Manhattan restaurant Sottolio, Inc., d/b/a Norma Gastronomia Siciliana hired Giuseppe Manco—"a noted Italian pizza chef, or pizzaiolo"—to consult on its menu. At the same time, Manco and his wife purchased a 9% interest in the restaurant, becoming co-owners of the business. Manco signed a non-compete and non-disclosure agreement in connection with his hiring, under which Manco agreed, for ten years, to not replicate, copy, or duplicate Plaintiff's confidential information, including its "signature recipes" for arancine, pasta alla norma, caponata, anelletti al forno, and carbonara di mare, or to use the signature recipes within a ten mile radius of Sottolio's Manhattan restaurant.
About a year later, however, Manco left Sottolio, and along with his wife opened a competing Italian restaurant, Munch Ado, Inc. d/b/a Mani in Pasta, with two locations within one mile of Sottolio's Manhattan restaurant where he served, among other dishes, pasta alla norma, calling his version "Paccheri Norma."
This did not sit well with Sottolio, which promptly sued Manco to enforce his agreement. According to the complaint, although Manco is "an expert pizza maker, [he] is not noted for his pasta dishes, or Sicilian specialties." However, after executing the agreement, Manco and his wife "became intimately involved in [Sottolio's] business, received access to [Sottolio's] Confidential Information and collaborated with [Sottolio's chef/owner] in the creation of recipes for the Restaurant." Indeed, like Sottolio's pasta alla norma, Manco's Paccheri Norma "uses paccheri pasta—short, tubular pasta, unusual for this preparation, and chosen by [Sottolio's chef/owner] due to its particular ability to retain more sauce than other kinds of pasta." As set forth in exquisite detail in the complaint:
Mani in Pasta's Paccheri Norma dish utilizes confidential and proprietary techniques belonging to [Sottolio], and employs [Sottolio's] sequence of steps in seasoning and preparation [sic] the elements of the sauce. The process involves a combination of multiple varieties of fresh tomatoes, which first are meticulously deseeded, peeled and cut into small pieces (in a process called "Concasse"), and then are added to a pan where basil and garlic have already been panfrying in olive oil for a few minutes. A second type of tomato (obtained from canned peeled tomatoes, which are roughly cut, seasoned with olive oil and salt and separately cooked) is added to the foregoing mix, mid-preparation. As a separate step of the cooking process, the eggplants are first deprived of their internal liquids, salted, cut into cubes and then fried in olive oil. Meanwhile, the paccheri pasta is placed in a pot of salted water to boil. When the pasta is ready, it is drained and blended into the pan with the tomato sauce, the fried eggplants, and an addition of oregano, fresh basil, and a combination of two kinds of cheeses (grated pecorino and salted ricotta listels). Right before serving the blended dish, additional fresh basil and salted ricotta are added as a garnish on top of the plate.
Lest one think that Sottolio just gave away its secret recipe in a publicly filed complaint, it goes on to allege:
While this dish includes the main ingredients of a traditional pasta alla norma, the particular type of pasta used, some unusual ingredients (and combinations thereof) utilized throughout the cooking process (e.g., the oregano), as well as the convoluted cooking steps, all developed through many years of experience by [Sottolio], lead [Sottolio] to take appropriate legal steps to protect the secrecy of his own Pasta alla Norma.
Moreover, Sottolio further alleged that it takes steps to protect the secrecy of its confidential information, including its signature dishes, by: "(1) keeping any written description of such Confidential Information under lock and key; (2) limiting access to such Confidential Information strictly to those in the kitchen; and (3) requiring that all employees and consultants with access to such Confidential Information sign a non-disclosure or other confidentiality agreement."
Manco moved to dismiss the complaint, in part, because his agreement "does not protect any legitimate interest . . . [as] the complaint lists very popular Italian dishes commonly served in Italian restaurants in New York, and therefore they fall short of being a trade secret." In other words, the recipe for pasta all norma is not a secret. Indeed, Manco argues that "it appears that [Sottolio] has divulged all his 'secret recipes' in a cooking book that can be purchased used on Amazon for as low as $2.47." Manco further argued that his agreement is unreasonable in geographical and temporal scope. Finally, Manco argued that "concern over the negative economic impact of non-compete agreements and their restraint on free trade and freedom of profession has recently promoted the Attorney General of New York (NYAG) to conduct a number of investigations into the 'rampant misuse' of non-competes," suggesting that the NYAG has the authority to bring independent causes of action for fraud for "unconscionable contractual provisions," and that "after all, if [Sottolio] continued to use NCAs with employees, he would probably be prosecuted by the Attorney General."
In a handwritten Order, the New York Supreme Court denied Manco's motion to dismiss on the grounds that the Agreement "protects legitimate business interests" and "could be valid and enforceable," if reduced in scope. The Court noted that, in challenging the agreement, Manco's "best argument is that the clause is temporally and geographically broad." The Court did not address the fact that Sottolio apparently disclosed what appears to be the bulk of its pasta alla norma recipe in its complaint.
We will keep an eye on this dispute and let you know if it heats up or simmers down following a court ordered mediation.
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