A Secretary's Simple Mistake Costs Pesi Cola $1.26 Billion Dollars; Do You Think She Still Has Her job?

Price to PepsiCo for Not Being in Court: $1.26 Billion

* Lynne Marek, The National Law Journal
* On 3:01 am EDT, Wednesday October 28, 2009

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What's the cost of not showing up to court? For PepsiCo Inc., it's a $1.26 billion default judgment. A Wisconsin state court socked the company with the monster award in a case alleging that PepsiCo stole the idea to bottle and sell purified water from two Wisconsin men.

Now the company is scrambling to salvage the situation. The damages award was handed down on Sept. 30. PepsiCo filed motions to vacate the order and dismiss the claims on Oct. 13, saying it wasn't even aware of the lawsuit until Oct. 6.

The litigation began in April when Charles Joyce and James Voigt sued the soft drink maker and two of its distributors, alleging they had misappropriated trade secrets from confidential discussions the plaintiffs had with the distributors in 1981 about selling purified water. The information was illicitly passed to PepsiCo, which used it to develop and sell Aquafina bottled water, the plaintiffs allege in the case filed in the Circuit Court of Jefferson County before Judge Jacqueline Erwin.

In court documents, PepsiCo argues it was improperly served with the Wisconsin lawsuit in North Carolina, but also asks the court to excuse the corporate bureaucracy that buried a legal document for weeks. While plaintiffs say they served the lawsuit in June on PepsiCo's registered agent in North Carolina, where the company is incorporated, PepsiCo says its law department at the company's Purchase, N.Y.-based headquarters was not notified until September.

"The bottom line is there was a defect in the process for us, but also for" the plaintiffs, said PepsiCo spokesman Joe Jacuzzi, who called the case "highly dubious."

Robert Roth, a lawyer for PepsiCo at Menomonee, Wis.-based Niebler, Pyzyk, Roth & Carrig, couldn't be reached for comment. Another lawyer for PepsiCo, Dean Panos, a partner at Chicago-based Jenner & Block, declined to comment.

In court papers, PepsiCo claims it first received a legal document related to the case from the North Carolina agent on Sept. 15 when a copy of a co-defendant's letter was forwarded to Deputy General Counsel Tom Tamoney in PepsiCo's law department. Tamoney's secretary, Kathy Henry, put the letter aside and didn't tell anyone about it because she was "so busy preparing for a board meeting," PepsiCo said in its Oct. 13 motion to vacate.

When Henry received a forwarded copy of the plaintiff's motion for default judgment on Oct. 5, she sent that to Yvonne Mazza, a legal assistant for Aquafina matters. Remembering that she still had the other document, Henry passed it to Mazza too. The next day Mazza sent the documents to David Wexler, a department attorney, and he "immediately" called the agent to get a copy of the complaint.

Lawyers for PepsiCo distributors Wis-Pak Inc. and Carolina Canners Inc. made court appearances in June and July. PepsiCo was at a loss to explain why it hadn't heard about the case from them. "It's just another unfortunate thing that didn't come together," Jacuzzi said.

In seeking to dismiss the case, PepsiCo argues that the statute of limitations should preclude the lawsuit, brought 15 years after the company started selling Aquafina and more than two decades after the alleged confidential talks. Moreover, "the $1.26 billion judgment that has been entered is unprecedented in size and justice requires that PepsiCo have a chance to defend itself," the company said.

The lead plaintiffs lawyer, David Van Dyke of Chicago-based Cassiday Schade, said Wisconsin courts have been "pretty clear that they don't like" vacating default judgments. "There is a possibly that a judge may say we're going to litigate the damages aspect of it," Van Dyke said.

A hearing is scheduled for Nov. 6.

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