Corporate Espionage for Dummies

October 21, 2010 - by: Brian Kurtz 5 COMMENTS

Prison Sentences for Michael, Dwight, and Jim: Up to seven years for interception of oral communications plus up to seven years for attempted theft of trade secrets. There may also be criminal conspiracy prosecutions against Meredith, Oscar, and Ryan.

Litigation Value: Danny Cordray’s action for invasion of privacy and intentional infliction of emotional distress against Dunder Mifflin and several individuals = $250,000. Osprey’s action against Dunder Mifflin and several individuals for misappropriation of trade secrets = an injunction and damages to be proved at trial.

This week’s episode is entitled “The Sting.” In the 1973 film of the same name, Robert Redford and Paul Newman play slick con men who team up to pull off an exquisite double-cross of a Chicago gangster. Fast forward to 2010 Dunder Mifflin. Michael, Dwight, and Jim might go to prison for their bumbled attempt to steal confidential information from a Scranton paper salesman.

Pennsylvania’s wiretap law makes it a third-degree felony to intercept a written, electronic, or oral communication without prior consent from all parties to the communication. It is also a third-degree felony to wrongfully appropriate another’s trade secrets for one’s own use. The fact that Michael and Co. might not have learned anything of value probably doesn’t matter. Attempting to commit a crime is its own criminal act.

But before we fret that Cecilia Marie Halpert won’t see her daddy until she’s a teenager, the boys might be able to shorten their prison sentences. It is a complete defense to theft of trade secrets if the information at issue does not in fact constitute a trade secret. The Pennsylvania theft-of-trade-secret statute defines a trade secret as any process, formula, or other information that has value, is maintained in confidence, and is not available in the public domain. Michael, Dwight, and Jim could argue that watching Danny Cordray’s sales methods doesn’t rise to the level of stealing a trade secret.

Criminal sanctions aren’t Dunder Mifflin’s only concern. Danny has lucrative tort claims against Dunder Mifflin and the employees involved for invasion of privacy and intentional infliction of emotional distress. He was surreptitiously recorded and observed, without his consent, during what he believed to be a private sales meeting. His privacy was undoubtedly invaded. As for emotional distress, the key element of the claim is that the defendant’s conduct must be “extreme and outrageous.” Hello. Did you watch this episode?

Danny’s former company, Osprey, may also have civil claims against Dunder Mifflin for attempting to misappropriate Osprey’s confidential business information from Danny. Hard to imagine a judge who would not issue a restraining order against Dunder Mifflin after hearing evidence of their hidden camera scheme.

“The Sting” offered much from the employment law point of view. When this blog covers the re-run, maybe we’ll explore Stanley’s potential “regarded as” claim under the Americans with Disabilities Act (ADA) for Michael’s diabetes comments. Or Meredith’s national origin bias toward her coworker and “cleaning man,” Oscar. All in all, a great episode.  Wish it could have been longer.

. . . That’s what she said.

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5 COMMENTS

1 Joe
16:51:23, 22/10/10

Shouldn’t it be Sabre instead of Dunder Miflin?

2 Scott
19:45:20, 24/10/10

The criminal charges notwithstanding, does the fact that Danny accepted a job with Dunder Mifflin (Sabre) change any civil case outcomes?

3 Brian Kurtz
12:04:48, 25/10/10

I’m busted on calling it DM. Old habits.

Scott – Interesting question. One could argue that Danny’s subsequent employment with Sabre hurts his IIED action. How can he argue the behavior was outrageous when he soon after decides to work with these people?

4 Bill
12:43:00, 25/10/10

Mr. Scott and Co. were also calling it Dunder Miflin in the episode. I’m not sure if they retained that name for the paper portion of the business or what the deal is. For a while it was being called Sabre, now they’re calling it Dunder Miflin again.

5 Brian Kurtz
13:24:15, 28/10/10

Thanks for bailing me out, Bill. Although in litigation I doubt it would matter. It’s safe to assume that any minimally competent lawyer representing Danny would sue both entities.

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