United States Court of Appeals 

For the First Circuit 

No. 20-1173 

THOMAS A. RUSSOMANO, 

Plaintiff, Appellee, 

v. 

NOVO NORDISK INC., 

Defendant/Third Party Plaintiff, Appellant, 

v. 

BIOMARIN PHARMACEUTICAL, INC., 

Third Party Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Allison D. Burroughs, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

S. Elaine McChesney, Bryan Killian, and Morgan, Lewis & 

Bockius LLP on brief for appellant. 

Christopher M. Morrison and Jones Day on brief for appellees. 

June 2, 2020 
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LYNCH, Circuit Judge. Pharmaceutical company Novo 

Nordisk Inc. ("Novo Nordisk") filed a motion for a temporary 

restraining order and preliminary injunction against Thomas 

Russomano, one of its former employees, and BioMarin 

Pharmaceutical, Inc. ("BioMarin"), another pharmaceutical company 

and Russomano's current employer. The motion sought to enforce 

the terms of a confidentiality and non-compete agreement that 

Russomano signed when he was employed at Novo Nordisk. The 

agreement forbade Russomano from working for a competitor in 

certain positions for a year after the end of his Novo Nordisk 

employment and from ever disclosing any confidential information. 

The district court denied Novo Nordisk's motion because 

it found that Novo Nordisk could not show a likelihood of success 

on the merits. The court found that Russomano was likely no longer 

bound by the non-compete portion of the agreement because, by its 

terms, those provisions expired twelve months after the 

termination of Russomano's employment, and Novo Nordisk briefly 

laid him off in 2018 before rehiring him without having him sign 

a new non-compete agreement. Novo Nordisk argues that Russomano 

was not laid off in 2018 but instead transferred positions within 

the company, such that his employment was not terminated until 

Russomano resigned in early 2020. Finding no abuse of discretion, 

we affirm the district court's denial of Novo Nordisk's motion. 
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I. 

A. Factual Background 

Russomano began his employment with Novo Nordisk on 

January 25, 2016, as a Hemophilia Community Specialist for the New 

England region. As a condition of his employment, he signed a 

confidentiality and non-compete agreement on December 14, 2015. 

The non-compete provisions applied "during [Russomano's] 

employment and for a period of twelve months following the 

termination of [his] employment for any reason, voluntary or 

involuntary."

 On October 24, 2016, Novo Nordisk told Russomano that 

his position was being eliminated, and he would be laid off. On 

November 18, 2016, Russomano's employment was terminated, along 

with all other fifteen to twenty employees in the same role. He 

reapplied for open positions at Novo Nordisk, and after an 

approximately three-week period during which Novo Nordisk did not 

employ him, on December 8, 2016, the company rehired Russomano as 

a Hemophilia Therapy Manager for the Penn West region, encompassing 

New York, Pennsylvania, and West Virginia. 

The job started on December 12, 2016.1 This position 

differed from his previous one in several ways. His salary was 

higher, the region his position covered was larger, and he 

1 In June 2017, Russomano's territory was changed to New 

England. 
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interacted with patients less often. As a condition of being 

rehired, Russomano signed a second confidentiality and non-compete 

agreement on December 7, 2016, which was identical to the 2015 

agreement.

Approximately a year and a half later, on June 20, 2018, 

Novo Nordisk sent Russomano a new letter informing him that it was 

eliminating his position and terminating his employment as part of 

a "realignment" of its business. The letter stated: "Based on the 

new operating model design, your position will be eliminated and 

your employment will end effective August 3, 2018 (the 'Separation 

Date')." The letter acknowledged that "one of [his] first 

priorities . . . will be finding new employment" and encouraged 

Russomano to apply for "a number of open positions throughout the 

organization." Finally, the letter discussed the conditions 

Russomano would need to meet in order to receive severance 

benefits, which included remaining in his role until the Separation 

Date, abiding by the company's rules and policies, and "not 

accept[ing] an alternate position with Novo Nordisk prior to the 

Separation Date."

Russomano then applied for open positions in the company 

and, after interviewing, was offered the different position of 

Senior Hemophilia Community Liaison -- New York, NY. Novo Nordisk 

sent Russomano a letter "formally confirm[ing his] transfer" to 

the new position. Russomano's start date in the new role was 
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"[e]ffective August 6, 2018," a Monday three days after the Friday 

end date specified in the earlier letter Novo Nordisk sent 

Russomano notifying him of his employment's termination. 

Russomano was not required to sign a new confidentiality and noncompete agreement as part of accepting this new job.

Senior Hemophilia Community Liaison was a new role 

within the organization. The offer letter Russomano received 

described the role as offering him "the opportunity to work with 

new colleagues and learn a new area." Russomano was no longer 

responsible for interfacing with prescribers and potential 

prescribers. The boundaries of his territory changed again. And 

his incentive compensation was decreased by more than ten thousand 

dollars.

 Russomano resigned from his position at Novo Nordisk on 

January 6, 2020. His first day at BioMarin as a "Senior Account 

Manager -- Hemophilia Gene Therapy" was January 21, 2020. 

B. Procedural History 

Despite Russomano's request, Novo Nordisk declined to 

give Russomano written assurance that it did not intend to try to 

enforce the non-compete provisions of the agreement against him 

for his new role at BioMarin. In consequence, on January 9, 2020, 

Russomano sued Novo Nordisk in state court seeking a declaratory 

judgment that his future employment with BioMarin would not violate 
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a confidentiality and non-compete agreement he signed while 

working at Novo Nordisk.2

Novo Nordisk removed the case to federal court on January 

15, 2020, and filed counterclaims against Russomano on January 21, 

2020, for breach of contract, unfair competition, and 

misappropriation of trade secrets. The same day, it also filed a 

third-party complaint against BioMarin for tortious interference 

with a contract, unfair competition, and misappropriation of trade 

secrets.

On January 21, 2020, Novo Nordisk filed a motion for a 

temporary restraining order and preliminary injunction against 

Russomano and BioMarin. In its motion, Novo Nordisk asked the 

district court (1) to enjoin Russomano, for a year, from violating 

the terms of the Agreements; (2) to enjoin BioMarin, for a year, 

from employing Russomano in violation of the Agreements; and (3) 

to enjoin Russomano and BioMarin from "using, disclosing or 

misappropriating" confidential information. Russomano and 

BioMarin opposed the motion on January 21 and 24, 2020.

The district court heard testimony on Novo Nordisk's 

motion on January 27 and 28, 2020. Russomano testified, as did 

John Cones, the BioMarin employee who recruited and hired 

2 Russomano's complaint only mentioned the 2015 

confidentiality and non-compete agreement. The district court 

proceedings have since made clear that he signed a second identical 

agreement in 2016. 
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Russomano, and Tammy Shelor-Blain, a Novo Nordisk BioPharm Region 

Director who supervised Hemophilia Therapy Managers and Community 

Liaisons like Russomano. The parties submitted evidence including 

declarations from Russomano, Cones, Shelor-Blain, and Keith 

Middleton, a Novo Nordisk Human Resources employee.

The court denied Novo Nordisk's motion for a temporary 

restraining order and preliminary injunction on February 5, 2020. 

It wrote that "at this stage," based on a "review of the evidence 

presented," Russomano's employment subject to his December 7, 

2016, agreement with Novo Nordisk was terminated on August 3, 2018. 

The court viewed the language Novo Nordisk used in its letter 

notifying Russomano that his position would be eliminated as 

unambiguous, and it rejected Novo Nordisk's argument that the 

termination of Russomano's employment was conditional upon him not 

finding a new position with the company. It found that the twelvemonth non-compete provisions he agreed to in 2016 had expired in 

August 2019, twelve months after he left his position in August 

2018, and Russomano thus was free to work in any role at BioMarin.3

Novo Nordisk timely appealed the district court's denial 

of the preliminary injunction on February 7, 2020. We have 

jurisdiction under 28 U.S.C. § 1292(a)(1).

3 The court noted that the confidentiality provisions 

extend indefinitely and are still in effect.
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II. 

A. Standard of Review and Choice of Law 

A trial court ruling on a motion for a preliminary 

injunction must consider the following four factors: "'the 

movant's likelihood of success on the merits'; 'whether and to 

what extent the movant will suffer irreparable harm' in the absence 

of injunctive relief; 'the balance of [relative] hardships,' that 

is, the hardship to the nonmovant if enjoined as opposed to the 

hardship to the movant if no injunction issues; and 'the effect, 

if any, that an injunction [or the lack of one] may have on the 

public interest.'" CVS Pharmacy, Inc. v. Lavin, 951 F.3d 50, 55 

(1st Cir. 2020) (alterations in original) (quoting Corp. Techs., 

Inc. v. Harnett, 731 F.3d 6, 9, (1st Cir. 2013)).

Novo Nordisk's likelihood of success on the merits is 

the factor that "weighs most heavily in the preliminary injunction 

analysis." Id. (citing Ross-Simons of Warwick, Inc. v. Baccarat, 

Inc., 102 F.3d 12, 16 (1st Cir. 1996)). "[I]f the moving party 

cannot demonstrate that he is likely to succeed in his quest, the 

remaining factors become matters of idle curiosity." Maine Educ. 

Ass'n Benefits Tr. v. Cioppa, 695 F.3d 145, 152 (1st Cir. 2012) 

(alteration in original) (quoting New Comm Wireless Servs., Inc. 

v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)).4

4 Winter v. Natural Resources Defense Council, Inc., 555 

U.S. 7 (2008), says it requires the movant to show "that he is 
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We review the district court's ruling on a motion for a 

preliminary injunction for abuse of discretion. Voice of the Arab 

World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 31 (1st Cir. 

2011). Within that framework, "we examine legal questions de novo, 

findings of fact for clear error, and the balancing of the four 

factors for abuse of discretion." CVS Pharmacy, Inc., 951 F.3d at 

55. 

When evaluating the likelihood of success on the merits 

in a diversity case, we apply state law for the substantive rules 

of decision. Id. at 55 n.4. Novo Nordisk argues that the 

appropriate law to apply is New Jersey law because the 

confidentiality and non-compete agreement specified that New 

Jersey law should apply. Russomano and BioMarin argue that under 

Massachusetts law, the law of the forum state, the choice-of-law 

provision is invalid because Russomano did not have a meaningful 

likely to succeed on the merits, that he is likely to suffer 

irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is 

in the public interest." Id. at 20. Some have suggested that 

Winter may well allow variations of this formulation. See id. at 

51 (Ginsburg, J., dissenting) ("[C]ourts have evaluated claims for 

equitable relief on a 'sliding scale,' sometimes awarding relief 

based on a lower likelihood of harm when the likelihood of success 

is very high. This Court has never rejected that formulation, and 

I do not believe it does so today."); see generally Bethany M. 

Bates, Note, Reconciliation After Winter: The Standard for 

Preliminary Injunctions in Federal Courts, 111 Colum. L. Rev. 1522, 

1537-48 (2001) (surveying other circuits' approaches). The 

approach taken is immaterial here. The likelihood of success on 

the merits is so low, as we further discuss below, that it would 

overwhelm any of the other factors. 
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choice in accepting this term and, separately, it would violate 

Massachusetts public policy to continue to enforce a non-compete 

agreement after there was a material change in Russomano's 

employment at Novo Nordisk. They argue that Massachusetts law 

should apply instead. 

The district court declined to determine which state law 

applied because the states' laws are substantially similar for 

these purposes, and it cited cases from both New Jersey and 

Massachusetts in its analysis.5 See Darr v. Plaintiffs' Interim 

Exec. Comm. (In re TelexFree), 941 F.3d 576, 584 n.5 (1st Cir. 

2019) ("[W]hen the result in a case will not be affected by the 

choice of law, an inquiring court, in its discretion, may simply 

bypass the choice." (alteration in original) (quoting Lexington 

Ins. Co. v. Gen. Accident Ins. Co. of Am., 338 F.3d 42, 46 (1st 

Cir. 2003))). We agree and do the same.

B. There Was No Error in the District Court's Conclusion that 

Novo Nordisk's Termination Letter Was Unambiguous that 

Russomano's Employment Ended on August 2, 2018 

We review legal conclusions, such as the interpretation 

of an unambiguous written legal instrument, de novo. See VFC 

Partners 26, LLC v. Cadlerocks Centennial Drive, LLC, 735 F.3d 25, 

29 (1st Cir. 2013); see also Kieffer v. Best Buy, 14 A.3d 737, 742 

(N.J. 2011); Bank v. Thermo Elemental Inc., 888 N.E.2d 897, 907 

5 Novo Nordisk conceded the states' laws are 

"substantially similar" to the district court.
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(Mass. 2008). The district court found that the June 20, 2018, 

letter Novo Nordisk sent Russomano unambiguously terminated his 

employment.

Novo Nordisk does not contest that "for Russomano to 

continue to be bound not to compete beyond 2019 Novo Nordisk would 

have needed to ensure there was no break in employment." 

(Alterations omitted.) Rather, it argues that the terms of the 

letter are ambiguous and Russomano was continuously employed 

between December 8, 2016, when he was rehired for the first time, 

and January 6, 2020, when he resigned to work for BioMarin. 

This argument is without merit. The district court did 

not err in concluding that the letter laying Russomano off was 

unambiguous when it stated that his employment ended "effective 

August 3, 2018." The letter offering him a new position was also 

unambiguous: his new position was "[e]ffective August 6, 2018." 

The word "effective" has a clear meaning in this context. See 

Effective, Black's Law Dictionary (11th ed. 2019) (defining 

"effective" as "in operation at a given time"). Russomano's 

employment thus "terminat[ed]" as per the terms of the 

confidentiality and non-compete agreement in August 2018, and he 

is free to work for BioMarin as of August 2019.6

6 In its reply brief, Novo Nordisk argues for the first 

time that its June 20, 2018, letter notifying Russomano that it 

was terminating his employment can be construed as merely an offer 

to terminate his employment, which Russomano rejected when he 
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We need not go farther in our analysis. Where language 

is unambiguous, resort to extrinsic evidence is unnecessary. See 

EventMonitor, Inc. v. Leness, 44 N.E.3d 848, 856 (Mass. 2016) ("A 

reviewing court considers extrinsic evidence only when a term in 

a contract is ambiguous." (citing Mass. Mun. Wholesale Elec. Co. 

v. Danvers, 577 N.Ed.2d 283, 289 (Mass. 1991)));7 Barila v. Bd. of 

Ed. of Cliffside Park, No. A-39-18, 2020 WL 1907814, at *12 (N.J. 

Apr. 20, 2020) ("[W]hen the intent of the parties is plain and the 

language is clear and unambiguous, a court must enforce the 

accepted his new position at the company. This and the other 

related arguments made for the first time in the reply brief are 

waived. See United States v. Mayendía-Blanco, 905 F.3d 26, 32 

(1st Cir. 2018) ("[A]rguments not raised by a party in its opening 

brief are waived."). 

7 We do not foreclose the possibility that Massachusetts 

courts might, in appropriate circumstances, refer to extrinsic 

evidence to help determine whether the text of an agreement is 

ambiguous or not. See, e.g., Robert Indus., Inc. v. Spence, 291 

N.E.2d 407, 409 (Mass. 1973) (acknowledging that "[a] lease is to 

be read in the light of the circumstances of its execution, which 

may enable the court to see that its words are really ambiguous"); 

see generally Restatement (Second) of Contracts § 214(c) (Am. Law. 

Inst. 1981) (allowing extrinsic evidence not only to help with 

interpretation of facially ambiguous language but more broadly to 

establish "the meaning of the writing, whether or not integrated"); 

id. cmt. b ("Even though words seem on their face to have only a 

single possible meaning, other meanings often appear when the 

circumstances are disclosed. In cases of misunderstanding, there 

must be inquiry into the meaning attached to the words by each 

party and into what each knew or had reason to know."). 
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agreement as written, unless doing so would lead to an absurd 

result." (quoting Quinn v. Quinn, 137 A.3d 423, 429 (N.J. 2016))).8

Novo Nordisk's efforts to find ambiguity in its letter 

are unavailing. The company argues that the termination of 

Russomano's employment was conditional on him not securing another 

role within the company. Specifically, it argues that "[t]he 

letter did not unambiguously terminate Russomano; rather, the 

letter stated that Russomano's job position was going to be 

eliminated and that Russomano's employment would be terminated if 

he did not transfer to another position within the company." Not 

so. 

The only conditional language in the letter was in 

reference to the severance benefits, which were only available to 

Russomano if he met certain conditions, including "not accept[ing] 

an alternate position with Novo Nordisk prior to the Separation 

Date." There was no conditional language in the part of the letter 

informing Russomano that his "employment will end." This explains 

8 Similarly, under New Jersey law, although "[i]f the 

language of a contract 'is plain and capable of legal construction, 

the language alone must determine the agreement's force and 

effect,'" Manahawkin Convalescent v. O'Neill, 85 A.3d 947, 958-59 

(N.J. 2014) (quoting Twp. of White v. Castle Ridge Dev. Corp., 16 

A.3d 399, 403 (N.J. Super. Ct. App. Div. 2011)), "[e]ven in the 

interpretation of an unambiguous contract, we may consider 'all of 

the relevant evidence that will assist in determining [its] intent 

and meaning,'" id. at 959 (alteration in original) (quoting Conway 

v. 287 Corp. Ctr. Assocs., 901 A.2d 341, 346 (N.J. 2006)). 
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why his employment was terminated but he did not receive severance 

benefits.

Likewise, a passing reference to Russomano's "transfer" 

in the letter Novo Nordisk sent rehiring him is not enough to 

undermine its clear references to the "end" of his employment with 

the company in the termination letter and later his "new position." 

Although we need not consult extrinsic evidence to 

confirm that Russomano's employment was terminated briefly in 

2018, the available extrinsic evidence supports this 

interpretation. Novo Nordisk concedes that it laid off Russomano 

in 2016, and the circumstances surrounding the termination of 

Russomano's employment in 2016 are quite similar to what happened 

to him in 2018. 

Both times he was laid off as a result of restructuring. 

Both times Russomano had to re-apply for open positions in the 

organization with no guarantee of being re-hired. His new roles 

were both markedly different than his previous ones. Both times 

he received a new title and different compensation, and he worked 

with different populations and in different geographic areas. 

Novo Nordisk argues that Russomano effectively conceded 

that his employment with the company was not terminated and instead 

he merely was transferred when Russomano testified at the motion 

hearing, "I was definitely not unemployed." This argument is 

misleading. Before stating he was "not unemployed," Russomano 
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attempted to clarify the terms of the question, asking, "Meaning 

like leaving the company? . . . Having a gap?" Only after the 

lawyer agreed to that definition did Russomano say he was "not 

unemployed." Russomano also added afterwards, "I thought of it as 

a termination since we did receive, you know, the notice and the 

layoff notice and things like that." 

We see no abuse of discretion in the district court's 

finding that Novo Nordisk was not likely to succeed on the merits. 

Nor do we find any abuse of discretion in its decision not to 

analyze the remaining factors in the test for a preliminary 

injunction before denying the motion, particularly because Novo 

Nordisk's likelihood of success is so low.

III. 

The district court's denial of Novo Nordisk's motion for 

a temporary restraining order and preliminary injunction is 

affirmed. Costs are awarded to Russomano and BioMarin.