Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

Last week, we posted about confidentiality agreements, referencing a recent case involving English muffins.

Now hot dogs are the hot topic.

The American Academy of Pediatrics released a policy statement this month, reporting that hot dogs cause about 17 percent of food-related asphyxiations in children. The Academy is proposing that hot dogs be redesigned to prevent choking.

For those caregivers who do not cut their children’s food into safe-sized pieces, or heed choking warnings, this is a life-saving solution. However, according to Eric Hummel of Hummel Brothers Meat Products in New Haven, Connecticut, “it would be virtually impossible to make [a hot dog] in really any other shape.” If it could have been done, it probably would have by now.

But if a food scientist did discover how to bypass the grinding-emulsifier-casing process, the new design would undoubtedly involve confidential, proprietary information. Yes, anyone can try to duplicate a new shape. But the process for producing the shape could be proprietary and subject to confidentiality agreements or to other protections for intellectual property.

In the meantime, Mr. Hummel recommends that families with young children purchase skinless hot dogs in the thinnest form.

There are other solutions for small children: alternative foods like eggs, sliced turkey, whole grains…. But, being lawyers and not dietitians, we have to leave the matter to individual adults to decide, including those who "relish" their hot dogs.

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One of America’s most closely guarded secrets sits in an undisclosed location in Louisville, locked away in a safe. Very few people know its location, let alone the information contained in that vault. The select few who do know are obligated to strict confidentiality by contract. The information contained therein are not military codes or emergency instructions. It’s Colonel Harland Sanders’ secret formula for his Kentucky Fried Chicken.

A recent Law.com post reported the case of Bimbo Bakeries USA Inc. v. Botticella. Mr. Botticella was one of a handful of executives who knew the secret “nooks and crannies” formula for Thomas’ English Muffins. Botticella had surreptitiously accepted a position at rival Hostess. Bimbo Bakeries (the company that makes the muffins) successfully sought an injunction to block Botticella from joining Hostess and possibly exposing their trade secrets.

In our practice, we frequently get asked about non-compete and non-disclosure agreements. Often a client will ask: Why me? Some employees can’t believe that they acquired any knowledge so critical to their employer that it justifies stringent intellectual property restrictions . Well the answer is: There are plenty of things can be highly confidential and proprietary, even the nooks and crannies of a muffin or the recipe for the coating on fried chicken. More commonly, the concern is about customer lists, unique methodologies or technical information.

Frank Steinberg of the New Jersey Employment Law Blog explains inevitable disclosure as a doctrine of trade secret law that proceeds from the premise that an ex-employee of one company who knows trade secrets, and takes a job with a competitor, simply will not will not be able to keep his mouth shut in his new job.

Dan Schwartz of the Connecticut Employment Blog commented on the muffin case with both humor and insight. He notes that the judge concluded, in the case of Mr. Botticella, that the disclosure of trade secrets would be inevitable.  Dan suggests that employers who seek to use the doctrine of “inevitable disclosure” should realize the limits of the doctrine, and use it carefully and sparingly.

All these gentlemen should be on the lookout for Todd Wilbur. The former journalist has a website and series of success books called “Top Secret Recipes: creating original clone recipes of America’s Favorite Foods.” We don’t know whether he found out the true secrets or did some “reverse engineering” in order to get close. Can you tell?
 

photo courtesy Wikimedia

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