Tobacco Company Sues InformerBrown & Williamson has filed this suit against Jeffrey Wigand, a former employee, for allegedly breaching employee confidentiality agreements by providing information regarding the tobacco company's research and business operations to the Washington Post and to plaintiffs in a products liability suit. In a much reported sequence of events, Mr. Wigand provided information to CBS's "60 Minutes" for a segment which the network chose not to air because of the risk of being named a defendant in a suit much like this one. CBS has reportedly agreed to indemnify Mr. Wigand regarding this suit. JEFFERSON CIRCUIT COURT DIVISION JEFFERSON CIRCUIT COURT DIVISION NINE (9) No. 95CI06560
BROWN & WILLIAMSON TOBACCO CORPORATION, v.
JEFFREY S. WIGAND, VERIFIED COMPLAINT * * * * * * * * * * * * Plaintiff, Brown & Williamson Tobacco Corporation ("B&W"), makes and files its Complaint against Defendant Jeffrey S. Wigand ("Wigand" or "Defendant") as follows: NATURE AND BASIS OF ACTION 1. This is an action against Wigand, a former employee of B&W, for: (a) theft; (b) fraud; (c) breach of contract; (d) breach of fiduciary and common law duties; (e) violation of the Kentucky Uniform Trade Secrets Act, KRS 365.880, et seq.; (f) a restraining order pursuant to CR 65; and (g) temporary and permanent injunctive relief pursuant to CR 65. 2. Plaintiff demands equitable relief of temporary and permanent injunctions, all prohibiting Wigand from using or disclosing to anyone, other than Plaintiff, any and all documents, materials or other information acquired by Wigand during and as a result of his employment with B&W, and requiring the immediate return to B&W of all such documents, materials and other information. 3. B&W does not, in any manner, waive its privileges, attorney work product protections or other applicable privileges or protections, including trade secret protections, relating to any of the documents, materials or information referred to in this Complaint, nor does it consent in any way to the revelation or disclosure of any such documents, materials or information, whether or not privileges or protected. 4. All of the allegations contained in this Complaint are known to be true or are based on information and belief formed after reasonable inquiry. THE PARTIES 5. Plaintiff, B&W, is a Delaware corporation with its principal place of business in Louisville, Jefferson County, Kentucky. B&W is in the business of manufacturing and selling cigarettes and other tobacco products. 6. Defendant Wigand is a citizen and resident of Jefferson County, Kentucky. JURISDICTION AND VENUE 7. This action arises out of B&W's employment of Wigand within Jefferson County, Kentucky and the violation of employment, confidentiality, non-disclosure and settlement agreements entered into in Jefferson County, Kentucky. Wigand resides in Jefferson County, Kentucky. This Court, therefore, has jurisdiction and is the appropriate venue for this action against Wigand. STATEMENT OF FACTS WIGAND SIGNS EMPLOYEE AND CONFIDENTIALITY AGREEMENTS 8. From January 3, 1989 through March 24, 1993, B&W employed Wigand as its Vice President for Research & Development. Prior to his employment by B&W, Wigand had no experience in the tobacco industry. In his positions as Vice President for Research & Development, Wigand was privy to highly confidential B&W trade secrets, other competitively sensitive information, documents and communications which are subject to the attorney-client privilege and other confidential information. 9. At the commencement of his employment with B&W on January 3, 1989, and in consideration thereof, Wigand executed and Employee Agreement by which he agreed that "[u]pon termination of my employment with B&W, all records of CONFIDENTIAL INFORMATION, including copies thereof in my possession, whether prepared by me or others, will be left with B&W." (A copy of the Employee Agreement is annexed hereto as Exhibit 1.) The Employee Agreement defined CONFIDENTIAL INFORMATION as: information, not generally known, about B&W's processes and products, including information relating to research, development, manufacture, purchasing, accounting, engineering, marketing, merchandising and selling. 10. In consideration for his employment with B&W, Wigand executed a confidentiality agreement ("Confidentiality Agreement") (a copy of which is annexed hereto as Exhibit 2) by which he agreed, among other things, not to use or divulge any information to which he had access during his employment. Paragraph 10 of the Confidentiality Agreement, dated and signed by Wigand on January 3, 1989, states: Both during your employment and at any time after termination of employment for any reason, you will not, without the prior written consent of B&W, use or divulge any confidential business information of B&W or any affiliate of B&W (including, but not limited to, financial information, business plans, trade secrets or know-how) to which you have had access during your employment. B&W reserves all legal and equitable rights to enforce the provisions of this paragraph.... The foregoing provisions of this paragraph are in supplement to, and not in derogation of, any prior agreements between you and B&W concerning rights to inventions and/or confidential information. 11. In January of 1994, Wigand was deposed by the U.S. Department of Justice in a civil investigation proceeding, in which he testified that he was involuntarily terminated because of a "chemistry" problem with a member of senior management. This sworn testimony is inconsistent with a report appearing in the September 25, 1995 edition of Business First which stated that Wigand quit his job at B&W to train to be a teacher. In fact, neither Wigand's sworn testimony nor the reported statement in Business First accurately reflect the basis for Wigand's termination. Wigand was, in fact, terminated because during his employment Wigand misled management at B&W with half-truths to the point that B&W management lost trust in him, and because Wigand exhibited an abusive style with co-workers. 12. Wigand's employment with B&W was terminated effective March 24, 1993. Following the negotiation of the terms and conditions of Wigand's separation from B&W, Wigand signed a letter of agreement ("Letter of Agreement") by which he agreed that "[t]he January 3, 1989, agreement shall remain in full force and effect....." (A copy of the Letter of Agreement dated June 17, 1993 and signed by Wigand on June 23, 1993 is annexed hereto as Exhibit 3). 13. As part of this separation agreement, B&W agreed to continue Wigand's salary and benefits for two years, to provide Wigand with professional out-placement assistance and to reimburse Wigand for expenses associated with seeking other employment. Although Wigand is currently employed, he has recently submitted out-placement expenses to B&W claiming he is continuing to search for work. WIGAND SIGNS A NON-DISCLOSURE SETTLEMENT AGREEMENT 14. On or about September 7, 1993, B&W learned that Wigand had breached his agreements with B&W by disclosing confidential and proprietary information. 15. B&W instituted an action against Wigand for violating those agreements. Brown & Williamson Tobacco Corporation v. Jeffrey S. Wigand, Civil Action No. 93-CI-04424, Jefferson Circuit Court. 16. In settlement of that litigation, and in consideration of continued severance payments and benefits, Wigand agreed, among other things, that he would not (unless requested or compelled by operation of law, government regulations or investigations, subpoena or court order, in which case he would first notify B&W) disclose and would maintain as confidential any and all information acquired by him during and as a result of his employment with B&W. (A copy of the settlement agreement ("Settlement Agreement") is annexed hereto as Exhibit 4.) 17. The Settlement Agreement, dated November 8, 1993 and executed by Wigand on November 30, 1993, reads, in part: The purpose of this letter is to supplement the Letter of Agreement which you signed on June 17, 1993, by adding certain provisions related to the confidentiality of that Agreement and of information you obtained while in the employ of Brown & Williamson (B&W). The Letter of Agreement is supplemented by adding the following: Based upon the consideration to be paid by B&W, you further agree, acknowledge and understand that any and all information, whether privileged, confidential, trade secrets or any other information acquired by you during and as a result of your employment with B&W (including, without limitations, the terms of this and any other employee's severance agreement)< is confidential and proprietary information of B&W and as a former officer you have a fiduciary duty not to disclose such confidential information or to otherwise use such information against the interests of B&W. You agree to keep confidential and not disclose any such information and you agree not to make any statements or communications which could disparage the reputation and integrity of B&W or its employees or its products or otherwise reflect negatively on B&W or its products or interfere with its employees and business relationships. 18. Wigand has acknowledged that all information acquired by him during and as a result of his employment with B&W is confidential and proprietary information of B&W. 19. Wigand has acknowledged that he owes a continuing fiduciary duty to B&W not to disclose or otherwise use such information of B&W or its affiliates. 20. Wigand has acknowledged that he may not use or disclose any information acquired during or as a result of his employment with B&W. 21. Wigand has agreed to keep confidential and not disclose any information acquired during or as a result of his employment with B&W. 22. Wigand has agreed not to make any statement or communication which could disparage or reflect negatively on B&W, its products or employees. WIGAND TESTIFIES CONSISTENT WITH THE PROCEDURES SET OUT IN HIS SEPARATION AGREEMENT 23. In January of 1994, while B&W continued to pay Wigand under a severance agreement, the United States Department of Justice sought the testimony of Wigand relating to a civil investigation of the industry's efforts to develop a "fire-safe" cigarette. To that end, a Civil Investigation Demand ("CID") was issued to Wigand pursuant to 15 U.S.C. Section 57b-1, requiring Wigand to appear for a deposition. Consistent with the Settlement Agreement in place between B&W's interests with regard to confidential information in the deposition were protected. No effort was made to prohibit Wigand from testifying or to prohibit him from answering questions posed in the deposition. 24. During Wigand's deposition, taken pursuant to the CID, Wigand testified that B&W was not able to translate its research into a reduced ignition propensity or "fire-safe" cigarette, that reduced ignition propensity products presented very complex technical issues and that B&W was unable to develop a reliable test methodology. 25. Wigand admitted having copies of confidential B&W documents months after termination of his job. B&W believed that all such documents were returned to the Company. In fact, B&W's investigation now leads it to believe that Wigand took other such documents without authorization from B&W. 26. Wigand's severance payments ceased in June of 1995. WIGAND IS DESIGNATED TO TESTIFY IN BREACH OF HIS AGREEMENTS 27. After B&W completed Wigand's severance payments in June of 1995, upon information and belief, Wigand began actively promoting himself as an expert witness to lawyers and entities currently involved in litigation against members of the tobacco industry in violation of his agreements with B&W. This active self-promotion by Wigand as an anti-tobacco expert witness occurred despite the fact that Wigand's knowledge concerning the tobacco industry results solely from his employment by B&W and despite the terms of the agreements under which Wigand accepted severance payments and benefits for two years. 28. On or about August, 1995 Wigand was designated as an expert witness in Mary Kearney, as Administratrix of the Estates of Maureen O'Neill, Stacy O'Neill and Leanne O'Neill, Civil Action No. 92-11079-K, United States District Court, District of Massachusetts ("Kearney Action"). 29. Despite having given a deposition with the assurance of B&W's counsel under the procedures set out by his employment agreements and, therefore, knowing precisely how to invoke these procedures when his testimony is sought, Wigand failed to notify B&W of his involvement as a purported expert in the Kearney case. 30. Immediately upon learning of Wigand's designation as an expert in the Kearney Action, B&W notified Wigand that by testifying in such action he would be in violation of the agreements he had entered into with B&W. Specifically, Wigand was informed that it would not be possible for him to testify as an expert in the Kearney Action without disclosing the confidential information of B&W in violation of the Settlement Agreement. WIGAND CONTRADICTS HIS PRIOR SWORN TESTIMONY 31. In late August, 1995, B&W learned that as of approximately July 21, 1995, Wigand had submitted an expert affidavit in the Kearney Action. (A copy of the Wigand Affidavit is annexed hereto as Exhibit 5.) 32. Despite having testified under oath in a United States Department civil investigation that B&W was not able to link its research to the development of a reduced ignition propensity or "fire-safe" cigarette, Wigand submitted an affidavit in Kearney which stated that "the technology to develop a cigarette with significantly reduced ignition propensity . . . has been available for 30 years." 33. Philip Morris, Inc. has objected to the designation of Wigand on the ground, among others, that Philip Morris, Inc. will be unable to adequately cross-examine Wigand without causing him to breach his agreements with B&W. Recently, the trial judge granted Philip Morris, Inc.'s requested relief, obviating the need for B&W to act on the Kearney matter. WIGAND'S COOPERATION WITH LAWYERS SUING B&W AS AN EXPERT VIOLATES HIS AGREEMENTS WITH B&W 34. Based on Wigand's Affidavit, his expected testimony in the Kearney Action inevitably would include disclosure of B&W's trade secrets and confidential business information regarding the chemistry, design and manufacture of cigarettes. In fact, according to counsel seeking to use Wigand as an expert, Wigand is expected to base his testimony on his prior employment as "Vice President of Research, Development and Environmental for the Brown & Williamson Tobacco Company." 35. Wigand had absolutely no tobacco experience or expertise prior to his employment by B&W. His knowledge of the tobacco industry, including the chemistry, manufacture and marketing of tobacco products, was derived solely from information, much of which is proprietary and constitutes trade secrets, acquired by him during and as a result of his employment with B&W. 36. Wigand cannot possibly testify as a "tobacco" expert in the Kearney Action or any other action without violating the terms of his various agreements with B&W. 37. Wigand also was designated as an expert witness in Philip Morris Companies, Inc. v. American Broadcasting Companies, Inc., and unrelated libel case in the Circuit Court for the City of Richmond, Virginia (760CL94X00816-00) ("Virginia Action"). (A copy of the Designation of Expert Witness ("Designation"), is annexed hereto as Exhibit 6.) According to the Designation, Wigand was to testify as to "Philip Morris's cigarette manufacturing processes" and other matters drawing on his "extensive professional experience in scientific research and development [and] knowledge of tobacco chemistry." 38. Despite his express undertaking in the Settlement Agreement, Wigand failed to inform B&W that he had been requested to testify in the Virginia Action as to matters necessarily encompassing information, some of which would be confidential and/or trade secret, acquired by him during and as a result of his employment with B&W. 39. B&W notified Wigand that any testimony he could give in the Virginia Action necessarily would violate the terms of his various agreements with B&W. Wigand nevertheless declined to withdraw as a witness in the Virginia Action. 40. The Virginia Action was settled before B&W could take action to enforce the various agreements it had with Wigand. 41. According to information provided to counsel in the Kearney Action and information contained in the Virginia Action, described in Wigand's Affidavit, Wigand has violated the terms of the Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement. WIGAND DISCLOSES PROPRIETARY B&W INFORMATION AND DOCUMENTS 42. On October 9, 1995, articles appeared in both the Wall Street Journal and The Washington Post which purported to reference, and in some instances quote from, documents of B&W and its affiliates. (Copies of those articles are annexed hereto as part of Exhibit 7.) 43. On October 11, 1995, B&W sent a letter each to the Wall Street Journal and The Washington Post advising them that based upon its investigation, the documents obtained by those newspapers were believed to have been taken from B&W without authorization and wrongfully disseminated to them. (Copies of B&W's letters to the newspapers are annexed hereto as Exhibit 8.) 44. B&W further advised the newspapers that at least one of the documents had been identified as a privileged communication. B&W objected to the publication of the contents of the privileged memorandum, and requested that the newspapers return it and the other documents, all of which contain confidential and proprietary information. 45. On October 17, 1995 the Wall Street Journal sent a letter to B&W via facsimile in which it asked B&W to respond to several pages of questions pertaining to other documents it had "obtained." Based on the letter, it was immediately clear to B&W that some of these documents contained highly confidential trade secrets and other business and proprietary information of B&W. 46. The next day's issue of the Wall Street Journal contained a second article based upon these documents. (A copy of the Wall Street Journal article of October 18, 1995 is annexed hereto as Exhibit 9.) 47. Although the Wall Street Journal attributed the documents to an anonymous source, B&W's investigation has revealed that Wigand was the ultimate source of documents provided to The Wall Street Journal and The Washington Post. WIGAND DISCLOSES INFORMATION TO CBS NEWS PROGRAM "60 MINUTES" 48. Since his termination from B&W, Wigand has provided both in writing and orally, documents, materials and information acquired by him during and as a result of his employment with B&W to CBS television's "60 Minutes" program. 49. On Thursday, November 9, 1995, The New York Times published an article entitled "60 Minutes' Ordered To Pull Interview in Tobacco Report" in which it was revealed that the CBS television network had originally planned to air, as part of its November 12, 1995 edition of "60 Minutes," an "on-the-record interview with a former tobacco company executive." (A copy of The New York Times article is annexed hereto as Exhibit 10.) The Article went on to state that CBS planned to substitute a revised story that would examine, instead, "how cigarette manufacturers try to prevent information from reaching the public." According to the article, the "60 Minutes" story change was based upon its own management's concerns that CBS might be held legally responsible because the executive who was interviewed had signed non-disclosure and confidentiality agreements with "the company, the Brown & Williamson Tobacco Corporation." 50. During the "60 Minutes" broadcast on Sunday, November 123, 1995, CBS "60 Minutes" correspondent Mike Wallace revealed that the interview had been conducted with a former executive who had an agreement with his company not to disclose information: We learned of a tobacco insider who might know the whole story, who could tell us whether or not the tobacco industry has been leveling with the public. That insider was formerly a highly-placed executive with a tobacco company. But we cannot broadcast what critical information about tobacco, addiction and public health be might be able to offer. Why? Because he had to sign a confidentiality agreement that prohibits him from talking about anything he learned while he was employed by them. 51. CBS reportedly chose not to broadcast the filmed interview because it knew of the agreements the former employee had and, therefore, was concerned about its own potential liability for tortious interference with those agreements. During the "60 Minutes" episode on November 12, 1995, 1995, correspondent Mike Wallace reported: The Management of CBS has told us that, knowing he had that agreement, if we were to broadcast an interview with him, CBS could be faced with a multi-billion dollar lawsuit. The New York Times reported on November 9, 1995, that CBS "network officials...feared, in part, that they might be held legally responsible because the executive had an agreement with the company, the Brown & Williamson Corporation, not to disclose internal company matters." The Article went on to report that according to "[CBS '60 Minutes' correspondent] Wallace...it was the network's general counsel, Ellen Oran Kaden, who raised the concerns about a possible suit for tortious interference, the legal term that related to inducing a party to break a contract." 52. Upon investigation, B&W had identified the former executive as Wigand. 53. On information and belief, Wigand engaged in communications with representatives of the CBS broadcast "60 Minutes" on or before March 27, 1994. According to The Wall Street Journal (November 16, 1995) (a copy of which is annexed hereto as Exhibit 11), Wigand was paid $12,000 by "60 Minutes" to serve as a consultant for a "60 Minutes" broadcast televised on March 27, 1994, concerning the alleged fire hazards of cigarettes. In exchange for this money received from "60 Minutes," Wigand divulged confidential information to CBS in violation of his confidentiality agreements with B&W. 54. On information and belief, Wigand continued to engage in communications with representatives of "60 Minutes" during 1995. On or before June 26, 1995, such communications concerned Wigand's participation in a filmed interview for a later broadcast on "60 Minutes". In exchange for Wigand's participation in such interview, CBS provided Wigand additional consideration over and above the $12,000 paid to him in 1994. According to The Wall Street Journal (November 16, 1995), CBS in-house lawyer Jonathon Sternberg wrote a letter to Wigand dated June 26, 1995, promising him that, in the event of any lawsuit alleging libel against Wigand in connection with the Wigand interview, CBS would indemnify Wigand for any and all judgments and legal expenses arising out of such interview. Copies of Sternberg's letter were contemporaneously sent to "60 Minutes" correspondent Mike Wallace and to Lowell Bergman, the producer of the "60 Minutes" segment involving Wigand. In addition, according to The New York Times (November 18, 1995) (a copy of which is annexed hereto as Exhibit 12), Bergman paid Wigand additional valuable consideration by promising Wigand in writing the "60 Minutes" would not air the interview with Wigand without Wigand's approval. In exchange for this consideration received from :"60 Minutes,: Wigand divulged confidential information to CBS in violation of his confidentiality agreements with B&W. 55. According to CBS correspondent Wallace, "[CBS] did pay when he and his wife came to New York, sat down to talk to us, and paid for the hotel" (Charlie Rose Show," November 13, 1995). In exchange for this and other consideration received from CBS, Wigand divulged confidential information to CBS in violation of his agreements with B&W. 56. On information and belief, the Wigand interview was filmed by :""60 Minutes" on or about October 17, 1995. According to The New York Times (November 9, 1995) (Exhibit 10) and The Wall Street Journal (November 16, 1995) (Exhibit 11), "60 Minutes" executive producer Don Hewitt acknowledged during a speech to the National Press Club in Washington, D.C., on October 17, 1995, that the Wigand interview had already been filmed. 57. Wigand knew that his communications with representatives of "60 Minutes" divulged information to CBS in violation of his agreement with B&W. CBS also knew that if it were to air the filmed interview with Wigand - which was scheduled for broadcast on November 12, 1995 - B&W would suffer additional damages. WIGAND'S DEPOSITION IS ARRANGED IN MISSISSIPPI 58. According to the November 18, 1995 edition of the Louisville Courier-Journal, Wigand is cooperating fully with the Mississippi Attorney General, his deposition has been "arranged" and he is being asked to "reveal everything he knows about Brown & Williamson." Despite knowing fully his obligations under his agreements (having previously provided sworn testimony in a US Department of Justice civil investigation under procedures outlined in the agreements in place to protect B&W's interests), Wigand has failed to comply with his agreements with regard to the Mississippi deposition by providing notice to B&W and cooperating with B&W with regard to his knowledge of B&W to ensure B&W's rights are protected. 59. As demonstrated by the allegations in this Complaint, B&W believes the evidence will show that Wigand is a master of deceit. If Wigand is not required to comply with his agreements, B&W will suffer irreparable harm in that Wigand may reveal competitively sensitive information, trade secrets or other confidential B&W information without providing B&W an opportunity to assert its rights with regard to its agreements with Wigand or its rights with regard to competitively sensitive or trade secret information.
COUNT I 60. B&W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 61. Wigand has stolen documents, materials and information of B&W and has no possessory right thereto. 62. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damages sustained by B&W as a consequence of his actions. B&W will suffer immediate and irreparable injury, loss or damage if Wigand is not immediately restrained and enjoined from continuing to use or disclose any documents (or copies of such documents) or any materials or information (or copies of such materials and information) acquired by during and as a result of his employment with B&W. Wigand should be ordered, moreover, to forthwith turn over to B&W all such stolen documents, materials and information.
COUNT II 63. B&W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs ! through 59 above. 64. B&W relied on misrepresentations of Wigand that he had no confidential B&W documents, materials and information, when, in fact, such representations were false and Wigand had fraudulently converted B&W documents, materials and information to his own use. 65. By reason of the foregoing, Wigand is liable to B&W for all resulting loss, injury and damage if Wigand is not immediately restrained and enjoined from continuing to use or disclose any documents (or copies of such documents) or any materials or information (or copies of such materials or information) acquired by him during and as a result of his employment with B&W.
COUNT III 66. B&W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 67. As a condition of his employment with B&W, Wigand signed an Employee Agreement requiring that upon termination of his employment he would leave with B&W all confidential documents (including copies of such documents) as more particularly described in Paragraph 9 above and a copy of which is annexed hereto as Exhibit 1. 68. On information and believe, Wigand has failed to return and possesses documents, materials and information during and as a result of his employment with B&W, which documents materials and information all contain confidential business and/or privileged information and trade secrets of B&W and which were taken by Wigand without the consent or authorization of B&W. 69. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damage sustained by B&W as a consequence of his actions, and should be immediately restrained and enjoined from disclosing or using for any purpose any information acquired during and as a result of his employment with B&W and ordered to forthwith turn over to B&W all the documents (and copies of such documents) and any and all other material or information (and copies of such materials and information) taken from B& W without authorization.
COUNT IV 70. B & W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 71. As a condition of his employment with B& W, Wigand signed a Confidentiality Agreement as more particularly described in Paragraph 10 above and a copy of which is annexed hereto as Exhibit 2. 72. Following the termination of his employment with B & W, Wigand signed a Letter of Agreement as more particularly described in Paragraph 12 above and a copy of which is annexed hereto as Exhibit 3. 73. On information and belief, Wigand has disclosed documents, materials and information to third parties in violation of the Confidentiality Agreement and Letter of Agreement. 74. On information and belief, Wigand possesses other documents, materials and information acquired during and as a result of his employment with B & W, which materials and information all contain confidential business and/or privileged information and trade secrets of B& W and were taken by Wigand without the consent or authorization of B & W. 75. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damage sustained by B & W as a consequence of his actions, and should be immediately restrained and enjoined from disclosing or using for any purpose any information acquired during and as a result of his employment with B & W and ordered to forthwith turn over to B & W all the documents (and copies of such documents) and any and all other material or information (and copies of such materials and information) taken from B & W without authorization.
COUNT V 76. B & W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 77. In connection with prior litigation instituted by B & W against Wigand in this judicial district relating to prior breaches of his confidentiality agreements with B& W, Wigand signed a Settlement Agreement as more particularly described in Paragraphs 16-17 above. 78. On information and belief, Wigand has disclosed documents, materials and information to third parties in violation of the Settlement Agreement. 79. On information and belief, Wigand possesses other documents, materials and information acquired during and as a result of his employment with B & W, which materials and information all contain confidential business and/or privileged information and trade secrets of B& W and were taken by Wigand without the consent or authorization of B & W. 80. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damage sustained by B & W as a consequence of his actions, and should be immediately restrained and enjoined from disclosing or using for any purpose any information acquired during and as a result of his employment with B & W and ordered to forthwith turn over to B& W all the documents ( and copies of such documents) and any and all other material or information ( and copies of such materials and information) taken from B & W without authorization.
COUNT VI 81. B & W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 82. Wigand has acknowledged his continuing fiduciary and common law duties not to disclose any information acquired during and as a result of his employment with B & W. 83. On information and belief, Wigand has disclosed documents, materials and information to third parties in violation of his fiduciary and common law duties. 84. On information and belief, Wigand possesses other documents, materials and information acquired during and as a result of his employment with B & W, which materials and information all contain confidential business and/or privileged information and trace secrets of B& W and which were taken by Wigand without the consent or authorization of B & W. 85. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damage sustained by B & W as a consequence of his actions, and should be immediately restrained and enjoined from disclosing or using for any purpose any information acquired during and as a result of his employment with B & W and ordered to forthwith turn over to B & W all the documents (and copies of such documents) and any and all other material or information ( and copies of such materials and information) taken for B & W without authorization.
COUNT VII 86. B & W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 87. B & W's confidential business and research information constitutes a trade secret within the meaning of Kentucky's Uniform Trade Secrets Act, KRS 365.880, et. seq. Such information derives independent economic value 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 such information was the subject of efforts that were reasonable under the circumstances to maintain its secrecy. B & W's confidential business and research information was guarded from disclosure by Wigand through the express terms of the Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement and by consequence of Wigand's fiduciary and common law duties. 88. Such confidential business and research information is proprietary and is not knowingly or voluntarily shared by B&W with any person, firm or corporation. B&W did not authorize Wigand to disclose any such documents, materials or information acquired by him during and as a result of his employment with B&W. 89. Wigand has misappropriated B&W's confidential business and research information and trade secrets in violation of the Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement, in violation of his fiduciary and common law duties and in violation of KRS 365.880 et seq., in that he has used and disclosed, and may in the future use or disclose, the documents or other information or materials to others without B&W's authorization or consent. Wigand's misappropriation of B&W's trade secrets was willful and malicious. 90. By reason of the foregoing, Wigand is liable for all resulting loss, injury or damage sustained by B&W as a consequence of his actions, and unless Wigand is restrained and enjoined from violating Kentucky's Uniform Trade Secrets Act, KRS 365.880, et seq., B&W will suffer immediate and irreparable harm and will sustain additional damages, including, but not limited to, loss of good will and will continue to suffer harm and sustain damages for which it has no remedy at law.
COUNT VIII 91. B&W realleges and incorporates by reference each of the allegations and averments set forth in Paragraphs 1 through 59 above. 92. Wigand has agreed that "B&W reserves all legal and equitable rights" to enforce the confidentiality provisions accepted by him as set forth in Paragraph 10 above. 93. On information and belief, Wigand has disclosed B&W documents, materials and information to third parties in violation of the law and in derogation of his obligations. 94. On information and belief, Wigand possesses other documents, material and information acquired during and as a result of his employment with B&W, which materials and information contain confidential business and/or privileged information and trade secrets of B&W and were taken by Wigand without the consent or authorization of B&W. 95. B&W's rights are being violated by Wigand and B&W will suffer immediate and irreparable injury, loss or damage if Wigand is not immediately restrained and enjoined, prior to a hearing, from continuing to use or disclose any documents (or copies of such documents) or any materials or information (or copies of such materials and information) acquired by him during and as a result of his employment with B&W. 96. B&W's rights are being violated by Wigand and B&W will suffer immediate and irreparable injury, loss or damage pending a final judgment in this action or Wigand's act will render a final judgment ineffectual. PRAYER FOR RELIEF WHEREFORE Plaintiff B&W demands judgment as follows: A. Finding that Defendant Wigand is liable to B&W for all loss, injury and damage suffered by B&W as a result of his theft and conversion of B&W documents; B. Finding that Defendant Wigand is liable to B&W for all loss, injury and damage suffered by B&W as a result of his frauds and misrepresentations in connection with B&W documents; C. Finding that Defendant Wigand is liable to B&W for all loss, injury and damage suffered by B&W as a result of the breach of his Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement; D. Finding the Defendant Wigand is liable to B&W for all loss, injury and damage suffered by B&W as a result of the breach of his common law and fiduciary duties to B&W. E. Finding that Defendant Wigand is liable to B&W for all loss, injury and damage sustained by B&W as a result of the breach of his duty to maintain the secrecy of B&W's confidential business and research information and trade secrets and his misappropriation of B&W's confidential business and research information and trade secrets, and further finding that Defendant Wigand threatens to further misappropriate B&W's confidential business and research information and trade secrets in violation of Kentucky's Uniform Trade Secrets Act, KRS 365.880, et seq., and, therefore, should be enjoined pursuant to KRS 365.882; E. [sic] Enjoining Defendant Wigand from violating the Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement by offering expert testimony in Mary Kearney, as Administratix of the Estate of Maureen O'Neill, Charlene O'Neill, Stacy O'Neill and Leanne O'Neill, (Civil Action No. 92-11079-K), United States District Court, District of Massachusetts. F. Awarding Plaintiff compensatory damages in an amount to be proven at trial which have been suffered as a consequence of the wrongs complained of herein, together with appropriate interest; G. Awarding Plaintiff punitive damage in an amount to be determined to be sufficient; H. Issuing a restraining order and awarding plaintiff temporary and permanent injunctive relief against Defendant Wigand prohibiting him from continuing to violate the provisions of the Employee Agreement, Confidentiality Agreement, Letter of Agreement and Settlement Agreement by disclosing or using for any purpose the Documents or any materials or information acquired during and as a result of his employment with B&W, and further ordering Defendant Wigand forthwith to turn over to B&W all the Documents (and copies such Documents) and any and all other materials or information (and copies of such materials and information) taken from B&W without consent or authorization; I. Advancing this matter on the docket for an early hearing; J. Awarding Plaintiff all costs and disbursements of this action, including but not limited to, reasonable fees to Plaintiff's attorneys; and K. Granting such further and other relief as may be just and proper or to which Plaintiff appears to be entitled. VERIFICATION John L. Kiser, being duly sworn, states as follows: 1. I am an employee of Brown & Williamson Tobacco Corporation, 1500 Brown & Williamson Tower, Louisville, Kentucky. 2. I am authorized to make this Verification on behalf of Brown & Williamson Tobacco Corporation. 3. I have read the foregoing Verified Complaint. To the best of my knowledge, information and belief after investigation, the contents thereof and the allegations contained therein are true or, when made on information and belief, believed to be true. /s/John L. Kiser COMMONWEALTH OF KENTUCKY COUNTY OF JEFFERSON The foregoing instrument was subscribed, sworn to and acknowledged before me this 21st day of November 1995 by John L. Kiser. My Commission expires July 2, 1996 /s/Notary Public Respectfully submitted,
/s/Gordon A. Smith and
/s/James E. Milliman and
/s/Michael J. O'Connell
COUNSEL FOR PLAINTIFF,
OF COUNSEL:
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