Will Cobb
Through seven seasons of flirting with and often crossing the line when it comes to office antics, Michael Scott is remembered by many as one of the most complex, flawed and in the end lovable characters in television history. His 152 episodes as Regional Manager of Dunder Mifflin Scranton brought us not only some of the best sitcom television of all time, but also a series of potential liabilities long enough to keep a team of in-house counsel occupied for years. Whether it was harassment of many kinds, destruction of company property or creation of a hazardous work environment, to name just a few, Michael Scott was the Picasso of bringing potential legal liability upon his company. His masterpiece – his pièce de résistance – may have come to us in season 5, episode 13… Prince Family Paper.
David Wallace instructs Michael to scout out a small, family owned competitor to Dunder Mifflin called Prince Family Paper, with the hopes of targeting their business. Michael and his right-hand man Dwight hatch a plan to infiltrate Prince Paper and tease out information. Michael, under his usual alias Michael Scarn, poses as a potential customer in need of paper for his law firm, while Dwight pretends to be looking to leave Dunder Mifflin for a sales job with Prince Paper. Michael asks a series of targeted questions, including asking how many clients the family has, before being given the keys to the kingdom: a list of company clients for use as references to Prince’s customer service. On the way out, Michael snaps a picture of a map of Prince’s clients. While Michael struggles with both Dwight and his own conscious over his actions, eventually the information is sent to a delighted David Wallace. Just eight weeks later in episode 21 of season 5, we learn that Prince Family Paper has been put out of business.
Now, Michael’s ultimately successful plot is clearly unethical. But is it illegal? Could Prince Family Paper, had they uncovered the truth, sue Michael and Dunder Mifflin? Did Michael expose the company to perhaps the biggest legal liability of his seven-season tenure? It’s a question fit for a law school exam, and I believe the answer is yes. A few causes of action come to mind. A common law tort claim of conversion, aka basic theft, seems reasonable at first glance, as does a potential suit for fraudulent business practices. However, the route where Prince will most likely have Michael caught is through the Pennsylvania Uniform Trade Secrets Act. The Act defines the felony offense of theft of trade secrets, and importantly, “displaces conflicting tort, restitutionary and other law of this Commonwealth providing civil remedies for misappropriation of a trade secret.”
Just in case my criminal law professor reads this, let’s start with the elements of the offense:
“(b) Felony of the third degree.–A person is guilty of a felony of the third degree if he, with intent to wrongfully deprive of, or withhold from the owner, the control of a trade secret, or with intent to wrongfully appropriate a trade secret for his use, or for the use of another:
- unlawfully obtains possession of, or access to, an article representing a trade secret; or
- having lawfully obtained possession of an article representing a trade secret, or access thereto, converts such article to his own use or that of another person, while having possession thereof or access thereto makes, or causes to be made, a copy of such article, or exhibits such article to another.”
To start, is there a trade secret involved? When I hear the term I think of a patented technology or the secret Krabby Patty formula, not a list of customers. Maybe Michael is in the clear… wrong. Section 5302, the definitions section of the Act, defines a trade secret as “[i]nformation, including a formula, drawing, pattern, compilation including a customer list, program, device, method, technique or process that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, [and] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Prince’s customer list clearly holds potential economic value to Dunder Mifflin, and is not readily ascertainable to them. The place where Dunder Mifflin’s fine corporate lawyers might have a prayer is by arguing that the customer list is not “the subject of efforts that are reasonable under the circumstances to maintain its secrecy,” but this is likely to be a losing argument. Surely Prince Family Paper would not have been so generous with their protected information had they known who they were giving it to. Additionally, Pennsylvania common law shows a history of valuing protection of customer lists long before the enactment of the Uniform Trade Secrets Act.
Note:
A few assumptions have been made, both necessary for conducting a legal analysis of the incident and conducive to a concise and light-hearted piece about a TV show. First, I am assuming that Prince Family Paper’s business is entirely within Pennsylvania. David Wallace originally tells Michael that the target area is from Carbondale to Marshbrook, which are both within Pennsylvania, so this is a reasonable assumption. Accordingly, Pennsylvania statutes, and not the Federal Economic Espionage Act or the Defend Trade Secrets Act of 2016, provide the most appropriate legal standards. Additionally, the Defend Trade Secrets Act, which created a Federal cause of action for trade secret theft, was not passed until seven years after the airing of “Prince Family Paper” in 2009, while the Pennsylvania Uniform Trade Secrets Act was originally passed in 2004, several years before the fictional incident at issue. Next, I am assuming that, acting under the direction of David Wallace, however vague, Michael effectively acted as an agent of Dunder Mifflin.
Sources:
2004 Pa. ALS 14
Defend Trade Secrets Act 2016, 130 Stat. 376. at §5308; §3930; §5302.
Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, (Pa. 1957)