Jones Day offices in Washington, D.C. Photo: Diego M. Radzinschi/ALM

Updated at 5:11 p.m.

A Boston federal trial judge on Wednesday refused to immediately stop a former Novo Nordisk Inc. employee from working at a rival company, a defeat for the pharmaceutical giant as it fights in courts across the country to enforce noncompete agreements amid a series of departures.

Novo Nordisk, represented by lawyers from Morgan, Lewis & Bockius, is locked in a dispute with California-based rival BioMarin Pharmaceutical Inc. in courts in Massachusetts, Texas, New York and California. Last month, a Texas judge declined to issue a temporary restraining order against a former Novo Nordisk employee.

Morgan Lewis attorneys have accused BioMarin of leading a campaign to "systematically raid Novo Nordisk's hemophilia sales force to launch BioMarin's directly-competitive hemophilia therapies." Former Novo Nordisk employees in some cases are the plaintiffs, contesting the validity of workplace agreements that restrict jumping to competing companies.

"It is not clear that Novo and BioMarin are competitors given the different types of treatment each offers to hemophilia patients and the fact that use of the therapies is not mutually exclusive," U.S. District Judge Allison Burroughs of the District of Massachusetts said in her order Wednesday denying both a temporary restraining order and a preliminary injunction.

Burroughs also noted that former Novo Nordisk sales official Thomas Russomano's employment "was consistently unstable as his position was eliminated in both 2016 and 2018, and his territory shifted repeatedly." The judge determined the noncompete provisions of a 2016 agreement were no longer in effect.

Siobhan Mee and Sarah Butson of Morgan Lewis represent Novo Nordisk in the Massachusetts case. Mee, who leads the firm's labor and employment team in the Boston office, was not immediately reached for comment.

Jones Day represents the former employee, Russomano, a sales official who left Novo Nordisk in January. Jones Day partner Christopher Morrison, arguing for Russomano, said his client did not have a noncompete obligation to Novo Nordisk.

"Novo has no legitimate interests to protect in this case. As a life-long hemophilia patient, [Russomano] carried knowledge about the hemophilia patient community with him to Novo and he is entitled to carry it out," Morrison told the court.

Russomano, the Morgan Lewis lawyers argued recently, "will necessarily and inevitably use and disclose his confidential Information about Novo Nordisk's hemophilia business, and leverage the customer and stakeholder relationships he developed at Novo Nordisk on behalf of BioMarin, thereby wrongfully damaging Novo Nordisk's competitive advantage and customer goodwill."

A representative from Novo Nordisk were not immediately reached for comment Wednesday afternoon.

BioMarin said in a statement:

"We appreciate the court's thoughtful review and recognizing that the non-compete is not enforceable against our employee. BioMarin is committed to competing fairly in the market, defending our employees, and working with them to deliver breakthrough therapies to the international Hemophilia community. We will continue to challenge any future inappropriate use of non-compete agreements to stifle innovation and inhibit the development and commercialization of important advancements like gene therapy."

In September, Novo Nordisk sued a former employee and BioMarin in U.S. District Court for the Northern District of New York. BioMarin's time to respond to the complaint was put on hold in mid-January. Novo Nordisk has a deadline of Feb. 14 to file an amended complaint or otherwise update the court on the company's plans.

"Ongoing discussions between plaintiff Novo Nordisk and defendant BioMarin aimed at resolving this matter have reached an apparent impasse, and continuation of the litigation appears necessary," the lawyers for the two sides told the court Jan. 16.

On Jan. 24, a Texas federal district judge denied Novo Nordisk's request for a temporary restraining order. In that case, a former employee named Julie Golla sued Novo Nordisk. Houston-based Jones Day partner Joanne Bush represents BioMarin and Golla.

"Novo has not set forth any evidence that it will be harmed," Bush said in a court filing last month. "Golla diligently returned all her company materials and Novo has only made vague statements about the information it claims is at risk."

The presiding trial judge, Senior U.S. District Judge David Hittner of the Southern District of Texas, deferred ruling on Novo Nordisk's request for a preliminary injunction until after a hearing. The lawyers in the case have proposed a March 4 hearing.

This report was updated with comment from BioMarin.