ALI-ABA Topical Courses Trade Secrets From the ... - ALI CLE

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50571774 (E.D. Pa. Feb. 9, 2010). The issue on appeal iswhether the District Court erred in enjoining appellant ChrisBotticella, formerly a senior executive at appellee BimboBakeries USA, Inc. (“Bimbo”), from working for one ofBimbo’s competitors until after the Court resolved the meritsof Bimbo’s misappropriation of trade secrets claim againstBotticella. The Court intended that the preliminary injunctionwould last for about two months until the trial but, because ofthis appeal and a stay of the District Court proceedingsfollowing the filing of this appeal, the preliminary injunctionhas remained in effect. For the reasons we set forth below,we will affirm the order of the District Court.II. BACKGROUNDA. Botticella’s Employment at BimboBimbo, a Delaware corporation with its principal placeof business in Pennsylvania, is one of the four largestcompanies in the United States baking industry. Bimbo andits affiliates produce and distribute baked goods throughoutthe country under a number of popular brand names includingThomas’, Entenmann’s, Arnold, Oroweat, Mrs. Baird’s,Stroehmann, and Boboli. Botticella, a California resident,who already had experience in the baking industry, beganworking for Bimbo in 2001 and was, until January 13, 2010,its Vice President of Operations for California. In thatposition in which Botticella earned an annual salary of$250,000, he was directly responsible for five productionfacilities and oversaw a variety of areas including product3
51quality and cost, labor issues, and new product development.In addition Botticella worked closely with Bimbo’s sales staffon sales promotion and capacity planning, and also wasresponsible for overseeing the operations of “co-packers” inhis region, i.e., third-party manufacturers under contract withBimbo.As one of Bimbo’s senior executives, Botticella hadaccess to and acquired a broad range of confidentialinformation about Bimbo, its products, and its businessstrategy. For example, he was one of a select group ofindividuals with access to the code books containing theformulas and process parameters for all of Bimbo’s products.He also regularly attended high-level meetings with other topBimbo executives to discuss the company’s national businessstrategy. Significantly, as Bimbo repeatedly has notedthroughout these proceedings, Botticella was one of onlyseven people who possessed all of the knowledge necessary toreplicate independently Bimbo’s popular line of Thomas’English Muffins, including the secret behind the muffins’unique “nooks and crannies” texture. Thomas’ EnglishMuffins is the source of approximately half a billion dollarsworth of Bimbo’s annual sales income.While employed at Bimbo, Botticella signed a“Confidentiality, Non-Solicitation and Invention AssignmentAgreement” with Bimbo on March 13, 2009, in which heagreed not to compete directly with Bimbo during the term ofhis employment, not to use or disclose any of Bimbo’sconfidential or proprietary information during or after theterm of his employment with Bimbo, and, upon ceasingemployment by Bimbo, to return every document he received4
Page 1 and 2: 47ALI-ABA Topical CoursesTrade Secr
Page 3: 49Michael L. Banks (argued)Morgan,
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 and 26: 71hired to provide information he o
Page 27 and 28: 73would be “virtually impossible
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:
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