On Aug. 2, Sotero Ramirez, a Texas sales manager for the former Indianapolis-based Dow AgroSciences LLC, sent a cryptic text message to a co-worker.
“Start transferring contact files over to personal or memory stick,” he wrote to Robert Lemon, an agronomist and cotton development specialist for Dow Agro in Texas. “We’re going to need contacts.”
A month later, both quit their jobs and began working for a competitor, Americot Inc., a cottonseed company based in Lubbock, Texas.
Now Dow Agro is crying foul, saying the two former employees downloaded thousands of files of valuable and confidential information in the days leading up to their resignations, amounting to theft of company property and a violation of their non-disclosure and non-competition agreements.
Dow Agro, now part of Delaware-based Corteva Agriscience, filed a complaint in the Southern Indiana District Court in Indianapolis on Oct. 22 against Ramirez and Lemon, accusing them of misappropriation of trade secrets and breach of contract.
The complaint contains dozens of text messages extracted from company cellphones used by Ramirez and Lemon. In the texts, the two talk in explicit terms about their interviews and subsequent negotiations with Americot. They also discussed how to handle their non-competition agreements, and how to download files from their work computers.
“Lemon and Ramirez deliberately harvested a substantial volume of electronic files and data containing (Dow Agro’s) trade secrets in the days and weeks preceding their resignation,” the complaint says.
Lemon and Ramirez could not be reached for comment. Neither returned several phone calls to their homes or messages to their LinkedIn pages. Neither has filed a response to the lawsuit or has a lawyer listed on the docket for the case of Dow AgroSciences LLC, et al. v. Lemon, et al., 1:19-cv-04303.
It is unclear whether Lemon and Ramirez still work for Americot. Neither is listed on the company’s website, which includes contact information for dozens of sales representatives, account managers and agronomists. A spokesman for Americot did not respond to several emails and phone calls from the Indianapolis Business Journal.
The lawsuit underscores the intense competition in the agricultural seeds industry, a sector dominated by Corteva and another large player, German conglomerate Bayer AG, which last year bought agricultural biotech company Monsanto for $63 billion.
Corteva itself is the product of a mega-merger — the 2017 combination of Wilmington, Delaware-based DuPont and Midland, Michigan-based Dow Chemical, parent of Dow AgroSciences. That $130 billion pairing created Wilmington-based DowDuPont, which spun off its seeds and insecticides business as publicly traded Corteva in June.
Dow Agro still maintains a large research and development operation on the northwest side of Indianapolis, with about 1,500 workers here.
The cottonseed market in Texas is highly competitive, Dow claims in its lawsuit, with three significant players in addition to itself. One is Americot, which sells nothing but cottonseed under the trade name NexGen.
Dow Agro sells cottonseed through its PhytoGen Seed Co., which became part of Dow Agro in 1998 through a joint venture with the J.G. Boswell Co., a cotton producer based in California.
“Because innovation and customer relationships are critical components to the success of the PhytoGen product, and because the market is so competitive, plaintiffs take very seriously their protection of their trade secrets and proprietary business information,” Dow Agro said in its complaint.
According to a narrative laid out in the lawsuit, the roots of the dispute date to July 31, when the owner of Americot, David Hicks, texted Ramirez with a recruiting overture: “…I would like to visit with you about an opportunity sometime!”
Ramirez responded that he would like to meet, but suggested the get-together include Lemon, with whom he had worked for several years. Ramirez had worked for Dow Agro since 1999, and Lemon since 2011.
“As you might know Robert Lemon and I work together and have talked in general about different opportunities,” Ramirez wrote to Hicks. “Both of us would like to visit with you to learn more about your company and your approach to market.”
They set up a meeting for Aug. 20. “He’s gonna be good to work for,” Lemon texted Ramirez on Aug. 2. A few minutes later, Ramirez texted back to Lemon, suggesting he start downloading contact files.
But even as they were preparing for their interviews, Lemon and Ramirez continued to work at Dow Agro and attend company events. From Aug. 6 to 9, they attended a company meeting in Seadrift, Texas, where they learned about Dow Agro’s plans for marketing cottonseed products, including unpublished pricing and discount programs that managers would be authorized to offer growers and retailers, the lawsuit said.
By Aug. 16, about two weeks before another Dow Agro sales company meeting in San Antonio, the men were in advanced negotiations with Americot. Lemon texted Ramirez: “Let’s go to meeting and then resign.” A few minutes later, he added: “We can say goodbye to our friends.”
Four days later, on Aug. 20, Hicks informed Ramirez that he could expect an offer letter to be emailed to his personal Gmail account the next day. “Expect 50,000 signing bonus / 185,000 salary / 30,000 minimum Dec 2020 bonus, 9/15 start date or before if you need to,” Hicks texted.
On Aug. 21, Lemon sent a Word document to an Americot employee, explaining his desired role as senior agronomist at Americot, supporting sales reps and maintaining relationships with large customers — the same duties he was doing at Dow Agro, the lawsuit said.
A few minutes later, Lemon sent a text to Ramirez suggesting in vulgar terms that he would be sharing his Dow Agro training materials with his new employer.
“You realize what my training presentation means to them???” he added, according to the lawsuit.
Ramirez shot back: “Yep. You will be in a class by your self. No one can come close to you. You will make nexgen better!!!!”
Ramirez was equally excited about making the employment switch.
“If I go (now) I can ride pickers in the bottom and start selling,” Ramirez texted to Lemon on Aug. 24, apparently a reference to scheduling ride-alongs with farmers during their harvest season.
Dow Agro stated in its complaint: This is “apparently the very same growers with whom he had contact while selling PhytoGen cottonseed—and immediately start selling on behalf of Americot.”
Yet Ramirez and Lemon also expressed concerns about their non-compete agreements, and whether they would be able to contact current customers and colleagues.
“What did DH (Americot owner David Hicks) say about non compete” Lemon texted Ramirez on Sept. 5. “I’m gonna call him later to talk about mine.”
“Did not talk about it,” Ramirez responded. A few minutes later, he followed up: “Do we worry about no compete”
“No,” Lemon answered.
On Sept. 5, their last day at Dow Agro, Lemon and Ramirez sent text messages back and forth on how to download files from their phones and computers, according to copies of the texts included in the complaint.
Lemon instructed Ramirez how to back up files on his computer. Ramirez said he had tried to back up the files to iTunes but was unable to do so before the website timed out. So he had another plan.
Ramirez wrote: “Not going to worry about it. I exported to excel. So I will have to manage that way. I can’t back up.”
Dow Agro said it discovered, after a subsequent investigation, that Lemon downloaded thousands of files to an external hard drive, including company strategies for sales and marketing, secret product information, customer purchasing histories and other sensitive and confidential information.
During one four-day stretch in late August, Lemon searched on Google “how to delete texts permanently on iphone,” “how to permanently delete text messages on iphone” and “how to permanently delete texts from iphone 6”
On Aug. 31, Lemon searched “how do I move all my photos from phone to an external hard drive,” according to the lawsuit.
On Sept. 4, he searched “how to backup contacts to iTunes” and “how to delete emails in outlook 10.”
Ramirez downloaded or printed confidential company information from his company-issued laptop to USB drives and visited the cloud storage site Google Drive from his laptop, the lawsuit said. Some of the files included secret formulas a territory manager can use to model various sales scenarios and determine which sales strategy may work best, the complaint said.
According to the complaint, Lemon and Ramirez are performing jobs for Americot that are the same as or substantially similar to the roles they were performing during their last two years of employment at Dow Agro, and in substantially similar territories in Texas.
Dow Agro is asking the court for a temporary restraining order or preliminary injunction that would stop Lemon and Ramirez from using or disclosing any of its trade secrets or confidential information, and from working for Americot in any position involving the sale of cottonseed to growers or retailers in the territory they worked in at Dow Agro. The company also is seeking unspecified financial damages.
The case is assigned to Judge James Sweeney.•