A Boston plant-based meat company outed a private investigator it claims was working covertly for Impossible Foods Inc. before and after Impossible accused it of patent infringement.
Motif Foodworks Inc. told the US District Court for the District of Delaware in a letter made public this week that Impossible used New York City private investigator Sarah Q. Nasir, who posed as a potential client, using a fake name and concocted business, to try to convince Motif to turn over raw samples. The letter was part of a flurry of legal filings partially unsealed late on May 23.
The documents cast a light on the use of PIs in patent litigation, a practice that usually remains in the background. The revelations could change the tenor of the case as Motif presses allegations of ethical breaches by Impossible’s counsel.
Impossible sued Motif Foodworks Inc. in March 2022, asserting that the company infringed seven separate patents covering manufacturing processes, ingredients, and products.
Motif is using the newly revealed information to go on the offensive, saying it suspects lawyers for Impossible violated the American Bar Association’s and the Delaware Lawyers’ Rules of Professional Conduct and seeking additional information from Nasir and her private investigation company about the nature of her work through four subpoenas.
The narrative of Nasir’s alleged subterfuge and how Motif found out about it comes out in a series of declarations from Motif employees and executives lodged with the Delaware court.
Motif communications manager Julia Dacri “was approached by persons going by the names Sarah Jamil and Ed Barry and claiming they were affiliated with a meal kit service called ‘Food4Thought,’” while operating a booth at the Plant Based World Conference & Expo in New York City in September 2022, Dacri said in one of the declarations.
Motif was offering samples of plant-based burgers, chicken cutlets, cheese, and burger grounds at the event, Dacri wrote. “Ms. Jamil and Mr. Barry asked me if they could obtain a raw sample of Motif’s food products” because “they wanted to touch and feel” them, she wrote.
Dacri called the request “highly unusual” and said that, after consulting with fellow employees, she turned it down and also declined repeated questions from the two individuals about Motif’s ingredients and how their products are made.
Motif executive Joanne Kennedy said in a separate declaration that she was introduced to Jamil via email two months later and set up an introductory Zoom meeting in December 2022 with Jamil and a purported Food4Thought colleague, Bill Weller.
Weller and Jamil joined using audio but when the meeting started, “the last name of one of the participants—Sarah ‘Nasir'—did not match the name of the individual I had been interacting with—Sarah ‘Jamil,’” Kennedy stated.
Then, some time after the call started, Kennedy added that “the Zoom interface showed that the name ‘Sarah Nasir’ had changed to ‘Sarah Jamil.’”
Kennedy states that on the Zoom call, “Ms. Jamil/Nasir and Mr. Weller stated that they were entrepreneurs who were launching a box meal kit for vegans similar to the popular company Blue Apron.” At the end of the meeting, Kennedy says the two asked for raw samples of Motif’s products.
Jamil followed up on the meeting several times the following month to seek the samples, Kennedy said, but by this point Kennedy was convinced that Jamil was actually Nasir, the principal and co-founder of private investigation company Integrity One Solutions.
Along with its declarations, Motif filed numerous exhibits with the court, including emails between Jamil and Motif employees and screen grabs of the Food4Thought website. A Bloomberg Law search for the site on Wednesday turned up a functional URL, but hyperlinks on the site weren’t working and it appeared to be built for mobile users but without a desktop-compatible format.
Investigating the Investigator
Motif subpoenaed Nasir and Integrity One Solutions, seeking documents and depositions, on May 8.
The company subsequently asked Judge
Though the exact parameters of the requested order are unclear due to redactions, Motif argues that one is warranted given that Nasir misrepresented herself in communications with Motif employees, a potential violation of ABA and Delaware ethical rules.
The use of “false pretenses is alarming, unethical, and warrants a protective order,” Motif wrote.
Motif separately urged Bryson to force Impossible to cooperate with its requests to get information about the private investigation, arguing the discovery is relevant to whether any lawyers for Impossible violated ethics rules.
In another letter, Motif states that Impossible has sought to limit this discovery to after March 14, 2022—the date that lawyers for Motif first contacted counsel for Impossible to inform them Motif had representation. Motif responded to that argument in a footnote, stating that the ethical rule barring lawyers from making “false statements to a third person is agnostic of whether said person was represented by counsel.”
Both Impossible’s opposition to a protective order and its arguments opposing Motif’s efforts to get information about Nasir’s work are sealed from public view in the court’s docket.
The company, its lead attorney, and Nasir didn’t immediately respond to requests for comment.
A Motif spokesperson declined to elaborate on the allegations of snooping by Impossible, saying, “we’ll let the court documents speak for themselves.”
Private Eyes, Patent Law
Though private investigators rarely garner public attention, an industry veteran not connected to the Impossible case said it’s not at all uncommon for lawyers to seek their help in patent cases.
Despite the science and engineering at the heart of these disputes, “there’s a lot of information about humans you need in these cases,” Staci Dresher, the president of California-based DCI Group, said.
“Someone could have been listed on an invention in the ‘70s, ‘80s, or ‘90s but their company doesn’t exist any more, and now someone wants to talk to Michael Smith who worked for Applied Materials in the ‘80s,” she said. “So it can be just the challenge of locating a witness or an expert witness, or a person you want to depose in a lawsuit.”
Asset searches are also common. “We’re in negotiations and the other side says they’re broke, but it’s possible they have concealed assets,” Dresher said.
Another challenge for patent litigants where private investigators can be of use is “looking into the background of a patent troll and figuring out who’s the deep pocket behind a lawsuit,” she said.
But she noted that the bulk of the work isn’t undercover. When she has gone undercover, it hasn’t been donning “trench coat and hat” but rather asking questions of a company rep at a public event and then “surfacing” and producing the notes from that conversation in a signed, written affidavit used in litigation.
“Not only do I not violate the rules for private investigators but I don’t violate the rules for lawyers,” she said, adding that she would say no to a would-be client “who wants to tell me to go undercover and lie about my identity or use other unethical pretexting means.”
Motif is represented by Quinn Emanuel Urquhart & Sullivan LLP and Morris, Nichols, Arsht & Tunnell LLP. Impossible is represented by Wilson Sonsini Goodrich & Rosati.
The case is Impossible Foods Inc. v. Motif Foodworks, Inc., D. Del., No. 1:22-cv-311, letter made public 5/23/23.
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