Saturday, March 27, 2010

HR people need to be up to speed on IP issues: Bimbo Bakeries

Human Resource Executive Online has a piece about the lawsuit involving an executive who left Bimbo Bakeries [see prior IPBiz piece Bimbo Bakeries goes after former exec on secrets of Thomas' English Muffins]

The piece is about the HR angle, and what the HR people could have done differently:

[Judge] Surrick also found that Botticella had continued to work for Bimbo for three months after accepting the Hostess post, and that Botticella removed sensitive documents in his final days as a Bimbo employee.

Such evidence "demonstrates an intention to use Bimbo trade secrets during his intended employment with Hostess," Surrick wrote.

The case is unusual because Botticella was not subject to any restrictive covenant. Instead, the judge's injunction is premised entirely on the grounds that Bimbo's trade secrets were threatened.


Attorney Paul Greco of Conrad O'Brien Gellman & Rohn in Philadelphia, who regularly litigates trade secret and restrictive-covenant cases, says he would have advised Hostess to speed up the hiring process.

"If you look at the numerous factors that seemed to bother the judge, I think the length of time between his accepting the job and starting -- nearly three months -- was a critical factor," Greco says.

Greco notes that, during his final months at Bimbo, Botticella continued to attend strategy meetings in which top Bimbo executives discussed sensitive issues such as product-launch dates and pricing strategies.

In court papers, Botticella's lawyers argued that, after he was offered the Hostess job in mid-October 2009, he kept his post at Bimbo to ensure he received his annual bonus.

But Greco says the litigation is likely to prove more costly and could possibly have been avoided if Hostess had offered to cover any loss of bonus.


One option that can avoid a host of potential problems, Greco says, is to negotiate a "garden leave" agreement, meaning a period of time in which the worker who is switching firms will be on a paid leave.

If the former and future employers can agree on a time frame for such a leave, it's possible to avoid going to court at all, he says.

Greco also says that the recruiting company would be wise to put in writing explicit instructions to the employee about honoring all trade secret issues, and to take extra steps to reassure the worker's former organization.

"I always say: don't take anything with you and remember to return everything. Employees often have items at home that they may have received years earlier. Returning those things is one way to show good faith," Greco says.

**In passing, of venue issues, U.S. Judge R. Barclay Surrick is in Philadelphia.


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