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Pactiv Corp v. Multisorb Technologies

October 13, 2011


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Before the Court is Defendant Multisorb Technologies Inc.'s ("Multisorb") Motion for Partial Summary Judgment on Count VI of Plaintiff Pactiv Corp.'s ("Pactiv") First Amended Complaint, which alleges a breach of contract. For the reasons that follow, the motion is held in abeyance, and Pactiv is given 45 days to conduct additional discovery.


Pactiv and Multisorb are competitors in the field of modified atmosphere packaging for raw meat who are embroiled in a patent lawsuit in which each accuses the other of infringing upon its patents. The technology at issue preserves red meat by using an oxygen absorber to removal residual oxygen from the packaging. The Court has stayed all of Pactiv's patent claims pending reexamination. The Court has supplemental jurisdiction over Pactiv's breach of contract claim pursuant to 28 U.S.C. § 1367.

The breach of contract claim stems from the parties' former business relationship. On September 5, 1995, Pactiv's predecessor, Mobil Chemical Co., and Multisorb's predecessor, Multiform Desiccant, Inc., entered into a Mutual Confidentiality Agreement in order to explore the possibility of a business relationship. The companies then began working together, and on July 1, 1997, entered into a Supply Agreement.

Pactiv, in Count VI of its Amended Complaint, accuses Multisorb of using confidential information in violation of those agreements in order to develop its FreshPax oxygen absorber. In relevant part, the Mutual Confidentiality Agreement provided that:

Confidential Information received by the Recipient from the Disclosing Party shall not be disclosed to any third party or, except with respect to the Project or other activities between the Parties, be used (including without limitation, by analyzing samples, directly or indirectly, for chemical composition) or reproduced by the Recipient, without the prior written consent of the Disclosing Party.

The agreement defined confidential information as follows:

"Confidential information" includes, but is not limited to, any and all technical and business information, which either party makes available in writing to the other, which is labeled as "Confidential," "Proprietary," "Secret," or the like, regarding certain machinery, operations, processes, techniques, formulas, strategies, technologies, samples, business and manufacturing methods owned by either of them. If the Confidential Information, in the first instance, is disclosed orally or by other non-written means by one party to the other, it must promptly be confirmed in writing by the party making such disclosure and be labeled as "Confidential," "Proprietary," "Secret," or the like. In addition, Confidential Information includes the terms and conditions of this agreement.

Pactiv contends that Multisorb violated both this agreement and the Supply Agreement, which provides, in relevant part:

During the Term, the Parties anticipate that they may disclose to each other certain confidential and/or proprietary information.

The Parties' treatment of such information shall be governed by the terms of the Mutual Confidentiality Agreement between them.

Multisorb initially moved for summary judgment on the ground that Pactiv could not show that it provided Multisorb with any documents labeled "confidential" under the terms of the Mutual Confidentiality Agreement. Pactiv responded by producing documents that had been designated "confidential," but Multisorb asserts that these documents are insufficient to create a genuine issue of material fact as to whether Pactiv provided Multisorb with confidential information that it used to develop its FreshPax oxygen absorber.

Pactiv also argues that its employees orally provided Multisorb with confidential information, while Multisorb contends that any such disclosures would have been outside the scope of the Confidentiality Agreement. Although Multisorb's theory as to why it is entitled to summary judgment shifted, all issues have been fully briefed given that Pactiv was allowed to file a Surreply to Multisorb's Reply in support of its Motion for Summary Judgment.


Summary judgment is proper if "the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a). A fact is material if it could affect the outcome of the suit under the governing law, and a dispute is genuine where the evidence is such that a reasonable jury could return a ...

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