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72Putting aside the fact that Botticella had access to andacquired confidential information of a technical nature aboutthe formulas and ingredients for a variety of Bimbo products,he also had access to and acquired confidential informationabout Bimbo’s long term strategies, operating costs, andcustomer negotiations. Botticella does not dispute that thesetypes of information qualify as trade secrets under10Pennsylvania law. See Air Prods., 442 A.2d at 1121-22.Accordingly, the District Court had discretion to enjoinBotticella from working at Hostess to the extent this proposedemployment threatened to lead to the misappropriation ofthese trade secrets.3. The District Court Applied the CorrectStandardBotticella next argues that an injunction againstemployment can issue under Pennsylvania law only when it10By contrast, in Iron Age the Superior Court found that therelevant information in that case did not even qualify as a tradesecret. 880 A.2d at 664-65. Hence, there was no threat that thedefendant’s change in employment would cause him tomisappropriate a trade secret. Likewise, the court in Oberg didnot find any threat that trade secrets would be misappropriated,although its reasoning underlying that conclusion was notparticularly clear. See 555 A.2d at 1327 (“Finney’s position inthe company and the knowledge he obtained while in thatposition do not demonstrate an inevitability of disclosure as thatfound in Air Products which would require the issuance of aninjunction in this case.”).25
73would be “virtually impossible” for an employee to fulfill hisresponsibilities for a new employer without disclosing aformer employer’s trade secrets. Appellant’s br. at 23.Accordingly, Botticella contends that the District Court erredas a matter of law when it granted Bimbo an injunction on thebasis that Botticella’s employment with Hostess would lead toa “sufficient likelihood or substantial threat of disclosure of atrade secret,” a lesser showing than it would have been“virtually impossible” to avoid the disclosure of trade secretsduring Botticella’s employment at Hostess. Appellant’s br. at22. Notwithstanding dictum to the contrary in one of our ownrecent opinions, see Victaulic, 499 F.3d at 234, we concludethat the District Court applied the correct standard.The trial court in Air Products enjoined the defendantfrom working in on-site gas sales at his new employerbecause it concluded it would be impossible for the defendantto work in that field without disclosing his former employer’strade secrets. 442 A.2d at 1122. On appeal the SuperiorCourt affirmed, but noted it was “not adopt[ing] the reasoningof the trial court or its use of the term inevitable.” Id. at 1124.The Superior Court subsequently has stated that “[t]he properinquiry” in determining whether to grant an injunction toprevent the threatened disclosure of trade secrets is “whetherthere is sufficient likelihood, or substantial threat” of a11defendant disclosing trade secrets. Den-Tal-Ez, 566 A.2d at11While the threat of trade secret disclosure in Den-Tal-Ez arosefrom a proposed merger between two companies and not froman employee leaving one company to work for another, there isno indication that the Superior Court’s discussion of the relevant26
Page 1 and 2: 47ALI-ABA Topical CoursesTrade Secr
Page 3 and 4: 49Michael L. Banks (argued)Morgan,
Page 5 and 6: 51quality and cost, labor issues, a
Page 7 and 8: 53continued working for Bimbo notwi
Page 9 and 10: 55to work for a competitor. Moreove
Page 11 and 12: 57Following Botticella’s departur
Page 13 and 14: 59D. Procedural HistoryAfter Bottic
Page 15 and 16: 61consequently, also is the primary
Page 17 and 18: 63a. Information in Bimbo’s code
Page 19 and 20: 651. Air Products and Inevitable Di
Page 21 and 22: 67sale of on-site gas during his em
Page 23 and 24: 69regardless of those secrets’ te
Page 25: 71hired to provide information he o
Page 29 and 30: 75preliminary injunction on its tra
Page 31 and 32: 77The Superior Court subsequently s
Page 33 and 34: 79have rested on its interpretation
Page 35 and 36: 815. Adverse Inference Based on Bot
Page 37 and 38: 83needed in the interim to protect
Page 39 and 40: 85which he or she is best suited.
Page 41 and 42: 87IN THE UNITED STATES DISTRICT COU
Page 43 and 44: 89made in their Rule 56.1 statement
Page 45 and 46: 91during Maremont’s absence, a gu
Page 47 and 48: 931125(a)(1)(A). As the Seventh Cir
Page 49 and 50: 95damages based on their representa
Page 51 and 52: 97Therefore, the Court denies both
Page 53 and 54: 99judgment as to Count III of the S
Page 55 and 56: 101CONCLUSIONFor the these reasons,
Page 57 and 58: Case3:11-cv-03474-MEJ Document28 Fi
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Pure Power Boot Camp v. Warrior Fit
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Faiveley Transport Malmo AB v. Wabt
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139Sasqua Group, Inc. v. Courtney,
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