Good morning! I'm Lit Daily editor Jenna Greene, here with your Daily Dicta. Contact me at [email protected]. On Twitter @jgreenejenna.

I'll be on vacation for the rest of the week (hola from Playa del Carmen!). While I'm away, we'll be sending you samples of four new Law.com briefings: What's Next, by Ben Hancock, focusing on emerging legal trends and technology; Trump Watch, by Cogan Schneier, examining President Trump's imprint on the law; Skilled in the Art, by Scott Graham, making sense of all things IP; and Critical Mass, by Amanda Bronstad, tracking class action and mass tort litigation.

All four are stellar reporters, and I hope you enjoy their smart, savvy takes on key topics. I'll see you again on Feb. 28.

 

Stick a Fork in it, This Case Is Done

In recent years, a handful of prominent restauranteurs have moved to eliminate tipping, including the tip in the price of the food instead.

They call the policy fair as well as pragmatic—a more equitable way to pay all restaurant staff, from dishwashers to waiters to cooks.

But plaintiff's lawyer David Lavine of the Law Offices of Andrew Wolff calls it an antitrust conspiracy that “unlawfully transfers millions of dollars from customers and servers to restaurant owners in violation of federal and state antitrust laws.”

In October, Lavine filed suit in U.S. District Court for the Northern District of California on behalf of customers who feel cheated that the gratuity is included in the price of the food.

“The charged conspiracy constitutes a per se unreasonable restraint of trade,” he wrote. “The purported motives of the participants or reasonableness of the conduct or prices is immaterial because there is a 'conclusive presumption that [horizontal price fixing] is unreasonable.'”

The complaint names a long list of restaurant owners and trade groups, who have now lawyered up. They've retained firms including Boies Schiller Flexner for the owners of Eleven Madison Park; Bryan Cave for Momofuku; Duane Morris for New York City Hospitality Alliance, Inc. and Gordon Rees Scully Mansukhani for the Golden Gate Restaurant Association.

Let's just say the kitchen is getting hot.

Leading the charge are Baker Botts partners Jonathan Shapiro and Stuart Plunkett. They represent Union Square Hospitality Group and its founder and CEO Danny Meyer, whose 13 restaurants include Union Square Café, Gramercy Tavern, The Modern, and Maialino. More than half are no-tipping.

Meyer has been out front on other industry movements—for example, his restaurants were the first to ban smoking in New York City (criticized at the time as economic suicide).

According to plaintiffs, Meyer has “spearheaded” the antitrust conspiracy.

No question he's been outspoken about the virtues of including the gratuity in the price of the food.

“Tipping offends [Union Square Hospitality Group's] culture of “Enlightened Hospitality”—not only does it exclude critical team members from sharing in guests' generosity, but it also hinders personal and professional advancement, and perpetuates systemic inequality and discrimination in the restaurant industry, including racial bigotry, gender inequality and sexual misconduct,” wrote Shapiro and Plunkett in a blistering motion to dismiss filed Friday.

The Baker Botts team (who declined comment) attacked the complaint first for lack of personal jurisdiction, pointing out that the named plaintiff apparently lives in Minnesota.

“The complaint does not explain why plaintiff elected to bring this lawsuit in the Northern District of California,” they wrote. “Critically absent from the complaint is any allegation that plaintiff ever ate at, and was overcharged by, any of the New York Defendant's restaurants…Indeed, it is not clear how the court could even commence its specific jurisdiction analysis in a case seeking redress for menu prices supposedly paid by a Minnesota resident who has not alleged dining at any restaurant, operated by any defendant, in any federal district.”

If that wasn't enough, they also lit into the merits of the antitrust allegations.

“The notion that all defendants 'agreed' to a price-fixing oligopoly is not supported by a single allegation about prices (other than that they will go up),” they wrote.

Nor has the plaintiff identified the relevant market necessary to make an antitrust claim stick. “A restaurant in a Manhattan museum, of course, is not competing for the lunch crowd against a regional Spanish offering in Oakland (although both are excellent),” they wrote.

Not to mention “There is nothing 'unlawful' about charging the prices listed on the menu, even if the prices are higher (or lower) than those at other restaurants.”

“Simply put,” Shapiro and Plunkett concluded, “Plaintiff may prefer to dine at virtually any sit-down restaurant in America, where he may find lower menu prices with the option to tip some members of the team, or to save money by not tipping at all. That is a choice, but it is not a national class action.”

 

Barbie (And Quinn Emanuel) Wins Last Round in Epic Battle with Bratz

There's something awe-inspiring about the Mattel/ MGA fight—that plastic dolls with big eyes and unrealistic body types could trigger such an epic IP war.

“You could get a legal education just from this case,” is how Mattel lawyer Susan Estrich, a partner Quinn Emanuel Urquhart & Sullivan, puts it.

After more than a decade and two trips to the Ninth Circuit, it's almost over. Not because Mattel, which makes Barbie dolls, and MGA, which makes Bratz dolls, are now, like, totally BFFs–but because the statute of limitations shut the last skirmish down.

On Feb. 13, Los Angeles County Superior Court Judge Carolyn Kuhl granted summary judgment to Mattel. She tossed MGA's claim that Mattel employees snuck into MGA's private showrooms at industry trade shows and stole trade secrets as time-barred.

“By August 13, 2007, MGA had a suspicion that Mattel had misappropriated MGA's trade secrets, using false pretenses to obtain access to MGA's unreleased products at trade shows,” Kuhl wrote. “The statute of limitations began to run as of that date and was not tolled by any conduct of Mattel that hid its wrongdoing.”

She continued, “MGA could not wait to file suit until it had used discovery in other litigation to support its suspicions.”

MGA counsel Jennifer Keller of Keller/Anderle in an email said that her client “is disappointed in the decision and intends to appeal, in order to hold Mattel accountable for its wrongdoing.”

In meantime, it's a nice win Estrich, who has represented Mattel since she joined Quinn Emanuel 10 years ago.

“Mattel is a great client,” she said. “They fight hard and stand by protecting their intellectual property, and don't give up.”

Shout-Out: Manatt Wins $30M Verdict in Eminent Domain Case

A team from Manatt, Phelps & Phillips led by Edward G. Burg last week scored a $30.2 million jury verdict in Los Angeles federal court for the owners of 1,000 acres of land in the Mojave Desert taken by eminent domain.

The land was claimed by the feds to expand a Marine Corps training base at Twentynine Palms, California. But the property is worth more than it seems, Burg argued.

“The property involved contains massive quantities of iron ore, a dwindling resource that is a critical additive used in the manufacturing of cement,” he wrote in court papers. “One of the properties contains the Morris Mine, the only iron ore mine permitted in the State of California in the last 15 years. While the two sides differ on the details, both sides agree that the Morris Mine contains many millions of tons of iron ore that can be mined and sold to the cement industry for many millions of dollars.”

The property owners wanted $38.6 million in compensation for their land. The U.S. government claimed it was worth just $5.6 million.

On Feb. 6, trial before Chief U.S. District Judge Virginia Phillips of the Central District of California began. Liability wasn't an issue. The sole task for the jury was to decide just compensation for the owners.

In the end, they came much closer to the landowners' valuation than the government's, awarding $30.2 million on Feb. 15 to the landowners.

What I'm Reading

The Law Firm Disrupted: How Predictable Can Litigation Get and How Fast?
A thought-provoking story on litigation prediction that anchors my colleague Roy Strom's new briefing, The Law Firm Disrupted, covering law firm management and strategy.

Quinn Unloads on Faith Gay: $100 Million for 'Ingratitude' and 'Deception'
Hoo-boy, this departure was not amicable.

Trump's CNN Beef Isn't a 'Get Out of Jail Free Card' for AT&T, DOJ Tells Judge
But the government has rebuffed the company's attempts to gather information about any communications between Main Justice and the White House about the merger.

Ruling Sets Stage for $21 Million Cadwalader Malpractice Trial
The legal malpractice trial could feature testimony from the owner of the Washington Redskins and M&A dealmaker Dennis Block.

Former Gibson Dunn Partner Hanna Gets Trump's Nod for LA US Attorney Slot
He was a white collar partner before being tapped last month as interim U.S. Attorney.

This Labor Board Case Could Carry Broad Implications for Gig Economy
The ruling drew rebuke from big business advocates, who called the ALJ's conclusion a “drastic departure from established precedent.”

Jones Day Antitrust Chairman David Wales Jumps to Skadden
The latest shake-up in the D.C. antitrust bar this year.