Nooks and crannies and Twinkies don’t go together, at least not just yet.
A federal appeals court has upheld an injunction blocking one of only seven people who know the recipe for Thomas’ English Muffins from jumping to a rival.
Tuesday’s ruling by the U.S. 3rd Circuit Court of Appeals in Philadelphia lets Grupo Bimbo SAB, a Mexican food company that owns the Thomas’ brand, continue blocking Chris Botticella from jumping to rival Hostess Brands Inc.
The court returned the case to U.S. District Judge R. Barclay Surrick, who may consider whether to let Botticella join privately held Hostess or permanently block such a move.
Elizabeth Ainslie, a lawyer for Botticella, did not immediately return a call Wednesday seeking comment.
Known for being crunchy on the outside and soft in the middle, Thomas’ English Muffins generate about $500 million of sales a year, court records show.
Hostess’ products include: Twinkies, Drake’s Yodels and Wonder Bread.
While the Irving, Texas-based company does not make English muffins, Bimbo argued that it could learn how from Botticella, who knows the recipe and critical details on the baking process.
“Botticella could produce an English muffin that might look a bit different, but that would nevertheless possess the distinctive taste, texture and flavor character” distinguishing Thomas’ muffins, Bimbo said in its Jan. 15, 2010 complaint.
Bimbo also said Botticella, a vice president of operations, was bound by a confidentiality agreement with the company.
In February, Surrick temporarily blocked Botticella from changing employers, citing the potential for Bimbo to suffer “irreparable harm,” including a loss of market share.
On appeal, Circuit Judge Morton Greenberg wrote for a unanimous three-judge panel that courts can bar workers from changing employers if the facts “demonstrate a substantial threat” that trade secrets will be misappropriated.
“The public interest in preventing the misappropriation of Bimbo’s trade secrets outweighs the temporary restriction on Botticella’s choice of employment,” Greenberg wrote in a 38-page opinion.
Greenberg added that there was a “solid evidentiary basis” to believe Botticella would use Bimbo’s trade secrets at Hostess, including his failure to disclose his new job to Bimbo, and his copying of trade secret information from his laptop computer onto external devices.
Botticella had argued that his confidentiality agreement with Bimbo applied only during his employment with the company, not afterward. He also said he waited until January to make the move so he could get his 2009 bonus and accepted a 20 percent salary cut to $200,000 from $250,000 to change employers.
Bimbo’s other baked goods include Entenmann’s, Arnold Bread and Boboli.
The case is Bimbo Bakeries USA Inc. v. Botticella, U.S. 3rd Circuit Court of Appeals, No. 10-1510.
That there is a secret to making a better muffin than theirs is a fantasy that THOMAS uses as part of their marketing of an aging product that rakes in huge profits primarily because of the low cost of their ingredients and huge relative price.
The gentleman in this case made a lot of mistakes including possibly attempting to compromise the THOMAS (english muffin) mystique. Any decent baker or housewife at home in her regular kitchen could produce a far superior product and then be able to offer to for sale and THOMAS would go after her if they could find anything that resembled theirs. They have convinced the public and the courts that they have a real secret and because people don’t know and just listen to what the media presents to them the mystique lives on. Seven people know the secret is absolute nonsense. Someone please determine if there is, in fact, a secret, I think there is NOT!
The courts, however, should look a little further and try to get a grasp on the technology of making a muffin with improved nooks and crannies that THOMAS lauds as being such a secret. They hold no secret and it has been proved before but they usually prevail because they are willing to spend massively and the courts cower to the secret argument.
In the mid early 1980’s two former THOMAS managers produced a far superior muffin using none of their technology or so called secrets for a cake baker who was not a THOMAS competitor. THOMAS sued them and the bakery for an unbelievable and unfathomable amount but did not prevail but rather merely settled.
Again I remind any housewife or out of work tinkerer that there is no secret to making a great english muffin and there is a good market just waiting for you. The problem that you will have is getting the deep pockets necessary to sell them.
People and judges do a little homework before rendering on such a basic subject without doing some research as the the claims of a name simply because of that, their claims.
The THOMAS secret mystique is a facade designed to prop up a product in the final stages of the life cycle. Unfortunately it will continue to be effective as long as there are no substantial challenges.
If you can’t figure that out for yourself just look at how many times the company and secret(sic) have changed hands in recent years.
Make your own and sell them at a corner lemonade-like stand. You’d be amazed at how inexpensively you can produce them on a hot plate. Your muffins will sell but can you prevail in court? GOOD LUCK!