Marketing using the other team's playbook?: The case of William Redmond and the "new age" cola wars and its implications for marketing strategy.

Wyld, David C. ; Cappel, Sam D. ; Tucci, Jack 等

INTRODUCTION

In the 1995 season of the National Football League, the Dallas Cowboys pretty much had their way with every team in the league--culminating with their 27-17 victory over the Pittsburgh Steelers in Super Bowl XXX on January 28, 1996. The only exception was the Washington Redskins, who despite the fact that they finished the season with a losing record, defeated the Super Bowl Champions twice in the same season.

How did the Redskins accomplish this feat? While the hard work and determination of the Redskins' players certainly played a role, many football analysts attributed the team's victories to the unique circumstance of their head coach, Norv Turner. You see, Turner is the ex-offensive coordinator of the Dallas Cowboys. In fact, while it has been three years since Turner coached the Cowboys' offense, the offensive schemes and plays used by the Cowboys today remain--in large part--based on the offense Turner created. Thus, Turner's Redskins team--based on the ability of Coach Norv Turner to craft defensive game plans designed to stop the potent Dallas offense which he himself crafted--seemingly has a competitive advantage over the Cowboys which no other team in the National Football League has been able to duplicated.

Sports is fast becoming a big business. Likewise, big business often imitates sports. Victoria Cundiff (1992) (speaking about the business context, but whose comments would be equally applicable to football) stated that "sometimes an employee appears most valuable at the moment he announces that he is leaving to work for a direct competitor" (p. 302). This is precisely because the competitor can gain benefit from the valuable information about a company that he or she may bring from the former employer.

Recently, there has been an important case decided by the Seventh Circuit involving the Pepsi Cola Company and a senior executive who left the company to join a major competitor (Quaker). In deciding the case of Pepsico v. Redmond, the Seventh Circuit itself compared the company's circumstances to that of a football team, writing: "Pepsico finds itself in the position of a coach, one of whose players has left, playbook in hand, to join the opposing team" (Redmond, 1995, p. 1089).

In this article, we will examine the Pepsico v. Redmond case and its ramifications. The Redmond case raises the novel question of whether or not corporate strategy is a protectable trade secret. As such, the case sparks important issues for both the law of trade secrets and the practice of executive recruitment in marketing. Both of these matters will be addressed in the conclusion of this article.

TRADE SECRETS

Background

Most businesses rely--to one extent or another--on proprietary information as they seek to gain a competitive advantage in the marketplace. We (or more precisely our stomachs) encounter examples of such proprietary knowledge everyday, whether it be in the form of McDonald'sTM secret sauce, the Colonel's recipe of thirteen secret herbs and spices at KFCTM, or the method by which the cooks at Pizza HutTM actually get the cheese inside the crust. Companies such as these obviously have a vested interest in maintaining the confidentiality of these recipes to maintain their advantage in the marketplace. In like fashion, customer lists and databases, engineering and manufacturing processes, and software and product designs, along with countless other examples, serve as the basis of many companies competitive advantage as well.

Observers have noted that most managers do not realize just how valuable and in need of protection their proprietary "information assets" are until they face the prospect that a departing employee could use the company's trade secrets against their former employer potentially negating whatever competitive advantage such information gave to the company (Gleason & Engelberg, 1994). Almost all trade secret cases involve a claim made by a company that a former employee or contractor has misappropriated (or likely will misappropriate) information gained from an employing organization (Wiesner & Cava, 1988). Trade secret cases are an exception to the general principle that one can use information gained about one's competition. This is due to the fact that the information gained was intended to be kept confidential in the employment relationship and was "misused" by the former employee or contractor (Peterson, 1995). A charge of trade secret misappropriation is thus, in effect, a charge of "stolen ideas" (Wiesner & Cava, 1988, p. 1081).

Some aspects of a business' proprietary knowledge can be protected by such legal devices as patents, trademarks, and copyrights. These forms of legal protection are rendered under federal statutory law and have rather well-established interpretations. In contrast, the concept of what constitutes a trade secret is much less uniformly understood across the United States in both the legal and business communities. This is because the trade secret concept is based upon common law and diverse state laws (Shockley, 1994). As such, courts have heretofore engaged in a state-by-state, case-by-case, fact-specific analysis which has led to a lack of uniformity in trade secret law between the states and even between industries (Feldman, 1994).

Only in the past decade has there been an attempt to standardize the codified state laws pertaining to trade secrets. However, while the Uniform Trade Secrets Act (UTSA) has been adopted by thirty-nine states and the District of Columbia, it has not been enacted in "uniformity" in all these states--having subtle variations and nuances added by various state legislatures (Samuels & Johnson, 1990). However, while patents and copyrights may have limited life spans, a trade secret has no time limitation (Epstein & Levi, 1988).

History

The trade secret concept was imported into the United States from British common law in the mid-Nineteenth Century (Martin, 1993). In fact, the first reported application of the trade secret concept in the United States occurred over 150 years ago in the case of Vickery v. Welsh (1837). Writing for the Supreme Court in the case of Kewanee Oil Co. v. Bicron Corp. (1974), Chief Justice Warren Burger wrote that "the maintenance of standards of commercial ethics and the encouragement of invention are the broadly stated policies behind trade secret law" (p. 481). Trade secret law thus both enunciates a public policy stressing that ethical standards are to be maintained in business relationships, while concomitantly, fostering innovation in the private sector by extending protection to proprietary knowledge (Martin, 1993).

Trade secret law is grounded in both tort and property law rights (Feldman, 1994). The emerging view is that a trade secret is a property right of an organization. A decade ago, the Supreme Court in Ruckelshaus v. Monsanto (1984) recognized that trade secrets defined under state laws are a property qualifying for protection under the takings clause of the Fifth Amendment. In the case of Carpenter v. United States (1987), the Supreme Court reaffirmed the property principle behind trade secret laws, stating that "confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit" (p. 320).

The open question however, is whether a property characteristics of a trade secret are the primary--or secondary--legal consideration, due to the fact that the confidence inherent in the employment relationship must be broken first in order for any property concern to arise at all (Feldman, 1994). The leading proponent of this position was Justice Oliver Wendell Holmes, who eighty years ago wrote in the case of E.I. du Pont de Nemours Powder Co. v. Masland (1917), that:

The word 'property' as applied to trademarks and trade secrets is an unanalyzed expression of certain secondary consequences of the primary fact that the law makes some rudimentary requirements of good faith. Whether the plaintiffs have any valuable secret or not, the defendant knows the facts, whatever they are, through a special confidence he accepted. The property may be denied, but the confidence cannot be (p. 102).

For over a century and a half, courts have wrestled with where to draw the line between the right of an employer to protect trade secrets and the right of an employee to carry out his or her livelihood (Wiesner and Cava, 1988). In Amex Distributing Co. v. Mascari (1986), the court reflected this struggle, remarking:

Conflicting social and economic policy considerations are present in each trade secret case. A business which may invest substantial time, money, and manpower to develop secret advantages over its competitors, must be afforded protection against the wrongful appropriation of confidential information by a prior employee, who was in a position of confidence and trust. At the same time, the right of an individual to follow and pursue the particular occupation for which he is best trained is a most fundamental right. Our society is extremely mobile and our free economy is based upon competition. One who has worked in a particular field cannot be compelled to erase from his (or her) mind all of the general skills, knowledge, and expertise acquired through his experience (p. 598).

At the heart of most trade secret cases is a question of whether or not an ex-employee or contractor is using his or her "general knowledge" (which is of course legal) or confidential information gained from his or her prior employer (which could be considered the misappropriation of a "trade secret" (Martin, 1993).

Definition

Even in the majority of states where the Uniform Trade Secrets Act has been adopted, most courts follow the guidance offered in the 1939 Restatement of Torts (Hilton, 1990). Legal commentators have noted that the definitions offered in both are similar in both form and intent, leaving "an indefinite line" between information that is proprietary and information that is in the public realm (Peterson, 1995).

The Restatement of Torts (1939, Sec. 757) states that a trade secret "may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know how to use it." The Restatement's definition thus does not attempt to precisely define what type of information constitutes a trade secret. Rather, the Restatement went on to list six factors that should be considered by a court in determining whether a given piece of information or knowledge should constitute a trade secret:

* The extent to which the information is known outside of (the) business;

* The extent to which it is known by employees and others involved in (the) business;

* The extent of measures taken by (the business) to guard the secrecy of the information;

* The value of the information to (the business) and its competitors;

* The amount of effort or money expended by (the business) in developing the information; and

* The ease or difficulty with which the information could be properly acquired or duplicated by others.

The courts have generally looked to the third and fourth elements of the Restatement's six-part test as being of paramount importance. In other words, courts will assess whether or not a trade secret exists in large part based upon both its novelty and its commercial value (Richey & Bosik, 1988). In regards to the first construct, a trade secret need not rise to the level of novelty to be "patentable" to be protected (Klitzke, 1986). Rather, for information to rise to the level of a protectable trade secret, it must only possess a "modicum of originality" that distinguishes it from common knowledge (Cataphote Corp v. Hudson, 1971). In fact, in the 1974 Kewanee Oil case, the Supreme Court held that secret corporate information is, by definition, novel, due to the fact that it cannot be considered in the domain of public knowledge.

In regards to the second consideration, a trade secret's commercial value, the Supreme Court stated in 1984 in the Ruckelshaus case, "because of the intangible nature of a trade secret, the extent of the property rights therein is defined by the extent to which the owner of the secret protects his interest from disclosure to others" (p. 1002). Thus, while much can be done after the fact to ascertain the commercial value of a trade secret, the actions taken by a company to protect its proprietary information before any issue arises about this information occurs is a good indicator of the importance which the company placed on the information (Epstein and Levi, 1988).

The UTSA's definition of the tort of trade secret misappropriation closely mirrors that found in the Restatement. It states that a trade secret is: Information, including a formula, pattern, compilation, program, device, method, technique or process, that:

(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use, and

(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Wiesner and Cava (1988), in a review of trade secret cases nationally, categorized trade secret cases as generally falling into one of two broad categories. These were first, cases involving technical or scientific information (involving everything from robotics to medical methods to chocolate chip cookie recipes) and second, cases involving "other business information" (involving substantial numbers of customer list cases, along with marketing and advertising plans and techniques). These authors analysis revealed that in this latter category of cases, companies have had difficulty prevailing.

Summary

This discussion of the development of trade secret law has set the stage for an analysis of a unique case, Pepsico v. Redmond. This case considers a question which has not been considered under the framework of trade secret law in the United States previously. This question is whether or not corporate strategy can be considered a trade secret, and whether an ex-employee with intimate knowledge of such information can be enjoined from using this information against a former employer. One business writer observed that the case of Pepsico v. Redmond was unusual for the simple fact that "defections of key executives, along with their inside knowledge, aren't unusual in business, but the resulting disputes rarely surface for public scrutiny in the courts" (Lazarus, 1994, p. 4).

PEPSICO v. REDMOND

The case of Pepsico v. Redmond occurred in the second phase of the so-called "Cola Wars." Throughout the 1980s and the early 1990s, Coca-Cola and Pepsi fought the first phase of this war. Billions of dollars were expended in marketing and product development efforts to sway customers from one company to the other (remember "New Coke"?). In the end, both companies gained market share and critical shelf-space in retail outlets, thereby squeezing out smaller beverage makers in the process and making them the only casualties in the war (Hill & Jones, 1992).

In the mid-1990s, the "Cola Wars" entered a second, more complex period. Rather than being a bilateral conflict over soft-drinks, this phase of the "Cola Wars" was a multifaceted battle with multiple competitors and multiple markets. Due to the increased health consciousness and diverse tastes of American consumers, the popularity of so-called "new age" beverages has increased tremendously over the past few years. This category includes sports drinks, fruit-juice based drinks, and flavored teas. Coke and Pepsi did not lead the market into "new age" drinks. Rather, these companies largely played catch-up in responding to the leaders in the changing marketplace (Hill & Jones, 1992).

Coca-Cola responded to the changing marketplace by introducing its own line of fruit and tea drinks under the "Fruitopia" brand name and a sport drink under the "PowerAde" brand. On the other hand, Pepsi responded to this market shift by introducing a sports drink line (under the brand name, "All Sport") and forming joint ventures with the Ocean Spray Company (for fruit drinks) and with the Thomas J. Lipton Company (for tea drinks) (Collins, 1995).

Other major corporate players, such a Quaker, saw the emergence of the "new age" beverage category as a great opportunity as well. To supplement its own Gatorade sports drink (which was dominant at the time in the sports drink category), Quaker acquired the Snapple Beverage Corporation in late 1994. At the time, Snapple was the market leader in the fruit and tea-based categories of the "new age" market (Collins, 1995).

In order to integrate its Snapple acquisition with its existing Gatorade operations and create an integrated division and distribution system for the newly combined product mix, Quaker sought to hire experienced executives in the beverage industry. As is quite common in a competitive industry, Quaker turned to the ranks of its chief rivals in the beverage marketplace for talent. First, early in 1994 (prior to the Snapple acquisition), Quaker hired Donald Uzzi, a former executive with the Pepsi-Cola's North American Division (PCNA), to become head of its Gatorade division. After the Snapple purchase, Uzzi pursued some of his former colleagues at PepsiCo to join him at Quaker in its newly expanded beverage operations (Lazarus, 1994).

One of the Pepsico executives contacted by Uzzi was a ten-year veteran of Pepsico, then 35 year-old William Redmond. In 1994, Redmond was General Manager of PCNA's California business unit, which had annual sales of over half a billion dollars and accounted for over twenty percent of PepsiCo's profit from its entire North American operations. After being pursued by Uzzi for almost half the year to come to Quaker, on November 8, 1994, William Redmond accepted an offer to become the Vice President for Field Operations for Quaker's Gatorade Division (Redmond, 1995).

On November 10th, Redmond met with both PCNA's Chief Operating Officer, Brenda Barnes, and William Bensyl, PCNA's Senior Vice President for Human Resources to inform them of his decision. Upon learning of Redmond's decision, Bensyl told Redmond that PepsiCo would in all likelihood attempt to enjoin him from leaving to work for Quaker. True to their word, PepsiCo sought and obtained a temporary restraining order (TRO) against Redmond on November 16, 1994 (Redmond, 1995). After a week-long hearing on the matter, a federal district court in Illinois sided with PepsiCo and issued an injunction on December 15, 1994. This court ordered that Redmond would be enjoined for a period of six months from assuming his new position at Quaker and would be forever barred from using or disclosing "any PCNA trade secrets or confidential information" (Redmond, 1995, p. 1093).

Why was PepsiCo so adamant that Redmond not assume his new position at Quaker at least not immediately? It was because PepsiCo felt that Redmond had more than just "general knowledge" to offer to his new employer. Specifically, PepsiCo felt that Redmond had confidential information which would be of great assistance to Quaker. This information was not the formula for Pepsi or for a new sports drink. Rather, PepsiCo claimed that Redmond had left with knowledge of--if not a copy of--its playbook for competing in the new age drink market for the upcoming year, 1995. PCNA claimed that in his new position, Redmond would "inevitably disclose" confidential aspects of PepsiCo's strategic plans and tactics in his new position at Quaker which could give his new employer "an unfair advantage in its upcoming skirmishes with PepsiCo" (Redmond, 1995, p. 1093).

The Seventh Circuit Court of Appeals admitted that the circumstances surrounding the Redmond case were far different than that of the typical trade secret case found in legal annals, as there was no secret formula, recipe, design, or customer list involved (Redmond, 1995). In the next section, we will examine the unique set of circumstances that enabled PepsiCo's to prevail in its claim that its corporate strategy constituted a protectable trade secret.

The Pepsi Playbook & Redmond's Position at Quaker

Because of his high-level in the PCNA organization, Redmond had personally participated in both the formulation and implementation of PepsiCo's strategy on both a regional and national level (Redmond, 1995). Redmond, in his capacity as General Manager of PCNA's California division, had been responsible for implementing both the company's "pricing architecture", which encompassed PepsiCo's national and regional pricing strategies, and an innovative selling and distribution strategy, which PCNA has developed at a cost of several million dollars and tested in a pilot program in Redmond's region. Further, Redmond had specifically reviewed confidential documents which outlined Pepsi's strategy for its lines of soft and "new age" drinks for the year 1995. These included PCNA's strategic and operating plans, which included detailed information on such items as PepsiCo's plans for introducing new product offerings, as well as its promotional calendar and budget for 1995. Finally, Redmond was thoroughly familiar with PCNA's "attack plans"--which were programs by which PepsiCo dedicated extra advertising and promotions to specific events and specific market areas (Redmond, 1995). Taken together, Pepsi contended that William Redmond, in his new capacity with Quaker, would inevitably draw upon his specific knowledge of several key elements of Pepsi's playbook as he helped design and implement Quaker's marketing and distribution strategy for its Gatorade and Snapple products (Redmond, 1995).

In response, Redmond cited the fact that he had signed confidentiality agreements as a condition of employment with both PepsiCo and Quaker, as well as the point that unauthorized use of trade secrets was expressly prohibited by Quaker's Code of Ethics (Redmond, 1995). In Redmond's defense, Quaker attempted to show that Redmond was hired not because of his knowledge of PepsiCo's strategy and operating systems. Quaker noted the dissimilarity of the distribution systems used by it and Pepsi and asserted that a strategic plan and distribution strategy for integrating the Gatorade and Snapple product lines was already in place when Redmond was hired. However, the court found that in November 1994, when Redmond was hired, Quaker's plans were very sketchy and preliminary (Redmond, 1995).

The Decision

The Redmond case was brought under the Illinois Trade Secrets Act, which is in close conformity with the Uniform Trade Secrets Act (Perry & Wombacher, 1995). At the outset of its opinion, the Seventh Circuit court noted that the tension between an employer's right to protect trade secret information versus the right of an employee to pursue his or her profession is especially acute when the plaintiff is seeking relief from potential misappropriation of confidential information. As such, the standard necessary for injunctive relief to be granted should be very high (Redmond, 1995). In point of fact, the only case which had previously dealt with such an issue in the Seventh Circuit had come almost a decade earlier. In AMP, Inc. v. Fleischhacker, (1987), the court ruled that just because a person assumed a similar position at a competitor's company did not demonstrate, without greater evidence, that it would be inevitable that trade secrets would be disclosed which would cause "irreparable injury" to their owners.

What differentiated Redmond from AMP? In large part, the Seventh Circuit looked both to the temporal competitive situation of Quaker and to the conduct of WIlliam Redmond himself. The Seventh Circuit court found that even if Quaker's distribution system was in place and was dissimilar from that of Pepsico's, Redmond was still in a position to greatly influence not only Quaker's marketing strategy and distribution. Courts in the past have held executive employees to a higher standard in trade secret cases. This is due to the fact that they are more likely to produce more gain for an employer (due to their potential influence on strategic decision-making) than those who would be merely an implementer of policy (Klitzke, 1986). In like fashion, the Seventh Circuit found that his intimate knowledge of Pepsi's near-term strategy would mean that "unless Redmond possessed an uncanny ability to compartmentalize information, he would necessarily be making decisions about Gatorade and Snapple by relying on his knowledge of PCNA trade secrets" (Redmond, 1995, p. 1095). The Redmond court went on to conclude that:

The danger of misappropriation in the present case is not that Quaker threatens to use PCNA's secrets to create distribution systems or co-opt PCNA's advertising and marketing ideas. Rather, PepsiCo believes that Quaker, unfairly armed with knowledge of PCNA's plans, will be able to anticipate its distribution, packaging, pricing and marketing moves (Redmond, 1995, p. 1096).

Legal experts have stated that the key element of almost every trade secret case is the conduct of the defendant (Klitzke, 1986). Observers have noted a company is more likely to prevail when seeking an injunction in a trade secret claim against a former employee if it can demonstrate "that the employee's past history suggests the likelihood of imminent use" of trade secret information (Feldman & Jackson, 1991, p. 511). In like fashion, the Redmond court also placed great emphasis on not only William Redmond's own conduct, but that of Quaker as well.

The Seventh Circuit upheld the district court's injunction--in large part--due to its belief that the history of Redmond's dealings with Quaker suggested that he and his new employer could not be entrusted to protect the confidentiality of the proprietary information Redmond had dealt with while in his capacity at PCNA. In the days leading up to the termination of his employment, Redmond had misinformed his superiors at PCNA about the nature of his position at Quaker (claiming that he was going to be the Chief Operating Officer of the combined Gatorade/Snapple operation) and the timing of his acceptance (telling them that he had only been offered his position at Quaker when he had, in fact, already accepted it) (Redmond, 1995, p. 1091). The district court thus found, and the Seventh Circuit affirmed, the following comment on the defendant's character:

Redmond's lack of forthrightness on some occasions, and out and out lies on others, ...leads the court to conclude that defendant Redmond could not be trusted to act with the necessary sensitivity and good faith under the circumstances in which the only practical verification that he was not using plaintiff's secrets would be defendant Redmond's word to that effect (Redmond, 1995, p. 1096).

Both courts were similarly less than impressed with the forthrightness of the actions of Redmond's superior at Quaker, Donald Uzzi. Both Redmond and Uzzi had been very evasive (even in conflict with one another in their testimony before the district court) regarding both the status of Quakers marketing strategies and distribution plans for the combined Gatorade/Snapple operations and the question of Redmond's specific job duties in his new position (Redmond, 1995). Further, as evidenced by the fact that all three of the individuals interviewed for the position that eventually went to Redmond were PCNA employees, Uzzi had expressed what the court labeled an ""unnatural interest" in hiring PCNA employees. Taken together, the Seventh Circuit agreed with the Redmond trial court's belief that the denials of both Quaker and its employees (Redmond and Uzzi) that they would not misappropriate (even inadvertently) the knowledge that Redmond brought from PepsiCo's playbook simply could not be believed (Redmond, 1995).

Thus, the Seventh Circuit upheld the lower court's ruling that granted the injunction issued on December 15, 1994, which prohibited Redmond from assuming his duties at Quaker before June 1, 1995 and from ever using or disclosing any of the trade secrets or confidential information he had gained through his employment at Pepsi-Cola North America (Redmond, 1995, p. 1097).

DISCUSSION

What are the ramifications of the Seventh Circuit's decision in Pepsico v. Redmond? The Redmond case is significant in and of itself due to the fact that over the years, as was demonstrated earlier, many types of proprietary knowledge have been recognized by courts across the land as falling under the domain of trade secret protection. However, the Redmond case is unique in that it is the first reported decision wherein a court has considered knowledge of corporate strategy--the corporate equivalent to Coach Norv Turner's playbook--to be protectable as a trade secret. If the Redmond interpretation is adopted in other jurisdictions, this could greatly add to realm of corporate "information assets" considered to be protected under trade secret law, while adding great complexity to the employment and recruitment process. As such, the Redmond case has potential ramifications both for trade secret law itself and the movement of executives.

William Hilton (1990) observed that the law pertaining to trade secrets in America is in need of substantial revision if it is to serve purposes other than that of being "a random tort" penalizing aggressive businesses and individuals. Because trade secret law is based either on common law or a codified version of it (in the form of the UTSA in most states), the law regarding trade secrets amongst the states has been demonstrated to not possess the uniformity of such other legal forms of proprietary information protection such as trademarks, patents, and copyrights (Samuels & Johnson, 1990). As such, calls for a federal trade secret law have recently been advanced (Pace, 1995).

In order to standardize trade secret law across the country and remove contradictions between state jurisdictions, perhaps it is time to "federalize" the concept and make trade secret protection primarily enforceable under federal, rather than state laws. At a minimum, the UTSA should be ratified in the ten outstanding states and states which have adopted the UTSA should work cooperatively to clear up discrepancies in the various state laws.

The second, and perhaps most important implication of the Redmond case is the potential "chilling effect" that the Seventh Circuit's designation of corporate strategy as a trade secret could have on executive recruitment and employee mobility. If this interpretation is picked up by other federal circuits and by state courts as well, companies may face potential exposure to trade secret misappropriation charges any time they recruit a mid- to high-level manager from a competitor. This potentiality is due to the fact that knowledge of corporate strategy and tactics is part-and-parcel of an executive position. As such, any person occupying such a position of responsibility would be inextricably tied to the knowledge used to formulate and execute corporate strategy.

As a result, "headhunting" (the practice of recruiting executives from one company to another--often a direct competitor) could be seriously slowed or even ended in favor of in-house recruitment. This would be due to the fact that the former would result in no exposure, while the latter could result in tremendous exposure. Because such an interpretation could drastically change corporate recruitment and staffing practices and ultimately effect individual, industry, and national competitiveness, this ultimately should be a question of public policy. As such, this is a question which should be addressed by legislative bodies at the state and/or federal level.

CONCLUSION

Will Pepsico v. Redmond be the beginning of an expanded scope of trade secret protection throughout the states? Will it ultimately have an effect on executive recruitment practices? Only time will provide the answer to these questions. There is however, only one certainty regarding trade secrets for employers in the Nineties. Commentators have stated that the increased mobility of the workforce will lead to increased numbers of trade secret claims (Weirich & Glenister, 1993). Thus, employers should develop a proactive strategy for trade secret protection in their organizations (Phillips, 1987). This would include keeping tabs on their playbooks, as well as their formulas, their recipes, their designs....

REFERENCES

AMP, Inc. v. Fleischhacker, 823 F.2d 1199, 1207 (7th Cir. 1987)

Amex Distributing Co. v. Mascari, 150 Ariz. 510, 724 P.2d 596 (1986).

Carpenter v. United States, 108 S.Ct. 316 (1987).

Cataphote Corp v. Hudson, 444 F.2d 1313 (5th Cir. 1971).

Collins, G. (1995). Juice wars: the squeeze is on. The New York Times, (July 15, 1995), A37, A39.

Cundiff, V.A. (1992). Maximum security: How to prevent departing employees from putting your trade secrets to work for your competitors. Santa Clara Computer and High Technology Law Journal, 8: 301-34.

E.I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100 (1917).

Epstein, M.A. & S.D. Levi (1988). Protecting trade secret information: A plan for proactive strategy. The Business Lawyer, 43: 887-914.

Feldman, M.J. (1994). Toward a clearer standard of protectable information: Trade secrets and the employment relationship. High Technology Law Journal, 9, 151-183.

Feldman, J.S. & T.G. Jackson (1991). Protecting customer lists. Employee Relations Law Journal, 16(1), 507-516.

Gleason, D.J. & M.J. Engelberg (1994). Can your client keep a (trade) secret. The Practical Lawyer, 40(2), 37-52.

Hill, C.W.L. & G.R. Jones (1992). Strategic Management: An Integrated Approach (second edition). Boston: Houghton-Mifflin.

Hilton, William E. (1990). What sort of improper conduct constitutes misappropriation of a trade secret? Journal of Law & Technology, 30: 287-296 (1990).

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).

Klitzke, Ramon A. (1986). Trade secrets: Important quasi-property rights. The Business Lawyer, 41: 555-570.

Lazarus, George (1994). Exec. told to keep Pepsi information bottled up. Chicago Tribune, (Dec. 21, 1994): Sec. 3: 4.

Martin, Derek P. (1993). An employer's guide to protecting trade secrets from employee misappropriation. Brigham Young University Law Review, 1993: 949-981.

Pace, C.R.J. (1995). The case for a Federal Trade Secrets Act. Harvard Journal of Law & Technology, 8(2): 427-469.

Pepsico v. Redmond, 10 IER Cases 1089, 54 F.3d 1262 (7th Cir. 1995).

Perry, S.J. & W.C. Wombacher (1995). Trade secrets in Illinois. Labor Law Journal, 46(12): 741-748.

Peterson, G.R. (1995). Trade secrets in an information age. Houston Law Review, 32, 385-458.

Phillips, Patrick P. (1987). The concept of reasonableness in the protection of trade Secrets. The Business Lawyer, 42: 1045-1051.

Richey, P. J. & M.J. Bosik (1988). Trade secrets and restrictive covenants. The Labor Lawyer, 4: 21-34.

Ruckelshaus v. Monsanto, 467 U.S. 986 (1984).

Samuels, L.B. & B.K. Johnson (1990). The Uniform Trade Secrets Act: The states' response. Creighton Law Review, 24, 49-98.

Shockley, P. (1994). The availability of "trade secret" protection for university research. The Journal of College and University Law, 20(3), 309-332.

Vickery v. Welsh, 36 Mass. 523 (1837).

Weirich, C.G. & J.R. Glenister (1993). Trade secrets and issues of confidentiality in the employment context. Georgia State Bar Journal, 29: 124-134.

Wiesner, D. and A. Cava (1988). Stealing trade secrets ethically. Maryland Law Review, 47, 1076-1128.

David C. Wyld, Southeastern Louisiana University Sam D. Cappel, Southeastern Louisiana University Jack Tucci, Southeastern Louisiana University J. Reagan McLaurin, Western Carolina University