Earthgrains Baking Companies v. Sycamore et al

Filing 434

MEMORANDUM DECISION AND ORDER Ruling on Comments and Objections to Court's Proposed Final Jury Instructions and Special Verdict Form, 406 Objections by United States Bakery, 408 Supplemental Objections by United States Bakery, and 410 Objections by Bimbo Bakeries USA. Signed by Judge David Nuffer on October 4, 2017. (Attachments: # 1 Exhibit Final Jury Instructions with Revisions, # 2 Exhibit Special Verdict Form with Revisions) (mjt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BIMBO BAKERIES USA, INC.,

PRELIMINARY
JURY INSTRUCTIONS

Plaintiff,
v.
Case No. 2:13-cv-00749-DN-DBP
LELAND SYCAMORE and UNITED
STATES BAKERY, INC.,
Defendants.

District Judge David Nuffer

INSTRUCTION NO. 1
MEMBERS OF THE JURY:
I will now read some preliminary instructions about the process we will follow. At the
end of the trial, I will provide more instructions about the law that governs the issues. During the
trial you should focus your attention on the facts of this case, as shown by the evidence
presented.
It will be your duty to find the facts from the evidence presented in court. You, and you
alone, are the judges of the facts. You will then have to apply the law as I will later instruct you
to those facts. It will be my responsibility to instruct you on the applicable law, while it is your
duty to find the facts. You must follow the instructions on the law whether you agree with them
or not.
Nothing I may say or do during the course of the trial is intended to indicate that I have
any opinion about the facts of the case, nor should anything I say or do be taken as indicating
what your verdict should be.
Justice through trial by jury always depends upon the willingness of each individual juror
to seek the truth as to the facts from the same evidence presented to all the jurors, and to arrive at
a verdict by applying the rules of law as given in the instructions.

INSTRUCTION NO. 2
Next, a few words about your conduct as jurors. These instructions may seem odd, but
they are critically important, because if you violate these rules the trial will be invalid. We don’t
want to get a verdict and then find out later that one of you considered evidence from outside the
courtroom. The rules are clear that if any of you are influenced by something other than evidence
presented in court, the case must be tried again.
First, if anyone should try to talk to you about the subject of this case, bring it to the
attention of the jury administrator promptly.
Second, do not read or listen to anything touching on this case in any way. Do not watch
or listen to any news reports concerning this trial on television or on the radio, and do not read
any news accounts of this trial in a newspaper, on the internet, or on any instant communication
device or service, including smartphones, email, texts, Facebook, Twitter, and other devices and
services.
Third, do not try to do any research or make any investigation about the case on your
own. This means you must not consult any person or source, including internet resources, on
subjects related to this case.
Fourth, until this trial is over, the only time that you may discuss the evidence is when
you are all together so that (1) each of you is present during the discussion, (2) in the jury room,
(3) with no one else present. If one of those three conditions is not met, you may not discuss the
case. That means that under any other circumstances you are not to discuss the case with fellow
jurors or anyone else or permit anyone to discuss it with you.
Fifth, when you go home tonight and family and friends ask what the case is about,
remember you cannot speak with them about the case. All you can tell them is that you are on a

jury, the estimated schedule for the trial, and that you cannot talk about the case until it is over.
Sixth, to avoid even the appearance of improper conduct, do not talk to any of the parties,
the lawyers, or witnesses about anything until the case is over, even if your conversation with
them has nothing to do with the case. The lawyers and parties have been given the same
instruction about not speaking with you jurors, so do not think they are being unfriendly to you.
Seventh, do not form any opinion until all the evidence is in. Keep an open mind until
you start your deliberations at the end of the case. If you discuss the case with your fellow jurors
in the jury room when all are present, remember you must not form opinions or make decisions
about any fact or about the outcome of the case until you have heard and considered all of the
evidence, the closing arguments, and the rest of the instructions I will give you on the law. Both
sides have the right to have the case fully presented and argued before you decide any of the
issues. Evidence can only be presented one piece at a time. Therefore, you must keep an open
mind throughout the trial. While you may have some initial impressions, do not form any final
opinions until after you have discussed them thoroughly with your fellow jurors during your
deliberations at the end of the trial.
Finally, your smartphones, email, texts, Facebook, Twitter, and other devices and
services should not be used in any way with regard to this case.
After the trial is over and I have released you from the jury, you may then discuss the
case with anyone, but you are not required to do so. I will give you more instructions about this
when you have returned your verdict.
Again, we want to avoid the case where a juror did some internet research and thought
that Google Street View showed the intersection looked differently than the photos in court – and
that research voided the verdict. Please play by these rules during the trial.

INSTRUCTION NO. 3
Plaintiff Bimbo Bakeries, USA Inc. will be referred to in these instructions as Bimbo
Bakeries. United States Bakery, Inc., will be called US Bakery.
This case involves Bimbo Bakeries’ claims against US Bakery for false advertising and
Bimbo Bakeries’ claims against US Bakery and Leland Sycamore for trade secret
misappropriation.
False Advertising: Bimbo Bakeries claims that US Bakery is liable for false advertising
and unfair competition based on US Bakery’s use of a company tagline saying “Fresh. Local.
Quality.” US Bakery denies that its use of the “Fresh. Local. Quality.” tagline was false or
misleading under the law.
Trade Secret: Bimbo Bakeries also alleges that US Bakery and Leland Sycamore
misappropriated a trade secret related to the recipe and process for making Grandma Sycamore’s
Home-Maid Bread. Bimbo Bakeries contends that its trade secret is a compilation of four
components—two ingredients and two production steps. US Bakery and Leland Sycamore deny
that the four components involved in producing Grandma Sycamores constitute a legally
protectable trade secret.
Bimbo Bakeries claims that Leland Sycamore and others produced a brand of bread
called Grandma Emilie’s for US Bakery and unlawfully acquired, used, and disclosed the alleged
trade secret. Leland Sycamore denies that he wrongfully acquired, used or disclosed the alleged
trade secret and further denies that he produced bread for US Bakery. Bimbo Bakeries alleges
that US Bakery wrongfully acquired, disclosed, and used the trade secret by making and selling
Grandma Emilie’s, as well as another brand of bread named BreadLover’s. US Bakery denies
that it wrongfully acquired, used, or disclosed any supposed trade secret.

At the end of the trial, you will be asked to determine whether the claims have been
proven and, if so, if any damages should be awarded to Bimbo Bakeries. You will receive further
instructions on the law to help you make that decision.

INSTRUCTION NO. 4
The evidence from which you will find the facts will consist of the sworn testimony of
witnesses, documents and other things received into the record as exhibits, and any facts the
lawyers agree or stipulate to, or that I may instruct you to find.
In your consideration of the evidence, you are not limited to the statements of the
witnesses. On the contrary, you are permitted to draw reasonable inferences from the facts
which you find have been proven. An inference is a deduction or conclusion which reason and
common sense would lead you to draw from facts which are established by the evidence.
Certain things are not evidence and must not be considered by you. These include:
1. Statements, arguments and questions by lawyers are not evidence. However, when the
attorneys on both sides stipulate or agree as to the existence of a fact and that stipulation is
presented to you by the court, you must accept the stipulation and regard that as a conclusively
proven fact.
2. Objections to questions are not evidence. Lawyers have an obligation to make an
objection when they believe evidence being offered is improper under the rules of evidence.
You should not be influenced by an objection or by my ruling on it. If the objection is sustained,
ignore the question. If it is overruled, treat the answer like any other. If you are instructed that
some item of evidence is received for a limited purpose only, you must follow that instruction.
3. Testimony that I have excluded or told you to disregard is not evidence and must not
be considered.
4. Anything you may have seen or heard outside the courtroom is not evidence and must
be disregarded. You are to decide the case solely on the evidence presented here in the
courtroom.

INSTRUCTION NO. 5
This is a civil case. The plaintiff has the burden of proving the plaintiff’s case by what is
called a preponderance of the evidence. That means the plaintiff has to produce evidence which,
considered in the light of all the facts, leads you to believe that what plaintiff claims is more
likely true than not. To put it differently, if you were to put plaintiff’s and defendant’s evidence
on opposite sides of the scales, plaintiff would have to make the scales tip somewhat on the
plaintiff’s side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.
Some facts in this case must be proved by a higher level of proof called “clear and
convincing evidence.” Clear and convincing evidence means that the party must persuade you,
by the evidence, to the point that there remains no serious or substantial doubt as to the truth of
the fact. Proof by clear and convincing evidence requires a greater degree of persuasion than
proof by a preponderance of the evidence but less than proof beyond a reasonable doubt.
Those of you who have seen or participated in criminal trials will have heard of proof
beyond a reasonable doubt. That requirement does not apply to a civil case and you should
therefore put it out of your mind.

INSTRUCTION NO. 6
You are the exclusive judges of the credibility of the witnesses and the weight of the
evidence. You may believe or disbelieve all or any part of any witness’s testimony. In judging
the weight of the testimony and the credibility of the witnesses you have a right to take into
consideration their bias, their interest in the result of the case, their relationship to any of the
parties, or any probable motive or lack thereof to testify fairly, if any is shown. You may
consider the witnesses’ demeanor on the witness stand; the reasonableness of their statements;
their apparent frankness or candor, or the lack of it; their opportunity to know; their ability to
understand; their capacity to remember; and the extent to which their testimony has been either
supported or contradicted by other credible evidence. You should consider these matters
together with all the other facts and circumstances that you may believe have a bearing on the
truthfulness or accuracy of the witnesses’ statements.

INSTRUCTION NO. 7
At the end of trial, you must make your decision based on what you recall of the evidence
and the exhibits received into evidence. You will not have a transcript of the trial. I urge you to
pay close attention to the testimony as it is given. You will have the exhibits which are received
into evidence. I urge you to pay close attention to the testimony as it is given.

INSTRUCTION NO. 8
You will be permitted to take notes during this trial. But if you do, leave them in the jury
room when you leave at night, and remember that they are for your own personal use.
You, of course, are not obligated to take notes. If you do not take notes you should not
be influenced by the notes of another juror, but rely upon your own recollection of the evidence.
Note-taking must not be allowed to interfere with the ongoing nature of the trial or
distract you from what happens here in court. Notes taken by any juror are not evidence and
must not take precedence over the independent recollection of the evidence received. Notes are
only an aid to recollection and are not entitled to any greater weight than the actual recollection
or impression each juror has of the evidence actually presented. Any notes taken by any juror
concerning this case should not be disclosed to anyone other than a fellow juror and at no other
time than during deliberation.

INSTRUCTION NO. 9
The plaintiff and the defendants have stipulated–that is they have agreed–to certain facts.
You must therefore treat those facts as conclusively proven. I will now read the stipulated facts:

INSTRUCTION NO. 10
You may hear the testimony of an expert witness. This term denotes a witness who, by
education and experience, has become expert in some art, science, profession, or calling, and
may state opinions as to relevant and material matters in which the witness is an expert, and may
also state the reasons for the opinion.
You are not bound, however, by such an opinion. You should judge expert opinion
testimony just as you judge any other testimony. Give it the weight to which you deem it
entitled, whether that be great or slight, and you may reject it, if in your judgment the reasons
given for it are unsound.

INSTRUCTION NO. 11
During the trial it may be necessary for me to talk with the lawyers out of your hearing,
either by having a bench conference here while you are present in the courtroom, or by calling a
recess. Please understand that while you are waiting, we are working. The purpose of these
conferences is to decide how certain evidence is to be treated under the rules of evidence, and to
avoid confusion and error. We will, of course, do what we can to keep the number and length of
these conferences to a minimum.

INSTRUCTION NO. 12
The trial will now begin. First, each side may make an opening statement. An opening
statement is neither evidence nor argument; it is an outline of what that party intends to prove,
offered to help you follow the evidence.
Next, plaintiff will call witnesses and defendant may cross-examine them. Then
defendant will call witnesses and plaintiff may cross-examine them.
At the close of the evidence, I will give you instructions on the law, after which the
attorneys will make their closing arguments to summarize and interpret the evidence for you.
You will then retire to deliberate on your verdict.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
BIMBO BAKERIES USA, INC.,

FINAL JURY INSTRUCTIONS

Plaintiff,
v.

Case No. 2:13-cv-00749-DN-DBP

LELAND SYCAMORE and UNITED
STATES BAKERY, INC.,

District Judge David Nuffer

Defendants.

General Instructions

13–18

Witnesses

19–24

False Advertising

25–27

Damages

28–31

Willfulness

32

Trade Secret

3325–4133

Damages

4234–4639

Willfulness

470

False Advertising

41–43

Damages

44–45

Willfulness

46

Damages Generally

487–5049

Deliberations and Decision Making

510–543

INSTRUCTION NO. 13

MEMBERS OF THE JURY:
Now that you have heard the evidence, it becomes my duty to give you instructions as to
the law applicable to this case.
It is your duty as jurors to follow the law as stated in these instructions, and to apply the
rules of law to the facts as you find them from the evidence.
You are not to single out one instruction alone as stating the law, but must consider the
instructions as a whole.
Neither are you to be concerned with the wisdom of any rule of law stated by these
instructions. Regardless of any opinion you may have as to what the law ought to be, it would be
a violation of your sworn duty to base a verdict upon any other view of the law than that given in
these instructions; just as it would be a violation of your sworn duty, as judges of the facts, to
base a verdict upon anything but the evidence of the case.
You are to disregard any evidence offered at trial and rejected by me. You are not to
consider questions of counsel as evidence. You are not to consider the opening statements and
the closing arguments of counsel as evidence. Their purpose is merely to assist you in analyzing
and considering the evidence presented at trial.
Nothing I have said during the trial or in these instructions should be interpreted by you
as giving or intimating my opinion as to what has or has not been proven or as to what are or are
not the facts of this case.

INSTRUCTION NO. 14
Plaintiff has the burden of proving the Plaintiff’s claims by a preponderance of the
evidence.
To prove by a preponderance of the evidence means to prove something is more likely
than not. It does not mean the greater number of witnesses or exhibits. It means the evidence
that has the more convincing force when taken on the whole compared to the evidence opposed
to it. It means the evidence that leads you, the jury, to find that the existence of the disputed fact
is more likely true than not true.
Any finding of fact you make must be based on probabilities, not possibilities. A finding
of fact must not be based on speculation or conjecture.
When I say in these instructions that a party has the burden of proof on any proposition,
or use the expression “if you find” or “if you determine,” I mean that you must be persuaded,
considering all the evidence, that the proposition is more probably true than not true.
In determining whether any disputed fact has been proven by a preponderance of the
evidence you may, unless otherwise instructed, consider the testimony of all witnesses,
regardless of who may have called them, and all exhibits.
If a party fails to meet its burden of proof, or if the evidence weighs so evenly that you
are unable to say that there is a preponderance on either side, you must resolve the question
against the party who has the burden of proof on that issue and in favor of the opposing party.

INSTRUCTION NO. 15
You are to perform your duty as jurors without bias or prejudice as to any party. Our
system of law does not permit jurors to be governed by sympathy, prejudice, or public opinion.
Both the parties and the public expect that you will carefully and impartially consider all the
evidence, follow the law as stated by these instructions, and reach a just verdict, regardless of the
consequences.
It would be improper for you to consider any personal feelings you may have about one
of the parties’ race, religion, national origin, gender, orientation, or age.
It would be equally improper for you to allow any feelings you might have about the
nature of the claim asserted to influence you in any way.
The parties are entitled to a trial free from prejudice.
The plaintiff and two of the defendants are business entities. A corporation or other
company is entitled to the same treatment as a private individual. You must consider and decide
this case as a case between persons of equal rights, equal worth, and equal standing. All persons,
including business entities, stand equal before the law and are to be dealt with as equals in a
court of justice.

INSTRUCTION NO. 16
Unless you are otherwise instructed, the evidence consists of the sworn testimony of the
witnesses, regardless of who may have called them; all exhibits received in evidence regardless
of who may have produced them; and all facts which may have been admitted or stipulated.
Any evidence as to which an objection was sustained, and any evidence ordered stricken
by me, must be entirely disregarded.
Unless you are otherwise instructed, anything you may have seen or heard outside the
courtroom is not evidence, and must be entirely disregarded.

INSTRUCTION NO. 17
The plaintiff and the defendant have stipulated–that is they have agreed–to certain facts.
You must therefore treat those facts as having been conclusively proven. Some witnesses have
relied uponused demonstrative exhibits while testifying at trial. Demonstrative exhibits are
materials, including slideshow presentations, displayed to you during the witnesses’ testimony.
Some, but not all, of those materials have been admitted as evidence. The admitted
demonstrative exhibits will be provided to you for your deliberations.

INSTRUCTION NO. 18
During this trial I have permitted you to take notes. Many courts do not permit notetaking by jurors, and, as I instructed you at the beginning of trial, a word of caution is in order.
There is always a tendency to attach undue importance to matters which one has written down.
Some testimony which is considered unimportant at the time presented, and thus not written
down, takes on greater importance later in the trial in light of all the evidence presented.
Therefore, you are instructed that your notes are only a tool to aid your own individual memory.
Your notes are not evidence, and are by no means a complete outline of the proceeding or a list
of the highlights of the trial. Above all, your memory should be your greatest asset when it
comes time to deliberate and render a decision.
If any reference by me or by the attorneys to matters of evidence does not coincide with
your own recollection, it is your recollection which should control during your deliberations.

INSTRUCTION NO. 19
Inconsistencies or discrepancies in the testimony of a witness, or between the testimony
of different witnesses, may or may not cause you to discredit such testimony. Two or more
persons witnessing an incident or a transaction may simply see or hear it differently, and
innocent misrecollection, like failure of recollection, is not an uncommon experience. In
weighing the effect of a discrepancy, always consider whether it pertains to a matter of
importance or an unimportant detail, and whether the discrepancy results from innocent error or
intentional falsehood.
After making your own judgment, you will give the testimony of each witness such
weight, if any, as you may think it deserves.

INSTRUCTION NO. 20
You may believe that a witness, on another occasion, made a statement inconsistent with
that witness’s testimony given here. That does not mean that you are required to disregard the
testimony. It is for you to decide whether to believe the witness.

INSTRUCTION NO. 21
If you believe any witness has intentionally testified falsely about any important matter,
you may disregard the entire testimony of that witness, or you may disregard only the
intentionally false testimony.

INSTRUCTION NO. 22
It is the duty of the attorney on each side of the case to object when the other side offers
testimony or other evidence which the attorney believes is not properly admissible. You should
not show prejudice against any attorney or the attorney’s client because the attorney has made an
objection.
Upon allowing testimony or other evidence to be introduced over the objection of any
attorney, I do not indicate any opinion as to the weight or effect of any such evidence. As stated
before, you the jurors are the sole judges of the credibility of all witnesses and the weight and
effect of all evidence.
When I have sustained an objection to a question addressed to a witness, you must
disregard the question entirely, and may draw no inference from the wording of it or speculate as
to what the witness would have said if the witness had been permitted to answer any question.

INSTRUCTION NO. 23
During the trial, I may have occasionally asked questions of a witness to bring out facts
not then fully covered in the testimony. Do not assume that I hold any opinion on the matters to
which my questions may have related.

INSTRUCTION NO. 24
There are, generally speaking, two types of evidence from which a jury may properly find
the truth as to the facts of a case. One is direct evidence—such as the testimony of an
eyewitness. The other is indirect or circumstantial evidence—the proof of a chain of
circumstances pointing to the existence or nonexistence of certain facts.
As a general rule, the law makes no distinction between direct and circumstantial
evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct
evidence. You should weigh all the evidence and give it the appropriate weight you determine it
deserves.

INSTRUCTION NO. 25
FALSE ADVERTISING—ESSENTIAL ELEMENTS
Bimbo Bakeries claims that US Bakery is liable for false advertising. To prove its claim,
Bimbo Bakeries must prove the following facts:
1.

US Bakery made material false or misleading representations of fact in
connection with the advertising or promotion of its products;

2.

the representations were made in commerce;

3.

the representations are likely to cause confusion or mistake as to (a) the origin,
association or approval of the product with or by another, or (b) the characteristics
of the products; and

4.

Bimbo Bakeries has been, or is likely to be, injured as a result of the
representations.

Communications need not resemble traditional television, radio, print, or Internet
advertisements to qualify as “advertising or promotion” for purposes of a false advertising claim.
A message is advertising or promotion if it is commercial speech:
1.

by a defendant who is in competition with the plaintiff;

2.

for the purpose of influencing customers to buy the defendant’s goods; and

3.

disseminated to the purchasing public in a way that constitutes advertising or
promotion in the parties’ industry or to their customer base.

INSTRUCTION NO. 26
FALSE OR MISLEADING REPRESENTATIONS
There are two ways in which US Bakery’s advertising may be false or misleading:
a.

it may be literally false, either on its face or by necessary implication; or

b.

it may be literally true or ambiguous and likely to mislead or confuse
consumers.

If the statement in question is literally false, Bimbo Bakeries need not show that the
statement either actually confused customers or was likely to do so. A representation is literally
false when it states that a product has certain qualities that it in fact does not actually have.
If the statement in question is misleading in context, but literally true or ambiguous,
Bimbo Bakeries must prove actual consumer confusion. Consumer confusion may be shown by
direct evidence, such as a diversion of sales or direct testimony from witnesses at trial, or by
circumstantial evidence, such as consumer surveys.

INSTRUCTION NO. 27
MATERIALITY
In the context of a false advertising claim, “materiality” means that the false or
misleading statement is likely to influence the purchasing decision of a customer.
If you find that USB’s advertisements were literally false, you are to presume that USB’s
representations are material for those statements only, unless USB rebuts the presumption. For
statements that are not literally false but are misleading in context and result in consumer
confusion, there is no such presumption of materiality.

INSTRUCTION NO. 28
DAMAGES FOR FALSE ADVERTISING
If you decide that US Bakery has engaged in false advertising, you must then determine
the amount of damages, if any, Bimbo Bakeries is entitled to receive. The fact that I am
instructing you on the subject of damages does not mean that Bimbo Bakeries is or is not entitled
to recover damages. I am expressing no opinion one way or the other. These instructions are only
to guide you if you find Bimbo Bakeries is entitled to recover damages for false advertising.
You must separately consider whether damages, if any, resulted from the “Freshly Baked
in Utah” shelf-liners or the “Fresh. Local. Quality.” tagline.
Bimbo Bakeries has the burden of establishing the amount of actual damages, if any, that
it suffered. Damages must be determined with reasonable certainty from the evidence presented.
Mathematical precision need not be shown, but you are not to guess or speculate as to damages.
You may only award an amount that would fairly compensate Bimbo Bakeries for
damages proximately caused by US Bakery’s false advertising. This may include profits Bimbo
Bakeries lost as a result of due to a loss of market share caused by the false advertising.
Instruction No. 36 guides you in calculating profits. Bimbo Bakeries has the burden of proving
what its profits would have been absent the false advertising.

INSTRUCTION NO. 29
DAMAGES FOR FALSE ADVERTISING – ACTUAL DAMAGES
You must first consider whether Bimbo Bakeries has suffered actual damages by a loss of
market share caused by the false advertising. You will not be asked to determine an amount of
profits Bimbo Bakeries lost, but only to determine if Bimbo Bakeries suffered actual damages.

INSTRUCTION NO. 30
DAMAGES FOR FALSE ADVERTISING – US BAKERY’S PROFITS
In addition to actual damages, Bimbo Bakeries may be entitled to any profits earned by
US Bakery that are attributable to the false advertising. However, you may not include in any
award of US Bakery’s profits any amount of Bimbo Bakeries’ lost profits that you included in
determining actual damages.
Bimbo Bakeries must show either actual damages or willful action on the part of US
Bakery before it may recover US Bakery’s profits attributable to the false advertising. Bimbo
Bakeries is not required to show an exact dollar amount of actual damages to obtain US Bakery’s
profits, so long as it shows it was injured in some way.
Instruction No. 312936 guides you in calculating profits. Bimbo Bakeries has the burden
of proving US Bakery’s gross revenue from false advertising. US Bakery has the burden of
proving any deductible expenses.

INSTRUCTION NO. 31
CALCULATING PROFITS
Profit is determined by deducting all appropriate expenses from gross revenue, as this
formula shows:
Profits = Gross Revenue –Expenses
Gross revenue is all of the revenue received by a defendant from the sale of bakery
products which rely upon the trade secrets. Bimbo Bakeries has the burden of proving a
defendant’s gross revenue.
Expenses to be deducted from gross revenue are all variable expenses which are related
to, and increase or decrease in connection with, sales of the bakery products at issue. Expenses
that are fixed, and that do not increase or decrease in connection with sales of the bakery
products at issue, such as general overhead and operating expenses, should not be deducted from
gross revenue in calculating profits. Each defendant has the burden of proving any deductible
expenses.

INSTRUCTION NO. 32
FALSE ADVERTISING—WILLFULNESS
Bimbo Bakeries also claims that US Bakery’s false advertising was willful. US Bakery
denies that claim.
A defendant commits “willful” false advertising when that defendant knowingly and
purposefully made the statements constituting false advertising, or when the defendant
reasonably should have known that the statements constituted false advertising.

INSTRUCTION NO. 33
ELEMENTS OF A TRADE SECRET MISAPPROPRIATION CLAIM
Bimbo Bakeries claims that Leland Sycamore, Tyler Sycamore, Wild Grains, and US
Bakery misappropriated Bimbo Bakeries’ recipe and process for making Grandma Sycamore’s
white bread.
To recover against a defendant on its trade secret misappropriation claim, Bimbo
Bakeries must prove each of the following elements by a preponderance of the evidence:
1.

Bimbo Bakeries’ recipe and process is a trade secret;

2.

The defendant misappropriated Bimbo Bakeries’ trade secret; and

3.

Bimbo Bakeries suffered harm as a direct and proximate result of that defendant’s
use or disclosure of the trade secret, or that defendant obtained benefit from the
use or disclosure of the trade secret.

INSTRUCTION NO. 34
DEFINITION OF TRADE SECRET
To evaluate Bimbo Bakeries’ trade secret claim, you must first decide whether Bimbo
Bakeries possessed protectable trade secrets. A trade secret means information, including a
formula, pattern, compilation, program, device, method, technique, or process that:
1.

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

2.

Is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.

Whether something is generally known or readily ascertainable under this definition
concerns whether information was generally known and readily ascertainable to the defendant
based on the defendant’s knowledge and experience, not whether the information is generally
known and readily ascertainable to the general public.
If a defendant could reverse-engineer the components of a formula or process by
performing basic research, or if the information is available from public sources, the information
cannot constitute a trade secret.

INSTRUCTION NO. 35
COMPILATIONS OF INORMATION AS TRADE SECRETS
A unique combination of generally known elements or steps can qualify as a trade secret,
so long as the combination itself is outside the general knowledge and not readily ascertainable
by proper means. In determining whether a compilation of information is a trade secret, it is
improper to consider only whether each individual component of the compilation is a trade secret
in isolation.

INSTRUCTION NO. 36
DEFINITION OF MISAPPROPRIATION
For a trade secret claim, “misappropriation” means any one of the following four acts:
a.

acquisition of a trade secret of another by a person who knows or has reason to
know that the trade secret was acquired by improper means; or

b.

disclosure or use of a trade secret of another by a person who used improper
means to acquire knowledge of the trade secret; or

c.

disclosure or use of a trade secret of another by a person who, at the time of the
disclosure or use, knew or had reason to know that his knowledge of the trade
secret was:
(i)
(ii)

acquired under circumstances giving rise to a duty to maintain its secrecy
or limit its use; or

(iii)
d.

derived from or through a person who had utilized used improper means to
acquire it;

derived from or through a person who owed a duty to the trade secret’s
owner to maintain its secrecy or limit its use; or

disclosure or use of a trade secret of another by a person who knew or had reason
to know that it was a trade secret and that knowledge of it had been acquired by
accident or mistake.

INSTRUCTION NO. 37
DEFINITION OF IMPROPER MEANS
For a trade secret claim, “improper means” includes theft, bribery, misrepresentation,
breach of a duty to maintain secrecy, or inducement of a breach of duty to maintain secrecy, or
espionage through electronic or other means.

INSTRUCTION NO. 38
AN EMPLOYEE’S GENERAL KNOWLEDGE, SKILL, OR EXPERIENCE
A former employee may use general knowledge, experience, and skill gained during
work for the former employer, as long as the former employee does not disclose or use any of the
former employer’s trade secrets. The general knowledge and experience of US Bakery, Wild
Grains, Tyler Sycamore, and Leland Sycamore must be distinguished from Bimbo Bakeries’
confidential trade secret information, if any.

INSTRUCTION NO. 39
SECRECY
To determine that a claimed trade secret exists you must first decide whether the
information was indeed secret. Matters that are generally known to the public at large or to
people in a trade or business are not trade secrets. In addition, a trade secret must possess
enough originality so that it can be distinguished from everyday knowledge.
Bimbo Bakeries must demonstrate that the information it seeks to protect was known
only to it or a few others who have also treated the claimed information as a trade secret.
Absolute secrecy is not necessary.
In determining whether Bimbo Bakeries has proven that it possessed specific, identifiable
protectable trade secrets, you may consider the following factors:
a.

The extent to which the information was known outside of Bimbo Bakeries’
business;

b.

The extent to which the information was known by employees and other involved
in Bimbo Bakeries’ business;

c.

The extent of measures taken by Bimbo Bakeries to guard the secrecy of the
information;

d.

The value of the information to Bimbo Bakeries and its competitors;

e.

The amount of effort or money expended in developing the information; or

f.

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

INSTRUCTION NO. 40
REASONABLE MEASURES TO PROTECT SECRECY
Bimbo Bakeries must prove that it took reasonable measures to protect the secrecy of its
claimed trade secrets. Factors you may wish to consider in evaluating this point include:
a.

Whether Bimbo Bakeries made it a practice to inform their employees or others
involved with their business, that the information was a trade secret and/or was to
be kept confidential;

b.

Whether Bimbo Bakeries required employees or others involved with their
business, to sign confidentiality agreements regarding the claimed information;

c.

Whether Bimbo Bakeries restricted access to the information on a “need to know”
basis; or

d.

Whether Bimbo Bakeries generally maintained tight security to protect the alleged
trade secrets, including restrictions as to non-employee and employee access, and
did not voluntarily disclose it to others, except in confidence.

INSTRUCTION NO. 41
INNOCENTLY ACQUIRED TRADE SECRETS
A person may acquire claimed trade secret information innocently, and only later come to
know the information is a trade secret. One example would be when the claimed trade secret is
acquired by mistake or accident, when a person does not have reason to believe it belongs to
another. Another example would be when a person buys information from someone, without
having any reason to know that the information does not belong to the seller. In situations such
as these, a duty is only imposed on a person if and when the defendant either knows or has
reason to know that the trade secret belongs to another and has been wrongfully acquired.
If you determine that a defendant—US Bakery or, Leland Sycamore, Wild Grains, or
Tyler Sycamore—acquired the claimed trade secrets of Bimbo Bakeries innocently, then you
must next decide whether and when that defendant ever learned or should have known that the
claimed trade secret information had come to it through improper means. That defendant’s duty
to Bimbo Bakeries would begin on the date when that defendant first acquired or should have
had such knowledge.

INSTRUCTION NO. 42
DAMAGES FOR TRADE SECRET MISAPPROPRIATION
If you should find that one or more of the defendants have misappropriated Bimbo
Bakeries’ trade secrets, you must then determine the amount of damages, if any, Bimbo
Bakeries is entitled to receive.
The fact that I am instructing you on the subject of damages does not mean that Bimbo
Bakeries is or is not entitled to recover damages. I am expressing no opinion one way or the
other. These instructions are only to guide you if you find that Bimbo Bakeries is entitled to
recover damages.
Bimbo Bakeries has the burden of establishing the amount of actual damages, if any, that
were suffered. Damages must be determined with reasonable certainty from the evidence
presented. Mathematical precision need not be shown, but you are not to guess or speculate as to
damages.
You may only award an amount that would fairly compensate Bimbo Bakeries for
damages proximately caused by a defendant’s use of trade secrets. You may consider, in
awarding such actual damages, the cost the defendant would have incurred in acquiring the same
information or trade secrets through its own experimentation or through other lawful means.
If you decide that a defendant is liable for misappropriating Bimbo Bakeries’ recipe and
process, then you should consider whether Bimbo Bakeries has suffered monetary damages as a
result of each defendant’s misappropriation. If you determine a defendant caused Bimbo
Bakeries to suffer damages, you must determine the amount of damages that defendant
individually caused Bimbo Bakeries.

INSTRUCTION NO. 43
DAMAGES FOR TRADE SECRET MISAPPROPRIATION—ACTUAL LOSSES
Bimbo Bakeries claims that it has suffered actual monetary loss from misuse of its trade
secrets. This actual loss can include both out-of-pocket expenses and Bimbo Bakeries’ lost
profits. If you find, for example, that Bimbo Bakeries would have realized profits from using
trade secrets in its business but lost profits due to the wrongful conduct of a defendant, then you
may measure damages attributable to that defendant by the amount of such lost profits for the
particular periods of time the trade secret was improperly used or disclosed.
Instruction No. 312930 guides you in calculating profits. Bimbo Bakeries has the burden
of proving US Bakery’s gross revenue from false advertising. US Bakery has the burden of
proving any deductible expenses.

INSTRUCTION NO. 44
DAMAGES FOR TRADE SECRET MISAPPROPRIATION—DEFENDANTS’ BENEFIT
In measuring Bimbo Bakeries’ damages, you may also consider what benefit a defendant
may have gained from misuse of Bimbo Bakeries’ trade secrets. For example, Bimbo Bakeries is
entitled to any profits earned by a defendant that are attributable to misappropriation. Regardless
of whether you find that Bimbo Bakeries itself suffered losses, if you find that a defendant
benefited from using a trade secret belonging to Bimbo Bakeries, then you should consider
whether that defendant should pay the monetary value of those benefits to Bimbo Bakeries.

INSTRUCTION NO. 45
DAMAGES FOR TRADE SECRET MISAPPROPRIATION—NO DOUBLE RECOVERY
It may be that only one of these measures of damages (i.e., Bimbo Bakeries’ losses or
defendants’ benefit) is necessary to fully compensate Bimbo Bakeries. Or you may combine both
Bimbo Bakeries’ losses and a defendant’s gains in determining the measure of damages to award
Bimbo Bakeries. However, Bimbo Bakeries may not recover twice for the same damages.
Bimbo Bakeries’ losses and a defendant’s gains may overlap.
It may be that a defendant profited from particular sales that Bimbo Bakeries would have
made had a defendant not competed using the trade secrets. In that situation, the two ways of
approaching damages would measure the identical damages—whether viewed as Bimbo
Bakeries’ loss or a defendant’s gain. In this situation, you would include as damages either
Bimbo Bakeries’ lost profits or a defendant’s gain because those amounts are actually the same.
But you may find that a defendant’ profits are not identical to Bimbo Bakeries’ lost
profits. For example, if you find that Bimbo Bakeries lost profits due to a defendant’s improper
use of trade secrets, and find that that same defendant obtained even greater profits from its use
of trade secrets, Bimbo Bakeries is entitled to recover its lost profits as well as the profits of the
defendant, to the extent they do not overlap.

INSTRUCTION NO. 46
DAMAGES FOR TRADE SECRET MISAPPROPRIATION—TIME PERIOD
Bimbo Bakeries would be entitled to damages running only for as long as (1) you find
that Bimbo Bakeries’ trade secret would be entitled to protection, plus (2) an additional period, if
any, that you find that the trade secret afforded a defendant a competitive advantage, such as
providing a defendant a head start in its business.

INSTRUCTION NO. 47
TRADE SECRET MISAPPROPRIATION—WILLFULNESS
Bimbo Bakeries also claims that each defendant engaged in “willful and malicious
misappropriation.”
Trade secret misappropriation is willful when that defendant knowingly and purposefully
misappropriates a trade secret for itself, or when the defendant reasonably should have known
that the information it used from Bimbo Bakeries was a trade secret still and used that
information. An act is willful if done voluntarily and intentionally and with the specific intent to
commit such an act.
An act is malicious if prompted or accompanied by ill will or such gross indifference to
the rights of others as to amount to a willful act done intentionally without just cause or excuse.
If you find that a defendant misappropriated Bimbo Bakeries’ trade secret, you must
decide whether the misappropriation was willful and malicious by “clear and convincing
evidence.” Clear and convincing evidence means that the party must persuade you, by the
evidence, to the point that there remains no serious or substantial doubt as to the truth of the fact.
Proof by clear and convincing evidence requires a greater degree of persuasion than proof by a
preponderance of the evidence but less than proof beyond a reasonable doubt (the standard in
criminal trials).

INSTRUCTION NO. 48
The fact that I have instructed you on damages does not mean that I am indicating that
you should award any damages—that is entirely for you, the Jury, to decide.
Bimbo Bakeries bears the burden of proving by a preponderance of the evidence that it
not only suffered damages but the amount of damages as well.
When you deliberate, do not flip a coin, speculate or choose one juror’s opinions at
random. Evaluate the evidence and come to a decision that is supported by the evidence.
If you decide that Bimbo Bakeries is entitled to recover damages, you must then agree
upon the amount of money to award. Each of you should state your own independent judgment
on what the amount should be. You must thoughtfully consider the amounts suggested, evaluate
them according to these instructions and the evidence, and reach an agreement on the amount.
You must not agree in advance to average the estimates.

INSTRUCTION NO. 49
Damages must be reasonable. You are not permitted to award speculative damages,
which means compensation for a detriment which, although possible, is remote, or conjectural.
Damages that you award must be fair and reasonable, neither inadequate nor excessive.
You should not award compensatory damages for speculative injuries, but only for those injuries
that the Plaintiff has actually suffered or for which it is reasonably likely to suffer in the near
future.
In awarding compensatory damages, if you decide to award them, you must be guided by
dispassionate common sense. Computing damages may be difficult, but you must not let that
difficulty lead you to engage in arbitrary guesswork. On the other hand, the law does not require
a plaintiff to prove the amount of its losses with mathematical precision, but only with as much
definiteness and accuracy as the circumstances permit.

INSTRUCTION NO. 50
You may not include in any award to Bimbo Bakeries, any sum for the purpose of
punishing the defendants, to make an example of them for the public good, or to prevent other
incidents.

INSTRUCTION NO. 51
Upon retiring to the jury room you must elect one of your members to act as your
foreperson. The foreperson will preside over your deliberations and will be your spokesperson
here in court.
The verdict must represent the collective judgment of the Jury. Each juror must agree to
the verdict. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to
reaching an agreement if you can do so without violence to individual judgment. Each of you
must decide the case for yourself, but do so only after an impartial consideration of the evidence
with your fellow jurors. In your deliberations, do not hesitate to re-examine your own views and
change your opinion if convinced it is erroneous. But do not surrender your honest conviction as
to the weight or effect of evidence solely because of the opinion of your fellow jurors for the
mere purpose of returning a unanimous verdict.
Remember at all times, you are not partisans. You are judges—judges of the facts. Your
sole interest is to seek the truth from the evidence
Your verdict must be based solely upon the evidence received. Nothing you have seen or
read outside of court may be considered. Nothing that I have said or done during the course of
this trial is intended in any way to somehow suggest to you what I think your verdict should be.
Nothing said in these instructions and nothing in any form of verdict prepared for your
convenience is to suggest or convey to you in any way or manner any intimation as to what
verdict I think you should return. What the verdict shall be is the exclusive duty and
responsibility of the Jury. As I have told you many times, you are the sole judges of the facts.
I have prepared a verdict form for your convenience. You are instructed that your

answers to the interrogatories on the verdict form must be consistent with the instructions I have
given you and with each other.
When you have reached a unanimous agreement as to your verdict, your foreperson will
fill in, date and sign the verdict form upon which you have unanimously agreed. When you have
reached unanimous agreement as to your verdict, the foreperson shall inform the court security
officer and you shall return to the courtroom with the verdict form.
If it becomes necessary during your deliberations to communicate with the court, you
may send a note by the court security officer signed by your foreperson, or by one or more
members of the jury. No member of the jury should attempt to communicate with the court by
any means other than a signed writing, and the court will never communicate with any member
of the jury on any subject touching the merits of the case, other than in writing or orally here in
open court.
But bear in mind that you are not to reveal to me or to any person how the jury stands,
numerically or otherwise, on the question before you, until after you have reached a unanimous
agreement.
You will note from the oath about to be taken by the court security officer that he, as well
as all other persons, is forbidden to communicate in any way or manner with any member of the
jury on any subject touching the merits of the case.

INSTRUCTION NO. 52
These original instructions will accompany you to the jury room. Do not write on the
original instructions. Write only on the original verdict form. Do not concern yourselves with
the numbering of the instructions, their sequence, or any gap in numbering. Instructions are
numbered only for clerical convenience while the court prepares the instructions.

INSTRUCTION NO. 53
The attitude and conduct of jurors at the outset of their deliberations are matters of
considerable importance. It is rarely productive or good for a juror, upon entering the jury room,
to make an emphatic expression of opinion on the case or to announce a determination to stand
for a certain verdict. When one does that at the outset, a sense of pride may be aroused, and the
juror may hesitate to recede from an announced position if shown that it is wrong.

INSTRUCTION NO. 54
During your deliberations, you are able as a group to set your own schedule for
deliberations. You may deliberate as late as you wish or recess at an appropriate time set by
yourselves. You may set your own schedule for lunch and dinner breaks.
However, I do ask that you notify the court by a note when you plan to recess for the
evening and when you intend to reconvene in the morning.