Gena Cook vs. Merck Et Al

1
FILED
2 2020 OCT 29 09:00 AM
KING COUNTY
3 SUPERIOR COURT CLERK
E-FILED
4 CASE #: 20-2-15919-1 SEA
6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

7
8 GENA COOK Case No.

9 PLAINTIFF, COMPLAINT FOR DAMAGES FOR:
10 V. (1) BREACH OF FIDUCIARY DUTY
11 MERCK GLOBAL HEALTH INNOVATION (2) TORTIOUS INTERFERENCE
FUND, LLC; DAVID M. RUBIN; WILLIAM WITH PROSPECTIVE
12 BUNKER; and NAVIGATING CANCER, ECONOMIC ADVANTAGE
INC.
13 (3) GENDER DISCRIMINATION IN
DEFENDANTS. VIOLATION OF THE
14 WASHINGTON LAW AGAINST
DISCRIMINATION, RCW § 49.60,
15 et seq.
16 (4) BREACH OF CONTRACT
17 (5) BREACH OF THE IMPLIED
COVENANT OF GOOD FAITH
18 AND FAIR DEALING
19 (6) WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC
20 POLICY
21 JURY TRIAL DEMANDED
22
23
24
25
Comes now Plaintiff Gena Cook, who claims and alleges as follows on information and
26
belief except as otherwise stated:
27
COMPLAINT - 1 SUSMAN GODFREY L.L.P.

Case No. 1201 Third Avenue, Suite 3800
Seattle, WA 98101-3000
Tel: (206) 516-3880; Fax: (206) 516-3883
1 1. The claims in this case arise from the actions of Defendants Merck Global Health
2 Innovation Fund, LLC (“Merck GHI”); Merck GHI’s representative, David M. Rubin; Navigating
3
Cancer, Inc. (“Navigating Cancer”); and Navigating Cancer’s current CEO William Bunker.
4
Together, these Defendants breached a fiduciary duty owed to Plaintiff and Navigating Cancer
5
founder Gena Cook (“Cook”). They also committed tortious interference with a prospective
6
7 economic advantage in wrongfully blocking a potential sale of Navigating Cancer and attempting
8 to turn a patient-care company relied on by thousands of cancer care providers caring for millions
9 of cancer patients into a data company to serve Merck’s interests in its Project BOLD initiative.
10
Defendants also mistreated and wrongfully terminated Cook based on her gender in violation of the
11
law. They further breached a 2018 Offer Letter and Employment Agreement with Cook as well as
12
the implied covenant of good faith and fair dealing included in that Agreement. And they, finally,
13
wrongfully terminated her in violation of clear Washington public policy.
14
15 2. In committing these acts, Merck GHI, Rubin, and Bunker served the exclusive
16 interests of Merck GHI, rather than Navigating Cancer and its shareholders, thereby causing Cook
17 more than $10 million in damages.

18
3. Cook is a Seattle resident and the founder of Defendant Navigating Cancer, a
19
Seattle-based company that developed a technology platform that improves the lives of cancer
20
patients through enhancing their cancer care. The platform is currently used by approximately 20%
21
of providers across the United States and has been proven to enhance the patient experience,
22
23 improve patient outcomes, and reduce costs through earlier identification of patient issues by
24 reducing emergency room visits and hospitalizations. Cook served as the CEO of Navigating
25 Cancer until late 2018, and then served as the President of the Company through July 2020, when
26
she was terminated without cause and without reason. Cook also served on the Navigating Cancer
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1 board of directors until September 2020, when Defendants removed her from the board after
2 refusing to honor the obligations under her written employment contract by refusing to provide the
3
severance benefits owed under that contract unless she agreed to forfeit bonus income and accrued
4
vacation that she had earned.
5
4. Under Cook’s leadership prior to Merck’s investment, Navigating Cancer secured
6
7 $7 million in venture capital funding. This allowed Navigating Cancer to build out the largest
8 patient management software solution in oncology. Navigating Cancer also developed several
9 successful business models that are core to the company today and allowed the new company to
10
break even in its cash flow.
11
5. In 2015, Merck GHI invested in Navigating Cancer. Navigating Cancer used this
12
money to expand the leading patient relationship management platform in the highly competitive
13
oncology space. This platform focused on care management to help providers move from fee-for-
14
15 service healthcare to value-based healthcare.
16 6. Shortly after making its investment, Merck GHI, through Defendant Rubin,
17 inexplicably began taking steps to exert control and influence over the company to further its own
18
interests, rather than those of Navigating Cancer and its shareholders, and to force Cook out of the
19
company without any objective basis for doing so. Soon after joining the board, Rubin expressed a
20
desire to “get rid of Gena.” Rubin increasingly directed corporate decision making, and excluded
21
Cook.
22
23 7. In August 2018, after initially assigning Cook responsibility to conduct a search for
24 a “non-executive chairman,” Merck GHI and Rubin forced through a decision to replace Cook with
25 Bunker as the company’s CEO, demoting Cook to President. To force through Cook’s demotion,
26
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1 Rubin threatened to put the entire company at risk: he told the board he would prevent Navigating
2 Cancer from obtaining an outstanding round of financing if Cook remained as CEO.
3
8. Rubin was motivated largely by control and by gender in his efforts to replace Cook.
4
According to a Navigating Cancer board member, Cook did not fit what Rubin described as his
5
image of “what a CEO should look like.” When Cook asked Rubin for an explanation of his decision
6
7 to replace her as CEO, Rubin replied that “sometimes you just need to change the players on the
8 baseball field.”
9 9. Consistent with Rubin’s expressed views as to “what a CEO should look like,” all
10
the candidates considered for serving as Navigating Cancer’s new CEO were men, none of whom
11
had Cook’s industry experience or qualifications. Ultimately, Rubin led the decision to select
12
Bunker as the company’s new CEO, even though Bunker had far less relevant experience than
13
Cook. Cook’s demotion was formalized in an October 22, 2018 Offer Letter and Employment
14
15 Agreement, which promised her a number of employment benefits in exchange for her continued
16 service, including severance benefits if Cook was terminated “without cause.”
17 10. Once Bunker was hired, he worked in tandem with Rubin to further diminish and
18
belittle Cook’s role within the company, exclude her from the company’s strategic decision-making
19
process, and depriving her of the resources needed to perform in her job.
20
11. Specifically, Cook was repeatedly told that, following her demotion to President,
21
she would run the commercial division of the company and that the details of her new job would
22
23 be worked out by Bunker, the new CEO. Bunker would only agree to give Cook sales
24 responsibilities, not strategy or marketing commensurate with a full commercial role. Bunker
25 repeatedly refused to define Cook’s role, calling her head of “strategic initiatives” and “business
26
development.” Without informing Cook in advance or giving her a defined role, Bunker told Cook’s
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1 direct reports that they would be reporting to him, thereby undermining Cook’s responsibility and
2 authority within the company.
3
12. Despite repeated requests, Bunker refused to clarify Cook’s role in the company or
4
to provide her management responsibility. He also withheld direct reports from her unless and until
5
doing so was completely necessary to perform obligations under specific client partnerships.
6
7 13. Despite Rubin’s and Bunker’s discriminatory efforts to isolate her, Cook was
8 nonetheless able to pursue and negotiate a new long-term distribution relationship that significantly
9 increased Navigating Cancer’s provider growth and revenues in 2019 and for future years.
10
14. In 2019, during conversations with a potential strategic partner, Navigating Cancer
11
received an offer to purchase the company. The initial offer for that transaction would have
12
provided tremendous value to the shareholders, the company, and Cook herself. But Defendants
13
served the interest of Merck GHI (and not Navigating Cancer) by blocking any serious
14
15 consideration of the acquisition proposal. They did not even make a counteroffer. When a board
16 call was eventually scheduled to discuss the offer, no discussion happened other than a pre-arranged
17 statement that the “price was too low,” indicating that decisions had been made during side
18
conversations outside the board meeting. Defendants declined to consider the offer purely because
19
the potential acquirer was a competitor of Merck’s, and not based on any consideration of the
20
interests of Navigating Cancer and its shareholders. In so doing, Defendants violated their fiduciary
21
duties. Had Defendants pursued the transaction, Cook would have made approximately $10 million
22
23 based on her stock and options in the company.
24 15. Defendants’ discriminatory campaign to push Cook out of the company culminated
25 in July 2020, when she was abruptly terminated in the midst of the Covid-19 pandemic, despite her
26
long track record of exemplary performance in building the company. This caused great hardship
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1 to Cook’s family in which she was serving as the only breadwinner. Adding insult to injury, the
2 company refused to offer Cook any written assurances of her continued board service or additional
3
protections for her accrued stock options. The company, however, repeatedly, both verbally and in
4
writing, promised Cook, the Navigating Cancer employees, and customers that Cook would remain
5
on the board. On September 10, 2020, Navigating Cancer informed Cook that she also was being
6
7 removed from the company’s board. Navigating Cancer also asked Cook to sign a Separation
8 Agreement that condition payment of her already-accrued benefits under the Employment
9 Agreement on her waiving her legal rights in violation of Washington public policy.
10
16. By this action, Cook seeks damages and other relief based on Defendants’ breaches
11
of fiduciary duty and tortious interference with the substantial return on Cook’s stock and options
12
that she otherwise would have realized. Cook also sues to obtain damages incurred as a result of
13
Defendants’ discriminatory conduct and Navigating Cancer’s breaches of their contractual
14
15 obligations and of the implied covenant of good faith and fair dealing. She also sues for Navigating
16 Cancer’s tortious wrongful termination of her in violation of established Washington public policy.
17 The Parties
18
17. Defendant Merck GHI is a wholly owned subsidiary of Merck & Co, Inc., a New
19
Jersey-based public company that is one of the world’s largest pharmaceutical companies. Merck
20
GHI manages venture capital investments made on behalf of Merck.
21
18. Defendant David M. Rubin, Ph.D. is a Managing Director of Merck GHI and is
22
23 Merck GHI’s representative on the Navigating Cancer board of directors.
24 19. Defendant William Bunker is a resident of Mercer Island, Washington and is the
25 current CEO of Navigating Cancer.
26
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1 20. Defendant Navigating Cancer, Inc. is a Delaware Corporation whose headquarters
2 is in Seattle, Washington.
3
Factual Background
4
21. Navigating Cancer is a Seattle-based company that developed a technology platform
5
that improves the lives of cancer patients through enhancing their cancer care. The platform is
6
7 currently used by approximately 20% of providers across the United States and has been proven to
8 enhance the patient experience, improve patient outcomes, and reduce costs through earlier
9 identification of patient issues by reducing emergency room visits and hospitalizations.

10
22. After graduating from the University of Washington and working in healthcare
11
commercialization in oncology for three leading companies, Bristol-Myers Squibb, Oncology
12
Therapeutics Network (OTN) and McKesson, Cook founded Navigating Cancer in 2008.
13
23. Under Cook’s leadership, Navigating Cancer secured over $7 million in venture
14
15 capital funding. Cook also raised an additional $12 million in funding to support the company’s
16 continued growth. Finally, she obtained a $26 million dollar term sheet for the business. In the
17 course of growing the business, Cook hired employees, made important strategic decisions, and
18
grew the company’s revenues. In achieving these goals, Cook built a leading and sustainable
19
business of value that many third-party companies were interested in acquiring.
20
24. Cook also successfully negotiated distribution, innovation, and revenue
21
relationships with some of the leading firms in the healthcare industry, including but not limited to
22
23 Genentech, Merck, McKesson, and Takeda.
24 25. Cook not only led Navigating Cancer through multiple rounds of venture capital
25 funding and secured long-term business relationships with some of the leading firms in the
26
healthcare industry, but she managed the hiring of and responsibilities of more than fifty employees.
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1 While leading the company, Cook managed the company’s growth to almost $10 million in annual
2 revenues and positioned the company for a potential sale that would have delivered enormous value
3
to the company and its shareholders, including Cook herself. For her efforts, Cook was named by
4
the Puget Sound Business Journal as one of twelve local “innovators of the year” for 2020.
5
26. Between 2008 and 2015, Cook managed Navigating Cancer as its CEO and chaired
6
7 its board of directors. Thanks in large part to Cook, the company completed its first two rounds of
8 venture funding and was cash flow positive. Navigating Cancer also established itself as a leader in
9 a new category of healthcare information technology.

10
27. When managing the company, Cook received offers to sell the company. These
11
offers showed enormous promise for the company. Specifically, when the company reached $3
12
million in revenue, it received an offer to purchase it for $50 million. And when it was close to $10
13
million in revenue, Navigating Cancer received an offer to purchase the company for well over
14
15 $100 million.
16 28. Merck GHI was the lead investor in a $12 million Series C venture funding round
17 for Navigating Cancer that was completed in 2015. In conjunction with the completion of that
18
funding round, Merck GHI Managing Director, Defendant David Rubin, joined the Navigating
19
Cancer board as Merck GHI’s representative. Thereafter, on behalf of Merck GHI, Rubin wielded
20
control over the company’s strategic planning, direction, and operations. The control Rubin
21
exercised on behalf of Merck GHI was unlike that exercised by any other financial investor in the
22
23 company.
24 29. Shortly after joining the board, Rubin asked other members of the Navigating
25 Cancer board when they would “get rid of Gena.” Other directors were surprised by Rubin’s
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1 inquiry, as Cook had successfully managed the company to that point, and no one had previously
2 suggested there was any reason to remove her as CEO.
3
30. Thereafter, although Cook remained the CEO, Rubin increasingly exerted control
4
over the company, on behalf of Merck GHI. The company began making key strategic decisions
5
during “executive sessions” of corporate board meetings, which Rubin insisted on, from which
6
7 Cook was excluded. Rubin also questioned strategic initiatives proposed by Cook that were in the
8 best interests of Navigating Cancer and its shareholders, including moving into clinical trials and a
9 potential partnership with McKesson—asserting that those initiatives did not serve Merck’s
10
interests.
11
31. One of Rubin’s pet projects was the Project BOLD initiative. Pursuant to this
12
project, Merck would provide financing and commercial agreements for innovative companies like
13
Navigating Cancer to develop new data products to decrease their reliance on Flatiron data, since
14
15 Flatiron was purchased by Roche, a Merck competitor, for $2.1 billion in early 2018. When this
16 was presented, the Navigating Cancer board of directors thought this was a growth engine for the
17 company and accordingly agreed to replace Cook. Cook and other executives close to the company
18
assets and with deep experience of the market were not in favor of moving the company toward
19
data and expressed their views that Navigating Cancer should not pursue a data strategy.
20
32. In 2017, Cook learned that the Navigating Cancer board—which, apart from Cook
21
was entirely male—was commencing a search for a “non-executive chairman” to assist Cook in
22
23 managing the company. Unbeknownst to Cook, the company was in fact initiating a search for a
24 new CEO to replace Cook. To assist in the search, Rubin strong armed Cook in retaining an
25 executive recruiting firm where he had relationships, so he could have more control of the process.
26
Rubin misrepresented the purpose of the “non-executive chairman” search as a way to build
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1 executive talent within the company. Rubin also disagreed with Cook, who felt that oncology
2 industry experience was important. Without informing Cook of the true nature of the executive
3
search, Rubin assigned Cook to assess and interview the potential candidates, all of whom were
4
male, and none of whom had as much industry-specific experience as Cook.
5
33. Throughout the executive search process, which spanned nearly a year and
6
7 continued through August 2018, the board did not seriously consider any female candidates. Nor
8 did Rubin ever provide Cook with a review or any other explanation for his desire to replace her as
9 CEO, or provide her with any guidance as to how she could improve or change to remain as the
10
company’s CEO.
11
34. In the Summer of 2018, Rubin and the board of directors ultimately directed Cook
12
to hire two of the executive search candidates, William Bunker and Russell Mann, as “strategic
13
consultants” to the company instead of moving forward with a non-executive chairman because the
14
15 company had received a $26 million dollar term sheet from Merck and another strategic partner
16 that needed to be negotiated. The idea was that these individuals would serve as independent
17 consultants who would help Cook and the company manage the company’s next round of venture
18
capital financing and the partnership discussions. Cook understood from Rubin and the Board that
19
after the next round of financing, Mann would become a non-executive chairman and that Bunker
20
would ultimately be hired as COO (not CEO). This understanding turned out to be incorrect.
21
35. After the company’s August 2018 board meeting executive session that Cook was
22
23 excluded from, Navigating Cancer director Tom Unterman—a representative of the Rustic Canyon
24 venture capital firm, which had invested in the company during the early financing rounds managed
25 by Cook—informed Cook that Rubin had told the Board that he would not close the round of
26
financing with Cook as CEO. Unterman reported that Rubin, on behalf of Merck, had indicated that
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1 Merck would not support a further venture capital round unless Cook was replaced. When Cook
2 asked why this was happening, Unterman told her that Rubin had told him he “has always had a
3
different opinion of what a CEO should look like.”
4
36. Several days after the August 2018 board meeting, Unterman informed Cook that
5
she would be permitted to remain as the company’s President, with Bunker replacing her as
6
7 Chairman of the Board and CEO. This demotion was negotiated by Peter Neupert, who Cook had
8 surfaced as a candidate for the non-executive chairman role, and who ultimately joined the board
9 himself at that time while simultaneously serving as a consultant to Merck, which was not known
10
at the time. As part of the demotion, Cook was told that she would be responsible for the company’s
11
commercial and go-to-market initiatives and to work out the details with Bunker. But Bunker never
12
provided any of those details despite Cook’s multiple requests.
13
37. Cook was surprised by Rubin’s decision to name Bunker as CEO in her place, as
14
15 Bunker had less executive experience than Cook and no experience working in oncology or with
16 pharmaceutical companies like those that comprised the bulk of Navigating Cancer’s revenues.
17 Cook asked Rubin why he was replacing her as CEO, and Rubin responded that she had “built a
18
f****** great company,” but that “[s]ometimes you just need to change the players on the baseball
19
field.”
20
38. Following this, Navigating Cancer entered into the October 2018 Offer Letter and
21
Employment Agreement with Cook. This agreement contained a non-compete. Pursuant to this
22
23 agreement, Cook agreed to “resign from [her] CEO seat on the Company’s board of directors” and
24 to be appointed to a “newly created Board seat.” Cook’s new title at the Company would be
25 “President and Founder.” In exchange, as consideration therefore, Navigating Cancer agreed to pay
26
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1 Cook a salary commensurate with Bunker’s, along with continued participation in the company’s
2 bonus program and stock option plan.
3
39. Contrary to representations that Cook would continue to play a significant role in
4
company management in her new President role, Rubin and Bunker proceeded to exclude her from
5
corporate strategy discussions and did not seek her input on strategic matters from late 2018 through
6
7 mid-2020. Bunker and Rubin routinely conferred on strategic matters without including Cook in
8 their discussions or providing Cook with updates regarding the company’s strategic plans. Bunker
9 regularly held strategic planning sessions with other Navigating Cancer executives but excluded
10
Cook from those meetings. Additionally, Bunker removed Cook from all access to all company
11
information including shared drives, accounting and financial software, HR software, and more, as
12
a power play, when there was no business reason to do so.
13
40. Bunker regularly met with company partners and customers with whom Cook had
14
15 developed Navigating Cancer’s business relationships without informing Cook that the meetings
16 were taking place or excluding her when it would be wise to do so given her breadth of experience
17 and relationships. He also held executive strategy sessions (meetings that Cook expected to
18
participate in) without her.
19
41. Before even finalizing her more-limited role, Bunker and Rubin physically isolated
20
Cook within Navigating Cancer and its office space, assigning managers who previously reported
21
to her to other managers and moving employees’ desks that had been near hers to other parts of the
22
23 building.
24 42. Cook repeatedly asked Bunker to make a decision on the scope of her new role
25 within the company and to provide her with some direct reports. She even went so far as to write
26
up various scenarios regarding the scope of her role for him to review and consider. But Bunker
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1 declined to do so. Initially, in the few customer meetings Cook attended, Bunker would refer to
2 Cook as being responsible for “strategic initiatives,” not President. This further diminished her role
3
within the company and conveyed the impression that Cook did not have any specific
4
responsibilities and that she would be leaving the company.
5
43. In later interactions, Bunker told Cook and others that Cook would be responsible
6
7 for “business development” relating to sales—not strategic initiatives. This amounted functionally
8 to a further demotion in title. It also reflected Bunker’s belief that women should not be involved
9 in company strategy.
10
44. Bunker routinely made demeaning comments about Cook, female business partners,
11
and female employees. During conversations about other female managers within the company and
12
its business partners, Bunker several times referred to other talented women as “terrible,” “not very
13
strategic” or “low level” and cut Cook off whenever she questioned his assessment.
14
15 45. Bunker also belittled Cook’s prior accomplishments as CEO, regularly telling
16 employees that the company had been “run as a nonprofit” before he came on board, erasing slides
17 about the company’s achievements during Cook’s tenure as CEO from company presentations, and
18
telling Cook that the company was previously “at the college level” but was now “stepping up to
19
the pros.”
20
46. Bunker would frequently socialize with other male managers, but never sought to
21
socialize with Cook or include Cook in corporate decision making. Cook was not the only female
22
23 excluded by Bunker, who routinely excluded other female executives from board meetings and
24 other strategic company meetings and decisions.

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1 47. Under Rubin and Bunker, Navigating Cancer, the company that Cook had founded
2 and successfully managed for more than a decade, became a boys’ club, with an all-male board
3
comprised of male venture capitalists and their hand-picked male CEO.
4
48. Although Cook remained on the board and was still an officer of the company, she
5
was excluded altogether from the company’s strategic planning and from all decision-making on
6
7 strategic matters. For example, Cook was excluded from the board sessions where company-level
8 strategy was addressed.
9 49. But Cook remained productive despite this adversity. At the time she was
10
terminated, her innovation initiatives, which represented millions of dollars of revenue and were of
11
significant strategic importance to the company, were succeeding despite the hurdles Bunker placed
12
in the way, and Cook was the only one with the expertise to make them succeed. In 2018 and 2019,
13
Cook negotiated a new partnership with McKesson which led to all the provider growth the
14
15 following year and millions of dollars in new recurring annual revenues and several other
16 innovation initiatives. Following this negotiation, Bunker “congratulated” her at a happy hour by
17 giving her a bowling ball award, and telling the company that he had made an exception to give an
18
“executive” an award that was primarily for “employees.” Cook (who, of course, was the founder
19
and was previously the CEO for ten years) reasonably understood this as an attempt by Bunker to
20
minimize her and her role at the company.
21
50. In June 2019, a multi-billion dollar international pharmaceutical company who was
22
23 a competitor to Merck, made an unsolicited initial offer to acquire Navigating Cancer. The offer
24 provided an extraordinary opportunity to sell the company for a price that would have provided fair
25 value to Navigating Cancer and its shareholders. Nonetheless, Rubin, on behalf of Merck GHI, and
26
without any meaningful discussion of the opportunity at the board level, directed Bunker to reject
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1 the offer as too low, not to counter, and not to engage in further discussions with the potential
2 acquiror, without further explanation.
3
51. It is highly likely that engaging in negotiations in response to the pharmaceutical
4
company’s offer would have resulted in a transaction that was fair and in the best interests of
5
Navigating Cancer and its shareholders, including Cook, whose stock and options comprised
6
7 approximately 12% of the company’s outstanding equity interests at the time.
8 52. There was no legitimate business reason, consistent with Navigating Cancer’s own
9 business interests, for choosing not to pursue the acquisition proposal. Doing so instead served the
10
interests of Merck GHI’s parent company, Merck.
11
53. After rejecting the acquisition proposal, Rubin and Merck pursued another round of
12
venture capital funding, completed in September 2019, which raised another $26 million in funding
13
and diluted Cook’s equity interests in the company.
14
15 54. The company initially offered Cook a severance package that would have paid her
16 18 months’ salary, continued her benefits, and provided her with two years to exercise her
17 remaining stock options, with a right to remain on the board, but only if Cook released any potential
18
claim against Defendants.
19
55. The proposed Separation Agreement provided to Cook by Navigating Cancer
20
explicitly stated that “[a]s a condition to the receipt of the benefits set forth in Section 2, Executive
21
shall execute and deliver a general release to the Company in a form substantially similar to that
22
23 attached hereto as Exhibit A.” Exhibit A included a release of Navigating Cancer and its “associates,
24 affiliates, employees,” etc. “of and from any and all manner of action or actions, cause or causes of
25 action, in law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims,
26
demands, damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or
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1 unknown, fixed or contingent . . . , which the undersigned now has or may hereafter have against
2 the Releasees, or any of them, by reason of any matter, cause, or thing whatsoever from the begging
3
of time to the date hereof.” This explicitly included claims relating “in any way arising out of, based
4
upon, or related to the employment or termination of employment of the undersigned by the
5
Releasees,” including discrimination claims.
6
7 56. The proposed Separation Agreement further stated that “[o]n your final day of
8 employment, the Company will pay you for all wages, salary, bonuses, commissions, reimbursable
9 expense, accrued vacation and any similar payments due you from the Company as of your
10
separation from employment.”
11
57. The company ultimately revoked that offer and terminated her employment. On
12
September 10, 2020, the company also informed Cook that she was being removed from its board
13
of directors.
14
15 58. Navigating Cancer attempted to obtain Cook’s resignation as a director by holding
16 hostage benefits entitled to her under the October 2018 Offer Letter and Employment Agreement.
17 It has not paid Cook all of her accrued vacation. It has tried to force Cook to forego her bonus. It
18
has attempted to secure Cook’s resignation by refusing to continue to vest Cook’s options pursuant
19
to that Agreement. It has removed her from the board of directors and conditioned her continued
20
and future service on the board on her accepting her termination as a director of the Company.
21
59. On October 9, 2020 Cook received a Board & Option Update from Navigating
22
23 Cancer stating that they formally removed her as director effective as of October 8, 2020.
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1 FIRST CAUSE OF ACTION
Breach of Fiduciary Duty
2 (Against Merck GHI and Rubin)
3
60. Cook realleges and incorporates by reference paragraphs 1 through 59 as though set
4
forth herein.
5
61. Since investing in Navigating Cancer in 2015, Merck GHI, with Rubin as its
6
7 representative, has acted as a controlling shareholder of the company with more oversight and
8 strong arming than any other investor.
9 62. Merck GHI has had the power to, and in fact has, exercised control over the
10
company’s strategic decision making and day-to-day operations, including in the decision to replace
11
Cook as the CEO of the company and the selection process for naming her replacement, and in
12
deciding not to pursue the opportunity to sell the company when approached with an offer from an
13
international pharmaceutical company in 2019. As a strategic investor with the largest oncology
14
15 drug asset, Rubin exerted his control by indicating that he would not support the company, and in
16 doing so, would hurt the prospects of the business.
17 63. As a controlling shareholder, Merck GHI owes fiduciary duties of loyalty and candor
18
to Navigating Cancer and its shareholders, and Rubin owes the same fiduciary duties as both an
19
agent of Merck GHI and a director of Navigating Cancer.
20
64. By blocking the acquisition opportunity, Rubin and Merck GHI served their own
21
interests, and not those of Navigating Cancer and its shareholders, and thereby breached their
22
23 fiduciary duties of loyalty and candor.
24 65. Absent the actions by Merck GHI and Rubin, the acquisition likely would have been
25 completed, and would have resulted in enormous benefits to the company and its shareholders,
26
including Cook.
27

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1 66. As a result of her equity interests in the company, Cook would have received
2 approximately 12% of the acquisition proceeds.
3
67. As a result of Merck GHI and Rubin’s actions, Cook sustained damages totaling at
4
least $10 million, with the amount to be proven at trial.
5
SECOND CAUSE OF ACTION
6 Tortious Interference with Prospective Economic Advantage
7 (Against All Defendants)
8 68. Cook realleges and incorporates by reference paragraphs 1 through 67 as though set
9 forth herein.
10
69. At all relevant times, Cook owned common stock and options to purchase common
11
stock in Navigating Cancer, and reasonably expected to receive a return on her stock and options
12
in the event of an acquisition.
13
70. Through their wrongful conduct, as alleged herein, Defendants deprived Cook of the
14
15 future economic benefits that she reasonably expected to receive as a result of her role as President
16 of Navigating Cancer and as a result of her common stock and options to purchase common stock
17 in the company.
18
71. As a result of Defendants’ actions, Cook sustained damages in an amount to be
19
proven at trial.
20
THIRD CAUSE OF ACTION
21 Gender Discrimination in Violation of RCW 49.60, et seq.
(Against All Defendants)
22
24 forth herein.
25
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1 73. The Washington Law Against Discrimination (WLAD), Chapter 49.60 RCW,
2 prohibits employers and persons acting directly or indirectly in the interests of employers from
3
discriminating on the basis of sex.
4
74. Defendants, each acting directly or indirectly on behalf of Navigating Cancer,
5
participated a series of adverse employment actions following Cook’s acceptance of her demotion
6
7 to President of Navigating Cancer in 2018, including the decision not to provide Cook with
8 meaningful opportunities to succeed as President, the decision to exclude Cook from strategic
9 decision making and strategic planning at board meetings and among the management team,
10
physically isolating Cook within the company’s offices, and denying her the staff and resources
11
needed to excel in roles to which she had nominally been assigned as President. Defendants
12
ultimately terminated her employment in 2020.
13
75. Cook’s gender was, at least, a substantial factor in Defendants’ decisions not to
14
15 provide Cook with meaningful opportunities while serving as the Navigating Cancer President from
16 September 2018 through July 2020.
17 76. Specifically, direct and circumstantial evidence, including the actions and
18
statements of Bunker and Rubin, on behalf of Merck GHI, show that gender was a substantial factor
19
in these adverse employment decisions. First, Rubin chose to demote Cook as CEO, and to consider
20
only male candidates to replace her as the CEO of Navigating Cancer because he believed she “did
21
not look the part.” Second, Rubin explained his decision to replace Cook as fulfilling a need to
22
23 “change the players on a baseball field.” Third, once Bunker was appointed CEO, Bunker excluded
24 Cook from strategic planning sessions and isolated her within the company while continuing to
25 treat males on the management team relatively well, with Rubin’s support and acquiescence. Other
26
pertinent information is expected to be found in discovery.
27

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1 77. As a result of Defendants’ actions, Cook sustained damages in an amount to be
2 proven at trial. Additionally, under the WLAD, Cook is additionally entitled to recover her
3
reasonable attorneys’ fees and expenses.
4
FOURTH CAUSE OF ACTION
5 Breach of Contract – October 2018 Offer Letter and Employment Agreement
(Against Navigating Cancer)
6
8 forth herein.
9 79. Pursuant to the written October 2018 Offer Letter and Employment Agreement
10
between the parties, Cook agreed to “resign from [her] CEO seat on the Company’s board of
11
directors” and to be appointed to a “newly created Board seat.” Cook’s new title at the Company
12
would be “President and Founder.” In exchange, as consideration therefore, Navigating Cancer
13
agreed to pay Cook a salary commensurate with Bunker’s, along with continued participation in
14
15 the company’s bonus program and stock option plan.
16 80. Specifically, under the employment agreement, Cook would receive a “target bonus
17 potential to earn up to 50% of [her] salary.” She was also told that she would be granted “an option
18
to purchase 1,707,967 shares” equal to 2.5% fully diluted shares of the Company’s Common Stock.
19
81. As part of the stock purchase option, the employment agreement provides that “[i]n
20
the event the Company terminates you without Cause . . . at any time after the effective date of this
21
Agreement, the Change of Control Option [contained in the agreement] will fully vest and become
22
23 exercisable, even if a Change of Control has not yet occurred.” Change of Control was defined as
24 “[a]ny person or entity . . . acquir[ing] a majority of the shares of capital stock of the Company then
25 outstanding in one transaction or a series of related transactions.” It was also defined as a situation
26
in which the Company “consummate[d] a transaction to sell or otherwise transfer all or substantially
27

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1 all of its assets or consummate a transaction to merge, consolidate or reorganize with any other
2 corporation or entity, as a result of which less than a majority of the shares of capital stock or other
3
equity interests of the corporation or entity to which the Company’s assets are sold or transferred
4
or surviving such merger, consolidation or reorganization shall be held by the persons and entities
5
who were holders of capital stock of the Company immediately prior to such agreement.”
6
7 82. The Agreement also noted that Cook would be “entitled to paid time off . . . , as well
8 as company paid holidays.” In addition the Separation Agreement provided to Cook by Navigating
9 Cancer explicitly stated that “[o]n your final day of employment, the Company will pay you for all
10
wages, salary, bonuses, commissions, reimbursable expense, accrued vacation and any similar
11
payments due you from the Company as of your separation from employment.” As of the time of
12
her separation, Cook had accrued 166 hours of vacation. (Cook’s employment allowed her to roll
13
over 2 weeks of vacation from the prior year, which she did, and also provided for five weeks of
14
15 vacation annually.” Cook was unable to take more than a few days of her entitled vacation in 2020
16 due to the Covid-19 pandemic. In sum, Navigating Cancer asked Cook to sign a release stating that
17 the Company had paid her vacation, when they failed to do that.
18
83. Cook fully performed all conditions, covenants, and promises required of her in
19
accordance with the terms and conditions of the October 2018 Employment Agreement. To the
20
degree Cook has not fully performed all conditions, covenants, and promises required of it in
21
accordance with the terms and conditions of the October 2018 Employment Agreement, she has
22
23 been excused from non-performance due to the conduct and non-performance of Navigating
24 Cancer.
25 84. Navigating Cancer breached the October 2018 Employment Agreement by refusing
26
to continue to vest Cook’s options pursuant to that Agreement without Cook accepting her
27

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1 termination as a director. On October 9, 2020 Cook received a Board & Option Update from
2 Navigating Cancer stating that they formally removed her as director effective as of October 8,
3
2020, and made her Change of Control Option fully vested and exercisable. But Navigating Cancer
4
attempted to condition this vesting on Cook resigning as a director, which is impermissible and
5
amounted to a breach.
6
7 85. Navigating Cancer breached the October 2018 Employment Agreement by refusing
8 to pay Cook all of her accrued vacation following her termination.
9 86. Finally, Navigating Cancer breached the October 2018 Employment Agreement by
10
refusing to pay her any bonus for the seven months she worked for the company during 2020, and
11
instead conditioning her receipt of severance benefits under the 2018 Employment Agreement on
12
forfeiting the bonus income she had earned.
13
87. As a direct and proximate result of the breaches of contract by Navigating Cancer,
14
15 Cook has been damaged in an amount to be proven at trial. These breaches have resulted in
16 substantial damages to Cook.
17 88. As a direct and proximate result of the breaches of contract by Navigating Cancer,
18
Cook has also been forced to hire an attorney and pay attorneys’ fees. Cook is entitled to recover
19
these fees under Wash. Rev. Code Ann. §§ 49.48.010 and 49.48.030, which provides for fees in an
20
action for unpaid “wages” where wages means any compensation due to the employee by reason of
21
employment, including here Cook’s unpaid vacation and bonuses.
22
23 FIFTH CAUSE OF ACTION

Breach of Implied Covenant of Good Faith and Fair Dealing – October 2018 Offer Letter
24 and Employment Agreement
(Against Navigating Cancer)
25
27 forth herein.

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1 90. In Washington, every contract contains an implied covenant of good faith and fair
2 dealing, including the Employment Agreement between Cook and Navigating Cancer.
3
91. The covenant of good faith and fair dealing prohibits a party from doing anything to
4
prevent the other party to the contract from receiving the benefits and entitlements of the contract.
5
92. Navigating Cancer breached the covenant of good faith and fair dealing associated
6
7 with the October 2018 Employment Agreement by intentionally misleading Cook through its
8 intentionally conditioning of Cook’s already bargained-for employment benefits on her acceptance
9 of severance and termination from the Company.

10
93. Stated another way, Navigating Cancer attempted to induce Cook to accept
11
resignation of her director position in exchange for consideration already owed to her under the
12
Employment Agreement.
13
94. Cook fully performed all conditions, covenants, and promises required of her in
14
15 accordance with the terms and conditions of the October 2018 Employment Agreement. To the
16 degree Cook has not fully performed all conditions, covenants, and promises required of it in
17 accordance with the terms and conditions of the October 2018 Employment Agreement, she has
18
been excused from non-performance due to the conduct and non-performance of Navigating
19
Cancer.
20
95. As a direct and proximate result of the breaches of the implied covenant of good
21
faith and fair dealing associated with the October 2018 Employment Agreement by Navigating
22
23 Cancer, Cook has been damaged in an amount to be proven at trial. These breaches have resulted
24 in substantial damages to Cook.

25
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1 SIXTH CAUSE OF ACTION
Wrongful Termination in Violation of Public Policy
2 (Against Navigating Cancer)
3
96. Cook realleges and incorporates by reference paragraphs 1 through 95 as though set
4
forth herein.
5
97. In Washington, wrongful discharge in violation of public policy is an intentional
6
7 tort.
8 98. There is a clear public policy in this state preventing companies from terminating
9 employees for refusing to sign a release that is void, unenforceable, and contrary to public policy.
10
99. Wash. Rev. Code Ann. § 49.44.085 renders “void and unenforceable” as “against
11
public policy” any provision of an employment contract or agreement that “requires an employee
12
to waive the employee’s right to publicly pursue a cause of action arising under chapter 49.60 RCW
13
or federal antidiscrimination laws or to publicly file a complaint with the appropriate state or federal
14
15 agencies, or if it requires an employee to resolve claims of discrimination in a dispute resolution
16 process that is confidential.”
17 100. The Separation Agreement that Navigating Cancer asked Cook to sign required her
18
to sign a “General Release.” Specifically, Paragraph 9 of the proposed Separation Agreement stated
19
that “[a]s a condition to the receipt of the benefits set forth in Section 2, Executive shall execute
20
and deliver a general release to the Company in a form substantially similar to that attached hereto
21
as Exhibit A.” Exhibit A included a release of Navigating Cancer and its “associates, affiliates,
22
23 employees,” etc. “of and from any and all manner of action or actions, cause or causes of action, in
24 law or in equity, suits, debts, liens, contracts, agreements, promises, liability, claims, demands,
25 damages, losses, costs, attorneys’ fees or expenses, of any nature whatsoever, known or unknown,
26
fixed or contingent . . . , which the undersigned now has or may hereafter have against the Releasees,
27

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1 or any of them, by reason of any matter, cause, or thing whatsoever from the begging of time to the
2 date hereof.” This explicitly included claims relating “in any way arising out of, based upon, or
3
related to the employment or termination of employment of the undersigned by the Releasees,”
4
including discrimination claims.
5
101. By conditioning payment of Cook’s earned wages, accrued vacation, and stock-
6
7 based compensation on a void release—payments Cook was already entitled under her employment
8 agreement—Navigating Cancer violated Wash. Rev. Code Ann. § 49.44.085. Navigating Cancer
9 further violated Washington public policy by terminating Cook for her refusal to sign the Separation
10
Agreement, an agreement that impermissibly and illegally required her to waive potential
11
discrimination claims in exchange for her already-accrued benefits.
12
102. Cook’s discharge for refusing to sign an illegal and impermissible separation
13
provision in violation of Wash. Rev. Code Ann. § 49.44.085 jeopardizes public policies favoring
14
15 fair contracting between employers and employees.
16 103. Navigating Cancer has not (and cannot) provide any overriding justification for
17 Cook’s termination based on her refusal to sign the separation agreement.

18
104. As a direct and proximate result of Navigating Cancer’s tortious conduct, Cook has
19
been damaged in an amount to be proven at trial.
20
PRAYER FOR RELIEF
21
WHEREFORE Cook demands a trial by jury and prays that she be awarded relief as follows:
22
23 1. Damages in an amount to be proven at trial;
24 2. Reimbursement of reasonable attorneys’ fees, costs, and expenses; and,

25 3. Pre-judgment interest.
26
27

Tel: (206) 516-3880; Fax: (206) 516-3883
1
2 Dated: October 28, 2020.
3 Respectfully Submitted,
4
By: /s/ Jenna Farleigh
5 Stephen Morrissey (WSBA #44710)
Jenna Farleigh (WSBA #47392)
6 SUSMAN GODFREY L.L.P.
1201 Third Avenue, Suite 3800
7 Seattle, WA 98101
smorrissey@susmangodfrey.com
8 jfarleigh@susmangodfrey.com
(206) 516-3880
9
Attorneys for Plaintiff
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1
CERTIFICATE OF SERVICE
2
I hereby certify that on October 28, 2020, I electronically filed the foregoing with the Clerk
3
4 of the Court using the CM/ECF system, which will send notification of such filing to all counsel of
5 record.
7
/s/ Jenna Farleigh
8 Jenna Farleigh
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Gena Cook vs. Merck Et Al

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Gena Cook vs. Merck Et Al

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1

6 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY

8 GENA COOK Case No.

COMPLAINT - 1 SUSMAN GODFREY L.L.P.

17 more than $10 million in damages.

COMPLAINT - 2 SUSMAN GODFREY L.L.P.

15 service healthcare to value-based healthcare.

COMPLAINT - 3 SUSMAN GODFREY L.L.P.

16 service, including severance benefits if Cook was terminated “without cause.”

COMPLAINT - 4 SUSMAN GODFREY L.L.P.

23 based on her stock and options in the company.

COMPLAINT - 5 SUSMAN GODFREY L.L.P.

23 Merck GHI’s representative on the Navigating Cancer board of directors.

COMPLAINT - 6 SUSMAN GODFREY L.L.P.

9 identification of patient issues by reducing emergency room visits and hospitalizations.

23 Genentech, Merck, McKesson, and Takeda.

COMPLAINT - 7 SUSMAN GODFREY L.L.P.

9 a new category of healthcare information technology.

COMPLAINT - 8 SUSMAN GODFREY L.L.P.

COMPLAINT - 9 SUSMAN GODFREY L.L.P.

COMPLAINT - 10 SUSMAN GODFREY L.L.P.

COMPLAINT - 11 SUSMAN GODFREY L.L.P.

COMPLAINT - 12 SUSMAN GODFREY L.L.P.

24 other strategic company meetings and decisions.

COMPLAINT - 13 SUSMAN GODFREY L.L.P.

8 strategy was addressed.

COMPLAINT - 14 SUSMAN GODFREY L.L.P.

7 approximately 12% of the company’s outstanding equity interests at the time.

COMPLAINT - 15 SUSMAN GODFREY L.L.P.

15 58. Navigating Cancer attempted to obtain Cook’s resignation as a director by holding

COMPLAINT - 16 SUSMAN GODFREY L.L.P.

8 strong arming than any other investor.

16 doing so, would hurt the prospects of the business.

23 fiduciary duties of loyalty and candor.

COMPLAINT - 17 SUSMAN GODFREY L.L.P.

COMPLAINT - 18 SUSMAN GODFREY L.L.P.

16 September 2018 through July 2020.

COMPLAINT - 19 SUSMAN GODFREY L.L.P.

15 the company’s bonus program and stock option plan.

COMPLAINT - 20 SUSMAN GODFREY L.L.P.

COMPLAINT - 21 SUSMAN GODFREY L.L.P.

8 to pay Cook all of her accrued vacation following her termination.

16 substantial damages to Cook.

23 FIFTH CAUSE OF ACTION

COMPLAINT - 22 SUSMAN GODFREY L.L.P.

8 intentionally conditioning of Cook’s already bargained-for employment benefits on her acceptance

9 of severance and termination from the Company.

24 in substantial damages to Cook.

COMPLAINT - 23 SUSMAN GODFREY L.L.P.

15 agencies, or if it requires an employee to resolve claims of discrimination in a dispute resolution

16 process that is confidential.”

COMPLAINT - 24 SUSMAN GODFREY L.L.P.

15 fair contracting between employers and employees.

17 Cook’s termination based on her refusal to sign the separation agreement.

23 1. Damages in an amount to be proven at trial;

24 2. Reimbursement of reasonable attorneys’ fees, costs, and expenses; and,

COMPLAINT - 25 SUSMAN GODFREY L.L.P.

2 Dated: October 28, 2020.

COMPLAINT - 26 SUSMAN GODFREY L.L.P.

COMPLAINT - 27 SUSMAN GODFREY L.L.P.

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