Jim McNairy Quoted in Inside Counsel
"3rd Circuit Applies the ‘Substantial Threat’ Test to Trade Secret Case"

Sacramento attorney Jim McNairy was quoted in the October 2010 edition of Inside Counsel discussing the Bimbo Bakeries USA, Inc. v. Botticella trade secrets case. According to the article, Botticella accepted an offer to join Hostess Inc. as vice president of bakery operations for eastern Texas in October 2009. He didn’t get around to informing his then-employer, competitor Bimbo Bakeries USA Inc., until January 2010. The article pointed out that the case was tried in Pennsylvania, despite the fact that Botticella was based in California. This was possible because of choice-of-law and forum-selection clauses Bimbo included in the employment agreement Botticella had signed.

Jim explained, "As things turned out, it was very advantageous for them to have sued in Pennsylvania because one, they’re within a jurisdiction that did recognize the inevitable disclosure doctrine, which is not the case nationwide. And two, even within that context, the court used a standard that was more forgiving to the employer’s perspective — that is, the ‘Substantial Threat’ or ‘Likelihood of Disclosure’ standard versus the ‘Virtually Impossible’ standard."