United States: THE RESTAURATEUR’S DILEMMA: Should Owners Force Chefs To Sign NDAs?

Last Updated: February 13 2014
Article by Denise M. Mingrone and Roland Chang

Should restaurateurs wonder eachtime they hire someone: Will this person steal their recipes — the bread and butter of their business?

Trade secret law offers limited comfort. Restaurant owners who have pursued such recipe bandits on trade secret misappropriation grounds have a mixed win-loss record. And like a fine paring knife, trade secret law can cut two ways: while it can help protect intellectual property, enforcing these laws in the restaurant business may also drive talent away. Would Michelin restaurant SPQR's executive chef Matthew Accarrino have joined if he had been required to sign an employment agreement stating that any recipes developed during his employment become the intellectual property of the restaurant? Probably not.

Call it the Restaurateur's Dilemma: Judges and juries have sometimes awarded trade secret relief when confidential recipes are stolen. But restaurateurs like Victoria Libin — a media attorney and co-founder of SPQR as well as the nationally-acclaimed A16 Italian eateries — does not seek to enforce these rights. Rather than risk inhibiting creative talent, Libin features new culinary delights, thereby bypassing any need to preserve recipe confidentiality.

But not all eating establishments thrive on culinary change. Indeed, casual dining chains build fame and fortune on predictable staples such as chicken and coca cola. America is the home of the hungry entrepreneur, many of whom have built billion-dollar industries on secret recipes. KFC has kept Colonel Sanders' mélange of 11 herbs and spices tightly under wraps for decades, and Coca-Cola's secret "Coke" formula has been called "one of the best-kept trade secrets in the world."

But recipe protection has not been limited to large American companies. Privately owned restaurants have sought trade secret relief upon losing their top chefs or other employees, accusing them of walking out to create competitive eating establishments founded on their prior employers' recipes. Recent cases include 50 Eggs Rest. Co., LLC v. Chef Bee et al., No. 13-027964-CA-01 (Fla. Cir. Ct. Aug. 27, 2013) and Torchy's Tacos v. Mario DeJesus et al., No. 2013-34135 (Tex. Dist. Ct. Aug. 19, 2013)). In both cases, restaurant owners claimed that departing employees pilfered the owners' recipe boxes, thereby committing trade secret misappropriation and unfair competition by using the recipes to establish new, competitive eateries. For example, in Torchy's Tacos, the restaurant's management group alleged that a former employee stole its "Taco Bible"—a document that included a start-to-finish recipe and process guide for each of its food products—and used it to start his own taqueria.

Some claims of trade secret protection for proprietary recipes fail. Take the recent case of the alleged salted caramel brownie heist, in which Amelie's French Bakery in Charlotte, North Carolina claimed that Todd and Carole Binkowski absconded with Amelie's famous salted caramel brownie recipe, secret ingredient and all. (See Vraiment Hospitality, LLC v. Todd Binkowski et al., No. 8:11-CV-01240-VMC-TGW (M.D. Fla. June 6, 2011)). The Binkowskis' pastry chef denied the allegations, and said he independently created the recipe through his own research and based on his 15 years of baking experience. After reviewing the alleged "secret ingredient" in Amelia's salted caramel brownie during an "under seal" proceeding, the judge was unimpressed by the purported uniqueness of the ingredient and, more importantly, believed the recipe already existed in the public domain. Amelie's was denied any trade secret relief. In a separate case, the Eleventh Circuit dismissed trade secret claims between two Miami fine-dining establishments based on New York's three-year statute of limitations, as Trade Secrets Watch reported last month.

Handled carefully, recipes can fit squarely in the definition of a trade secret: confidential information that is reasonably kept secret and from which its owner derives value as a result of being secret. But if there is evidence that the recipe has been made public, any trade secret protection will be lost. This means that restaurateurs must keep their commercially successful recipes confidential, sometimes at the expense of losing lucrative marketing deals such as cookbooks or foregoing public cooking sessions that may divulge ingredients and techniques.

This is no small dilemma in the context of restaurant employees, who often hop from job to job to ensure employment by the trendiest eatery. To protect their recipes, owners most likely would have to require chefs and other employees to sign employment agreements acknowledging that all recipes are the property of the restaurant and must be kept confidential, and that unauthorized disclosure may result in litigation. Owners may then need to enforce such provisions and take other measures to ensure that the recipes remain confidential.

Which brings us back to the Restaurateur's Dilemma. Should restaurateurs such as Libin require chefs and other employees to sign a pile of NDAs as a condition of employment, and risk losing up-and-comers to competitors' kitchens? And whose intellectual property is it, anyway? Is it the restaurateur, who invests time, money, and other resources to help perfect commercially successful recipes, intricate cooking and presentation techniques? Is it the investors, whose dollars ensured the business opened and flourished? Or does this information belong to the chef and staff who may have created or perfected the award-winning recipes but who were paid a salary to do so? More broadly, doesn't society benefit from allowing chefs like Accarrino to create culinary delights and publish their recipes without fear of legal reprisal?

The answers depend on the circumstances of particular restaurants, owners, and chefs. As a practical matter restaurateurs will have to decide how best to solve the dilemma of protecting their trade secrets while continuing to build and grow profitable restaurants with their chefs and employees. Meanwhile, diners can only hope that the creative juices continue to flow unrestrained by intellectual property battles.

Editor's note: Libin is an Orrick client.

Twitter: @TS_Watch

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.