562 Part 4 Business Management and Governance
16-3 The Principal–Agent Relationship
To this point, the focus of the discussion has been on the relationship between the
agent and the principal on the one hand and third parties on the other. However,
it is important to realize that a contractual relationship exists between the agent
and the principal, so that each has certain obligations and rights. This section of the
chapter covers that relationship.
16-3a The Agent’s Rights and Responsibilities
Principals and agents have a fiduciary relationship, which is characterized by loyalty, trust, care, and obedience. An agent in the role of fiduciary must act in the
principal’s best interests.
Duty of Loyalty: General
An agent is required to act only for the benefit of the principal, and an agent cannot represent both parties in a transaction unless each knows about and consents
to the agent’s representation of the other. Further, an agent cannot use the information gained or the offers available to or by the principal to profit personally.
For example, an agent hired to find a buyer for a new invention cannot interfere
with the principal’s possible sale by demonstrating his own product. Neither can
an agent hired to find a piece of property buy the property and then sell it (secretly
of course) to the principal. Lucini Italia Co. v Grappolini (Case 16.2) involves an issue
of an agent’s fiduciary duty in a sale transaction.
Benjamin Chavez served as executive director of the National Association for the
Advancement of Colored People (NAACP).
Mary Stansee, a former employee of the
NAACP executive offices, charged Mr.
Chavez with sexual harassment, and he
settled the claim for $332,400. The NAACP
was financially troubled at the time of the
settlement, with a deficit of $2.7 million, and
Mr. Chavez did not disclose the settlement
to the board until after it was completed.
Did Mr. Chavez have implied authority
to make the settlement? Did he have apparent authority?
Consider . . . 16.4
Lucini Italia Co. v Grappolini Luci
2003 WL 1989605 (N.D. III. 2003) 2003 3
A Slick Deal by the Olive Oil Agent
CASE 16.2
FACTS
Lucini Italia imports and sells premium extra-virgin olive
oil of Italy. Lucini was formed by Arthur Frigo, a Chicago
entrepreneur and adjunct professor of management and
strategy at Northwestern University’s Kellogg Graduate
School of Management. Giuseppe Grappolini, from
Loro Ciuffenna, Italy, served as a consultant to Lucini.
Under the terms of his consulting contract, Mr. Grappolini was to develop Lucini Premium Select extra-virgin
olive oil as well as other flavored olive oil products.
Mr. Frigo had discovered a market niche in the United
States for high-end olive oil ($10 to $12 per bottle).
© iStockPhoto.com/Ancika
CONTINUED
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
Chapter 16 Management of Employee Conduct: Agency 563
Mr. Grappolini is also the sole owner of the Grappolini Company, an Italian limited liability company.
The Grappolini Company distributes small volumes
of extra-virgin olive oil in Chicago and other markets
throughout the United States, but it has much larger
sales volume in Europe. Between December 1997 (the
date of the Grappolini consulting contract with Lucini)
and June 2000, the Grappolini Company was Lucini’s
supplier of extra-virgin olive oil. The two companies
had signed a supply agreement for this arrangement
also in December 1997.
Mr. Frigo instructed Mr. Grappolini to try to negotiate an exclusive supply contract for Lucini with Vegetal, an Italian company with a unique olive oil that
Mr. Frigo needed to develop another premium brand
of olive oil that would have flavors such as lemon
and garlic added (called the LEO project). Vegetal was
the only company that could supply the type of olive
oil Mr. Frigo needed for the blending process with
the extra flavors. Mr. Grappolini led Mr. Frigo along
with promises of a deal with the Vegetal company for
nearly a year, through reports of meetings as well as
with faxes and memos appearing to detail terms, conditions, and dates for delivery. At the same time, Mr.
Grappolini was meeting with Mr. Frigo almost daily
as they discussed the plans for the new Lucini olive
oil. In the meetings, Mr. Frigo discussed the formulas,
the marketing, consumer profiles, and marketing strategies for the LEO project. Apparently, Mr. Grappolini
was impressed by the plans and entered into his own
exclusive supply contract with Vegetal. Mr. Grappolini
did not tell Mr. Frigo of the contract and continued to
work as a consultant. Mr. Grappolini also assured Mr.
Frigo that Lucini had a supply contract with Vegetal.
Mr. Frigo proceeded with all the contracts, ads, and
plans for the LEO product launch based on assurances
from Mr. Grappolini that it had the supply contract
with Vegetal. However, when pressed, Mr. Grappolini
could not deliver the paperwork. When Mr. Frigo
requested a meeting with the CEO of Vegetal, Mr.
Grappolini arranged for the meeting but cautioned Mr.
Frigo not to mention the supply arrangement because
such a discussion in a first-time meeting would be considered rude in the Italian culture.
With the LEO product launch approaching, and
no copy of the alleged Vegetal supply contract available, Mr. Frigo had Lucini’s lawyer in Italy contact
Vegetal directly for a copy. The lawyer learned that
Vegetal had a supply contract but that the contract was
with Mr. Grappolini’s company and that it was not
transferable to Lucini. Mr. Frigo then confronted the
officers of Vegetal, and they acknowledged that they
had negotiated with Mr. Grappolini for his company,
not for Lucini, and were not aware of Lucini’s needs or
Mr. Grappolini’s representation of Lucini. The officers
at Vegetal said that Grappolini had been a “bad boyâ€
in negotiating the contract for himself. Vegetal agreed
to supply Lucini with olive oil in the future but could
not deliver it in time for the launch of Lucini’s new
line. The soonest it could deliver would be after the
next harvest, a time that meant the marketing and sales
plans of Lucini for its new product had been wasted.
Mr. Frigo and Lucini filed suit against Mr. Grappolini and his company (defendants) for breach of
fiduciary duty.
JUDICIAL OPINION
DENLOW, Magistrate
As agents, Defendants owed Lucini general duties of
good faith, loyalty, and trust. In addition, Defendants
owed Lucini “full disclosure of all relevant facts relating to the transaction or affecting the subject matter of
the agency.â€
Defendants were Lucini’s agents and owed Lucini
a fiduciary duty to advance Lucini’s interests, not their
own. When Defendants obtained an exclusive supply
agreement with Vegetal for the Grappolini Company
instead of for Lucini, they were disloyal and breached
their fiduciary duties. Lucini suffered substantial damages as a result of this breach.
Punitive damages are appropriate where the
defendant has intentionally breached a fiduciary duty.
Defendants’ breach of their fiduciary duties was flagrant and intentional. Defendants deliberately usurped
a corporate opportunity sought by Lucini, which
Lucini had entrusted Defendants to secure on Lucini’s
behalf. Although Defendants explicitly accepted this
trust and ensured [sic] Lucini that Mr. Grappolini and
his company would do as Lucini requested, Defendants failed to do so and hid this fact from Lucini.
Defendants misappropriated Lucini’s valuable
trade secrets. Defendants acquired Lucini’s trade
secrets under circumstances giving rise to a duty to
maintain their secrecy. Defendants’ assistant Marco
Milandri testified that he understood that Lucini’s
Premium Select and LEO product formulations were
company secrets. Likewise, Grappolini testified that
he understood the secrecy of trade secret information
communicated to him. Indeed, his various contracts
specified that he would maintain the confidentiality
of Lucini’s research conclusions. After Defendants had
secretly secured their own exclusive supply contract
with Vegetal, they hid this fact from Lucini in order
to induce Lucini to continue sharing its trade secret
research, strategies, and plans with Grappolini.
CONTINUED
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
564 Part 4 Business Management and Governance
Lucini’s decision to focus its LEO project around
essential oils from Vegetal Progress was a closely
guarded trade secret. When Mr. Grappolini used this
information on behalf of the Grappolini Company to
allow it unfettered access to negotiate its own exclusive
arrangement with Vegetal, it is necessary to conclude
that the Grappolini Company “acquired†the information with full knowledge that: (i) Lucini had not consented to the use of the information by a competitor,
and (ii) Mr. Grappolini had no right to transmit or use
the information for his own purposes or on behalf of
the Grappolini Company.
As a proximate result of Defendants’ breach of
their fiduciary duties, Lucini suffered lost profits
damages of at least $4.17 million from selling its
grocery line of LEO products from 2000 through
2003. The Court will award Lucini its lost profits of
$4,170,000, together with its $800,000 of development
costs for LEO project. Defendants engaged in willful
and malicious misappropriation as evidenced by their
use of the information for directly competitive purposes and their efforts to hide the misappropriation
and, accordingly, the Court will award $1,000,000 in
exemplary damages. Such an award is necessary to
discourage Defendants from engaging in such conduct in the future.
CASE QUESTIONS
1. Explain how Mr. Grappolini breached his
fiduciary duty.
2. What lessons can you learn about contracts, suppliers, and product launches from the case?
3. Evaluate the ethics of Mr. Grappolini’s conduct.
Why did Vegetal’s officers refer to Mr. Grappolini
as a “bad boy�
Duty of Loyalty: Postemployment and Noncompete Agreements
Many companies have their employees sign contracts that include covenants
not to compete or covenants not to disclose information about their former
employers should the employees leave their jobs or be terminated from their
employment.
Downsizings in the high-tech industry have brought back the issue of noncompete and confidentiality agreements. When employees are recruited by upstart
firms and lured with stock options, it is often difficult for them to imagine a time
when the company would need to downsize or would no longer exist. As a result,
most of them signed fairly restrictive covenants not to compete.
In dealing with these covenants, courts are striking a balance between the
employees’ right to work and an employer’s right to protect the trade secrets,
training, and so forth that the former employee has and then transfers to another
company or to himself or herself for purposes of starting a business.
Requirements for Noncompete Agreements
1. The Need for Protection
The laws on noncompete agreements vary from state to state, with California
and a handful of states being the most protective of employees. However,
across all states, courts are clear in their positions that there must first be
an underlying need or reason for the noncompete agreement—that is, the
employee must have had access to trade secrets or be starting his or her own
business in competition with the principal/employer.
2. Reasonableness in Scope
The covenant must also be reasonable in geographic scope and time. These
factors depend on the economic base and the nature of the business. For example, a noncompete in a high-tech employee’s contract could be geographically
global but must be shorter in duration because technology changes so rapidly.
A noncompete for a collection agency could not be global but might be longer
in duration because the nature of that business is one of relationships.
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
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566 Part 4 Business Management and Governance
Garon Foods, Inc. v Montieth Garo
2013 WL 3338292 (S.D. Ill. 2013) 2013
The Holes in Selling Cheese
CASE 16.3
FACTS
Sarah Montieth was an employee of Garon Foods
from November 2011, until she voluntarily resigned in
February 2013. Garon sells peppers to cheese manufacturers for use in making pepper jack cheese. Garon acts
as a distributor for peppers it obtains from a supplier
and then relabels and distributes to its pepper jack
cheese manufacturing customers under Garons name.
During her time at Garon, she had access to a computer
program listing the names of Garons customers, and
she was assigned to manage the accounts of a small
number of customers (around five at any one time).
Prior to starting employment, Sarah signed a
Garon Trade Secrets Confidentiality Agreement in
which she agreed to hold Garons trade secrets confidential and to refrain from using them for anything
other than Garons benefit. Under the Agreement,
trade secrets included customer lists, customer products, customer pricing, data, designs, financial records,
formula, packaging, procedures, processes, suppliers,
vendors, and other confidential information. Garon
further protected some of this information on a computer system with individual passwords and by hiding
it on its computer server.
At the time of her resignation, Sarah signed another
document in which she acknowledged the Agreements nondisclosure provisions. Garon never asked
Sarah to sign a covenant not to compete with Garon.
During Sarahs employment with Garon, she sent
an e-mail with some of the foregoing confidential
information to her personal e-mail account. She did this
for the purpose of preparing for a meeting to address
a customer complaint that had arisen while others at
Garon were away on vacation. On one occasion, Sarah
also sent a purchase order containing confidential information to a trucking company to facilitate an urgent
transportation request. When Sarah resigned, she was
escorted from Garons property and took no documents
with her. She did retain in her memory the names of
purchasing agents of certain Garon customers and general knowledge of the industry, such as ballpark pricing arrangements. Any specific pricing details Sarah
retained in her memory are likely to be obsolete within
a year or less due to the fluctuation of product prices.
After Sarahs resignation, she began working as an
independent contractor for the Supplier of peppers to
Garon. This was the Suppliers first attempt to market
its product directly to cheese manufacturers.
No credible evidence shows Sarah gave the Supplier any of Garons confidential information or trade
secrets. Sarah sent mass e-mails to the purchasing
agents of the companies on a list of pepper jack cheese
manufacturers. She had not obtained the manufacturer
list from Garon but derived it on her own through
Internet searches. She had remembered some of the
purchasing agents names from her work at Garon but
had obtained others, along with contact information,
through telephone calls to the manufacturers. She did
not specifically target any of Garons customers with
her e-mail solicitations, but she did not avoid them
either. However, some of the mass e-mails contained
references from which the manufacturer could easily
conclude that the Supplier was Garons source of the
products Garon sold under its own name. For example,
one to sell the Suppliers product
to manufacturers using standard packaging methods
(pails, drums, and totes) at a significant cost savings
and with shorter lead times than the manufacturer
could get through a distributor. The e-mail further
contained a specification sheet for a product that this
customer had purchased from Garon.
Despite receiving a from
Garons counsel, Sarah continues to solicit business for
the Supplier. Sarah has not brought any new customers
to the Supplier since her marketing efforts began, but
Garon has lost one longtime customer who generated
more than $200,000 of business a year. If the Supplier
is able to draw customers away from Garon, Garons
reputation in the industry would suffer, and it would be
nearly impossible to get its customers back. Additionally,
since Sarah began working for the Supplier, the Supplier
has increased the product prices it charges Garon, which
Garon has been forced to pass along to its customers.
Garon filed suit alleging Sarah breached the Agreement by revealing confidential information and violated
the Illinois Trade Secrets Act (ITSA) by misappropriating Garons trade secrets. Garon asked the Court to
issue a preliminary injunction.
iStockPhoto.com/Ancika
CONTINUED
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
Chapter 16 Management of Employee Conduct: Agency 567
JUDICIAL OPINION
GILBERT, District Judge.
The first theory under which Garon seeks relief for
Sarahs alleged breach of the Agreement. Sarah argues
that she did not breach the Agreement because she did
not target Garons customers or give any confidential
information to the Supplier.
Confidentiality agreements . . . are restrictive covenants and under Illinois law are reviewed with a suspicious eye. Specifically, restrictive covenants work
in partial restraint of trade and courts must carefully
assess their intent to insure they are not used to prevent
competition per se.
It is likely that Garon can show Sarah revealed
the confidential identity of the Supplier in violation
of the Agreement. The identity of the Supplier as
Garons source of products is confidential information
under the Agreement. Garon took pains to protect that
information by hiding it from its cheese manufacturer
customers. Any communication that identified, either
directly or indirectly, the Supplier as Garons supplier
therefore likely breached the Agreement. For example,
Garon was the only manufacturer who sold products
in 43-pound pails, 450-pound drums and 1700-pound
totes. Thus, the identification of these specific weights
associated with the Supplier was sufficient to reveal
the Suppliers identity to Garons customers who had
purchased products in those packages.
It is likely that Garon can show Sarah used confidential information about Garons customers past
product purchases to market to some cheese manufacturers. For example, she attached to a solicitation
e-mail a specification sheet for a product that a Garon
customer had purchased from Garon in the past. The
customers needs and purchasing history, as well
as the terms of Garons sales to that customer, that
Sarah retained in her memory are likely to be Garons
confidential information under the Agreement, so the
Agreement would likely prohibit her from using that
information for the Suppliers benefit.
[I]t is likely that Garon can prove Sarah breached
the Agreement by revealing the Suppliers identity and
using past customer purchasing needs and sales terms
to solicit customers for the Supplier.
The second theory under which Garon seeks relief
is under the ITSA for misappropriation of trade secrets.
Under the ITSA, a trade secret includes: Information, including but not limited to, technical or
non-technical data, a formula, pattern, compilation,
program, device, method, technique, drawing, process,
financial data, or list of actual or potential customers
or suppliers, that: (1) is sufficiently secret to derive
economic value, actual or potential, from not being
generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.
The Court finds for the reasons discussed above that
Garons trade secrets include the identity of the Supplier
and the past customer purchasing needs and sales terms
and that Sarah misappropriated those trade secrets by disclosing or using them in her solicitations. Garon is unlikely
to be able to prove its customer list is a trade secret.
In the absence of a preliminary injunction, Sarah
may be able to tempt some of Garons customers to
patronize the Supplier instead of Garon, although she
had not done so as of the date of her testimony. If this
happens with respect to more than a minimal number
of customers, Garon will suffer irreparable damage to
its business which may result in the end of its business
and which cannot be remedied by money damages.
If the Court grants the requested injunction, Sarah
will be extremely limited in her ability to earn a living
soliciting cheese manufacturer customers, and the public will suffer harm by the loss of competition between
pepper suppliers. However, if the Court does not grant
an injunction, there is a risk Garon will lose business to
the Supplier based on Sarahs use of some confidential
information or trade secrets. In light of these factors,
the Court believes it appropriate to grant an injunction
limiting Sarahs solicitation of cheese manufacturers but
not prohibiting them, Sarah will still be able to work
in her new position without being prevented from
attempting to earn a living, but the manner in which
she conducts those solicitations must be circumscribed.
The limitations described below will protect Garons
confidential information and trade secrets while still
allowing the public the economic benefit of fair and
increased competition between Garon and the Supplier.
Sarah is enjoined from soliciting business for the
Supplier from any cheese manufacturer whose account
she was assigned to manage during the twelve months
before she stopped working for Garon. This injunction
shall last for eight months following entry of this preliminary injunction. This preliminary injunction does
not prevent Sarah from servicing any of these cheese
manufacturers who independently become customers
of the Supplier by means other than her solicitations.
Sarah is enjoined from soliciting business for the
Supplier from any cheese manufacturer she knows
is or was a Garon customer by mentioning or using
any specific information in the solicitation about their
past purchasing needs or sales terms. This restriction
includes mentioning in the solicitation the specifications of the products she knows from her experience at
Garon were sold to that cheese manufacturer by Garon.
CONTINUED
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
568 Part 4 Business Management and Governance
This preliminary injunction does not prevent Sarah
from responding to a cheese manufacturers request
for products that it has purchased from Garon so long
as the request for those products is initiated by the
cheese manufacturer.
Sarah is enjoined from referring in her solicitations
to (1) Garon or (2) any other information from which a
cheese manufacturer is likely to draw the conclusion that
the Supplier provides Garon with the products Garon sells
under its name. This restriction includes, but is not limited
to, mentioning in the solicitation the specific weights of
products in conjunction with the method of packaging
that were sold exclusively by Garon (e.g., 43-pound pails)
and inviting the cheese manufacturer to compare the quality audit documentation of Garon and the Supplier.
This preliminary injunction does not prohibit Sarah
from responding to a cheese manufacturers request for
products packaged in the specific weights and methods sold by Garon or for a list of the packaging weights
and methods available from the Supplier, so long as the
request is initiated by the cheese manufacturer.
CASE QUESTIONS
1. What kind of information does Sarah have that
could harm Garon?
2. What type of business was Sarah attempting to
create?
3. What restrictions does the court impose?
Eric Rush (a.k.a. Eric Romero in the dance
world) was a dance instructor at a Plano,
Texas, Arthur Murray dance studio. Mr. Rush
says he was fired, but the attorney for the
Arthur Murray studio indicates he resigned.
Under the terms of his employment contract,
which included a noncompete clause, Mr.
Rush was prohibited from teaching dance
lessons within a 25-mile radius of the Plano
Arthur Murray studio. However, Mr. Rush
created a Craigslist notice offering dance
lessons and also contacted former students
from Arthur Murray to offer dance lessons.
He also taught a cha-cha lesson at Tango and
Cha-Chas Dance Studio in Dallas (to the tune
of I Left My Heart in San Francisco).
A Texas judge ordered Mr. Rush to
take down the Craigslist notices and stop
teaching dance through the end of 2009
within the 25-mile radius. Mr. Rush was
also ordered to spend 30 days in jail for
contempt of court, which consisted of his
ongoing refusals to comply with the courts
orders for his violations of the noncompete
clause. The jail sentence represents the
latest in a 10-month legal battle between
Rush and his former employer. Rushs
lawyer called the sentence excessive and
said that the judge was killing a fly with a
bazooka.
As for Mr. Rush, he is dismayed at his
clipped wings, er, silenced taps. He says
that the noncompete clause is like asking a doctor not to practice medicine.4
He
also says that if he did stop dancing it
would be, like, blasphemous.5
Rush also
Consider . . . 16.5
Ethical Issues
Discuss what ethical issues you see in Sarahs acti Discuss what ethical issues you see in Sarahs actions.
Copyright 2018 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. WCN 02-200-203
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