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, then you might also enjoy 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]

XXX. — Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves. The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says .. that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concur rent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort? — which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.” — Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period. ]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further; — for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment — capital or what? 3d. Whence is the venue to come?

As these offenses had taken place in the territory of other sovereigns — and not upon the high seas, which is the geographical extent of Congress’ authority to prescribe “piracies and felonies” — Jefferson concluded that the Constitutional authority for acting against the Georgians’ incursions came from the “offences against the law of nations” clause. Jefferson then considered whether Congress had previously, pursuant to this authority, provided for any laws that might reach the challenged conduct and, in examining the section now known as the Alien Tort Statute, finds that Congress had. Unfortunately for Jefferson, the ATS would not protect the U.S.’s interest in this instance, leading him to  lament the apparent lack of federal jurisdiction for such a case to be heard before the federal courts: “what if there be no alien whose interest is such as to support an action for the tort?”

But Jefferson implicitly accepted that, under the ATS, an alien possessed an individual cause of action for an extraterritorial tort. Although no plaintiff existed to have standing in the particular instances contemplated here, the U.S.’s jurisdiction over the defendants was obvious to Jefferson. Constitutional authority to provide a cause of action over the offence was authorized under the “offences against the law of nations” clause; subject matter jurisdiction in the district courts was provided for by section 9 of the Judiciary Act of 1789; and personal jurisdiction was to be had over the defendants owing to both their presence in the state of Georgia and their status as U.S. citizens. No ‘presumption against extraterritoriality’ would have applied, under Jefferson’s understanding, because such a judicial construction would have directly undermined the congressional purpose underlying the ATS.

-Susan

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

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

the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. ‘[T]here is no clear indication of extraterritoriality here,’ and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

Although I fully agree with the Court’s conclusion that jurisdiction did not exist over the claims being asserted by the Kiobel plaintiffs, the majority’s reliance on the presumption against extraterritoriality to reach this holding is ill-placed. Although I strongly disagree with the majority’s claim that the ATS does not evidence an intent to apply abroad, under the reasoning applied in prior precedent, the presumption against extraterritoriality should not apply here, as the Legislature is not required to specifically define a locus for statutes enacted to defend the U.S.’s security interests.

Which was precisely the First Congress’ purpose in including the ATS in the Judiciary Act of 1789. As the majority acknowledges, the ATS was enacted, at least in major part, in order to “avoid[] diplomatic strife” by ensuring there would be a federal forum in which the citizens of foreign states could be provided relief for violations of the laws of nations. If such relief was not made available, and an alien’s injuries were not remedied, then the United States could itself be liable for a breach of international law. Because a private individual’s violation of international law could endanger the United States’ national interest, and require the United States to offer restitution for the offense, an ATS suit was a matter of public, and not private, concern.

Given that background, it seems preposterous to hold that the ATS does not evidence an intent to apply extraterritorially. However, under the Court’s own case law, the presumption against extraterritoriality does not apply to laws which “are enacted because of the right of the Government to defend itself[,]” which is precisely the purpose for which the ATS has been enacted. United States v. Bowman, 260 U.S. 94 (1922).

In Bowman, it was held that the presumption against extraterritoriality did not apply to a federal statute prohibiting “conspir[ing] to defraud a corporation in which the United States was and is a stockholder.’” There, the Supreme Court reversed the district court holding that it lacked jurisdiction over the offense, which had taken place on ships in the high seas and in the territory of Brazil, because the crime had been ”committed without the jurisdiction of the United States or of any State thereof and on the high seas or within the jurisdiction of [a foreign state].”

We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

Although Bowman concerned a criminal statute, and not a civil act, the Court’s reasoning in that case applies to the ATS with equal force. It was not necessary for Congress to make specific provision for the ATS’s jurisdictional reach, because the ATS could be presumed to reach any act which might endanger the U.S.’s natural interests, so long as such jurisdiction could be exercised in conformity of international law. (And if the U.S. was prohibited under international law from exercising jurisdiction over a particular offense, then the ATS’s purpose isn’t implicated anyway, because in such a case the U.S. is not at risk of breaching international law by failing to provide a forum or remedy.)

Bowman also refutes Kiobel’s holding that the ATS could be implied to cover piracy even in the absence of a specific provision noting that Congress intended the statute to apply to the high seas. Although the majority conceded that the ATS extended to acts that took place outside the U.S. — which is precisely the sort of statutory construction that the presumption against extraterritoriality prohibits — the Court was unconcerned by this inconsistency. The majority swept this issue aside, stating only that ”[w]e do not think that the existence of a cause of action against [pirates] is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign[.]” But as Michael noted in a previous post, this distinction between ‘high seas’ and ‘foreign territory’ is a new creation, unsupported by prior case law. This decision is also inconsistent with Bowman, in which the Court noted that, where the presumption against extraterritoriality has been held to apply, it applies equally to acts committed on the high seas as to acts committed on foreign territory. Prior to Kiobel, when a statute failed to specify a locus, there was no basis by which a statute could be held to differentiate between the high seas and foreign territories — either both were out or both were in, absent a specific Congressional directive that a distinction be made.

-Susan

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

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]

Feds have death penalty; Mass does not. Issue to keep in mind if #Dzhokhar is caught. #manhunt #bostonbombing

— Jeffrey Toobin (@JeffreyToobin) April 19, 2013

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

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

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