IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRCT OF VIRGINIA
JAN | 3 2015
CLERK. U S D>'
v. Case No.
ROBERT BRADFORD JOHNSON,
F. CALHOUN DENT, III
COMPLAINT FOR PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF
Plaintiff, Health Diagnostic Laboratory, Inc. ("HDL"), bycounsel, files its
Complaint seeking Preliminary and Permanent Injunctive Reliefagainst Defendants
Robert Bradford Johnson ("Johnson") and F. Calhoun Dent, III ("Dent") and alleges the
1. Bythis Complaint, HDL seeks preliminary and permanent injunctive relief
to enforceconfidentiality, non-competitionand non-solicitationcovenants containedin
theShareholders Agreement of Health Diagnostic Laboratories, Inc. (the"Shareholders
Agreement"). On April 2, 2010, Johnson and Dent executed the Second Amendment of
theShareholders Agreement agreeing to be boundby allprovisions of the Shareholders
Agreement, including the confidentiality, non-competition, and non-solicitation
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provisions while they own shares inHDL and for a one year period following the
relinquishment of their ownership interest in HDL.
2. Johnson and Dent are the sole founders and owners of BlueWave
Healthcare Consultants, Inc. ("BlueWave"). BlueWaveis a multi-linebusiness that sells
medical devices and products as well as providing a sales force tomarket laboratory tests.
HDL retained BlueWave pursuant toa sales agreement dated January 4,2010(the "Sales
Agreement"), to perform certain sales functions, including marketing and sales of various
laboratory tests and services HDL provides to physicians and medical groups specializing
in cardiology and otherdisease management specialties. BlueWave controls a national
network of salesrepresentatives whichBlueWave purports to have structured as dozens
of independent contractors, in part,to maximize the taxadvantages and income to
Johnson and Dent. Johnson and Dent eachalso ownapproximately 1.5% of HDL's stock.
3. HDL beganas a start-uplaboratory in Richmond, Virginia, and in the
approximately five years since processing its first samplesin 2009, HDLhas matured
intoa significant participant in the diagnostic laboratory fieldof healthcare. Since late
2012, and before thedisclosure of an industry-wide review of certain industry practices,
HDL has been conducting a significant internal compliance review and analysis toensure
thatit complies with various Federal and state laws regulating laboratory services. Based
on its analysis and information obtained from other sources, HDL concluded that certain
provisions ofthe Sales Agreement posed a potential risk ofviolating orpotentially
inducing the violation of Federal and state laws.
4. Consistentwith HDL's commitmentto ensure compliancewith the law,
andto promote compliance with applicable laws byits sales force, HDL sought to
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renegotiate the SalesAgreement's potentiallynon-compliantterms with BlueWaveas
allowed under Section 18of thatagreement. HDL provided BlueWave withwritten
notice of HDL's needto renegotiate the terms of the SalesAgreement on December 22,
2014. Notwithstanding BlueWave's dutyas part of HDL's salesforce to vigilantly
ensure compliance withall healthcare lawsand regulations, Johnson and Dentput their
economic interests aheadof compliance andrefused to engage in goodfaith on
renegotiating the potentially non-compliant provisions of the SalesAgreement. As a
result, HDLwasleft with no otheroptionbut to terminate the SalesAgreement, which it
did on January 9, 2015.
5. Johnson and Dent threatened to competewith HDL, to direct other sales
representatives not to work with HDL and to appropriate for themselves and other
laboratories thephysicians andmedical practices thatwereserviced by HDL, all in
violation of the ShareholdersAgreement. Defendants' actions have or will cause
significant irreparable harm toHDL's business bydisrupting itscustomer relationships
and good will with the healthcare providers. An injunction is necessaryto enforcethe
terms ofthe Shareholders Agreement andto prevent Defendants from usingHDL's
confidential information and permanently damaging HDL's business, for which
compensation by way of damages would be inadequate.
6. HDLis a VirginiaCorporation with its principal place of business and
headquarters is located in Richmond, Virginia.
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7. Johnson is a founder andfifty percent owner of BlueWave, which is an
Alabama corporation with its principal placeof business located in Alabama. Johnson is
a resident of Alabama.
8. Dentis alsoa founder andfifty percent owner of BlueWave. He is a
resident of South Carolina.
9. This Court has personal jurisdiction over Defendants because they entered
into the Shareholders Agreement, and thus became partial owners ofa Virginia
corporation. AsHDL shareholders, they agreed toperform certain obligations toa
Virginia company, including theduty to refrain from misusing HDL's confidential
information, to refrain from competing against HDL, and to refrain from soliciting
HDL's customers to use another laboratory whiletheyremained shareholders.
10. This Court hassubject matter jurisdiction overthisaction pursuant to 28
U.S.C. § 1332, because thematter incontroversy exceeds thesum orvalue of$75,000,
and there is completediversity betweenthe Plaintiffand the Defendants.
11. Venue is properin this Court under28 U.S.C. §1391, because the
Shareholders agreement was formed inVirginia and the Shareholders Agreement forms
the basis ofthis Complaint.
12. HDLoffersadvanced testing for cardiovascular disease, diabetes, and
other medical conditions to patients across the United States. HDL's tests allow
physicians todiagnose their patient's medical conditions during the earliest stages ofthe
disease, rather than after serious health issues arise.
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13. HDLrelies on its salesrepresentatives, such as Defendants, to educateand
inform healthcare providers about HDL's advanced testing. Healthcare providers, in
turn, can refer patient samples toHDL for testing, asopposed tosending those samples to
competing laboratories. HDL relies upon its sales representatives toregularly and
personallyinteractwith HDL's healthcareproviderclients and their staffs to educate
them on the efficacy ofHDL's tests, answer questions, and resolve issues, among other
things. Inshort, HDL's sales representatives play acritical role developing and
maintaining HDL'sclient relations with thehealthcare providers andserve asthe"face"
of HDL to its client healthcare providers.
14. Before terminating theSales Agreement, HDL directly employed a
relatively small sales force thatserviced primarily Virginia physicians and medical
groups. HDLis in the process of expanding its directly employed salesforce andwill be
training and supervising thatnew sales force, including exerting more significant controls
over and monitoring that sales force.
15. Before termination of the Sales Agreement, BlueWave supplied thevast
majority ofHDL's sales force, including sales and marketing services for HDL inforty-
seven states and the District of Columbia.
16. Johnson andDent, as employees and owners of BlueWave, directly
provided sales andmarketing services for HDL in Georgia, South Carolina, North
Carolina, Alabama, Louisianaand Mississippi.
17. During the existence of the Sales Agreement, BlueWave expanded the
reach ofits sales force not by hiring additional sales representatives as employees, but
rather byentering into purported independent contractor agreements with companies
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formed by the salespersons. Johnson and Dent required these arrangements so as to
maximize their earnings, because BlueWave could avoid paying state taxes, social
security tax and benefits for the vast majority ofits workforce, among other things.
BlueWave's purported sub-contractors hired so-called "helpers" to assist the salespersons
intheir marketing and sales efforts. BlueWave employed a sales force ofover 60
salespersons and helpers through its sub-contractor arrangement. The salespersons under
contract with BlueWave operated under the name "BlueWave Healthcare Consultants"
and had anemail address associated with BlueWave: "@bluewavehealth.com."
18. Johnson and Dent direct and control the actions of BlueWaves' contractors
who were acting as HDL's sales representative throughout the Country in States not
directly serviced byJohnson or Dent. HDL hascompensated BlueWave forthesales and
marketing services provided byBlueWave's contractors, and upon information and
belief, BlueWave passed a very small percentage ofthe compensation paid by HDL to
thecorresponding BlueWave contractor. Johnson and Dent pocketed thedifference,
which amounted to millions of dollars.
19. In addition to the compensation providedto BlueWave under the Sales
Agreement, that agreementobligated HDL to convey HDL stock to Johnson and Dent.
HDL conveyed the applicable stockto Johnson and Dentpursuant to the Shareholders
Agreement, which they signed on April 2,2010.
20. The Shareholders Agreement provides:
EachShareholder acknowledges thatthe Company plansto engageits
businessas a clinical laboratoryfor disease managementfirst in the state
of Virginia andthento expand into otherstates (the"MarketArea"
meaning hereinthe statesin which the Company is doingbusiness at the
time). Eachshareholder further acknowledges that the Company has
expended and continues to expend considerabletime and resources in the
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development ofits services, markets and customer base, the development
and training ofits employees and sales force, and the acquisition of
equipmentand technology to facilitateits business.
21. Under the Shareholders Agreement, Johnson and Dent also acknowledged
that, as aresult ofHDL's expenditure oftime and resources, HDL "possesses a
competitive market position and goodwill ofsubstantial proprietary value to it." They
further acknowledged and agreed that they entered into the Shareholders Agreement and
HDL issued shares to them, with the intent thatthey, asshareholders, "willcontribute
towards the ultimate expansion and success ofthe Company's business."
22. Johnson and Dent agreed thatif they or anyother HDL shareholder
"competed with the Company inthe Market Area, either directly orthrough an affiliate or
any other person orentity, irreparable damage would be suffered bythe Company."
23. Accordingly, Johnson and Dent agreed that while they owned shares (as
they currently do), and for aperiod ofone year after they relinquish ownership oftheir
HDL stock, they will:
notdirectly, or indirectly, in anymanner orcapacity, engage (or
participate, invest in, operate, or become interestedin, affiliated or
connected with, orserve as anofficer, director, partner, shareholder,
member, manager, employee, consultant, orindependent contractor ofany
person orentity, if such would cause the Shareholder to soengage,
directly or indirectly) inthebusiness ofproviding services ofthekind
provided by the Company as of the dateof suchtermination, or in the
marketing, sale ordistribution ofany related orancillary service provided
bythe Company to its clients, customers and referral sources, within the
24. Additionally, underthe Shareholders Agreement, Johnson and Dent
agreed not to "solicit orprovide services to, directly orindirectly through any other
person orentity, anyclient or customer ofthe Company, or induce anysuch client or
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customer toterminate itsrelationship with the Company, or cause orattempt tocause any
person to cease referring business or clients to the Company."
25. Pursuant to Section 13(b) ofthe Shareholders Agreement, Johnson and
Dent also agreed thatHDL "shall have theright to apply to anycourt of competent
jurisdiction for aninjunction torestrain and enjoin theShareholders from violating the
provisions" ofthe Shareholders Agreement dealing with the shareholders' duty to protect
confidential information, non-competitionand non-solicitation.
26. Overthe past year, HDLhasconducted a reviewand analysis of its
operations toensure compliance with Federal and state laws and regulations applicable to
HDL's business. Insodoing, HDL became concerned that the Sales Agreement posed a
risk of violating or inducing the violation of Federal and state laws.
27. On December 22, 2014, HDL notified BlueWave that it had
determined certain compensation components of the Sales Agreement posed a risk
ofviolating federal and state law, and therefore, were subject to renegotiation
under the terms of the Sales Agreement.
28. While there were discussions between BlueWave's counsel and
HDL's counsel following delivery ofthe December 22, 2014 letter, BlueWave
never formerly responded to the letter, nordid it acknowledge its obligation to
renegotiate the terms raised in the December 22,2014 letter.
29. Duringthe period between the delivery of the December 22, 2014
letterand the termination ofthe SalesAgreement on January 9, 2015,Johnson
and Denthavecommunicated to others, including HDL's shareholders, their
intent to take allof HDL'sbusiness serviced byBlueWave to another laboratory.
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30. In addition, upon information and belief, Johnson and Dent have
directed BlueWave's subcontractors notto speak withHDL regarding HDL's
accountsserviced by those subcontractors and they have instructed them not to
discuss becoming employed by HDL forthepurpose of continuing to service
31. Johnson and Dent's actual or threatened action to move HDL's
businessto anotherlaboratory and its refusal to allow its subcontractors to discuss
HDL's customers with HDL or to discuss becoming employed by HDL
constitutesan actual breach or anticipatoryrepudiationof the Shareholders
32. Johnson and Dent's actual or threatened actions have caused and
will cause HDL irreparable harmin lostcustomer relations, lostbusiness good
will, lostreputation in the market, disruption of the market, and irreparable harm
through the misappropriation of confidential information.
33. HDL lacks an adequate remedy at law.
PRAYER FOR RELIEF
Plaintiffasks this Courtto enter preliminary andpermanent injunctions in its
favor and against Defendants enjoining Defendants, either acting individually oron
behalf of or throughany entity, including BlueWave,from:
(i) competing with HDLby marketing, selling or distributing on behalfof
themselves or any othercompany advanced laboratory testingfor cardiovascular disease
or diabetes throughout the Country, so long as they remain shareholders of HDLand for
one year followingrelinquishmentof any ownershipinterest in HDL;
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(ii) soliciting or providing services to, directly or indirectly, through any other
person or entity, any client or customer of HDL, and
(iii) inducing any client or customer ofHDL to terminate its relationship with
HDL or cause or attempt to cause any person to cease referring business or clients to
Plaintiffalso asks this Court to grant such other further reliefas the Court may
deem proper and appropriateand to award Plaintiffits costs.
Date: January 13,2015 Respectfully submitted,
Charles M. Sims(VSJMG5845)
Stephen M. Faraci, Sr. (VSB # 42748 )
LeClairRyan, A Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street
Post Office Box 2499
Richmond, Virginia 23219
(804) 343-5091 Telephone
(804) 783-7655 Facsimile
C. Matthew Haynes (VSB #77896)
LeClairRyan, A Professional Corporation
2318 Mill Road, Suite 1100
Alexandria, VA 22314
(703) 647-5919 Telephone
(703) 647-5989 Facsimile
Case 3:15-cv-00030-REP Document 1 Filed 01/13/15 Page 10 of 11 PageID# 10
Ropes & Gray, LLP
800 Boylston Street
Boston, MA 02119
Laura G. Hoey
Ropes & Gray LLP
191 North Wacker Drive
Chicago, IL 60606-4302
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