The Edwardsville, Ill., entrepreneur estimates he spent $700,000 perfecting the Kat Box King litter box, obtaining a patent, researching the market and preparing his company for a nationwide launch that could take the disposable litter box beyond local grocery shelves, where it retails for $2.99.
But McGivern's grand plans have been scrapped. Instead, he is gearing up to do battle with one of the biggest players in the pet-products business -- accusing the Ralston Purina Co. of fraud in a lawsuit filed in St. Louis Circuit Court. The suit claims top executives of the St. Louis-based pet-food giant met with him repeatedly to discuss acquiring his company, ob-tained critical business information and then abandoned the talks in March 1999 in order to launch a very similar product of their own. McGiv-ern's suit seeks more than $25,000 in damages.
"I'm embarrassed I got duped by them," he says. "I acted in good faith with them, and then they turned around and did this to me."
McGivern, 34, had dabbled with other inventions -- including patenting a "Quick Net" basketball net that can be clipped onto outdoor hoops and easily removed -- before a friend approached him with the idea of a disposable cat box in the early 1990s. It seemed like a great idea to him -- his roommate at the University of Mississippi was known to let the litter box become malodorous -- and so he created the Kat Box King company. He began selling the cat boxes in 1994, though the actual product has changed over time in the color of its packaging and with improvements to the interior coating that prevents feline urine from leaking through the box. The box was manufactured in Cape Girardeau, Mo., and began selling in the pet aisles at Schnucks and Dierbergs stores.
In the fall of 1998, McGivern says, his small company began working to distribute the product in the Northeast, though he encountered some problems that he was working to iron out. He was talking with PetsMart stores about selling the product nationally and was working to raise capital to fund Kat Box King's expansion plans. Around the same time, in September 1998, McGivern attended a charity golf tournament, where he was introduced to W. Patrick McGinnis, chief executive officer of Ralston Purina. McGivern says McGinnis inquired about his product and suggested a meeting to discuss it further. Later that week, he got a call from another executive at Ralston and met with company officials a few days later.
McGivern says he met with Ralston repeatedly and that company officials suggested they were interested in merging with or acquiring his company. As part of these discussions, McGivern says, he shared market research, a copy of his patent and details about the coating used inside the cardboard. He also told them he was working on a way to make the cardboard top resealable. Then, unexpectedly, McGivern says, Ralston officials notified him in March 1999 that they were not going ahead with a disposable cat litter box, saying the market segment was too small.
McGivern says he was stunned, when, about six months later, Ralston launched a Tidy Cats-brand disposable litter box, complete with a resealable lid. The new litter boxes began appearing on shelves at Dierbergs, Schnucks and PetsMart stores. McGivern's own discussions with PetsMart about carrying his product came to an end.
What bothered McGivern most was the similarity of the two products. They are similar in size. His reads "Disposable cat box & liner in one!" and contains other lines like: "ready to use in seconds, no plastic liner, leak proof, 10-day supply." The Tidy Cats box says: "Disposable cat box & litter in one!" and "ready to use, leak proof and 7-day supply."
Ralston won't comment publicly on the lawsuit, which was filed in March. Spokesman Keith Schopp says the company won't discuss pending litigation.
McGivern says he consulted with several lawyers after the Tidy Cats product came out but decided against a patent-infringement lawsuit -- because Ralston had a copy of his patent and likely made just enough changes to prevail, and, if it didn't, such a suit in federal court could be long and costly, and the result could be simply that Ralston might be required to make a few changes to its product. Instead, he decided on a civil suit alleging fraud for the way Ralston officials sought him out and gleaned information from him -- then claimed they weren't pursuing such a product yet launched one six months later. The case could take as long as two years to go to trial.
Now McGivern says, "I'm just trying to stay above water and keep things going, hoping for a chance to get before a jury and have them decide. Whatever decision they come up with, I'll be able to live with." He sees the case as a classic example of David vs. Goliath. His attorney, Tom Stewart of Holloran & Stewart, agrees.
"It's Sean McGivern and my small law firm up against a multinational corporation," Stewart says. "But that is a position most plaintiffs find themselves in when they sue a corporation. It's almost always the little guy that has to rely upon the common sense of the jury system to make things right."
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