Speaker 1: Pushkin.
Speaker 2: Today on the show, I'm sharing part one of a
Speaker 2: two part investigation of Thomas's English Muffins, Nooks and Crannies,
Speaker 2: the baking secret at the heart of an influential trade
Speaker 2: secrecy case that I think is a canary in the
Speaker 2: coal mine, a weavil in the flower, signifying a dark
Speaker 2: future for all of us. You can listen to Revisionist
Speaker 2: History wherever you get your podcasts. Thanks for listening.
Speaker 3: Hell, let's take a little bite here. One morning, not
Speaker 3: long ago, my colleague Bend the daf Haffrey and I
Speaker 3: huddled in a small backroom at Pushkin Industries to solve
Speaker 3: a mystery.
Speaker 2: It like hits the back of your palette. There's like
Speaker 2: a outfunk to it, you know what I mean.
Speaker 3: Through the glass wall of the room, we could see
Speaker 3: our fellow Pushkin nights working on various prosaic podcasts and
Speaker 3: audiobooks while we alone wrestled with an eternal question involving
Speaker 3: toasted bread. Just from a sensory perspective, there's a lot
Speaker 3: of crunch listen. Also, not forget its size. Yes, because
Speaker 3: there's aulmle It's palpable. Breakfast is the meal you make
Speaker 3: when you're barely conscious. So the breakfast table is a
Speaker 3: super bowl for food companies. Lunch is eating out, Dinner,
Speaker 3: if you're lucky, is prepared from scratch. But think about breakfast.
Speaker 3: All the day lies before you and you are in
Speaker 3: need of sustenance. You want something wholesome but crucially easy.
Speaker 3: A little ready made breakfast foods become lifelong habits. Brands
Speaker 3: fight tooth and nail for a prime spot at that table.
Speaker 3: Many have fought valiantly Jerio's, Lucky Charms, pop tarts, rice crispies.
Speaker 3: But there's only one breakfast item legendary enough that when
Speaker 3: I take a bite, suddenly I remember from my childhood. Also,
Speaker 3: how my father felt about cutting the cross off bread.
Speaker 3: I think he I think he viewed that as a
Speaker 3: kind of a sign of a is it a kind
Speaker 3: of inn, a feat move, a side of moral weeks
Speaker 3: moral and sort of a lack of real kind of
Speaker 3: fiber when it came to eating your foot or Ben
Speaker 3: takes a bite and suddenly he's off for the millions
Speaker 3: of time about.
Speaker 2: Proost, it does have that kind of like Pristian association
Speaker 2: thing like it tastes like this, I remember this taste, Yes,
Speaker 2: when I have this, it like it does take me back,
Speaker 2: like I am seeing my family's kitchen where we would
Speaker 2: eat breakfast, and like the big spread.
Speaker 3: Our breakfast mystery comes in packages of six, but they
Speaker 3: cannot be eaten right out of the box. Each item
Speaker 3: inside must be split in two, then toasted, then buttered
Speaker 3: for the magic to work. And oh, the magic works.
Speaker 3: I'm talking, of course, about Thomas's English Muffins, the most
Speaker 3: iconic breakfast bread of all time.
Speaker 2: And for that reason it is nearly a half a
Speaker 2: billion dollars a year in sales product. It is the
Speaker 2: sinequon on of bread products, baked goods. Yeah, the champ undisputed.
Speaker 3: What sets that Thomas's English Muffin apart from all the others?
Speaker 3: It says right there on the package, Nooks and Cranny's.
Speaker 3: The recipe for Thomas's English Muffin has been one of
Speaker 3: the most closely held trade secrets there is, until allegedly
Speaker 3: one baking executive tried to make off with the family jewels.
Speaker 3: I'm Malcolm Glawell. You're listening to Revisionist History, my show
Speaker 3: about things Overlooked and Misunderstood. Today on the show, Ben
Speaker 3: and Alf Haffrey peers into the nooks and crannies of
Speaker 3: one of the greatest legal cases you've never heard of.
Speaker 3: It's a big story, this Muffin case. Today we're getting
Speaker 3: part one. Here's Ben.
Speaker 2: I once hired a lawyer who dreams about suing people.
Speaker 2: He told me this on a call once. I asked
Speaker 2: for proof, and he showed me a video of himself asleep,
Speaker 2: very clearly muttering I'll sue you, and something to the
Speaker 2: effect of you're going to jail. There were some swears
Speaker 2: in there too. My first thought was, this man is
Speaker 2: the best lawyer I'll ever have. Second thought, I better
Speaker 2: pay him quickly. We were going over an employment contract.
Speaker 2: We got to the part about intellectual property, and I
Speaker 2: thought the degree to which an employer could punish you
Speaker 2: if you ever divulged one of their trade secrets seemed
Speaker 2: a little crazy, to which my lawyer replied, well, it
Speaker 2: stuck some crannies, and even recognizing I was paying by
Speaker 2: the second, I was like, what did you just say?
Speaker 4: Why have so many of you switched from toast at
Speaker 4: Thomas's English.
Speaker 1: Muffin Definitely the granny. It was the.
Speaker 2: Nooks, the key to English muffin. Supremacy comes down to
Speaker 2: the balance of nooks which catch and pool the melted
Speaker 2: butter and the thin, crisp walls of the crannies. But
Speaker 2: somehow nooks and crannies are now lawyer shorthand for trade secret.
Speaker 4: Why Thomas's the nooks and Cranny's muffin making breakfast better?
Speaker 5: For over one hundred years.
Speaker 2: In eighteen seventy four, a baker named Samuel Bath Thomas
Speaker 2: left England for the United States. Little is known about
Speaker 2: his life before he lands in New York, but he
Speaker 2: arrived with the recipe in his pocket for what typically
Speaker 2: would be called Welsh muffins or crumpets. He cooked them
Speaker 2: on a griddle so they'd be crisp on the outside
Speaker 2: and dowey yet pockmarked in the inside. In a way
Speaker 2: few other breads were Thomas's. Nooks and Crannies took New
Speaker 2: York by storm, demands skyrocketed. He opened another bakery, then
Speaker 2: it became a corporation. Eventually the words nooks and crannies
Speaker 2: became a registered trademark of Thomas's English muffins. You will
Speaker 2: note if you look at the bakery shells at your
Speaker 2: local grocery store that other English muffin brands live in
Speaker 2: fear of this fact. Dave's Killer Bread boasts of butter
Speaker 2: catching flavor craters. Trader Joe's has pockets and crevices. Bays
Speaker 2: has raised the white flag and left the field entirely
Speaker 2: with a claim about packaging now resealable, because all of
Speaker 2: them know better than to cross the entity that now
Speaker 2: owns Thomas's Group O Bimbo.
Speaker 6: Did you know that your bread is owned by Mexico.
Speaker 6: CNBC's Michelle Ruzcoberra caught up with the nation's largest bakery,
Speaker 6: Group of Bimbo.
Speaker 2: GROUPO Bimbo International Baking Conglomerate.
Speaker 6: Entemens owned by a Mexican bread company, Sarah Lee bought
Speaker 6: by a Mexican bread company. Group of Bimbo is just
Speaker 6: the biggest baker in the United States. It is the
Speaker 6: biggest baker in the entire world.
Speaker 2: Bimbo is everywhere. They've taken over half the bread brands
Speaker 2: you've heard of in fifty percent of the rest. They've
Speaker 2: swept through the US, acquiring one bakery after another.
Speaker 6: It's the first bakery with a big national footprint, and
Speaker 6: they plan to be global.
Speaker 2: No one stands in the way of groupo Bimbo, and
Speaker 2: in two thousand and nine, at the height of their powers,
Speaker 2: they acquired the holy grail of baked goods, the Nooks
Speaker 2: and Crannies.
Speaker 6: Thomas's English Muffins, owned by a Mexican bread company.
Speaker 2: The secret recipe for Nooks and Crannies brought in about
Speaker 2: half a billion dollars in annual revenue to Group of Bimbo.
Speaker 2: But then, according to Bimbo, someone tried to steal it.
Speaker 2: Can you just tell me the basic facts of the case.
Speaker 7: Well, in this case, I guess we can go through it.
Speaker 2: I'm speaking with Louis del Judice, partner at the major
Speaker 2: law firm Troutman Pepperlock, in a conference room high above Manhattan.
Speaker 2: This is where my lawyer sent me when I asked
Speaker 2: about cranny law. Louis is an expert in intellectual property.
Speaker 2: He says a lot of people come to him to
Speaker 2: determine if they have their own trade secrets, and he
Speaker 2: tells them, sit down, my friends, and let me teach
Speaker 2: you the lessons of the muffin.
Speaker 7: Do you know with one of the best kept trade secrets?
Speaker 4: And everybody thinks coke, And I'm like, well, Thomas's English muffins,
Speaker 4: which we've all grown up on. There's only ten people
Speaker 4: in the world that know how to make it Thomas's
Speaker 4: English muffin, and people go.
Speaker 2: What, Actually, it's fewer than ten, but we'll get to that.
Speaker 2: Trade secrets are one of the pillars of IP protection
Speaker 2: in the United States, along with patents, trademarks, and copyright.
Speaker 2: But unlike the others, a trade secret never expires, and
Speaker 2: the muffin case is one of the best examples of
Speaker 2: a trade secret's power and how to protect it. Louis
Speaker 2: was not involved in the case directly, but he studied
Speaker 2: it at length. In any telling, he begins by introducing
Speaker 2: the defendant, a former Group of Bimbo employee named Chris Boticella.
Speaker 7: Executive officer.
Speaker 4: He's in charge of the entire West Coast, United States,
Speaker 4: and he's privyed all this information, all the recipe books,
Speaker 4: and all of his other financial information and efficiencies. He
Speaker 4: has to sign a non disclosure agreement, but that non
Speaker 4: disclosure agreement is only well he's employed.
Speaker 2: It's twenty ten, the year after Group of Bambo acquired Thomas's.
Speaker 2: According to documents presented in court, the information required to
Speaker 2: produce a Thomas's English muffin is known by only seven
Speaker 2: people at the company. It's kept in secret codebooks that
Speaker 2: only a few people have access to. Botachella, as a
Speaker 2: senior executive, is one of those people. He oversees a
Speaker 2: facility in Placentia, California, where the muffins are made. He's
Speaker 2: been in the industry since he was sixteen and has
Speaker 2: risen through the ranks through sheer skill till finally he's
Speaker 2: reached the pinnacle. Bimbo Bakery's executive of almost a decade,
Speaker 2: but lately Chris has been unhappy.
Speaker 4: He had said that they had done some cost cutting
Speaker 4: and some head cutting, so that sort of left the
Speaker 4: bad taste in his mouth. It sounded like from the
Speaker 4: one email that's attached to the complaint that maybe had
Speaker 4: a little bit of a friction with his manager, you know,
Speaker 4: the guy above him. He's just like, you know, there's
Speaker 4: a line that literally says, you know, you and I
Speaker 4: may not have owecny to I, but we've always known
Speaker 4: what was best for the company. So when you read that,
Speaker 4: you know, that's a polite way of saying you and
Speaker 4: I used to fight a lot.
Speaker 2: Chris gets a job offer at hostis famed owner of Twinkies,
Speaker 2: one of Beambo's only competitors, but just barely. Hostess had
Speaker 2: just gone through bankruptcy. Hostess was a possible target for
Speaker 2: BAMBO acquisition, but then Bimbo would have owned almost every
Speaker 2: baked good on the planet, and at that point, where's
Speaker 2: the fun. Chris probably knew that group of Bimbo wasn't
Speaker 2: going to be thrilled about the Hostess of it all,
Speaker 2: but he wants to get his year end bonus. He
Speaker 2: doesn't leave right away, so.
Speaker 4: Now he's sitting all through Q four at his role
Speaker 4: with Thomas's getting all the Q four information, all the
Speaker 4: look FOWD information for the next year, all the financials
Speaker 4: on top of all the other knowledge he had.
Speaker 2: Chris signs with Hostess in October. His start date is January.
Speaker 2: The weeks stick by, Chris finally announces he's leaving Bimbo,
Speaker 2: but he doesn't say he's going to a new job.
Speaker 2: Given his long tenure, his colleagues probably assume he's retiring.
Speaker 2: According to court documents, he asks about how to enroll
Speaker 2: in health coverage.
Speaker 4: Oh, I need cobra, meaning like that's code word for
Speaker 4: like I'm going to retire almost right.
Speaker 2: But then Hostess puts out a press release they helped
Speaker 2: find out about Hostess press release that he's going to
Speaker 2: work in the next two days for Hostess, and Bimbo's like,
Speaker 2: oh shit.
Speaker 4: We've got this seventy five year old plus secret of
Speaker 4: how to bake Thomas's English Muffins as a half a
Speaker 4: billion dollar product and he knows it.
Speaker 2: Does Hostess have English muffin?
Speaker 1: Not yet?
Speaker 4: Fuck.
Speaker 7: HR calls Chris, No, no, you weren't retiring. You were
Speaker 7: going to the hated competitor.
Speaker 1: This is bad.
Speaker 2: HR says, get out.
Speaker 1: Now.
Speaker 4: He got to a certain point where he knew too
Speaker 4: much and now he's iced out.
Speaker 2: Chris is walked out of the building. He has no
Speaker 2: idea what's coming for him, least of all that he's
Speaker 2: about to be swallowed up by the nooks and Grannies.
Speaker 2: We'll be right back. We're going to return to the
Speaker 2: nooks and Grannies, I promise, But first we have to
Speaker 2: talk about Willy Wonka.
Speaker 8: So I'll start by saying that one of my favorite
Speaker 8: books as a kid was Roal Dahl's Charlie on the
Speaker 8: Chocolate Factory.
Speaker 2: Genie c Fromer is a weis dean at the New
Speaker 2: York University Law School. She's also the Walter J. Deurrenberg
Speaker 2: Professor of Intellectual Property Law and the scholar of Charlie
Speaker 2: and the Chocolate Factory.
Speaker 8: When my kids were young, I was rereading the book
Speaker 8: to them, and I was struck, now that I was
Speaker 8: working in intellectual property, by how much of the story
Speaker 8: was actually driven by trade secrets, in that Willy Wonka
Speaker 8: had had to shut down his factory because all of
Speaker 8: his competitors were sneaking in spies to work there so
Speaker 8: they could steal his amazing candy innovations, and he couldn't
Speaker 8: tolerate it as a business matter anymore, so he shut down.
Speaker 2: For those in need of a refresher. In the book,
Speaker 2: Wonka's factory has started back up, but nobody understands how.
Speaker 2: Nobody ever goes in, nobody ever comes out. This is
Speaker 2: why it's so exciting when Charlie gets the golden ticket
Speaker 2: to go see the inside of the factory. Nobody sees
Speaker 2: the inside of the factory.
Speaker 8: And so what we learn is that Willy Wonka has
Speaker 8: found the magical solution to trade secret theft by having
Speaker 8: upa lumpas work in the factory. Why are they the
Speaker 8: solution because they don't leave. They live there, so they're
Speaker 8: not going to be sneaking out any trade secrets. They're
Speaker 8: paid in chocolate. They're happy. Let's not talk about the
Speaker 8: Some of the racists and other aspects.
Speaker 2: Maybe in vihilation of some employment law, but it's totally.
Speaker 2: Genie's insight about the Umpah Lumpas became the seed of
Speaker 2: not one but two brilliant articles she wrote, using Willy
Speaker 2: Wonka as the skeleton key for understanding trade secrecy. Her
Speaker 2: major revelation, Willi Wanka's paranoia, the spying and extreme secrecy
Speaker 2: was totally justified. It was essentially based on a true story.
Speaker 2: This is just part of being in the candy industry.
Speaker 8: Everything from reading about the Mars company blindfolding any repair
Speaker 8: people that would come into fixed machines so they wouldn't
Speaker 8: see anything else, to spies being put into factories and
Speaker 8: guarding against that. So it felt actually very true to life,
Speaker 8: and that was a little bit shocking to me.
Speaker 2: Trade secrecy is the part of the law where life
Speaker 2: begins to resemble Willy Wonka.
Speaker 1: This is the most secret machine in my entire factory.
Speaker 6: What's it do?
Speaker 1: Can't you see it makes everlasting. God stop.
Speaker 2: Did you see people love secrets from a very early age.
Speaker 2: It's why Charlie and the Chocolate Factory is a classic
Speaker 2: children's story. It's not just the candy, it's the secrets.
Speaker 2: The world is already full of things you can't understand
Speaker 2: when you're little, and now someone's going to share the
Speaker 2: most special, true knowledge behind it all. But secrets are
Speaker 2: also dangerous. If I tell you a secret, it means
Speaker 2: I trust you. It binds us together, but it also
Speaker 2: alters the balance of power between us. You know something
Speaker 2: I don't want other people to know. That puts me
Speaker 2: at risk. So I need you to know it's a secret.
Speaker 2: I tell you you don't tell anyone Before I whisper
Speaker 2: in your ear. I put up a sign on my
Speaker 2: bedroom door saying top secret, keep out trade. Secrecy works
Speaker 2: on playground rules.
Speaker 1: I can only give them to you if you solemnly
Speaker 1: swear to keep them for yourselves and never show them
Speaker 1: to another living soul as long as you all shall live, agreed.
Speaker 2: Now imagine I'm a major corporation in the real world.
Speaker 2: I'm infinitely more powerful than you. I'm Willy Wonka, and
Speaker 2: you are a new ballumba. I tell you a secret,
Speaker 2: maybe one you don't even want to know. And then
Speaker 2: I say, by the way, I have eyes everywhere, And
Speaker 2: if you breathe a word of this secret to anyone,
Speaker 2: or even look as if you might breathe a word,
Speaker 2: I will destroy you. This is the crux of it.
Speaker 2: At their best, trade secrets protect valuable intellectual property from
Speaker 2: being stolen. But at their worst, they're a powerful tool
Speaker 2: for a company that wants to turn an employee into
Speaker 2: an oop balloompa. They used to be the easiest way
Speaker 2: to turn a human being into an oop ballompa was
Speaker 2: a non compete clause, but Janie says that's going away.
Speaker 8: We've been living in a world where fast food workers
Speaker 8: have been asked to sign non compete agreements, and you know,
Speaker 8: historically people understood non competes as being for a small
Speaker 8: number of employees, the highest level employees, the ones with
Speaker 8: the access to the most sensitive information, and they're just
Speaker 8: being deployed as form contracts for so many workers and
Speaker 8: workers with lower incomes in ways that are keeping them
Speaker 8: in jobs that they might want to leave and go
Speaker 8: somewhere else.
Speaker 2: A lot of states are banning non competes now, which
Speaker 2: is one of the reasons the company might come to
Speaker 2: Louis del Judy's IP expert to help identify and protect
Speaker 2: their secrets. Could you make that bit in a secret room?
Speaker 2: Can you have a black vault in the office. Could
Speaker 2: there be a secret codebook?
Speaker 4: Because a trade secret will be the only way to
Speaker 4: stop somebody if you really think they're taking something that's
Speaker 4: proprietary to your company someplace else, because a non compete
Speaker 4: is not going to really be in play.
Speaker 2: But trade secrets can have a dangerous power.
Speaker 8: Sometimes people are just good at what they do, and
Speaker 8: they have advantages to continue working in the same industry
Speaker 8: because they know that industry and their business has over
Speaker 8: claimed things as secrets, and that might prevent them from
Speaker 8: taking another job.
Speaker 2: Trade secrets are the only intellectual property protection that can
Speaker 2: last forever. And because of that permanence and the way
Speaker 2: we're geared to think about secrets already, they have a
Speaker 2: kind of mystical aura in our secular, disenchanted world. They
Speaker 2: are the closest thing we have to magic.
Speaker 1: The authentic Coca Cola formula is written on a tiny
Speaker 1: grain of rice kept in an old deacon chest, a
Speaker 1: curse on anyone who opens it.
Speaker 2: The most famous ones are the recipes, Coca Cola's secret formula,
Speaker 2: KFC's eleven spices, the exact way to create Wriggly's gum.
Speaker 2: But actually a whole lot of things can be trade secrets,
Speaker 2: software code, financial information. You may know a trade secret
Speaker 2: and not even totally realize it, but a good way
Speaker 2: to recognize one is the Nooks and Crannies test. This
Speaker 2: feels like a good transition to me to Bimbo Bakeries
Speaker 2: versus Abouticella. Can you tell me how you came across
Speaker 2: the case and how you teach it.
Speaker 8: I know the case through working on trade secret scholarship
Speaker 8: and teaching It's it's a more recent classic, I would.
Speaker 2: Say, Bimbo Bakeries versus Boutchella. It seemed like every lawyer
Speaker 2: I talked to knew about the case. It wasn't a
Speaker 2: precedent so much as a legend, a piece of lore,
Speaker 2: a fairytale warning about the umpa Lumpa who took the
Speaker 2: everlasting Gobstopper out of Willy Wonka's factory and tried to
Speaker 2: sell it to a competitor. Like any good fairy tale,
Speaker 2: it's a good teaching tool because the moral's clear, Except
Speaker 2: then I realized the lessons of this case aren't clear
Speaker 2: at all. If somehow you missed the twenty seventeen edition
Speaker 2: of the Pennsylvania Super Lawyers magazine, I would encourage you
Speaker 2: to look it up, specifically an article titled I Can
Speaker 2: Do That about a Pennsylvania super lawyer named Elizabeth Ainsley.
Speaker 2: Liz Ainsley is Fearless. She was head of the Eastern
Speaker 2: District of Pennsylvania's fraud team. As super Lawyer's magazine puts
Speaker 2: it quote. Ainsley has represented whistleblowers in several major cases,
Speaker 2: defended and prosecuted high profile RICO cases against law firms
Speaker 2: and pharmaceutical companies, defended a major national bank in a
Speaker 2: lender liability trial, and successfully defended The New York Times
Speaker 2: in a federal defamation trial. Legend, and yet in that
Speaker 2: whole article they don't mention a call she got sometime
Speaker 2: in January twenty ten regarding a secret recipe for English muffins.
Speaker 5: It was a pretty small budget to begin with, and
Speaker 5: I was at a big firm, so there was some
Speaker 5: question about whether I could take it or not. But
Speaker 5: they let me take it.
Speaker 1: When you say, let you take it? Were you eager
Speaker 1: to take it? Yeah?
Speaker 5: It was an interesting case. It was kind of a
Speaker 5: David and Goliath situation. I thought people ought to be
Speaker 5: free to move from one employer to another, and Chris seemed.
Speaker 1: To be out of his desk. Wow.
Speaker 5: So well, he was a single person and being sued
Speaker 5: by a huge racial, global conglomerate with the deep rest
Speaker 5: of pockets.
Speaker 2: Chris Bodagella, as I have mentioned, was in trouble. Bimbo
Speaker 2: Bakeries has just found out that one of seven employees
Speaker 2: who knew the secret recipe for their newly acquired and
Speaker 2: extremely valuable Thomas's English Muffins was going to work for
Speaker 2: a competitor. Group of Bimbo is one of the largest
Speaker 2: bakeries in the world. Group of Bimbo bows to nobody.
Speaker 2: So within days of Chris's termination, before he starts his
Speaker 2: new job at Hostess, attorneys for Bimbo file an injunction
Speaker 2: in the Pennsylvania court, which is technically where Thomas's is based,
Speaker 2: but mainly it's a way better place for them to
Speaker 2: argue the case than California. I would like to read
Speaker 2: to you from the factual allegation section of what they filed.
Speaker 2: Items one through ten cover the basics of the case,
Speaker 2: and then they get to the secret. BBU and its
Speaker 2: predecessors have gone to great lengths to keep secret the
Speaker 2: recipe and process for making Thomas's English Muffins for over
Speaker 2: seventy five years. Thomas's English Muffins are a unique product,
Speaker 2: famous for their distinctive nooks and Cranny's characteristics. As a
Speaker 2: result of his employment, Bodachella learned trade secrets relating to
Speaker 2: the production of the Thomas's English Muffins, including not only
Speaker 2: its recipe, but also the equipment necessary for production, necessary
Speaker 2: moisture level, and the way the product is baked, which
Speaker 2: all contribute to its distinctive characteristics. With the knowledge described
Speaker 2: in paragraph thirteen, Bodicella could produce an English muffin that
Speaker 2: might look a bit different, but that would nevertheless possess
Speaker 2: the distinctive taste, texture, and flavor character that distinguished the
Speaker 2: Thomas's English Muffins and that have been the foundation of
Speaker 2: the product's success.
Speaker 1: End quote. If you're Chris, this is.
Speaker 4: Bad because you have to The judge is coming to
Speaker 4: this cold.
Speaker 2: Louis del Judice partner trop pepper Lock muffin trade secret enthusiast.
Speaker 7: He knows nothing about what's going on.
Speaker 4: He gets a slice of paper that's, you know, this
Speaker 4: emergency order on top of his desk that says, we
Speaker 4: need you to act now, and we need you to
Speaker 4: stop somebody from getting a job.
Speaker 7: Right. That's a pretty tall order to ask a judge
Speaker 7: to do.
Speaker 4: And the judge looks at it and says, Thomas's English muffins, Oh,
Speaker 4: the nooks and crandies.
Speaker 2: An immediately recognizable trade secret. Absolutely, you can't let someone
Speaker 2: take the secret behind the greatest breakfast product of all time.
Speaker 2: The judge grants Bembo's wish. Chris can't join Hostess till
Speaker 2: the case is heard. Meanwhile, Grupo Bembo has hired a
Speaker 2: computer forensics expert who starts looking through Chris's laptop.
Speaker 4: Right after he got off the phone with HR when
Speaker 4: they said, hey, we heard the announcement from Hostess. All sudden,
Speaker 4: three flash drives ends up getting plugged into the laptop.
Speaker 2: When confronted with this information, Chris told the court he
Speaker 2: was practicing for his new job. The court is like,
Speaker 2: are you serious?
Speaker 7: I was practicing for.
Speaker 4: My new job out of copy stuff onto a flat
Speaker 4: drive and take it off the flat drive and put
Speaker 4: it back on the flat He's got, you know your figure.
Speaker 7: He's in his late fifties. He's not good with technology.
Speaker 4: But yeah, So the court found that a little bit
Speaker 4: unbelievable that he was practicing.
Speaker 2: Chris conceded that it was complicated, but there are mitigating
Speaker 2: factors here. First, the rush of it all and the
Speaker 2: fact that he'd just met Liz, his lawyer. Then two,
Speaker 2: he'd signed a document with Hosts saying that he wouldn't
Speaker 2: share any confidential BMBO information. He said he'd stuck around
Speaker 2: because he wanted to get his year end bonus and
Speaker 2: finished two projects he was working on. But the court
Speaker 2: was not convinced.
Speaker 4: There's not a lot of confusion or new law that
Speaker 4: was made. It's just everything's really black and white.
Speaker 2: This is the classic version of the case black and white.
Speaker 2: Bimbo catches muff and thief, accuses executive of stealing all
Speaker 2: sorts of trade secrets, except his lawyer, Liz says, if
Speaker 2: you look at those documents, there's no evidence of that.
Speaker 5: I saw all of that stuff and none of it
Speaker 5: had anything to do with the products that Bimbo produced.
Speaker 5: It had nothing to do with not only English muffins,
Speaker 5: but also you know where cupcakes or anything.
Speaker 1: Else sandwich thins.
Speaker 2: Yeah, exactly, Liz says.
Speaker 1: Sure.
Speaker 2: In those documents there's financial information, cost saving strategies, et cetera.
Speaker 2: Confidential stuff, but that's in a different category than the
Speaker 2: ancient muffin trade secret.
Speaker 1: I can actually read it to you this section. Okay.
Speaker 9: So documents and exhibits nine through twenty five include Bimbo's
Speaker 9: cost reduction strategies, product launch dates, anticipated plant and line closures,
Speaker 9: labor contract information, production strength and weaknesses of many Bimbo bakeries,
Speaker 9: and the cross structures for individual products by brand. All
Speaker 9: this documentation is highly confidential, even within Bimbo, and would
Speaker 9: be extremely harmful to Bimbo in the hands of the competitor.
Speaker 1: You don't think that's sufficient.
Speaker 5: I agree that it was confidential. It's confidential, but it's
Speaker 5: not a trade secret.
Speaker 2: Bimbo leads with the nooks and crannies and the muffins,
Speaker 2: but in all the fine print of their complaint, Naran Nook,
Speaker 2: Nora cranny, And yet Liz thinks that's really what this
Speaker 2: was all about.
Speaker 5: Anytime any executive leaves a big company and goes to
Speaker 5: another company, he'll be taking with him the knowledge that
Speaker 5: he's acquired of how to be a chief executive or
Speaker 5: a senior executive. You can't say that that's a secret
Speaker 5: just because he's learned it at one company. I did
Speaker 5: think that they wanted to maybe make a statement to
Speaker 5: people at Bimbo who might be thinking of stealing the
Speaker 5: or peddling the English muffin secret. You know that they
Speaker 5: were going to pursue them.
Speaker 2: What anyone on the outside of the case knows is
Speaker 2: the result. Chris got crushed. If you search this case online,
Speaker 2: you'll see an example made of it on all sorts
Speaker 2: of law firm websites. You'll find it in an introductory
Speaker 2: textbook for intellectual property law. But in none of those
Speaker 2: will you hear whether Bimbo Bakeries was truly able to
Speaker 2: hold its most legendary secret up under scrutiny because the
Speaker 2: case never went to trial. It was meant to go
Speaker 2: to trial, but Liz told me there wasn't money for
Speaker 2: a trial. The judge ruled in favor of Bimbo. Hostess
Speaker 2: told The New York Times, we have a business to run.
Speaker 2: We have to move on. Liz appealed the case and lost.
Speaker 2: The ruling stood. Now, I'll grant you that Chris was
Speaker 2: not an ideal defendant, but this case had real consequences
Speaker 2: for his life.
Speaker 4: After the fact that said, you go anywhere near the
Speaker 4: baking industry, you have to tell Thomas's that you're going
Speaker 4: to be employed there, and which means Thomas's now would
Speaker 4: have the right to go to court and get some
Speaker 4: subpoenas and ask questions of the new employer.
Speaker 7: And what is he going to do?
Speaker 4: Like, what is this poor guy, if you want to
Speaker 4: take his side of the story, what is this poor
Speaker 4: guy supposed to do? Does now he have a set
Speaker 4: of handcuffs on he has to continue to work and
Speaker 4: can't go anywhere else, which is essentially what happened to him.
Speaker 4: The one's going to touch that guy now with a
Speaker 4: ten foot pole.
Speaker 2: Bimbo didn't respond to her request for comment by the
Speaker 2: time we recorded this episode. I tried for months to
Speaker 2: reach Chris s Poticella. Finally I found an address and
Speaker 2: I wrote him a letter. He wrote me an email
Speaker 2: in which he described traveling to the hearing across the country,
Speaker 2: even though he lived in California, scrambling to pay for
Speaker 2: the appeal and going bankrupt. He writes, quote, you will
Speaker 2: never understand the impact that this had on my personal
Speaker 2: and professional life. What first grabbed me about this story
Speaker 2: was the idea that the nooks and crannies of A.
Speaker 2: Thomas's English Muffin had some supercharged legal power. But by
Speaker 2: this point, after reporting the story, I realized what this
Speaker 2: had meant, at least to Chris. And when I talked
Speaker 2: to lu and Genie about the future of trade secrecy,
Speaker 2: I saw a world of trade secrets opening up before me,
Speaker 2: and once futuristic and medieval, where every company had mystical
Speaker 2: code books full of secret recipes, a knook and cranny
Speaker 2: for every employee. Nooks and crannies is a shorthand for
Speaker 2: trade secret, but the actual trade secret of the nooks
Speaker 2: and crannies never came before a jury. I had learned
Speaker 2: that this controversy was, to my mind, unresolved, so we
Speaker 2: at Revisionist History decided to resolve it. We are trying
Speaker 2: to free the muffin, so we're we're reverse engineering the
Speaker 2: muffin recipe. WHOA, I kind of love this, Okay, I.
Speaker 1: Can't don't tell people.
Speaker 2: Next week we attempt to crack the code of the
Speaker 2: English muffin.
Speaker 1: My question for you is, is this like you're trying
Speaker 1: to create their exact product?
Speaker 4: Yeah?
Speaker 1: Can we make this exact?
Speaker 7: English Mum.
Speaker 2: Revision's history is produced by me Ben That of Haffrey,
Speaker 2: with Lucy Sullivan and Nina Bird Lawrence. This episode was
Speaker 2: edited by Julia Barton. Special thanks to Jake Flanagan, Jordan Mannequin,
Speaker 2: Greta Cone, and Sarah Knix. Fact checking on this episode
Speaker 2: by Kate Ferbey. Original scoring by Louis Scara, Mixing and
Speaker 2: mastering by Coom Mountain. Our executive producer is Jacob Smith.
Speaker 2: I'm Ben That of Haaffrey.