Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 1 of 13
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF NEW YORK
`
`1:21-CV-0560 (BKS/DJS)
`Civil Action No. _________
`
`NUTRIEN AG SOLUTIONS, INC.,
`
` Plaintiff,
`
`v.
`
`THOMAS M. MACKERER,
`
` Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`COMPLAINT FOR INJUNCTIVE & MONETARY RELIEF
`
`1.
`
`Plaintiff Nutrien Ag Solutions, Inc. (“Nutrien”) employed Defendant
`
`Thomas M. Mackerer (“Mackerer”) for almost 14 years, first as a Warehouse
`
`Manager and for the last three years of his employment as a Marketing Manager.
`
`During that latter time period, Mackerer had access to confidential proprietary
`
`information of Nutrien’s relating to sale forecasts, vendor and customer account
`
`data, and other information that he knew Nutrien treated as confidential and which
`
`he was aware afforded Nutrien a competitive advantage.
`
`2.
`
`Between August 2020 and mid-September 2020, while still employed
`
`by Nutrien, Mackerer copied numerous files from Nutrien’s servers onto data
`
`storage devices without Nutrien’s authorization and without notifying Nutrien he
`
`was copying the information. Mackerer subsequently resigned from Nutrien
`
`effective September 18, 2020.
`
`3. Within days of his departure from Nutrien, Mackerer took a new
`
`position in sales and marketing with Carolina Eastern-Vail, Inc. (“CaroVail”).
`
`CaroVail is a direct competitor of Nutrien’s and the proprietary information taken
`
`603473772
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 2 of 13
`
`by Mackerer would be highly valuable in assisting him in his new position at
`
`CaroVail. Mackerer’s actions represent a breach of fiduciary duties to Nutrien and
`
`a misappropriation of Nutrien’s trade secrets. Nutrien files this Complaint for
`
`Injunctive & Monetary Relief (“Complaint”) to enforce its rights and to obtain all
`
`injunctive and monetary relief prayed for herein.
`
`THE PARTIES
`
`4.
`
`Nutrien is a corporation organized under the laws of the State of
`
`Delaware, with its principal place of business in the State of Colorado.
`
`5.
`
`Mackerer is a citizen of New York. Upon information and belief,
`
`Mackerer resides at 889 County Route 9, Ghent, New York, 12075-2307.
`
`JURISDICTION & VENUE
`
`6.
`
`This Court has subject matter jurisdiction over Nutrien’s claim arising
`
`under federal law for violation of the Defend Trade Secrets Act pursuant to 28
`
`U.S.C. § 1331 and 18 U.S.C. § 1836, et seq. and supplemental jurisdiction over
`
`Nutrien’s state law claims pursuant to 28 U.S.C. § 1367. This Court also
`
`independently has subject matter jurisdiction over Nutrien’s state law claims
`
`pursuant to 28 U.S.C. § 1332(a) because there is complete diversity between the
`
`parties and the matter in controversy exceeds the sum or value of $75,000, exclusive
`
`of interest and costs.
`
`7.
`
`This Court has personal jurisdiction over Mackerer and is the correct
`
`venue for this action under 28 U.S.C. § 1391(b)(1)-(2) as Mackerer resides within
`
`603473772
`
`2
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 3 of 13
`
`this Judicial District and a substantial part of the events giving rise to the claims
`
`herein occurred in this Judicial District.
`
`FACTUAL BACKGROUND
`
`8.
`
`Nutrien is engaged in the highly competitive farm supply distribution
`
`business, with multifaceted operations across the country, including seed
`
`production and sales, agricultural chemical distribution, bulk handling of fertilizer,
`
`precision agriculture services, and financing.
`
`9.
`
`Mackerer was hired by Nutrien in December 2006 as a Warehouse
`
`Manager. In September 2017, Mackerer was promoted to the position of Marketing
`
`Manager. In that latter position, Mackerer was responsible for making sales of
`
`Nutrien products and services to agricultural producers in the northeastern United
`
`States, particularly New York and adjacent states.
`
`10.
`
`In his position as a Marketing Manager for Nutrien, Mackerer had
`
`routine and extensive access to confidential business information of Nutrien,
`
`including identities of customers and vendors and the terms of those parties’
`
`contracts or other business relationships with Nutrien, Nutrien’s business
`
`strategies, price lists, sales forecasts and analyses, pricing and margins, and other
`
`confidential business information that formed essential parts of Nutrien’s
`
`competitive advantage in the agricultural supply industry. Nutrien’s practice was
`
`to treat this information as highly confidential and not for dissemination outside of
`
`the company, which Mackerer was aware of.
`
`603473772
`
`3
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 4 of 13
`
`11. Nutrien took reasonable precautions to preserve the confidentiality of
`
`this proprietary information, including but not limited to, the use of unique
`
`passwords for each employee, monitoring of employees’ accessing and copying of
`
`data, restricting employees’ access to information unrelated to or unnecessary for
`
`performance of their core job tasks, commercial-grade encryption, and routinely
`
`updated firewalls, as well as instructing employees, including Mackerer, on
`
`information security and best practices of maintaining confidentiality of proprietary
`
`information.
`
`12. Nutrien’s proprietary information had considerable value by virtue of
`
`its confidential nature and Nutrien’s efforts over the course of many years to
`
`assemble and protect the proprietary information from exposure to competitors.
`
`This included, among other things, value from the time and effort undertaken by
`
`Nutrient to compile, sort, profile, curate, and analyze (i) information such as
`
`customer and vendor identities using internal criteria developed by Nutrien, and (ii)
`
`information such as specific customers’ spending patterns and sales forecasts based
`
`on Nutrien’s privately collected historical data Nutrien’s proprietary information is
`
`not known outside the business and could not be readily acquired or duplicated by
`
`other parties through proper means.
`
`13. Beginning in August 2020, Mackerer began accessing Nutrien’s
`
`confidential pricing information through his laptop more frequently than he had in
`
`preceding months.
`
`603473772
`
`4
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 5 of 13
`
`14. On August 29, 2020, Mackerer connected two different Seagate
`
`portable drives (“Seagate drives”) to his Nutrien laptop.
`
`15. On that same day, Mackerer downloaded multiple files from Nutrien’s
`
`servers to the Seagate Drives. Information downloaded to the Seagate Drives on
`
`this date included, but was not limited to, Nutrien budgets, individual Nutrien
`
`customer and vendor account information, price lists for Nutrien products, net price
`
`reports, and price books.
`
`16. On September 2, 2020, Mackerer again downloaded multiple files from
`
`Nutrien’s servers to the Seagate Drives. Information downloaded to the Seagate
`
`Drives on this date included, but was not limited to, price books, inventory demand
`
`spreadsheets, and supplier account management data.
`
`17. On September 4, 2020, Mackerer again downloaded multiple files from
`
`Nutrien’s servers to the Seagate Drives. Information downloaded to the Seagate
`
`Drives on this date included, but was not limited to, additional inventory demand
`
`spreadsheets and fill directions for accounts for the following year.
`
`18. On September 10, 2020, Mackerer again downloaded multiple files
`
`from Nutrien’s servers to the Seagate Drives. Information downloaded to the
`
`Seagate Drives on this date included, but was not limited to, sales data for
`
`Nutrien’s “East Region” and lists of product launches for the following year.
`
`19. On September 16, 2020, Mackerer again downloaded multiple files
`
`from Nutrien’s servers to the Seagate Drives. Information downloaded to the
`
`Seagate Drives on this date included, but was not limited to, price sheets, additional
`
`603473772
`
`5
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 6 of 13
`
`product launch information for the following year, and Nutrien sales forecast
`
`information.
`
`20. On September 18, 2020, Mackerer again downloaded multiple files
`
`from Nutrien’s servers to the Seagate Drives. Information downloaded to the
`
`Seagate Drives on this date included, but was not limited to, bulk measurement
`
`spreadsheets, an additional price book, and correspondence regarding price/volume
`
`breakeven calculations.
`
`21.
`
`The foregoing list of files downloaded by Mackerer is not exhaustive
`
`and Mackerer downloaded many other files in addition to those identified above.
`
`22.
`
`In addition to downloading files to the Seagate Drives, Mackerer also
`
`downloaded proprietary information of Nutrien to an Apple iPhone on one or more
`
`of the foregoing dates.
`
`23.
`
`The Apple iPhone was not Nutrien’s property.
`
`24. Upon information and belief, the Apple iPhone was Mackerer’s
`
`personal telephone.
`
`25.
`
`The Seagate Drives were not property of Nutrien and computer
`
`forensics analysis shows they had never been connected to Mackerer’s laptop prior
`
`to August 29, 2020.
`
`26. Mackerer was not authorized by any supervisor or other authority at
`
`Nutrien to download any of the foregoing information to the Seagate Drives or to
`
`the Apple iPhone, nor were such downloads part of his routine duties on the dates
`
`alleged.
`
`603473772
`
`6
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 7 of 13
`
`27. Mackerer did not reveal to any supervisor or other authority at
`
`Nutrien that he had downloaded any of the foregoing information to the Seagate
`
`Drives or to the Apple iPhone.
`
`28. Mackerer resigned from Nutrien on September 18, 2020.
`
`29. Almost immediately after leaving Nutrien, Mackerer took up
`
`employment with CaroVail in sales and marketing.
`
`30. Upon information and belief, Mackerer’s job duties at CaroVail are
`
`identical or substantially identical to his job duties at Nutrien.
`
`31. Upon information and belief, Mackerer has responsibility at CaroVail
`
`for sales and marketing in a geographic region that substantially or completely
`
`overlaps the geographic region he had responsibility for while working for Nutrien.
`
`32. Upon information and belief, Mackerer has or will have contact with
`
`many of the same customers and vendors in the course of his work for CaroVail that
`
`he had contact with at Nutrien and the services and products Mackerer is
`
`responsible for marketing and selling on behalf of CaroVail are also the same or
`
`substantially similar to those he was responsible for at Nutrien. In contacting such
`
`customers and vendors and engaging in such marketing and selling, Mackerer will,
`
`upon information and belief, be relying substantially or wholly on proprietary
`
`information he obtained from Nutrien subject to a duty to maintain its
`
`confidentiality and not use it for either his own benefit or the benefit of a
`
`competitor.
`
`603473772
`
`7
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 8 of 13
`
`33. Upon information and belief, Mackerer has used and will continue to
`
`use Nutrien’s proprietary information in the course of his work for CaroVail,
`
`thereby eroding the competitive advantage Nutrien enjoyed from such proprietary
`
`information not being known outside of Nutrien.
`
`34.
`
`Following the discovery that Mackerer had copied Nutrien’s
`
`proprietary information, Nutrien contacted Mackerer by e-mail and correspondence
`
`sent by Federal Express on or about April 20, 2021 demanding, among other things,
`
`that Mackerer preserve the Seagate Drives, Apple iPhone, and any other media he
`
`had copied information to and account to Nutrien for all proprietary information
`
`that he had copied, and to turn over the external devices for analysis.
`
`35. After receiving Nutrien’s demand, Mackerer called Nutrien’s East
`
`Region manager. In that call, Mackerer acknowledged having copied information
`
`from Nutrien’s servers, but claimed that any information he had copied was
`
`personal and/or that he had copied Nutrien’s confidential and proprietary
`
`information by accident.
`
`36. Mackerer claimed he could not account for the whereabouts of any
`
`storage devices or media to which he had copied information from Nutrien’s servers.
`
`37. Mackerer further refused to agree that he would not use, and would
`
`return or destroy, any proprietary information he had copied from Nutrien’s
`
`servers.
`
`38. Due to Mackerer’s use of Nutrien’s proprietary information, Nutrien
`
`estimates that it has already suffered over $100,000 in lost gross profits and will
`
`603473772
`
`8
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 9 of 13
`
`accrue additional monetary damages going forward. Nutrien has also been
`
`irreparably damaged by Mackerer’s actions as they impact its relationships with
`
`customers and vendors prospectively and Nutrien will continue to be so irreparably
`
`damaged unless and until such time as Mackerer’s use of Nutrien’s proprietary
`
`information is halted.
`
`FIRST CAUSE OF ACTION: MISAPPROPRIATION OF TRADE SECRETS
`UNDER THE DEFEND TRADE SECRETS ACT
`
`39. Nutrien incorporates and re-alleges all preceding paragraphs of this
`
`Complaint.
`
`40. At all times relevant herein, Nutrien operated its business in
`
`interstate commerce.
`
`41.
`
`The proprietary information copied by Mackerer was used by Nutrien
`
`in connection with interstate commerce.
`
`42. Nutrien’s proprietary information copied by Mackerer was kept
`
`confidential by Nutrien using reasonable methods and procedures and Nutrien
`
`derived a competitive advantage from the confidential nature of the proprietary
`
`information.
`
`43. Nutrien’s proprietary information copied by Mackerer constituted
`
`trade secrets under federal law.
`
`44. Mackerer knew or should have known at the time that he copied
`
`Nutrien’s proprietary information that Nutrien’s proprietary information was
`
`confidential and not for distribution or use outside of the company without
`
`603473772
`
`9
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 10 of 13
`
`authorization and that he was under a duty to keep such proprietary information
`
`confidential.
`
`45. Mackerer knew or should have known at the time that he copied
`
`Nutrien’s proprietary information that his acts of copying were not authorized by
`
`Nutrien.
`
`46. Mackerer’s acts of copying and subsequently removing Nutrien’s
`
`proprietary information and using it on behalf of a third party without Nutrien’s
`
`authorization constituted a misappropriation of Nutrien’s trade secrets.
`
`47. Nutrien has been damaged by Mackerer’s misappropriation of its trade
`
`secrets in an amount to be determined at trial, but in excess of $75,000 exclusive of
`
`attorney fees, costs, and interest.
`
`SECOND CAUSE OF ACTION: MISAPPROPRIATION OF TRADE SECRETS
`UNDER NEW YORK COMMON LAW
`
`48. Nutrien incorporates and re-alleges all preceding paragraphs of this
`
`Complaint.
`
`49. Nutrien’s proprietary information copied by Mackerer constituted
`
`trade secrets under New York state law.
`
`50. As an employee of Nutrien, Mackerer was under a duty to not copy,
`
`remove, or utilize Nutrien’s proprietary information without authorization from
`
`Nutrien.
`
`51. Mackerer knew or should have known at the time that he copied
`
`Nutrien’s proprietary information that his acts of copying were not authorized by
`
`Nutrien.
`
`603473772
`
`10
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 11 of 13
`
`52. Mackerer’s acts of copying and subsequently removing Nutrien’s
`
`proprietary information and using it on behalf of a third party without Nutrien’s
`
`authorization constituted a misappropriation of Nutrien’s trade secrets.
`
`53. Nutrien has been damaged by Mackerer’s misappropriation of its trade
`
`secrets in an amount to be determined at trial, but in excess of $75,000 exclusive of
`
`attorney fees, costs, and interest.
`
`THIRD CAUSE OF ACTION: BREACH OF FIDUCIARY DUTY
`
`54. Nutrien incorporates and re-alleges all preceding paragraphs of this
`
`Complaint.
`
`55. Mackerer was employed by Nutrien during the period of December
`
`2006 to September 2020 and owed a fiduciary duty to Nutrien as an employee.
`
`56. As an employee of Nutrien, Mackerer was given access to Nutrien’s
`
`proprietary information for purposes of performing his job-related duties.
`
`57. Nutrien maintained the confidentiality of such proprietary information
`
`for purposes of competitive advantage.
`
`58. Mackerer knew or should have known at the time that Nutrien’s
`
`proprietary information was confidential and not for distribution or use outside of
`
`the company without authorization and that he was under a duty to keep such
`
`proprietary information confidential.
`
`59. Mackerer copied Nutrien’s proprietary information without
`
`authorization and has subsequently used such proprietary information to Nutrien’s
`
`disadvantage and to harm Nutrien’s competitive position.
`
`603473772
`
`11
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 12 of 13
`
`60. Nutrien has been damaged by Mackerer’s breach of fiduciary duty in
`
`an amount to be determined at trial, but in excess of $75,000 exclusive of attorney
`
`fees, costs, and interest.
`
`NO JURY DEMAND
`
`REQUESTED RELIEF
`
`Based on the foregoing, Nutrien respectfully requests the following relief:
`
`permanent injunctive relief, including but not limited to, an order
`i.
`directing Mackerer to account for the whereabouts of all proprietary information he
`copied from Nutrien’s servers, produce the Seagate Drives and Apple iPhone for
`inspection by a computer forensics expert to determine if any additional proprietary
`information was copied and to what use it has been put, and to return any
`proprietary information to Nutrien or to otherwise destroy such information subject
`to verification by Nutrien as Nutrien is otherwise without an adequate remedy and
`will suffer irreparable harm from Mackerer’s actions.
`
`awarding all actual, compensatory, consequential, incidental, and/or
`ii.
`special damages, estimated to be $100,000 to-date and increasing, incurred by
`Nutrien due to Mackerer’s misappropriation of trade secrets under federal and New
`York law;
`
`awarding all costs, expenses, and reasonable attorney fees incurred by
`iii.
`Nutrien in readying, bringing, and prosecuting this action against Mackerer;
`
`awarding all actual, compensatory, consequential, incidental, and/or
`iv.
`special damages incurred by Nutrien with respect to Mackerer’s breach of his
`fiduciary duty, including damages in the amount of all compensation paid by
`Nutrien to Mackerer during the relevant period of the breach of his duties, together
`with disgorgement of the value of all profits and financial benefits received by
`Mackerer resulting from his disloyal acts;
`
`awarding exemplary damages for Mackerer’s breach of his duty of
`v.
`loyalty intentionally and in bad faith; and
`
`an Order awarding Nutrien any additional relief the Court deems
`vi.
`warranted under the circumstances.
`
`
`
`
`
`603473772
`
`12
`
`

`

`Case 1:21-cv-00560-BKS-DJS Document 1 Filed 05/14/21 Page 13 of 13
`
`Respectfully submitted this 14th day of May, 2021.
`
`
`
`
`
`
`
`
`
`BRYAN CAVE LEIGHTON PAISNER LLP
`
`/s/ Vincent Alfieri
`By:
` Vincent Alfieri
`1290 Avenue of the Americas
`New York, New York 10104
`Telephone: (212) 541-2000
`E-mail: VAlfieri@bclplaw.com
`
`and
`
`Michael J. Hofmann, Esq.
`1700 Lincoln Street, Suite 4100
`Denver, Colorado 80203
`Telephone: (303) 861-7000
`E-mail: Michael.Hofmann@bclplaw.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Pro hac vice to be filed
`
`Attorneys for Plaintiff
`Nutrien Ag Solutions, Inc.
`
`
`603473772
`
`13
`
`