Burger Beef: Killer Burger Sues Upstart Over Alleged Recipe Theft

"The defendants are stealing from Killer Burger. They should be stopped and must be made to pay."

(Sam Gehrke)
By Matthew Korfhage

Local burger chain Killer Burger is suing its former partner over an epic burger beef.

With 9 locations and a kiosk at Moda Center, Killer Burger has become one of the most popular burger spots in town. Last month, it topped our Best of Portland Readers poll.

But after what appears to be a messy divorce between its co-founders, Killer Burger's current owner, TJ Southard, has filed a lawsuit alleging theft of recipes.

In a lawsuit filed August 4, Killer Burger owner TJ Southard alleges that former founding partner Mark McCrary, along with his wife Robin McCrary, have stolen secret burger recipes for Killer Burger's Epic and Black Molly burgers.

(Sam Gehrke)

The McCrarys opened a hard-rock themed burger joint Rock and Roll Chili Pit this April, just blocks from the downtown Killer Burger, and Southard says the burgers sold there make use of Killer Burger's proprietary recipes.

Related: Everything is Extreme at Portland's New Rock and Roll Chili Pit

The lawsuit was first noted by the Oregon Intellectual Property blog, and subsequently picked up by Eater.

Southard seeks an immediate injunction, and demands all profits from the disputed burgers, along with royalties, compensatory damages and legal fees.

McRary and Southard founded Killer Burger together in 2010, but McCrary left the business last year—and judging from the unusually blunt language in the lawsuit, the split was far from amicable. Killer Burger also cited our review of RRCP as evidence of wrongdoing.

Defendant Mark McCrary is a former owner of Killer Burger who ceased being involved with the company in 2016. His new restaurant business, which he and his wife, defendant Robin McCrary, own and operate through defendant Rock and Roll Chili Pit, Inc., is currently using and advertising two burgers which were stolen straight from the Killer Burger menu. These two stolen burgers have the same names and ingredients as Killer Burger's "Epic" and "BlackMolly." When defendants opened their store in April 2017, an article in the Willamette Week newspaper noted that the similarities between Killer Burger's business and defendants' new store were "suspiciously hilarious," but there is nothing funny about it. The defendants are stealing from Killer Burger. They should be stopped and must be made to pay.

The suit also alleges that certain disparaging, anonymized comments on social media were "clearly made by the McCrarys or those associated with them.

In particular, the suit alleges the the McCrarys or their associates wrote that "When they open a new burger restaurant they will run you out of the business…. This place was amazing because of the Killer owners and Killer staff but since you got rid of all of them it's just a shitty mess! Boycotting you forever! F[***] YOU TJ!"

As to the suit’s main point, Southard asserts that McRary agreed to a non-disclosure agreement, and that the recipes for the “Black Molly”, “Epic”,and Killer Burger peanut-sauce were confidential under that agreement. 
The Black Molly—essentially a Philly cheesesteak on a burger—is not currently listed on the Chili Pit’s online menu.
But the ingredients of the two Epic Burgers do appear strikingly similar.
Killer Burger’s “Epic Burger” contains “Pulled pork, bacon, texas sweet slaw, monterey jack, grilled onion, bacon, bbq sauce, house sauce.”
Rock and Roll Chili Pit’s “Epic Burger” contains “pulled pork, bacon, jack cheese, slawsome & bbq sauce, onion, spread.”

The fact that the burgers are named the same seems to be particularly aggrieving to Killer Burger's owner:

“The McCrarys did not even bother to change the names of these hamburgers,” the suit alleges. “The McCrarys are not hiding the fact that they are knowingly, willfully and intentionally serving the Killer Burger’s proprietary products.”

We've reached out to both parties for comment, and will update with any new details.

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