A quick follow-up on the last post (Inevitable Disclosure: Bimbo Sues Muffin Man): “In his 37-page opinion in Bimbo Bakeries USA Inc. v. Botticella, U.S. District Judge R. Barclay Surrick granted a preliminary injunction, ruling that Chris Botticella, a former senior vice president at Bimbo, cannot start to work for Hostess Inc. because his extensive knowledge of Bimbo’s trade secrets makes it substantially likely, if not inevitable, that he would disclose Bimbo’s secrets to Hostess.” Read the rest on Law.com.
And here is a copy of the District Court’s Findings of Fact and Conclusions of Law upon which the court granted injunctive relief. (I plan to comment further when time permits.)
Here’s an article about an inevitable disclosure case recently filed in federal court in Pennsylvania. Bimbo Bakeries sued a former manager at one of its english muffins facilities, saying “he is one of fewer than 10 people in the world who know how to make the muffins with the special ‘nooks and crannies.'” To prevent disclosure of its trade secrets, Bimbo asked a judge to keep the former manager from working for a competitor. Although, he had not even signed a noncompete. Read the rest of the article on Law.com.
Conceptually, there is something disturbing about creating a rule out of thin air that an employer loading its information onto my hard drive means that the employer owns my hard drive. Why not the other way around? And of course, the hard drive in this case is really someone’s brain. The inevitable disclosure meme has not reached pandemic levels just yet but it threatens to take your brain from you. (See previous post for introduction.) However, to understand how the common law has evolved to the point that it is a question as to who owns your brain, it is important to understand the environment in which inevitable disclosure first appeared. The first case to rely on the inevitable disclosure doctrine was PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995), which is discussed below. Continue reading
The history of non-competes reveals a long standing hostility to agreements that prohibit competition and freedom, which for hundreds of years resulted in zero-tolerance for non-compete agreements. When the common law finally evolved to permit limited enforcement of restrictive covenants, it is not surprising that a competing freedom, the “freedom of contract,” was the justification. Sometimes coined “liberty of contract”, this principle recognizes the freedom of people to enter into agreements with others and to have those agreements enforced.
That was then…. Continue reading