Author Archives: Michael Williams

Doritos Locos Drama: Did Taco Bell Steal the Idea from a SuperMax Prisoner?

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I’ve already blogged about why it might’ve taken Taco Bell so long to develop the Cool Ranch Doritos Locos Taco. But if one federal SuperMax prisoner is telling the truth, there’s a much more interesting story behind the cheese-dusted receptacles of deliciousness.

In a complaint filed in the U.S. District Court for the Northern District of Texas, prisoner Gary Anthony Cole alleges that Taco Bell stole the idea for Doritos tacos from him. In fact, Cole allegs that PepsiCo, Frito-Lay, Yum! Brands, the Federal Bureau of Prisons, Congress, Satan, and others have all conspired to steal his original brilliant idea. Cole evidently sent a letter to his attorney a few years ago that included several great inventions. Among them: “Taco Shells of All Flavors (Made of Doritos).” Cole surmises that Taco Bell stole his idea from the mail and profited handsomely.

Of course, this complaint only raises the question of why nobody stole any of Cole’s other great ideas, including “Divas and Ballers Hairfood” and “Wood Binder.” But I digress.

What’s interesting about Cole’s complaint is that it relies upon intellectual property rights. Food and cuisine protection is something of a no man’s land within the IP realm. Recipes, menus, and the like usually aren’t considered protectable. See, e.g., Emily Cunningham, Protecting Cuisine Under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?, 9 J. High. Tech. L. 21, 22 (2009); see also Vasquez v. Ybarra, 150 F. Supp. 2d 1157, 1166 (D. Kan. 2001) (“After all, a taco is a taco.”). And although some scholars have argued that trade dress could prevent food theft, that doesn’t seem to be an idea that many courts have embraced. But see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) (stating, in landmark taco-related decision, that Mexican restaurant could assert trade dress claim against another Mexican restaurant).  If I were advising Bell–no doubt our generation’s Nikola Tesla–I would tell him that he should instead consider a standard misappropriation claim.  See, e.g., Myung Ga, Inc. v. Myung Ga of Md., Inc., No. DKC 10-3464, slip op. (D. Md. Aug. 8, 2011) (finding recipe for stir-fried squid might amount to trade secret).

I wonder too whether Cole knows that he’s going up against a plaintiff who’s sensitive to these kinds of of “idea theft” cases. In Wrench LLC v. Taco Bell Corp., Taco Bell wrestled with a claim that it misappropriated the idea for the “Yo Quiero Taco Bell” dog. A Michigan jury found that Taco Bell did take the idea and owed the original creators $30 million. That figure went up to $42 million with interest. If Cole’s claim had any legal merit whatsoever–and joking aside, it doesn’t–then Taco Bell might have been quick to settle after its $42 million lesson in defeat.

In any event, I’ll be monitoring this case closely for any additional Doritos Locos developments. If this case were to make it to discovery (here again, it won’t), I imagine we’d see some interesting evidence on how the snack-food-cum-tortilla came to be.

-Michael

P.S. This case includes perhaps the best BigLaw-authored letter ever. Notable lines: “By now you should have received the taco documents. … Do not ‘put a knife’ to the staff.”

P.P.S. If you’re interested in taco litigation, you might also be interested in Panera v. Qdoba. In that case, a Massachusetts court determined that tacos–in addition to burritos and quesadillas–do not qualify as sandwiches. Judge Richard Posner later wrote an essay discussing a similar case and arguing that a taco might be a sandwich after all.

[H/T Legal Blog Watch]

Slate’s Article on O’Connor Misses the Mark … Or Does It?

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Over at Slate, Emily Bazelon seems to have an article criticizing Justice O’Connor for retiring from the Supreme Court too early. One would at least think that from the subtitle, which reads: “Retired Justice O’Connor regrets the Supreme Court’s lurch to the right. So why didn’t she stay and prevent it?” As it turns out, O’Connor had a perfectly good reason for leaving the Court, as she’s said before:

O’Connor, who is still physically and mentally fit, said it was her plan to follow the tradition of previous justices, who enjoy lifetime appointments, to work until they die or are virtually incapacitated.

“Most of them get ill and are really in bad shape, which I would’ve done at the end of the day myself, I suppose, except my husband was ill [with Alzheimer's] and I needed to take action there,” O’Connor said.

So, if Bazelon means to attack her for leaving, I think she’s out of line. O’Connor left to care for a sick loved one.

But interestingly, the text of the article itself doesn’t talk much about O’Connor’s choice to leave. Instead, the article focuses on Justice O’Connor’s more moderate statements since leaving the bench and asks why O’Connor didn’t employ such moderation while she was still on the bench. (And it dregs up some more bitching about Bush v. Gore.)

So I find the article most interesting because it might demonstrate how writers are occassionally held accountable for the sins of their editors. The editors, of course, are the ones who write the headlines. I suspect in this instance that Bazelon’s editor didn’t really understand the import of the article. Or perhaps the editor was looking for a provocative question to drive pageviews and comments.

But in any event, the answer to Slate’s question is easy: no, Justice O’Connor didn’t leave the Court too early.

-Michael

I usually don’t care for Lawyerist, but this

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I usually don’t care for Lawyerist, but this post hit it right on the nose:

So, he added, it’s natural for a young idealistic lawyer to try to improve the situation [in a big law firm] (or fight the power). But his advice was to not do that. Instead, he revealed his next page. It read, “FIND the power and SUCK UP!”  A few nervous giggles bounced around the room for a moment. He smiled, knowingly.

If you’re thinking about going to law school so that you can work at a large firm, or if you’re already in law school and have the same dream, then you should read the whole thing.

-Michael

Why Did It Take So Long for Us to Get the Cool Ranch Doritos Locos Taco?

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Mmm....delicious.After the wild success of the Nacho Cheese Doritos Locos taco, one might wonder why Taco Bell didn’t immediately create a Cool Ranch Doritos taco. Instead, the company took its time. Taco Bell launched the inevitable companion to its first snack-food-fueled hit only a few months ago, after an additional one-day delay in rollout. In new ads, Taco Bell even makes fun of itself for taking so long to come up with “the world’s most obvious idea.”

The delay is probably an interesting consequence of a somewhat unusual economic condition: bilateral monopoly. That condition occurs when there’s only one buyer and one seller. For instance, someone might be selling a rare family heirloom that holds value only to the sole surviving member of the family. Or, in the classic example, the owner of the sole coal mine in a “factory town” might be forced to bargain with a union of coal workers. There are many other examples.

The Doritos Locos taco presents a kind-of-sort-of bilateral monopoly. Taco Bell is really the only buyer that would find the Doritos mark and license to be quite so useful. Yet Doritos would not find another national retailer who would make as much use of the brand or show as much interest in it. In other words, they can’t live without one another. (An economist would dryly observe that this kind of situation can produce “noncooperation by the seller and the buyer [that] can result in market failure and the nonexistence of both parties.” Ouch.)

But in a bilateral monopoly, a broad range of potential prices can lead to negotiating delay. This is not a situation where supply simply meets demand; rather, the market can “clear” at any number of prices that fall between the monopoly price (that is, the price where the market has one seller) and the monopsony price (that is, the price where the market has one buyer). One might expect the parties just to split the difference and choose the middle of the price range, but that can get complicated where there are differences in bargaining strength. It could be that bargaining strength was a special problem here because (a) Taco Bell needed the sales from the tacos to drive its business, but (b) Doritos needed the licensing and/or royalty fees that could only be derived from a Taco Bell deal.

So the ultimate creation of the Cool Ranch taco is a testament to the power of the parties’ negotiators. And it looks like they came up with some neat solutions. For instance, both parties became buyer and seller, as Taco Bell turned around and let Doritos use Taco Bell’s mark for the new Doritos Locos Doritos chips. As The Huffington Post explains, these are “Doritos chips designed to taste like tacos designed to taste like Doritos.” Brilliant.

In any event, my hope is that the Doritos Locos tacos will end up in economics textbooks one day. They’re certainly a tastier case study than coal mining.

-Michael

Sotomayor’s Noncitizens [sic?]

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In her majority opinion in Moncrieffe v. Holder today, Justice Sotomayor repeatedly refers to “noncitizens,” even though the statute refers to “aliens.” Justice Alito wasn’t pleased, and even went so far as to call Justice Sotomayor out in a footnote for her semantic choice. As it turns out, the difference between “alien” and “noncitizen” is legally relevant. Aliens aren’t citzens, but they’re also not nationals. Compare 8 U.S.C. § 1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”), with §1101(a)(22) (defining “national of the United States”). Even international instruments–like the UN Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live–recognize a between aliens and noncitizens.

In other words, Justice Sotomayor used a word that embraces more people than it should.  So, her word choice might’ve accidentally extended a statute that applied only to aliens to folks like: (1) American Samoans; (2) natives of Swains Island; and (3) anyone living in the US Minor Outying Islands. (The distinction used to have even more importance back when residents of Guam, Puerto Rico, the Phillipines, and the U.S. Virgin Island were non-citizen nationals.)

In the future, if she doesn’t like the word alien, she might consider the term “nonnational,” since all citizens are indeed nationals.

Grammar nerds might also note that Sotomayor didn’t use a hyphen in “noncitizen.” The Chicago Manual of Style tells me that she’s justified in doing so. But Sotomayor has perhaps unintentionally taken sides in a grammar debate that seems to be silently raging within the U.S. Code. Compare 8 U.S.C. § 1452 (referring to “non-citizen” status), with 5 USC § 8138 (referring to “noncitizens”). How bold of her.

-Michael

[H/T: Josh Blackman]

Jeffrey Toobin Makes Up A Constitutional Question

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On CNN this morning, I was surprised to hear Jeffrey Toobin suggest that the federal government might have a problem seeking the death penalty against Dzhokhar Tsarnaev because Massachusetts doesn’t allow it. Toobin even went so far as to say it might be “unconstitutional” for the Feds to go for death. My understanding of the dual sovereignty doctrine was such that Massachusetts’ choices about how to punish state offenders have very little to do with the Feds’ decision to punish theirs.  But sure enough, Toobin’s Twitter feed from a few days ago seems to hint at the same point:

After confirming my understanding, I’m now comfortable putting this argument to rest: there’s no colorable argument that it is “unconstitutional” for the federal government to impose the death penalty on an offender who commits his crime and/or is later captured and tried in a non-death penalty state.

Toobin’s argument seems confined only to law review notes and Hail Mary sentencing arguments. But pratically speaking, the Government is perfectly comfortable bringing death penalty cases in non-death-penalty jurisdictions, having pursued such a sentence at least 40 times in recent years (with nine cases going all the way to a death sentence). Courts are, too. Although case law is a bit sparse on this question, the First Circuit Court of Appeals–which, keep in mind, covers Massachusetts–has ruled that the federal death penalty may be applied in Puerto Rico despite that commonwealth’s locally-enshrined opposition to death sentences. See generally United States v. Acosta-Martinez, 252 F. 3d 13 (1st Cir. 2001). Puerto Rico probably had a stronger argument than most states, as Congress has passed a rather unique statute acknowledging that certain matters are “locally inapplicable” in Puerto Rico. Excepting the federalism protections found in the Constitution, states don’t really enjoy the same protection. We got another glimpse of how federal law trumps in this context in United States v. Pleau, 680 F. 3d 1 (1st Cir. 2012), a case in which the Governor of Rhode Island refused to turn over a state prisoner to the Feds without some assurance that the prisoner wouldn’t be executed. The Feds refused, and the First Circuit said that the Governor had to turn the criminal over despite the state’s opposition to the death penalty.

In short, “[c]ourts have upheld the Department [of Justice]’s actions [in seeking the death penalty in non-death penalty states] as being constitutionally permissible given the supremacy of federal law.” So Toobin’s imagining an issue that doesn’t really exist. (Much as he has previously imagined the thoughts of Supreme Court Justices.)

What is perhaps more interesting is how Massachusett’s opposition to the death penalty might affect the federal government’s chances of actually getting a death penalty sentence out of a Massachusetts jury. Massholes Massachusetts jurors have long been uncomfortable giving the go-ahead on death.  Even in the infamous “Angel of Death” case, for instance, a Massachusetts jury ultimately declined to recommend death. But, then again, a Massachusetts jury did impose the death sentence on carjacker Garry Lee Sampson. (That sentence was later overturned, but the Feds are trying to reinstate it.)

In any event, Toobin’s state-centered “constitutionality” concern is certainly a red herring. There are enough real legal issues in the Boston Bomber prosecutions, so Toobin would be best advised to stop pressing this imaginary one.

-Michael

A New Supreme Court Case Shows What Might’ve Been in Kiobel

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For some time now, Susan and I have been saying that courts already have a number of tools at their disposal to limit the reach of the ATS, even before Kiobel. Because of those tools, there was really no need for the Court to reach out and limit the scope of the potential substantive claims that could be brought under the ATS. Although the Court was concerned that the ATS permitted undue judicial interference in foreign affairs, courts could’ve already used things like personal jurisdiction, comity, forum non conveniens, and the like to keep themselves out of distant foreign fights.

The Supreme Court granted cert in a case today that shows just how that could’ve worked. DaimlerChrysler AG v. Bauman might first first appear to be a rather dry personal jurisdiction case, lovable only to civil-procedure nerds. But the root question–whether a company may be subjected to a lawsuit in the United States based only on the acts of its subsidiary–goes to a question quite close to the one in Kiobel. (And interestingly, Bauman includes claims under the ATS.) If the court uses Bauman to reemphasize the jurisdictional importance of corporate separateness, then all the problems that the Court was trying to solve in Kiobel would’ve gone away.

Take Kiobel itself as an example. That case involved a Nigerian subsidiary (who was the primary tortfeasor) and a British/Dutch parent. So far as I know, the Nigerian subsidiary had no contacts with the United States, so personal jurisdiction would be hard to establish as to that defendant. (I believe that the District Court ultimately dismissed the Nigerian subsidiary for that very reason.) The British/Dutch parent had an office in the United States, which probably shouldn’t be enough for jurisdiction.  But see Wiwa v. Royal Dutch Petro., 226 F. 3d 88, 92 (2d Cir. 2000). So if we’re being truthful, the lower courts were probably comfortable exercising jurisdiction over the British/Dutch parent because of the parent’s “American connection” through a separate, American subsidiary. But if Bauman goes the way that I expect, than that connection wouldn’t be nearly enough. 

In any event, the Supreme Court probably took Bauman because it applies a test embraced by Wiwa, and Wiwa was invoked (and repudiated) by a few of the players in Kiobel. In other words, the Supreme Court was reminded that a bad case was floating out there and saw a chance to fix it. Still, I wish that Bauman had also reminded the Court that Kiobel was a needless overreach, which could’ve been avoided through the strict application of first-year civil-procedure principles. Too late now.

-Michael

These Aren’t The Droids … Err … Jurisdictional Hooks You’re Looking For

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Folks are already getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee suggests:

Another [case where the ATS might still be invoked] might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

I’m not sure how that would work. If we’re talking about bringing claims against the individual offender, then you’re going to run into problems with the Westfall Act, which transforms tort claims against federal actors (acting in their official capacties) into Federal Tort Claims Act claims against the United States.  See, e.g., Garcia v. Sebelius, 867 F. Supp. 2d 125, 134-36 (D.D.C. 2012) (magically tranforming ATS claims into FTCA claims). And the FTCA bars claims that arise from (a) intentional torts; or (b) acts in foreign countries, so ATS claims would be dead-in-the water. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700-12 (2004). For the same reason, a potential alien plaintiff couldn’t bring a claim against the United States directly.

-Michael

Citizens United Is Not Relevant

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Josh Blackman, who I usually agree with, writes this:

What precedent is *not* cited anywhere in Kiobel?

Citizens United. Not a single citation anywhere. So much for an expansion of the corporate-personhood-bugaboo.

I don’t get it. Kiobel, as written, doesn’t really go anwhere near the corporate liability issue. How on Earth would Citizens United then be relevant? One could just as easily say:

What precedent is *not* cited anywhere in Kiobel?

Roe v. Wade. Not a single citation anywhere. So much for an expansion of the abortion-rights-bugaboo.

-Michael

Kiobel: Hating on Common Law?

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My last post on Kiobel got me thinking: is this just a product of good-ole-fashioned conservative hatred of judge-made law? The first part of the majority’s analysis begins by noting that the statute wasn’t used much for the first 200 years or so of its existence. The fact that the Court needed to cite this rather irrelevant fact hints that the Court is none-to-pleased with the emergence of the ATS as an honest-to-goodness statute of judge-made liability, and feels that it’s killing off a statute that never should have developed into anything in the first place. And, in the same vein, the Court later complains about the difficulties of defining standards of liability in the international law context. So what? That difficulty should have been apparent to the Court in Sosa, but it wasn’t a reason to trash the statute then, and it shouldn’t be now.

Erie said more than 70 years ago that ”[t]here is no federal general common law.” I get the sense in reading Kiobel that the conservatives continue to wish that were true, even though the ATS cries out for quite a different conclusion.

-Michael