You don't get to pick your jobs in the P.I. biz. A good gumshoe takes what walks in the door, and the only questions he asks are "how much?" and "permanently?" The only answer he'll take is a raised eyebrow and and that money gesture when you rub your thumb against two fingers.
Hamburglar was of the old school. 40 years ago he had a reputation that could make a clown go back into his little car with all his friends and drive off without so much as a honk. When the doc said his arteries were starting to look looked like string cheese, he put that all behind him - hung up his shingle and started trying to solve sandwich crimes, rather than cause 'em.
When the guys from Impossible rattled the knob on his greasy, greasy door, it took some convincing for him to take the case. You see, they just brought a hard case in Impossible Foods Inc. v. Motif Foodworks, Inc., C.A. No. 22-311-WCB (D. Del May 31, 2023) (Mem. Op. and Order). They thought Motif was stealing the secret sauce to their eerily lifelike fake burgers and they needed a sample to prove it. Problem was, Motif was wise to the whole deal and wasn't about to give it to 'em. They needed an old pro to come out for one last job.
He raised an eyebrow. They made the money finger gesture.
It was on.
It should have been a simple job. Motif was handing out samples to pretty much everyone in the world except Impossible. All he had to go was go to a tradeshow disguised as literally anyone else (being previously barred for life from all burger related events for crimes too numerous to detail), and say he was considering using Motifs phony-baloney meats for the new meal kit service he was starting. Even the grimace could have done it (RIP).
The whole gig went sideways when he had a follow up zoom meeting with Motif's communication manager and VP of Sales where he accidentally forgot to change his zoom name.
[ed. note I can't stress enough that, other than the PI not actually being the hamburglar (probably), this whole story is totally true]
Motif brought the whole thing before Judge Bryson. requesting sanctions against impossible's attorney's for violating the ethical rules against "making a false statement to a third party" (ABA Model Rule 4.1).
Hamburglar was understandably worried about this. He couldn't hack it in prison, they'd eat him alive.
[ed. note - of everything I've written on the blog, this is the line I'm proudest of]
[further ed. note -- I've realized I was conflating hamburglar with his one onetime compatriot Mayor McCheese. This joke makes no sense. I leave it up as a monument to hubris]
Judge Bryson, however, held that merely misrepresenting his identity and his purpose in requesting the samples did not violate Rule 4.1:
The weight of authority indicates that misrepresentations made solely as to identity or purpose do not rise to a violation of Rule 4.1 when the investigator is posing as a customer in the ordinary course of business.
Id. at 8.
Judge Bryson noted, however, that this inquiry was highly fact-intensive:
To be sure, one factor that bears on the legitimacy of the investigative measures taken in this case is whether the information sought could have been obtained by other lawful means, such as discovery. Because such information is properly discoverable in litigation, that factor cuts somewhat against Impossible’s claim that a pretextual investigation was necessary in this case. On the other hand, much of the information that was obtained as a result of the investigation could have been gathered by anyone attending the various trade shows between 2021 and 2023, such as samples of Motif’s hamburger patties, which were apparently being freely passed out to attendees at the trade shows. It is therefore clear that Motif did not regard the products it was offering for sale as themselves confidential.
Id. at 13-14.
Like Mssr. Burglar, I found the result here a bit surprising. Looking at the opinion and doing a bit of research afterwards, it looks like Judge Bryson was writing on a blank slate here in Delaware, although numerous other Courts and commenters have reached the same result (the opinion is quite thorough and cites broadly to everything from ethics opinions to journal articles).
There's also an interesting rundown on Rule 4.2 (communications with represented parties) that I couldn't quite squeeze into this post. Watch out for that next week.
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