9. Confidential Material may be used only for the purposes of the
litigation of this action (including mediation, arbitration and appeals) and shall not
be used for any business or other purpose except upon written consent of both the
producing and designating party (if different) or by the order of Court.

10. At the conclusion of this action, all Confidential Material, as well as
any copies, excerpts or summaries thereof (including but not limited to excerpts or
summaries in pleadings, briefs or memoranda, except attorney work product), shall
be destroyed or, at the option of the person or party who designated such
Confidential Material, returned to that person or party upon request. Counsel of
record may retain one copy of any document containing Confidential Material filed
with the court, but as to such documents the provisions of this Order shall remain
in effect. Pursuant to Local Rule 26.2(c), any Confidential Material in possession of
the court shall be placed in the public file 63 days after final disposition of this case,
including appeals, unless the party designating the Confidential Material makes a
written request or motion that the documents be returned or destroyed.

11. The termination of the proceedings in this action shall not relieve any
person or party to whom any Confidential Material has been disclosed from the
obligations of this Order.

12. Inadvertent production of any document or other information without
a designation of confidentiality will not be deemed to waive a party’s claim as to its
confidential nature; provided, however, that the party later designating the

document, transcript or other information as “Confidential” shall take whatever

7



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MS PRODUCE, INC.,

Plaintiff, Case No, 02-C-8372
vs,
Judge John W. Darrah
BURGER KING CORPORATION,
RESTAURANT SERVICES, INC.,
and REINHART FOODSERVICE, INC.,

Mag. Judge Morton Denlow

rr
may 1 3 2003

Defendants.

ee

STIPULATED PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

Plaintiff MS Produce, Inc. (MSP) and Defendants Burger King Corporation
(BKC), Restaurant Services, Inc. (RSI), and Reinhart Foodservice, Inc. (Reinhart),
through their respective counsel, stipulate to the entry of this Order for the
protection of proprietary information, trade secrets, and other confidential
technical, financial, or commercial information that may be produced or otherwise
disclosed by any party or non-party to this action during the course of this
proceeding,

1, All documents, testimony and other information which have been, or
will be, disclosed by the parties and by any non-parties during the course of this
action, including documents, testimony and information disclosed during discovery,
a hearing, a trial or in any other way, shall be handled in accordance with this

Stipulated Protective Order.

Lo



RESTAURANT SERVICES, INC. REINHART FOODSERVICES, INC.

wy Doe bie be

David B, Goroff, Esq. Eric J. Van Vugt, Esq.
Martin J. Bishop, Esq. Quarles & Brady

Foley & Lardner 411 East Wisconsin Avenue
330 N. Wabash Ave,, Suite 3300 Milwaukee, Wisconsin 53202
Chicago, Ilincis 60611 (414) 277-5000

(312) 755-1925

IT IS SO ORD ERED.

Ve a Dnt.

a Hoxjprable Sh W. Darrah, U.S.DJ.



facility. Fittz stated that he did not want Plaintiff to receive Burger King/RSI approval. After the
inspection, Fittz instructed Plaintiffto make approximately $10,000.00 worth of facility changes and
further instructed Plaintiff to alter the way it received product recall protocols, Plaintiff made the
changes.

After Fittz’s inspection, Redi-Cut Foods, Inc., a Burger King/RSI-approved vendor, refused
to do any business with Plaintiff due to its “non-approved” status; but Redi-Cut later admitted that
it had been instructed by Burger King and RSI not to sell to Plaintiff, specifically mentioning Fittz
by name. Due to Redi-Cut’s refusal to do business with Plaintiff, Plaintiff incurred greater
transportation costs to obtain its produce elsewhere as well as other unnecessary procurement and
operational challenges. Additionally, Plaintiff was unable to purchase produce in boxes bearing the
Burger King logo because it was not an approved distributor.

On August 12, 2001, Kubeck sent Jaro a letter, which stated that a new contract would be
ready as soon as AmeriKing was prepared to sign it. On August 23, 2001, Jaro, on behalf of
AmeriKing, entered into two contracts with Plaintiff, one entitled “MS Produce, Inc, Credit, Terms
and Account Conditions Letter” and another styled simply “Agreement”, The Credit, Terms and
Account Conditions Letter stated (with the included emphasis):

Pursuant to this Letter, the attached Agreement and Attachment A, which arc

incorporated herein, and subject to MS Produce, Inc. 1.) Attaining and maintaining

an approved distributor status with Burger King Corporation, and 2.) AmeriKing-

Burger King’s positive performance evaluation of MS Produce, Inc.’s produce

product/quality and 6A-3P deliver time service levels, MS Produce, Inc. will

exclusively serve all AMERIKING-BURGER KING/CHICAGO, IL. AREA

RESTAURANT locations between August 27, 2001 and December 31, 2005. This

Letter, the attached Agreement and Attachment A, can be cancelled by either/both

parties, at any time, for any reason(s), with ninety... Days written notice to the

other party, and is binding upon both parties’ successors, heirs and assigns.
However, MS Produce, Inc. must attain and maintain an approved distributor status

4.



steps are reasonably necessary to inform the other parties hereto of the
“Confidential” designation. Except as provided in Paragraph 4, disclosure of such
document or other information by any other person or party prior to receipt of such
notification shall not be deemed a violation of the provisions of this Order.

13. Nothing herein shall preclude any person or party from applying to
this Court, with notice to all parties, for a modification of this Order, or shall
preclude any modification of this Order with the consent of all parties.

14. The parties and their respective law firms, by executing a copy of this
Stipulated Protective Order, undertake to abide by and he bound by its provisions
and to use due care to see that its provisions are known and strictly adhered to by

those under its supervision or control.
Dated: March !3 , 2003.

MS PRODUCE, INC. BURGER KING CORPORATION

By: 2

John A. Sopuch, II, Esq. i :

Ellen G, Robinson, Esq. Christopher W. Carmichael, Esq.
Sopuch Arnett Higgins & Gaubert, LLP Holland & Knight LLC

3118S. Wacker Drive, Suite 5600 55 West Monroe, Suite 800
Chicago, Llinois 60606 Chicago, Illinois 6060

(812) 922-0900 (312) 263-3600



RESTAURANT SERVICES, INC.

By:

David B, Goroff, Esq.

Martin J. Bishop, Esq.

Foley & Lardner

830 N. Wabash Ave., Suite 3300
Chicago, Dlinois 60611

(312) 755-1925

REINHART FOODSERVICES, INC.

Eri¢ Esq.
431 East Wisconsin Avenue

ilwaukee, Wisconsin 53202
(414) 277-5000

IT IS SO ORDERED.

The Honorable John W. Darrah, U.S.DJ.


e) the United States District Court for the Northern District of
Illinois, the United States Court of Appeals for the Seventh Circuit, the
United States Supreme Court, and members of the jury in this case;

f) court reporters, stenographers and videographers;

g) witnesses attending or testifying at any deposition or court
proceeding in this case, provided that they agree to be subject to the terms of
this Stipulated Protective Order by signing a copy of the document attached
as Exhibit A; and

h) any other person to whom the parties agree in writing or as the
Court may order.

The parties agree that the employees of the court or the Clerk's office have no
duty to maintain the confidentiality of any information contained in any papers
filed with the Court, except as set forth in Paragraph 7 below. The parties further
agree to retain all confidentiality statements signed by persons to whom
Confidential Material was disclosed pursuant to this paragraph and to produce such
agreements, if requested, to counsel for the designating party after the final
disposition of this case, including appeals.

7. In applications and motions to the Court, all submissions of
Confidential Material shall be filed with the Court in sealed enclosures pursuant to

Local Rule 5.8 and shall be accompanied by a copy of this Order. The material shall

be filed in an envelope bearing: (1) the title and case number of this action; (2) the



question of law for the court, and the issue of whether the privilege was abused has been a question
of fact for the jury.” Zdeb v, Baxter Int'l, Inc., 297 Ill. App. 3d 622, 631 (1998).

At present, the record is insufficient for the Court to determine whcther Burger King’s or
RSI’s conduct was privileged. This issue is better resolved at a later stage in this litigation.
However, even if Burger King and RSI were privileged to interfere in the contract betwecn
AmeriKing and Plaintiff, as was discussed above, the complaint adequately pleads that Burger King
acted intentionally and without justification in revoking Plaintiff's “approved distributor status”.
The complaint also alleges that RSI, in response to pressure from Reinhart, pressured Burger King
to revoke Plaintiff's “approved distributor status” in order to eliminate competitors in the produce
market for Burger King restaurants in the Midwest. These allegations are sufficient to plead the
requisite malice, and Burger King’s and RSI’s motions are denied on this ground.

Count Hf

Count Il alleges a claim for tortious interference with business relationships, In order to state
a claim for interference with business relationships, Plaintiff must allege “‘(1) [its] reasonable
expectation of entering into a valid business relationship; (2) the defendant’s knowledge of . . .
[Plaintiff's expectancy; (3) purposeful interference by the defendant that prevents . . . [P]laintiff’s
legitimate expectancy from ripening into a valid business relationship; and (4) damages to...
(P]laintiff resulting from such interference.’” Int'l Marketing, Lid. v. Archer-Daniels-Midland Co.,
Inc., 192 F.3d 724, 731 (7th Cir. 1999) (quoting Dowd & Dowd, Lid. v. Gleason, 181 Ul. 2d 460, 484
(1998)).

Count Urealleges the previous allegations and further alleges that (1) Defendants were aware

that AmeriKing and Plaintiff were involved in forming a joint venture which would result in the

9.



When Kubeck contacted Burnham upon receiving the September 7, 2001 letter, it was made
clear that “outside forces” and “insidc bureaucrats” were sccking to interfere with Plaintiff's growth
and its contract with AmeriKing. AmeriKing informed Plaintiff that it should continue to supply
AmenKing.

Hernando Manrique, apparently an AmeriKing employec, pursuant to instructions from
Burger King, RSI and Reinhart, began to manufacture complaints against Plaintiff. When Plaintiff
learned of the complaints, Kubeck attempted to contact Manrique to discuss them. Manrique
ignored Kubeck.

On November 30, 2001, Manrique sent a letter stating, “This letter is to advise you of
AmeriKing’s election to terminate the Agreement effective December 20, 2001, as a result of,
without limitation, MS Produce’s failure to attain approved distributor status with Burger King . .
..” (Id. at Ex E.) When Kubeck contacted Jaro and told Jaro that termination of the contract would
devastate Plaintiff when it had been doing a great job, Jaro admitted that there was “too much noise”
from Burger King, RSI and Reinhart.

As a result of the termination of Plaintiff's contract with AmeriKing, Plaintiff laid off most
of its staff and pared down its operations dramatically. Several deals, which Defendants were aware
of, were lost as a result of the state of Plaintiff's affairs after AmeriKing terminated the contract,

DISCUSSION
Count 1

Burger King argues that Count I fails to allege a tortious interference with contract claim

because there was no breach of the contract.

In order to state a tortious interference with contract claim, Plaintiff must allege “‘(1) the

-6-



with Burger King Corporation. In the event that MS Produce, Inc. does not attain,

or attains and then loses its approved distributor status from Burger King

Corporation, or does not perform to acceptable produce product/quality and 6A-3P

delivery time service levels, AmeriKing-Burger King can cancel this Letter and the

attached Agreement with twenty . . . days written notice to MS Produce, Inc. ...
(RSI’s Mem. Supp. Mot. Dismiss Ex. C) (footnote omitted), Plaintiff continued to serve
AmeriKing’s Chicagoland restaurants.

On August 31, 2001, Bruce Burnham, an employee of Burger King, informed Plaintiff in a
letter that it had achieved approved distributor status. The August 31, 2001 letter noted that such
approval (1) was limited to a twelve-month expanded test, beginning September 1, 2001; (2)
required Plaintiff to “source” produce from suppliers in Burger King’s Approved Brands List and
to deliver the produce in boxcs bearing the Burger King logo; and (3) required Plaintiff to participate
in inspections of its facilities.

On September 7, 2001, Burnham sent another letter, which revoked Plaintiff's approved
distributor status effective September 11, 2001. ‘The September 7, 2001 letter stated that:

[i]t has come to my attention that MS Produce has been soliciting business from

Burger King franchised restaurants other than those owned by AmeriKing, Inc.

These activities are in direct violation of the terms set forth in my August 31, 2001

letter to you which govern MS Produce’s approval to distribute produce to certain

Burger King restaurants on a limited test basis.

Therefore, Burger King Corporation... has decided to place the produce distribution

test on hold. Effective Tuesday September 11", MS Produce is no longer approved

to distribute or sell produce to the Burger King restaurant system. [Burger King] will

further evaluate whether to continue the produce test and notify you of its decision

as soon as possible.

(Burger King’s Mem. Supp. Mot. Dismiss Ex.D.) However, some of these franchisces had contacted

Kubcck as carly as 1999. The revocation of Plaintiff's approved distributor status occurred as a

result of Reinhart’s pressure on RSI to eliminate Reinhart’s competitors.

—s



words “Restricted Document Pursuant to LR26.2”; (3) a statement substantially in

the following form:
THIS ENVELOPE CONTAINS MATERIALS SUBJECT TO A
PROTECTIVE ORDER ENTERED IN THIS ACTION, ITIS NOT
TO BE OPENED, NOR ARE ITS CONTENTS TO BE DISPLAYED,

REVEALED, OR MADE PUBLIC, EXCEPT BY ORDER OF THE COURT;
and (4) the signature of the attorney of record filing the document. The submission
shall indicate clearly which portions of the filed materials are designated as
confidential. A party intending to rely upon or attach Confidential Material to
dispositive motions shall either: (a) inform the party that originally designated the
document 14 days prior to filing the motion or (b) file the documents separately
under seal with the notation that they shall become public 14 days thereafter unless
the party who designated the document obtains a court order sealing the
documents.

8. If any person or party subject to this Order receives a subpoena or
other request for Confidential Material, that person or party shall (i) within 3 days
notify all parties to the litigation and any third party who has designated
Confidential Material that a subpoena requesting Confidential Material was
received and (ii) that person or party shall not respond to the subpoena or other
discovery request before its return date, If any person or party files a motion to

intervene prior to the return date, then the Confidential Material shall not be

produced until the court rules upon any and all objections to the subpoena or other

discovery request and until any appeals from such ruling have been exhausted.



Moreover, Count I alleges that AmeriKing told Plaintiff to continue to perform under the
contract despite Burger King’s revocation of “approved distributor status” and that Plaintiff did
indeed perform its obligations under the contract. This allegation reasonably supports the inference
that AmeriKing orally modified the contract. Czupla v. Commerz Futures, LLC, 114 F. Supp. 2715,
719 (N.D. Ill. 2000) (noting that, under Illinois law, oral modifications are permissible and holding
that complaint sufficiently alleged waiver of a contract provision requiring written modifications).
Therefore, Plaintiff adequately alleges a claim for tortious interference with contract; and RSI’s and
Burger King’s motions are denied on this ground,

Burger King and RSI also move to dismiss Count I, arguing that their conduct was privileged.

“[A]n individual may be privileged to interfere with a contract when he acts to protect a
conflicting interest which is considered to be of equal or greater value than that accorded the
contractual rights involved.” Langer v. Becker, 176 Ll. App. 3d 745, 750 (1988). Courts consider
the following factors in determining whether a defendant’s conduct is privileged: (1) the nature of
the defendant’s conduct, (2) the defendant’s motive, (3) the interests of the other with which the
defendant’s conduct interferes, (4) the interests sought to be advanced by the defendant, (5) the social
interests in protecting the freedom of action of the defendant and the contractual interests of the
other, (6) the proximity or remoteness of the defendant’s conduct to the interference, and (7) the
telations between the parties, Langer, 176 Ill. App. 3d at 750. If the defendant’s conduct is
privileged, the plaintiff bears the burden of pleading and proving that the defendant’s conduct was
unjustified or malicious. f4P/ Llealth Care Servs., Inc. 131 Ill. 2d at 156. To plead malice, a plaintiff
must plead that the defendant’s conduct was intentional and unjustified. HP/ Health Care Servs.,

Inc,, 131 ll. 2d at 157. “‘In Illinois, the issue of whether a qualified privilege cxists has becn a

-2-



EXHIBIT A
CONFIDENTIALITY AGREEMENT
I hereby acknowledge that I have read and am familiar with the terms and

conditions of the Stipulated Protective Order Regarding Confidential Information in

the case of MS Produce, Inc. v. Burger King Corp. et_al., No. 02-C-8372, currently

pending in the United States District Court for the Northern District of Illinois. I
hereby agree to be bound by and to comply with the terms of that Order and hereby
consent to the jurisdiction of the Northern District of Illinois for the purpose of any
proceedings relating to performance under, compliance with, or violation of that

Order.

Name

[PRINT]

Signature

Business Address

Residence Address

Dated: , 2003

HII #203798 v1



Me
a] Misty Onder Form (09/97)
United States District Court, Northern District of Illinois
Name of Assigned Judge ‘a Sitting Judge if Other
or Magistrate Tlge John W. Darrah than Assigned Judge
CASE NUMBER 02 C 8372 DATE 5/8/2003
CASE MS PRODUCE, INC. vs. BURGER KING CORPORTION
TITLE
[in the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) stute briefly the namre
MOTION: of the motion being presented.)

DOCKET ENTRY:

eo) Oo Filed motion of | use listing in “Motion” box above.]

(2) qd Brief in support of motion due.

(3) Oo Answer bricf to motion due____. Reply to answer bricfdue__

(4) a Ruling/Hearingon___—_ set for at

(3) a Status hearing[held/continucd to] [sct for/te-set for] on setfor at _

(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__— set for__ at
(7) oO Trial[set for/re-set for] on _ all

(8) oO [Bench/Jury trial] [Hearing] held/continued to sat

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CIFRCPA(m) ClLocal Rule 41.1 CFRCP41(a)(1) CO FRCP41(a)(2).

(10) WW (Otherdocketentry) Status hearing held and continued to 6/12/03 at 9:00 a.m, Enter Memorandum
Opinion And Order. Burger King Corporation’s and Restanrant Services, Inc.’s motions to dismiss are
denied. Defendants’ answer to be filed by 5/29/03. Parties to exchange rule 26 disclosures by 5/29/03.
Enter stipulated protective order regarding confidential information.

al) [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

» notices requir
No notices required. umber of notices

Notices mailed by judge's staff My 12 e ‘

Notified counsel by telephone.

ayy ducketed

/ Dacketing to mail notices.

docketiye deputy initls

Mail AQ 450 form, LP pecs Sen

Copy to judge/magistrate judge.

Vv courtroom
bk deputy's
initials

Date/time received in
central Clerk's Office

nailing depuly initials



Count IH

“Under Illinois law, ‘civil conspiracy arises where two or more persons combine to
accomplish by concerted action cither a lawful purpose through unlawful means or an unlawful
purpose through lawful means,"” Jsraeli Aircraft Indus., Ltd., 850 F, Supp. at 693 (quoting Belkow
v. Celotex Corp., 722 F. Supp. 1547, 1550 (N.D. Ill. 1989)).

Count IIT realleges the previous allegations in the complaint and further alleges that
Defendants “acted in concert to accomplish an unlawful purpose and/or a lawful purpose through
unlawful means, namely to destroy [Plaintiff] and to remove it as a competitor”; as carly as May
2001, Defendants willfully, wantonly and maliciously entered into unlawful contracts and engaged
in an unlawful and fraudulent combination and conspiracy by interfering with Plaintiff's contracts
and business relationships, and, as a result of Defendants’ conduct, Plaintiff sustained damages.
(Compl. {{] 61-65.)

Count II[ adequately states a claim for civil conspiracy. As set out above, Counts [ and II
state claims for tortious interference with contract and tortious interference with business
relationships. The allegations in the complaint reasonably support the inference that Burger King,
RSI and Reinhart agreed to climinate competitors in the produce market for Burger King restaurants
in the Midwest and that they interfered with Plaintiff's contract and prospective contract with
AmeriKing in furtherance of that agreement. Therefore, Burger King’s and RSI's motions to dismiss

are denied as to Count Ii.

-l]-


formation of a company that would distribute products to AmeriKing restaurants and other
restaurants; (2) Defendants were aware that the deal would enable Plaintiff to provide produce to
other Burger King franchises; (3) Defendants were aware that Plaintiff had several other deals
pending as a result of its current and prospective contracts with AmeriKing; (4) Defendants
maliciously, wantonly, and willfully caused AmeriKing to breach its agreement with Plaintiff
without any justification or privilege; and (5) Plaintiff sustained damages as a result of Defendants’
conduct. (Compl. 4] 55-60.)

Count II adequately pleads a claim for tortious interference with business relationships.
“The tort requires ‘an allegation of conduct directed by the defendant toward a third party through
which the defendant purposely causes that third party not to enter into or continue with a prospective
contractual relationship with the plaintiff.” Israeli Aircraft Indus., Lid. v. Sanwa Bus. Credit Corp.,
850 F. Supp. 686, 692-93 (N.D. Il], 1993) (quoting Westland v. Sero of New Haven, Inc., 601 F.
Supp. 163, 166 (N.D. TIl. 1985)), aff'd, 16 F.3d 198 (7th Cir. 1994). [lere, Count TI, as well as the
complaint as a whole, alleges that Burger King, in response to pressure from RSI and, indirectly,
Reinhart, revoked Plaintiff’s “approved distributor status” to eliminate competition. Count II also
alleges that Burger King and RSI were aware of the pending venture between AmeriKing and
Plaintiff. It can be reasonably inferred from the allegations in the complaint that Burger King
revoked Plaintiff's “approved distributor status” in order to cause AmeriKing not to enter into the
proposed joint venture with Plaintiff. Furthermore, Count alleges that Plaintiff Jost other business
as a result of the breach by AmeriKing. Therefore, Count II adequately states a claim for tortious
interference with business relationships; and Burger King’s and RSI’s motions are denied as to

Count IT.

-10-


existence of a valid and cnforccable contract between the plaintiff and another; (2) the defendant's
awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of
a breach of the contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful
conduct; and (5) damages.’” HP! Health Care Servs., inc. v. Mt. Vernon Hosp., Inc., 13) M. 2d 145,
154 (1989) (quoting Prudential Ins. Co. v. Van Matre, 158 Ill. App. 3d 298, 304 (1987)).

Count | realleges the previous allegations of the complaint. Count | alleges that (1)
AmeriKing cntered into a valid and binding agreement with Plaintiffon August 23, 2001; (2) Burger
King, RSI and Reinhart were aware of that contract; (3) Burger King, RSI and Reimhart wrongfully
and intentionally caused AmeriKing to breach the contract; (4) but for Burger King’s, RSI’s and
Reinhart’s interference, AmeriKing would have fulfilled its contract with Plaintiff; (5) Burger
King’s, RSI’s and Reinhart’s actions were willful, wanton and malicious; and (6) as a result, Plaintiff
sustained $5,000,000.00 in lost profits. (Compl. {ff 48-54.) The complaint alleges that Burger King
revoked Plaintiff's “approved distributor status” to eliminate competitors of Reinhart and RS1in the
produce market for Burger King restaurants in the Midwest. (Compl. § 36.)

Count I adequately alleges a claim for tortious interference with contract. Count I alleges the
existence of a yalid and enforceable contract between Plaintiff and AmeriKing; that Burger King,
RSI, and Reinhart were aware of the contract; that Burger King revoked Plaintiff's “approved.
distributor status” to climinate Plaintiff as a competitor of Reinhart and RSI in the produce market
for Burger King restaurants in the Midwest; that AmeriKing terminated the contract with Plaintiff
as a result of Burger King’s revocation of “approved distributor status”; and that Plaintiff was
damaged. Count I alleges that Burger King’s revocation of Plaintiff's “approved distributor status”

was unjustificd and done to induce AmeriKing to terminate the contract.

7



steps are reasonably necessary to inform the other parties hereto of the
“Confidential” designation. Except as provided in Paragraph 4, disclosure of such
document or other information by any other person or party prior to receipt of such
notification shall not be deemed a violation of the provisions of this Order.

18. Nathing herein shall preclude any person or party from applying to
this Court, with notice to all parties, for a modification of this Order, or shall
preclude any modification of this Order with the consent of all parties.

14. The parties and their respective law firms, by executing a copy of this
Stipulated Protective Order, undertake to abide by and be bound by ita provisiang
and to use due care to see that its provisions are known and strictly adhered to by

thosa under its supervision or control.

Dated: March |B , 2003.

MS PRODUCE, INC, BURGER KING CORPORATION
By: YnLh View By

John A. Sopuch, III, Esq. Ww Eliot Porter, Esq:

Ellen G. Robinson, Esq. Obristopher W. Carmichael, Esq.
Sopuch Amett Higgins & Gaubert, LLP Holland & Knight LLC

811 6. Wacker Drive, Suite 5600 55 West Monroe, Suite 800
Chicago, Diinois 60606 Chicago, lineis 6060

(312) 922-0800 (812) 263-8600


Plaintiff is a wholesale produce distribution company. Beginning in or around 1999,
Plaintiff's employees approached AmeriKing, introducing Plaintiff’s produce program as a way to
improve AmeriKing’s overall produce quality and service levels and provide significant savings.
Beginning in 2000, Plaintiff's president, James J. Kubeck, discussed the produce program with Larry
Jaro, the then-Chainman and Chief Executive Officer of AmeriKing. Kubeck told Jaro that the
produce program would allow AmeriKing to share Plaintiff's profits by joint venturing in a non-
produce procurement, distribution and pricing system, which would be developed after establishing
its produce program at AmeriKing. In or around late 2000, Kubeck and Jaro began negotiating a
contract.

In February 2001, Plaintiff received a trial contract’ trom AmeriKing, which provided for
Plaintiff to supply produce to forty-one Chicagoland Burger King restaurants owned and operated
by AmcriKing for three months. Subsequently, these restaurants reported produce of superior quality
and better service at a cheaper price. Duc to the favorable results of the trial contract, the tnal
contract was extended to a month-to-month arrangement.

At that time, Plaintiff was not an approved vendor. On or around May 1, 2001, AmeniKing
informed Plaintiff that Plaintiff would receive Burger King’s and RSI’s approval ifa Burger King
sponsored and supervised inspection found Plaintiff's facility complied with Burger King/RSI

regulations. On or around May 22, 2001, Ken Fittz, a Burger King employee, inspected Plaintiff's

‘Many of the documents referrcd to in the complaint are not attached as exhibits.
However, they are attached to Defendants’ motions to dismiss. Documents attached to a motion
to dismiss will be considered part of the pleadings if they are referred to in the complaint and are
central to its claims. Rosenblum v. Travelbyus.com Lid., 299 F.3d 657, 661 (7th Cir. 2002), The
complaint expressly refers to these documents; and, therefore, they will be considered part of the
pleadings.

-3-



2, The following terms shall have the following meanings:

a) “Documents” means all written, recorded or graphic matter and
any other tangible material, including but not limited to interrogatory
answers, demands to admit and responses thereto, and documents produced
in this action by any party or non-party whether pursuant to discovery
request, subpoena or by agreement.

b) “Transcript” means the transcript of any testimony, and the
testimony itself, given by or on behalf of the parties and any non-parties in
this action.

¢) “Confidential Material” means any document, discovery
response, testimony or transcript designated as “Confidential” pursuant to
Paragraph 3, and all information contained therein or derived therefrom,
including but not limited to any copies, excerpts or summaries thereof.

3. Any party or non-party in this action may designate as “Confidential”
any document, discovery responsc, testimony or transcript that it in good faith
believes to contain: (1) a trade secret, (2) confidential information entitled to
protection under the Federal Rules of Civil Procedure or Rules of Evidence, or (3)
commercial information, the disclosure of which would or might adversely affect
business dealings and competitive positions. A designation of confidentiality may
be made by any party, whether or not that party produced the document or
constituted the source of the testimony, and such designation shall be made (a) at
the time of production, by stamping the word “CONFIDENTIAL” on each page of

2



entry of an order redesignating or de-designating the material and during the
pendency of any writ or petition filed within the ten-day period.

6. Access to Confidential Material shall be restricted to the following
“Qualified Persons”:

a) the employees of any party to this action who are assisting
counsel in the prosecution and defense of this case;

b) third-party witnesses, whether or not in the context of a
deposition or hearing, who previously authored, received, or otherwise
became privy to the Confidential Material;

c) counsel of record for the parties and supporting personnel
employed by such counsel, including paralegals, legal translators, legal
secretaries, data entry clerks, or law clerks, Counsel are responsible for
informing such personnel of the provisions of this Order and the necessity of
maintaining the confidentiality of the information.

d) independent experts, consultants, or advisors who are employed
or retained by counsel for the parties to this action solely for the purpose of
this litigation, including but not limited to proposed expert witnesses with
whom counsel deems it necessary to consult concerning investigative,
technical, financial or other aspects of this case, provided that these persons

agree to be subject to the terms of this Stipulated Protective Order by signing

a document in the form of Exhibit A (attached);



the facts upon which he bases his claim,’. . . he must ‘sct out sufficient factual maiter to outline the

elements of his cause of action or claim, proof of which is essential to his recovery.” Benson v.
Cady, 761 F.2d 335, 338 (7th Cir, 1985) (internal citation omitted). A complaint will not avoid
dismissal if it contains “bare legal conclusions” absent facts outlining the basis of the claims.
Perkins v. Silverstein, 939 F.2d 463, 467 (7th Cir. 1991).
BACKGRO

For purposes of these Motions to Distniss, the following allegations arc taken as truc.

Plaintiff is an Illinois corporation with its principal place of business in Lyons, Tllinois.
Burger King is a Florida corporation with its principal place of business in Miami, Florida. RSL is
a Delaware corporation with its principal place of business in Coral Gables, Florida, Reinhart is a
Wisconsin corporation with its principal place of business in LaCrosse, Wisconsin.

Burger King is one the largest restaurant operators in the world. RSI was formed by Burger
King and Burger King franchisees in 1991 to act as their exclusive purchasing agent for all Burger
King restaurants in the United States. RSI negotiates contracts annually with a select number of
Burger King-approved vendors and distributors. These approved vendors sell approved products at
approved prices to approved distributors. The approved distributors approved products in various
areas of the country to Burger King restaurants at final selling prices approved by Burger King and
RSL One of the approved products that is sold to Burger King franchisces is produce, which
includes onions, lettuce and tomatocs.

Reinhart is a Burger King approved distributor who sells products to most of the Burger King
restaurants owned and operated by AmeriKing, a Delaware corporation that is one of the largest

franchisees of Burger King restaurants.

-2-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MS PRODUCE, INC.,

Plaintiff,
Case No. 02 C 8372
v.
Honorable John W, Darrah
BURGER KING CORPORATION;
RESTAURANT SERVICES, INC.; and
REINHART FOODSERVICE, INC.,

nm 9
MAY 1 2 2003

Plaintiff, MS Produce, Inc. (“Plaintiff”), filed a threc-count complaint against Defendants,

Defendants.

we SSS SS SS

MEMORANDUM OPINION AND ORDER

Burger King Corporation (“Burger King”); Restaurant Services, Inc. (“RSI”); and Reinhart
Foodservice, Inc. (“Reinhart”), alleging tortious interference with contract (Count I), tortious
interference with business relationships (Count II), and conspiracy to tortiously interfere (Count III).
Burger King and RSI move, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the
complaint. For the rcasons that follow, Burger King’s and RSI’s Motions to Dismiss are denied.
LEGAL STANDARD

When considering a motion to dismiss, well-pleaded allegations in the complaint are accepted
as true. Turner/Ozanne v. Hyman/Power, \11 F.3d 1312, 1319 (7th Cir. 1997). Any ambiguities
in the complaint are construed in favor of the plaintiff. Kelly v. Crosfield Catalysts, 135 F.3d 1202,
1205 (7th Cir. 1998). Dismissal is proper only when it appears beyond doubt that Plaintiffcan prove
no sct of facts to support the allegations in his or her claim. Strasburger v. Board of Education, 143

F.3d 351, 359 (7th Cir. 1998).

“Although the Federal Rules of Civil Procedure do not require a plaintiff ‘to set out in detail

Lio



CONCLUSION

For the reasons stated herein, Burger King Corporation’s and Restaurant Services, Inc.’s
Motions to Dismiss are denied.

IT IS SO ORDERED.

Jo! Darrah, Judge
| Uae
ate Guu8 2003 hited §

tates District Court



the document or transcript to be accorded confidential treatment or (b) thereafter,
by a written communication to all parties which specifically identifies the document
and the particular pages therein to be treated as confidential.

4. A transcript may be designated as confidential cither (a) on the record
or (b) by written communication mailed within thirty days after distribution of the
transcript. All parties shall treat a transcript as confidential during that thirty day
period. If a portion of a transcript is designated as “Confidential,” the pages and
lines of the transcript shall be identified with specificity. If confidential treatment
is requested on the record, the court reporter shall mark the pages of the transcript
containing the designated testimony with the designation “Confidential.” When
possible, portions of the transcript designated “Confidential” shall be segregated
and bound separately from the remainder of the transcript.

5. A “Confidential” designation pursuant to this Order shal] not create
any presumption with respect to the confidential, proprietary or trade secret nature
of any such information. Each party shall retain the right to contest any
"Confidential" designation by filing a properly noticed motion before this Court
challenging the confidentiality of such material. On such motion, the person or
party asserting confidentiality shall have the burden of proving that the
Confidential Material is within the scope of protection afforded under any
applicable law. In no event, however, shall any person or party disclose any
Confidential Material without a prior ruling from the Court allowing such
disclosure. The original designations shall remain effective until ten days after

3