Glenn v. Dow Agrosciences, LLC

Decision Date02 February 2007
Docket NumberNo. 06A01-0607-CV-278.,06A01-0607-CV-278.
PartiesTimothy GLENN, Appellant-Defendant, v. DOW AGROSCIENCES, LLC, Appellee-Plaintiff.
CourtIndiana Appellate Court

Adam Arceneaux, Michael T. McNally, Brian J. Paul, Brian E. Bailey, Ice Miller LLP, Indianapolis, IN, Attorneys for Appellant.

Kenneth R. Yerkes, Dwight D. Lueck, Richard P. Winegardner, Barnes & Thornburg LLP, Indianapolis, IN, Attorneys for Appellee.


CRONE, Judge.

Case Summary

Timothy Glenn appeals the trial court's grant of a preliminary injunction in favor of Dow AgroSciences, LLC ("DAS"). We reverse.


Glenn raises five issues, which we restate as follows:

I. Whether DAS's non-competition clause is unenforceable, thus precluding DAS from presenting a prima facie case to enjoin Glenn;

II. Whether, under Indiana's Uniform Trade Secrets Act ("UTSA"), DAS demonstrated that Glenn took affirmative action to misappropriate or threaten to misappropriate DAS trade secrets;

III. Whether the threatened injury to DAS outweighs the harm to Glenn resulting from the injunction;

IV. Whether the injunction serves the public interest; and

V. Whether the injunction was so broad and unclear as to prohibit Glenn from working in any position at Pioneer Hi-Bred International, Inc. ("Pioneer"), or for any other company in the agricultural industry.

Concluding that the first issue is dispositive, we do not specifically address the other issues.

Facts and Procedural History

The evidence most favorable to the order granting the preliminary injunction is as follows. In 1991, Glenn began working as a market research analyst in Pioneer's North America Marketing Department. Appellant's App. at 440. Over the next six years, Glenn received various promotions, sharpened his marketing skills, gained general industry knowledge, and developed management and negotiation abilities. Id. at 443. His positions gave him access to confidential Pioneer information, including sales, marketing strategies, research and development, profit/loss statements, production data, pricing data, and products. Id. at 440-42.

In 1997, Glenn left Pioneer to work at Mycogen Seeds ("Mycogen") as a senior product manager responsible for marketing Mycogen's corn products in the U.S. and Canada. Id. at 444. In 1998, Mycogen was acquired by DAS, a wholly owned subsidiary of the Dow Chemical Company, which provides pest management and biotechnology products to improve the quality and quantity of the food supply. Appellee's App. at 2, 3, 192, 444-45. DAS produces various seeds, with corn accounting for 80% of its total seed revenues. Id. at 2. DAS, through Mycogen, markets corn seed products across the United States in two ways: (1) branded sales; and (2) licensing, whereby it sells its traits and germplasm1 for use in other companies' seed products. Id. at 5-7, 13-16, 204-06. DAS, the second leading company in the traits and germplasm licensing business and a technological leader, counts Pioneer among its principal competitors. Id. at 4-5, 13-14, 209, 260-61.

Glenn did not officially become a DAS employee until May 2000, at which time he was named a district sales manager in DAS's crop protection business in the Coastal States Business Unit. Id. at 445-47. It was then that Glenn was required to sign an employee agreement ("the Employee Agreement"), the relevant portions of which follow.

Article 1 — Confidential Information

Confidential Information means trade secrets, know-how, and other information, not generally known, relating to [DAS's] business which is disclosed to me or with which I become familiar during my term of employment with [DAS]. Confidential Information shall include information relating to [DAS's] business practices and prospective business interests, including, but not limited to, customer lists, forecasts, business and strategic plans, financial and sales information, products, processes, equipment, manufacturing operations, marketing programs, research, product development and engineering.

I shall not disclose to anyone or use; directly or indirectly, either during or after my employment, any Confidential Information of [DAS], except with the written consent of an officer of [DAS] or as required in my duties as an employee of [DAS]. This obligation shall continue unless and until such Confidential Information becomes generally known in the trade or industry without participation on my part.

The same obligation to protect Confidential Information shall apply to any information of any third party obtained by me as a[DAS] employee and with respect to which [DAS] has an obligation to maintain such in secrecy. Further, as a[DAS] employee, I shall not use or disclose to [DAS] any information of any previous employer or other third party to whom I have an obligation of secrecy, and I shall provide [DAS] with a copy of any agreement I may have with a prior employer that affects my employment with [DAS].

Upon termination of employment, I shall surrender to [DAS] any and all items in my possession or control that constitute or contain Confidential Information and all other property of [DAS], such as documents, equipment, samples, cultures, and models.

. . . .

Article 4 — NonCompetition

I agree that, for a period of two years from the date of the termination of my employment with [DAS], I shall not, directly or indirectly, whether as owner, partner, officer, director, consultant, employee, or otherwise engage in or contribute my knowledge to any work or activity involving an area of technology or business that is then competitive with a technology or business with respect to which I had access to Confidential Information during the five years immediately prior to such termination of my employment at [DAS]. However, I shall be permitted to engage in such proposed work or activity, and [DAS] shall furnish me a written consent to that effect signed by an officer, if I shall have furnished to [DAS] clear and convincing written evidence, including assurances from me and my new employer, that the fulfillment of my duties in such proposed work or activity would not inevitably cause me to disclose, base judgments upon, or use any Confidential Information.

I further agree that, for said two-year period, I will inform any prospective employer, prior to accepting employment, of the existence of this Agreement and provide such prospective employer with a copy thereof.

I also agree that, for such two-year period, in addition to any obligations provided by law, I will not interfere with, disrupt or attempt to disrupt, the relationship, contractual or otherwise, with respect to the business carried on by [DAS] with any customer, supplier, lessor, lessee, licensor, licensee, or employee of [DAS].

Doc. Exs., Vol. I, Pl.'s Ex. 136 (emphasis added).

Glenn worked in a variety of positions at DAS over the next few years: sales manager for the Midwest Atlantic States Business Unit (2001); traits and germplasm licensing leader (2002); and sales and marketing leader for Mycogen Seeds in the U.S. (2005). Appellant's App. at 447-49, 336-37, 400-01, 450-53, 633. In this last role, Glenn oversaw preparation, development, implementation, and evaluation of DAS's marketing strategy for seed products for current and future years. Appellee's App. at 19-22, 33-35, 324-331. Working directly and continually with DAS business, operations, and research and development personnel, and being a member of high-level teams, Glenn admittedly had access to or working knowledge of various confidential DAS information. See id. at 134-53, 334-538. Such information included, but was not limited to, agreements with DAS's business partners, licensors and licensees, marketing plans, litigation with Pioneer, pedigrees for corn, pipeline development of new products, advancement plans, pricing strategies, etc. Id. Throughout Glenn's employment with DAS, the Employee Agreement was never altered, updated, or signed again. Appellant's App. at 449-51.

In November 2005, a recruiting firm, EFL & Associates ("EFL"), contacted Glenn regarding an opening for an operational marketing position at Pioneer. Id. at 366. EFL's solicitation included the following description of the responsibilities of Director, North America Marketing Operations:

. . . lead and direct North America Marketing Operations. Key responsibilities include providing input to and implementation of long-term marketing strategy; directing responsibility for results within the immediate two-year time-frame to include pricing, programs, promotions, competitive/market analysis and product line management. He/she will serve as a key member of the North America leadership Team. The position reports to the Vice President and Business Director, North America Operations.

Appellee's App. at 268. Glenn indicated his interest in the Pioneer position, interviewed more than once, provided EFL with a copy of the Employee Agreement, and flagged the areas that might be of concern to DAS. Appellant's App. at 367-69, 459, 47. Apprised of the potential issues, Pioneer's legal department and others within Pioneer reviewed the Employee Agreement and ultimately concluded that Glenn could perform the Pioneer job without violating the agreement. Id. at 370-71, 429.

On April 1, 2006, Glenn received a written offer of employment from Pioneer; said offer was contingent upon Glenn obtaining written consent from DAS to accept the Pioneer position pursuant to the terms of the non-competition provision of the Employee Agreement. Id. at 374, 658-60; Appellee's App. at 92. Glenn received a revised offer,2 dated April 10, 2006, that included a response date of April 18. Appellant's App. at 377. On April 10, Glenn informed Stan Howell, his direct supervisor at DAS, about the Pioneer job offer. Id. at 338, 376. After discussing the duties and responsibilities of the Pioneer position, Howell stated that he would need to consult with others about the Employee Agreement. Id. at 339,...

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    ... ...         But to the extent our review turns on a question of law—such as contract interpretation—our review is de novo. Glenn v. Dow AgroSciences, LLC, 861 N.E.2d 1, 8 (Ind.Ct.App.2007). The unambiguous language of a contract is conclusive on the parties to the contract and ... ...
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