Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 1 of 42

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UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WASHINGTONAT SEATTLE

678REPLENIUM INC.,
CASE NO. 2:24-cv-1281

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Plaintiff,

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COMPLAINT AND DEMAND FORJURY TRIALv.
ALBERTSONS COMPANIES, INC.,
Defendant.

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Plaintiff Replenium Inc. (“Replenium” or “Plaintiff”), by and through its undersigned

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attorneys, makes the following factual allegations applicable to each cause of action pled herein

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against Defendant Albertsons Companies, Inc. (“Albertsons” or “Defendant”).
PRELIMINARY STATEMENT

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1.

Replenium brings this action against Albertsons for misappropriation of trade20

secrets, breach of contract, breach of the implied covenant of good faith and fair dealing,

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promissory estoppel, and unjust enrichment, based on Albertsons’ systematic theft of Replenium’s

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trade secret and confidential information for the purpose of building a system to replace and23compete with Replenium.

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2.

Replenium is a Seattle-based software-as-a-service (“SaaS”) company that provides

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groundbreaking auto-replenishment services to grocery retailers based on Replenium’s trade secret

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technology, know-how, and processes. Replenium’s auto-replenishment platform (theCOMPLAINT AND DEMAND FOR JURY TRIAL - 1
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 2 of 42

1“Replenium Platform”) provides grocery retailers with the unique ability to offer customers full2

grocery basket, auto-replenishment services that drive customer purchases and promote long-term

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customer retention for both retailers and brands.

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3.

In October 2020, Replenium entered a SaaS contract with Albertsons, the second

5largest supermarket chain in North America, to launch the Replenium Platform, a first-of-its-kind,

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auto-replenishment solution that would enable Albertsons’ customers to automatically replenish

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their grocery purchases across a full basket of grocery items. Under the agreement and8accompanying Statement of Work (“SOW”) (referred to collectively as the “MSA”), Albertsons

9agreed to pay Replenium service fees based upon the net revenue generated through Albertsons’

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customers’ replenishment orders. The parties entered a mutual non-disclosure agreement (the11

“MNDA”) to protect confidential information shared in connection with the Replenium Platform.

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4.

The MSA anticipated Albertsons launching the Replenium Platform for Albertsons’

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customers in December 2020. From the inception of the MSA, Albertsons represented to

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Replenium that it intended to expand the Replenium Platform nationwide, across its twenty-two

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banners, including Safeway, and over 2,200 stores across approximately 34 states and the District

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of Columbia.

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5.

Albertsons internally and externally described the Replenium Platform as “industry

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revolutionizing” and proclaimed that “no other grocer is doing it yet.” Albertsons further stated19that “the customer benefits, the financial benefits, and the ability to be first to market make this a20

top priority for the company.” It described the Replenium Platform’s value in terms of growing its

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customers’ purchases: “When customers can subscribe to their usuals, they inherently become

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more loyal, driving approximately one additional trip per quarter and a 15 percent spend increase.”

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6.

Despite Albertsons’ representations to Replenium and enthusiasm for the24

Replenium Platform, Albertsons delayed its launch and expansion for nearly three years. During

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that time, Albertsons made false promises and unscrupulously leveraged its market power to26

induce Replenium to (i) continue to invest in implementing the Replenium Platform, while
COMPLAINT AND DEMAND FOR JURY TRIAL - 2
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 3 of 421

withstanding millions of dollars of losses directly attributable to its support for Albertsons, and (ii)2share trade secret and confidential information, under the parties’ MNDA and MSA, relating to the3technology, know-how, and processes underlying the Replenium Platform.
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Even as Albertsons repeatedly delayed launching the Replenium Platform,

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Albertsons induced Replenium’s ongoing investment of resources and confidential information

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sharing based on its internal and external statements that it planned a launch and nationwide

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expansion of the Replenium Platform. For example, in December 2021, Albertsons issued a press

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release about its planned nationwide rollout of the Replenium Platform, stating that Schedule &9

Save was “developed in partnership with auto-replenishment and predictive shopping platform

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Replenium” and was part of “Albertsons Cos.’ ongoing goal to revolutionize its digital offerings

11and enhance all aspects of the food experience to save customers time and money.” It continued,

12“[i]n 2022, Albertsons Cos. plans to expand the program nationwide and include a continuous

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expanding list of items for members to add for auto-replenishment.”
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In a March 2022 call with Replenium and the Albertsons team, Albertsons’ Senior

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Vice President of Digital Shopping Experiences, Jill Pavlovich, projected that the Replenium

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Platform represented a “massive opportunity,” and further quantified that opportunity as a “$[4]17billion-dollar opportunity by fiscal year 2024.”1 Ms. Pavlovich challenged the Albertsons team to18

prioritize subscriber acquisition for the Replenium Platform, stating: “Vivek [Sankaran, Chief

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Executive Officer] himself has challenged all of us, this group here, to get to 100,000 subscribers

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by the end of the year, a goal I know we can blow out of the water.”
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Based on Albertsons’ representations and inducements, under the protection of the22

MNDA and MSA, Replenium shared trade secret and confidential information for over three23

years, with hundreds of Albertsons’ personnel, including its technical leads, solutions architects,

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Ms. Pavlovich’s statement referred to a “$40 billion-dollar opportunity”, but based on her stated calculation
methodology, it appears that she intended to reference a still-significant, “$4 billion-dollar opportunity.” This
complaint accordingly refers to the corrected $4 billion dollar calculation.
COMPLAINT AND DEMAND FOR JURY TRIAL - 3
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 4 of 42

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and senior managers. During these meetings, Albertsons requested and received specific, detailed2

information about recommended process flows and business logic for key features of the3

Replenium Platform.

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10.

Albertsons expanded its knowledge of the Replenium Platform by inducing

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Replenium to engage in a series of limited assortment pilots and small segment launches based on

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the promise of a nationwide expansion. Unbeknownst to Replenium, during Replenium’s three7

years of confidential information sharing, Albertsons was misappropriating Replenium’s trade

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secret and confidential information by building its own competing, full grocery basket auto-

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replenishment solution to replace the Replenium Platform.

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11.

Albertsons initially launched Schedule & Save with Replenium, with limited

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functionality, in Northern California in August 2022. For the next year, Albertsons requested and12received trade secret and confidential information from Replenium for the purpose of adding

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enhancements to its initial small segment launch.

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12.

Even as Albertsons was building or planning to build its own replacement solution,15

it continued to induce Replenium to share more trade secret and confidential information and16

invest even further in support of Albertsons’ incremental expansion of Schedule & Save. For

17example, in January 2023, in the face of Albertsons’ continued delays, Pavlovich continued to18

induce Replenium to share trade secret and confidential information and invest in enhancements

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based on Albertsons’ promise of expanding the Replenium Platform nationwide. As an added20

inducement, Pavlovich specifically pointed Replenium to Albertsons’ recently-announced planned

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merger with The Kroger Company (“Kroger”), stating that Replenium stood to generate fees

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beyond Albertsons’ replenishment volume because Replenium would “get Kroger out of this” too.

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13.

In August 2023, Albertsons squeezed Replenium to support a final, critical24

enhancement to Schedule & Save based on Albertsons’ promised nationwide expansion of the25

Replenium Platform in the fall of 2023. Through the Replenium Platform, and based on

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Replenium’s ongoing confidential information sharing, Albertsons added Replenium’s Cart &COMPLAINT AND DEMAND FOR JURY TRIAL - 4
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 5 of 42

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Checkout functionality to Schedule & Save in 240 stores in Northern California. At the same2

time, Albertsons disguised its true plans to launch its own platform by providing Replenium with3

misleading information.

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The August 2023 launch was a success; however, Albertsons’ nationwide

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expansion of Schedule & Save on the Replenium Platform never happened. On October 3, 2023,

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after three years of learning the technology, know-how, and logic behind the Replenium Platform,

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Albertsons abruptly terminated the MSA, astonishingly citing the Kroger merger as one of the8reasons for terminating the MSA. Albertsons almost immediately launched its own, nearly

9identical, full-basket auto-replenishment solution that it had built with unfettered access to and use

10of Replenium’s trade secret and confidential information.

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15.

As a result, Replenium, after investing over ten million dollars over three years of

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implementation and operation of its Replenium Platform with Albertsons, lost nearly the entirety

13of that investment on the eve of the planned, full-scale expansion, without realizing any of its

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service fee revenue under the MSA. Albertsons’ calculated maneuver cost Replenium millions of15

dollars that it invested in implementation and operation, tens of millions of dollars in anticipated16

revenue under the MSA, and a massive loss in Replenium’s enterprise value due to its investment

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in a flagship customer that acted in bad faith by repeatedly squeezing and ultimately discarding

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Replenium in violation of the parties’ contracts.

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16.

Albertsons rolled out its competing platform in October 2023 and rapidly expanded

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Schedule & Save across the country to the vast majority of its large banners, such as Safeway,

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Vons, Albertsons, and Jewel-Osco, without paying for Replenium’s technology and know-how

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that enabled Albertsons to launch an “industry-revolutionizing” auto-replenishment platform.

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17.

Replenium seeks to hold Albertsons accountable for acting in bad faith, breaching24

its agreements, making false promises, and misappropriating its trade secrets and confidential

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information, without paying Replenium a license for its ongoing use and profits from the

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COMPLAINT AND DEMAND FOR JURY TRIAL - 5
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 6 of 42

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technology and know-how underlying Replenium’s first-of-its-kind full-basket, auto-2

replenishment platform for the grocery market.
PARTIES

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Seattle, Washington.

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Replenium Inc. is a Washington corporation with its principal place of business inAlbertsons Companies, Inc. is a Delaware corporation with its principal place ofbusiness in Boise, Idaho.
JURISDICTION AND VENUE

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20.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332 and

1018 U.S.C. § 1836(c).

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21.

Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(b) because

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substantial acts and omissions giving rise to the claims alleged herein occurred in this Judicial

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District.
FACTUAL ALLEGATIONS

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I.

Replenium Develops Trade Secret Technology for Full-Basket AutoReplenishment

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Tom Furphy founded Replenium in 2015 to develop and launch a first-to-market

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auto-replenishment service for grocery retailers that would provide grocery customers and brands

19with an automated and efficient tool for replenishing their routine grocery purchases. Furphy

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previously served as Vice President of consumables and AmazonFresh at Amazon from 2005 to

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2009, where he was responsible for the underlying strategy, development and execution of

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Amazon’s grocery and health and beauty business. Replenium’s Chief Technology Officer, Umair

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Bashir, is also a former Amazon executive who served as a Manager of Software Development for

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Retail Customer Experience, where he helped build Subscribe & Save, and later as a Senior

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Manager, Vendor and Product Management.

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COMPLAINT AND DEMAND FOR JURY TRIAL - 6
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 7 of 42

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23.

Replenium was the first company to successfully create a full-basket auto-2

replenishment system for grocery retailers that automatically schedules customers’ product3

replenishments orders and organizes deliveries and pick-ups based on replenishment schedules

4and customer preferences. This goes far beyond traditional product subscription platforms to5accommodate the high frequency, large product assortment, large shopping basket size and6complexity of grocery shopping. To date, no other grocery retailer, outside of Albertsons, has

7launched a comparable auto-replenishment solution.

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24.

Replenium’s technology and business logic enable customers to automate large

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portions of their everyday purchases by making it simple for them to identify and add items to10

their auto-replenishment list, then automatically create orders, tender payment, and schedule11

orders for delivery or pick-up when products are due to be replenished. This is all done with little

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to no human intervention. The confidential and proprietary technology and business logic that13

supports this auto-replenishment platform constitutes Replenium’s “Trade Secrets.” Replenium’s

14level of automation has never been available on large baskets of goods, like those in a regular trip

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to the grocery store. Unlocking this functionality helps ensure that customers do not run out of the

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products they need while providing a recurring revenue stream to retailers.

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25.

Replenium created its Trade Secrets through years of research, development, and18

testing across many customer use cases such as handling large orders, making order changes,

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handling multiple temperature zones, accommodating products with shelf life and replenishment

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cycle variation, and changes in delivery timing or method. Replenium’s solution addresses a retail21

market that is several times larger than that captured by traditional product subscription software,

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such as Amazon’s Subscribe & Save.

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Replenium offers retailers the Replenium Platform through SaaS contracts that24

provide retailers with access to the Replenium Platform and ongoing operational and technology

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support, all under strict contractual protections for Replenium’s Trade Secrets and other

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COMPLAINT AND DEMAND FOR JURY TRIAL - 7
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 8 of 421

confidential information. Replenium does not operate as a software development firm and does2

not perform development services for clients.
27.

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Retailers benefit from implementing the Replenium Platform by enabling them to4

drive larger and more frequent digital shopping cart orders and better forecast labor and inventory5

needs. Brands benefit from predictable revenue streams from replenishment orders, valuable data

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related to purchasing patterns, and an increase in shoppers’ brand loyalty. And, finally, customers

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receive personalized automated digital shopping carts based on their preferences and historical8

shopping preferences while simultaneously saving time with automated fulfillment that fits

9seamlessly into their lives.
28.

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Many other retailers have attempted to create a system like the breakthrough11

Replenium Platform, but outside of Albertsons none have succeeded. Companies like Amazon

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and Chewy created product subscription systems that operate on a single item and small order13

level only. The Replenium Platform stands apart because it can automatically generate entire

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shopping carts—not just single items preselected by customers—as well as delivery schedules

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based on customer preferences without any input required by the customer after the initial order.
29.

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Other grocery retailers, such as Walmart, have publicly announced their intentions

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to launch a full-basket auto-replenishment solution but have yet to successfully do so. And

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Amazon, which only recently launched its Amazon Fresh replenishment solution in February

192024, does not offer customers the ability to truly configure auto-replenishment for their grocery

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needs, still requiring the customer to make decisions and manually, not automatically, execute21

orders.

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II.

Replenium Enters into MSA with Albertsons to Create a Full-Basket
Auto-Replenishment System for Albertsons Stores

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Recognizing the immense value that could be derived from implementing the

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Replenium Platform, Albertsons sought to contract with Replenium to gain access to the

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COMPLAINT AND DEMAND FOR JURY TRIAL - 8
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 9 of 42

1

Replenium Platform and secure Replenium’s services and expertise to offer a full-basket auto-2

replenishment system to Albertsons’ customers.
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On June 17, 2020, Replenium and Albertsons entered into the MNDA to enable

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Replenium and Albertsons to “share information for the purpose of evaluating the suitability of5entering into a business relationship or in furtherance of an existing business relationship,”2 and to6“treat such information as confidential.” The terms of the MNDA applied to the parties’ “parent,

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affiliates and subsidiaries, and its and their officers, directors, employees, contractors, consultants,

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agents and representatives.” MNDA § 1.
32.

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any and all information of the Disclosing Party and each of its
parent, affiliates and subsidiaries that is not available to the public,
including, but not limited to: trade secrets; techniques; methods;
methodologies; product and manufacturing specifications; purchaseor sales volume, manufacturing, marketing, development, customer(personal and aggregate data, including household and alternative
IDs and tracking cookies and tags), employee, supplier, financial or
operations information; technical, scientific, laboratory,
experimental, research or statistical data; tooling; machinery;
diagrams; drawings; forecasting; business and new product andservice plans; reports; procedures; designs; formulae; recipes;
improvements; records; processes; any and all current and future
product information; facilities tours; know-how; data or any third
party information and contracts that Disclosing Party is obligated totreat as confidential that is disclosed or made accessible to the
Receiving Party directly or indirectly, in any form, whether written,
oral, photographic, electronic, magnetic, computer, by inspection of
tangible objects, or otherwise (including materials, records, reports,
documents, prototypes, samples, plant and equipment) andinformation that has been subject to confidential treatment under aterminated or expired agreement between the parties.

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The MNDA defined “Confidential Information” broadly to include:

Id. § 2.

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This was defined as the MNDA’s “Purpose.”

COMPLAINT AND DEMAND FOR JURY TRIAL - 9
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 10 of 42

33.

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The MNDA included thorough non-use and non-disclosure protections that2

prohibited the parties from, among other things, using the Confidential Information3 for any

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purpose outside of the defined Purpose and from disclosing the Confidential Information to any of4

its representatives except those “who need to know the Confidential Information for the Purpose

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and who are bound to keep such Confidential Information confidential . . . .” Id. § 4. Moreover,6

the MNDA restricted either party from “export[ing], reverse engineer[ing], disassembl[ing], or7decompil[ing]” any prototypes, software or other tangible objects that embody the other party’s

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Confidential Information. Id.
34.

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The parties also agreed to “take commercially reasonable measures to protect the10secrecy of, and to prevent unauthorized disclosure and/or use of, the Confidential Information of

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the Disclosing Party.” Those measures were required to be “at least those measures that [the12Receiving Party] takes to protect its own confidential information of similar import.” Id. § 6.
35.

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The MNDA enabled an open dialogue between Replenium and Albertsons

14regarding their potential business relationship, for the duration of that business relationship, and15

after the termination of that business relationship.4 Replenium relied on the MNDA to share its

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valuable and novel Trade Secrets and other Confidential Information with Albertsons because of17

the strong and clear protections of the MNDA.
36.

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On or about October 7, 2020, Replenium and Albertsons entered into the MSA.

The parties used Albertsons’ template contract to draft the MSA, at Albertsons’ insistence.
37.

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The MSA, Section 9.1, affirmed that all confidential and proprietary information

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disclosed by one party to the MSA to the other party “concerning or pertaining to the business of22

the disclosing party shall be subject to the terms of the [MNDA].” Further, Section 11.3(c) of the

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“Confidential Information” as used herein refers to the term as defined in the MNDA.

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The MNDA’s term continued until terminated by the parties in writing. § 11. In addition, the MNDA provided
that “each party’s confidentiality obligations shall survive such termination until such time as the Confidential
Information of the other party . . . becomes publicly known and made available through no breach of this [MNDA] . . .
.” Id.

COMPLAINT AND DEMAND FOR JURY TRIAL - 10
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 11 of 42

1

MSA provides that “Albertsons will use its reasonable efforts to protect Company’s Intellectual2

Property rights in the Services and will report promptly to Company any infringement or3

misappropriation of such rights of which Albertsons becomes aware.” Section 11.6 of the MSA

4also provides that “Albertsons will not . . . (b) copy, modify or create any derivative works based

5on the Services or (c) disassemble, decompile, or reverse engineer the Services or permit any third

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party to do so.”

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38.

Pursuant to the MSA, Replenium agreed to provide Albertsons with “automated8

replenishment SaaS Services,” MSA § 1, a full-basket auto-replenishment system based on

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Replenium’s Trade Secrets and other Confidential Information and integrated into Albertsons’

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digital storefronts as “Schedule & Save.”

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39.

In exchange, Albertsons would pay Replenium “Fees specified in [the] SOW.” Id. §12

6.1. “Fees” includes, among other things, “Service Fees” as set forth in Appendix B. SOW §13

1.1(e); see id. § 1.01(f).

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40.

Pursuant to Appendix A of the SOW, Albertsons agreed to “pay [Replenium] a15

percentage Service Fee based upon Net Revenue generated through Replenishment Orders” in16

accordance with a tiered payment structure. Under that schedule, Albertsons would pay

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Replenium a determined percentage of its auto-replenishment net revenue, with differing rates

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depending on whether the revenue was generated through Albertsons’ own brands or branded

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products.

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41.

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Crucially, Albertsons would only pay Replenium the Service Fees anticipated by

the MSA after Albertsons’ launch and expansion of the Replenium Platform.
42.

The MSA was a service agreement and not a software development contract. It

23expressly provided that “[n]othwithstanding any other provision to the contrary in this Agreement,24

the parties acknowledge that [Replenium] is providing automated replenishment SaaS Services

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and that [Replenium] will not be producing any Deliverables except as expressly set forth in an

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COMPLAINT AND DEMAND FOR JURY TRIAL - 11
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 12 of 42

1

SOW. The SOW contains a table with an entry for deliverables and next to it, it states “N/A.”

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Similarly, the table in the SOW states “N/A” in lieu of a schedule for deliverables.

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43.

The MSA defined a “Commercial Launch” of the Replenium Platform as “the date4

mutually agreed to by the parties on which Customers are able to begin placing Replenishment

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Orders in one or more geographic or segmented markets” but expressly excludes any “friendly

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user trial of the Services.” SOW § 1.1(c).

744.

Pursuant to the MSA, the Commercial Launch was initially set for December 31,

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2020. Id. at 1. Albertsons agreed to cooperate in good faith with Replenium to carry out all its

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obligations in the MSA. Id. § 1.3. Albertsons further agreed to “use commercially reasonable

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efforts to market and promote the ability of Customers to place and manage Replenishment

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Orders” through the Replenium Platform. Id. § 1.6.

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45.

The parties agreed to the terms of the MSA, and its payment structure, with the13

expectation that Albertsons would rapidly launch and expand its use of the Replenium Platform

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nationwide with a full set of service features. The parties never contemplated Replenium

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providing SaaS services for years without generating Service Fees from a nationwide expansion of

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the Replenium Platform. For the duration of the integration of the Replenium Platform,

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Replenium would be operating at a significant loss, which would only make sense if it received

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the Service Fees resulting from the launch and nationwide expansion of the Replenium Platform.

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46.

The financial potential for Replenium was massive in light of the number of20

Albertsons stores and its tens of billions of dollars of revenue, including billions of dollars of21

ecommerce revenue. Without the Service Fees, Replenium would not have entered into the MSA.

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47.

Replenium’s expectation that the volume of auto-replenishment orders would be23significant, as well as the resulting fees, was based not only on Albertsons’ size and Albertsons’24

projections, but also based on its own market research and past experience at Amazon.

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48.

Albertsons was also aware that Replenium would be operating at a significant loss

until Albertsons widely expanded the Replenium Platform to its customers. Replenium
COMPLAINT AND DEMAND FOR JURY TRIAL - 12
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 13 of 42

1

periodically shared its financial information with Albertsons, demonstrating the monthly

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investment it was making to support Albertsons. With this information, Albertsons established the3

expectation that it would rapidly execute a national expansion of the Replenium Platform from the4

beginning of the parties’ relationship, and consistently reaffirmed this expectation throughout the5parties’ relationship.

6

49.

The SOW specifically provided that the “parties acknowledge that upon

7

Commercial Launch it is in their mutual interest to maximize the number of Replenishment Orders

8

placed by Customers.” § 1.6.

9

III.

Replenium Shares Trade Secrets and other Confidential Information with aSignificant Number of Albertsons’ Representatives Under the Protections of
the MNDA

50.

In July 2020, Replenium and Albertsons began collaborating and sharing Trade

10
11
12

Secrets and other Confidential Information about the Replenium Platform, under the protections of

13

the MNDA.

1451.

Replenium and the Albertsons team tasked with coordinating and working with

15

Replenium corresponded regularly via email, Microsoft Teams, Slack, and video calls discussing

16

the Replenium Platform and Replenium’s underlying technology that supported the Replenium

17

Platform. These frequent discussions included topics such as the underlying system architecture,18

integration details and processes, as well as strategic approaches to implementation and business19

logic.

20

52.

By October 2020, the parties were holding weekly Tuesday meetings (sometimes

21

twice weekly meetings) to discuss progress and implementation of the Replenium Platform.

22

Replenium and Albertsons maintained this level and frequency of communication over nearly the23

entirety of their three years working together on the Replenium Platform. These communications

24

regularly included discussions of Replenium’s Trade Secrets and other Confidential Information.

25
26

53.

On the Replenium side, Chief Technology Officer and engineer Umair Bashir led

the discussions, along with a team of Replenium’s top technology and implementation team. For
COMPLAINT AND DEMAND FOR JURY TRIAL - 13
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 14 of 42

1

Albertsons, frequent attendees of the calls included Sowjanya Naidu, (Technical Architect and2Technical Lead); Krishna Movva (Engineering Manager); Bipin Chaudhari (Technical Program3

Manager); Lavanya Kambampati (Technical Lead); Trimurthulu Bommireddy (Solutions

4

Architect); Ramanjaneya Reddy Karnati (User Interface Developer); Asha Choudhary (Product5

Manager); Krishna Wudaru (Engineering Manager); Vijay Maddu (Technical Lead); Kevin

6

DeKorte (User Interface Lead); and Ganga Ramankulam (Technical Program Manager), to name a7small selection of the over two-hundred Albertsons employees and contractors with whom

8

Replenium shared Trade Secrets and other Confidential Information.

954.

In addition to the regular calls between the two teams, many of which were

10

recorded by Albertsons, Replenium also shared in writing Trade Secrets and other Confidential

11

Information about the logic, technology and business strategies underlying the Replenium

12

Platform. This information was communicated through, among other means, messaging services,

13

such as Slack, email, as well as through PowerPoint presentations created by Replenium and14

shared with Albertsons under the MNDA and MSA.

15

55.

For example, on July 9, 2020, Replenium shared with Albertsons a confidential

16

presentation that included a “Technology Overview” of the “Architecture & Integration” of the17

Replenium Platform. The presentation included detailed information concerning Replenium’s

18

Microsoft Azure architecture, replenishment user and data flow explaining how customers and the19

Replenium Platform would respond and react to each other’s inputs, and auto-replenishment

20

recurring order flow. The presentation also provided detailed user experience design, including

21

core customer notification and auto-replenishment item and order management features.

22

Replenium emailed this presentation to Richa Gupta (Senior Director, Head of Loyalty Platform

23

Innovations and Partnerships) and Jonathan Nouri (Senior Vice President of Loyalty) and24

presented it to Albertsons’ internal team on June 23, 2020.

25
26

56.

In a July 24, 2020 email, Replenium explained to Richa Gupta of Albertsons theauto-replenishment functionality and how it differed from subscription systems developed by
COMPLAINT AND DEMAND FOR JURY TRIAL - 14
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 15 of 42

1

Amazon, Chewy, Ordergroove, and Zuora. Replenium further shared a confidential presentation2

detailing the same type of information.

3

57.

On September 9, 2020, Replenium shared with a team of Albertsons employees a4

confidential presentation entitled “Rp Albertson Combined Customer Journey,” which laid out the5step-by-step process through which a customer would engage with and navigate through the6

Replenium Platform, including how customers would subscribe to certain products, how the7

Replenium Platform would create what it referred to as auto-replenishment buckets and mixed

8bags, how customers would manage their product replenishments, and how the Replenium

9

Platform would ensure that auto-replenishment orders placed through the Replenium Platform

10

would be fulfilled. Replenium sent this presentation by email to Richa Gupta; Ganga

11

Ramankulam (Technical Program Manager); Roopa Acharya (Vice President of Software

12

Engineering); Nitin Saksena (Senior Director of Omnichannel Architecture); and Igor Tsigelnik

13(Solutions Architect for eCommerce).

14

58.

On September 15, 2020, Replenium shared with over twenty Albertsons employees

15a confidential presentation entitled “Albertsons User Stories” which detailed the Replenium

16

Platform’s customer journey, including detailed process flow charts explaining how customers and17

the Replenium Platform would respond to each other’s inputs to enable effective auto-18

replenishment and cart management. The presentation also painstakingly detailed the most19effective and efficient methods of utilizing the Replenium Platform and how best to design

20

customers’ experience to maximize user uptake and streamline ease of use in light of numerous

21

interrelated systems. Replenium sent this presentation via email to Roopa Acharya (Vice22

President of Software Engineering); Ganga Ramankulam (Technical Program Manager); Richa

23

Gupta; Nitin Saksena (Senior Director of Omnichannel Architecture); Igor Tsigelnik (Solutions

24

Architect for eCommerce); Tharun Mittapalli (Contractor); Zachery Baker (Principal User

25

Experience Designer); Victor Teleron; Ganesh Reddiar (Mobile App Solutions Architect); Neetu

26

Sultan (Senior Engineer Manager); Alok Gupta (Director of Enterprise Architecture); Cameron
COMPLAINT AND DEMAND FOR JURY TRIAL - 15
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 16 of 42

1

Craig (Vice President of User Experience); Alberto Attia (Principal User Experience Architect);2

Alicia Sanguinetti (Director of User Experience); Krishna Wudaru (Engineering Manager); Vikas

3

Pathuri ( Director of eCommerce Engineering); Kristin Simao (Innovation Design Strategist) May

4

Ou; Bobby Johnson; Lava Amba; and Trimurthulu Bommireddy (Solutions Architect).

559.

In another confidential presentation, titled “Replenium System Architecture – High6

Level Overview – September 2020”, which Replenium shared with a large Albertsons team on

7

September 17, 2020, Replenium provided a detailed overview of the product subscription

8

processes enabling customers to subscribe to eligible products in the Replenium Platform. It also

9

provided a detailed overview and process flowchart for the Cart & Checkout feature, which

10provides a way for customers to easily and quickly add items to auto-replenishment that are in

11

their ecommerce cart while at ecommerce checkout. Cart & Checkout is a proven method to drive

12

significant customer adoption of auto-replenishment. Accordingly, Replenium strongly

13

encouraged at the outset of the parties’ contractual relationship that Cart & Checkout be developed

14

and implemented as part of the Replenium Platform.

15

60.

Replenium sent the email attaching this System Architecture presentation to Roopa

16

Acharya (Vice President of Software Engineering); Ganga Ramankulam (Technical Program

17Manager); Nitin Saksena (Senior Director of Omnichannel Architecture); Igor Tsigelnik

18(Solutions Architect for eCommerce); Tharan Mittapalli; Zachery Baker (Principal User

19

Experience Designer); Victor Teleron; Ganesh Reddiar (Mobile App Solutions Architect); Neetu

20

Sultan (Senior Engineer Manager); and Alok Gupta (Director of Enterprise Architecture).

21

61.

On October 21, 2020, Replenium provided Albertsons documentation concerning

22

Replenium’s Application Programming Interface (“API”) and Software Development Kit

23(“SDK”), both unique to the Replenium Platform based on Replenium’s technology and not24otherwise made publicly available by Replenium. Replenium shared these documents with25

multiple Albertsons employees, including Subha Burela (Business Analyst); Vijay Maddu

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 16
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 17 of 42

1(Technical Lead); Sowjanya Naidu (Technical Architect and Technical Lead); Kevin DeKorte

2(User Interface Lead); and Shekhar Kale.

3

62.

Replenium also shared with Albertsons a document detailing its API endpoints,

4

providing explanations and examples to Albertsons how to effectively utilize the Replenium

5

Platform’s API. Over the course of the parties’ relationship, Replenium repeatedly updated these6

documents and provided up-to-date information concerning its API and SDK to Albertsons.

763.

In addition, Albertsons required all of the API traffic to go directly through8

Albertsons’ servers. With the service calls being exchanged through its own gateway rather than9

Replenium’s, Albertsons was able to gain more information and insight into the nature of the calls

10

and the logic behind the technology.

11

64.

Replenium shared and gave Albertsons access to these Trade Secrets and other12

Confidential Information under the protections of the MNDA and MSA and continued to regularly

13

share this type of information throughout the three years of the parties’ relationship.

14

65.

The documents identified herein represent merely a sample of the materials shared15

by Replenium with Albertsons throughout their three-year contract period. Replenium would not16

and has not shared this type of information with any outside party absent a non-disclosure

17

agreement, such as the MNDA. In fact, Replenium has never shared this depth of information

18

with prospective customers, even when an NDA is in place.

19

66.

Albertsons consistently sought information about the Replenium Platform, under20

the MNDA and MSA, far beyond what was necessary for Albertsons to integrate the Replenium

21

Platform into Schedule & Save. Albertsons sought information that went to the core of the22

operation of the Replenium Platform—highly confidential and vigorously protected Trade Secrets

23

and other Confidential Information. Based on the protections in the MNDA and MSA and given

24

Replenium’s desire to ensure the success of the Replenium Platform, Replenium shared the25

requested information with Albertsons.

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 17
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 18 of 42

1
2

IV.

The Rollout of the Replenium Platform is Repeatedly Delayed while
Albertsons Continues to Acquire Replenium’s Trade Secrets and otherConfidential Information under the Guise of Moving Forward with a
Nationwide Expansion

67.

After entering the MSA, Albertsons did not meet the December 31, 2020

3
4
5

Commercial Launch date and requested an extension of the Commercial Launch date to March 31,

62021. Despite the significant costs of Albertsons’ delay, Replenium agreed as a result of7

Albertsons’ enormous leverage and representations and inducements to Replenium to continue to8

provide service.

968.

On or about January 26, 2021, Replenium and Albertsons executed Amendment

10

Number One to Statement of Work (“SOW Amendment 1”), wherein the parties agreed to adjust11

the Commercial Launch date to March 15, 2021. SOW Amendment 1 § 1.

12

69.

Replenium continued to diligently work with Albertsons so that it could achieve the13

March 15, 2021 Commercial Launch date; however, Albertsons also failed to meet the March 15,

142021 Commercial Launch date.

15

70.

After the second failed Commercial Launch date, Albertsons induced Replenium to16

continue to work toward a launch by making false promises that it was proceeding toward a17

national expansion of the Replenium Platform, and by agreeing to cover a portion of Replenium’s

18

increasing monthly losses.

19

71.

Albertsons did not follow through on its promise of a nationwide expansion.

20

Rather, Albertsons required Replenium to conduct limited pilots that were never anticipated by the21

MSA or the parties’ discussions about launching and expanding the Replenium Platform.

22

72.

For example, in or around September 2021, Albertsons conducted a pilot consisting23

of approximately 120 stores in Northern California and only included a small fraction of products

24

eligible for Schedule & Save—approximately 250 stock keeping units (“SKU”), later increased to25

1,200 SKUs—through the Replenium Platform. This was well below Replenium’s 50,000 SKU

26

recommendation, but the pilot still demonstrated the functionality and potential of the program.
COMPLAINT AND DEMAND FOR JURY TRIAL - 18
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 19 of 42173.

Consistent with the expectations Albertsons set for Replenium, in a December 2021

2

press release, Albertsons announced a limited trial of Schedule & Save “developed in partnership3

with auto-replenishment and predictive shopping platform Replenium,” with “plans to expand the4

program nationwide and include a continuous expanding list of items for members to add for auto-

5

replenishment.” Albertsons proclaimed that Schedule & Save, along with new meal planning

6

technology, would “revolutionize its digital offerings and enhance all aspects of the food

7

experience to save customers time and money.”

874.

After the initial pilot, in 2022, Albertsons continued to promise a nationwide

9

expansion of the Replenium Platform and expressed incredible optimism for the industry

10“revolutionizing” opportunity, with Replenium, to be the first grocery chain to launch a full-basket

11

auto-replenishment platform. Albertsons’ Senior Director of Omni Experiences, Alyse Wuson,

12

expressed Albertsons’ goal of “exponentially increas[ing] eligible SKUs” for the Replenium

13

Platform.

14

75.

Albertsons also continued to reaffirm to Replenium that Albertsons intended to15

expand the Replenium Platform broadly across the country. For example, in a February 2022

16

presentation, Albertsons stated that it intended to expand the Replenium Platform in

17

approximately 2,147 stores and have an initial 100,000 customers enrolled via its website and18phone application by the end of fiscal year 2022.

19

76.

Albertsons’ Senior Vice President of Digital Shopping Experiences, Jill Pavlovich,

20

lavishly praised Replenium and the opportunity the Replenium Platform offered Albertsons. She

21

communicated Albertsons’ view that Replenium could drive billions of dollars in sales, and that22

the Replenium Platform had the full and vocal support of Albertsons’ C-suite members. In a

23

March 14, 2022 video call with Albertsons and Replenium representatives, Pavlovich stated:

24
25
26

Apologies in advance because I can only stay just long enough toshare how huge this program is and how important all the work you
have done and will continue to do is to the goals of our company,
both on our customer experience side and financially. So thank you,COMPLAINT AND DEMAND FOR JURY TRIAL - 19
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 20 of 42

thank you, thank you, thank you, thank you to all of you for thework you’ve done thus far and will continue to do to drive thisprogram forward. I mean, I think we’re talking about industryrevolutionizing stuff right here. Yes, there is Schedule & Save or
Subscribe & Save out there in the market, but not with a grocer. Not
on the things you buy most often. More often than anything,actually. . . . We do know this to be a massive opportunity for us.
First, assuming our [ecommerce] business hits $10 billion dollars,and [the Replenium Platform] grows to be about 40 percent of that,
we’re staring down the pipe at a $4 billion [sic] dollar opportunity
by fiscal year 2024. We also know that 60 percent of ourcustomers’ baskets, or their quote-unquote usuals, means they buy
the same thing week over week, and the ability to subscribe to theirusuals and save money is a huge benefit to our customers, especiallyto our convenience shoppers. When customers can subscribe totheir usuals, they inherently become more loyal, driving
approximately one additional trip per quarter and a 15 percent spend
increase.

1
2
3
4
5
6
7
8
9
10

And just to put, like, a point on this opportunity, no other grocer isdoing it yet. So the customer benefits, the financial benefits, and theability to be first to market make this a top priority for the company.
In fact, as Alyse will share, Vivek [Sankaran, Chief Executive
Officer,] himself has challenged all of us, this group here, to get to
100,000 subscribers by the end of the year, a goal I know we canblow out of the water. So with that, I just want to say thank you
again—thank you thank you, thank you—reiterate how excited I am
personally about this program, but more importantly, how excitedthe entire leadership is about the capability, as well as reinforce that
we have the support of the entire organization to make this asuccess. I’m sure Alyse has on her agenda to talk about the meeting
we just came out of with [Jennifer Saenz, Executive Vice President,
Chief Merchandising Officer,] where she was like “yes yes yes yesyes” to everything Alyse was asking for from a topline view of the
program.

11
12
13
14
15
16
17
18
19
20

77.

In this way, amongst many other direct communications to Replenium, Albertsons

21

induced Replenium’s continued services and sharing of Trade Secrets and other Confidential

22

Information by repeatedly assuring Replenium that it would reap significant Service Fees resulting

23

from a broad, full-feature, nationwide expansion that could yield tens of millions of dollars in24

revenue for Replenium.

25
26
COMPLAINT AND DEMAND FOR JURY TRIAL - 20
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 21 of 42

1

78.

Albertsons represented to Replenium that Albertsons intended to launch Schedule2& Save by mid-2022 and expand it nationally throughout the balance of the year. In a June 30,

32022, email, Pavlovich stated “[h]ere’s to [July 22] sticking like glue. We cannot wait to get this4

running full speed ahead.”5

79.

Given Albertsons’ projections and praise for the Replenium Platform, Replenium

6

continued to push Albertsons to broadly expand the Replenium Platform as the parties had agreed.

7

Nevertheless, in August 2022, Albertsons demanded that Replenium commence another limited

8

pilot—again in Northern California—consisting of 254 stores. Albertsons represented to9

Replenium that this limited pilot was to be followed by a national expansion, staggered through10

divisions, throughout the remainder of 2022.

11

80.

Again, the Replenium Platform proved to be a success; however, Albertsons still12

did not follow through with the planned national expansion. Albertsons provided Replenium with13

a series of moving-target reasons to explain its delays, but every time Replenium worked with

14

Albertsons to help it resolve the purported hurdles to a national expansion, Albertsons responded

15

with a new explanation for its delays.

16

81.

During these delays, Albertsons continued to request and receive Trade Secrets and17other Confidential Information from Replenium under the protections of the MNDA and MSA.

18

For example, on October 16, 2022, Replenium shared with Albertsons’ team its recommended19

customer journey enhancements, to which Albertsons responded by saying that there were “some20

really nice ideas in your document that we’d like to explore,” and further requesting additional

21

information: “knowing that you have industry expertise and data, if you were to prioritize all the22suggested enhancements in the document, what would the order be?”

23

82.

Albertsons’ delays also took a significant financial toll on Replenium, who was still24

supporting Albertsons as a good faith business partner, relying on Albertsons’ representations and25

its belief that Albertsons was acting in good faith.

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 21
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 22 of 42

183.

Replenium shared financial information with Albertsons demonstrating the2

economic impact of Albertsons’ unwarranted delays on Replenium. Albertsons agreed to make3

interim payments to Replenium to cover a small portion of Replenium’s losses, but it continued to4delay the promised nationwide expansion while exercising its leverage to induce Replenium’s

5continued performance. Even with Albertsons’ interim payments, Replenium was incurring

6

millions of dollars of losses annually to support implementation of the Replenium Platform. And,

7

as Albertsons was aware, those losses would be immensely challenging for Replenium to sustain

8

for a period of years.

984.

Again, in December 2022, Albertsons shared in writing with Replenium what it

10

referred to as its “Banner Expansion Plan” to expand the Replenium Platform nationwide. The

11

Banner Expansion Plan showed that the Replenium Platform would be live in 97% of the Northern

12

California stores, 100% of the Southern California stores, 100% of the Mid-Atlantic stores, 95%

13of Seattle stores, and 100% of the Southwest stores by the end of September 2023, among others,

14

comprising 94% of Albertsons’ stores, or 1,968 stores across the country.

15

85.

On January 9, 2023, Replenium met with Pavlovich and Wuson to reiterate its

16

concerns about Albertsons’ continued delays of the program. Pavlovich responded that the delays

17

were caused by Albertsons’ prior business and product teams and that Pavlovich and the new team18

could not be held accountable for the prior team’s performance. During this meeting, Pavlovich

19

informed Replenium that she had not even read the MSA because it was executed before she

20

joined Albertsons.

21

86.

At a January 12, 2023 meeting with Albertsons, Replenium again expressed

22

concerns regarding Albertsons’ continuous delays of a national expansion. Replenium explained

23that Albertsons’ delays were taking a significant toll on Replenium given the fact that Albertsons

24

was not paying Service Fees to Replenium to ameliorate its costs, as planned. In response,

25

Pavlovich pointed to the recently announced merger with Kroger and stated that in addition to26

Albertsons’ volume, Replenium would “get Kroger out of this” if Replenium continued its work.
COMPLAINT AND DEMAND FOR JURY TRIAL - 22
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 23 of 42

1

87.

At that time, Albertsons was in the process of negotiating a merger with Kroger.

2

As of April 2, 2024, Kroger operated 2,722 grocery retail stores across the country under a variety

3of banner names, either directly or through its subsidiaries. Albertsons’ invocation of Kroger and4

referencing that Replenium would “get Kroger out of this” was intended to induce Replenium to5continue investing time and effort in the Replenium Platform with Albertsons because the6potential merger would significantly increase the reach of the Replenium Platform, thereby

7

significantly increasing Replenium’s Service Fees.

8

88.

Albertsons finally committed to an expansion in all Safeway stores by February 15,

92023. Replenium spent countless hours and exhaustive resources leading up to this February 202310

expansion. The teams from both parties were prepared for the rollout, but then just two days prior11

to the target date, Albertsons’ corporate team abruptly canceled the expansion again.

12

89.

Replenium expressed its shock and disappointment to Albertsons, particularly

13

given that all of its functionality was performing to specification. In response, Albertsons’ Omar

14

Gajial, Executive Vice President, Chief Digital & Health Officer at the time, offered to identify a15

subset of stores or divisions where Albertsons could expand the Replenium Platform. Albertsons

16

ultimately never identified additional stores or divisions.

17

90.

Throughout 2023, Albertsons and Replenium continued to work on an economic

18

resolution to Albertsons’ seemingly inexplicable delays, but Albertsons repeatedly used its market

19

leverage and promises of a national expansion to insist that Replenium continue its support

20

without additional financial consideration.

21

91.

In an email from Albertsons in May 2023, after asking Replenium to increase its

22monthly investment in order to provide additional server capacity and labor, Albertsons reiterated

23

that position: “Like you, we also remain big believers in this program’s potential. We are just an

24

estimated 1 month away from launching the Cart & Checkout experience for customers, which25

should be a big unlock for the program. If initial results are favorable, it will enable us to expand

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 23
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 24 of 42

1

this program across the enterprise. We look forward to crossing these milestones over the next few

2months!” (emphasis added).

3

92.

Through Albertsons’ limited pilots and staged enhancement launches, it repeatedly

4

squeezed Replenium for Trade Secrets and other Confidential Information and significant

5

investment, while Albertsons reaped the benefits of the Replenium Platform through further

6

education about Replenium’s technology and validation of the business case for Schedule & Save.

7

At the same time, Albertsons denied Replenium Service Fees, or ultimately any compensation for8

its Trade Secrets and other Confidential Information while forcing it into financial challenges that

9

were never contemplated by the parties’ relationship.

10

V.

With Continuing Access to and Use of Replenium’s Trade Secrets and otherConfidential Information, Albertsons Internally Develops a Competing System
to Replace the Replenium Platform

93.

Unbeknownst to Replenium, while Replenium was working with Albertsons to

11
12
13

implement the Replenium Platform, Albertsons covertly began to develop a near-identical system

14(the “Albertsons Platform”) meant to supplant the Replenium Platform for Schedule & Save.

15

94.

Albertsons did not inform Replenium that it had begun to develop the Albertsons

16

Platform in parallel with its partnership with Replenium and took no apparent precautions to

17

protect Replenium’s Trade Secrets and other Confidential Information. Rather, Albertsons

18

worked in secret while continuing to receive Replenium’s Trade Secrets and other Confidential

19

Information under the protections of the MNDA and MSA.

20

95.

Indeed, throughout 2023, even as Albertsons was planning to terminate the MSA

21

and launch the Albertsons Platform, Albertsons’ team members sought more detailed and22

technical information concerning the inner workings of the Replenium Platform, including the23

business logic and rationale behind it.

24

96.

Notably, in February 2023, Albertsons proposed amending the MNDA to include a25

never-before-discussed Residuals clause that would permit Albertsons to use residual work26

relating to the Confidential Information.
COMPLAINT AND DEMAND FOR JURY TRIAL - 24
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 25 of 42

1

97.

Specifically, on February 14, 2023, Jenny Liu of Albertsons sent an email to

2

Replenium stating that Matt [Freeman] and I continue to work with the business team to look at3

the different options to our partnership with you.” She went on, “[a]s we were talking about4

shifting our relationship into something more strategic, we would need a basic provision to the5

MNDA before we move forward with further discussions.” She stated that this “basic provision”

6

would “help ensure that we have the protection required as a public company in the long run as we

7think about what the strategic relationship can look like.”

898.

The proposed amended MNDA included language that would have granted

9

Albertsons the ability to use residuals of Replenium’s Confidential Information, including

10

information retained in the memories of its representatives who had access to Replenium’s

11

information. The proposed language provided:

12

Residuals. Notwithstanding any language to the contrary, nothing inthis Agreement will limit the ability of either party or any of its
Representatives to use residuals relating to the Confidential
Information of the other party. The term “residuals” means
information of any kind included in or relating to the Confidential
Information which is retained in the unaided memories ofRepresentatives of either party who have had access to the
Confidential Information, but not as a result of any deliberate effort
to memorize the information. Without limiting the foregoing, neither
party will have any obligation to limit or restrict the assignment of
its employees or to pay royalties to the other party in connection
with any use of residuals.

13
14
15
16
17
18
19
20

99.

Replenium rejected that proposal and made clear that it would not agree to21

Albertsons’ use of Replenium’s Confidential Information in that manner. Replenium was

22particularly puzzled by this exchange given that Albertsons’ request for the residuals language

23

came approximately two and a half years into the parties’ commercial relationship.

24

100.

As Albertsons developed its undisclosed Albertsons Platform, it continued to probe

25

Replenium for answers to technical questions and questions about the business logic behind the26

Replenium Platform. For example, in May 2023, via Slack messages, Albertsons contractors and
COMPLAINT AND DEMAND FOR JURY TRIAL - 25
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 26 of 421

employees Jeyarani Sonai and Mary Ann Warner sought detailed information from Replenium

2

employees Richard Rector and Hasaan Maajid about how the ordering process would and should

3

work for an existing user who enrolls in Cart & Checkout in the Replenium Platform, as well as

4

for new users. Replenium responded in detail both about how the process works and why it was

5designed to work that way.

6

101.

Replenium further shared additional Trade Secrets and other Confidential

7

Information with Albertsons regarding Cart & Checkout through a series of emails in May 2023.

8

In these emails, several Albertsons employees, including a Technology Program Manager,

9questioned Replenium regarding the business logic supporting the order date for existing10

customers signing up for Cart & Checkout. Replenium’s CTO, Bashir, responded to a team of

11

about six Albertsons employees, with details surrounding Replenium’s suggested business logic to12

create the most efficient process for customers using Cart & Checkout. All such information was

13

shared pursuant to the MNDA and MSA.

14

102.

In the months leading up to Albertsons’ termination of the MSA, Albertsons and

15

Replenium continued to have bi-weekly meetings where the parties discussed expansion criteria

16

and rollout timing. Albertsons also continued to express its enthusiasm for the Replenium

17

Platform, the partnership and the imminent national expansion, while Replenium continued to18

invest resources and share Trade Secrets and other Confidential Information to support the19forthcoming expansion.

20

103.

Even in the month immediately prior to Albertsons terminating the MSA and21

launching the Albertsons Platform, Albertsons continued to work with Replenium toward a22

nationwide expansion that Albertsons knew would not happen, while collecting more information

23

through a rollout of additional functionality for the Replenium Platform in the Northern California

24market.

25
26

104.

In an August 10, 2023 meeting between Albertsons and Replenium, Albertsons

presented a deck showing that it would launch Cart & Checkout with the Replenium Platform in
COMPLAINT AND DEMAND FOR JURY TRIAL - 26
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 27 of 42

1

10 stores on August 10, 2023. Albertsons wrote that if it was successful, the experience would be2

expanded to the rest of the Northern California stores. The same presentation showed that Cart &3

Checkout would be launched in 240 stores on August 30, 2023, and Albertsons confirmed, “[i]f all

4

success criteria is met, we will start gradually expanding the program nationwide.”

5

105.

In late August 2023, Albertsons launched the Cart & Checkout functionality with6

the Replenium Platform in Northern California. This launch was confined to Safeway stores only

7

in Northern California and no other Albertsons-owned banners. Through this launch, the8Replenium Platform was made available with enhanced functionality in approximately 240 stores.

9

Albertsons launched Cart & Checkout on a small-scale by design, prior to terminating its MSA

10

with Replenium, to ensure that it had sufficient information to utilize that feature in the Albertsons

11

Platform without Replenium.

12

106.

As with prior limited launches, the Replenium Platform with Cart & Checkout

13

proved successful, demonstrating the customer need and use for an auto-replenishment full-basket

14

solution, and the commercial value of the Replenium Platform. In fact, on September 6, 2023,

15

Albertsons presented the metrics to Replenium for the original 10 test stores and showed that post16

the launch of the Replenium Platform with Cart & Checkout, Albertsons saw a 130% increase in17

auto-replenishment sales and 97% increase in auto-replenishment orders.

18

VI.

Albertsons Terminates the MSA and Immediately Transitions from
Replenium’s Platform to its Albertsons Platform Using Replenium’s Trade
Secrets and other Confidential Information

107.

On October 3, 2023, without prior notice, Albertsons abruptly sent a letter to

19
20
21

Replenium terminating the MSA. Albertsons stated in the letter that the effective termination date22

was November 15, 2023.

23

108.

This termination came as a shock to Replenium. There had been no indication

24

from Albertsons that there were any potential issues with the Replenium Platform. Indeed, just25

one day prior, on October 2, 2023, Albertsons and Replenium had scheduled code freeze dates in

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 27
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 28 of 42

1

anticipation of the upcoming November and December expansion dates for the Replenium

2

Platform. Code freeze dates represent a point in time in the development process after which the3rules for making changes to the source code or related resources become more strict, which is4meant to help move a project forward towards a release.

5

109.

During the same October 2, 2023 call between Albertsons and Replenium, which

6

occurred the day prior to termination, Albertsons discussed the Banner Expansion Plan, which it

7

said was planned to commence on November 7, 2023. In that call, Albertsons informed

8

Replenium that the Replenium Platform’s expansion would occur so long as a “wallet project”

9

was complete; however, Albertsons never explained the nature of the “wallet project” to10

Replenium, or why the wallet project was a hurdle to expansion.

11

110.

On an October 3, 2023 call, where Pavlovich and Wuson verbally notified

12

Replenium of Albertsons’ intent to terminate the MSA, Pavlovich cited “difficult times, budget

13

constraints and an impending merger.” Thus, despite the announced Kroger merger being dangled

14

in front of Replenium as a reason to continue its investment, it was later expressly cited to15

Replenium as a reason to terminate the entire contractual relationship.

16

111.

When Replenium asked what would happen to Schedule & Save, Pavlovich

17

stunningly declared that Albertsons was prepared to continue to operate Schedule & Save with18

“internal functionality.”

19

112.

Shortly after the termination, while working with Albertsons’ transition team,

20

Replenium learned that while Albertsons was receiving assistance from Replenium in preparation

21

for the expansion of the Replenium Platform and regularly receiving Replenium’s Trade Secrets

22and other Confidential Information from its chief technology employees, Albertsons was

23

simultaneously and surreptitiously developing the Albertsons Platform. Despite the24

confidentiality protections in the MNDA and MSA, and Albertsons’ published Code of Ethics,

25

Albertsons took no apparent steps to protect Replenium’s Trade Secrets and other Confidential

26

Information during its development of the Albertsons Platform.
COMPLAINT AND DEMAND FOR JURY TRIAL - 28
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 29 of 42

1

113.

Indeed, Albertsons’ Code of Business Conduct & Ethics emphasizes that2“[p]rotecting information owned, licensed, or entrusted to the Company is not only vital to our

3

success, but our trustworthiness.” (emphasis added). It goes on to provide that employees who

4

have access to confidential information “[m]ust guard against the disclosure of that information,

5even to other associates unless authorized . . . .”

6

114.

While Albertsons’ formal policies highlight integrity and trust, the Albertsons team7

working with Replenium apparently acted in stark contrast to these principles. In fact, during a8meeting on October 4, 2023 to discuss the transition, an Albertsons employee informed Replenium

9that Albertsons instructed its employees not to discuss with or mention to Replenium that

10

Albertsons was developing the Albertsons Platform.

11

115.

On October 16, 2023, Replenium met with Gajial, an EVP for Albertsons, to12attempt to salvage the MSA. Replenium emphasized the success of the Replenium Platform up to

13

that point and reminded Gajial that the MNDA and MSA continued to protect Replenium’s

14

Confidential Information from any type of use in connection with Albertsons’ internal

15

development of a competing platform. Gaijal noted that Albertsons decided to build its own

16

platform due to two specific challenges –the user signup experience and earlier development

17

issues. Both of these issues, however, were entirely attributable to Albertsons, making clear that

18

these reasons were provided merely as pretext.

19

116.

On October 18, 2023, Albertsons launched the Albertsons Platform with a design20

and functionality that is strikingly similar to the Replenium Platform. Albertsons continued to21

refer to the platform as Schedule & Save.

22

117.

Over the course of the parties’ relationship, Replenium worked in various

23

capacities with no less than two hundred Albertsons employees and independent contractors. The

24

parties’ business teams had meetings at least every two weeks from Q1 2021 to Q4 2023. The

25

technology teams of Replenium and Albertsons met at least weekly, and often twice per week.

26

Replenium would have never disclosed information to Albertsons’ large team over this lengthy
COMPLAINT AND DEMAND FOR JURY TRIAL - 29
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 30 of 42

1

period without the protections provided by the MNDA and MSA, or, indeed, had it known that2

Albertsons was developing a competing platform.

3
4

VII.
118.

Replenium Suffers Significant Harm as a Result of Albertsons’ Conduct
Replenium invested millions of dollars annually to support the integration and5eventual launch of the Replenium Platform, causing close to ten million dollars of direct net losses

6

from its investment in supporting Albertsons, even after factoring in payments Replenium

7

received from Albertsons.

8

119.

Replenium undertook this significant financial burden based on the parties’

9

expectation that when the Replenium Platform was timely launched and expanded nationally,

10

Replenium would receive Service Fees that would compensate it for its work. Over three years,

11

Albertsons repeatedly encouraged Replenium to continue its work on the Replenium Platform—

12

despite Albertsons’ missed deadlines, countless delays, and millions in expenses incurred by

13

Replenium—precisely because Replenium would earn back the amount of its expenses and more

14

through Service Fees.

15

120.

Albertsons made these statements knowing that they were untrue. Albertsons’16

development of the Albertsons Platform laid bare the true goal of Albertsons’ insistence that

17

Replenium continue to endure significant development costs. Albertsons wanted continued access18

to Replenium’s Trade Secrets and other Confidential Information underlying the Replenium

19

Platform so that it could reap the benefit of the MSA, and the information shared under the20

MNDA and MSA, without having to pay Replenium Service Fees or any compensation for its

21

Trade Secrets and other Confidential Information.

22

121.

Albertsons has now expanded Schedule & Save under the Albertsons Platform,

23

developed using technology and know-how that it received from Replenium under the MNDA and

24

MSA, across the vast majority of its stores, including some of its largest banners, such as Safeway,

25

Vons, Albertsons, and Jewel-Osco.

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 30
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 31 of 42

1

122.

Albertsons misled and unfairly exercised its leverage over Replenium, including

2

through its false and misleading statements about its planned national expansion, to obtain3

Replenium’s Trade Secrets and other Confidential Information while it built its own competing

4internal solution. Albertsons knowingly placed Replenium in business distress, without any

5Service Fees or financial consideration for its use of that information.

6

COUNT I

7

Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq.

8
9
10
11
12

123.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.
124.

Replenium possessed confidential Trade Secrets relating to the Replenium

Platform.
125.

Replenium’s Trade Secrets consist of financial, business, scientific, technical,

13

economic, or engineering information, including patterns, plans, compilations, program devices,14

formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes,

15

whether tangible or intangible, which were stored, compiled, or memorialized physically,

16

electronically, graphically, photographically, or in writing which Replenium has taken reasonable17

measures to keep secret and which derives independent economic value, actual or potential, from18

not being generally known to, and not being readily ascertainable through proper means by,19another person who can obtain economic value from the disclosure or use of the Trade Secrets.

20
21
22

126.

Replenium has expended considerable time, effort, and expense in compiling anddeveloping its Trade Secrets.
127.

Replenium has undertaken reasonable methods to maintain the secrecy of its Trade23

Secrets, including entering into non-disclosure agreements with any party with whom it shared the24

information.

25

128.

26

Replenium entered into an MNDA with Albertsons, which required Albertsons tosafeguard and maintain the confidentiality of Replenium’s Trade Secrets.
COMPLAINT AND DEMAND FOR JURY TRIAL - 31
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 32 of 42

1
2
3
4
5

129.

Replenium also entered into the MSA with Albertsons, which reaffirmed

Albertsons’ confidentiality obligations.
130.

Replenium shared its Trade Secrets with Albertsons pursuant to the protections of

the MNDA and the MSA.
131.

Albertsons’ disclosure or use of Replenium’s Trade Secrets has been without the6express or implied consent of Replenium where, at the time of the disclosure or use, Albertsons

7knew or had reason to know—in light of the MNDA and MSA —that its knowledge of

8

Replenium’s Trade Secrets was acquired under circumstances giving rise to Albertsons’ duty to9maintain their secrecy or limit their use.

10

132.

Albertsons has exploited Replenium’s Trade Secrets to the benefit of Albertsons

11

and the detriment of Replenium in order to develop a full-basket auto-replenishment system and

12

unfairly compete with Replenium.

13

133.

Albertsons’ misappropriation of Replenium’s Trade Secrets was with knowledge

14

that such action was a breach of its obligations under the MNDA and MSA and its duty to limit its

15

use of the Trade Secrets. Despite this, Albertsons continued to utilize Replenium’s Trade Secrets

16

for its own benefit and endeavors.

17
18
19
20
21

134.

Albertsons’ misappropriation of Replenium’s Trade Secrets was and continues tobe reckless and malicious.
135.

As a direct and proximate result of Albertsons’ misappropriation of Replenium’s

Trade Secrets, Replenium has suffered, and continues to suffer, significant damages.
136.

There is no justification for Albertsons’ wrongful conduct, which is improper and22

taken for commercial benefit. Albertsons’ conduct has proximately and directly caused and will23

continue to cause irreparable harm to Replenium. Replenium has incurred additional harm in24

devoting time and resources to undo damage done by Albertsons and to prevent further harm.

25
26

137.

Replenium has been damaged as a result of Albertsons’ conduct and is entitled todamages in an amount to be proven at trial, as well as exemplary damages, injunctive relief or a
COMPLAINT AND DEMAND FOR JURY TRIAL - 32
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 33 of 42

1

reasonable royalty, any unjust enrichment not encompassed in the computation of Replenium’s

2

losses, and an award of attorneys’ fees pursuant to 18 U.S.C. § 1836(b)(3).

3

COUNT II

4

Washington Uniform Trade Secrets Act, R.C.W. § 19.108.010, et seq.

5
6
7
8
9

138.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.
139.

Replenium possessed confidential Trade Secrets relating to the Replenium

Platform.
140.

Replenium’s Trade Secrets consist of information, including a formula, pattern,

10compilation, program, device, method, technique or process that derives independent economic

11

value, actual or potential, from not being generally known to, and not being readily ascertainable

12by proper means by, other persons who can obtain economic value from their disclosure or use,

13

and are the subject of efforts that are reasonable under the circumstances to maintain their secrecy.

14
15
16

141.

Replenium has expended considerable time, effort, and expense in compiling anddeveloping the Trade Secrets.
142.

Replenium has undertaken reasonable methods to maintain the secrecy of its Trade17

Secrets, including entering into non-disclosure agreements with any party with whom it shared the18

information.

19

143.

20
21
22
23
24

Replenium entered into an MNDA with Albertsons, which required Albertsons tosafeguard and maintain the confidentiality of Replenium’s Trade Secrets.
144.

Replenium also entered into the MSA with Albertsons, which reaffirmed

Albertsons’ confidentiality obligations.
145.

Replenium shared its Trade Secrets with Albertsons pursuant to the protections of

the MNDA and the MSA.

25
26
COMPLAINT AND DEMAND FOR JURY TRIAL - 33
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 34 of 42

1

146.

Albertsons has exploited Replenium’s Trade Secrets to the benefit of Albertsons

2and the detriment of Replenium in order to develop a full-basket auto-replenishment system,

3

referred to herein as the Albertsons Platform, and unfairly compete with Replenium.

4

147.

Albertsons’ disclosure or use of Replenium’s Trade Secrets has been without the5express or implied consent of Replenium where, at the time of the disclosure or use, Albertsons

6knew or had reason to know—in light of the MNDA—that its knowledge of Replenium’s Trade

7

Secrets was acquired under circumstances giving rise to Albertsons’ duty to maintain their secrecy

8

or limit their use.

9

148.

Albertsons’ misappropriation of Replenium’s Trade Secrets was with knowledge

10

that such action was a breach of its obligations under the MNDA and its duty to limit its use of the11

Trade Secrets. Despite this, Albertsons continued to utilize Replenium’s Trade Secrets for its own

12benefit and endeavors.

13

149.

14
15
16
17

Albertsons’ misappropriation of Replenium’s Trade Secrets was and continues tobe willful and malicious.
150.

As a direct and proximate result of Albertsons’ misappropriation of Replenium’s

Trade Secrets, Replenium has suffered, and continues to suffer, significant damages.
151.

Albertsons’ misappropriation of Replenium’s Trade Secrets has caused Replenium

18

substantial injury, including, inter alia, actual damages, lost profits, harm to reputation,

19

competitive harm, and diminution in value of its Trade Secrets.

20

152.

Replenium has been damaged as a result of Albertsons’ conduct and is entitled to21

damages in an amount to be proven at trial, as well as exemplary damages, injunctive relief or a22

reasonably royalty, any unjust enrichment not encompassed in the computation of Replenium’s

23

losses, and an award of attorneys’ fees pursuant to R.C.W. § 19.108.030-40.

24
25
26
COMPLAINT AND DEMAND FOR JURY TRIAL - 34
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 35 of 42

1

COUNT III2

Breach of the MNDA and the Confidentiality Provisions of the MSA

3
4

153.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.

5

154.

Replenium and Albertsons are parties to the MNDA.

6

155.

The MNDA is a valid and binding contract.

7

156.

Pursuant to § 4 of the MNDA, Albertsons agreed to only “use Confidential

8

Information solely for the Purpose, and for no other purpose” and to not “export, reverse engineer,9

disassemble or decompile any prototypes software or other tangible objects that embody the other10

party’s Confidential Information.”

11

157.

“Purpose” pursuant to the MNDA was that “[t]he parties wish[ed] to share

12

information for the purpose of evaluating the suitability of entering into a business relationship or13

in furtherance of an existing business relationship.” MNDA § 1.

14

158.

Section 4 of the MNDA also prohibited Albertsons from disclosing the15

Confidential Information to any of its representatives outside of those who needed to know it for16

the MNDA’s defined Purpose.

17

159.

Replenium and Albertsons are also parties to the MSA.

18

160.

The MSA is a valid and binding contract.

19

161.

The MSA affirms, at section 9.1, that all confidential and proprietary information

20

disclosed by one party to the MSA to the other party “concerning or pertaining to the business of21

the disclosing party shall be subject to the terms of the [MNDA].”

22

162.

Further, section 11.3(c) of the MSA provides that “Albertsons will use its

23

reasonable efforts to protect Company’s Intellectual Property rights in the Services and will report24

promptly to Company any infringement or misappropriation of such rights of which Albertsons

25

becomes aware.”

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 35
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 36 of 42

1

163.

Section 11.6 of the MSA further provides that “Albertsons will not . . . (b) copy,

2

modify or create any derivative works based on the Services or (c) disassemble, decompile, or3

reverse engineer the Services or permit any third party to do so.”

4

164.

Albertsons breached the MNDA and MSA by failing to protect Replenium’s

5

Confidential Information and misusing Replenium’s Confidential Information to create the6

Albertsons Platform.

7

165.

8

Replenium suffered and will continue to suffer substantial damages as a result of

these breaches of contract.

9

COUNT IV

10

Breach of the MSA

11
12

166.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.

13

167.

Replenium and Albertsons are parties to the MSA.

14

168.

The MSA is a valid and binding contract.

15

169.

Under the MSA, and its incorporated SOWs as amended, Albertsons provided a16
17target Commercial Launch date of March 15, 2021.
170.

Commercial Launch was defined in the SOW as “the date mutually agreed to by

18

the parties on which Customers are able to begin placing Replenishment Orders in one or more

19

geographic or segmented markets. For the sake of clarity, the ability of Customers to place

20

Replenishment Orders as part of a friendly user trial of the Services does not constitute21

Commercial Launch.” Commercial Launch was further defined in Appendix B to the SOW as

22“Open service to public, including selected features detailed in Appendix C.”

23

171.

Further, Albertsons agreed to cooperate and assist Replenium in good faith to24

achieve a nationwide expansion of the Replenium Platform to the public. Specifically, SOW §1.3

25

provides: “Cooperation and Assistance. In order to enable Company to provide the Services

26[Albertsons] will: (a) provide Company with good faith cooperation and access to such
COMPLAINT AND DEMAND FOR JURY TRIAL - 36
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 37 of 42

1

information, facilities, and equipment as reasonably requested by Company from time to time,2

including, without limitation, providing Albertsons Content, personnel assistance, security access,3

and software interfaces to the Albertsons Sites; (b) cooperate with Company pursuant to the4

integration documents to be provided by Company; and (c) carry out in a timely manner all other

5

Albertsons obligations set forth in this Agreement.”

6
7
8

172.

SOW §1.6 also requires Albertsons to “maximize the number of Replenishment

Orders placed by Customers.”
173.

Replenium fulfilled its obligations under the MSA, devoting immense resources9

and investing significant man-hours and hundreds of thousands of dollars per month, including

10

labor and technical infrastructure costs to provide Albertsons with the automated replenishment

11

SaaS Services and the Replenium Platform.

12

174.

Albertsons breached the MSA by failing to cooperate with Replenium in good faith13

to accomplish the purpose of the MSA, failing to timely launch the Replenium Platform, failing to

14timely carry out its obligations under the MSA, failing to maximize the number of Replenishment

15

Orders placed by its customers, and by diverting its resources toward launching its own auto-

16

replenishment solution while requiring Replenium to continue to invest in a nationwide expansion

17

under the MSA.

18

175.

19

Replenium suffered and will continue to suffer substantial damages as a result of

this breach of the MSA by Albertsons.

20

COUNT V

21

Breach of the Implied Covenant of Good Faith and Fair Dealing

22
23

176.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.

24

177.

Replenium and Albertsons entered into the MSA.

25

178.

Every contract contains implied covenants of good faith and fair dealing, which is a26

presumption that the parties to the contract will deal with each other honestly, fairly, and in good
COMPLAINT AND DEMAND FOR JURY TRIAL - 37
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 38 of 42

1faith, so as to not destroy the rights of the other party or parties to receive the benefits of the2

contract. The implied covenants of good faith and fair dealing also prevent parties from3

unreasonably exercising discretion pursuant to a contract.
179.

4

The MSA was agreed upon for the purpose of Albertsons and Replenium working

5

together toward a nationwide expansion of the Replenium Platform, including the full set of6

service features described in the MSA.
180.

7

Albertsons had a duty to act in good faith and work toward a nationwide expansion

8of the Replenium Platform, with a full set of service features, consistent with the purpose of the

9

MSA.

10

181.

Albertsons destroyed the purpose of the MSA by acting in bad faith to delay the11national expansion of the Replenium Platform, failing to incorporate service features specified in

12

the SOW, failing to disclose to Replenium that Albertsons was simultaneously developing its own

13

auto-replenishment platform, failing to protect Replenium’s Trade Secrets and other Confidential

14

Information while developing its own auto-replenishment platform, using Replenium’s Trade

15

Secrets and other Confidential Information in connection with its development of the Albertsons

16

Platform, and terminating the MSA on the eve of Albertsons’ nationwide expansion of the17

Replenium Platform to deprive Replenium of the benefit of its bargained-for Services Fees.

18

182.

Albertsons was aware that Replenium would not have entered into, or continued to19

perform services under the MSA for three years, or shared Trade Secrets and other Confidential

20

Information, had it known that Albertsons would terminate the MSA prior to a nationwide

21

expansion or that Albertsons was planning to launch an internally developed auto-replenishment22

platform to replace the Replenium Platform.

23

183.

Albertsons repeatedly and intentionally delayed the launch and national expansion

24of the Replenium Platform while it used Replenium’s Trade Secrets and other Confidential

25

Information it obtained pursuant to the MNDA and MSA to create and launch the Albertsons

26
COMPLAINT AND DEMAND FOR JURY TRIAL - 38
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 39 of 42

1

Platform. In doing so, Albertsons intentionally deprived Replenium of the benefit of the bargain

2of the MSA.

3

184.

4

Replenium suffered and will continue to suffer substantial damages as a result ofAlbertsons’ breach of the implied covenants of good faith and fair dealing.

5

COUNT VI

6

Promissory Estoppel

7
8
9

185.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.
186.

Albertsons repeatedly represented to Replenium that Albertsons would engage in a

10

nationwide expansion of the Replenium Platform in Albertsons’ locations across the country and11that Replenium would receive Service Fees based on that expansion to compensate it for its losses

12during Albertsons’ contract delays.

13
14
15

187.

Replenium relied on Albertsons’ representations that Albertsons would conduct anationwide expansion of the Replenium Platform.
188.

Replenium’s reliance on Albertsons’ representations induced Replenium to16

continue its work on the Replenium Platform beyond its obligations under the MSA and to incur

17

additional substantial costs in order to continue to support the Replenium Platform.

18

189.

Albertsons specifically represented to Replenium that the Replenium Platform

19

would nationally expand on specific dates, including July 22, 2022 and February 15, 2023,

20

inducing Replenium to incur significant implementation costs in reliance on those representations.

21
22

190.

Replenium has suffered significant financial hardship and damages as a result ofAlbertsons’ failure to nationally expand the Replenium Platform.

23

COUNT IV

24

Unjust Enrichment

25
26

191.

Replenium incorporates by reference the allegations in the preceding paragraphs as

though fully set forth herein.
COMPLAINT AND DEMAND FOR JURY TRIAL - 39
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 40 of 42

1

192.

Albertsons obtained a benefit from Replenium in the form of services and2

confidential information that Replenium was not obligated to provide to Albertsons under any

3contract. Through three years of services and information sharing, Albertson received the know-4

how to build its own auto-replenishment platform.

5

193.

Replenium invested millions of dollars and countless hours and resources in6

providing Albertsons with the services and information it required of Replenium, costing

7

Replenium its investment and the opportunity to provides services to and profit from working with8

other retailers.

9

194.

If Albertsons had not received the benefit of Replenium’s knowledge, information,

10

technology, business logic, and know-how, it would have had to spend significant resources in an

11

attempt create this technology on its own or by paying another third party. Accordingly, it

12unjustly avoided costs through the creation of its Albertsons Platform.

13

195.

Albertsons appreciated, accepted, and retained the benefit it obtained under14

inequitable and unjust circumstances arising from Albertsons’ conduct toward Replenium,

15

including during the time that Albertson was building its own auto-replenishment platform that it

16

knew would deprive Replenium of the opportunity to be compensated for its services and17

information.

18

196.

Albertsons profited, and continues to profit, from Replenium’s services and19

information without providing Replenium with just compensation for the benefit received from

20

Replenium.

21

197.

Under the circumstances, it would be unjust and unfair for Albertsons to be22

permitted to retain any of the benefits obtained from Replenium without payment to Replenium.

23

PRAYER FOR RELIEF

24

Replenium prays that the Court:

25

A.

26

Enter judgment that Albertsons violated the Defend Trade Secrets Act by

misappropriating Replenium’s Trade Secrets;
COMPLAINT AND DEMAND FOR JURY TRIAL - 40
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 41 of 42

B.

1
2

by misappropriating Replenium’s Trade Secrets;C.

3
4

Enter judgment that the MNDA is valid and enforceable, and has been breached byAlbertsons, and that Replenium has been damaged as a result of Albertsons’ breach;D.

56Enter judgment that Albertsons violated the Washington Uniform Trade Secret Act

Enter judgment that the MSA is valid and enforceable, and has been breached byAlbertsons, and that Replenium has been damaged as a result of Albertsons’ breach;E.

7Enter judgment that Albertsons breached the implied covenant of good faith and8fair dealing implied in the MSA, and that Replenium has been damaged as a result of Albertsons’

9

breach;

10
11
12

F.

Enter judgment that Albertsons made promises to Replenium, upon which

Replenium reasonably relied to its detriment;
G.

Enter judgment that Albertsons has been unjustly enriched as a result of unjustly

13

avoided costs to build the Albertsons Platform and by reaping the benefit of Replenium’s services

14

and information without just compensation;

15

H.

16

determined at trial;

17

I.

Award Replenium exemplary double damages as authorized by law;18

J.

Award Replenium attorneys’ fees in such other amounts as may be proven by trial

19

Award Replenium a monetary judgment against Albertsons in an amount to beor as otherwise provided by law;

20

K.

Award Replenium pre- and post-judgment interest; and21

L.

Grant such other and further relief as this Court deems just and proper.

22
23
24
25
26
COMPLAINT AND DEMAND FOR JURY TRIAL - 41
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001

Case 2:24-cv-01281 Document 1 Filed 08/19/24 Page 42 of 42

1
2

JURY TRIAL DEMANDED
Plaintiff hereby demands a trial by jury.

3
4

DATED this 19th day of August, 2024.

5

SUMMIT LAW GROUP, PLLC
By s/ Lawrence C. Locker
Lawrence C. Locker, WSBA #15819
Rebecca Singleton, WSBA #57719
315 Fifth Avenue S., Suite 1000
Seattle, WA 98104-2682
Tel.: (206) 676-7000
larryl@summitlaw.com
rebeccas@summitlaw.com

6
7
8
9
10

SPIRO HARRISON & NELSON

11

Jason C. Spiro(Pro Hac Vice application forthcoming)
Meredith Sharoky Paley(Pro Hac Vice application forthcoming)
40 Exchange Place, Suite 1404
New York, NY 10005
Tel.: (973) 232-0881
Fac.: (973) 232-0887
jspiro@shnlegal.com
mpaley@shnlegal.com

12
13
14
15
16
17

Attorneys for Plaintiff Replenium Inc.

18
19
20
21
22
23
24
25
26
COMPLAINT AND DEMAND FOR JURY TRIAL - 42
CASE NO. 2:24-CV-1281

SUMMIT LAW GROUP, PLLC
315 FIFTH AVENUE SOUTH, SUITE 1000
SEATTLE, WASHINGTON 98104-2682
Telephone: (206) 676-7000
Fax: (206) 676-7001