On Monday, as first reported by the Boston Globe, America’s Test Kitchen (ATK) filed a complaint in Massachusetts’s Suffolk County Superior Court against Kimball and his new company. His co-defendants are his wife and former ATK employee, Melissa Baldino; Christine Gordon, Kimball’s former executive assistant at ATK; and Deborah Broide, who worked as a public relations consultant for ATK.
“Mr. Kimball spent the last year of his employment with America’s Test Kitchen creating a new venture which literally and conceptually ripped off America’s Test Kitchen,” the lawsuit says. (While “America’s Test Kitchen” is the brand’s flagship public television series, it’s also the name of the multimedia corporation that includes its cookbook operations, online cooking school, Cook’s Illustrated and Cook’s Country magazines, a now-defunct radio show, and a variety of other assets.)
The lawsuit claims that Kimball essentially stole company resources to create a competing venture, Milk Street, that, like ATK, includes radio, television and online presences. Both companies are based in the greater Boston area.
“It’s more complex than a former employee going out and starting a new business,” Jack Bishop, ATK’s chief creative officer, said in an interview. That’s because Kimball, one of ATK’s founders, is still considered a partial owner.
“No one is really happy we’re here. Let me start with that. I’m not the only one who has known Chris and worked with Chris for a long time, but we are here because of Chris’s actions,” said Bishop, who also frequently appeared with Kimball in “America’s Test Kitchen” and “Cook’s Country” segments. “It is what it is.”
Scott Lashway of the Boston office of firm Holland & Knight, the attorney representing Kimball and his co-defendants, declined to comment. But in an interview with The Post last month about the new venture, Kimball said Milk Street is inspired by global cuisine that is less reliant on heat and time and more so on spices and levels of flavor. “It’s just a whole new way of thinking about cooking,” Kimball said. “In my prior iteration, which lasted 35 years, there would be no starting point outside of the kitchen. . . . With Milk Street, I think, we’re always starting someplace outside of Milk Street. We’re trying to tell the story to give a little bit of context. We’re trying to travel to actually go learn something.”
Among other things, ATK is seeking damages for Kimball’s “breach of fiduciary duties,” from both Kimball and the co-defendants for “aiding and abetting” him. It also seeks the return of a portion of Kimball’s 2015 salary, as well as part of Baldino’s, Gordon’s and Broide’s, since it accuses all of building Milk Street on ATK time.
The suit also seeks “all profits Kimball and CPK Media derived from the theft and misappropriation of ATK’s confidential information, trade secrets and business opportunities.”
We’ve pored over the 39-page complaint, as well as emails attached to it. Here are some of the big take-aways.
America’s Test Kitchen alleges that Kimball used company resources and relationships to create his new endeavor.
“To quickly break into the marketplace with a viable and recognizable company,” it alleges, “Mr. Kimball stole confidential information from America’s Test Kitchen, solicited America’s Test Kitchen employees and outside relationships and misappropriated corporate opportunities belonging to America’s Test Kitchen.”
Among ATK’s allegations: that Kimball sought to capture the email addresses of readers; that Gordon misrepresented herself as doing business for ATK while searching for real estate for Milk Street; that Broide provided Kimball with media lists she had built while a consultant at ATK; and that Kimball tried to recruit current ATK staff to work at Milk Street.
According to the suit, even after Kimball was officially terminated as an employee of ATK in November 2015, he maintained an 8.59 percent partnership interest in the company. In addition to his responsibilities as an employee, his position as a part owner means Kimball violated his “fiduciary duty of utmost good faith and loyalty to ATK and his partners” in creating a competing business built on what he allegedly took from the company, the suit claims.
“We are not arguing that Chris couldn’t go out and create something in the food and media business,” Bishop said, but ATK takes issue with the way he has done so and how it appears to rest “on literally the shoulders of our intellectual property.”
Kimball’s work at ATK has been lucrative.
According to the suit, in 2015, he was paid more than $1 million in salary and bonuses. But that doesn’t include his partnership distributions; so far this year that has totaled $772,000. According to the lawsuit, he has been paid more than $30 million in partnership distributions, which an ATK representative said began in 1995.
Emails can leave a potentially incriminating “paper trail.”
The suit cites a variety of electronic communications sent and received by the defendants. Emails attached to the complaint include notes between Gordon and real estate brokers; between Kimball and an IT consultant covering such issues as how to store “hundreds” of recipes Kimball said he was scanning (which ATK alleges were stolen) and whether ATK would have access to his Gmail account (messages from that account are in fact included in the suit); between Broide and Kimball regarding the media lists; and between Gordon and the ATK help desk about whether company scanners would keep copies of documents she scanned.
And that’s just a start. The suit asserts that further investigations into Kimball’s “private email accounts will likely reveal additional instances of corporate theft.”
America’s Test Kitchen’s radio and television shows are already being affected.
In January, a new 26-episode season of “America’s Test Kitchen” (which the suit says is public television’s most-watched cooking show) will become available to stations, which have flexibility to air according to their own schedules. It will be the first one to not include Kimball as host; he’s being replaced by a duo of longtime on-air personalities, Julia Collin Davison and Bridget Lancaster. A similar transition will occur in the next season of “Cook’s Country,” which will be available starting in September 2017.
The lawsuit alleges that Milk Street has already interfered with ATK’s television properties. It claims that Kimball and Baldino met with ATK’s production company before the pair left ATK; the production company is now working to produce Milk Street’s series and informed ATK that “it would be severing relations with ATK even though ATK expressed a strong desire to continue the contract,” the suit says.
The suit alleges that Kimball also sought out PBS affiliate WGBH in Boston as Milk Street’s “presenting station,” meaning it works to market a show, get stations to pick it up and ensure programmers schedule it at an optimal hour. ATK “was forced to change its presenting station for the 2017 season,” the suit says (it’s now Arlington-based WETA), because WGBH would otherwise be presenting three shows with Kimball as host, due to broadcasts of the current seasons and reruns. Milk Street is filming its first season, with a projected air date of fall 2017.
Similarly, the suit alleges that Kimball’s actions on behalf of Milk Street’s radio program harmed ATK. It says that the distributor of ATK’s radio show decided not to renew its agreement with ATK, “concluding that Milk Street Radio competed directly with ATK Radio.” ATK also alleges that in November 2015, Kimball “orchestrated the bait and switch” by offering to produce ATK Radio through his new company — and ATK accepted “on assurances that Mr. Kimball had no plans to compete with ATK” — but then announced in April that he would cease production in six months. The last day of ATK Radio was Oct. 15, and Kimball’s new show debuted a week later. ATK has now forged a partnership with radio program “The Splendid Table,” which, beginning in 2017, will feature a weekly ATK segment.
Similarities between Milk Street and Cook’s Illustrated magazines are too close for ATK’s comfort.
The lawsuit disputes Kimball’s claim that Milk Street is conceptually different from Cook’s Illustrated (which the suit says has more than 1 million paid subscribers) because of its focus on global recipes and techniques, rather than Northern European tradition. “Since its inception, ATK has written about recipes and techniques from around the world, especially in Cook’s Illustrated,” the suit says. “Indeed, while at ATK, Kimball openly compared Northern European cooking (as a melting pot cuisine) with the ‘rest of the world,’ which uses more spices and less heat — the very concept he now touts as the foundation of Milk Street.” Additionally, it states, Kimball “promotes Milk Street as a cosmopolitan reboot of America’s Test Kitchen.”
The lawsuit also takes a very detailed approach to comparing the two magazines. “In format, Milk Street Magazine runs 32 pages, the same page count of Cook’s Illustrated and Cook’s Country, which Mr. Kimball previously recognized as unique. It has no ads. It moves from a table of contents insert to a Page 1 ‘editor’s note’ letter . . . to recipe features to a Page 32 ‘Tools’ review, to a stylized back cover,” the suit says. “In design, Milk Street Magazine employs layout and font nearly identical to Cook’s Illustrated.
“In content, Milk Street Magazine’s recipe section employs the same narrative arc of the Cook’s Illustrated case study approach,” the suit alleges, in which a problem is diagnosed and food science and subsequent recipe testing are used to address it.
“We’re not an island” when it comes to recipe and food coverage, Bishop said in the interview, but he said the “unique” approach that the lawsuit accuses Kimball of usurping is what makes Milk Street much more uncomfortably similar to ATK than other publications and blogs.
The lawsuit also claims that Milk Street’s masthead “reveals that at least 15 former and current ATK employees and freelancers now work for Milk Street. . . . This astonishing continuity in workforce ensures the across-the-board replication of ATK by Milk Street.”
According to a Sept. 26, 2015, email that the suit quotes, Kimball wrote to Bishop: “I’m not interested in going head to head with ATK — too much at stake financially, and I’m not that lame!”
The conflict was apparently brewing long before Kimball officially left.
The lawsuit says that as early as 2013, discussions were underway at ATK to bring on “professional executives, including a formal COO and CEO, and board members who had more media industry experience.” That came to fruition in 2015, including the hiring of David Nussbaum as chief executive; Kimball had “functioned as the CEO of ATK” up until that point, the suit says. It alleges that Kimball “secretly resented giving up any control of the business” and began to build Milk Street while still in talks with ATK about continuing “to serve as a leader and the external face of ATK.”
The suit claims that in late August 2015, Kimball told other employees he had been fired and began trying to recruit colleagues to join his new venture.
But according to the suit, by that point the board had offered to keep Kimball on at the same salary and bonuses, and didn’t fire him until November, in part because of his alleged work to start Milk Street.