Diamond Foods Suit
Diamond Foods Suit
Diamond Foods Suit
Plaintiff Diamond Foods, Inc. (“Diamond”), by and through its attorneys, and for its
Verified Complaint for Injunctive and Other Relief against Defendant James M. Barker
1. Diamond brings this suit to recover the confidential and trade secret information
that Barker, its former employee, wrongfully obtained from Diamond, currently possesses, and
has already disclosed to at least one third party. Specifically, on November 30, 2009, Barker
illegally transmitted highly confidential customer, sales and pricing and forecasting information
to an outside financial analyst. As Barker candidly admits in his cover email, this information is
“not public” and was obtained by Barker from a “friend inside” Diamond. Other information
illegally transmitted by Barker appears to have been improperly retained by Barker after he
resigned from Diamond. Diamond, therefore, brings this action for immediate and permanent
injunctive relief to prevent further irreparable harm from the continuing possession and
disclosure of Diamond’s confidential and trade secret information by Barker, and from Barker’s
related (i) breach of his confidentiality obligations to Diamond, (ii) violations of the Illinois
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Uniform Trade Secrets Act, 765 ILCS 1065/1, et seq., and Computer Fraud and Abuse Act, 18
U.S.C. §1030, (iii) inducement of other Diamond employees to breach their confidentiality,
fiduciary and loyalty obligations to Diamond, and (iv) conversion of Diamond’s confidential
property.
THE PARTIES
former employee of Diamond and is currently employed as the Vice President of Sales for Vita
4. This Court has personal jurisdiction over Barker because he is a natural person
domiciled in the State of Illinois and because he committed the tortious acts in question in
Illinois.
5. This Court has federal question jurisdiction over this action pursuant to 28 U.S.C.
§§1331, 1332 and 1367. Diamond’s claims arise, in part, under federal law, specifically the
Computer Fraud and Abuse Act, 28 U.S.C. §1030, et seq. The amount in controversy in this
action exceeds $75,000 exclusive of interest and costs, and Diamond is not a citizen of the same
state as Barker; thus complete diversity of citizenship exists. All of the claims are so related to
each other that they form part of the same case or controversy.
resides in this judicial district; the claim arises out of incidents occurring in this district; and
because the property in question, upon information and belief, is situated in this district.
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FACTUAL BACKGROUND
Diamond’s Business
7. Diamond is the premier processor and marketer of culinary, in-shell snack and
ingredient nuts, as well as popcorn products in the United States. Diamond’s brands include
well-known household items Diamond of California® culinary nuts, Emerald® nut snacks, and
8. Diamond sells its products to major retail stores and grocers throughout the
United States and internationally. Diamond sells its products through direct marketing and sales
functions, as well as through independent brokers whose sales of Diamond products are
9. The nut, snack nut and popcorn markets in the United States are serviced by a
small number of highly-competitive processors and marketers. As such, Diamond closely tracks,
forecasts and budgets sales to individual customers – especially its top customers – in order to
maintain and grow its competitive advantage in the market. Diamond devotes substantial time,
effort and expense to marketing its products to customers, and to negotiating favorable terms and
competitor with access to Diamond’s trade spend, production capacity, sales tracking, budgeting
and forecasting information, could harm and undermine Diamond’s sales success with its top
customers through insights the information provides as to sales trends and Diamond’s strategic
customer initiatives.
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11. Such access by a competitor could cause Diamond to suffer millions of dollars in
12. By letter dated December 6, 2005 (the “Offer Letter”), Diamond offered Barker
the position of Senior Business Director for Eastern Sales, and an accompanying generous
compensation and benefits package. Barker was offered a base salary of $175,000 per year, a
$75,000 signing bonus, stock options, participation in an incentive bonus program, and health,
welfare and pension benefits. On December 16, 2005, Barker accepted Diamond’s offer by
countersigning the Offer Letter. (A true and correct copy of Barker’s signed Offer Letter is
attached hereto as Exhibit A.) Barker began work at the beginning of 2006.
13. Barker resigned on or about October 9, 2009. At the time of his resignation,
Barker was the VP of Strategic Accounts, with responsibility for some of Diamond’s most
14. By signing his Offer Letter, Barker understood and explicitly agreed (i) that
Diamond’s documents and records were Diamond’s exclusive property, (ii) not to remove
Diamond’s property from the Diamond’s facilities without written consent; and (iii) that he
would acquire confidential, proprietary and trade secret information as a result of his
employment with Diamond, and that such information was also the sole and exclusive property
of Diamond.
maintain the confidentiality of Diamond’s sensitive information. (A true and correct copy of
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17. Diamond has implemented security measures to ensure that its confidential and
trade secret information is not used or disclosed outside of Diamond. For example, information
stored in Diamond’s computer systems is password protected, and access is limited to employees
on a need-to-know basis. Remote access to Diamond’s network is also password protected and
18. Diamond further protects confidential computer information with a mandatory 15-
minute lock out on company computers. This system operates so that if an employee leaves his
or her computer unattended for 15 minutes, the computer will lock, and access can be restored
only through entry of a password. Diamond also automatically includes confidentiality notices
as a footer to all company e-mails notifying the recipients that the contents of the e-mail should
be considered confidential.
confidential and/or trade secret information are required to enter into confidentiality agreements
with Diamond, like Barker did in his Offer Letter and Acknowledgment. As described above,
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21. Part of this employee training includes a review of Diamond’s Code of Conduct
and Ethics, which explicitly addresses and reinforces employees’ confidentiality obligations to
Diamond. (A true and correct copy of Diamond’s Code of Conduct and Ethics is attached hereto
as Exhibit C.)
Conduct and Ethics and expressly must agree to be bound by, and to adhere to, all of the
principles and standards contained in the Code. Barker, like other Diamond employees, received
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the Code of Conduct and Ethics, and signed at least one acknowledgment wherein he agreed to
be bound to the confidentiality obligations under the Code. (A true and correct copy of Barker’s
signed Code of Conduct and Ethics acknowledgement, dated May 30, 2006, is attached hereto as
Exhibit D.)
24. On or about October 9, 2009, Barker voluntarily resigned his employment from
25. After his resignation and exit interview, Barker returned two company-issued
laptops that were in his possession to Diamond’s Chicago field sales office. The laptops were
Diamond’s IT personnel as part of the normal inspection and archiving protocol Diamond
26. The inspection of Barker’s laptops revealed that Barker had intentionally deleted
all data from one of the laptops and scrubbed his hard drive before returning the computer to
Diamond. While Diamond’s investigation continues, Diamond is concerned that Barker may
have utilized an external software program to scrub the hard drive of data. Barker’s deletion of
data from his computer has not only hampered Diamond’s investigation into Barker’s
wrongdoing, but also may deprive the company of valuable business information that Barker, as
27. On November 30, 2009, Barker sent a series of four (4) e-mails to Timothy
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Ramey, a financial analyst with D.A. Davidson & Co. who covers Diamond.1
28. The body of these e-mail messages purports to disclose significant inside and
confidential information concerning Diamond’s finances and operation, company priorities and
strategies, and performance. In addition to the written content in the e-mail messages, Barker
29. At least two of reports transmitted by Barker – one entitled “Diamond Foods Top
Customer Report,” and the other “North American Retail Daily Sales Report” (together,
concerning Diamond’s top 27 customers and all national sales, specific sales data, trends and
forecasts (by customers and product line), and, critically, Diamond’s 2010 sales budgets.
30. Diamond has a competitive advantage from the information in the Diamond Sales
Reports not being generally or publicly known. Moreover, it would be impossible for a
competitor or other third party to recreate the entirety of the reports by lawful means; what
information in the reports that could be recreated could only be accomplished through significant
31. Information like that contained in the Diamond Sales Reports can be accessed
only by select Diamond employees and brokers in Diamond’s sales and marketing operations
and high-level company executives. In addition, in meetings at which such information and data
is discussed, the confidentiality and sensitivity of the information is further reinforced to meeting
32. The sensitivity of the Diamond Sales Reports was not lost on Barker. In the e-
mail to which these particular two reports were attached, Barker warned: “This is not public data
1 Neither Mr. Ramey nor D.A. Davidson & Co. (“Davidson”) are accused of any wrongdoing in this
matter. In fact, it was Davidson that brought Barker’s conduct to Diamond’s attention.
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but a friend inside sent it to me. If you use it please keep your source confidential.” (A true and
correct copy of this e-mail is attached hereto as Exhibit E. Confidential Diamond information
33. Several of the reports and files disclosed by Barker include financial reports
prepared by the A.C. Nielsen Company, which are made available by Nielsen through a paid
subscription service. Barker had access to Diamond’s Nielsen reports, through Diamond’s paid
34. Upon information and belief, several of the Nielsen reports transmitted by Barker
were received by Barker as part of his job at Diamond, and were wrongfully retained by him
36. Barker’s admission in the above e-mail reveals yet another wrongful act. The
Diamond Sales Reports that accompanied this particular e-mail were created on or after
November 20, 2009 – long after Barker left Diamond’s employ. Barker indicates that “a friend
37. While Diamond’s investigation continues, Barker, upon information and belief,
induced a Diamond employee who formerly reported to Barker, to provide these highly-
38. Diamond has determined that on November 30, 2009 – the same day Barker sent
the reports to Mr. Ramey – the Diamond employee in question sent e-mails from his Diamond e-
mail account to his personal Google e-mail account which contained, among other files and
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reports, the very Diamond Sales Reports that Barker sent to Ramey.
39. The Diamond employee in question has resigned his employment with Diamond,
to be effective December 4, 2009, and has indicated that he will be going to work with Barker at
Vita Foods.
Diamond information to Mr. Ramey, and perhaps others, is apparent from Barker’s own e-mail –
41. In one of his November 30 e-mails to Mr. Ramey, Barker makes explicit his fee-
for-information offer: “I would like to keep in touch and if your company allows it, possibly
setup some type of consulting arrangement for an agreed upon fee where I can be helpful.” (A
true and correct copy of this e-mail is attached hereto as Exhibit F. Confidential Diamond
42. Diamond’s investigation has revealed that Barker may have shopped inside
Diamond information to financial analysts prior to the November 30, 2009 e-mails to Mr.
Ramey, and possibly while he was still working for Diamond. Barker recently bragged to a
Diamond employee that he had negotiated a consulting arrangement with one analyst whereby he
43. During his employment with Diamond and thereafter, Barker was prohibited from
discussing confidential Diamond matter with analysts or any other third party.
44. Moreover, in order to comply with SEC rules and regulations, Diamond’s
communications with analysts was and is limited to select Diamond executives and officers, and
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45. If the information Barker wrongfully possesses, and that he has already illegally
disclosed to at least one outside analyst, were to be misused and/or improperly relied upon by an
analyst, Diamond would suffer unwarranted harm to its goodwill and market value in an amount
COUNT I
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT
18 U.S.C. §1030
46. Diamond realleges and restates paragraphs 1-45 as if fully restated herein.
47. The Computer Fraud and Abuse Act (“CFAA”) provides for a private right of
action against anyone who “intentionally accesses a computer without authorization or exceeds
authorized access, and thereby obtains information from any protected computer if the conduct
48. The CFAA provides for a private right of action against anyone who (i)
such conduct either recklessly causes damage or causes damages and loss, or (ii) who accesses a
protected computer without authorization and, as a result of that conduct, causes damage and/or
commerce and are thus “protected computers” within the meaning of the CFAA, which includes
§§1030(e)(2).
Diamond computer to cause the all of the Diamond information and data contained thereon to be
deleted and rendered inaccessible to Diamond. Diamond is concerned that Barker accomplished
this mass deletion through the intentional transmission of a computer program or code designed
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51. At the time Barker deleted the files and data on his Diamond computer, Barker
did not have authorization or entitlement to access his Diamond computer because he had, upon
information and belief, already resigned and/or breached his fiduciary and loyalty duties to
Diamond.
52. Upon information and belief, Barker intentionally and improperly transferred
Diamond confidential and proprietary files to external storage devices for personal use prior to
53. Diamond has suffered damage and loss as the result of Barker’s actions.
Diamond has suffered and/or will with reasonable certainty suffer losses exceeding $5,000.
Diamond’s investigations into Barker’s illegal conduct has just begun and Diamond is in the
process of retaining outside computer forensic experts to discover the extent and consequences
of Barker’s unauthorized activities and damage to the integrity of the Diamond’s data.
COUNT II:
VIOLATION OF ILLINOIS TRADE SECRETS ACT
765 ILCS 1065/1 et seq.
54. Diamond realleges and restates paragraphs 1-53 as if fully restated herein.
55. As set forth above, Barker had access to and is currently in the possession of
certain confidential and proprietary information constituting “trade secrets” as defined by the
Illinois Trade Secrets Act, 765 ILCS 1065/1 et seq., including the pricing and other strategic
financial data concerning Diamond’s sales, sales plans, trends and budgets, and top customers.
56. This information is sufficiently secret to derive economic value from not being
generally known to other persons or entities who can obtain economic value from its disclosure
or use.
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57. This information is the subject of efforts that are reasonable under the
58. Barker’s illegal disclosure and current possession of, and refusal to return,
permission. Barker has also used and disclosed Diamond’s confidential and trade secret
information with full knowledge that this information was acquired under circumstances giving
secret information, actual and threatened, violates the Illinois Trade Secrets Act.
60. As a result of the foregoing and as long as Barker possesses Diamond’s trade
secret information, Diamond has no adequate remedy at law and has suffered and will continue
to suffer an imminent risk of further irreparable harm, unless Barker’s activities are enjoined by
the Court and Barker is required to cease any and all disclosure of Diamond information, to
return Diamond’s documents and information and to provide a complete accounting of all
Diamond’s documents and information (both hard and electronic copies) that he removed or
COUNT III:
BREACH OF CONTRACT
62. Diamond realleges and restates paragraphs 1-61 as if fully restated herein.
63. Barker’s executed Offer Letter, Acknowledgment and Code of Conduct and
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64. Diamond has fully performed all of its obligations to Diamond under these
agreements.
65. Barker breached these agreement by, among other wrongful acts: (i) retaining
Diamond property and confidential information following his resignation from Diamond; (ii)
obtaining additional Diamond confidential information after his employment with Diamond
ceased; and (iii) purposefully and disclosing confidential and trade secret Diamond information
to third parties, both during and after his employment with Diamond.
66. Diamond has no adequate remedy at law and will suffer irreparable harm unless
Barker’s activities are enjoined by the Court and Barker is required to immediately cease
disclosing other otherwise using Diamond’s information to third parties, to return Diamond’s
documents and information and to provide a complete accounting of all Diamond’s documents
and information (both hard and electronic copies) that he removed or obtained from Diamond.
COUNT IV:
CONVERSION
67. Diamond realleges and restates paragraphs 1-66 as if fully restated herein.
68. The property at issue is Diamond’s confidential and trade secret information in
any form, such as the electronic documents or files containing such information that are currently
possessed by Barker.
69. Diamond is the rightful owner of this property. Diamond is lawfully entitled to
the possession thereof, and it has an absolute and unconditional right to the immediate
70. Barker has wrongfully and without authorization obtained and retained control,
dominion, and/or ownership of this property. After his employment was terminated, Barker no
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71. Diamond has demanded the return of this property, and Barker has failed to return
it.
72. Barker’s possession and retention of this property now constitutes conversion and
COUNT V:
BREACH OF FIDUCIARY DUTY
73. Diamond realleges and restates paragraphs 1-72 as if fully restated herein.
duties to Diamond. These fiduciary duties include the obligation not to disclose Diamond’s
75. Barker breached his fiduciary duties to Diamond by, inter alia, disclosing
Diamond’s confidential information to Mr. Ramey and, upon information and belief, to other
76. By reason of the foregoing, Barker has directly and proximately caused injury to
Diamond, and Diamond has suffered, and continues to suffer, substantial injury as a result of
Barker’s actions.
COUNT VI:
INDUCING BREACH OF FIDUCIARY/LOYALTY DUTY
77. Diamond realleges and restates paragraphs 1-76 as if fully restated herein.
78. Barker, being fully aware and in complete disregard of another employee’s
employment with Diamond, and fiducial and loyalty duties to Diamond, actively encouraged,
induced, and persuaded that employee to breach his fiduciary duties to Diamond.
79. By reason of the foregoing, Barker has directly and proximately caused injury to
Diamond, and Diamond has suffered, and continues to suffer, substantial injury as a result of
Barker’s actions.
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WHEREFORE, Diamond requests that judgment be granted in its favor and against
(a) a preliminary and permanent injunction against Barker and anyone acting in
concert with him, prohibiting them from using or disclosing Diamond’s confidential and
(b) an order mandating that Barker: (i) immediately return any and all copies,
(including trade secrets) that came into his possession through his employment with Diamond, or
obtained by him thereafter; and (ii) immediately produce for inspection his personal computer(s)
and any other electronic storage media in Barker’s possession, custody, or control, so that they
(e) such other relief as this Court deems just and proper.
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E-mail from James M. Barker dated November 30, 2009, sent at 1:32 PM....................... E
Email from James M. Barker dated November 30, 2009, sent at 1:28 PM ........................ F
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Exhibit A
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Exhibit B
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Exhibit C
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1. Introduction
1.1 Scope
This Code shall apply to all Diamond employees and directors. This Code is intended to
supplement and not to replace existing Company policies and procedures. Diamond may modify
or update these more specific policies and procedures from time to time and adopt new company
policies and procedures in the future.
Nothing in this Code is intended to alter the existing legal rights and obligations of
Diamond or any of its employees or directors, including “at will” employment arrangements or
the terms of any employment-related agreements.
1.2 Responsibility
It is every employee’s and director’s responsibility to read and understand this Code, and
to use it as a guide to the performance of his or her responsibilities for the Company. This Code
cannot address every ethical issue or circumstance that may arise, so, in complying with the
letter and spirit of this Code, employees and directors must apply common sense, together with
high personal standards of ethics, honesty and accountability, in making business decisions
where this Code has no specific guideline. In complying with this Code, employees and
directors should also consider the conduct of their family members and others who live in their
household.
Diamond expects all of its directors, executives, managers and other supervisory
personnel to help foster a sense of commitment to this Code among all of its employees, and to
foster a culture of fairness, honesty and accountability within the Company. Diamond also
expects such personnel to ensure that Diamond’s agents and contractors conform to Code
standards when working on Diamond’s behalf.
1.3 Compliance
Any employee that needs help understanding this Code, or how it applies to conduct in
any given situation should contact his or her supervisor or the Compliance Officer designated by
the Company. In addition, employees should be alert to possible violations of this Code by
others and should report suspected violations, without fear of any form of retaliation, as
described in Section 13.
2. Applicable Documents
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This Code is intended to supplement and not to replace existing Company policies and
procedures, including without limitation those set forth in the Company’s Employee Handbook,
as it may exist from time to time.
Diamond’s success depends upon each employee and director performing his or her
Company duties in compliance with applicable laws and in cooperation with governmental
authorities. It is essential that employees and directors know and understand the legal and
regulatory requirements that apply to Diamond’s business and to their specific area of
responsibility. While employees and directors are not expected to have complete mastery of
these laws, rules and regulations, they are expected to be able to recognize situations that require
them to consult with others to determine the appropriate course of action. To address questions
in the area of legal compliance, employees should approach their supervisor or the Compliance
Officer immediately.
Legal compliance is only a part of Diamond’s ethical responsibility, however, and should
be viewed as the minimum acceptable standard of conduct. Diamond strives to act with the
utmost integrity, not just in its most important corporate decisions, but also in the actions taken
every day by its employees and directors. Ethical conduct is a high ideal, but often just means
exercising common sense and sound judgment. Acting ethically will help Diamond become a
better company, a better commercial partner for other companies, and a better corporate citizen.
Employees and directors are expected to comply with all applicable laws wherever they
travel on Company business, including laws prohibiting bribery, corruption or the conduct of
business with specified individuals, companies or countries. Diamond also expects employees
and directors to continue to comply with U.S. laws, rules and regulations governing the conduct
of business by U.S. citizens and corporations outside the United States.
These U.S. laws, rules and regulations, which extend to all of Diamond’s activities
outside the United States, include:
x The Foreign Corrupt Practices Act, which prohibits any corrupt offer, payment,
promise to pay, or authorization to pay any money, gift, or anything of value (made
directly or through intermediaries) to any foreign official, or foreign political party,
candidate or official, in order to obtain or retain business for anyone or direct
business to anyone, and requires the maintenance of accurate books of account, with
all company transactions being properly recorded;
x U.S. embargoes, which restrict or, in some cases, prohibit U.S. persons, corporations
and, in some cases, foreign subsidiaries from doing business with certain countries,
groups or individuals;
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persons or entities from the United States, or the re-export of U.S.-origin goods from
the country of original destination to such designated countries or identified
companies or entities; and
x Anti-boycott compliance, which prohibits U.S. companies from taking any action
that has the effect of furthering any unsanctioned boycott of a country friendly to the
United States.
4. Conflicts of Interest
Although employees and directors are generally free to engage in personal financial and
business transactions, this freedom is not without constraints. Every employee and director must
avoid situations where loyalties may be divided between Diamond’s interests and the employee's
or director’s own interests. Employees and directors should also seek to avoid the appearance of
a conflict of interest. If an employee is considering engaging in a transaction or activity that may
present a conflict of interest or the appearance of a conflict of interest, the employee should
disclose the matter to the Compliance Officer, so that, if appropriate, the Compliance Officer
may disseminate such information and/or obtain approvals before the employee engages in such
transaction or activity.
Whether the activity could interfere with the job performance or morale of a
Company employee;
Whether the employee or director involved in the activity has access to confidential
Company information or influence over significant Company resources or decisions;
The extent to which the activity could benefit the employee or director or his or her
relative, directly or indirectly.
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Any employee or director who has or wishes to acquire a significant financial interest
in a competitor; or in a customer, supplier or vendor with which he or she has direct
business dealings (or approval responsibilities) must consult with the Compliance
Officer. Similarly, any employee or director who experiences a change of position or
seniority that results in direct business dealings with a customer, supplier or vendor in
which he or she already has a significant financial interest must consult with the
Compliance Officer.
Employees must avoid these situations (and others like them), whenever their loyalty to
Diamond could be compromised. Employees who believe they are involved in a potential
conflict of interest are expected to discuss it with the Compliance Officer.
Like employees, members of the Board of Directors should also seek to avoid conflicts of
interest with their obligations to Diamond. To that end, any director who confronts a conflict of
interest in connection with a decision to be made by the Board, or otherwise, should take such
steps as are necessary to avoid the conflict of interest, including notifying the Chairman of the
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Board and Chief Executive Officer and, if appropriate, recusing himself or herself from
discussions by the Board which could be perceived to create such a conflict.
Employees and directors may not compete with Diamond or take personal advantage of
business opportunities that Diamond might want to pursue. Employees and directors who are
interested in the use of Company property or information, or in pursuing an opportunity that they
discovered through their Company position should consult with the Compliance Officer to
determine an appropriate course of action. Even opportunities that are acquired through
independent sources may be questionable if they are related to the Company’s existing or
proposed lines of business. Employees and directors owe a duty to Diamond to advance its
legitimate business interests when opportunities arise. Accordingly, participation in an outside
business opportunity that is related to Diamond’s existing or proposed lines of business is
prohibited.
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5. Insider Trading
In the course of doing business for Diamond, or in discussions with one of its customers,
distributors or suppliers, Diamond employees and directors may become aware of material non-
public information about Diamond or another organization. Information is considered “material”
if it might be used by an investor to make a decision to trade in the public securities of the
company. Employees may only use such information for the purpose of conducting Company
business.
Federal law and Company policy prohibit employees and directors, directly or indirectly
through their families or others, from purchasing or selling Company stock while in the
possession of material, non-public information concerning Diamond. This same prohibition
applies to trading in the stock of other publicly held companies on the basis of material, non-
public information.
If an employee's or director’s family or friends ask for advice about buying or selling
Diamond stock, the employee or director should not provide it. Federal law and Company policy
also prohibit the employee or director from “tipping” family or friends regarding material, non-
public information that the employee or director learns about Diamond or any other publicly
traded company in the course of employment or service on the Board. The same penalties apply,
regardless of whether the employee or director derives any benefit from the trade.
Because of the sensitive nature of and severe penalties associated with insider trading and
tipping, employees and directors must exercise the utmost care when in possession of material
inside information. All employees and directors shall follow the guidelines and policies on
securities trading issued by Diamond and should review Diamond’s insider trading policy.
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Diamond strives to compete vigorously and to gain advantages over its competitors
through superior business performance, not through unethical or illegal business practices. No
employee may through improper means acquire proprietary information from others, possess
trade secret information, or induce disclosure of confidential information from past or present
employees of other companies. Employees that have obtained information of this variety by
mistake or have any questions about the legality of future actions must consult the Compliance
Officer, as described in Section 13.
All employees are expected to deal fairly and honestly with Diamond customers,
suppliers, employees and anyone else with whom they have contact in the course of performing
their Company duties. Making false or misleading statements about Diamond’s competitors is
prohibited by this Code, inconsistent with Diamond’s reputation for integrity and harmful to
Diamond’s business. Employees may not take unfair advantage of anyone through misuse of
confidential information, misrepresentation of material facts or any other unfair business
practice.
Antitrust laws are designed to protect customers and the competitive process. These laws
generally prohibit the Company from establishing:
Some kinds of information, such as pricing, production and inventory, should never be
exchanged with competitors, regardless of how innocent or casual the exchange may be, because
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even where no formal arrangement exists, merely exchanging information can create the
appearance of an improper arrangement.
Noncompliance with the antitrust laws can have extremely negative consequences for
Diamond, including long and costly investigations and lawsuits, substantial fines or damages,
and adverse publicity. Understanding the requirements of antitrust and unfair competition laws
of the jurisdictions where Diamond does business can be difficult, so employees and directors
are urged to seek assistance from the Compliance Officer whenever they have a question relating
to these laws.
Diamond strives to maintain complete integrity of its records and public disclosure.
Diamond’s corporate and business records, including all supporting entries to its books of
account, must be completed honestly, accurately and intelligibly. Company records are
important to investors and creditors. They serve as a basis for managing Company business and
are important in meeting its obligations to customers, suppliers, creditors, employees and others
with whom Diamond does business. Diamond depends on its books, records and accounts
accurately and fairly reflecting, in reasonable detail, its assets, liabilities, revenues, costs and
expenses, as well as all transactions and changes in assets and liabilities.
To help ensure the integrity of its records and public disclosure, Diamond requires that:
The terms of sales and other commercial transactions be reflected accurately in the
documentation for those transactions and all such documentation be reflected
accurately in Company books and records;
No cash or other assets be maintained for any purpose in any unrecorded or “off-the-
books” fund;
Assets and liabilities of the Company shall be recognized and stated in accordance
with Diamond’s standard practices and generally accepted accounting principles
(“GAAP”); and
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Diamond’s disclosure controls and procedures are designed to help ensure that
Diamond’s public disclosures are full, fair and accurate, that they fairly present its financial
condition and results of operations, and that they are timely and understandable. Employees who
collect, provide or analyze information for or otherwise contribute in any way to preparing or
verifying these reports should adhere to all disclosure controls and procedures and generally
assist the Company in producing financial disclosures that contain all of the information about
the Company that is required by law and would be important to enable investors to understand
Diamond’s business and its attendant risks. In particular:
x No employee may take or authorize any action that would cause Diamond’s financial
records or financial disclosures to fail to comply with GAAP, the rules and
regulations of the SEC or other applicable laws, rules and regulations;
x All employees must cooperate fully with Diamond’s finance department, as well as
Diamond’s independent public accountants and counsel, respond to their questions
with candor and provide them with complete and accurate information to help ensure
that the Company’s books and records, as well as its reports filed with the SEC, are
accurate and complete; and
x No employee shall knowingly make (or cause or encourage any other person to make)
any false or misleading statement in any of the Company’s reports filed with the SEC
or any third party or knowingly omit (or cause or encourage any other person to omit)
any information necessary to make the disclosure in any of such reports accurate in
all material respects.
If any employee becomes aware that Diamond’s public disclosures are not full, fair and
accurate, or if any employee becomes aware of a transaction or development that he or she
believes may require disclosure, he or she should report the matter immediately to the
Compliance Officer.
8. Records Management
Diamond reserves the right to communicate its position on important issues to elected
representatives and other government officials. It is Diamond’s policy to comply fully with all
local, state, federal, foreign and other applicable laws, rules and regulations regarding political
contributions. Accordingly, it is Company policy that no corporate funds may be used to make
political contributions of any kind to any candidate, political party or to intermediary
organizations such as a political action committee (“PAC”), provided that this policy does not
prohibit the formation of a PAC sponsored by Diamond and the use of corporate funds to defray
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the administrative expenses of the operation of such a PAC in accordance with appropriate
federal and state laws. This general prohibition covers not only direct contributions but also
indirect assistance or support of candidates or political parties through the purchase of tickets to
special dinners or other fund-raising events, and the furnishing of any other goods, services or
equipment to political parties or committees. Political contributions or activities by individuals
on their own behalf are, of course, permissible. Employees should not make such contributions
in a way that might appear to be an endorsement or contribution by Diamond. No person may be
reimbursed directly or indirectly by the Company for any political contribution either to a
candidate or a PAC or for the cost of attending any political event.
10. Confidentiality
Confidential information also includes any proprietary information shared with Diamond
by its customers and business partners, or information that has been acquired by an employee
during the course of working for a former employer. Diamond employees have an equal
obligation to protect against the unauthorized disclosure or misuse of such third party
confidential information. Anyone who has had access to confidential Company information
must keep it confidential at all times, both while working for Diamond and after employment
ends.
10.2 Precautions
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Employees are required to observe the provisions of any other specific policy regarding
privacy and confidential information that the Company may adopt from time to time.
All employees and directors are expected to protect Diamond’s assets and ensure their
efficient use for legitimate business purposes. Theft, carelessness and waste have a direct impact
on Diamond’s profitability. Company property, such as computer equipment, buildings,
furniture and furnishings, office supplies and products and inventories, should be used only for
activities related to employment, although incidental personal use is permitted. Employees
should bear in mind that Diamond retains the right to access, review, monitor and disclose any
information transmitted, received or stored using Company electronic equipment, with or
without an employee’s or third party’s knowledge, consent or approval. Employees must
immediately report any misuse or suspected misuse of Company assets to their supervisor or the
Compliance Officer.
x Conducting annual training sessions to refresh employees’ familiarity with this Code;
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x Updating this Code as needed, with approval of the Board of Directors, to reflect
changes in the law, Company operations and recognized best practices, and to reflect
Company experience with this Code; and
The most immediate resource available to employees for matters related to this Code is
their supervisor. The supervisor may have the information requested or may be able to refer the
question to another appropriate source. There may, however, be times when employees prefer
not to go to their supervisor. In these instances, employees should feel free to discuss their
concerns with the Compliance Officer. If an employee is uncomfortable speaking with the
Compliance Officer because he or she works in that employee’s department or is one of his or
her supervisors, the employee may contact the Chairperson of the Audit Committee of the Board
of Directors.
If the investigation indicates that a violation of this Code may have occurred, Diamond
will take such action as it deems appropriate under the circumstances. If Diamond determines
that an employee is responsible for a Code violation, he or she will be subject to disciplinary
action up to, and including, termination of employment and, in appropriate cases, civil action or
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referral for criminal prosecution. Appropriate action may also be taken to deter any future Code
violations.
Employees are responsible for promptly reporting any issue or concern that they believe
in good faith may constitute a violation of this Code or any other Company policy. To report a
violation of this Code, or of any other Company policy, employees should contact the
Compliance Officer, who is the Company’s General Counsel, at [email protected] or
(209) 932-5640. Anonymous letters may be sent to: Attn: General Counsel, 1050 South
Diamond Street, Stockton, CA 95201.
x By email to [email protected] or
x Employees that prefer to maintain anonymity may send correspondence to the Audit
Committee at the following outside mailing address: c/o Steve Neil, 1855 Gateway
Boulevard, Suite 700, Concord, CA 94520.
Any waiver or amendment of this Code that applies to any of Diamond’s directors or
executive officers must be in writing, must be authorized only by the Board of Directors and
must be promptly disclosed to stockholders, along with the reasons for the waiver. Any such
amendment or waiver will be disclosed as required by applicable laws, rules and regulations.
This Code is a statement of fundamental principles, policies and procedures that govern
Diamond employees, officers and directors in the conduct of Diamond business. It is not
intended to and does not create any legal rights for any customer, supplier, competitor,
stockholder or any other person or entity.
16. Modifications
This Code shall be reviewed periodically by the Board of Directors and the Nominating
and Governance Committee of the Board of Directors and shall be updated as deemed
appropriate or necessary by the Board and/or the Nominating and Governance Committee.
Company management shall obtain written acceptance of this Code and maintain records thereof
from each employee and director. A copy of this Code and any subsequent updates hereto shall
be made available to the public on the Company’s website.
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Exhibit D
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Exhibit E
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REDACTED
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x Herearesomehighlights:
REDACTED
Thesecondfilesjustgivesthistoyoubydifferentbusinessunitsandregions
Acoupleofquestionstoaskmayinclude:
REDACTED
Justtryingtobehelpful.Letmeknowifyouneedanythingelse.JMB
JimBarker
VicePresidentSales
VitaFoodProducts,Inc.
This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review,
copying, or distribution of this email (or any attachments thereto) by anyone other than the intended recipient is strictly prohibited. If you are not the
intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.
12/2/2009
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Exhibit F
Page 1 of 3
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REDACTED
Tim,
It was good speaking to you today. As a follow-up to our call a few minutes ago, here is updated consumption sales data from Nielsen you can review. Here are
some toplines comments by brand and category. These are all pulled from the excel file “Nielsen Exec Team Monthly Updates 10-31-09. For more in depth
information down to the customer level, please refer to the other attached files.
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REDACTED
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REDACTED
I would like to keep in touch and if your company allows it, possibly setup some type of consulting arrangement for an agreed upon fee where I can be helpful.
Let me know what else I can provide to you for the category, brand or company as you prepare for the earnings call.
Jim Barker
Vice President Sales
Vita Food Products, Inc.
This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying,
or distribution of this email (or any attachments thereto) by anyone other than the intended recipient is strictly prohibited. If you are not the intended recipient,
please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.
12/2/2009