“Gist Of The Action” Doctrine May Require Dismissal Of Tort Claims Based On Breach Of Restrictive Covenants In Employment Agreement

Pursuant to the “Gist of the Action” doctrine, tort claims may be dismissed if they are “intertwined with,” and not just “collateral to,” contract claims in the same complaint.

In a Pennsylvania federal court case, an ex-employee was accused by his former employer of breaches of confidentiality, non-solicitation and non-compete agreements, and related causes of action. The portion of the plaintiffs’ tortious interference with contract claim that was “intertwined” with the cause of action for breach of the non-solicitation agreement was dismissed pursuant to Federal Rule 12(b)(6) and the “Gist of the Action” doctrine, but the motion to dismiss those allegations that were “collateral” to the breach of contract claim was denied.The court also found that plaintiffs’ Computer Fraud and Abuse Act (CFAA) allegations, to the extent that the ex-employee, for his personal benefit, induced a current employee to access the plaintiffs’ computers, survived the motion to dismiss. Synthes, Inc. v. Emerge Medical, Inc., Civ. Ac. No. 11-1566 (E.D. Pa., Sept. 19, 2012).

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