O'Rourke had been with Henri's since 1969, and held some stock in the company. He didn't have the clout of a Mahler, a Glassner, or the brothers Robert and James Brachman, but his voice, nevertheless, had weight. By and large, Henri's has always been a small, democratically run outfit; even today, with annual revenues of about $17 million, it has only 75 employees. There are not a lot of fancy titles or bureaucratic fiefdoms lying around corporate headquarters at Henri's Foods. Decisions are made in the small conference room upstairs, or in the president's office right next to it. The manufacturing plant is modern and on-site. Employee turnover is low, most workers have a large say in what they do, and there are stock options to sweeten the pot. As vice-president for marketing and sales, O'Rourke was the closest man to the marketplace, and therefore the most finely tuned in to new-product demand. If he said "yogurt dressing," the lab got busy.
Unlike most of Henri's products, Yogowhip was initially contracted out for production to a co-packer in Cincinnati. Today it is made, like the other dressings, at Henri's home plant. The two men directly responsible for the actual manufacturing of Yogowhip are Norman Kidd, director of technical services, and Ted Bayless, director of manufacturing. Kidd, who once worked for Kraft, came up with the flavor profile. Bayless, a refugee plant manager from Miller Brewing Co., supervises the production line. Both are proud of the company's history of innovation, a pride that covers everything from Henri's development of a no-spill, zipper-top packet for dressings used on airplanes to its ability to make standard machinery work better.
"This is the only plant we have," said Bayless on a walking tour of the facility last October, "so it has to keep running. A big company like Kraft can always switch production to another site, but we don't have that luxury. There's hardly a piece of equipment in here that we haven't either modified by hand or built ourselves."
Bayless pointed to a Japanese seal-wrapping machine that slaps tamper-proof plastic wrappers on the necks of pourable-dressing bottles. "The company that makes it, Fuji, had a big problem with this thing," he said. "The seals wouldn't hold. We spent several months on it and solved the problem for them. Now they want to buy our process. Kraft, incidentally, tried to but couldn't solve it, so they went to paper neck bands instead. No big deal, but it gives you some idea of how fast we have to think on our feet around here."
Like others at Henri's, Kidd and Bayless had come to see the development of new products as their one competitive edge in an industry dominated by high-volume dealers and national brand names. To draw blood from a company with the marketing muscle of a Kraft, both knew, would take more than a pale imitation of Miracle Whip; Kidd, for one, thought they had it. It even sounded good. O'Rourke had come up with the name "Yogowhip," as he had for "Yogonaise," a companion spread. Nobody ever had a problem with "Yogonaise." "Yogowhip," however. . . .
"In all honesty," says O'Rourke of the title that launched a 1,700-page trial transcript, "I never gave [it] much thought. 'Yogonaise' was a mayonnaise with yogurt in it. 'Yogowhip" was a whipped dressing with yogurt in it. My mother had made a whipped dressing in her kitchen when I was a kid. To me, 'whip' was just a descriptive term of how a product was made. Besides, I liked the names because they described what the products were."
Raymond Krueger remembers a phone call he took from Morgan Fitch Jr. Fitch is a senior partner in one of the law firms representing Kraft, the kind of lawyer who rings you up when there is serious news to convey. Krueger, a young trial lawyer with Glassner's law firm, heard Fitch saying grimly over the other end of the phone that Kraft had no recourse but to take its complaint to court.
"He sounded like he was firing the last warning shot," says Krueger. "I listened politely but didn't say much. The morning before, we'd filed against Kraft in district court right here -- Fitch, in fact, got served with papers about three hours later. He and I had a nice little chuckle about that afterwards."
Opportunities for such merriment were soon hard to come by. By filing first -- alleging fraud, mislabeling, unfair advertising, and antitrust violations, among other matters -- Henri's headed off the anticipated trademark suit. That saved the company a lot of money in potential legal costs; district court in Milwaukee was a lot cheaper to get to than district court in Chicago, where Kraft is headquartered. It also signaled the company's sober intent to "take Kraft to the mat," as Glassner and his partners phrased it to Brachman. Krueger, now 37, thinks he has learned some "short-form rules" about representing a small company against an industry leader -- rules that could be said to have guided Henri's strategy from the outset.
"Number one," he explains, "the small company must have enough at stake to want to see the fight through. Two, it must make that commitment up front. Three, you conduct the case in such a way that you expect it to go to trial, not settlement. Four, you try to survive the first round intact -- not get buried by [the other side's] dollars. Five, you pick an issue you can win on, legally and practically. Six, you do it. I mean, to the mat."
The contours of that mat began taking shape in 1978, when Forrest Henri Dupre, another colleague of Glassner's, was dispatched to Chicago to look through company documents related to Miracle Whip's trademark and marketing practices. Kraft had arranged for a room to be made available in its general operating headquarters. The room was about 10 feet by 12 feet, with no windows and a single fluorescent light. Into it Kraft had dumped several hundred thousand unsorted documents -- "the emptied file drawers of every appropriate executive they could identify," Dupre surmised. He brought along one paralegal with a microfilm camera. In seven weeks, the two of them marched their way through 1.5 million pieces of paper, a lot of it "horrendous duplication," in Dupre's words, "although there was the occasional gold nugget." Forty thousand pages were reduced to microfiche, and in turn became the database for a computer program painstakingly designed to cross-reference information. As Glassner later noted with a tiny smirk at the corners of his mouth, "Kraft apparently instituted a paper-shredding policy sometime in there, but we got a court order against it. It was a little late, anyway."
