On January 26, 2023, Cigna Corp. (“Cigna”) sued CVS Health Corp. (“CVS”) and its newly hired chief product officer Amy Bricker (“Bricker”), in the US District Court for the Eastern District of Missouri, for allegedly violating her non-compete agreement with Cigna.  The complaint was filed three (3) weeks after the US Federal Trade Commission (“FTC”) proposed a ban on non-compete clauses in employment contracts to keep workers from switching jobs.  The FTC would later announce, on April 23, 2024, the issuance of a final rule banning employers from entering into, enforcing, or attempting to enforce post-employment non-compete clauses with employees, subject to limited exceptions, and invalidating all existing non-competes with a narrow exception for some senior executives.

Bricker worked at Cigna as the head of Cigna’s Express Scripts pharmacy benefits unit prior to leaving Cigna for CVS.  In its complaint, Cigna claims that CVS poached Bricker in a “desperate effort” to retaliate against Cigna for securing a contract previous managed by CVS.  Cigna claims that the contract would be a $2 billion decline in CVS’s 2024 revenue.  Cigna also states in the complaint that Bricker received a high six-figure bonus as a result of her contribution to the contract and was “privy to the business’s most highly sensitive information,” including supply chain, product development, and sales strategy. 

Moreover, because Bricker was one of only sixteen (16) employees, at the time, out of 70,000 Cigna employees worldwide that was bound to this non-competition agreement, which is only reserved for the “most senior executive leaders,” Cigna argues that the non-compete is valid.  Additionally, the complaint states that Bricker executed lucrative stock grant agreements in exchange for entering the restrictive covenants and was fully aware of the conditions of participating in the equity plans year after year.  Additionally, Cigna explains that Bricker’s decision to proceed with the CVS position constitutes a willful disregard of Cigna’s trade secret rights in violation of the Missouri Uniform Trade Secrets Act.

Cigna sought a temporary restraining order and preliminary injunction to prevent Bricker from starting her new position at CVS on February 3, 2023.  On February 17, 2023, the US District Court for the Eastern District of Missouri granted Cigna a temporary restraining order preventing Bricker from starting the new position and on June 5, 2023, approved of a preliminary injunction pending a final determination on the merits of the case.  Bricker and CVS appealed the preliminary injunction to the US Court of Appeals for the Eighth Circuit.  Bricker and CVS argued that the non-compete agreement was overbroad, violated Missouri laws (which governed the non-compete agreement) and that Cigna’s home-delivery pharmacy versus CVS’s brick-and-mortar pharmacies were not competitors.

On June 5, 2024, the US Court of Appeals for the Eighth Circuit issued an opinion disagreeing with Bricker and CVS.  They found that Cigna and CVS were each other’s largest direct competitors.  Moreover, because Bricker conceded knowledge of a Cigna trade secret, the Eighth Circuit found that the harms that Cigna could suffer from the trade secret being disclosed was substantial as compared to the harms that Bricker and CVS would suffer under the injunction, therefore, there was enough support for Cigna’s arguments of irreparable harm.  More specifically, when assessing the balance of equities, the Eighth Circuit stated that the harm to Bricker and CVS in comparison to Cigna was comparatively small because CVS agreed to pay Bricker’s full salary (approximately $10 million) for the two-year duration of the non-compete, even if Bricker does not work for CVS, and CVS indicated it would not penalize Bricker in any way despite her inability to work.  The Court of Appeals went on to note that Bricker could have chosen to move from Cigna to a company outside of healthcare which would have posed a less serious threat to Cigna in protecting its interests, considering Bricker’s intimate knowledge of Cigna’s inner workings.  Therefore, the Court concluded that “Cigna met its preliminary burden and demonstrated a ‘fair chance’ that its non-compete agreement with Bricker was reasonable and enforceable.”  As such, the Court of Appeals held that the district court did not err in granting Cigna’s request for a preliminary injunction and affirmed the judgment.

The FTC’s final rule banning non-compete clauses is not instructive in this case.  While the FTC banned non-compete clauses with employees, the issuance carves out an exception for senior executives who are in policy-making positions and earn at least $151,164 in the preceding year.  Cigna claims that Bricker was a highly visible and influential leader of the company, giving presentations, including to Cigna’s Board of Directors, investors and even Congress, and Bricker’s stock options alone are worth $1,555,879.  As such, the Cigna-Bricker non-compete agreement would fall within the senior executives exception of the FTC non-compete ban. 

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Photo of Margaret Ukwu Margaret Ukwu

Margaret Ukwu is an associate in the Litigation Department and a member of the Intellectual Property and Mass Torts & Product Liability Groups. She focuses her practice on complex patent litigation involving a broad range of technologies, including pharmaceutical and medical devices, electrical…

Margaret Ukwu is an associate in the Litigation Department and a member of the Intellectual Property and Mass Torts & Product Liability Groups. She focuses her practice on complex patent litigation involving a broad range of technologies, including pharmaceutical and medical devices, electrical arts pertaining to mechanical systems, computer architecture, internet applications, mobile operating systems, wireless communications and user interfaces. She also advises clients on all aspects of patentability and provides patent counseling regarding invalidity, non-infringement and freedom to operate assessments.

Margaret also specializes in all aspects of pre-trial work and trial preparation, including drafting motions in limine, jury instructions, working on demonstrative and exhibit lists, preparing witnesses for trial and drafting opening and closing statements.

While in law school, Margaret interned for the Honorable Sam Rugege at the Supreme Court of Rwanda. Prior to practicing law, she worked as a control systems engineer at a large multinational company.

Photo of Joseph Drayton Joseph Drayton

A first-chair trial lawyer, Joe Drayton has represented some of the nation’s most prominent companies across a wide array of industries in all facets of intellectual property (IP) litigation before both state and federal courts, as well as the International Trade Commission and…

A first-chair trial lawyer, Joe Drayton has represented some of the nation’s most prominent companies across a wide array of industries in all facets of intellectual property (IP) litigation before both state and federal courts, as well as the International Trade Commission and American Arbitration Association.

Joe has more than two decades of experience specializing in both domestic and international intellectual property and complex commercial disputes, including patent, trade secrets, copyright, trademark and trade dress and false advertising across diverse industries. He also counsels clients in all aspects of IP acquisition, transfer, protection and enforcement.

Joe is a trusted advisor for several corporate executives and a national leader in the legal community. He is regularly recognized as one of the top lawyers in the U.S., having consistently been named to the IAM Patent 1000 list. Most recently, Joe received the C. Francis Stadford Award by the National Bar Association, the highest award bestowed by the association that is given to a member whose leadership, integrity, legal skills and devotion have inspired colleagues and contributed greatly to the legal profession. A longtime bar leader, Joe served as the 76th president of the National Bar Association and is also a former vice president and Board chair of the New York City Bar Association.