throbber
Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 1 of 24
`
`
`
`
`
`FRIER LEVITT
`
`A T T O R N E Y S
`
` A T
`
`L A W
`
`Jonathan E. Levitt, Esq.
`Michelle L. Greenberg, Esq.
`Lucas W. Morgan, Esq.
`84 Bloomfield Avenue
`Pine Brook, NJ 07058
`(973) 618-1660
`Attorneys for Plaintiff: Framework MI, Inc.
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`
`Case No. 1:20-cv-00907 (NRB)
`
`
`
`
`FIRST AMENDED COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`
`FRAMEWORK MI, Inc.,
`
`
` Plaintiff,
`
`
`
`
`CVS HEALTH CORPORATION; CVS
`PHARMACY, INC.; CAREMARK RX, LLC;
`PROCARE PHARMACY, LLC d/b/a
`ENCOMPASS RX; ENCOMPASS RX, LLC;
`
`
`v.
`
`
`
`Defendants.
`
`
`FIRST AMENDED COMPLAINT AND JURY DEMAND
`
`Plaintiff, Framework MI, Inc., (“Framework” or “Plaintiff”), by and through its attorneys,
`
`FRIER LEVITT, LLC, and by way of First Amended Complaint against Defendants, CVS Health
`
`Corporation (“CVS Health”); CVS Pharmacy, Inc. (“CVS Pharmacy”); Caremark RX, LLC
`
`(“Caremark”); ProCare Pharmacy, LLC d/b/a Encompass RX (“ProCare”); (CVS Health, CVS
`
`Pharmacy, Caremark, and ProCare are collectively referred to as (“CVS Defendants”); Encompass
`
`RX, LLC (“Encompass”) (all Defendants collectively referred to as “Defendants”); herein alleges as
`
`follows:
`
`
`
`
`1
`
`

`

`
`
`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 2 of 24
`
`PRELIMINARY STATEMENT
`
`1. Plaintiff, Framework MI, Inc., brings this First Amended Complaint in response to
`
`Defendants’ improper conduct and actions, which involved the CVS Defendants improperly
`
`discovering, accessing and copying Framework’s unique, proprietary software products so they
`
`could be replicated, utilized, and tailored for their own financial benefit and to Framework’s
`
`detriment. During the time period relevant to this dispute, the CVS Defendants acted intentionally
`
`in order to advance their own agenda, to the detriment of Framework, so that it could utilize
`
`Framework’s products to develop their own competing software and implement it within its own
`
`specialty pharmacy network, the largest in the country. In short, the CVS Defendants’ improper,
`
`dishonest, and illegal conduct has caused Framework substantial and ongoing harm.
`
`THE PARTIES
`
`2. Plaintiff Framework MI, Inc., is a high-end healthcare consulting and technology
`
`company based in Cincinnati, Ohio and located at 9435 Waterstone Boulevard, Suite 140,
`
`Cincinnati, Ohio 45249.
`
`3. Although based in Cincinnati, Ohio, Framework conducts business throughout the
`
`entire United States, including the State of New York where it works with numerous entities
`
`including pharmacies, hospitals, and physicians. Moreover, Framework is a party to a contract with
`
`the CVS Defendants that is directly related to this dispute that contains a New York choice of law
`
`provision.
`
`4. Defendant CVS Health Corporation is a Delaware corporation with its principal place
`
`of business at One CVS Drive, Woonsocket, Rhode Island 02895.
`
`5. Although CVS Health Corporation is a Delaware Corporation headquartered in Rhode
`
`Island, it is well known that CVS Health conducts business throughout the entire United States
`
`including throughout the State of New York.
`
`2
`
`
`
`
`
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 3 of 24
`
`
`
`
`
`6. By way of example, CVS has approximately twenty (20) CVS retail pharmacy locations
`
`in New York City alone with countless others open and operating throughout the State of New
`
`York and derives substantial revenue from these operations.
`
`7. Additionally, CVS Health is a party to a contract with the Plaintiff that is directly related
`
`to this dispute that contains a New York choice of law provision.
`
`8. Defendant CVS Pharmacy, Inc. is a Delaware corporation with its principal place of
`
`business at One CVS Drive, Woonsocket, Rhode Island 02895.
`
`9. Although CVS Pharmacy is a Delaware Corporation headquartered in Rhode Island, it
`
`is well known that CVS Pharmacy conducts business throughout the entire United States including
`
`throughout the State of New York. By way of example, CVS has approximately twenty (20) CVS
`
`retail pharmacy locations in New York City alone with countless others open and operating
`
`throughout the State of New York and derives substantial revenue from these operations.
`
`10. CVS Pharmacy maintains an interactive pharmacy website which solicits business from
`
`customers and pharmacy patients throughout the United States, including New York.
`
`11. In addition, CVS provides numerous pharmacy services by sending pharmacy related
`
`items, including prescription and over-the-counter drug products, through the mail throughout the
`
`entire State of New York and derives substantial revenue from these operations.
`
`12. Moreover, CVS retail pharmacies as well as CVS specialty pharmacies possess and
`
`maintain pharmacy licenses with the Pharmacy Unit of the New York State Education Department
`
`Office of the Professions Division of Professional Licensing Services.
`
`13. Additionally, CVS Pharmacy is a party to a contract with the Plaintiff that is directly
`
`related to this dispute that contains a New York choice of law provision.
`
`
`
`
`3
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 4 of 24
`
`
`
`
`
`14. Defendant Caremark RX, LLC is a limited liability company organized and existing
`
`under the laws of Delaware with its principal place of business at One CVS Drive, Woonsocket,
`
`Rhode Island 02895.
`
`15. Although Caremark is a Delaware limited liability corporation headquartered in Rhode
`
`Island, Caremark as pharmacy benefit manager conducts extensive business throughout the State
`
`of New York and derives substantial revenue from these operations.
`
`16. More specifically, Caremark routinely conducts audits and investigations of pharmacies
`
`operating throughout the State of New York.
`
`17. Additionally, Caremark is a party to a contract with the Plaintiff that is directly related
`
`to this dispute that contains a New York choice of law provision.
`
`18. Defendant ProCare Pharmacy, LLC d/b/a Encompass RX is a limited liability company
`
`organized and existing under the laws of Delaware with its principal place of business at One CVS
`
`Drive, Woonsocket, Rhode Island 02895. The entity doing business as Encompass RX operates in
`
`a space leased and located at 2700 Northeast Expressway B-800, Atlanta, Georgia 30345.
`
`19. ProCare Pharmacy, LLC d/b/a Encompass RX conducts business throughout the entire
`
`United States and possesses and maintains a pharmacy license with the Pharmacy Unit of the New
`
`York State Education Department Office of the Professions Division of Professional Licensing
`
`Services. Moreover, ProCare Pharmacy, LLC d/b/a Encompass RX regularly ships prescription
`
`drug products and related materials into the State of New York in furtherance of its business
`
`operations and derives substantial revenue from these operations. This is done in reliance on and
`
`by utilizing Plaintiff’s copyrighted software products. In fact, Plaintiff’s copyrighted software
`
`products are critical to the mail order component of ProCare Pharmacy, LLC d/b/a Encompass
`
`RX’s business operations.
`
`
`
`
`4
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 5 of 24
`
`
`
`
`
`20. Additionally, ProCare Pharmacy is a party to a contract with the Plaintiff that is directly
`
`related to this dispute that contains a New York choice of law provision.
`
`21. Upon information and belief, Encompass RX, LLC is a limited liability company
`
`organized and existing under the laws of Georgia with a principal office address of 1972 Audubon
`
`Drive, Atlanta, Georgia 30329. Encompass RX, LLC conducts business throughout the entire
`
`United States and possesses and/or possessed a pharmacy license with the Pharmacy Unit of the
`
`New York State Education Department Office of the Professions Division of Professional
`
`Licensing Services during the time period relevant to this dispute.
`
`22. Moreover, Encompass RX, LLC regularly ships and/or shipped prescription drug
`
`products and related materials into the State of New York in furtherance of its business operations
`
`during the time period relevant to this dispute and derived substantial revenue from these
`
`operations. Encompass RX, LLC accomplished these tasks in reliance on and by utilizing Plaintiff’s
`
`copyrighted software products. In fact, Plaintiff’s copyrighted software products are/were critical
`
`to the mail order component of Encompass RX, LLC’s business operations.
`
`JURISDICTION AND VENUE
`
`23. Jurisdiction is found under 28 U.S.C. § 1331 because Plaintiff asserts claims arising under
`
`federal law including but not limited to under federal copyright laws found under 17 U.S.C. § 501,
`
`et seq.
`
`24. This court has jurisdiction over any claims arising under state law pursuant to the Court’s
`
`supplemental jurisdiction found under 28 U.S.C. § 1367.
`
`25. Venue is proper in this District pursuant to 28 U.S.C. § 1391 as all parties are subject to
`
`jurisdiction in this District.
`
`
`
`
`
`
`
`
`5
`
`

`

`
`
`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 6 of 24
`
`FACTS AND INFORMATION COMMON TO ALL COUNTS
`
`Background of Framework
`
`26. As mentioned, Framework is a high-end healthcare consulting and technology company
`
`based in Cincinnati, Ohio. Among its various areas of specialized healthcare consulting, Framework
`
`provides customized and integrated healthcare solutions to a variety of participants in the
`
`healthcare and life sciences space, including to the specialty pharmacy and drug manufacturing
`
`communities. Through hard work and dedication, Framework has achieved an impeccable
`
`reputation and developed cutting-edge, proprietary products that help its clients maximize
`
`resources and increase efficiency through their software platforms.
`
`27. With an increased emphasis on decreasing the cost of healthcare throughout the United
`
`States, utilizing sophisticated, high quality software technology has become critical to pharmacy
`
`operations throughout the United States, most especially as it pertains to specialty pharmacy
`
`operations which handle, dispense, and ship some of the most expensive drugs and medications in
`
`the world.
`
`28. Framework is the owner of valid and subsisting United States Copyright Registration
`
`No. TXU 002175958 for Cleo Suite© (“Copyrighted Work”), issued by the United States Copyright
`
`Office on January 16, 2020.
`
`29. Framework’s owner and employee Brent Miles created the Copyrighted Work in or
`
`around January 2015 as part and within the scope of his employment with Framework by
`
`developing source code and saving it in a tangible medium, i.e. a hard drive. Because the
`
`Copyrighted Work is a work made for hire within the scope of employment with Framework,
`
`Framework owns any and all copyrights in the Copyrighted Work.
`
`30. At all relevant times, all public references to the Copyrighted Work were accompanied
`
`by an appropriate copyright notice indicating that Framework is the owner of all rights in the work.
`
`6
`
`
`
`
`
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 7 of 24
`
`
`
`
`
`Identified below as Exhibit A is sample product literature that has accompanied the product since
`
`2015.
`
`Exhibit A
`
`
`
`
`
`
`7
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 8 of 24
`
`
`
`
`
`31. Framework owns the exclusive rights under the Copyright Act of 1976 (17 U.S.C. §§
`
`101 et seq. and all amendments thereto) (the “Copyright Act”) to reproduce, distribute, display, or
`
`license the reproduction, distribution, and/or display of its pharmacy processes and software,
`
`which is the subject of this action throughout the United States.
`
`32. Framework has distributed the Copyrighted Work by offering the Cleo Suite© to the
`
`Specialty Pharmacy Industry. This distribution of Cleo Suite© is of significant value to Framework
`
`MI, Inc. and is one of its main products. The Cleo Suite© offers powerful modules, integrated
`
`portals and streamlined integration and has been a tremendous success as evidenced by the April
`
`2, 2015 Press Release entitled “Framework MI, Inc Proudly Makes Integrative Specialty Pharmacy
`
`Workflow Tool Available Nationwide.” This press release goes on to state that “[a]fter building a
`
`diverse resume of partnerships with highly influential healthcare organizations, Framework’s
`
`pharmacy specific solution, Cleo Pharm is available to specialty pharmacies for the management of
`
`patient information, nurse calls, pharmacy and biotech data reporting, prior authorization
`
`compliance, and more.”
`
`33. The Copyrighted Work includes source code for interfaces that allow for the
`
`management of patient information, new patient onboarding, prior authorization, and patient
`
`assistance programs including automated reminders, accurate reporting, and real time updates to
`
`account for growing and changing data demands. Among its offerings, Framework can implement
`
`and integrate sophisticated software systems for its pharmacy clients and each system that
`
`Framework implements is guaranteed to include all-around consulting, trending resources, seamless
`
`file integration, and complete customization to ensure that each of Framework’s individual client’s
`
`needs are met. In ensuring that Framework’s individual client’s needs are met, Framework, by
`
`extension, is ensuring that its clients’ numerous patients’ needs are met. The value of the
`
`Copyrighted Work includes improved workflow, better management of revenue and audits, control
`
`
`
`
`8
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 9 of 24
`
`
`
`
`
`of manufacturing programs, fully integrated control over patient care and data, metrics and analysis,
`
`productivity reports, as well as selective data portal views for pharmacists.
`
`Framework’s Background Working Within the Specialty Pharmacy Space
`
`34. By way of example, but not limitation, among the various types of clients that
`
`Framework services are specialty pharmacies—specialty pharmacies are unique from more
`
`traditional retail pharmacies because they dispense some of the most expensive and complex
`
`medications and treatments for some of the most serious illnesses and disease states facing the
`
`population today. Often, specialty pharmacies are treating patients who are among the sickest and
`
`most vulnerable in the United States. The medicines dispensed by specialty pharmacies are on the
`
`cutting edge of medical care and treatment for diseases that are among the most devastating to the
`
`population, including cancer, hepatitis, HIV, as well as rare diseases that only a few years ago had
`
`no treatment options.
`
`35. Framework MI, Inc., has over a century of combined experience in working with
`
`healthcare providers in data management, including within the specialty pharmacy space. In fact,
`
`Framework’s principals have come from Executive Leadership in the healthcare field, including
`
`specialty pharmacy.
`
`36. Framework’s clients have realized over $200 million in revenue enhancements, millions
`
`in cost savings, and assistance in processing over five billion healthcare transactions.
`
`37. For specialty pharmacies, the process of acquiring, storing, gaining approval and prior
`
`authorizations from insurance companies, and dispensing and managing patients’ prescribed
`
`specialty medications is far more complex than medications obtained through traditional retail
`
`pharmacies.
`
`38. Framework’s customized software solutions are integral to the specialty pharmacy space
`
`and the solutions it provides to specialty pharmacies to assist in managing and tracking the costly
`
`
`
`
`9
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 10 of 24
`
`
`
`
`
`medications dispensed by specialty pharmacies include customizable patient management systems
`
`and user-friendly web portals that allow physicians, patients, payers, and drug manufacturers to
`
`connect with the corresponding specialty pharmacies in an efficient and streamlined manner.
`
`Background of Defendants
`
`39. Defendant CVS Health Corporation is an American healthcare company that owns
`
`numerous subsidiaries throughout the United States. Among CVS Health’s numerous holdings are
`
`well known entities such as CVS Pharmacies and MinuteClinics. In addition to its more well-known
`
`holdings, on November 28, 2018, CVS Health completed a controversial $69 billion acquisition of
`
`Aetna, a managed health care company that specializes in selling traditional and consumer directed
`
`health insurance along with related services including dental, vision, and disability plans. Currently,
`
`CVS Health’s value is estimated at nearly $100 billion.
`
`40. Upon information and belief, CVS Pharmacy was involved in CVS Health’s acquisition
`
`of Encompass RX through its affiliated subsidiary ProCare Pharmacy, LLC.
`
`41. Defendant Caremark RX, LLC is a pharmacy benefit manager (“PBM”) that operates
`
`nationwide, with regional dominance in several geographic areas. As a PBM, Caremark processes
`
`claims for insurance coverage of prescription benefits for numerous health insurance plan
`
`sponsors, which include commercial insurance plans, Medicare plans, and Medicaid plans. PBMs
`
`such as Caremark are major players in the delivery of healthcare in the United States. A PBM such
`
`as Caremark serves as a “middleman” between pharmaceutical manufacturers and pharmacies on
`
`the one hand, and health benefit providers on the other. Surprisingly, one of the other functions
`
`that Caremark serves as a PBM is auditing pharmacies, including specialty pharmacies, throughout
`
`the country. Thus, Caremark often has the contractual right to conduct audits of its wholly owned
`
`pharmacy subsidiaries but also its pharmacy competitors. In this position, Caremark, along with its
`
`related subsidiary business entities, is uniquely situated to gain a competitive advantage against its
`
`
`
`
`10
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 11 of 24
`
`
`
`
`
`competitors including by developing competing software as the owners of the largest specialty
`
`pharmacy in the United States. Currently, Caremark is one of the three largest PBMs in the country.
`
`Caremark is a party to the relevant contracts in this matter.
`
`42. ProCare Pharmacy is a party to the contracts relevant to this matter and has knowledge
`
`and information critical to the resolution of this dispute. In addition, and as discussed in greater
`
`detail below, on or about May 18, 2018, ProCare purchased the assets of Encompass RX, LLC.
`
`43. Encompass RX, a specialty pharmacy, is/was a party to the relevant contracts in this
`
`matter. Moreover, Encompass RX sold its assets to the CVS Defendants which upon information
`
`and belief included its contract with Plaintiff Framework MI, Inc.
`
`Background of Framework’s Dispute with Defendants
`
`44. This dispute arises out of Framework’s prior contractual consulting relationship with
`
`Encompass and CVS’s subsequent purchase of Encompass through its subsidiary, ProCare, while
`
`Encompass was still under the terms of its contract with Framework.
`
`45. Framework and Encompass entered into a contract on August 15, 2015. The
`
`Framework-Encompass contract contained numerous provisions, which highlighted among other
`
`things, the importance of confidentiality and non-disclosure of Framework’s Copyrighted
`
`information and trade secret software products and processes, procedures, systems, methods of
`
`operation, concepts, principles.
`
`46. For example, but not limitation, the Framework-Encompass contract contained a
`
`“Mutual Confidentiality and Non-Disclosure” agreement which provided in relevant part that:
`
`Restrictions on Confidential Information. Recipient and its directors,
`officers, employees, agents, affiliates and legal and financial advisors
`(collectively, its “Agents”) will maintain in strict confidence any
`and all proprietary information and documents, either directly or
`indirectly, in writing, electronically, orally, by inspection of tangible
`objects or otherwise unless such information has been explicitly
`designated by Provider as not Confidential Information (“Confidential
`Information”). “Confidential Information” also includes, without
`
`
`
`
`11
`
`

`

`
`
`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 12 of 24
`
`limitation, technical data, trade secrets, plans for development,
`products or services, company or supplier lists, customer lists,
`customer information marketing plans, software, source code or
`documentation
`for software,
`financial documents or data,
`inventions, processes, technology and designs, including without
`limitation any documents, correspondence, processes, procedures,
`know-how and software related to Provider. This Agreement governs
`any Confidential Information disclosed to Recipient by any officer,
`director, employee, agent, affiliate of Provider. (emphasis added).
`
`47. The provision of the Framework-Encompass contract excerpted above makes clear that
`
`Framework proactively took steps to protect its confidential trade secrets and other proprietary
`
`information, including its Copyrighted Work as it pertained to its relationship with Encompass.
`
`These contract terms make clear that sharing any information with third parties directly violated
`
`the Framework-Encompass contract. The software trade secrets have a specific design and are
`
`highly configurable for client customization.
`
`48. Framework’s trade secrets include all ideas, procedures, processes, systems, methods of
`
`operation, concepts, principles, and discoveries (all of which are expressly excluded from copyright
`
`protection under the Copyright Act) 17 U.S.C. § 102(b). The software trade secrets have a specific
`
`design and are highly configurable for client customization. They are sought by Framework’s
`
`trading partners and have added to these trading partners explosive growth. These trade secrets
`
`involve methods of operation and complex data pulls and integrations for pharmacy workflow,
`
`customization based on therapies, pharmacy geographic locations and internal staffing resources.
`
`49. At all times, Framework maintained the confidentiality of its trade secrets, releasing them
`
`in a confidential manner and only pursuant to non-disclosure agreements.
`
`50. During the time that Encompass was contracted with Framework, CVS Health
`
`purchased Encompass through its subsidiary, ProCare Pharmacy, LLC. Specifically, on or around
`
`May 18, 2018, ProCare purchased substantially all of Encompass RX’s assets through an asset
`
`purchase agreement (“APA”).
`
`12
`
`
`
`
`
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 13 of 24
`
`
`
`
`
`51. Throughout the period leading up to ProCare’s purchase of Encompass and in the
`
`timeframe following the purchase, the CVS Defendants communicated with Framework on
`
`multiple occasions and indicated that they were interested in contracting directly with Framework
`
`so that Framework could provide Cleo Suite© and other related services to the CVS Defendants as
`
`well as specialty pharmacies owned by the CVS Defendants.
`
`52. During this time period Encompass communicated directly with CVS Health employees,
`
`specifically Michael A. Dixon, Director, Specialty Strategy at CVS Health, who worked within CVS
`
`Health’s Specialty Strategy & Acquisitions, and James McGuire who is the Senior Information
`
`Technology Manager at CVS Health. Mr. Dixon, along with CVS Health’s Specialty Strategy
`
`Acquisition department, focuses on the acquisition of specialty pharmacies throughout the United
`
`States and with Mr. McGuire’s assistance and oversight, technologically integrating the newly
`
`acquired pharmacies into the CVS Health “network” of corporately owned specialty pharmacies.
`
`53. Crucially, Framework’s healthcare and pharmacy software solutions were of substantial
`
`value to the CVS Defendants because the software solutions could facilitate the integration of
`
`CVS’s newly acquired specialty pharmacies into its preexisting portfolio of specialty pharmacies.
`
`The ability to unify numerous specialty pharmacies operating throughout the country under a single
`
`corporate umbrella from a technological standpoint was of significant value to the CVS
`
`Defendants.
`
`54. During the time that Framework was communicating with the CVS Defendants through
`
`Michael Dixon and James McGuire, Framework was reasonably led to believe that it would
`
`continue to provide services to Encompass following CVS’s acquisition of Encompass. The
`
`discussions between Framework and CVS included discussion and eventually negotiation of a
`
`Software as a Service (“SaaS”) agreement between Framework and CVS Pharmacy.
`
`
`
`
`13
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 14 of 24
`
`
`
`
`
`55. In connection with Framework and CVS’s discussions, Framework and CVS entered
`
`into a “Mutual Non-Disclosure Agreement” (“NDA”) which governed the parties’ discussions
`
`during contract negotiations. Among the various provisions of the NDA was a provision entitled
`
`“Nondisclosure Obligation” which required each party to maintain as confidential any information
`
`that was shared or disclosed to the other.
`
`56. As negotiations progressed between Framework and CVS, CVS requested that
`
`Framework make changes to various processes to ensure Framework met CVS’s vendor
`
`requirements. In fact, Framework was required to complete a “Vendor Questionnaire” in
`
`connection with its relationship and ongoing discussions and negotiations with CVS.
`
`57. On numerous occasions during the parties’ discussions, Mr. Dixon and/or Mr. McGuire
`
`reassured Framework that Framework and CVS were nearing the final stages of a deal and would
`
`in fact finalize a deal—on at least one occasion Mr. Dixon represented to Framework that the
`
`proposed SaaS contract between Framework and CVS was completed and would be delivered to
`
`Framework to review and execute.
`
`58. During the time period that negotiations and discussions between Framework and CVS
`
`were taking place, the CVS Defendants paid Framework $24,000 per month to continue providing
`
`services to CVS’s newly acquired specialty pharmacy, Encompass. CVS repeatedly asked
`
`Framework to make changes to accommodate CVS’s specific needs, including workflow, and
`
`providing access to related companies. Framework complied with these requests, but only in
`
`reliance on CVS’s representations that a final deal between CVS and Framework was imminent.
`
`59. Despite CVS’s numerous representations and assurances, CVS never took meaningful
`
`steps towards finalizing a deal with Framework—rather, over time it became apparent to
`
`Framework that CVS was purposely and knowingly misleading Framework and purposely and
`
`knowingly dragging out negotiations in order to buy time so that it could gain access to
`
`
`
`
`14
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 15 of 24
`
`
`
`
`
`Framework’s confidential and proprietary information contained within Framework’s system.
`
`Based on this realization and CVS’s improper conduct and breach of its agreement with
`
`Framework, Framework had no choice but to end contract negotiations.
`
`60. Shortly after Framework was forced to end contract negotiations and discussions with
`
`CVS, Framework learned that the CVS Defendants had improperly gained access to numerous
`
`confidential aspects and components of Framework’s unique proprietary products.
`
`61. Crucially, during the time that CVS had improperly accessed Framework’s confidential,
`
`proprietary products, CVS also improperly copied Framework’s Cleo Suite©, including some of the
`
`most unique components of the product including (1) Framework’s proprietary code for export
`
`from the pharmacy management software to Framework’s server; and (2) the code for
`
`export/connectivity with onsite FedEx.
`
`62. As Framework learned more about CVS’s actions and conduct during this time period,
`
`it also quickly realized that CVS’s representations were a ploy to give CVS time to gain access to
`
`Framework’s confidential, Copyrighted Work, including the proprietary code(s).
`
`63. Since CVS began copying and exploiting the Copyrighted work, it has offered, and
`
`continues to offer, the Copyrighted work as its own i.e. the CVS HBS/SPARCS and SPRx, to
`
`specialty pharmacies in its network.
`
`64. CVS’s breach of contract, trust, confidence, or other duty in acquiring, using, or
`
`disclosing any confidential form or portion of the software, such as the software’s source code,
`
`constituted a misappropriation of trade secrets.
`
`65. CVS’s conduct in improperly accessing and improperly copying Framework’s
`
`Copyrighted Work violated the (1) Framework-Encompass Contract; (2) the Framework-CVS
`
`NDA; and (3) numerous other laws that governed the parties’ relationship(s).
`
`
`
`
`15
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 16 of 24
`
`
`
`
`
`66. Upon information and belief, Defendant’s identical copying and exploitation of the
`
`source code of the Copyrighted work was willful, and in disregard of, and with indifference to, the
`
`rights of Framework. Upon further information and belief, Defendant’s intentional infringing
`
`conduct was undertaken to reap the benefit and value associated with the Copyrighted work. By
`
`failing to obtain Framework’s authorization to use the Copyrighted Work or to adequately
`
`compensate Framework for the use, CVS avoided payment of license fees and other financial costs
`
`associated with obtaining permission to exploit the Copyrighted Work, as well as the restrictions
`
`that Framework is entitled to and would place on any such exploitation as conditions for
`
`Framework’s permission, including the right to deny permission altogether.
`
`67. Framework sent several emails a few days apart to CVS when it discovered CVS was
`
`building a product that was an exact copy of the Copyrighted Work, objecting to CVS’s
`
`unauthorized reproduction and exploitation of the Copyrighted Work. CVS subsequently admitted
`
`copying the Copyrighted Work. CVS’s product is identical or substantially similar to Framework’s
`
`Copyrighted Work.
`
`Framework Has Tried to Resolve this Dispute in Good Faith
`
`68. Despite the serious nature of CVS’s actions and conduct and with no obligation to do
`
`so, in an abundance of good faith, Framework attempted to resolve this matter without the need
`
`for litigation. However, CVS was unwilling to acknowledge its wrongdoing and the financial harm
`
`that it caused Framework. Accordingly, Framework now files this First Amended Complaint.
`
`COUNT ONE
`Breach of Contract
`
`69. Plaintiff repeats and realleges each of the allegations set forth in the paragraphs above
`
`as if fully set forth at length herein.
`
`70. The parties had a contractual relationship with the CVS Defendants by way of the
`
`Framework-Encompass contract and the NDA between Framework and the CVS Defendants.
`
`
`
`
`16
`
`

`

`Case 1:20-cv-00907-NRB Document 31 Filed 05/27/20 Page 17 of 24
`
`
`
`
`
`71. The Framework-Encompass contract expressly required Encompass, including all of its
`
`employees, agents, affiliates and legal advisors to maintain in strict confidence any and all
`
`confidential information, including but not limited to technical data, trade secrets, products or
`
`services, software, and/or source code or documentation for software.
`
`72. The NDA between Framework and the CVS Defendants contained a nondisclosure
`
`obligation which required both Framework and CVS to maintain as confidential any other
`
`information disclosed between the parties.
`
`73. At all relevant times Plaintiff complied and performed in accordance with the terms of
`
`the Framework-Encompass contract and the NDA governing Framework and CVS’s relationship.
`
`74. The CVS Defendants, breached the Framework-Encompass contract by violating their
`
`obligations under the relevant contractual documents including the “Mutual Confidentiality and
`
`Non-Disclosure” provision contained in the Framework-Encompass agreement and the
`
`“Nondisclosure Obligation” contained in the Framework-CVS NDA.
`
`75. As a direct and proximate result of Defendants’ various breaches, Plaintiff has suffered
`
`and will continue to suffer substantial monetary damages.
`
`COUNT TWO
`Breach of Implied Covenant of Good Faith and Fair Dealing
`
`76. Plaintiff repeats and realleges each of the allegations set forth in the paragraphs above
`
`as if fully set forth at length herein.
`
`77. In every contract, there is an implied covenant of good faith and fair dealing.
`
`78. Plaintiff en

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket