throbber
Case: 4:21-cv-01279-SEP Doc. #: 1 Filed: 10/25/21 Page: 1 of 39 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
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`Case No.:
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`JURY TRIAL DEMANDED
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`LIFESCIENCE TECHNOLOGIES, LLC,
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`
` Plaintiff,
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`
`v.
`
`
`MERCY HEALTH, MERCY ACO
`CLINICAL SERVICES, INC., d/b/a MERCY
`VIRTUAL, LLC, and
`MYIA LABS, INC., d/b/a MYIA HEALTH,
`
` Defendants.
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`
`
`COMPLAINT
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`Plaintiff LifeScience Technologies, LLC (hereinafter "LST"), for its Complaint against
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`Defendants Mercy Health (“Mercy Health”), Mercy ACO Clinical Services, Inc., d/b/a Mercy
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`Virtual, LLC (“Mercy Virtual”), and Myia Labs, Inc., d/b/a Myia Health (“Myia”), alleges as
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`follows:
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`NATURE OF THE CASE
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`1.
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`This is an action for breach of contract, trade secret misappropriation, unjust
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`enrichment, unfair competition, civil conspiracy, and other related causes of action premised on
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`Mercy Health’s willful and deliberate disclosure of LST’s trade secrets and confidential
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`information to a third-party competitor (Myia) for purposes of developing a competing virtual
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`care software platform. Since Mercy Health opened Mercy Virtual in 2015, it has relied on the
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`expertise of LST to deliver virtual patient care services through LST’s m.Care platform (unless
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`separately identified, hereafter Mercy Health and Mercy Virtual shall be jointly referred to as
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`“Mercy”). Even though it was much smaller than Mercy Health from a revenue perspective, the
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`nimble LST team was experienced and had an innovative virtual patient care delivery system that
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`was scalable to support the anticipated growth of Mercy Health’s virtual patient care delivery
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`services model. After utilizing the LST platform for a number of years, Mercy Health decided it
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`would like to have its own virtual patient care software. To accomplish this, it allowed Myia’s
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`software development team improper access to LST’s software using @Mercy.net credentials.
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`After LST’s secret and confidential information was disclosed, Mercy Health (through Mercy
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`Virtual) acquired a $5 million ownership interest in Myia and its new virtual care software that
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`was developed using LST’s secret and confidential information. Once Mercy Health obtained its
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`ownership interest, and Myia secured its investment capital, Mercy and Myia systematically and
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`deliberately began implementing the Myia software at Mercy in place of LST’s long-standing
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`m.Care software.
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`2.
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`LST seeks relief against Mercy Health, Mercy Virtual, and Myia, jointly and
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`severally, for utilizing its trade secrets and confidential information to develop a competing
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`software product and using that new product to displace LST in the marketplace. LST seeks
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`damages, punitive damages, attorneys’ fees, and injunctive relief to prevent Myia, Mercy Health,
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`and Mercy Virtual from continuing to utilize LST’s trade secrets and confidential information for
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`their own purposes and to the detriment of LST.
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`PARTIES
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`3.
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`LST is a limited liability company organized and existing under the laws of the
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`State of Kansas, having a principal place of business at 5251 W. 116th Pl. Suite 200, Leawood,
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`Kansas 66211.
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`2
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`4.
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`Upon information and belief, Mercy Health is a nonprofit corporation organized
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`under the laws of the State of Missouri, and has a principal place of business located at 14528
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`South Outer Forty Road, Suite 100, Chesterfield, Missouri 63017.
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`5.
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`Upon information and belief, Mercy Virtual is a nonprofit corporation organized
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`and existing under the laws of the State of Missouri, having a principal place of business at
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`14528 South Outer Forty Road, Suite 100, Chesterfield, Missouri 63017.
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`6.
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` Upon information and belief, Myia is a corporation organized and existing under
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`the laws of the State of Delaware, having a principal place of business at 99 Osgood Place, Suite
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`100, San Francisco, California 94133.
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`7.
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`Upon information and belief, Mercy Virtual serves as a legal contracting entity
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`for Mercy Health. Mercy Virtual’s leadership reports to Mercy Health’s senior leadership team,
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`which includes Mercy Health’s CEO Lynn Britton. Mercy Virtual’s funding comes in whole
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`from Mercy Health. As detailed below, Mercy Health executes contracts relating to, and in
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`furtherance of, Mercy Virtual’s business.
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`8.
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`Upon information and belief, Mercy Virtual only has two employees whose salary
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`and benefits are paid for by Mercy Virtual. The remaining people working at Mercy Virtual are
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`all Mercy Health employees, hired at the direction of Mercy Health, paid by Mercy Health, and
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`acting at Mercy Health’s direction. This includes, but is not limited to, the actors described
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`below who approved and created Mercy e-mail accounts so Myia could access LST’s software.
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`9.
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`Mercy Health has over 40,000 employees and reported an annual operating
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`revenue in each of the last three years in excess of 4 billion dollars (USD).
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`10.
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`In its most recent tax filings, Mercy Virtual reported an annual revenue of over
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`$62 million.
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`11.
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`As detailed herein, Mercy Health executed contracts with LST and directed other
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`members of the Mercy Health team to execute contracts on its behalf through the Mercy Virtual
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`entity. Mercy Health also paid all moneys due LST during the course of their relationship.
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`12.
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`At all times detailed herein, Mercy Virtual was merely a conduit, or brand name,
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`for virtual patient care services offered by Mercy Health. Mercy Virtual could not make
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`business decisions, execute contracts, or make financial commitments without approval or
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`direction from Mercy Health.
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`13. Mercy Virtual’s leadership team (who upon information and belief are Mercy
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`Health employees) reports directly to, and takes orders from, Mercy Health’s leadership team.
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`14. Mercy Health, and its employees, acting under the guise of Mercy Virtual,
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`approved Myia’s access to LST’s trade secrets and confidential information, and ultimately gave
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`Myia access to LST’s software by creating Mercy Health e-mail accounts for the Myia software
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`development team and enrolling those accounts in the LST software platform. As detailed
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`below, this activity was in breach of numerous agreements between Mercy Health/Mercy Virtual
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`and LST, a violation of various statutes, and constituted various common law torts. This
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`wrongful conduct allowed Myia to develop a competing software product using LST’s trade
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`secret and confidential information and displace LST from its contracts with Mercy. Mercy
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`Health’s activity also allowed Myia to compete, and win, other business using a platform
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`developed with LST’s trade secrets and confidential information. Myia would not have been
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`able to secure that business absent Myia’s access to LST’s secret and confidential information
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`and Mercy Health’s enablement of that access. Then, Mercy Health provided $5,000,000 in
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`funding to acquire an ownership interest in Myia, which it did through its Mercy Virtual brand.
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`Once it acquired an ownership interest in Myia, Mercy Health had an ownership interest in
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`Myia’s software, which was built using LST’s trade secret and confidential information. This
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`conduct has directly and proximately caused financial loss to LST and, among other things,
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`unjustly enriched Myia and Mercy Health, as alleged herein.
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`15.
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`At all times alleged herein and for all wrongful conduct alleged, Mercy Health
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`(A) exercised such dominion and control over Mercy Virtual that Mercy Virtual merely acted as
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`a brand (or conduit) for Mercy Health’s virtual health care services and (B) specifically directed
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`Mercy Virtual to act in a manner that harmed LST. As a result, Mercy Health is liable for the
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`acts of Mercy Virtual.
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`JURISDICTION AND VENUE
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`16.
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`This is an action for breach of contract, trade secret misappropriation under the
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`Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, and Missouri Uniform Trade Secrets
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`Act (“MUTSA”), Mo. Rev. Stat. §§ 417.450 et seq., violations of the Missouri Computer
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`Tampering Act, Mo. Rev. Stat. §§ 569.095 et seq., tortious interference with a contract or
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`business expectancy, unfair competition, and civil conspiracy under Missouri common law.
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`17.
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`The Court has jurisdiction under 28 U.S.C. § 1331 with respect to the asserted
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`federal statutory claims. The Court has supplemental jurisdiction under 28 U.S.C. § 1367 with
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`respect to the state law claims. Jurisdiction is also proper before this Court pursuant to 28 U.S.C.
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`§ 1332(a) because there is complete diversity between the parties and the amount in controversy,
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`excluding interest and costs, exceeds $75,000. The Court has personal jurisdiction over Mercy
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`Health and Mercy Virtual as they are incorporated in Missouri, have offices in this District, and
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`transact business in this District. The Court has personal jurisdiction over Myia as it knowingly
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`transacts business in this District with Mercy Health, Mercy Virtual, Washington University in
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`St. Louis, and BJC Healthcare and the events giving rise to LST’s causes of action took place in
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`this District.
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`18.
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`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) as a
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`substantial part of the events giving rise to the claim at issue in this lawsuit occurred in this
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`District and because Mercy Health, Mercy Virtual, and Myia are subject to personal jurisdiction
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`here.
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`FACTUAL BACKGROUND
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`LST Develops a Customized m.Care® Platform
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`LST is a software development company dedicated to developing and delivering
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`19.
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`innovative virtual patient care solutions. One such solution, m.Care® (also referred to herein as
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`"m.Care"), provides a comprehensive solution for physicians delivering virtual patient care. For
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`example, the m.Care® software integrates historical patient data for physicians to review and
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`analyze, allows patients to connect monitoring devices like scales and sphygmomanometers for
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`use in daily monitoring or virtual care visits, and allows patients and physicians to connect
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`virtually using a smart phone or tablet. In addition, the software: allows physicians to schedule
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`patient activities like vital sign recordings; provides patient education; and uses healthcare data
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`points to provide predictive analysis for delivering patient care. This type of virtual patient care
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`is particularly useful for helping physicians deliver care, and ensuring completion of patient
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`responsibilities, for patients at home or that might otherwise have difficulty visiting a health care
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`provider due to existing medical conditions.
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`20.
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`The lead software designer for m.Care is LST’s Chief Technology Officer, Brent
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`Kevern. Mr. Kevern, who has a Master’s Degree in Computer Science, had over 35 years of
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`software development industry experience before spearheading software efforts at LST. During
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`his time in the industry, Mr. Kevern became interested in using his computer science skills to
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`help improve the provision of medical care.
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`21. Mr. Kevern worked with physicians to develop software to facilitate heart valve
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`transplants in children and software to ensure patient compliance after the heart transplant
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`procedures. He also developed monitoring software for infant cardiac patients that would run on
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`an iPad that could be placed in a baby’s nursery to monitor the baby’s health and relay
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`information to a hospital care team for timely action, if necessary.
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`22. Mr. Kevern’s experience, coupled with the experience of watching his son
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`struggle with Stage 2 Hodgkin’s Lymphoma, led him to devote all of his attention to the
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`development of a comprehensive virtual care platform that could connect hospital-based teams
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`more closely with home-based patients, which later became LST’s m.Care System.
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`23.
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`The proprietary and innovative nature of LST’s m.Care® platform has led to
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`recognition and praise by customers—including Mercy—for its ability to seamlessly deliver
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`virtual patient care and improve patient outcomes.
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`24.
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`LST maintains certain features, functionality, interfaces, documentation, and
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`know-how associated with the m.Care platform as company trade secrets.
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`25. m.Care is protected by confidentiality agreements and non-disclosure agreements
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`at every health provider that utilizes the platform. Access to the source code for m.Care is
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`restricted and maintained in a secure repository. Employee and management access to the
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`m.Care platform is restricted within the company. When LST deploys m.Care to health
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`providers, it requires each provider to provide specific log-in credentials for everyone that
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`accesses the system. When LST demonstrates the system for potential customers, all customers
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`sign NDAs prior to receiving technical information about the system.
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`26.
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`The LST trade secrets associated with m.Care provide a competitive advantage—
`
`and value—to LST by the fact that they are maintained as secrets. For instance, LST’s m.Care
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`program offers features and functionality that give it a competitive advantage in the marketplace
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`over competing products (e.g. superior functionality, system navigation, and back-end usability
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`by physicians, etc.). The manner by which LST maintains it trade secrets prevents competitors
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`from reverse engineering and copying the m.Care product. As a result, LST’s trade secrets
`
`derive independent economic value for LST based on the fact that the information is a secret.
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`LST Begins its Relationship with Mercy
`
`27.
`
`In October of 2015, Mercy Health opened the Mercy Virtual Care Center (also
`
`called Mercy Virtual). The 125,000 square-foot building is the cornerstone of Mercy’s virtual
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`care program and, according to Mercy, serves as a nationally recognized center for developing
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`and delivering telehealth.
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`28. When Mercy opened its virtual care center in 2015, it needed a technology
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`platform for its “vEngagement” project, and development team, where that platform and team
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`had the capacity to grow quickly and understand individualized healthcare. It chose LST’s
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`m.Care system as its technology platform.
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`29.
`
`Dr. Tom Hale, MD, Ph.D, MS, the former CMO for Mercy Virtual, stated: “When
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`I helped build the world’s first virtual care center, I knew we needed the best technology
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`available. More importantly, we needed a team that was flexible and able to think innovatively
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`as we were creating an entirely new care delivery model. The choice was clear—m.Care
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`provided the expertise, experience and creativity to power our success.”
`
`30.
`
`In 2015, LST conducted a pilot program for use of the m.Care® platform with
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`Mercy physicians and patients. In connection with this pilot program, LST and Mercy executed
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`a series of agreements that included a Business Associate Agreement (“BAA”) and a Mutual
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`Non-Disclosure Agreement (“Mutual NDA”), which is attached hereto as Exhibit 1.1 The pilot
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`program was a success and Mercy asked LST to further develop and expand its m.Care®
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`platform for use in its patient population. As a result, the parties executed a 2016 Master SaaS
`
`Agreement (“SaaS Agreement”), which is attached hereto as Exhibit 2.
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`31.
`
`After only two years of utilizing LST’s m.Care technology, Mercy had: reduced
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`preventable readmissions by 52%; reduced medical spend by over 30%; increased outpatient
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`service utilization by 20%; increased clinic office visits by 11%; and had 98% of patients who
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`reported being “extremely satisfied/satisfied” with the program.
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`32.
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`Over the next few years, the LST-Mercy relationship expanded as Mercy wanted
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`to increase its utilization of LST’s services. As a result, in 2018, the parties agreed to a
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`Professional Master Services Agreement (“PMSA”), which is attached hereto as Exhibit 3.
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`33.
`
`In 2018, Mark Saxon, Mercy Virtual’s Vice President of Clinical Operations
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`stated: “m.Care’s technology gives us the flexibility to cover any patient population at anytime,
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`anywhere. It can be adapted to the individual, or to the whole program. m.Care is very patient-
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`centric, and they care. Their technology allows the flexibility for future growth, which we need.
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`For those reasons, they align better with us than other organizations.”
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`34.
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`Over the course of the LST-Mercy relationship, LST performed over 50
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`Statements of Work requested by Mercy.
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`35.
`
`LST’s m.Care technology improved patient care and patient outcomes as
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`objectively tracked by Mercy.
`
`
`1 The Mutual NDA, SaaS Agreement, and PMSA, which are the subject of this lawsuit are governed by
`confidentiality provisions and contain sensitive LST and Mercy business information. As a result, LST has sought
`leave to file these attachments under seal.
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`Mercy Agreed to Protect the Confidentiality of LST’s Proprietary Software
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`36.
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`The Mutual NDA, SaaS Agreement, and PMSA all make clear that LST’s
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`m.Care® platform, and related confidential or trade secret information, are to be treated as
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`confidential, not disclosed by Mercy to any third party, and may only be used for LST-Mercy
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`business purposes. This protection is important to LST, as maintaining the confidentiality of
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`certain m.Care® features, functionality, know-how, and code is one of the main ways LST
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`ensures that the substantial time, effort, and expense devoted to software development remains
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`the property of LST.
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`37.
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`The Mutual NDA is between Mercy Health and LST. The Mutual NDA is
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`governed and interpreted according to the laws of the State of Missouri and was executed by
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`Scott Richert, Mercy Health’s current Chief Information Officer.
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`38.
`
`The Mutual NDA prohibited Mercy from sharing LST’s “Confidential
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`Information” which was defined as “all confidential, proprietary, trade-secret, private, personal,
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`sensitive, and all other information and data relating to the disclosing's Party's operations."
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`Exhibit 1 ¶ 2.2
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`39.
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`The Mutual NDA provided that the parties intend for all non-public information
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`“shared between the Parties shall be deemed to be Confidential Information governed by the
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`obligations of nondisclosure and restricted use set forth herein.” Id.
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`40.
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`The Mutual NDA further specified that “Confidential Information shall not be
`
`used by a receiving Party except in furtherance of the mutually beneficial business purpose of the
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`Parties.” Id. at ¶ 8.
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`2 For purposes of this Complaint, whenever LST refers to Confidential Information, it shall include the definitions of
`such information as stated in the Mutual NDA and SaaS Agreement.
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`41.
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`If there is a breach of the Mutual NDA, Mercy agreed that money damages would
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`not be a sufficient remedy for any breach and further agreed that LST would be “entitled to
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`payment of its legal fees and disbursements, court costs and other expenses of enforcing,
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`defending, or otherwise protecting its interests” under the Mutual NDA. Id. at ¶ 11.
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`42.
`
`The SaaS Agreement incorporated the confidentiality obligations of the Mutual
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`NDA. Exhibit 2 ¶ 16.
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`43.
`
`The SaaS Agreement is between Mercy Virtual and LST. The SaaS Agreement is
`
`governed and interpreted according to the laws of the State of Missouri and was executed by
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`Michael Chappuis, former Chief Administration Officer for Mercy Virtual.
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`44.
`
`The SaaS Agreement required Mercy to treat LST’s system, system
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`specifications, requirements, features, and other Confidential Information as confidential. The
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`SaaS Agreement defined LST’s “Confidential Information” as “confidential or proprietary
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`information, including by way of example and not limitation, information related to: market
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`share, unpublished patents, patentable ideas, customer information . . . research and testing
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`knowledge and results . . . designs, custom calculations, custom displays, specifications,
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`methodologies, and know-how . . . .” Id. at ¶ 2.2.
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`45.
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`The SaaS Agreement also defined “LST Property” as the “Services, Software,
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`Updates and Releases, LST's Intellectual Property Rights, LST's Confidential Information and all
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`hardware tools, ideas, concepts, methodologies, processes, inventions and utilities developed by
`
`or on behalf of LST . . . ." Id. at ¶ 2.8.
`
`46.
`
`The SaaS Agreement provided that Mercy was not allowed to directly, or
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`indirectly “modify, adapt, translate, reverse engineer, decompile, disassemble, or create
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`derivative works based on the LST Property, in whole or in part, nor modify, adapt, translate or
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`11
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`create derivative works based on the LST Property, in whole or in part, without the prior written
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`consent of LST." Id. at ¶ 8.2.
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`47. Mercy agreed that if it breached its confidentiality obligations under the SaaS
`
`Agreement, any agreed upon limitations for damages would not apply. Id. at ¶ 23.
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`48.
`
`The PMSA defines Confidential Information in a manner similar to the SaaS
`
`Agreement and places similar restrictions on the disclosure of such information by Mercy.
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`PMSA ¶ 1.2.
`
`49.
`
`The PMSA is between Mercy ACO Clinical Services, Inc. (d/b/a Mercy Virtual)
`
`and LST. The PMSA is governed and interpreted according to the laws of the State of Missouri
`
`and was executed by Dr. Gavin Helton, President of Clinical Integration for Mercy Virtual.
`
`50.
`
`The PMSA further defines “Vendor Software” as LST’s "proprietary software,
`
`including m.Care also known as LSTCare®, suite of applications, code, software developed
`
`pursuant to any SOW, and any Vendor owned or Vendor controlled software that is installed on
`
`products, developed for or otherwise used by Customer [Mercy] as agreed upon in a SOW and
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`all Updates and Upgrades." Id. at ¶ 1.2.
`
`51.
`
`As part of the PMSA, Mercy agreed that it "shall not, and shall not authorize any
`
`third party to: (i) translate, reverse engineer, decompile, disassemble, attempt to derive the
`
`source code of any Vendor Software provided to Customer solely in object code form; (ii)
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`modify or create any Derivative Worlds to the Vendor Software . . . ." Id. at ¶ 4.8.
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`52. Mercy also agreed that it would not disclose LST's Confidential Information "to
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`any contractor or other third party . . . without prior, written approval" from LST and that it will
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`"protect such Confidential Information from inadvertent disclosure to a third party" and that it
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`would not use LST's Confidential Information except for performance of its obligations under
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`the PMSA. Id. at ¶ 12.1.
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`53. Mercy was also required to "ensure that each of its employees, officers, directors,
`
`or agents who has access to [LST's] Confidential Information disclosed under this PMSA is
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`informed of its proprietary and confidential nature and is required to abide by the terms of this
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`PMSA.” Id.
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`54. Mercy agreed that if it breached its confidentiality obligations under the PMSA,
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`any agreed upon limitations for damages would not apply. Id. at ¶ 13.19.
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`Mercy Gave Myia Access to Reverse Engineer LST’s m.Care Software, Acquired a $5 Million
`Ownership Interest in Myia, Then Replaced LST’s Software with Myia’s Derivative Software
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`Upon information and belief, sometime in 2018 Mercy and Myia began working
`
`55.
`
`together to build a virtual patient care platform for use at Mercy.
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`56.
`
`Upon information and belief, Dr. Christopher Schlanger, and perhaps other
`
`members of the Mercy leadership team, had a relationship with Myia executives and worked to
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`promote Myia internally at Mercy.
`
`57.
`
`Sometime in 2018—while Mercy was utilizing LST’s m.Care platform—the
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`Mercy leadership team announced to Mercy employees that they were bringing Myia onboard to
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`co-develop a virtual patient care platform for use by Mercy.
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`58.
`
` Upon information and belief, when Myia started working with Mercy, it did not
`
`have a completed virtual patient care platform that could be utilized by patients or healthcare
`
`professionals.
`
`59.
`
`Upon information and belief, when Myia started working with Mercy, it did not
`
`have a virtual patient care platform that was ready for immediate deployment at Mercy.
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`60. When Myia first began working with Mercy, it was interested in learning about
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`the proprietary and confidential LST m.Care platform and all of its capabilities.
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`61.
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`To further Myia’s product development, Mercy’s leadership team, including upon
`
`information and belief, Director Kelly Matusofsky, made the decision to grant Myia access to
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`LST’s m.Care software3—which included access to LST’s trade secrets and Confidential
`
`Information. This decision was made with full knowledge of Mercy’s confidentiality obligations
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`to LST.
`
`62.
`
`Sheila Vlaich, Mercy Project Manager, created Mercy login credentials for Myia
`
`personnel.
`
`63.
`
`The login credentials granted to Myia by Mercy allowed Myia personnel access to
`
`the m.Care platform utilizing @Mercy.net logins.
`
`64.
`
`These unauthorized Myia logins, which utilized Mercy credentials, were not
`
`readily detectable to LST personnel.
`
`65.
`
`Some of the Myia personnel granted access to LST’s m.Care software by Mercy
`
`include:
`
`a. Tammy Chang, Myia Lead Product Developer;
`
`b. Martyn Taylor, Myia VP of Engineering;
`
`c. Sonia Koesterer, Myia Head of Design;
`
`d. Reeve Thompson, Myia Chief Product Officer; and
`
`e. Andre Dias, Myia Head of Commercial and Customer Success.
`
`66.
`
`The individuals identified in the immediately preceding paragraph used the
`
`following login credentials to access LST’s m.Care software:
`
`
`3 The term platform and software is used interchangeably in connection with m.Care herein and includes the LST
`trade secrets and Confidential Information that are the subject of this Complaint.
`
`14
`
`

`

`Case: 4:21-cv-01279-SEP Doc. #: 1 Filed: 10/25/21 Page: 15 of 39 PageID #: 15
`
`a. TAMMY.CHANG@MERCY.NET
`
`b. MARTYN.TAYLOR@MERCY.NET
`
`c. SONIA.KOESTERER@MERCY.NET
`
`d. REEVE.THOMPSON@MERCY.NET
`
`e. ANDRE.DIAS@MERCY.NET
`
`67.
`
`68.
`
`Other Myia personnel also accessed LST’s m.Care software.
`
`Upon information and belief, Myia’s European software development team also
`
`had access to LST’s m.Care software.
`
`69.
`
`From at least August 14, 2019 through at least July 24, 2020, Myia personnel
`
`were accessing LST’s m.Care platform.
`
`70.
`
`At least 1,300 transactions inside the LST m.Care platform were conducted by
`
`Myia personnel from an IP address tied to Myia in San Francisco, California.
`
`71.
`
`For example, “Sonia M” with an IP address traced to Myia (136.24.115.10), was
`
`signed in to m.Care as a patient using an iOS device running iOS12.3 and version 5.69 of the
`
`m.Care platform on January 7, 2020. This user performed the following tasks:
`
`a. reviewed the medication list for the patient;
`
`b. reviewed appointments assigned to the user;
`
`c. examined the patient dashboard;
`
`d. responded to an announcement message presented;
`
`e. began using the integrated video conferencing system;
`
`f. exited video conferencing;
`
`g. examined surveys assigned to the patient;
`
`h. took a survey and submitted an answer;
`
`15
`
`

`

`Case: 4:21-cv-01279-SEP Doc. #: 1 Filed: 10/25/21 Page: 16 of 39 PageID #: 16
`
`i. navigated back to the dashboard; and
`
`j. accessed the spoken request AI system built into the platform.
`
`72.
`
`As another example, “Tammy C” with an IP address traced to Myia
`
`(136.24.115.10), was signed in to m.Care as a patient using an iOS device running iOS12.3 and
`
`version 5.69 of the m.Care platform on November 12, 2019. This user performed the following
`
`tasks:
`
`a. searched for patients (actual Mercy Health patients serviced by Mercy Virtual);
`
`b. located a patient and examined the demographic data for the patient;
`
`c. reviewed the team member note taking page that allows a care team member to
`
`record notes on patient interactions; and
`
`d. reviewed that same patient’s measurements and vital signs.
`
`73.
`
`In addition, Myia personnel also accessed LST’s m.Care software in St. Louis
`
`during site visits to Mercy in St. Louis using one or more of the login credentials identified in
`
`herein.
`
`74. Mercy also gave Myia access to a generic user account called “Test Patient,”
`
`which was used by Myia in California and during its site visits to St. Louis.
`
`75.
`
`From its California location, Myia conducted over 2300 transactions in the
`
`m.Care software using the Test Patient account.
`
`76.
`
`During the time Myia was in LST’s software, there were over 12,000 transactions
`
`associated with this Test Patient account.
`
`77. Myia utilized the information it gleaned from LST’s m.Care software—which
`
`included LST’s protected trade secrets and Confidential Information—to design, build, and
`
`16
`
`

`

`Case: 4:21-cv-01279-SEP Doc. #: 1 Filed: 10/25/21 Page: 17 of 39 PageID #: 17
`
`create its own virtual patient care software, which upon information and belief is coded in a
`
`different computer language (the “Derivative Software”).
`
`78. Mercy assisted Myia in the design and creation of its Derivative Software.
`
`79.
`
`The Myia Derivative Software has similar features and functionality to LST’s
`
`m.Care software.
`
`80.
`
`As defined by LST’s Mutual NDA, SaaS Agreement, and PMSA with Mercy,
`
`Myia utilized LST Confidential Information in the creation of its Derivative Software.
`
`81.
`
`By reviewing and studying LST’s m.Care software—which included LST’s
`
`protected trade secrets and Confidential Information—to reverse engineer, design, and develop
`
`its own software, Myia capitalized on years of LST research, know-how, negative know-how,
`
`design, and programming work to create a competing product (the Derivative Software) in a
`
`fraction of the time it took LST to build its product from the ground up.
`
`82.
`
`At the same time Myia had access to LST’s m.Care system, Mercy acquired an
`
`ownership stake in Myia for $5 million.
`
`83.
`
`Upon information and belief, Mercy’s agreement to acquire a $5 million
`
`ownership interest was finalized in September of 2019. See Mobile Health News,
`
`https://www.mobihealthnews.com/news/north-america/mercy-virtual-leads-10m-investment-
`
`myia-labs-rolls-out-home-monitoring-tech (last visited October 25, 2021).
`
`84.
`
`The decision to invest in Myia came from Mercy’s leadership team, including, but
`
`not limited to, Dr. Gavin Helton, President of Clinical Integration.
`
`85.
`
`Upon information and belief, Mercy Health funded Mercy Virtual for purposes of
`
`completing the acquisition of Myia ownership interest, and all approvals for the use of those
`
`funds had to be obtained from Mercy Health. At all times during the development of Myia’s
`
`17
`
`

`

`Case: 4:21-cv-01279-SEP Doc. #: 1 Filed: 10/25/21 Page: 18 of 39 PageID #: 18
`
`Derivative Software, Mercy Health was directing, controlling, funding, and approving the
`
`decisions made by Mercy Virtual.
`
`86.
`
`Once Myia’s Derivative Software was functionally capable of replacing LST’s
`
`m.Care software—and after it had acquired an ownership interest in the software—Mercy began
`
`implementing Myia’s Derivative Software in place of LST’s m.Care software.
`
`Mercy’s Conduct Breached its Agreements with LST
`
`87.
`
`Upon information and belief, Mercy failed to ensure that each of its employees,
`
`officers, directors,

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