Bob evans mac and cheese expiration date

Furthermore, "[a] preliminary injunction is not a preliminary adjudication on the merits, but a device for preserving the status quo and preventing the irreparable loss of rights before judgment. BMH and Co. Phoenix Software, Inc. Accordingly, in order to obtain a preliminary injunction, the movant must show: 1 a likelihood of success on the merits; 2 a likelihood of irreparable harm if the injunction is not issued; 3 the balance of the hardships tips in the movant's favor, and 4 an injunction is in the public interest.

Winter , U. Cottrell , F. Under the sliding scale approach applied by the Ninth Circuit, a court may issue a preliminary injunction if the movant shows that there are serious questions going to the merits and the balance of the hardships tip sharply in its favor, as well as the remaining two factors. Shell Offshore, Inc. Greenpeace, Inc. There are two distinct types of preliminary injunctions. The first is a prohibitory injunction, in which the party seeking the injunction wishes to maintain the status quo. Stanley v. The second is a mandatory injunction, in which the party seeking the injunction requests action that goes well beyond maintaining the status quo.

In the Ninth Circuit, mandatory injunctions are disfavored, and "courts should be extremely cautious about issuing [them]. Int'l Olympic Comm. Mathews , F.

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Generally, "the usual function of a preliminary injunction is to preserve the status quo ante litem pending a determination of the action on the merits. Avis, Inc. Free Sewing Mach. In this case, at the time Reser's filed its complaint, Bob Evans had been producing, marketing, and selling their baked products for three months; Reser's seeks an injunction to alter the status quo and stop Bob Evans from producing and selling a product that they currently produce and sell.

Therefore, Reser's seeks a mandatory injunction which is looked upon with disfavor, and must be viewed with a higher degree of scrutiny. In its motion for preliminary injunction, Reser's argues that both its breach of contract claim and its misappropriation of trade secrets claim support the granting of a preliminary injunction in this case.

Explanations

Reser's argues that Bob Evans breached various sections of the NDA by using Reser's confidential and proprietary information about pricing, business and marketing information, and Reser's product and process information to produce "knock off" versions of Reser's baked side dishes. Reser's also maintains that in order to produce these "knock offs," Bob Evans must have reverse engineered Reser's product, which is prohibited by the NDA.

In order to prevail on its breach of contract claim, Reser's must prove: 1 the existence of an enforceable contract or agreement; 2 that it fulfilled its obligations under the contract; 3 that Bob Evans failed to fulfill their obligations under the contract; and 4 that it suffered damages as a result of this breach. Lawrence v. Lorain Cty. Title Ins. I conclude that Reser's has demonstrated a serious question going to the merits of its breach of contract claim.

Marcos , F. Benrus Watch Co. Coston , F. While most of Reser's claims about Bob Evans' breach of the NDA are based on speculation or not supported by the terms of the NDA itself, Reser's nonetheless establishes serious questions on the merits of its breach of contract claim in regards to Bob Evans' use of Reser's shelf life information.


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Under the NDA, the parties are prohibited from using "information" for any other purpose than "to benefit their mutual business interests and relationship. Gerber Decl. Given that "Information," as it is defined in the NDA, could include shelf life information particular to Reser's products, a question arises as to whether Bob Evans used Reser's shelf life information to further its own interests rather than the parties' mutual interests.

Bob Evans argues that maximum shelf life information is routinely shared with retailers, and nonetheless can be estimated by food scientists. However, evidence in the record reflects that Reser's did not disclose maximum shelf life information to its retailers absent a confidentiality agreement.

Gerber did not state that Bob Evans' research team independently estimated that Reser's products have a shelf life of 50 days, but that as a matter of fact Reser's products do. Thus, I find that Reser's has established a serious question going to the merits of its breach of contract claim on this basis.

As for other alleged breaches of the NDA by Bob Evans, I do not find that Reser's has established serious questions going to the merits. Aside from its claim that Bob Evans is using its shelf life data in violation of the NDA, Reser's asks the court to draw inferences based on the similarity of the parties' baked products and the comparatively short time it took Bob Evans to develop their product to find other violations of the NDA. According to Reser's, Bob Evans could have produced a similar product in such a short time only if they availed themselves of Reser's protected information.

However, Reser's fails to provide evidence that Bob Evans used, or is using, information protected by the NDA to produce their product. Moreover, Bob Evans has offered contrary evidence demonstrating that they developed their product from publicly available information and independent research, both of which are types of information excluded from protection under the NDA. Additionally, Bob Evans has provided detailed information and evidence about how their task force independently developed their production process and product.

Likewise, I am not persuaded by Reser's reverse engineering argument. According to Reser's, Bob Evans must have reverse engineered Reser's product in developing their own baked side dishes; otherwise, they would not be able to use the same UPC code. However, the NDA's prohibition on reverse engineering is limited to "any sample embodying any portion of the Information received from the other," and "Information" does not include information that "was generally available to the public at the time of receipt thereof from the other or subsequently became generally available to the public, other than by disclosure by it.

A at Thus, the NDA does not explicitly prohibit either party from purchasing the other's product from a store and reverse-engineering it. Here, plaintiff presents no evidence to refute that Bob Evans used Reser's publicly available side dishes in developing their own product; they did not use any non-public samples or prototypes obtained through Reser's. Furthermore, Bob Evans has produced evidence that it is their common practice to use the same UPC code for a product even though the manufacturer of the product has changed, so long as the product is similar in size and weight. Garber Decl.

Thus, the fact that Bob Evans is using the same UPC code for their baked products does not necessarily mean that they copied or reversed engineered Reser's product in violation of the NDA. In sum, Bob Evans has put forth evidence that they used publicly available and independently developed information to create their baked products, and Reser's focus on the similarities between the two companies' products is insufficient to support a conclusion, at this stage of the litigation, that Bob Evans used Reser's protected information. However, as mentioned before, Reser's has shown a serious question going to the merits of its claim regarding Bob Evans' use of Reser's maximum shelf life information.

To determine whether information constitutes a trade secret, the court considers whether the information at issue is generally known within the relevant community, whether the information is more valuable because it is not generally known, and whether there were reasonable efforts taken to keep it secret. Kaib's Roving R.

Agency, Inc. Smith , Or. A court may issue an injunction upon a showing of actual or threatened misappropriation of a trade secret. Misappropriation is defined as the "[d]isclosure or use of a trade secret of another without express or implied consent by a person who used improper means to acquire knowledge of the trade secret. Improper means is defined to include "theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy or espionage through electronic or other means.

However, reverse engineering or independent development alone do not constitute improper means. In its motion, Reser's argues that its Baked Process employs many trade secrets including the manner in which the products are pasturized and browned, the organization and timing of the production line, the product packaging, and the sealing process. Reser's also argues that its use of an oven to kill bacteria in food, and the fact that Reser's Baked Process creates a shelf life of days, are trade secrets. Reser's maintains that its Baked Process was developed over years to produce a unique product and its process derives independent economic value from not being generally known.

Bob Evans contends, however, that the information Reser's claims are trade secrets do not qualify under the statute because the information is either publicly known or well-known in the industry.

Bob Evans Macaroni and Cheese

For example, Bob Evans argues that the idea of putting cheese on a side dish and browning it in the oven has been used for decades. See Garber Decl. Additionally, the food industry is already aware of the use of CPET trays, kill-step temperatures, and lid films for dual-ovenable food products. See Gerber Decl. Bob Evans also argues that the choice of base products like macaroni and cheese, hash brown casserole, and scalloped potatoes were publicly disclosed once Bob Evans began selling the co-packed baked dishes in While I agree that some components of Reser's Baked Process were publicly disclosed or generally known to the industry, that does mean the Baked Process itself cannot qualify as a trade secret.

Thus, "[w]hen someone expends considerable time, effort, and expense to compile information, that information in its compiled form can, in some circumstances, meet the statutory definition of a trade secret. Here, Reser's spent considerable time and money developing its Baked Process. While certain elements of the process may be publicly known, together they arguably form a compiled process that is in and of itself valuable if not generally known to the public or the industry.

See Buffets, Inc. Klinke , 73 F. I also find that Reser's has taken reasonable steps in protecting its Baked Process. For example, it only disclosed information about its Baked Process to Bob Evans under a NDA; its employees are required to sign confidentiality agreements; and it limits access to its Baked Process production lines to persons covered by confidentiality agreements. Reser Decl.


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  • However, while the Baked Process may be a trade secret, I find that Reser's has failed to make a clear showing that Bob Evans misappropriated it. Not only has Reser's failed to produce evidence that Bob Evans is using its Baked Process, Bob Evans has produced contrary evidence showing that their process varies greatly from Reser's.

    For example, Reser's uses an oven to accomplish both the kill step and the browning of the cheese on each dish, whereas Bob Evans uses the "hot fill" technique in a kettle to accomplish the kill step for the filling, then pours the filling into the containers and uses an oven to brown the cheese on top. The parties also use different ingredients, and buy their ingredients from different vendors.

    Nonetheless, Reser's argues that components of its Baked Process are trade secrets, and that Bob Evans has misappropriated them. For example, Reser's argues that the "manner in which the products are pasteurized and browned, the set-up of the production line, including the manner and timing of transfer of the products between the oven and the sealing machine, the product packaging, and the sealing process, including materials and modifications to the process to accommodate the consequences of baking the product in a CPET tray immediately prior to sealing.

    It also claims that the use of an oven to accomplish a kill step to create an extended shelf-life is a trade secret. Finally, it argues that the fact that Reser's Baked Items have a shelf life of days is a trade secret. As explained above, Reser's Baked Process could qualify as a trade secret.

    However, the individual elements of that process are not necessarily trade secrets themselves because: 1 they are either publicly known or known in the food industry; or 2 they do not derive independent economic value from not being generally known. For example, using an oven to brown cheese on top of a food product is not a trade secret because it is widely known. Likewise, the use of CPET trays and linings are common in the frozen and refrigerated food industry.

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    Additionally, the fact that food must be heated to a certain temperature before packaging and cooling is widely known in the industry, and the idea to accomplish this kill step using an oven is generally ascertainable by those in the food industry. Moreover, the fact that Reser's Baked Process produces a product with an extended shelf life is not a trade secret in and of itself, because it does not derive independent value from not being known. The shelf life of Reser's Baked Items is dependent on Baked Process and its relevant formulas, ingredients, and cook times. Here, Reser's presents no evidence that Bob Evans is using the same process or ingredients as Reser's; therefore, Reser's argument that the shelf life information is a trade secret is not persuasive.

    In sum, while Reser's focuses on the similarities between the parties' finished products as proof that its trade secrets have been misappropriated, evidence that someone has produced a similar finished product is not sufficient to establish misappropriation of trade secrets. Polimaster Ltd.

    RAE Systems, Inc. Therefore, Reser's must establish the remaining preliminary injunction factors based on its breach of contract claim. In order to obtain a preliminary injunction, the party seeking the injunction must demonstrate that it will suffer irreparable harm if the injunction is not issued. To do this, the party must show that the "remedies available at law, such as monetary damages, are inadequate to compensate for that injury. MercExchanqe, L. The Supreme Court has explained:. Sampson v. Murray , U. Petroleum Jobbers Ass'n v.

    FPC , F. Thus, it is generally understood that mere financial injury is insufficient to show irreparable harm, as those injuries can be remedied via monetary damages. Rent-a-Center v. However, there are some limited circumstances in which a court will grant a preliminary injunction to protect against economic harm, but these situations are limited to cases where a business' actual existence is at jeopardy, or where a party's ultimate ability to recover a monetary judgement is threatened.

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    • Please Wait. Checkout Summary. Calories Calories from Fat 0. Total Fat g Saturated Fat 6. Trans Fat. Cholesterol mg Sodium mg Total Carbohydrates g Dietary Fiber 1. Sugars