
In his Response, Thompson asserts that Plaintiffs’ contact with one of Plaintiffs’
and Abbott’s overlapping clients caused his relationship with that client to stall. Response
[#145] at 13-14. He further argues that lost potential sales and legal expenses Abbott
incurred in connection with his hiring could render him less valuable as an employee and
negatively affect future promotions, bonuses, or other employment benefits. Id. at 14.
These allegations rest on speculation rather than concrete harm.
When damages constitute an element of a claim, a plaintiff must allege facts that
raise the right to relief above a speculative level. See Vincent v. Utah Plastic Surgery
Soc., 621 F. App’x 546, 551 (10th Cir. 2015) (affirming dismissal where a claim element
was damages and the plaintiff offered only a formulaic recitation of damages, failing to
raise the right to relief above the speculative level). Thompson does not allege that Abbott
terminated his employment, reduced his compensation, or otherwise took adverse action
against him because of Plaintiffs’ interference. Instead, he relies on conjecture about
potential future consequences and abstract assertions about diminished employee value.
Because damages are a required element of tortious interference with an employment
relationship, Thompson’s failure to plausibly allege them is fatal to his counterclaim.
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Accordingly, the Court recommends that Plaintiffs’ Motion [#138] be granted as
to Thompson’s tortious interference with employment relationship counterclaim.
V. 	Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that Defendant Abbott Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) [#112] be GRANTED in part and
DENIED in part. Specifically, the Motion should be granted as to Claim Five, tortious
interference with Thompson’s contract, and this claim dismissed without prejudice. It
should be denied as to Plaintiffs’ remaining claims.
IT 	IS 	FURTHER 	RECOMMENDED 	that 	Plaintiffs’ 	Motion 	to 	Dismiss
Thompson’s 	Counterclaims 	[#138] 	be 	GRANTED 	and 	Defendant 	Thompson’s
counterclaims be dismissed without prejudice.
IT IS FURTHER ORDERED that pursuant to Federal Rule of Civil Procedure 72,
the parties shall have fourteen (14) days after service of this Recommendation to serve
and file any written objections to obtain reconsideration by the District Judge to whom this
case is assigned. A party’s failure to serve and file specific, written objections waives de
novo review of the Recommendation by the District Judge, Federal Rule of Civil
Procedure 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate
review of both factual and legal questions, Makin v. Colo. Dep’t of Corr., 183 F.3d 1205,
1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s
objections to this Recommendation must be both timely and specific to preserve an issue
for de novo review by the District Court or for appellate review. United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.1996).
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Dated: February 27, 2026 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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