13-CV-8645 SDNY

8/13/2019 13-CV-8645 SDNY

1/78

{ 1 0176/608923 0 00 /011075811 }

from the parties written confidentiality agreements.confidential relationship, as well as in derogation of Defendants contractual obligations arisingviolating Defendants duties of trust and confidence arising from the parties nearly decade-longand other confidential information to pursue and obtain patents for Defendants benefit, therebyissued patent, is based upon Defendants misappropriation and use of Plaintiff s trade secretscertain patent applications and an issued patent; and vi) the correction of inventorship of an(iii) unfair competition; (iv) unjust enrichment; (v) the imposition of constructive trusts upon

1. This action for i misappropriation of trade secrets; (ii) breach of contract;NATURE OF THE CASE

Tropicana Products, Inc. (collectively, Defendants or PepsiCo), hereby alleges as follows:Pepsi-Cola Technical Operations, Inc., The Quaker Oats Company, Stokely-Van Camp, Inc., andthrough its undersigned counsel, as and for its Complaint against Defendants, PepsiCo, Inc.,

Plaintiff, ScentSational Technologies, LLC ( Plaintiff or ScentSational ), by andCOMPLAINT

Civil ActionNo.:

G.. . . 1 _ . .:~::jr~r--

1 ; : : : 1

.._: : : >- ; ;>?- .C)

Defendants

PEPSICO, INC., PEPSI-COLA TECHNICALOPERATIONS, INC., THE QUAKER OATSCOrvlPANY,STOKELY-VANCAMP, INC., andTROPICANA PRODUCTS, INC.,

-v-Plaintiff

SCENTSATIONAL TECHNOLOGIES, LLC,

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK

8/13/2019 13-CV-8645 SDNY

2/78

{10176/608923000/0110758 I}

THE PARTIES2. Plaintiff ScentSational is a limited liability company organized and existing under

the laws of the State of Pennsylvania, with its principal place of business in Jenkintown,Pennsylvania. All of Scentsational s members are citizens of the State of Pennsylvania.

3. Defendant PepsiCo, Inc. ( PepsiCo ) is a North Carolina corporation w t itsheadquarters in Purchase, New York.

4. Defendant Pepsi-Cola Technical Operations, Inc. ( PepsiCo Tech ) is a Delawarecorporation and a subsidiary of PepsiCo, w t its headquarters in Purchase, New York.

5. Defendant The Quaker Oats Company ( Quaker ) is a New Jersey corporationand a subsidiary of PepsiCo, with its headquarters n Chicago, Illinois.

6. Defendant Stokely-Van Camp, Inc. ( Stokely) is an Indiana corporation and asubsidiary of PepsiCo, with its headquarters in Chicago, Illinois.

7. Defendant Tropicana Products, Inc. ( Tropicana ) is a Delaware corporation anda subsidiary of PepsiCo, with its headquarters in Bradenton, Florida.

JI J n~nICTIONN VENUE8. This Court has subject matter jurisdiction over the federal patent claim alleged in

this action pursuant to 28 U.S.C. 1331 and 1338(a).9. This Court has subject matter jurisdiction over the non-federal claims alleged in

this action, pursuant to 28 U.S.C. 1367(a), because such claims are so related to the federalclaim alleged in this action that they form part of the same case or controversy.

10. In the alternative, this Court has subject matter jurisdiction over the non-federalclaims alleged in this action, pursuant to 28 U.S.C. 1332(a), because complete diversity of

8/13/2019 13-CV-8645 SDNY

3/78

{I 0176/608923 000/ 011 07581 1}

district.because, as discussed, supr Defendants are subject to personal jurisdiction in this judicial

17. In the alternative, venue is proper in this district, pursuant 28 U.S.C. 139l b) 3),judicial district.collective wrongful acts of Defendants, as discussed, infr occurred, in substantial part, in this

16. Venue is proper in this district, pursuant 28 U.S.C. 1391b )2) , because theincluding within this judicial district.302 a), because Tropicana transacts and solicits business within the State of New York,

5 This Court has personal jurisdiction over Tropicana, pursu t to NY CPLR this judicial district.because Stokely transacts and solicits business within the State of New York, including within

14. This Court has personal jurisdiction over Stokely, pursuant to NY CPLR 302 a),this judicial district.because Quaker transacts and solicits business within the State of New York, including within

13. This Court has personal jurisdiction over Quaker, pursuant to NY CPLR 302 a),systematic, and continuous basis from its corporate headquarters in thisjudicial district.301, because PepsiCo Tech conducts business within the State of New York on a regular,

12. This Court has personal jurisdiction over PepsiCo Tech, pursuant to NY CPLR continuous basis from its corporate headquarters in thisjudicial district.because PepsiCo conducts business within the State of New York on a regular, systematic, and

11. This Court has personal jurisdiction over PepsiCo, pursuant to NY CPLR 301,of interest and costs.citizenship exists between the parties and the amount in controversy exceeds 75 ,000, exclusive

8/13/2019 13-CV-8645 SDNY

4/78

{I0176/608 923 000/01 10758 1 1 }

A. ScentSational s Business and Trade Secrets19. In 1997, Steven M. Landau ( Landau ), an inventor and successful entrepreneur,

began extensive research and development to determine whether aromas could be applied to, orincorporated in, product packaging. Among other things, Landau wanted to determinewhether itwas possible to infuse a product s closure with aroma so that when a consumer drank from theclosure, the release of aroma would cause the consumer to perceive the product as being sweeterand more flavorful than it actually was.

20. 1997, Landau llv en te d t.he concept of flavor modification using aromadelivery systems including, but not limited to, manufacturing aromatic product packaging forfood and beverages ( Landau s 1997Invention ).

21. On or about August 6, 2002, Landau and Barry M. Edelstein ( Edelstein ), aninvestor and successful entrepreneur, formed Plaintiff, ScentSational Technologies, LLC.

ScentSational owns all right, title, and interest in and to Landaus inventions including, but notlimited to, Landaus 1997 Invention.

22. Together, Landau and Edelstein, on behalf of ScentSational, invested extensivetime, research and development, skill, and labor to build upon Landaus 1997 Invention. Their

FACTS COMMON TO ALL CLAIMS FOR RELIEF

18. The assignment of this action to the White Plains Courthouse is proper, pursuantto Rule 18(a)(i) of the Local Rules of the United States District Court for the Southern andEastern Districts of New York, because (i) the causes of action asserted herein arose in whole orin major part in the State of New York, County of Westchester i.e. a Northern County) and(ii) Defendants PepsiCo and PepsiCo Tech reside in Westchester County, as their corporateheadquarters are located in Purchase, New York.

8/13/2019 13-CV-8645 SDNY

5/78

{I 0176 608923 0001011 0758 1.1}5

pursuant to a written confidentiality agreement.industry, and cannot be duplicated or acquired by third parties, unless disclosed by ScentSational

25. ScentSational s trade secrets are unknown, both within and outside the relevant;~\ScentSational: e _ _ G 0< LOCO ~

Tamp er Evident SealPrevents aromareleasencaps~I;( ~edFI;:l vors l t Fragrancesrelease arpmas \IJtpthe ai~.

Aromatic ClosureM a de ' Nith E fY . .a p ~t . atedAroma Releasetechnology

Aroma Rel~C seFrom Closure

Matches the aromaof contents

.:.:~~cenrSanooal, .j J . :' c . ~ n ~ ,*:i. r.

AI10w s br and owners toprotect product.integrity with tamperseals while allowingconsumers to samplethe arorna oftheproduct, connect ing t heconsumer with thebrand and drivingpurchase decisions.

CompelAroma T E OEof;apsulatildFlavo~

Fragrances iflrereleased intopackagingcontents andheadspace.

underlying ScentSational s trade secret, encapsulated technologies:24. The illustrations below depict two examples of the general methodology

preference and purchasing behavior.and v) scent on a package to allow aroma sampling at the shelf to influence consumeraromatic flavors to enhance the overall consumer experience prior to and during consumption;to offset bitter and other unappealing tastes that the consumer would otherwise experience; iv)fresh smelling top notes to convey freshness to the consumer; iii) specific aromatic compoundsmethods for using i) sweet aromas to convey the experience of sweetness to the consumer; ii)

23. ScentSational s trade secrets relevant to this action include, inter li proprietaryimproving the consumers experience.manufacture, and use of scented packaging to enhance a product s aroma and taste, therebyefforts resulted in ScentSationals trade secret, proprietary technologies for the application,

8/13/2019 13-CV-8645 SDNY

6/78

{10 176 6089 2300 001107581 1}6

B ScentSational s Relationship With PepisCo29. Articles have been published in the press about ScentSationals unique approach

to enhancing the aroma and taste of foods and beverages with scented packaging (albeit withoutdisclosing ScentSationals Trade Secrets or other confidential information).

30. These articles attracted the attention of consumer-packaged goods companies( CPGs ). Indeed, following publication of the articles, ScentSational received a number ofrequests from CPGs to give presentations concerning the incorporation of ScentSationals TradeSecrets into certain CPGs mass-produced goods. If a CPG showed interest, ScentSational and

referred to as Scentxationals Trade Secret(s).

28. The proprietary manufacturing processes, technologies, methodologies, consumerstudies, and other commercial knowhow underlying ScentSationals trade secret encapsulatedaroma technologies for food and beverage packaging used to induce olfactory enhancement inpersons purchasing or consuming liquids or solids from a package or receptacle (including, butnot limited to, beverages), discussed in paragraphs 19-27, supr will hereinafter be collectively

26. ScentSationals trade secrets are highly valuable to ScentSational. Indeed,ScentSational is recognized as t industry leader with a proven track record of developingencapsulated aroma technologies for food and beverage packaging.

27. At all times relevant to the instant action, ScentSational has maintained extensivesafeguards to protect the secrecy of its trade secrets including, but not limited to, requiring thirdparties to execute detailed confidentiality agreements before disclosing its trade secrets. Assuch, ScentSational s trade secrets will only be disclosed in the instant action pursuant to aprotective order executed by the parties and any agreed-upon third parties, and So Orderedby theCourt.

8/13/2019 13-CV-8645 SDNY

7/78

{10176/608923-000/01107581,1}7

34. As proposed by PepsiCo, the projects required Scentfiational to disclose its TradeSecrets and other confidential information to PepsiCo and certain PepsiCo suppliers. Thus,PepsiCo and its subsidiaries, including Defendants PepsiCo Tech, Quaker, Stokely, andTropicana, entered into four written confidentiality agreements (the CAs ) with ScentSational(all of which were provided to ScentSational by PepsiCo) in order to obtain ScentSationals

Trade Secrets and other confidential information w t a view towards incorporating them into theaforementioned projects.

the CPG would sign a written confidentiality agreement prior to engaging in further discussionsor development agreements.

31. One such CPG was PepsiCo. Unlike ScentSational, PepsiCo had achieved onlylimited success, if any, harnessing the power of smell. Among other things, PepsiCos methodof aroma release using encapsulates applied under a product s cap caused manufacturingchallenges, along with unwanted premature release when the cap was applied.

32. Thus, beginning in or about 2001, PepsiCo turned to ScentSational to discuss,what PepsiCo led ScentSational to believe, was the commercialization and incorporation ofScentSationals Trade Secrets into PepsiCo s packaged products.

33. For approximately the next decade, PepsiCo and ScentSational developed aconfidential relationship, wherein PepsrCo presented ScentSational with at least six separate anddistinct projects that proposed commercializing and incorporating Scentsationals Trade Secretsinto epsicos consumer packaged beverages including, but not limited to, coffee and orangeJUIce.

8/13/2019 13-CV-8645 SDNY

8/78

{I 176/608923 000/011 7581 1}

recipient s obligations of confIdentiality and non-use relating to product formulae, ingredients,Information under the 3 CA survive[d] termination of th[e] Agreement. Specifically, the

39. Pursuant to its essential terms, the parties obligations regarding Confidentialother than the Project. Id at ~ 4. [emphasis added].confidentiality and trade secret rights and shall not be disclosed to others or used for purposeshereunder shall be retained in confidence in the same manner used to protect its ownrecipient of Confidential Information agrees that ConfIdential Information disclosed to it

38. Pursuant to its essential terms, the par....ies agreed under the 0 3 CA that [t]heProject, whether disclosed in writing, orally, visually orby samples [... ]. Id at ~ 3.defined as any and all information disclosed by one party to the other in connection with the

37. Pursuant to its essential terms, Confidential Information under the 03 CA was

PEPSICO and COMPANY desire to work together to develop prototypes forapplications using COMPANY S technology for flavor incorporation inplastic materials for release in head space (the Proj ect) . Both PEPSICO andCOMPANY have certain information which they consider to be confidentialand proprietary regarding the subject matter of the Project and it will benecessary for each party to disclose its confidential information to the otherduring the course of the Project. Exhibit Aa t~2 .

36. Pursuant to its essential terms:CA is attached hereto as Exhibit ATECHNOLOGIES, LLC ( COMPANY ) (the 03 CA ). A true and correct copy of the 03Products, Inc., its affiliates and subsidiaries (PEPSICO ) and SCENTSATIONAL2003, between PEPSICO, INC., on behalf of Quaker, Stokely-Van Camp, Inc. and Tropicana

35. The first written confidentiality agreement was entered into on December 29,i The 2 3 Confidentiality Agreement

8/13/2019 13-CV-8645 SDNY

9/78

{1 0176/6089230 00/01 107581 1 }9

Each receiving party acknowledges that the Information disclosed by adisclosing party is the confidential and proprietary information and propertyof the disclosing party, and that the receiving party does not have, and nothingherein shall be construed to imply, any claim, right, title, property or otherinterest or license of any kind or nature in the Information. Each receiving

44. Pursuant to the 04 CA:3(ii).the performance of their duties in connection with work or possible work together [.... ]. d at ~Information only to [their] employees on a need-to-know-basis who require the Information for

43. The parties also agreed under the 04 CA that they would d isclose thefirst obtaining the written consent of the disclosing pa ty [ J Jd at ~ disclose it to any third party or otherwise violate the terms hereof, directly or indirectly, withoutand all information disclosed or made available to it by the disclosing party, and w[ould] not

42. Under the 04 CA, each party agreed that it would accept in strict confidence anyrelated products. Ex hibit and/or business plans and objectives, including specifically (but not limited to) Frappuccino andrespecting and to share data, information and materials regarding certain development initiatives

4 The purpose of the 04 CA was for PepsiCo and ScentSational to discuss mattersattached hereto as Exhibit BScentSational Technologies, LLC (the 04 CA ). A true and correct copy of the 04 CA is2004, between PepsjCo, Inc. on behalf of itself and its subsidiaries and affiliates [... ] and

40. The second written confidentiality agreement was entered into on December 8,ii The 2 4 Confidentiality Agreement

[emphasis added].trade secret or manufacturing know-how, will survive termination of this Agreement. d at ~ 6.

8/13/2019 13-CV-8645 SDNY

10/78

{l0176 608923000 01107581 1 }10

[I]nformation and data relative to the research, development, production,packaging, control, sale and marketing of foods including, but not limited to,know-how, economic information, business and technical development plans,marketing strategy, data, technical information, know-how, process and

49. As defined in the 05 CA, ScentSationals Confidential Information was:

In order to have meaningful discussions, PEPSI and Company, at theirrespective sole discretion, may, from time to time, disclose to the other certaininformation that is considered confidential by the disclosing party. BothPEPSI and Company are willing to do so provided that the other observescertain requirements to assure that such confidential information is keptconfidential and not used in any way, except as authorized herein. Id

48. Pursuant to the 05 CA:

PEPSI is the business of developing, packaging for manufacture andmarketing food products, including, without limitation, beverage, snack,cereal, grain and other food products. PEPSI and Company are interested inworking together during the development of aroma releasing packagingcomponents for the ready-to-drink coffee products ( the Project ). Exhibit Catp. L

47. The 05 CA indicated that that:Exhibit C[.... ] (Company) (the 05 CA ). A true and correct copy of the 05 CA is attached hereto asbetween Pepsi-Cola Technical Operations, Inc. (,PEPSI ) and ScentSational Technologies, LLC

46. The third written confidentiality agreement was entered into on July 26, 2005,iii The 2 5 Confidentiality Agreement

provided by a disclosing party to the receiving party. d at ~ 7.be effective retroactively to the date any Information was first disclosed, made available or

45. Pursuant to the 4 CA , [t]h e obligations undertaken under this Agreement shall

party shall hold and maintain the Information disclosed by the disclosing partyhereunder in confidence and trust for the sole and exclusive benefit of thedisclosing party, and shall not use the Information for its own benefit or forthe benefit of any third party. d at ~ 5. [emphasis added].

8/13/2019 13-CV-8645 SDNY

11/78

{1 17 616 89 23 1 11 7581 1 }11

03004, was entered into on February 22, 2010, between PepsiCo, Inc. (,PEPSI ) [... ] and54. The fourth written confidentiality agreement, Agre ement No. 2010-NDA-iv The 2 1 Confidentiality Agreement

above-recited exceptions. fd at p. 3. [emphasis added].secrets or manufacturing know-how shall not expire unless it is subject to one or more of thefor Confidential Information received hereunder [... ] relating to formula, ingredients, trade

53. The 05 CA states that: [e]ach party s obligations of confidentiality and non-use

[P]arty receiving Confidential Information acknowledges that the ConfidentialInformation is the confidential and proprietary information and property of theother and that the receiving party does not have any claim, right, title, propertyor other interest or license of any kind or nature in the ConfidentialInformation. The receiving party shall hold and maintain the ConfidentialInformation in strict confidence and in trust for the sole and exclusive benefitof the disclosing party. d [emphasis added].

52. Pursuant to the 05 CA, acare. fd at p. 2.to protect its own Confidential Information, but in any event, not less than a reasonable degree ofInformation disclosed to it by the other in a manner at least as equal to the degree of care it uses

51. According to the 05 CA, the parties agreed to maintain the Confidential[emphasis added].receiving party that is based on Confidential Information received from the other [.... ]. lConfidential Information received from the other and (ii) any information developed by thewriting to any third party or to use in any way except as expressly granted herein (i) any of the

50. Pursuant to the 05 CA, the parties agree[dJ not to disclose either orally or in

product information, methods of manufacture, intangible assets, andderivative works made by the receiving party that are based on ConfidentialInformation disclosed to it by the other [.... fd

8/13/2019 13-CV-8645 SDNY

12/78

0176/608923000/011075811 12

added]. The parties also agreed that nothing contained in [the 10 CAl gives one Party the rightuse Confidential Information solely in connection with the Project. Id at ~ 3. [emphasis

58. Pepsi agreed under the 10CA that, in the event of a Two-Way CITR, it [would]whether disclosed in writing, orally, visually or by samples. Id at ~ 2(a).obtained, developed, and/or information that the Recipient is exposed to under the Projectas used in this Agreement and any relevant CITR means any and all information disclosed,

57. The 10 CA stated that, under a Two -Way CITR [... ] Confidential Information,

PEPSI and/or one or more of its affiliates (as defmed herein) and COMPANYare interested in discussing and potentially conducting research, pursuant tothe Project as described in the CITR. In order to have meaningful discussionsand carry out any agreed upon research, certain information related to theProject may be disclosed that is considered confidential. In consideration ofthe attendant opportunity for mutual benefit, the sufficiency of which isacknowledged and agreed, The Parties agree that PEPSI and/or its Affiliatesand PEPSI CITR Entity s defined in the CITR) ( PEPSI GROUP) andCOMPANY~ as the circumstances and terms of the CITR dictate, maydisclose and receive Confidential Information (as defined hereunder) relatedto the Project, provided that the recipient observes the requirements set forthherein to ensure that such Confidential Information is kept confidential andnot used in any way, except as expressly authorized herein. Id at ~ 1.

56. Pursuant to the 10 CA, the purpose of disclosing confidential information was:followingprovisions. Exhibit D.Transfer Record (C ITR), as more fully described herein shall be treated in accordance with theparty (as Recipient ), provided for the limited purpose stated in the Confidential InformationInformation, as defined below, provided by the disclosing party, (as Owner), to the receiving

55. As a result of the 10 CA, the parties agreed th at any disclosed Confidential1 0 CA is attached hereto as Exhibit ScentSational Technologies, Inc. ( Company) (the 10 CA ). A true and correct copy of the

8/13/2019 13-CV-8645 SDNY

13/78

{I01 76 6089 230 00 01 107 58 I} 13

purpose other than the Project. ld. [ emphasis added].Confidential Information under this CrTR may not use that Confidential Information for any

63. Pursuant to the Two-Way CITR, the parties agreed that the Recipient of any

Confidential Information being disciosed under this CITR is to be used solelyfor the purpose of sharing openly the details behind aroma-based technologiesfor possible use and application in and/or relating to the LRB portfolio,Protein containing beverages, Carbonated beverages, Water/enhanced water,Sports drinks, Energy drinks, Dairy based drinks, Juices/juices-containingbeverages, Coffee products, and Tea products (the Project ) . d at p. 6.

pursuant to which the parties agreed that:62. On February 22, 2010, PepsiCo and Scentsational executed a Two-Way CITR,

same entity that controls PEPSI [.... ]. d at ~ 8.company or other legal entity [.... ii) controlled by PEPSI and/or iii) is under control of the

61. Under the 10 CA, Affiliate [... ] with respect to PEPSI is defined as anyto one or more of the exceptions recited below. d at ~ 4. [emphasisadded].formulae, ingredients, trade secrets or manufacturing know-how did not expire unless subjectbehalf [.... and (ii) each Partys obligations of confidentiality and non-use relating to productInformation was first disclosed, made available or shared by the Owner or anyone acting on itsInformation disclosed thereunder was effective retroactively from the date Confidential

60. Pursuant to the 10 CA, the parties obligations with respect to (i) ConfidentialProject and not for any other purpose whatsoever. d [emphasisadded].to the Recipient the right to use the Owners Confidential Information for the sole purpose of the

59. Furthermore, under the 10 CA, the parties agreed that the Owner hereby grantscontaining the Confidential Information of the other Party. d [emphasis added].to file any patent applications for or otherwise disclose or use any intellectual property

8/13/2019 13-CV-8645 SDNY

14/78

8/13/2019 13-CV-8645 SDNY

15/78

{10176/608923-000/01107581.1}15

university proving, inter li that packaging incorporating ScentSational s flavor modificationmethod and other confidential information delivered an improved flavor experience, includingthe ability to impact the perception of sweetness, and increased product value (the ConsumerStudy Trade Secret ).

71. addition to its flavor modification method and Consumer Study Trade Secrets,ScentSational confidentially disclosed to PepsiCo its Trade Secrets concerning packaged orangejuice. ScentSational proposed that PepsiCo incorporate ScentSational s Trade Secrets and otherconfidential information concerning various methods of applying specially formulated aroma tothe bottle closure, fitment, or packaging to its Tropicana products to give consumers theperception that Tropicana juice smelled and tasted more like fresh squeezedjuice (the OrangeJuice Trade Secrets ).

72. At the request of PepsiCo, ScentSational created and provided product samples(including, but not limited to, bottle closures and fitments) to PepsiCo that incorporatedScentSational s Orange Juice Trade Secrets.

73. During me parties confidential relationship, ScentSational also disclosed itsTrade Secret concerning proprietary methodologies in the manufacture, curing, and use ofscented liners and coating materials in food and beverage packaging (the Scented Liner TradeSecret ).

74. PepsiCo believed ScentSationals Scented Liner Trade Secret was commerciallyviable. For example, PepsiCo requested that ScentSational submit to PepsiCo a developmenttimeline that would allow the parties to commercialize PepsiCo products incorporating theScented Liner Trade Secret by January 1,2010.

8/13/2019 13-CV-8645 SDNY

16/78

{101766 0892 3 000 0 1107581.1}

b. proprietary methods of using different polymer blends including, but not limited to,waxes, to food and beverage packaging to enhance the aroma of taste of products (the Polymer Blend Trade Secret ); and

a. proprietary methods concerning the application and use of both oil-based(hydrophobic) and water-based (hydrophilic) flavors in a polymeric base with foodand beverage packaging (the Oil and Water Polymeric Base Trade Secret );

confidentially disclosed Trade Secrets concerning, inter liInnovation Team with product samples implementing ScentSational s Trade Secrets and

79. During the March 25, 2010 Presentation, ScentSational provided PepsiCos March 25, 2010 Presentation ).Team for a presentation at PepsiCo corpo rate headquarters 1 . . 1 Valhalla, New York (the

78. On March 25, 2010, ScentSational met with members of PepsiCos Innovation2010Request) .Secrets to present to PepsiCos then-Chairperson and Chief Executive Officer (the March 22,PepsiCo for more of the aforementioned product samples incorporating ScentSational s Trade

77. As recent as March 22, 2010, ScentSational received an urgent request fromscented encapsulates.consumer experience by modifying the aroma on the outside of packaged beverages usingfrom ScentSational that incorporated ScentSational s Trade Secret methods of enhancing the

76. For example, as early as 2001, PepsiCo requested flavored beverage closuresTexas, and New York.representatives often traveled, at their own expense, to PepsiCo s facilities in Illinois, Florida,ScentSationals Trade Secrets and other confidential information. In response, ScentSationalnumerous requests for product samples and presentations concerning the utilization of

75. Moreover, throughout the parties confidential relationship, PepsiCo made

8/13/2019 13-CV-8645 SDNY

17/78

{IOI76/608923-000/0110758U}

challenged title to same.Secrets and other confidential information remained ScentSationals property, and PepsiCo neverinvented such concepts independently. Indeed, as set forth in the CAs, ScentSationals Trade

disclosed by ScentSational were the property of PepsiCo or its subsidiaries, or that they had everScentSational that ScentSationals Trade Secrets or other confidential information confidentiallyor its subsidiaries, including Defendants PepsiCo Tech, Quaker, Stokely, and Tropicana, advise

83. At no time during the course of their relationship did anyone working for PepsiCoD PepsiCo Used ScentSational s Trade Secrets to Pursue Patents for PepsiCo s SoleCommercial Benefit

PepsiCo informed ScentSational that PepsiCo was not interested in scent-enhanced packaging.82. However, at the end of the parties nearly-decade long confidential relationship,

Secrets.agreements included, inter li the Consumer Study Trade Secret and Orange Juice Trade

81. The ScentSational Trade Secrets included in the proposed developmentFrito-Lay dips, Propel water, and Starbucks Frappuccino drinks.PepsiCo products include, but are not limited to, Tropicana orange juice, Quaker Oats oatmeal,incorporate ScentSationals Trade Secrets into various PepsiCo products. Examples of suchPepsiCos brands and subsidiaries, resulted in numerous proposed development agreements toinformation and belief, the COEs confidential dissemination of said Trade Secrets throughout

80. ScentSationals confidential disclosures of its Trade Secrets to PepsiCo and, upon

c. details of methods of using aroma delivery systems comprised of entrapping aromasin a polymer matrix used in food and beverage packaging to enhance the aromaand/or taste of the product (the Polymer Entrapped Flavor Trade Secret ).

8/13/2019 13-CV-8645 SDNY

18/78

{10176/60 923-000/0110758Ll}18

product experience. It was discovered that the aroma experience was enhanced whichfocused packaging/product innovation for orange juice was developed to enhance the overall

88. In paragraph 0023 of the '245 Publication, PepsiCo claimed anew aroma-aroma delivery, including applying at least one aroma to a comestible's packaging.

87. The '245 Publication claimed a method for modifying flavor experience viathe '10 CA. A true and correct copy of the '245 Publication is attached hereto as Exhibit F.claimed by PepsiCo inthe '245 Publication, and weeks after ScentSational and PepsiCo executedproduct samples from ScentSational that incorporated the very encapsulated aroma technologies'''245 Publication), a mere 18 days before PepsiCo's urgent March 22, 2010 Request forconfidential relationship) as U.S. Patent Application Publication No. US 2010-0055245 Al (the

86. The '549 Application was published on March 4, 2010 i.e. during the parties'Application. A true and correct copy of the '549 Application is attached hereto as Exhibit the time, were identified as the inventors, and PepsiCo was identified as the assignee, of the '549Marco Covarrubias, of White Plains, New York, both of whom were employees of PepsiCo atFlavor Experience via Aroma Delivery. Margaret Havekotte of Fairfield, Connecticut, andfiled U.S. Patent Application No. 12548549 (the '549 Application), entitled Modifying

85. On August 27, 2009, i.e. during the parties' confidential relationship), PepsiCo

PepsiCo Misappropriated and Used ScentSational s Trade Secrets inConnectionwith US Patent Application No 12 548 549

commercial benefit.Secrets to file and prosecute at least three United States patent applications for PepsiCo's solecontractual relationships, misappropriated ScentSational's Trade Secrets by using said Trade

84. Nonetheless, PepsiCo, in violation of its duties under the parties' confidential and

8/13/2019 13-CV-8645 SDNY

19/78

{10 176/60 892 300 0/01107581 1 }19

delivery.92. PepsiCo, in turn, used the results of its own consumer studies (designed and

conducted using ScentSationals Trade Secrets) to support its claimed method of flavormodification via aroma delivery in the 549Application and 245 Publication.

93. The chart below (referencing the 245 Publication) includes some ofScentSationals Trade Secrets that PepsiCo misappropriated and used in violation of its dutiesunder the parties confidential and contractual relationships to (i) conduct its own consumer

PepsiCos own consumer studies concerning orange juice and flavor modification via aroma

compensated for the fresh orange juice characteristics lost during processing. In addition tasteperception was enhanced through aroma-taste interaction.

89. In paragraphs 0024-0026 of the 2 45 Publication, PepsiCo claimed thatC onsumer testing was performed as follows: [e]ach respondent was served one control (currentshelf-stable orange juice product) and one test sample. Test samples consisted of chilled shelfstablejuice [... ] [e]ncapsulated aromas were pre-applied to the cap prior to testing [.... ].

90. In paragraph 0028 of the 2 45 Publication, PepsiCo claimed it was found that thetest product was significantly preferred compared to the control [... ] the test product was judgedby consumers to be significantly healthier, more natural, hand-squeezed, higher quality andenergizing compared to the control product.

91. The foregoing paragraphs demonstrate that, rather than use ScentSational s TradeSecrets (including, but not limited to, the Consumer Study Trade Secret and Orange Juice TradeSecrets) to pursue the projects set forth in the CAs, PepsiCo misappropriated and used (andcontinues to misappropriate and use) ScentSational s Trade Secrets to prepare and conduct

8/13/2019 13-CV-8645 SDNY

20/78

{I 176/608923 000/011758 11120

ScentSational Trade Secret 245 Publication Claim(s) 245 Publication Description(s) The Consumer Study Trade 2,6, 0004, 0005, 0008, 0013, 0014,Secret 0028The Orange Juice Trade 3, 12, 17 0011, 0014, 0015, 0016, 0019,Secrets 0023,0025,0026The Polymer Entrapped 3-12, 14-20 0021,0026Flavor Trade SecretThe method of applying a 2,6, 0004, 0005, 0008, 0013, 0014,sweet aroma on food and 0028beverage product packaging todrive an enhanced perceptionof sweetness of taste toconsumers duringconsumptionThe method of applying aroma 0004,0008,0015to food and beveragepackaging to mitigate thebitter taste of the packagescontentsthe method of applying aroma 4, 13,21 0007,0018,0021only on the outside of food orbeverage product packaging toenhance the consumerexperience while notimpacting the chemicalcomposition of the productDetails of methodologies for 0004, 0008, 0014, 0016, 0023,prolonging fresh notes from 0028the products by identifyingfresh notes and keeping themstable by applying them topackaging and keeping themfresher from manufacture toend of shelf lifeMethods and knowhow related 0002to the use of barrier and non-barrier secondary protectivecoatings on the surface offlavor scented polymer matrixblends and flavored

Application.testing in furtherance of, inter alia the 549 Application and (ii) to file and prosecute the 549

8/13/2019 13-CV-8645 SDNY

21/78

{ 1017 6 6089230 00011 7581 1}21

microencapsulates used infood and beverage packagingDetails of methods and 00250026knowhow related to extendingproduct shelf life by applyingflavors to food and beveragepackagingMethod of application and 1410 12 0001 0010 00170019 0021dosing during the flavor 0024 0028application to food andbeverage packagingMethods knowhow and 112 1420 0004 0005 0008 0013 0016approach for developing 00170026aromas to work in concertwith the bad smell of aproduct instead of attemptingto mask the bad smell whenapplying to food and beveragepackagingMethodologies strategic 2 00050013placement and use of aromasto minimize costs withmaximum effect whenapplying aromas to food andbeverage packagingMethods of containing cross 00210026contamination in packagingmanufacturing plants whenapplying aromas to food andbeverage packagingMethodologies in the 0018manufacturing curing and useof scented liners and coatingmaterials in food and beveragepackaging along with asecondary coating to maintainthe longevity of the aromaThe method of using a 1312 1420 001900230025 0026secondary covering to protectaroma applied to food andbeverage packagingProprietary method of 9 12 17 19 23 00110012 00190021applying aroma to coffeepackaging to enhance thearoma and taste of coffee

8/13/2019 13-CV-8645 SDNY

22/78

{101 76/ 6089 23 000 /01 10 7581 1 }22

and to prevent PepsiCos competitors from having access to such valuable information.PepsiCo chose not to disclose ScentSationals T rade Secrets in order to maintain their secrecydoes not expressly disclose ScentSational s Trade Secrets. Indeed, upon information and belief,Application, and the file history thereof (including the 2 45 Publication), the 549 Application

95. While certain ScentSational Trade Secrets are embodied within the 54 9Examinationwith the USPTO.Office (the U SPTO) and, on January 21, 2013, PepsiCo filed a Request for ContinuedPepsiCo filed its Information Disclosure Statement with the United States Patent and Trademarkother confidential information to prosecute the 549 Application. For example, on June 2,2011,relationships, PepsiCo continues to misappropriate and use ScentSational s Trade Secrets and

94. violation of its duties arising out of the parties confidential and contractual

Proprietary formulation 2, 3, 6, 7, 8, 11, 12, 17 0005,0011,0013,0014,0015,methods for flavors applied to 0016food and beverage packagingto enhance the aroma andtaste of productMethodologies and knowhow 1, 10 0001,0007,0009,0016,0023,in driving improved consumer 0028experience by applying aromato food and beverageJ:)_ackaging_Proprietary method of 0003delivering certain ingredientsand experience without havingto re-label the productpackagingMethod of application and 1,4,10,20 0001,0010,0017,0018,0019,dosing during the flavor 0021, 0024-0029application to food andbeverage packaging

8/13/2019 13-CV-8645 SDNY

23/78

{101 7660892300 001107 58 1 1 }23

biopolymer, a natural polymer, a synthetic polymer, and blends thereof. [ emphasis added].wherein the polymer matrix is selected from the group consisting of a natural wax, a natural

101. nClaim 17 of the 6 83 Application, PepsiCo claimed the container of claim 13,compound, a polar compound, a hydrophilic compounds, and blends thereof. [emphasisadded].of claim 1, wherein the aroma compound is selected from the group consisting of a volatile

100. In Claim 3 of the 683 Application, PepsiCo claimed the aroma delivery systemvolatile compounds. Exhibit G at ~ 01.[that] [... ] related to a water-resistant aroma delivery system comprising polar, non-polar, and

99. In the 683 Application, PepsiCo claimed to invent an aroma delivery system

correct copy of the 683 Application is attached hereto as Exhibit G683 Application) . PepsiCo was identified as the assignee of the 683 Application. A true and

Number 12/831,683 entitled Releasable Entrapment of Aroma Using a Polymeric Matrix (the98. On July 7, 2010, Given and one Naijie Zhang ( Zhang ) filed U.S. Patent Serial

2010 Presentation.Trade Secrets which ScentSational confidentially disclosed to PepsiCo during the March 25,Polymer Blend, and Polymer Entrapped Flavor Trade Secrets were among those ScentSational25, 2010 Presentation. As discussed, supr ScentSationals Oil and Water Polymeric Base,

97. Specifically, Peter Given was among those known to be present during the MarchScentSationals Trade Secrets and other confidential informationwere disclosed.present during meetings and presentations between ScentSational and Defendants in which

96. Upon information and belief, an individual named Peter Given (G iven ) was

ii PepsiCo Obtained the 637 Patent By Misappropriating and UsingScentSational s Trade Secrets

8/13/2019 13-CV-8645 SDNY

24/78

{ 1017 6 608923 000 0 11 75811 }2 4

ScentSational Trade Secret 9 0 9 Publication Claim(s) 9 0 9 Publication Description

Orange Juice Trade Secrets 1 - 2 0 0 0 2 8Oil and Water Polymeric Base 3 0 0 4 4Trade SecretPolymer Blend Trade Secret 1 6 - 2 0 . 0 0 3 5 , 0 0 3 9 , 0 0 4 2Polymer Entrapped Flavor 1 , 1 3 0 0 0 1 , 0 0 0 7 , 0 0 1 6 , 0 0 2 0 , 0 0 2 2 ,Trade Secret 0 0 2 4 - 0 0 25 , 0 0 2 7 , 0 0 3 2 , 0 0 3 4 ,

0 0 4 1 ; 0 0 4 7 , 0 0 5 7The method of applying aroma 7 0 0 0 1 , 0 0 0 6 , 0 0 1 6 , 0 0 1 7 , 0 0 2 0 ,to food and beverage 0 0 2 3 - 0 0 3 0 , 0 03 2 - 0 0 3 5 , . 0 0 3 7 -packaging to mitigate bitter 0 0 3 9 , 0 0 4 1 , 0 0 4 2 , 0 0 4 6 , 0 0 4 7 ,taste of contents of package 0 0 4 9 , 0 0 5 5 , 0 0 5 7 , 0 0 5 8The method of applying aroma 1 - 2 0 0 0 0 1 , 0 0 0 6 , 0 0 1 6 , 0 0 1 7 , 0 0 2 0 ,only on the outside of food or 0 0 2 3 - 0 0 3 0 , 0 0 3 2 - 0 0 3 5 , 0 0 3 7 -beverage product packaging to 0 0 3 9 , 0 0 4 1 , 0 0 4 2 , 0 0 4 6 , 0 0 4 7 ,enhance consumer experience 0 0 4 9 , 0 0 5 5 , 0 0 5 7 , 0 0 5 8while not impacting thechemical composition of theproductThe method of applying 1 6 - 2 0 0 0 3 5 , 0 0 3 9 , 0 0 4 2different flavored polymerblends, including waxes tofood and beverage packagingto enhance the aroma and tasteof productMethods of containing cross 0 0 14 - 0 0 1 5 , 0 0 2 5 - 0 0 2 6 , 0 0 4 1contamination i n packagingmanufacturing plants whenapplying aromas to food and

parties' confidential and contractual relationships to file and prosecute the 6 8 3 Application:2 0 1 0 Presentation) that PepsiCo misappropriated and used violation of its duties under theScentSational's Trade Secrets (including those confidentially disclosed during the March 2 5 ,

1 0 3 . The chart below (referencing the 9 0 9 Publication) includes some ofcopy of the 9 0 9 Publication is attached hereto as xhibit HApplication Publication No. 2 0 1 2 - 0 0 0 6 90 9 Al (the 9 0 9 PUblication ). A true and correct

1 0 2 . On January 1 2 , 2 0 1 2 , the 6 8 3 Application was published as U.S. Patent

8/13/2019 13-CV-8645 SDNY

25/78

{I0176/608923 0001 01107581 1 12 5

beverage packagingDetails of methodologies for 0 0 0 2 0 0 2 5prolonging fresh notes fromthe products by identifyingfresh notes and keeping themstable by applying them topackaging and keeping themfresher from manufacture toend of shelf lifeDetails of methods and 0 0 2 3knowhow related to extendingproduct shelf life by applyingflavors to food and beveragepackagingMethods and knowhow related 15 12 1 3 1 4 1 7 2 0 0 0 1 6 0 0 2 0 0 0 2 2 0 0 2 6 0 0 3 1to the use of barrier and non- 0 0 4 3 0 0 4 5 0 0 4 8 0 0 5 7 barrier secondary protectivecoatings on the surface offlavor scented polymer matrixblends and flavoredmicroencapsulates used infood and beverage packagingMethods knowhow andapproach for developing 0 0 2 5aroma s to work concertwith a bad smell of a productto correct it instead ofattempting to mask theunwanted aroma whenapplying to food and beveragepackagingThe method of applying aroma 0 0 0 9to beverage packaging in orderto deliver improved aroma and r taste experience when theorifice in the container lid issmall and otherwise limitingthe aroma release of theproductMethodologies and knowhow 0 0 2 5 driving improved consumerexperience by applying aromato food and beveragepackagingThe method of using a 1 9 1 2 1 4 1 9 2 0 0 0 0 6 0 0 1 6 0 0 1 7 0 0 2 0 0 0 3 8

8/13/2019 13-CV-8645 SDNY

26/78

P0176/608923-000/0110758Ll }2 6

4. The container of claim 1, wherein the polymer matrix is selected from the

3. The container of claim 1, wherein the secondary covering film is selectedfrom the group consisting of a polysaccharide, a synthetic polymer, a naturalwax, a natural biopolymer, a natural film former, and blends thereof.

1 0 7 . Claims 3 - 5 of the 6 3 7 Patent, PepsiCo claimed:compound, a hydrophilic compound, and blends thereof. [emphasis added].the aroma compound is selected from the group consisting of a volatile compound, a polar

1 0 6 . Claim 2 of the 6 3 7 Patent, PepsiCo claimed the container of claim 1, wherein[... ]. [emphasis added].aroma delivery system comprises: an aroma compound entrapped within a polymeric matrixclosure and an aroma delivery system positioned between the closure and container wherein the

1 0 5 . In Claim 1 of the 6 3 7 Patent, PepsiCo claimed a container having an openableissued, is attached hereto as xhibit Iidentified as the Assignee of, the 6 3 7 Patent. A true and correct copy of the 6 3 7 Patent, as 6 3 7 Patent ). Messrs. Given and Zhang are identified as the inventors, and PepsiCo is

1 0 4 . On July 2 , 2 0 1 3 , the 6 8 3 Application issued as U.S. Patent No. 8 , 4 7 4 , 6 3 7 , the

secondary covering to protect 0 0 3 9 , 0 0 4 0 ,aroma applied to food andbeverage packagingProprietarymethod of 1 - 2 0 0 0 0 1 , 0 0 0 6 , 0 0 1 6 , 0 0 1 7 , 0 0 2 0 ,applying aroma to coffee 0 0 2 3 - 0 0 3 0 , 0 0 3 2 - 0 0 3 5 , 0 0 3 7 -packaging to enhance the 0 0 3 9 , 0 0 4 1 , 0 0 4 2 , 0 0 4 6 , 0 0 4 7 ,aroma and taste of coffee 0 0 49 , 0 0 5 5 , 0 0 5 7 , 0 0 58Proprietary method, use, and 1 , 1 3 0 0 1 6 , 0 0 2 0 , 0 0 2 4 , 0 0 2 5 , 0 0 2 7 ,placement of encapsulated 0 0 3 2 , 0 0 3 4 , 0 0 4 1aromatic flavors to keep themstable and protected inapplying them to food andbeverage packaging prior toconsumption

8/13/2019 13-CV-8645 SDNY

27/78

{1 1761 689 23 111758 }27

the parties confidential and contractual relationships to file and prosecute the 834 Application:confidentially disclosed during the March 25, 2010 Presentation) in violation of its duties underScentSationals Trade Secrets that PepsiCo misappropriated and used (including those

112. The chart below (referencing the 551 Publication) includes some ofof the 551 Publication is attached hereto as Exhibit KApplication Publication No. 2013-0056551 AI (the 551 Publication ). A true and correct copy

111. On March 7, 2013, the 834 Application was published, namely, U.S. Patentcorrect copy of the 834 Application is attached hereto as Exhibit 834 Application) . PepsiCo is identified as the assignee in the 834 Application. A true and

namely, U.S. Patent Application No. 13223834 entitled Releasably Encapsulated Aroma (the11 On September 2, 2011, Messrs. Given and Zhang filed another patent application,

iii PepsiCo Misappropriated and Used ScentSational s Trade Secrets inConnection with the 834 Application

and to prevent PepsiCo s competitors from having access to such valuable information.PepsiCo chose not to disclose ScentSationals Trade Secrets. in order to maintain their secrecydoes not expressly disclose ScentSational s Trade Secrets. Indeed, upon information and belief,and file history thereof (including the 683 Application and 909 Publication), the 637 Patent

109. While certain ScentSational Trade Secrets are embodied within the 637 Patent,6 37 Patent.

108. Landau, not Given or Zhang, is the true inventor of the invention(s) claimed in the

5. The container of claim 4, wherein the polymer matrix is a natural wax.[emphasis added].

group consisting of a natural wax, a natural biopolymer, a natural polymer,and blends thereof.

8/13/2019 13-CV-8645 SDNY

28/78

{1017616 0892 30001 01 10 7581 1 }2 8

ScentSational Trade Secret 5 5 1 Publication Claim(s) 5 5 1 Publication Description Oil and Water Polymeric Base 0 0 2 5 0 0 2 9 0 0 3 0Trade SecretPolymer Blend Trade Secret 6 1 6 0 0 0 7 0 0 2 7 0 0 4 3Orange Juice Trade Secret 0 0 2 1Scented Liner Trade Secret 1 6 9 1 3 - 1 7 0 0 0 6 0 0 0 7 0 0 1 2 0 0 1 4 0 0 1 5

0 0 2 2 0 0 2 6 - 0 0 3 0 0 0 4 2 - 0 0 4 4Polymer Entrapped Flavor 1 8 9 0 0 1 8 0 0 3 1 0 0 4 2 - 0 0 4 3Trade SecretThe method of applying a 6 1 1 0 0 0 7 0 0 2 7sweet aroma on food andbeverage product packaging,to drive an enhancedperception of sweetness oftaste to consumers duringconsumptionDetails of the method, use, 1 8 9 0 0 1 8 0 0 3 1 0 0 4 2 . 0 0 4 3and placement of scentedencapsulated coatings on theoutside of food and beveragepackaging to drive consumerexpenenceThe discovery through testing 1 9that different Let DownRatio s (LDRs) should be useddepending on the aromatics ofthe flavor and product itselfwhen applying them to foodand beverage packagingProprietary method of 0 0 0 2 0 0 1 7 0 0 1 9 0 0 2 1applying aroma to coffeepackaging to enhance thearoma and taste of coffeeMethods and knowhow related 1 6 7 9, 1 3 - 1 6 0 0 2 6 - 0 0 3 0 0 0 4 2 - 0 0 4 4to the use of barrier and non-barrier secondary protectivecoatings on the surface offlavor scented polymer matrixblends and flavoredmicroencapsulates used infood and beverage_Q_ackagingThe method of applying 6 1 6 0 0 0 7 0 0 2 7 0 0 4 3different flavored polymerblends, including waxes to

8/13/2019 13-CV-8645 SDNY

29/78

{lOI76f608923 000fOl10758Ll }2 9

food and beverage packagingto enhance the aroma and tasteof productDetails of methodologies for 0 0 0 2 0 0 1 9prolonging fresh notes fromthe products by identifyingfresh notes and keeping themstable by applying them topackaging and keeping themfresher from manufacture toend of shelf lifeMethodologies and knowhow 0 0 0 1 0 0 0 4 0 0 1 8 0 0 1 9in driving improved consumerexperience by applying aromato food and beveragepackagingDetails of methods and 0 0 1 7knowhow related to extendingproduct shelf life by applyingflavors t o food and beveragepackagingMethods of containing cross 0 0 0 5 0 0 0 8 0 0 1 2 0 0 1 4 0 0 1 5 contamination in packaging 0 0 2 3 0 0 2 6 0 0 2 8 0 0 3 3 0 0 4 4manufacturing plants whenapplying aromas to food andbeverage packagingMethods knowhow and 0 0 1 9approach for developingaromas to work in concertwith a bad smell of a productto correct it instead ofattempting to mask theunwanted aroma whenapplying to food and beveragepackagingThe method of applying aroma 0 0 0 3 0 0 0 4to beverage packaging in orderto deliver improved aroma and rtaste experience when theorifice in the container lid issmall and otherwise limitingthe aroma release of theproductThe method of using a 1 6 9 1 3 1 6 0 0 1 2 0 0 1 4 0 0 1 5 0 0 2 2 0 0 2 6 secondary covering to protect 0 0 3 0 0 0 4 2 0 0 4 4

8/13/2019 13-CV-8645 SDNY

30/78

{10 176 /60892 30001011 07 581 1 }30

ScentSational was to develop scented packaging technologies for Coca-Cola-owned packagedAccordingly, Coca-Cola entered into an exclusive agreement with ScentSational, wherein

116. Coca-Cola believed that ScentSational s Trade Secrets were commercially viable.packaged orange beverages, accelerated.ScentSational s Orange Juice Trade Secrets and confidential information with Coca-Cola-ownedend, ScentSational s discussions with Coca-Cola concerning the use of, inter li

115. As ScentSationals nearly decade-long relationship with PepsiCo was nearing itssome that competed directly with PepsiCo.aware that ScentSational was cultivating business relationships with other major CPGs, including

companies, including to PepsiCos direct competitors. fact, at all relevant times, PepsiCo was

E. ScentSational s Relationship With Coca Cola114. None of the CAs prohibited ScentSational from offering its technologies to other

and to prevent PepsiCo s competitors from having access to such valuable information.PepsiCo chose not to disclose ScentSationals Trade Secrets in order to maintain their secrecydoes not expressly disclose ScentSational s Trade Secrets. Indeed, upon information and belief,Application, and the file history thereof including the 551 Publication), the 834 Application

113. While certain ScentSational Trade Secrets are embodied within the 834

aroma applied to food andbeverage packagingProprietary method, use, and 1, 8,9 0007,0012,0018,0031,0042,placement of encapsulated 0043aromatic flavors to keep themstable and protected inapplying them to food andbeverage packaging prior toconsumption

8/13/2019 13-CV-8645 SDNY

31/78

{1 17 6 689 23 1107581.1}31

orange beverages using, inter li ScentSational's Orange Juice Trade Secrets (the Coca-ColaProject ).

117. In addition to the Coca-Cola Project, ScentSational was actively involved withCoca-Cola on a project concerning the incorporation of ScentSational's Trade Secrets into thepackaging of one of Coca-Cola's global, carbonated soft drinks (the CSD Project).

118. The Coca-Cola and CSD Projects were extremely important to ScentSational.Indeed, based upon the pre-negotiated, per unit pricing and projected volumes provided toScentSational by Coca-Cola, the Coca-Cola Project would have resulted in an annual profit forScentSational of approximately of 18 million, w t expectations by both Coca-Cola andScentSational for future annual revenues to meet or exceed this amount, The CSD Project wouldhave resulted in an annual profit for ScentSational of approximately 3 million.

119. Due to the exclusive and lucrative nature of its opportunities with Coca-Cola,ScentSational focused the majority of its time and resources in late 2010 and 2011 onsuccessfully completing the Coca-Cola and CSDProjects.

120. With respect to the Coca-Cola Project, focus group testing Coca-Cola revealedthat a significant percentage of respondents preferred its orange juice beverage incorporatingScentSational's Trade Secrets and confidential information over the identical product withoutthem. Indeed, according to Coca-Cola, the focus group testing results were extraordinarily highand uncommon for an established brand. Accordingly, the Coca-Cola Project was one of CocaCola's top global juice-packaging initiatives for 2011 and 2012.

121. Because of the Coca-Cola Project's initial success, ScentSational and Coca-Colabegan working to manufacture product samples to be presented to the Board of Directors ofCoca-Cola at its January 22, 2012 meeting.

8/13/2019 13-CV-8645 SDNY

32/78

{10176 608923000 01107581 1}32

127. ScentSational also stood to benefit from other projects and future opportunitieswith Coca-Cola, the world s largest beverage company with an excess of 500 packaged brands.

128. As a result of the 549 and 834 Applications, and the 637 Patent, as well as thefile histories thereof, ScentSational has lost business opportunities and credibility with Coca-

history.

on the Coca-Cola Project.126. The CSD Project was also cancelled because of the 549 Application and its file

the 549 Appiication and its file history, Coca-Cola would not move forward wit..hScenrSational

122. At the same time, ScentSational was developing and delivering product samplesin furtherance of the CSD Project. anticipation of commercializing the CSD Project, CocaCola began designingproduct labels with images depicting the release of aromatic flavors.F. ScentSational s Damages Caused by PepsiCo s Wrongful Acts

123. On October 28,2011, while Coca-Cola and ScentSationalwere accelerating PhaseII of the Coca-Cola Project (which readied the technology for commercialization), an attorney inthe office of the General Counsel at Coca-Cola discovered the file history for PepsiCo s 54 9Application, and immediately suspended the Coca-Cola Project.

124. Due to PepsiCos claimed ownership to the method of applying an aroma topackaging in the file history of 549 Application, and specific references to the use of scentedpackaging on orange juice, including the consumer studies, Coca-Cola believed the 549Application (and its file history) presented a risk inconsistent with Coca-Colas intellectualproperty policies.

125. Thus, on November 16, 2011, Coca-Cola notified ScentSational that, because of

8/13/2019 13-CV-8645 SDNY

33/78

{10 176 6 0892 3000 011 075 8L1} 33

their contractual duties under the CAs.duties of trust and confidentiality arising out of the parties confidential relationship as well assubsidiaries including Defendants PepsiCo Tech Quaker Stokely and Tropicana violated their

133. By misappropriating ScentSationals Trade Secrets PepsiCo and its affiliates and

prosecute the 549 and 834 Applications and to obtain the 637 Patent.ScentSationals Trade Secrets and other confidential information by using them to file andPepsiCo Tech Quaker Stokely and Tropicana misappropriated and continue to misappropriateprojects set forth n the CAs PepsiCo and its affiliates and subsidiaries including Defendants

132. Rather than use ScentSationals Trade Secrets in furtherance of the goals and/ordisclosed its Trade Secrets and other confidential information to Defendants.relationship as well as PepsiCo s strict non-disclosure obligations under the CAs ScentSational

131. n reliance on the trust and confidence stemming from the parties confidentialfully set forth herein.

130. Plaintiff repeats and realleges paragraphs 1 through 129 of the Complaint as if

OUNTMisappropriation of Trade SecretsAgainst All Defendants

CAUSES OF ACTIONPatent as well as the file histories thereof.ScentSational owned the technologies claimed in the 549 and 834 Applications and the 637consumer contacted ScentSational expressing the mistaken belief that PepsiCo and not

129. ScentSational is aware of at least one instance of actual confusion wherein aScentSational owns the technologies claimed therein.Cola and other CPGs as well as other customers due to the mistaken belief that PepsiCo and not

8/13/2019 13-CV-8645 SDNY

34/78

{10176 608923 000 011 0758 }34

fully set forth herein.138. Plaintiff repeats and realleges paragraphs 1 through 137 of the Complaint as if

COUNT IIBreach of Contract: t 03 CA

AgainstAll Defendants)

information and belief, is in excess of 100million.purpose whatsoever, and that ScentSational be awarded damages in an amount that, uponStokely, and Tropicana be enjoined from further use of Scentxational s Trade Secrets for a..TJ.Y

137. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker,Secrets are ongoing, irreparable, and, permanent.

136. The damages caused to ScentSational by Defendants misappropriation of TradeCSD Projects, as well as other similar financially lucrative opportunities.and continues to suffer damages including, but not limited to, cancellation of the Coca-Cola andScentSational s Trade Secrets and other confidential information, ScentSational was damaged,

135. As a result of Defendants past and continuing misappropriation ofopportunities with, inter li Defendants competitors.ScentSational from using the Trade Secrets and other confidential information to pursuecommercializing the Trade Secrets and confidential information; and (iii) preventingdevelopment, or skill into developing them; (ii) preventing PepsiCos direct competitors fromincluding, but not limited to, (i) not having to invest extensive time, labor, research andinformation, Defendants obtained immediate, direct, and substantial commercial benefits

134. By misappropriating ScentSationals Trade Secrets and other confidential

8/13/2019 13-CV-8645 SDNY

35/78

{I0176 6 08 923 000 01107581.1}35

CA.145. ScentSational fully performed and discharged all of its obligations under the 03

commercial benefit of Defendants was not the purpose of the Project under the 03 CA.144. Thus, by using ScentSationals Trade Secrets to file and prosecute the 549 and

834 Applications, and to obtain the 637 Patent, Defendants breached their obligations to (i)retain them i n confidence in the same manner used to protect [their] own confidentiality andtrade secret rights and (ii) not use [ScentSationals Trade Secrets] for purposes other than theProject.

prosecute the 549 and 834 Applications, and to obtain the 637 Patent, for the exclusive

140. Pursuant to the 03 CA, PepsiCo agreed that, inter li Confidential Informationdisclosed [to them] hereunder shall be retained in confidence in the same manner used to protect[their] own confidentiality and trade secrets rights and shall not be disclosed to others or used forpurposes other than the Project.

141. ScentSational relied upon PepsiCos promise and disclosed its ConfidentialInformation, as defined in the 03 CA, to PepsiCo, which consisted of, inter liScentSationals Orange Juice Trade Secrets.

142. PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana breached, andcontinue to breach, their obligations under the 03 CA by, inter li using ScentSationals T radeSecrets to file and prosecute the 549 and 834 Applications, and to obtain the 637 Patent.

143. Specifically, the use of ScentSationals Trade Secrets by PepsiCo to file and

139. On December 29, 2003, PepsiCo, on behalf of PepsiCo Tech, Quaker, Stokely,and Tropicana, and ScentSational, entered into, duly executed, and agreed to be bound by, the 3 CA .

8/13/2019 13-CV-8645 SDNY

36/78

{l01761608923-000101107581.1}36

for the benefit of any third party.exclusive benefit of the disclosing party, and shall not use the information for its own benefit orinformation disclosed by the disclosing party hereunder in confidence and trust for the sole and

151. Pursuant to the '04 CA, PepsiCo agreed to, inter li hold and maintain theby the '04 CA.hand, and ScentSational, on the other hand, entered into, duly executed, and agreed to be boundaffiliates, which necessarily includes PepsjCo Tech, Quaker, Stokely, ~nd Tropicana, on the one

150. On December 8, 2004, PepsiCo, on behalf of itself and its subsidiaries andfully set forth herein.


COUNT IIIBreach of Contract: the 4 CA

(Against All Defendants)

information and belief, is in excess of 100 million.purpose whatsoever, and that ScentSational be awarded damages in an amount that, uponStokely, and Tropicana be enjoined from further use of ScentSational's Trade Secrets for any

148. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker,Tropicana's breach of the '03 CA are ongoing, irreparable, and permanent.

147. The damages caused by PepsiCo, PepsiCo Tech, Quaker, Stokely, and/orincluding, but not limited to, cancellation of the Coca-Cola and CSD Projects.Stokely, and/or Tropicana, ScentSational has suffered, and continues to suffer, damages

146. As a direct result of the breach of the '03 CA by PepsiCo, PepsiCo Tech, Quaker,

8/13/2019 13-CV-8645 SDNY

37/78

{I 0 176 /608923 000/0 11 075811 }37

[N ]o remedy at law for damages is adequate to compensate for a breach ofthe provisions set forth in this Agreement and that the party injured by suchbreach shall be entitled to temporary or permanent injunctive relief againstany such breach, without the necessity of proving actual damages. The awardof permanent or temporary injunctive relief shall in no way limit any other

express terms of paragraph 4 of the 04 CA, the parties acknowledged that:Tropicana breach of the 04 CA are ongoing, irreparable, and permanent. Indeed, pursuant to the

157. The damages caused by PepsiCo, PepsiCo Tech, Quaker, Stokely, and/orincluding, but not limited to, cancellation of the Coca-Cola and CSD Projects.Stokely, and/or Tropicana, ScentSational has suffered, and continues to suffer, damages

156. As a direct result of the breach of the 04 CA by PepsiCo, Pepsif o Tech, Quaker,C

155. ScentSational fully performed and discharged all of its obligations under the 04[Defendants ] own benefit or the benefit of any third party.sole and exclusive benefit of [ScentSational] and (ii) to not use the [Trade Secrets] for hold and maintain information disclosed by [ScentSational] [... ]hereunder in confidence for theand 834 Applications, and to obtain the 637 Patent, Defendants breached their obligations to (i)

154. Specifically, by using ScentSationals Trade Secrets to file and prosecute the 549the 49 and 834 Applications, and to obtain the 637 Patent.[PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana s] own benefit to file and prosecuteobligations arising under the 04 CA by, inter li using ScentSational s Trade Secrets for

153. PepsiCo, PepsiCo Tech, Quaker, Stokely, and/or Tropicana breached theirTrade Secrets.defined in the 4 CA, to Pep siCo, which consisted of, inter li ScentSational s Orange Juice

152. In reliance on PepsiCos promises, ScentSational disclosed Information, as

8/13/2019 13-CV-8645 SDNY

38/78

{ 1017 6/ 6089 230 00/ 01107 581 1}38

Applications, and to obtain the '637 Patent.ScentSational's Trade Secrets to assist PepsiCo in its filing and prosecution of the '549 and '834

163. PepsiCo Tech breached its obligations arising under the '05 CA by usmgScentSational's Orange Juice Trade Secrets.Information, as defined in the '05 CA, to PepsiCo Tech which included, inter li

162. In reliance on PepsiCo's promises, ScentSational disclosed ConfidentialConfidential Information received from the other [... J in writing to any third party or t o use in any way except as expressly granted herein (i) any of theConfidential Information for the sole purpose of the Project, and not to disclose either orally or

161. Pursuant to the '05 CA, PepsiCo Tech agreed to, inter li use the other'sand agreed to be bound by the'05 CA.

160. On July 26, 2005, PepsiCo Tech and ScentSational entered into, duly executed,fully set forth herein.

159. Plaintiff repeats and rea11eges paragraphs through 158 of the Complaint as if

COUNT IVBreach of Contract: the '05 CA

(Against PepsiCo Tech)

information and belief, is in excess of 100 million.purpose whatsoever, and that ScentSational be awarded damages in an amount that, uponStokely, and Tropicana be enjoined from further use of ScentSational's Trade Secrets for any

158. Based on the foregoing, ScentSational prays that PepsiCo, PepsiCo Tech, Quaker,

remedies to which the injury party may be entitled as a result of any suchbreach.

8/13/2019 13-CV-8645 SDNY

39/78

{1 01761608923 000/0 11 07 58 1 1 }39

fully set forth herein.170. Plaintiff repeats and realleges paragraphs 1 through 169 of the Complaint as if

OU TYBreach of Contract: the 10 CA

Against PepsiCo)

be awarded damages in amount that, upon information and belief, is in excess of 100 million.further use of ScentSational's Trade Secrets for any purpose whatsoever, and that ScentSational

169. Based on the foregoing, ScentSational prays that PepsiCo Tech be enjoined fromirrep rble nd permanent.

168. The damages caused by PepsiCo Tech's breach of the '05 CA are ongoing,Cola and CSD Projects.suffered, and continues to suffer, damages including, but not limited to, cancellation of the Coca-

167. As a direct result of the breach of the '05 CA by PepsiCo Tech, ScentSational hasthe '05 CA.

166. ScentSational fully performed and discharged all of its obligations arising underthird party or to use [same] in any way except as expressly granted herein.Project and (ii) not disclose [ScentSational's Trade Secrets] either orally or inwriting to anybreached its obligations to (i) only use ScentSational's Trade Secrets for the sole purpose of theprosecution of the '549 and '834 Applications, and obtaining the '637 Patent, PepsiCo Tech

165. Thus, by using ScentSational's Trade Secrets to assist PepsiCo in its filing and'05 CA.'834 Applications, and obtaining the '637 Patent, was not the purpose of the Project under the

164. Specifically, the assistance of PepsiCo in its filing and prosecuting of the '549 and

8/13/2019 13-CV-8645 SDNY

40/78

10176/60892 3 00 0101107 58 1.1 }40

E ach Party understands and acknowledges that any disclosure ormisappropriation of any of the other Party s Confidential Information inviolation of this Agreement may cause the other Party irreparable harm, the

ongoing, irreparable, and permanent. Indeed, as set forth in paragraph 15of the 10 CA:178. The damages caused to ScentSational by PepsiCo s breach of the 10 CA, are

Cola and CSD Projects.suffered, and continues to suffer, damages including, but not limited to, cancellation of the Coca-

177. As a direct result of the breach of the 10 CA by PepsiCo, ScentSational hasthe 10 CA.

176. Scentsational fully performed and discharged all of its obligations arising underwith the Project.commercial benefit, was not in connection with the Project, let alone s olely in connectionthe 549 and 834 Applications, and to obtain the 637 Patent, for PepsiCos e xclusive

175. Specifically, PepsiCo s use ofScentSationals Trade Secrets to file and prosecutethe 637 Patent.ScentSationals Trade Secrets to :fileand prosecute the 549 and 834 Applications, and to obtain

174. PepsbCo breached its obligations ansmg under the 10 CA by usingScentSational s Orange Juice Trade Secrets.defined in the 10 CA, to PepsiCo and its Affiliates, which consisted of, inter li

173. In reliance on PepsiCo s promises, ScentSational disclosed Information, asConfidential Information solely in connection with the Project.

172. Pursuant to the 10 CA, PepsiCo agreed that, inter li it w[ould] useagreed to be bound by, the 10 CA.

171. On February 2,2010, PepsiCo and ScentSational entered into, duly executed, and

8/13/2019 13-CV-8645 SDNY

41/78

{10176/608923000/01107581.1}41

ongoing, irreparable, and permanent.184. The damages caused to ScentSational by Defendants' unfair competition are

Coca-Cola and CSD Projects, and other similarly lucrative opportunities.ScentSational was damaged, and continues to be damaged by, for example, cancellation of the

183. As a proximate result of the unfair competition engaged in by Defendants,Trade Secrets and confidential information, as described, supr constitutes unfair competition.

182. Upon information and belief, Defendants' misappropriation of ScentSational'sconfidential information; and (iii) preventing ScentSational from using its Trade Secrets.preventing PepsiCo's direct competitors from commercializing the Trade Secrets and

to, (i) not having to invest extensive time, labor, or skill into developing the Trade Secrets; (ii)misappropriating ScentSational's Trade Secrets. These advantages include, but are not limited

181. Defendants obtained immediate, direct, and substantial commercial advantages byfully set forth herein.


COUNT VIUnfair CompetitionAgainst All Defendants

be awarded damages an amount that, upon information and belief, exceed 100 million.further use of ScentSational's Trade Secrets, for any purpose whatsoever, and that ScentSational

179. Based on the foregoing, ScentSational prays that PepsiCo be enjoined from

amount of which may be difficult to ascertain and, therefore, agrees that theother Party shall have the right to apply to the aforementioned courts[including the Southern District of New York] for an order restraining anysuch threatened or further disclosure or misappropriation and for other suchrelief as the other Party shall deem appropriate, such right to be addition tothe remedies otherwise available to the other Party at law or equity.

8/13/2019 13-CV-8645 SDNY

42/78

{ 0176 608923000 01107581 1}42

ScentSational.190. Defendants afo rementioned unjust enrichment was at the expense of

and confidential information; and (iii) preventing ScentSational from using its Trade Secrets.Secrets; (ii) preventing PepsiCos direct competitors from commercializing the Trade Secretsare not limited to, (i) not having to invest extensive time, labor, or skill into developing the Tradeadvantages by misappropriating ScentSational s Trade Secrets. These advantages include, but

189. Specifically, Defendants obtained immediate, direct, and substantial commercialTrade Secrets and other confidential information.

188. Defendants were enriched y way of their misappropriation of ScentSationalsfor which PepsiCo paid no value to ScentSational.that Defendants passively learned of ScentSationals Trade Secrets and confidential information,information. Indeed, it was only through the parties confidential and contractual relationshipsand development, and capital to develop ScentSationals Trade Secrets and confidential

187. ScenrSational, not Defendants, expended substantial time, labor, skill, researchfully set forth herein.


COUNT VIIUnjust EnrichmentAgainst All Defendants

million.be awarded damages in an amount that, upon information and belief, is in excess of 100further use of ScentSationals Trade Secrets for any purpose whatsoever, and that ScentSational

185. Based on the foregoing, ScentSational prays that Defendants be enjoined from

8/13/2019 13-CV-8645 SDNY

43/78

{10176/608923-000/0110758L1}43

information) to Defendants.ScentSational transferred its assets i.e. ScentSational s Trade Secrets and confidential

197. In detrimental reliance upon Defendants express and implied promises,information.relationship to maintain the secrecy of ScentSationals Trade Secrets and confidential

196. In addition, Defendants impliedly promised during the parties confidentialprojects contemplated by the CAs.Trade Secrets and confidential information and only use them in furtherance of the goals and/orDefendants expressly promised to, inter li maintain the confidentiality of ScentSationals

195. During their confidential relationship, the parties executed the CAs, whereinfully set forth herein.

COUNT VIIIConstructive Trusts

(The 549 and 834 Application; the 637 Patent)194. Plaintiff repeats and realleges paragraphs 1 through 193 of the Complaint as if

million.restitution to ScentSational in an amount that, upon information and belief, is in excess of 100

193. Based on the forgoing, equity and good conscience dictate that Defendants makeinformation at the expense of ScentSational, Defendants have been unjustly enriched.

192. Accordingly, by misappropriating ScentSationals Trade Secrets and confidentialCSD Projects, and other similarly lucrative opportunities.and continues to suffer damages including, but not limited to, cancellation of the Coca-Cola andScentSationals Trade Secrets and confidential information, ScentSational has been damaged,

191. Specifically, as result of Defendants bad faith misappropriation of

8/13/2019 13-CV-8645 SDNY

44/78

{1 01 76/ 608 923000 10110758 1 1 }44

the alternative, a joint inventor, of the 637 Patent.Director of the USPTO and Defendants requiring that Landau be listed as the sole inventor or, in

205. Based on the foregoing, ScentSational prays that this Court issue an Order to theoccurred without any deceptive intent on the part of Landau.

204. The omission of Landau as an inventor, or joint inventor, on the 637 Patentinventor or an inventor of the inventions claimed in the 637 Patent.

203. Through omission and error, Landau was not listed on the 637 Patent as the637 Patent.

202. Landau is the sole inventor, or at least a joint inventor, of all of the claims of thefully set forth herein.


COUNT IXCorrection of Inventorship under 35 U.S.c. 256 The 637 Patent)

awarding ScentSational all benefits realized by Defendants in connection therewith.trusts upon the 549 and 834 Applications, and the 637 Patent, in favor of Scentsational,

200. Based on the foregoing, ScentSational prays that this Court impose constructiveconfidential information.unjustly enriched through their misappropriation of ScentSationals Trade Secrets and

199. For the reasons discussed, supr Defendants have been, and continue to be,and continuing to prosecute the 549 and 834 Applications, and obtaining the 637 Patent.continue to misappropriate, ScentSationals Trade Secrets and confidential information by filingrelationship, as well as their contractual duties under the CAs, Defendants misappropriated, and

198. In breach of their duties and promises arising out of the parties confidential

8/13/2019 13-CV-8645 SDNY

45/78

{l01761608923-000/01107581.1}45

C. An order to the Director of the USPTO and Defendants requiring that Landau belisted as the sole inventor or, in the alternative, a joint inventor, of the 637 Patent.

D. An order requiring PepsiCo to assign all right, title, and interest in and to the 637Patent to Plaintiff, on behalf of Landau.

E. An accounting of all benefits realized by Defendants from the 549 and 834Applications, and the 637 Patent, as well as the technologies, methods, and the like forming thebases thereof.

bases thereof

PR YER FOR RELIEFWHEREFORE based on the foregoing, Plaintiff prays for judgment against Defendants

as follows: An award of actual, consequential, incidental and special damages, plus pre and

post-judgment interest thereon, as well as punitive damages and the costs of this action, in anamount to be determined at trial, as a result of Defendants : i) past and ongoingmisappropriation of ScentSational s Trade Secrets and other confidential information inconnection with the 549 and 834 Applications, and the 637 Patent; ii) breach of the 03 CA; iii) breach of the 04 CA; iv) breach of the 05 CA; v) breach of the 10 CA; vi) unfaircompetition based upon the acts complained of herein; and vii) unjust enrichment based uponthe acts complained of herein.

B Constructive trusts placed upon the 549 and 834 Applications, and the 637Patent, awarding Plaintiff all of the benefits realized by Defendants from the 549 and 834Applications, and the 637 Patent, as well as the technologies, methods, and the like forming the

8/13/2019 13-CV-8645 SDNY

46/78

{ 0176 60892300001107581.1}

Attorneys for Plaintiff

SCHNEIDER ROTHMAN INTELLECTUALPROPERTY LAW GROUP, PLLC4651 North Federal HighwayBoca Raton, FL 33431Telephone: 561) 404-4350Facsimile: 561) 404-4353Email: [email protected]

Joel B. Rothman

Email: [email protected]: [email protected]

Melvin C. GarnerPeter S. SloaneCameron S. ReuberJonathan W. ThomasLEASON ELLIS LLPOne Barker Avenue, Fifth FloorWhite Plains, New York 10601Telephone: 914) 288-0022Facsimile: 914) 288-0023Email: [email protected] l: S loa..1.e a .Leaso:nEllis .c om

Respectfully submitted,

Dated: December 5, 2013White Plains, New York

Plaintiff demands a trial by jury for ll claims so triable.EM N FOR JURY TRI L

ScentSational s Trade Secrets and other confidential information for any purpose whatsoever.G. A permanent injunction preventing Defendants from making any further use of

Secrets or confidential information.and 834 Applications, or any other patent application that makes use of ScentSationals Trade

F. A permanent injunction against Defendants from further prosecution of the 549

8/13/2019 13-CV-8645 SDNY

47/78

EXHI IT

8/13/2019 13-CV-8645 SDNY

48/78

The recipient of Confidential Information further agrees to limit disclosure of ConfidentialInformation to those employees who are needed to accomplish the purpose stated above, andonly then to employees who have agreed to be bound y the obligations of the recipienthereunder.

5. Limited Disclosure

The recipient of Confidential Information agrees that Confidential Information disclosed to ithereunder shall be retained in confidence in the same manner used to protect its ownconfidentiality and trade secret rights and shall not be disclosed to others or used for purposesother th n the Project.

4. Agreement to Maintain Confidentiality

Each party s interest in the Project and the fact that the parties are working together on theProject is considered to be confidential information. addition, any n all informationdisclosed yone party to the other n connection with the Project, whether disclosed in writing,orally, visually or by samples, considered confidential information, unless such informationfalls within the exceptions set forth below (hereinafter any and all such information shall becollectively referred to as Confidential Information ). Each party agrees to disclose to the otherparty only such of its Confidential Information as may be reasonably necessary to accomplish thepurposes of the Project.

3. Description ofConfidential Information

PEPSICO and COMPANY desire to work together to develop prototypes for applications usingCOMPANYS technology for flavor incorporation n plastic materials for release n head space(the Project ). Both PEPSICO and COMPANY have certain information which they consider tobe confidential and proprietary regarding the subject matter of the Project and it will benecessary for each party to disclose its confidential information to the other during the course ofthe Project.

2. Background and Pm:poseof Disclosure

This Agreement is between PEPSICO, INC., on behalf of The Quaker Oats Company, Stokely-Van Camp, Inc. and Tropicana Products, Inc., its affiliates and subsidiaries ( PEPSICO ) andSCENTSATIONAL TECHNOLOGIES, LLC (C OMPANY ), each having the addresses setforth below.

1. Parties

MUTUAL CONFIDENTIALITY AGREEMENT

8/13/2019 13-CV-8645 SDNY

49/78

This Agreement supersedes all previous agreements between the parties regarding theConfidential Information and cannot be canceled, amended or modified except by writtenagreement between the parties.

11. Amendments

is Agreement shall be governed by. and construed and enforced in accordance with, the lawsof the State of Pennsylvania without regard to its provisions concerning conflicts or choice oflaw.

10. Governing Law and Jurisdiction

This greementdoes not create a relationship of agency partnership, joint ventureor licensebetween the parties. This Agreement does not obligate either party to purchase anything from orsell anything to the other party.

9. Disclaimer of Other Relationships

fter the accomplishment of the purpose stated above, or at any other time requested by thedisclosing party, the recipient shall return or destroy, at the disclosing party s direction, alldocumenis, samples or other materials embodying Confidential Information, and shall retain nocopies thereof;

8. Return of Confidential.Inforl1lation

Confidential Information shall not include any information which, n the form disclosed by thedisclosing party, a) was publicly available at the time of disclosure by the disclosing party; b)became publicly available after disclosure by the disclosing party through no fault of therecipient; was in the recipient s possession prior to disclosure y the disclosing party; asevidenced y the recipient s written record, n was not the subject of an earlier confidentialrelationship with the disclosing party; or d) was rightfully acquired by the recipient afterdisclosure by the disclosing party f r o m a third party who was lawfully in possession of theinformation and was under no obligation to the disclosing party to maintain its confidentiality.

7. Exceptions to Confidential Information

The. effective date of this Agreement is the latter date of acceptance by both parties. Therecipient s obligations of confidentiality and non-use for Confidential Information hereundershall last for five 5) years from the date that the disclosing party discloses such ConfidentialInformation to the recipient. Notwithstanding the foregoing, recipient s obligations ofconfidentiality and non-use relating to product formulae, ingredients, trade secret ormanufacturing know-how, will survive termination of this Agreement.

6: Effective Date and Length of Obligation

8/13/2019 13-CV-8645 SDNY

50/78

ScentSationa _Mut ua l Conf Agtee_S Ran iwaia docR VIS 2 8 3

DATE 1__ ~_~_i ~ _ ~ _ _ _ATE \~--\~ 3

BY

SCENTSATIONAL TECHNOLOGIES LLC425 Old York RoadJenkintown 7 9 6u-TITLE _ _~ _

PEPSICO INC.7 Anderson Hill Road~chase ~ 577

BY ~~b~

COMPANY agrees that any information disclosed to PEPSICO that is required by law tocompile ingredient legends for PEPSICO S products and otherwise comply with the laws andregulations governing their distribution and sale shall not be subject to the confidentiality andnon-use obligations of this Agreement and PEPSICO shall be free to disclose and use suchinformation as required by law.

12. Disclosure of Labeling and Other Regulatory Information

8/13/2019 13-CV-8645 SDNY

51/78

XHI IT

8/13/2019 13-CV-8645 SDNY

52/78

8/13/2019 13-CV-8645 SDNY

53/78

2

Date: == _ = = 0= .14 _ate: ..... z t : ~ ~ . r q 7

PEPSICO INC.CENTSATIONAL TECHNOLOGIES LLC CCEPTED ND GREED TO

order to indicate acceptance of the above mentioned terms and conditions the parties have signed thisletter in the space herein provided by an officer duly authorized.

7 The obligations undertaken under this Agreement shall be effective retroactively to the date anyInformation was first disclosed made available or provided by a disclosing party to the receiving party. ThisAgreement contains the entire understanding to date between the parties hereto relative to confidentiality of theInformation. This Agreement may not be amended or supplemented except in a writing signed by both parties.The terms and conditions contained in this Agreement shall be governed by and construed. iri accordance with thelaws of the State of New York without regard to its conflict of laws provisions.

Nothing herein shall be deemed to obligate either party to purchase any goods or services fromthe other or to enter into a further relationship with the other party.

Each receiving party acknowledges that the Information disclosed by a disclosing party is theconfidential and proprietary information and property of the disclosing party and that the receiving party does nothave and nothing herein shall be construed to imply any claim right title property or other interest or license ofany kind or nature in the Information. Each receiving party shall hold and maintain the Information disclosed bythe disclosing party hereunder in confidence and trust for the sole and exclusive benefit of the disclosing partyand shall not use the Information for its own benefit or for the benefit of any third party.

4. The parties hereto acknowledge that no remedy at law for damages is adequate to compensatefor a breach of the provisions set forth in this Agreement and that the party injured by such breach shall be entitledto temporary or permanent injunctive relief against any such breach without the necessity of proving actualdamages. The award of permanent or temporary injunctive relief shall in no way limit any other remedies to whichthe injured party may be entitled as a result of any such breach.

8/13/2019 13-CV-8645 SDNY

54/78

EXHI IT

8/13/2019 13-CV-8645 SDNY

55/78

Agreement .to Maintain Conf iden tia lity andReStr i c tUseEach party agrees not to disclose eitheror ally or in w ri ting to any third pa rty or to usein any way excep t as eXpressly .g rantedher ein {ij an y o f th e Confidential InfO l'm a~on.receivec l from the ot her and ii) an yinfo rm ation dev e lo ped by the receiv in.g partythat is based on Confidential lntormationreceived from th e other, except su ch o f s aidin form ation as(a) now is or hereafter beco m e spubllshed or ge nerally availab

13-CV-8645 SDNY

Documents

Transcript of 13-CV-8645 SDNY