Analyzing whether to dismiss Vicarious Surgical’s Chapter 93A claim, Judge Salinger noted that Vicarious Surgical had to allege that Tragakis did something while acting in trade or commerce that was “unfair or deceptive,” and, as a result, Vicarious Surgical suffered some “loss of money or property.” “Proof of legally cognizable harm or injury,” Judge Salinger wrote, “is a necessary element of any claim” under G.L. c. 93A, § 11.

According to Judge Salinger, Vicarious Surgical did not allege any “facts plausibly suggesting that it suffered any kind of loss as a result of Tragakis’ misconduct, or that Tragakis has made any profit by using Vicarious’s proprietary information.” He therefore dismissed the Chapter 93A claim.

Judge Salinger, however, did not dismiss Vicarious Surgical’s claims for breach of contract, conversion, and violation of the Massachusetts Uniform Trade Secrets Act. Unlike the Chapter 93A claim, none of those claims required allegations that Tragakis disclosed or used Vicarious Surgical’s proprietary information or materials after she left Vicarious and started her new job.

In terms of the contract claim, Judge Salinger noted that Tragakis promised in her nondisclosure agreement “not [to] copy or remove any of Vicarious’s proprietary information from its premises except in pursuing the company’s business” and to return and not retain any such information upon her departure.

In terms of the trade secrets claim, Judge Salinger observed that the Trade Secrets Act “provides that Vicarious may obtain an injunction to bar any actual or threatened misappropriation of its trade secrets” and the Act “defines misappropriation to include not only the disclosure or use of another’s trade secret, but also the acquisition of a trade secret by improper means.”

And in terms of the conversion claim, Judge Salinger noted that the claim “can be proved either by showing wrongful acquisition of property or by showing a wrongful refusal to return the property upon demand.” “If Vicarious can prove its allegations that Tragakis copied and still retains its property, even after Vicarious has demanded that it be returned,” Judge Salinger explained “then Vicarious may be entitled to recover reasonable royalty damages even if it cannot prove that it has suffered any direct loss or that Tragakis has profited from using what she allegedly stole.”

You can read the decision here.

Suffolk Superior Court

Docket Number: 2284CV02321-BLS2

Case Name: Vicarious Surgical Inc. v. Beth Tragakis

Date of Decision: April 27, 2023

Judge: Judge Salinger