A Recipe For an Injunction

A former Bimbo Bakeries executive’s plan to go to work for a competitor turned into a recipe for an injunction.

Chris Botticella, a former vice president of operations for California for Bimbo, decided to take a similar position with Interstate Brands Corporation, a predecessor company to Hostess Brands, Inc. His actions following the decision to become vice president for bakery operations were less than stellar.

In a 35-page order, a federal judge in Pennsylvania found that Botticella’s “conduct before leaving Bimbo, in not disclosing to Bimbo his acceptance of a job offer from a direct competitor, remaining in a position to receive Bimbo’s confidential and trade secret information and, in fact, receiving such information after committing to the Hostess job, and copying Bimbo’s trade secret information from his work laptop onto external storage devices, demonstrates an intent to use Bimbo trade secrets during his intended employment with Hostess.”

The court’s decision noted that Botticella was one of only a few persons who had access to numerous trade secrets and confidential information for Bimbo. He accepted the position with Hostess on October 15 but did not tell Bimbo until January 13. During that time, he continued to have access to confidential and trade secret information but testified that he made an effort not to look at some of the information. However, he “could not explain why, after accidentally deleting some confidential presentations on his computer, he asked for them to be restored,” the court wrote.

On the day he left the company, he accessed 12 confidential files of Bimbo in 13 seconds “which is not consistent with ordinary usage, such as opening and reading or otherwise using a document” but rather is consistent “with copying files to an external device.” During his deposition, he attempted to explain his access to confidential Bimbo documents on his laptop and his use of external storage devices. The court found his “explanations were not credible. Essentially, he maintained that he was simply practicing with his computer to prepare himself for his new job.”

The court found that it was inevitable that he would disclose trade secret and confidential information in his new job. “Based upon the totality of the evidence, we are satisfied that there is a substantial likelihood that Defendant will not be able to perform his duties at Hostess and will not perform those duties without disclosing, whether intentionally or inadvertently, Bimbo’s trade secrets,” the opinion states. “Defendant’s handling of Bimbo’s trade secrets after accepting the Hostess position undermines his trustworthiness with regard to those trade secrets.”

Bimbo Bakeries USA, Inc. v. Botticella, E.D. Penn. No. 10-0194, issued February 9, 2010.