Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 1 of 96
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF GEORGIA
`COLUMBUS DIVISION
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`
`
`Plaintiff,
`
`
`
`v.
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`
`REFRESCO BEVERAGES US INC.,
`
`
`
`
`
`CALIFORMULATIONS, LLC, SYMRISE
`INC., THE GREEN ORGANIC
`DUTCHMAN HOLDINGS LTD., 6003
`HOLDINGS LLC, EDMUND O’KEEFFE,
`TYRONE POLHAMUS, KHANH LY,
`JASON PONTES, DANA KLAYBOR,
`WANDA JACKSON, AND KALEENA
`GEE,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`Civil Action No.: __________
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`
`
`
`
`
`
`
`COMPLAINT
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`Plaintiff Refresco Beverages US Inc. (“Refresco US”),1 through their undersigned
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`counsel, Travis C. Hargrove of the Finley Firm, P.C., by way of their Complaint against
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`defendants Califormulations, LLC (“Califormulations, LLC”), Symrise Inc. (“Symrise”), The
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`Green Organic Dutchman Holdings Ltd. (“TGOD”), 6003 Holdings LLC (“6003 Holdings”),
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`Edmund O’Keeffe (“O’Keeffe”), Tyrone Polhamus (“Polhamus”), Khanh Ly (“Ly”), Jason
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`Pontes (“Pontes”), Dana Klaybor (“Klaybor”), Wanda Jackson (“Jackson”), and Kaleena Gee
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`(“Gee”)2 (collectively, the “Defendants”) allege and say as follows:
`
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`1 The facts of this case involve multiple Refresco entities and multiple Cott Corporation entities.
`For pleading convenience, in this Complaint, “Refresco” shall refer generally to any Refresco
`entity and “Cott” shall refer generally to any Cott entity. Where the identity of a particular Cott
`or Refresco entity is relevant, it is identified by name.
`
`2 Collectively, all of the defendants are referred to herein as the “Defendants.” O’Keeffe,
`Polhamus, Ly, Pontes, Gee, Jackson, and Gee are collectively referred to herein as the
`“Individual Defendants” or the “Former Cott Employees.”
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`

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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 2 of 96
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`INTRODUCTION
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`As set forth with particularity in this Complaint, Symrise and TGOD conspired with and
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`purposefully assisted the Individual Defendants – while each was still employed by Cott or
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`Refresco – in breaching the duty of loyalty owed to his/her employer for the purpose of pilfering
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`valuable trade secrets, including beverage formulations, customers, suppliers, and industry-
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`leading know-how, and then forming a competitive entity literally down the road from the
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`employer they had betrayed. As detailed below, it was a brazen scheme, planned and executed
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`in bad faith, and which resulted in numerous violations of law. And the evidence is
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`overwhelming.
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`It is a bedrock principle of American corporate law that corporate officers and directors
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`are not permitted to use their position of trust and confidence to further their private interests. As
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`the Delaware Supreme Court observed more than eighty years ago, and as many courts across the
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`country have repeated since, “[t]he rule that requires an undivided and unselfish loyalty to the
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`corporation demands that there shall be no conflict between duty and self-interest.” Guth v. Loft,
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`Inc., 5 A.2d 503, 510 (Del. 1939) (emphasis added). While corporate officers owe a strict duty
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`of loyalty to the corporations they serve, competitors (or would-be competitors) also have a
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`responsibility not to encourage or participate in an officer’s breach of his/her duty of loyalty to
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`the company. That is precisely what this case is about: Symrise and TGOD actively and
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`purposefully encouraged and assisted the president of a company that competes with the
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`company they were scheming to create to breach his duty of loyalty by enticing that fiduciary to
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`recruit a group of fellow employees (who, in turn, violated their duties of loyalty as employees
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`and breached their restrictive covenants), pilfer company trade secrets, and then assist in the
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`usurpation of multiple business opportunities that belonged to their then-employer – culminating
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`2
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 3 of 96
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`with the formation of a new competitive entity (Califormulations, LLC) owned by a complicit
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`group of entities and individuals, including Symrise, TGOD, the disloyal president, and several
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`of the disloyal former employees.
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`* * *
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`1.
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`Refresco and Symrise are competitors in the beverage space. While Symrise is
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`part of a multi-billion-dollar international conglomerate specializing in developing and selling
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`flavors and scents, including flavors and scents for beverages, in November 2017, it launched
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`“Califormulations,” which it described in a November 28, 2017 press release as being “an
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`entirely new concept offering a dedicated suite of product development services to beverage
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`entrepreneurs.” In that same press release, Paul Graham, President of Symrise Flavors North
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`America, described “[t]he Califormulations concept” as “giv[ing] beverage entrepreneurs access
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`to a single-source partner with the expertise required to help them bring their ideas to life.” That
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`same press release stated that Califormulations would be based out of Symrise’s Laguna Beach,
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`California “beverage development center.” Graham added further that Symrise is “uniquely
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`capable of bringing a revolutionary beverage prototyping concept like Califormulations to
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`market.” The bottom of the press release directed readers seeking “additional information about
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`the Califormulations concept” to Michael Falkenberg, who, at the time, was Symrise’s Senior
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`Category Director Beverages & Savory. See Exh. 1 attached hereto (true and accurate copy of
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`Nov. 28, 2017 press release).
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`2.
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`Graham and Falkenberg feature prominently in this Complaint, as they used
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`Symrise’s Califormulations beverage incubator as a “Trojan Horse” to infiltrate Cott Beverages
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`LLC (“Cott Beverages,” a Delaware limited liability company that was later acquired by
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`3
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 4 of 96
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`Refresco)3 and forge a conspiracy with the company’s executives and scientists to compete
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`against their employer. With Symrise’s active and purposeful encouragement and assistance,
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`those executives and employees then breached their duties of loyalty by, inter alia, stealing Cott
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`Beverages’ (later Refresco’s) trade secrets and proprietary know-how, and then collectively
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`forming a new entity – Califormulations, LLC4 – that would compete against Cott and Refresco
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`as a formulation and beverage manufacturer.
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`3.
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`Refresco previously brought an action against Symrise in the United States
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`District Court for the District of New Jersey (the “New Jersey Action Against Symrise”).
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`4.
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`In addition to filing the New Jersey Action Against Symrise, Refresco brought an
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`action against Califormulations, LLC in the Superior Court of Muscogee County in May 2019
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`(the “Georgia State Court Action”). The Georgia State Court Action was subsequently expanded
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`to include the Individual Defendants, each of whom was formerly employed by Cott and/or
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`Refresco.
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`5.
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`Through discovery in the New Jersey Action Against Symrise, Refresco obtained
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`evidence making it clear that Symrise and TGOD have subjected themselves to the jurisdiction
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`of this Court. Accordingly, in the interest of judicial economy, Refresco now brings this action
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`against all of the Defendants rather than litigating in piecemeal fashion against different
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`defendants in different federal and state courts. Indeed, this Court is in a position to adjudicate
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`Refresco’s claims against all of the Defendants, thereby maximizing judicial economy and
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`eliminating the risk of inconsistent rulings and judgments.
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`3 Through its acquisition, Refresco acquired all the assets and rights of Cott Beverages, and has
`therefore stepped into the shoes of Cott Beverages as its successor in interest for purposes of the
`claims asserted in this Complaint.
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`4 Defendant Califormulations, LLC is not the same entity as Symrise’s beverage incubator,
`which it launched under the name “Califormulations” in November 2017.
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`4
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`THE PARTIES
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`6.
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`Califormulations, LLC is a Delaware limited liability company with its principal
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`place of business at 6000 Technology Parkway, Midland, Georgia.
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`7.
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`Symrise is a New Jersey corporation with its principal place of business at 300
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`North Street, Teterboro, New Jersey 07608.
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`8.
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`TGOD is an Ontario, Canada corporation with its principal place of business at
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`6205 Airport Rd, Building A - Suite 200 Mississauga, Ontario L4V 1E3.
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`9.
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`6003 Holdings is a Georgia limited liability company. According to the records
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`of the Georgia Secretary of State, its principal address is PO Box 185, Midland, Georgia 31820.
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`10.
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`O’Keeffe is a former Cott Beverages employee who, on information and belief,
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`resides at 46 Old Mill Drive, Toronto, Ontario, M6S 4J9, Canada.
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`11.
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`Polhamus is a former Cott Beverages employee who, on information and belief,
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`resides at 221 Mink Drive, Cataula, Georgia 31804.
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`12.
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`Ly is a former Cott Beverages and Refresco employee who, on information and
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`belief, resides at 160 Kodiak Trail, Fortson, Georgia 31808.
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`13.
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`Pontes is a former Cott Beverages and Refresco employee who, on information
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`and belief, resides at 7121 Pinewood Court, Columbus, Georgia 31909.
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`14.
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`Klaybor is a former Cott Beverages and Refresco employee who, on information
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`and belief, resides at 2112 Cherokee Avenue, Columbus, Georgia 31906.
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`15.
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`Jackson is a former Cott Beverages and Refresco employee who, on information
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`and belief, resides at 142 Grey Smoke Trail, Cataula, Georgia 31804.
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`16.
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`Gee is a former Cott Beverages and Refresco employee who, on information and
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`belief, resides at 5561 Saratoga Drive, Columbus, Georgia 31907.
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`5
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`17.
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`Refresco US is a Georgia corporation with its principal place of business at 8112
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`Woodland Center Boulevard, Tampa, Florida 33614.
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`JURISDICTION AND VENUE
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`18.
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`This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because
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`Refresco is asserting causes of action under one or more federal statutes, and thus this action
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`arises under the laws of the United States.
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`19.
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`Pursuant to 28 U.S.C. § 1367, this Court is authorized to exercise supplemental
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`jurisdiction over the claims asserted under state law because those claims are so related to the
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`federal claim in the action that they form part of the same case or controversy under Article III of
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`the United States Constitution.
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`20.
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`This Court may appropriately exercise personal jurisdiction over Symrise because
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`Symrise: (1) has purposefully directed its activities at the forum and at residents of the forum;
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`(2) the asserted claims against Symrise arise out of or relate to those activities; and (3) assertion
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`of personal jurisdiction against Symrise is reasonable and fair. By way of example only,
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`Symrise unlawfully raided Cott Beverages’ and later Refresco’s employees in Columbus,
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`Georgia for the purpose of forming a new company that would replicate the business
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`Cott/Refresco conducted out of that Columbus location using Cott Beverages’ and later
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`Refresco’s trade secrets developed in Columbus. Moreover, Symrise executives (Graham and
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`Falkenberg) traveled to the Columbus, Georgia area to further their unlawful conspiracy,
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`including to participate in a two-day meeting in early January 2019. The stated purpose of the
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`meeting was to “hammer out the outline of the business plan, terms, and agreement [for
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`NewCo].” The agenda for the meeting prominently displayed “Project Shawshank,” a code word
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`used by Symrise and at least O’Keeffe and Polhamus and which is based on The Shawshank
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`6
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`Redemption, a 1994 movie in which the protagonist engages in an elaborate plot to break out of
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`prison. Symrise also conspired with several of the Individual Defendants to misappropriate Cott
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`Beverages’ and later Refresco’s trade secrets, including sending materials to those Individual
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`Defendants in Columbus, and receiving beverage formulations and samples sent from those
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`Individual Defendants in Columbus. Moreover, Symrise entered into a toll manufacturing
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`agreement with Califormulations, LLC upon the company’s formation, and thus Symrise
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`engaged in a business relationship with Califormulations, LLC in addition to being a substantial
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`investor in the company. Symrise is also represented on Califormulations, LLC’s board of
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`directors.
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`21.
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`This Court may appropriately exercise personal jurisdiction over TGOD because
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`TGOD: (1) has purposefully directed its activities at the forum; (2) the asserted claims against
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`TGOD and the other Defendants arise out of or relate to those activities; (3) harm caused by
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`TGOD’s unlawful actions (described in detail herein) was felt and experienced in this District;
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`and (4) assertion of personal jurisdiction against Symrise by this Court is reasonable and fair.
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`More specifically, TGOD is a 15% owner of Califormulations, LLC, through the shell company,
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`The Green Organic Beverage Corp. (“TGOBC”), TGOD owns and set up for the purpose of
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`holding TGOD’s ownership stake in Califormulations, LLC. Moreover, at least one TGOD
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`representative sits on the board of Califormulations, LLC’s (which is based in this judicial
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`district), and TGOD has actively solicited business opportunities with Califormulations, LLC. In
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`fact, Califormulations, LLC’s website promotes that it “combines the expertise of the Columbus
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`Group, Symrise, … [and] the offering of The Green Organic Dutchman Holdings Ltd. (TGOD).”
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`7
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`22.
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`This Court may appropriately exercise personal jurisdiction over each of the
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`Individual Defendants because, with the exception of O’Keeffe, they all reside within this
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`District.
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`23.
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`This Court may appropriately exercise personal jurisdiction over O’Keeffe
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`because he traveled to Columbus, Georgia on numerous occasions during the many years he was
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`employed by Cott Beverages in Columbus, Georgia and, as such: (1) he has purposefully
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`directed commercial activities at the forum; (2) the asserted claims against O’Keeffe arise out of
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`or relate to his activities within the forum; and (3) assertion of personal jurisdiction against
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`O’Keeffe by this Court is reasonable and fair.
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`24.
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`This Court may appropriately exercise personal jurisdiction over 6003 Holdings
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`LLC (“6003 Holdings”), as it is a limited liability company formed in Georgia, with a stated
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`principal place of business in Midland, Georgia, and each of its members is a Georgia entity.
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`25.
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`Pursuant to 28 U.S.C. § 1391(b), venue is proper in this District because: (1) all
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`but one of the Individual Defendants and Califormulations, LLC are residents of this District;
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`and (2) the harm complained of herein was caused by the defendants in this District and has been
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`manifested in this District. Venue in this District is further proper pursuant to 28 U.S.C. §
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`1391(c)(3).
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`RELEVANT TRANSACTIONAL HISTORY
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`26.
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`On January 30, 2018, Refresco Group NV acquired the shares of Cott Beverages
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`Inc. (“Cott BI”) from Cott Corporation (“Cott Corp.”), and on March 5, 2018, renamed Cott BI
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`to Refresco Beverages US Inc. (defined supra as “Refresco US”).
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`27.
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`On February 8, 2019, Refresco US acquired the shares of Cott Beverages from
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`Cott Holdings Inc. (the “Cott Beverages Closing Date”). After the Cott Beverages Closing Date,
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`8
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`Refresco US acquired all rights previously possessed by Cott Beverages. More specifically,
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`Refresco US assumed all “rights [and] powers” of Cott Beverages.
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`28.
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`29.
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`Cott Beverages had a robust beverage concentrate manufacturing business.
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`On February 26, 2019, Cott Beverages was renamed Refresco Beverages LLC
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`(“Refresco Beverages”).
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`30.
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`Prior to June 1, 2020, Refresco Beverages was a wholly-owned subsidiary of
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`Refresco US. Refresco Beverages was merged into Refresco US on or about June 1, 2020.
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`RELEVANT NON-PARTIES TO THIS ACTION
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`Brian Athaide (“Athaide”) is the chief executive officer of TGOD.
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`Csaba Reider (“Reider”) was the President of TGOD until January 2020.
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`31.
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`32.
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`33. Matt Schmidt (“Schmidt”) is TGOD’s Executive Vice President Corporate
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`Development.
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`34. Michael Gibbons (“Gibbons”) was Vice President of Global Sales for TGOD until
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`January 2020.
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`35.
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`The Green Organic Beverage Corp. (“TGOBC”) is a Delaware corporation with a
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`registered agent located at 251 Little Falls Drive, Wilmington DE 19808. In the
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`Califormulations, LLC limited liability company agreement, TGOBC identified its address for
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`notices under the agreement as, “The Green Organic Beverage Corp., c/o The Green Organic
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`Dutchman Holdings Ltd.,” and then recites TGOD’s street address in Mississauga, Ontario.
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`36.
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`37.
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`Symrise AG (“Symrise AG”) is the German parent company of Symrise.
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`Heinrich Schaper (“Schaper”) is a member of Symrise AG’s executive committee
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`and holds the title President Flavor.
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`9
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`38.
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`Dr. Heinz-Jürgen Bertram (“Bertram”) is the chief executive officer of Symrise
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`AG.
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`39.
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`40.
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`Olaf Klinger (“Klinger”) is the chief financial officer of Symrise AG.
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`Robin Wood (“Wood”) is, on information and belief, Senior Vice President of
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`Global Strategic Development at Symrise AG. Prior to that, Wood was, on information and
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`belief, an outside consultant who provided services to Symrise AG.
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`41.
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`Paul Graham (“Graham”) is President, Symrise Flavors North America. At all
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`times pertinent to the allegations herein, Graham was an agent of Symrise and authorized to bind
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`the company.
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`42. Michael Falkenberg (“Falkenberg”) was, at all times pertinent to the allegations
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`herein, Symrise’s Senior Category Director Beverages & Savory. At all times pertinent to the
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`allegations herein, Falkenberg was an agent of Symrise and authorized to bind the company.
`
`43.
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`In 2019, in connection with the New Jersey Action Against Syrmise, Symrise’s
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`counsel accepted service of a deposition subpoena for Falkenberg. Some time after Symrise’s
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`counsel accepted service of a deposition subpoena on Falkenberg’s behalf, Falkenberg left
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`Symrise. On information and belief, Falkenberg has relocated to Germany. Though Symrise
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`was aware that Falkenberg had relocated to Germany after leaving Refresco, it did not notify
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`Refresco of Falkenberg’s departure from Symrise or his relocation to Germany.
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`44.
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`Peter Steinhoff (“Steinhoff”) is Symrise’s Vice President of Finance North
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`America.
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`45. Menes Etingue Kum (“Kum”) is, on information and belief, an outside consultant
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`who provided services to Symrise in connection with NewCo and/or Shawshank and in
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`connection with Symrise’s decision to invest in Califormulations, LLC.
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`46.
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`The members of Califormulations, LLC are 6003 Holdings LLC, Symrise, and
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`TGOD.
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`47.
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`The members of 6003 Holdings are: (1) Beverage Partners USA, Inc. (owned by
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`O’Keeffe); (2) Shank245, LLC (owned by Polhamus); (3) H2J2 Enterprises, LLC (owned by
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`Pontes); (4) Squarely, LLC (owned by Ly); (5) SunHippie19, LLC (owned by Jackson). All of
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`these entities were formed under Georgia law on or before February 20, 2019.
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`Symrise and Califormulations, LLC Compete with Refresco
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`48.
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`Refresco engages in formulating, producing, manufacturing, packaging, and
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`distributing beverages and concentrates in the United States. Refresco’s product line includes
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`concentrates, alcoholic beverages, carbonated soft drinks, sparkling flavored beverages, juices
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`and juice-based products, flavored sparkling water, energy beverages, thirst quenchers, iced teas,
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`and other alcoholic and non-alcoholic beverages. Refresco serves brand owners, grocery, mass-
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`merchandise, drugstore, and convenience store chains, as well as wholesalers. Refresco has
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`bottling facilities throughout the United States, and a product development, research, and
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`concentrate manufacturing facility in Columbus, Georgia.
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`49.
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`Refresco delivers to its customers an end-to-end solution and offers a menu of
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`beverage-related services that include developing new tastes and flavors, formulation, product
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`development and manufacturing for delivery to retail locations. Refresco’s production platform
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`provides customers with close proximity and reliable service across geographies.
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`50.
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`Refresco develops and formulates new beverages and manufactures concentrates
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`for its customers. Refresco’s Columbus, Georgia facility is primarily a research and
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`development operation.
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`51.
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`Symrise develops, produces, and supplies fragrances, flavorings, cosmetic active
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`ingredients, raw materials, and functional ingredients. Symrise works with its clients to develop
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`new ideas and market-ready concepts for a broad spectrum of products, including beverages,
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`snacks, and confectionary.
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`52.
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`As a developer of fragrances and flavors for beverages, Symrise has always
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`competed with Cott and Refresco to a certain degree. However, when Symrise launched its
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`Califormulations beverage incubator in 2017, it became a direct and active competitor of Cott
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`and Refresco. See generally Exh. 1 (true and accurate copy of 2017 press release).
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`53.
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`Califormulations, LLC was formed in March 2019 by Symrise (which owns 34%
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`of the company), TGOD (through its ownership of TGOBC, which owns 15% of the company),
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`and O’Keeffe, Polhamus, Ly, Pontes, and Jackson (through their ownership of 6003 Holdings,
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`which owns 51% of Califormulations, LLC). Califormulations, LLC is a direct and active
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`competitor of Refresco.
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`54.
`
`According to a May 8, 2019 press release issued by Symrise, in which Graham is
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`quoted, Califormulations, LLC is “a unique platform designed to deliver end-to-end beverage
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`innovation to consumer packaged goods (CPG) companies and their brands. Califormulations,
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`LLC combines the expertise of Symrise, including its Beverage Innovation Centers in Laguna
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`Beach and Teterboro….” See Exh. 2 (true and accurate copy of May 8, 2019 Symrise press
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`release).
`
`55.
`
`The press release further provides that the:
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`new platform combines beverage expertise and innovation capabilities with the
`ability to quickly develop shelf-ready, scalable products. Customers will have
`access to the expertise located at three locations: the newly formed
`Califormulations, LLC location in Columbus, Georgia, with 100,000 sq ft for
`beverage development, multi-purpose production, pilot scale flexible bottling and
`shelf-ready, scalable packaging; Symrise’s regional headquarters in Teterboro,
`
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 13 of 96
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`New Jersey, providing global expertise in flavor solutions, including taste for
`sugar reduced products; and the specialized Symrise Beverage Center in Laguna
`Beach, California, to inspire creativity in beverage product concepts.
`
`Id.
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`56.
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`The press release goes on to state that the “Symrise team brings a proven
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`reputation in beverage innovation and incubation, a comprehensive portfolio of consumer
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`insights, a strong footprint in beverage and CPG accounts including core listings with global
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`brands.” Id.
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`57.
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`In early 2019, Falkenberg identified Refresco as a competitor of the new company
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`Symrise was actively planning to form with O’Keeffe and Polhamus (among others).
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`BACKGROUND APPLICABLE TO ALL COUNTS
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`The Trojan Horse: Symrise Infiltrates Cott Beverages
`Under the Guise of Synergistic Collaboration
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`As indicated supra, Symrise launched its beverage incubator (called
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`58.
`
`Califormulations) in November 2017.
`
`59.
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`In late 2017 and early 2018, Graham and Falkenberg were actively scouting
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`business opportunities for Symrise’s Califormulations beverage incubator.
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`60.
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`In late 2017 and early 2018, Graham and Falkenberg were also interested in
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`getting Symrise (through its Califormulations beverage incubator) more established in the
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`beverage development space.
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`61.
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`Graham contacted O’Keeffe in Fall 2017 to schedule a call to discuss potential
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`synergies between Symrise and Cott Beverages.
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`62.
`
`On October 4, 2017, Graham, O’Keeffe and Moshy Cohen (“Cohen”), then-
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`Managing Director of RC Cola International, a business affiliated with Cott at the time,
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`participated in a call to discuss an overview of Cott Beverages and RC Cola International – both
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`of which were located in Columbus, Georgia.
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`63.
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`During the October 4, 2017 call, Graham, O’Keeffe, and Cohen also discussed
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`Refresco’s acquisition of Cott BI, a transaction that had not yet been publicly disclosed by Cott
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`or Refresco.
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`64.
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`Refresco acquired Cott BI on January 30, 2018. Cott Beverages was not sold to
`
`Refresco as part of that deal; it remained part of Cott.
`
`65.
`
`Graham, O’Keeffe, and Cohen discussed the possibility of Graham visiting Cott
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`Beverages in late 2017 or early 2018.
`
`66.
`
`O’Keeffe proposed dates for Graham (and potentially others from Symrise) to
`
`visit Cott Beverages in Columbus, Georgia. O’Keeffe added Polhamus and Pontes to the email
`
`chain.
`
`67.
`
`In the emails they exchanged between October 5, 2017 and February 9, 2018,
`
`Graham and Falkenberg used their Symrise email addresses, and O’Keeffe, Pontes, and Cohen
`
`used their Cott email addresses.
`
`68.
`
`After the February 2018 email exchange with Graham, O’Keeffe identified
`
`Symrise as a “potential customer” of Cott Beverages in a report he provided to his superiors at
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`Cott Beverages’ parent company, Cott Corporation (“Cott Corp.”). O’Keeffe specifically
`
`described Symrise as a “potential customer” for “toll manufacturing” (an arrangement whereby
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`one company provides its raw materials or semi-finished goods to a third-party provider, which
`
`then provides a set of manufacturing processes).
`
`
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`14
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 15 of 96
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`69.
`
`On March 1, 2018, Falkenberg visited the Cott Beverages facility in Columbus,
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`Georgia for the putative purpose of discussing potential business synergies between Symrise and
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`Cott Beverages.
`
`70.
`
`71.
`
`O’Keeffe reported Falkenberg’s visit to his superiors at Cott.
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`After Falkenberg’s visit, O’Keeffe provided Falkenberg with a document
`
`describing Cott Beverages and its capabilities.
`
`72.
`
`73.
`
`74.
`
`Falkenberg visited the Cott Beverages Plant again on June 19, 2018.
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`O’Keeffe reported this visit to his superiors at Cott.
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`Shortly after his June 19, 2018 visit, Falkenberg contacted O’Keeffe to begin
`
`setting up another visit to Cott Beverages.
`
`75.
`
`Soon thereafter, O’Keeffe reported to his superiors at Cott that Symrise had
`
`referred a potential syrup opportunity to Cott Beverages.
`
`76.
`
`During this time period (in or around June 2018), Refresco was engaging in
`
`discussions to acquire Cott Beverages. This was not publicly-known information.
`
`77.
`
`In late June 2018, O’Keeffe was aware that Refresco was engaged in discussions
`
`to acquire Cott Beverages. O’Keeffe was also aware that the information was confidential and
`
`not publicly-known.
`
`78.
`
`O’Keeffe told Falkenberg that Refresco was engaged in discussions to acquire
`
`Cott Beverages prior to the time that the information was publicly disclosed by Cott and/or
`
`Refresco.
`
`79.
`
`By at least August 2018, O’Keeffe and Polhamus had learned that they were
`
`likely not going to continue in their positions after Refresco acquired Cott Beverages.
`
`
`
`15
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 16 of 96
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`80.
`
`On September 13, 2018, Falkenberg and his Symrise colleague Marianna
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`Biancardi (“Biancardi”) visited the Cott Beverages plant in Columbus, Georgia.
`
`81.
`
`During this meeting, Falkenberg and Biancardi met with Polhamus, Ly, and
`
`Pontes.
`
`82.
`
`Either during the September 13, 2018 meeting or soon thereafter, the idea of
`
`entering into a non-disclosure agreement (“NDA”) was raised.
`
`83.
`
`Polhamus circulated a proposed NDA on September 13, 2018. The NDA file he
`
`circulated was named “CBLLC standard NDA-01.pdf.”
`
`84.
`
`In late September 2018, Symrise and Cott Beverages executed an NDA. See Exh.
`
`3 hereto (true and accurate copy of executed NDA).
`
`85.
`
`86.
`
`O’Keeffe signed the NDA as President of Cott Beverages.
`
`Chris Santilli (“Santilli”), identifying himself as “VP of Sales,” signed the NDA
`
`on behalf of Symrise.
`
`Falkenberg also signed the NDA on behalf of Symrise.
`
`The NDA does not in any way insulate Symrise from any of the allegations made
`
`87.
`
`88.
`
`herein.
`
`89.
`
`The purpose of the NDA, according to its own terms, was to protect information
`
`disclosed by Cott Beverages and/or Symrise (each identified as a “Disclosing Party”) “[i]n
`
`connection with the consideration of a possible business relationship where Cott Beverages
`
`LLC may provide services to [Symrise] (the ‘Services’), and during the course of performing
`
`any Services….” See Exh. 3 (emphasis added).
`
`90.
`
`The NDA described Symrise as a “potential customer” of Cott Beverages. Id.
`
`
`
`16
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 17 of 96
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`91.
`
`According to the NDA, “Confidential Information” (as defined therein) “will be
`
`used by the Receiving Party solely for purposes of evaluating whether the Services will be
`
`provided, and if so, performing the Services (the “Purposes”), and not for any other purpose.”
`
`Id.
`
`92.
`
`The NDA further provided that a “Receiving Party” may not disclose any
`
`“Confidential Information” to “third parties.” Id.
`
`93.
`
`94.
`
`The NDA did not reference “NewCo” or “Califormulations.” Id.
`
`The NDA did not reference a beverage Symrise had been asked to help develop
`
`for “Client A”5 or any other company.
`
`95.
`
`The NDA did not reference “Project Road Runner”6 or provide any indication that
`
`Symrise was interested in working with Cott on any specific new beverage formulation. Id.
`
`96.
`
`The NDA did not reference a potential joint venture between Symrise and Cott.
`
`Id.
`
`97.
`
`The NDA did not reference the potential formation of a new entity to be jointly
`
`owned by Symrise and Cott Beverages. Id.
`
`98.
`
`In fact, the NDA referenced the provision of services, not a transaction.
`
`99. While O’Keeffe presented the NDA to Cott for legal review, he said nothing to
`
`his superiors at Cott about the possibility of a joint venture with Symrise or the potential
`
`formation of a new entity to be jointly owned by Symrise and Cott.
`
`
`5 The name of this client is being withheld to preserve confidentiality.
`
`6 Symrise, Client A, and the Individual Defendants use alternate spellings for “Project Road
`Runner,” sometimes as two words, sometimes as one. Refresco has elected to use the two-word
`variant for purposes of this Complaint.
`
`
`
`17
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`Case 4:20-cv-00181-CDL Document 1 Filed 08/03/20 Page 18 of 96
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`100. O’Keeffe also said nothing to his superiors at Cott about the possibility that he –
`
`and potentially others at Cott – would be interested in exploring with Symrise the possibility of
`
`forming a new company, with Symrise, in the beverage space.
`
`101. For these reasons, the NDA raised no serious concerns with Cott and was
`
`reviewed – and approved – as a standard potential customer NDA.
`
`Project Road Runner
`
`102. On October 24, 2018, Falkenberg contacted O’Keeffe and Polhamus, asking for
`
`their assistance with a project for one of Symrise’s customers. The email also discussed
`
`potential joint opportunities moving forward.
`
`103. Polhamus forwarded this email to Ly and Pontes, suggesting that the three of
`
`them discuss the opportunity further.
`
`104. On November 12, 2018, O’Keeffe, Polhamus, Falkenberg, and Graham had a
`
`conference call (“the November 12 Conference Call”) to discuss, among other things, Symrise’s
`
`Califormulations beverage incubator.
`
`105. During the November 12 Conference Call, Graham and Falkenberg described
`
`what they perceived as a “gap” in the beverage market.
`
`106. During the November 12 Conference Call, Graham and Falkenberg also discussed
`
`something called “Project Road Runner.”
`
`107. During the November 12 Conference Call, Graham and Falkenberg al