Third Circuit Clarifies Availability of Preliminary Injunction to Prevent Former Employee from Working for a Competitor

On July 27, in Bimbo Bakeries USA, Inc. v. Botticella, the Third Circuit Court of Appeals affirmed the issuance of a preliminary injunction preventing the former Bimbo Bakeries vice president of operations for California, Chris Botticella, from beginning work in a similar position for Hostess Brands, Inc. (Hostess) in the Eastern United States.

Employers in Pennsylvania should take note of this decision, because it makes clear that such preliminary injunctions are available under Pennsylvania law where, under the totality of the circumstances, it is established that the new employment is “likely” to result in the disclosure of protected information. The court rejected use of the inevitable disclosure doctrine that would preclude an injunction unless it would be “virtually impossible” for an individual to avoid disclosure of trade secrets in his new position. Mr. Botticella had argued for this higher standard of proof.

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