Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

BGI INCORPORATED. Plaintiff, v. THOMAS MERRIFIELD, GREENTECH INSTRUMENTS, TISCH ENVIRONMENTAL, INC. and JOHN TISCH, Defendants. Civil Action No.

COMPLAINT Plaintiff, BGI Incorporated (BGI), files this Complaint and demand for jury trial against Defendants Thomas Merrifield (Mr. Merrifield), Greentech Instruments (Greentech), Tisch Environmental, Inc. (Tisch Environmental) and John Tisch (Mr. Tisch) (collectively, Defendants). Plaintiff states and alleges the following:

NATURE OF ACTION 1. On February 14, 2012, Thomas Merrifield resigned from his position as President of BGI. Just prior to submitting his resignation, Mr. Merrifield copied and/or deleted virtually all BGI-related information, including trade secrets, confidential and/or proprietary information, from his work computer. While still President of BGI, and without BGIs knowledge or consent, Mr. Merrifield established a new company, Greentech, to directly compete with BGI in the environmental monitoring field. Mr. Merrifield co-founded and co-owned Greentech with John Tisch and James Tisch of Tisch Environmental, Inc., a direct competitor of BGI.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 2 of 22

2.

This is an action for preliminary and permanent injunctive relief to prevent

Defendants from continuing to cause irreparable harm to BGI and for damages to redress injuries suffered by BGI, as a result of wrongful conduct by Defendants, including the misappropriation and disclosure of trade secrets and confidential information, breach of the fiduciary duty owed BGI by Mr. Merrifield, and unfair competition. Defendants improper conduct constitutes common law and statutory misappropriation of trade secrets and other confidential information, tortuous interference with advantageous relations, conversion, breach of fiduciary duty, violation of the Computer Fraud and Abuse Act, civil conspiracy, and violation of Mass. Gen. Laws ch. 93 and 93A.

PARTIES 3. Plaintiff BGI is a corporation organized and existing under the laws of the

Commonwealth of Massachusetts having a principal place of business at 58 Guinan Street, Waltham MA 02451. 4. Upon information and belief, Defendant Thomas Merrifield is a citizen of Georgia

who resides at 4120 MacDuff Drive, Douglasville, GA 30135. 5. Upon information and belief, Defendant John Tisch is the owner of Defendant

Tisch Environmental Inc., which is an Ohio corporation having a principal place of business at 145 S. Miami Avenue, Cleaves, OH 45002. On information and belief, Mr. Tisch is a citizen of Ohio. 6. Upon information and belief, Defendant Greentech Instruments is a business

entity having a principal place of business at 145 S. Miami Avenue, Cleaves, OH 45002; Thomas Merrifield and Mr. Tisch each own a portion of Greentech.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 3 of 22

JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction under the Computer Fraud and Abuse

Act (CFAA), 18 U.S.C. 1030, et seq., 28 U.S.C. 1338, and under 28 U.S.C. 1332, as the amount in controversy exceeds $75,000 exclusive of interest and costs, and each of the parties are citizens of different states. This Court further has subject matter jurisdiction pursuant to the doctrine of supplemental jurisdiction as codified in Title 28 U.S.C. 1367. 8. This Court has personal jurisdiction over Defendants because they transact

business in the Commonwealth of Massachusetts, have made and performed contracts in Massachusetts, and/or have breached duties and/or committed tortious acts in Massachusetts. 9. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C.

1391(a)-(c) because a substantial part of the events giving rise to the claims occurred in this District. STATEMENT OF FACTS 10. BGI is a closely held corporation that designs and sells environmental monitoring

equipment, including EPA-designated solar powered air samplers, other air samplers, airflow meters, aerosol generation equipment, size selective sampling devices and filter holders. 11. BGI has been selling an air sampling instrument called the Cyclone Size Selective

Sampler (Cyclone) since October 1995. The Cyclone product line includes three models the GK, the SCC, and the VSCC. The Cyclone GK is an industry standard for occupational health related sampling; the Cyclone SCC is an industry standard for environmental pollution sampling; and the Cyclone VSCC is an industry standard for EPM PM 2.5-designated sampling. The Cyclone product line is sold all over the world.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 4 of 22

12.

The Cyclone includes an air intake, a vortex separator, and a computer that

operates the instrument. Some contain a filter for retaining separated particulates, while others contain a connection to a separate filter or a connection to a direct reading device such as a photometer. 13. 14. The Cyclone was designed by Robert Gussman, the founder of BGI. Thomas Merrifield was hired by BGI in October 2000 to serve as the President of

the company and to develop additional sales and sales territories for the company. At that time, Mr. Merrifield was given 5% of the stock of BGI, which he continues to own. The remainder of the stock of BGI is held by Robert and Gertrude Gussman. 15. Mr. Merrifield lived near Atlanta, Georgia at the time he was hired by BGI.

Although the Company expressed to Mr. Merrifield that he was expected to move to Massachusetts upon being hired, Mr. Merrifield remained in Georgia and worked out of his home. For the first ten years that he was President, Mr. Merrifield traveled to BGIs facility in Massachusetts on a regular basis. 16. Gertrude Gussman ran the business of the Company. About two years ago, when

Mrs. Gussman became ill and removed herself from the day-to-day business of the company, Mr. Merrifield was asked to assume her responsibilities. In connection with this, Mr. Merrifield began spending additional time, two to three days per week, in Massachusetts, working out of the BGI facility. Mr. Merrifield stayed in the Gussmans home when he was in Massachusetts. 17. About two years ago, the Gussmans attempted to sell BGI. The initial potential

buyer, Bolder Capital, discovered through its due diligence that Mr. Merrifield was a part owner of a Georgia-based business entity called Greentech Instruments (Greentech). Mr. Tisch, owner of Tisch Environmental, was also a co-owner of Greentech.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 5 of 22

18.

When confronted about his ownership of Greentech, Mr. Merrifield admitted that

he and Mr. Tisch owned the company, but asserted that it was not competitive with BGI. Mr. Merrifield promised to divest himself of his interest in Greentech. 19. Bolder Capital lost interest in purchasing BGI. BGI subsequently began

negotiating with Sensidyne LLC, and reached an agreement in principal for Sensidyne to purchase BGI. Mr. Merrifield was initially enthusiastic for the sale to occur. 20. In response to a request from Sensidyne, Mr. Merrifield signed a document

asserting that he did not own more than 5% of any company. 21. On information and belief, Mr. Merrifield had not then, and never has, divested himself of his interest in Greentech. 22. Shortly before the sale was to occur, Mr. Merrifield learned that Sensidyne did

not intend to retain him as President of BGI, but instead planned to put him on the road as a salesman. Upon information and belief, Mr. Merrifield immediately soured on the sale of BGI to Sensidyne. 23. Sensidyne began making additional demands as a condition of purchase. On

information and belief, this occurred at least in part because Mr. Merrifield tried to dissuade Sensidyne from buying BGI. 24. In late October 2011, four days before the closing was to occur, Mr. Merrifield

contacted the Gussmans through their counsel and demanded more than 5% of the sales price for his stock, or else he would refuse to sign any documents related to the sale. Mr. Merrifield also ceased taking any role in the negotiations between BGI and Sensidyne. 25. Based on these demands, and on Mr. Merrifields sudden withdrawal from the

negotiations, BGI put Mr. Merrifield on paid leave on October 28, 2011.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 6 of 22

26. 27.

The sale of BGI to Sensidyne fell through. BGI sought to return Mr. Merrifield to active status, and so informed him on

February 8, 2012. BGI further sought to have Mr. Merrifield sign an employment agreement as a part of his return to active status. Mr. Merrifield orally agreed to return to active service and to sign the employment agreement. 28. Instead of Mr. Merrifield appearing at BGI on February 14, 2012 as scheduled to

sign the employment agreement and resume work, BGI received an e-mail from Mr. Merrifield in which Mr. Merrifield resigned as President and demanded BGI buy back his stock. Mr. Merrifields letter of resignation was dated February 10, 2012, although the e-mail in which it was contained was not sent until February 14, 2012. 29. Mr. Merrifield had been in possession of two laptop computers and a cell phone

of BGI that had been made available for his use. Mr. Merrifield shipped the computers back to BGI on February 17, 2012. Mr. Merrifield never returned BGIs cell phone. 30. On February 22, 2012, BGI sent Mr. Merrifield a letter reminding Mr. Merrifield

of his duties relating to the confidential and proprietary information as a former officer and current shareholder of BGI. 31. On information and belief, Mr. Merrifield removed and/or deleted BGIs

confidential and proprietary information from the two computers. Despite Mr. Merrifield having worked with one or the other of the two computers for BGI for six years, there are no documents of significant relevance pertaining to BGI on either computer. On information and belief, the computers were accessed by USB memory devices of varying capacity numerous times in the time leading up to and immediately following Mr. Merrifields resignation from BGI. In particular, the newer of the two computers was accessed by six different USB memory devices

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 7 of 22

on February 13, 2012. On information and belief, the computers had at one point contained numerous files relating to BGIs instrumentation, customers, distributors, pricing, and other confidential and proprietary information, and now no longer contain such information. 32. On information and belief, while still President and shareholder of BGI, Mr.

Merrifield was using BGI equipment and resources to promote Greentech at the expense of BGI. Mr. Merrifield disparaged BGI to distributors, customers and potential distributors and customers and suggested that they consider purchasing and/or distributing Greentech products instead of BGI products. 33. On information and belief, Mr. Merrifield, through Greentech, promoted and

offered to sell a Greentech air sampler product called the CM100 that was intended to compete directly with BGIs PQ200 air sampler, to Josh Wen, a BGI distributor located in Taiwan, in the weeks prior to Mr. Merrifields resignation from BGI. On information and belief, Mr. Merrifield was using BGIs computers to design and distribute literature and information on Greentechs new CM100 to Mr. Wen. 34. On information and belief, Mr. Merrifield denigrated BGIs ability to make timely

deliveries of its PQ200 product in an attempt to discredit BGI to Mr. Wen. On information and belief, Mr. Merrifield was aware at the time that his conduct in promoting Greentech over BGI while still the President of BGI was wrongful. 35. On information and belief, Mr. Merrifield is presently competing directly with

BGI. On information and belief, Mr. Merrifield and Mr. Tisch reserved a booth at, and attended, the USEPA Region 4 Managers Meeting in Athens, GA in March 2012, just one month following Mr. Merrifields resignation from BGI.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 8 of 22

36.

On information and belief, Mr. Merrifield owns and operates a company

operating under the name Merrifield and Associates, Inc. On information and belief, Merrifield and Associates has reserved a booth at the National Air Quality Conference, in the Ambient Monitoring Exhibit Space, in May 2012. 37. 38. Mr. Merrifield continues to hold 5% of the stock of BGI. On information and belief, Tisch Environmental has made and/or has had made

on its behalf, and is selling and/or offering for sale, a knock-off of BGIs SCC product having the same outer appearance as the BGI SCC product, and has called this product the SCC.

COUNT I BREACH OF FIDUCIARY DUTY UNDER MASSACHUSETTS G.L. 156D et seq. (AGAINST MERRIFIELD)

39. fully herein. 40. 41.

Plaintiff restates and incorporate paragraphs 1-38 of this Complaint as if set forth

At all times he was employed by BGI, Mr. Merrifield was an Officer of BGI. As President, Mr. Merrifield was required to discharge his duties in accordance

with Mass. G.L. 156D, 8.30, 8.31 and 8.42. 42. While President of BGI, Mr. Merrifield violated his obligations under Mass. G.L.

156D, 8.30, 8.31 and 8.42 by creating a business, Greentech, to directly compete with BGI. 43. While President of BGI, Mr. Merrifield violated his obligations under Mass. G.L.

156D, 8.30, 8.31 and 8.42 by removing and/or destroying BGI confidential and proprietary information.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 9 of 22

44.

Mr. Merrifield violated his obligations under Mass. G.L. 156D, 8.30, 8.31 and

8.42 by placing his personal interests ahead of the interests of BGI while he was an officer of the company. 45. While President of BGI, Mr. Merrifield violated his obligations under Mass. G.L.

156D, 8.30, 8.31 and 8.42 by failing to protect the interests of BGI. 46. Mr. Merrifield violated his obligations under Mass. G.L. 156D, 8.30, 8.31 and

8.42 by directly competing with BGI while he was an officer of the company. 47. While President of BGI, Mr. Merrifield violated his obligations under Mass. G.L.

156D, 8.30, 8.31 and 8.42, and such violation was knowing and willful. 48. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT II BREACH OF FIDUCIARY DUTY UNDER MASSACHUSETTS COMMON LAW (AGAINST MERRIFIELD)

49. fully herein. 50. 51. 52.

Plaintiff restates and incorporate paragraphs 1-48 of this Complaint as if set forth

At all times he was employed by BGI, Mr. Merrifield was the President of BGI. As President, Mr. Merrifield stood in a fiduciary relationship toward BGI. Mr. Merrifield violated his fiduciary duty towards BGI by placing his personal

interests ahead of the interests of BGI while an officer of the company.

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 10 of 22

53.

Mr. Merrifield violated his fiduciary duty towards BGI by failing to protect the

interests of BGI. 54. Mr. Merrifield violated his fiduciary duty towards BGI by directly competing

with BGI while an officer of the company. 55. willful. 56. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has Mr. Merrifields violation of his fiduciary duty towards BGI was knowing and

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT III BREACH OF FIDUCIARY DUTY UNDER MASSACHUSETTS COMMON LAW (AGAINST MERRIFIELD)

57. fully herein. 58. corporation. 59. 60. 61.

Plaintiff restates and incorporate paragraphs 1-56 of this Complaint as if set forth

At all times that Mr. Merrifield was employed by BGI, BGI was a close

At all times he was employed by BGI, Mr. Merrifield was a shareholder of BGI. As a shareholder, Mr. Merrifield stood in a fiduciary relationship toward BGI. Mr. Merrifield violated his fiduciary duty towards BGI by placing his personal

interests ahead of the interests of BGI while an officer of the company.

10

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 11 of 22

62.

Mr. Merrifield violated his fiduciary duty towards BGI by failing to protect the

interests of BGI. 63. Mr. Merrifield violated his fiduciary duty towards BGI by directly competing

with BGI while an officer of the company. 64. willful. 65. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has Mr. Merrifields violation of his fiduciary duty towards BGI was knowing and

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT IV BREACH OF EMPLOYEES DUTY OF LOYALTY (AGAINST MERRIFIELD) 66. Plaintiff repeats and realleges the allegations contained in paragraphs 1 - 65 of the

Complaint as if fully set forth herein. 67. As President and as the main sales representative of BGI, Mr. Merrifield was a

key employee of BGI and had access to the Companys confidential information concerning designs, specifications, dealers, distributors, costs, profits, and other financial data. Merrifield, therefore, occupied a position of trust and confidence. 68. As a key employee in a position of trust and confidence, Mr. Merrifield stood in a

fiduciary relationship toward BGI. 69. Mr. Merrifield violated his fiduciary duty towards BGI by placing his personal

interests ahead of the interests of BGI while an officer of the company.

11

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 12 of 22

70.

Mr. Merrifield violated his fiduciary duty towards BGI by failing to protect the

interests of BGI. 71. Mr. Merrifield violated his fiduciary duty towards BGI by directly competing

with BGI while an officer of the company. 72. willful. 73. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has Mr. Merrifields violation of his fiduciary duty towards BGI was knowing and

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT V MISAPPRORIATION OF TRADE SECRETS AND CONFIDENTIAL AND PROPRIETARY INFORMATION UNDER MASSACHUSETTS COMMON LAW (AGAINST MR. MERRIFIELD)

74. fully herein. 75.

Plaintiff restates and incorporate paragraphs 1-73 of this Complaint as if set forth

By virtue of his employment at BGI and performance as President and main

salesman for BGI, Mr. Merrifield was given access to trade secrets and confidential and proprietary information belonging to BGI. 76. BGI took reasonable steps to protect the secrecy of its confidential and proprietary

business information and trade secrets. BGI derives independent economic value from its confidential and proprietary information and trade secrets not being known to the public or to other persons who could obtain economic value from their disclosure.

12

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 13 of 22

77.

Mr. Merrifield misappropriated, disclosed, misused and exploited trade secrets

and confidential and proprietary information of BGI to benefit himself, Greentech, and/or Merrifield and Associates, to the detriment of BGI. 78. Mr. Merrifields misappropriation of trade secrets and confidential and

proprietary information of BGI was willful and deliberate. 79. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT VI TAKING OF TRADE SECRETS AND CONFIDENTIAL INFORMATION IN VIOLATION OF MASS. G.L. CH. 93, 42 AND 42A (AGAINST MR. MERRIFIELD) 80. fully herein. 81. Mr. Merrifields actions described above are in violation of Mass. Gen. Laws ch. Plaintiff restates and incorporate paragraphs 1-79 of this Complaint as if set forth

93, 42 and 42A because BGI has protectable confidential, proprietary and/or trade secret information for which it took reasonable steps to preserve the secrecy, and Mr. Merrifield has used improper means to acquire, disclose and use that protected information. 82. Through Mr. Merrifields improper actions, BGI lost valuable information, as

well as customers, income and goodwill. 83. Mr. Merrifields misappropriation of trade secrets and confidential and

proprietary information of BGI was willful and deliberate.

13

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 14 of 22

84.

As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT VII VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT, 18 U.S.C. 1030, et seq. (AGAINST MR. MERRIFIELD AND GREENTECH) 85. fully herein. 86. BGIs computer system comprises a protected computer that is used in and affects Plaintiff restates and incorporate paragraphs 1-84 of this Complaint as if set forth

interstate and foreign commerce. 87. By the conduct described above, Mr. Merrifield knowingly and with intent to

defraud, accessed BGIs protected computer system, without authorization and/or in excess of his authorized access, for his own benefit and the benefit of others, including Greentech. Mr. Merrifield and Greentech thereby obtained information from a protected computer, and their conduct involved interstate communications. 88. By the conduct described above, Mr. Merrifield obtained or attempted to obtain

unauthorized use of BGIs protected computer system causing a loss and/or damage in excess of $5,000 in any 1-year period, including, among other things, the costs of engaging a computer forensics firm to respond to Mr. Merrifields offenses and to analyze and assess the extent of Mr. Merrifields wrongful taking of information from BGIs computers. 89. As a result of the foregoing conduct, BGI was damaged.

14

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 15 of 22

90.

Mr. Merrifield has violated 18 U.S.C.A. 1030 of the Computer Fraud and Abuse

Act (CFAA). 91. Greentech has violated 18 U.S.C.A. 1030(b), by conspiring with Mr. Merrifield

to violate or attempt to violate CFAA through the actions described in the preceeding paragraphs and by Mr. Merrifields conduct after he began performing services for Greentech. 92. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields and Greentechs conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT VIII TORTIOUS INTERFERENCE WITH ADVANTAGEOUS RELATIONS (AGAINST MR. MERRIFIELD AND GREENTECH) 93. fully herein. 94. Mr. Merrifield and Greentech knew of BGIs advantageous business relationships Plaintiff restates and incorporate paragraphs 1-92 of this Complaint as if set forth

with certain distributors, including Josh Wen, and BGIs expectation that its business relationships would continue in the future. 95. BGI has reasonably come to expect that ongoing business relationships with its

distributors will continue, in that many of those relationships have existed for several years and BGI invested substantial resources into maintaining those relationships. 96. Despite having knowledge of these advantageous business relationships, Mr.

Merrifield and Greentech interfered with those relationships without lawful justification or legitimate reason, including by surreptitiously obtaining and disclosing, and in the case of

15

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 16 of 22

Greentech, accepting, confidential information about BGIs relationships to a direct competitor and by disparaging BGI to distributors. 97. Mr. Merrifields interference was malicious and unjustified and accomplished by

wrongful means, including misappropriation of BGIs confidential information in direct violation of his duties as an officer, key employee, and shareholder, disclosing confidential information to a direct competitor, and disparaging BGI to distributors. 978. Greentechs interference was malicious and unjustified and accomplished by

wrongful means, including the acceptance of BGIs confidential information and use of such information to attempt to convert dealers to working with Greentech rather than BGI. 99. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields and Greentechs conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT IX CONVERSION (AGAINST MERRIFIELD) 100. fully herein. 101. BGI had possession, or a right of immediate possession, of the confidential Plaintiff restates and incorporate paragraphs 1-99 of this Complaint as if set forth

information that was available to Mr. Merrifield through his work for BGI. 102. Mr. Merrifield converted BGI property and confidential information to his own

use by exercising dominion over it in violation of his duty of loyalty.

16

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 17 of 22

103.

As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT X VIOLATION OF MASSACHUSETTS G.L. CH. 93A, 2, 11 (AGAINST GREENTECH) 104. fully herein. 105. At all relevant times, BGI and Greentech were engaged in trade or commerce as Plaintiff restates and incorporate paragraphs 1-103 of this Complaint as if set forth

defined by Mass. Gen. Laws ch. 93A, 1(b). 106. The conduct of Greentech constitutes unfair and deceptive acts or practices in

violation of Mass. Gen. Laws ch. 93A, 2, 11, in which Greentech has competed unfairly with BGI, which has resulted in harm to BGI. 107. Greentechs actions, as stated herein, were made in bad faith with knowledge or

reason to know that the conduct constituted unfair and/or deceptive acts or practices that violated Mass. Gen. Laws ch. 93A by, among other things, aiding and abetting Mr. Merrifield in the theft of BGIs confidential and proprietary information and trade secrets and by using that improperly obtained information to profit Greentech at the expense of BGI, and by aiding and abetting Mr. Merrifield in disparaging BGI to the detriment of BGI and for the benefit of Greentech. 108. As a direct and proximate cause of Mr. Merrifields wrongful conduct, BGI has

suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm as a result of Merrifields conduct that

17

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 18 of 22

cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT XI CIVIL CONSPIRACY (AGAINST MR. MERRIFIELD, GREENTECH, AND MR. TISCH) 109. fully herein. 110. Mr. Merrifield, Mr. Tisch and Greentech conspired with each other to attempt to Plaintiff restates and incorporate paragraphs 1-108 of this Complaint as if set forth

access, and to access, BGIs computer systems without authorization and/or beyond the scope of authorization, and to acquire BGIs trade secret and confidential and proprietary information and other commercially valuable information. 111. Mr. Merrifield, Mr. Tisch and Greentech conspired with each other to use, and in

fact used, this confidential and proprietary information and trade secrets to solicit BGIs distributors and interfere with BGIs advantageous relationships with such distributors. 112. Mr. Merrifield, Mr. Tisch and Greentech conspired with each other to compete

unfairly with BGI in violation of Mass. Gen. Laws ch. 93A, 11. 113. Mr. Merrifields, Mr. Tischs and Greentechs conduct constitutes a conspiracy to

misappropriate and convert BGIs confidential and proprietary information and trade secrets, to interfere with BGIs advantageous relationships, and to compete unfairly, rendering them jointly liable for the breaches of the others obligations. 114. As a direct and proximate cause of Mr. Merrifields, Mr. Tischs and Greentechs

wrongful conduct, BGI has suffered and will continue to suffer substantial direct and consequential damages. BGI has suffered and will continue to suffer irreparable harm that

18

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 19 of 22

cannot be adequately redressed at law. Unless injunctive relief is granted, BGI will be irreparably harmed in a manner not fully compensable by money damages. COUNT XII VIOLATION OF LANHAM ACT SECTION 43(a) (AGAINST TISCH ENVIRONMENTAL) 115. fully herein. 116. Plaintiff is, and has been for many years, engaged in the business of designing, Plaintiff restates and incorporate paragraphs 1-114 of this Complaint as if set forth

making and selling size selective sampling devices for environmental monitoring. 117. In June 2001, Plaintiff began marketing and selling a size selective sampling

device under the trademark SCC. These SCC brand size selective sampling devices have continually been offered in a distinctive trade dress comprising a an aluminum cylinder with three hex screws on a face thereof, with the SCC trademark engraved on said face, as well as a number, 1.828, which represents the internal diameter in centimeters. 118. The term SCC and the afore-mentioned trade dress serve as source indicators

for Plaintiffs size selective sampling devices sold under that name. 119. On information and belief, Defendant Tisch Environmental was marketing an air

sampler that included a size selective sampling device having an outer appearance that is strikingly similar to that of the BGI SCC, including the cylindrical body having three hex screws at the same location on the face and having SCC 1.829 engraved on the face. Photographs of one such device placed next to a photograph of the BGI device are found at Exhibit 1. 120. Tisch Environmentals use of the mark SCC that is identical to and in the same

spot as BGIs SCC mark, as well as Tisch Environmentals use of the number 1.829, nearly identical to the 1.828 found on BGIs SCC and in the same location as the number on BGIs

19

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 20 of 22

SCC, along with Tisch Environmentals sale of size selective sampling devices in virtually identical trade dress to that of BGI, is likely to cause confusion, mistake, and deception as to the source of Defendants goods. Customers and potential customers are likely to believe that Tisch Environmentals goods emanate from, or are licensed or approved by Plaintiff, when that is not the case. Any dissatisfaction with Tisch Environmentals SCC branded size selective sampling device may be falsely attributed to Plaintiff, thereby damaging irreparably Plaintiff's valuable reputation and goodwill vis--vis the mark SCC and its distinctive trade dress. 121. On information and belief, the aforesaid actions of Tisch Environmental were

undertaken in a willful and deliberate attempt to trade on the reputation and goodwill of Plaintiff associated with its SCC mark and trade dress. 121. The aforesaid actions of Tisch Environmental constitute false designations of

origin and false representations in violation of 15 U.S.C. Sec. 1125(a). Unless permanently enjoined by this court, the acts of Tisch Environmental will cause irreparable injury and damage to Plaintiff and its trademark rights, for which damage and injury there exists no adequate remedy at law. COUNT XIII VIOLATION OF LANHAM ACT SECTION 43(a) (AGAINST TISCH ENVIRONMENTAL) 122. fully herein. 123. Plaintiff's mark SCC and its unique trade dress are each distinctive of Plaintiff's Plaintiff restates and incorporate paragraphs 1-121 of this Complaint as if set forth

goods, and the relevant public has come to recognize the mark SCC and the trade dress as identifying Plaintiff as the source of the size selective sampling device sold in connection therewith.

20

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 21 of 22

124.

Tisch Environmentals aforesaid actions are bound to cause confusion, mistake,

and deception of the relevant public as to whether Tisch Environmentals goods emanate from, or are licensed or approved by, Plaintiff. 125. The conduct of Tisch Environmental complained of herein constitutes common

law trademark infringement and unfair competition, all of which has damaged and will continue to damage irreparably Plaintiff's valuable goodwill unless enjoined by this court.

PRAYER FOR RELIEF WHEREFORE, Plaintiff request that this Court grant the following relief, as well as any other relief the Court may deem proper: a. Enter judgment in favor of BGI and against Defendants on all counts of the Complaint; b. Award injunctive relief against Defendants as the Court deems appropriate on all counts; c. d. e. Award compensatory damages in an amount to be proven at trial; Award consequential damages in an amount to be proven at trial; As to Count VI, award double damages pursuant to Mass. Gen. Laws ch. 93, 42. f. As to Count X, award double or treble damages pursuant to Mass. Gen. Laws ch. 93A, 11. g. Order an accounting of any and all profits earned by Defendants, or those acting in concert with Defendants, from relationships with BGI distributors; h. Award applicable pre-judgment and post-judgment interest;

21

Case 1:12-cv-10658-RWZ Document 1 Filed 04/12/12 Page 22 of 22

i. j.

Award Plaintiff its attorneys fees and costs of suit; and Award such other and further relief as the Court may deem just and proper.

JURY DEMAND Plaintiff demands a trial by jury on all issues so triable.

Dated: April 12, 2012

Respectfully submitted, BGI Inc., By their Attorneys __/s/ Thomas P. McNulty____ Thomas P. McNulty (BBO No. 654564) Ann Lamport Hammitte (BBO No. 553263) Thomas M. Sullivan (BBO No. 567917) LANDO & ANASTASI, LLP Riverfront Office Park One Main Street, 11th Floor Cambridge, MA 02142 Telephone: (617) 395-7000 Facsimile: (617) 395-7070 emailservice@LL-A.com

22