Reference no: EM133200781

Case: Marissa owns Found Foods, a four-star farm-to-table restaurant in San Diego. Much of the food she serves at her restaurant she grows at a farm she owns just outside of San Diego. Her prized vegetable is broccoli. She grows ten acres of this luscious vegetable.

Marissa grows more than she can use so she sells the excess to other restaurants in California and Arizona. Last week she received a notice from the federal government that the broccoli market was saturated so congress passed legislation that limits each small family farm to growing just three acres. This is necessary, they say, to prevent broccoli prices from plummeting, resulting in a broccoli shortage. Marissa is outraged.

Marissa's reputation as a broccoli aficionado resulted in a publishing contract with cookbook publisher Fruitbowl Press. Her book, titled Broccoli for Lovers, explores the many ways broccoli can spruce up one's romantic encounters. On the cover is Edgar Degas' 1897 painting titled "After the Bath,'' showing a fully nude woman exiting a bathtub full of broccoli. (Marissa, of course, photo-shopped the broccoli in the tub.)

Her publisher called to tell her that the book would not be available in bookstores located in Texas.The Texas state legislature passed an "anti-obscenity" law that bans the sale of books with titles "offensive to anyone in the community." A Texas resident complained that the cookbook is "sexually suggestive." Her 12-year-old son saw the book at the local bookstore and was, she said, traumatized. He now refuses to eat the vegetable, or to ever again take a bath. The book is now banned from every bookstore and retail outlet throughout the entire state of Texas. Marissa is enraged!

Later while browsing in the cookbook section of a San Diego bookstore Marissa picked up a copy of Broccoli in Love, a cookbook by Conrad, a chef who used to work at Marissa's restaurant. Marissa is shocked by what she sees. The book cover has on it the same Edgar Degas painting used on her book, but instead of the broccoli in the tub it's in a bowl on a table. All of the recipes in Conrad's book are identical to Marissa's recipes. Conrad had access to these recipes while working at Marissa's restaurant! Marissa is furious!

Marissa returns to the restaurant kitchen to take her mind off of all the madness. She's preparing her famous Broccoli Flambe (a cooking procedure in which alcohol is added to a hot pan to create a burst of flames.) This entree is typically delivered to the guest by Marissa since she is trained in handling flaming dishes. It's ready to go but Marissa is on the phone to her lawyer so she motions for Jonny, an inexperienced bus person, to deliver the dish to table 7. On the way to the table Jonny trips over an exposed electrical cord, causing the dish to fly through the air, landing on and severely burning Marcus, a customer.

As expected, lawsuits begin to fly. Answer the questions below based on this scenario.

Marissa had planned on growing 10 acres of broccoli next season to fulfill orders from a restaurant in Arizona. The three-acre limit means she can't fill the order. She contacts you, her attorney, for advice.

a) Where in the U.S. Constitution will Congress claim that they have the power to tell Marissa how much broccoli she can grow? Just the particular clause.

b) What is the test the courts use to determine whether or not Congress has this power?

c) I discussed a U.S. Supreme Court case in the PowerPoint videos that had a similar fact scenario? Tell us the name of the case and provide a one or two sentence summary of the facts.

Question 2: This question also refers to the government effort to limit the amount of broccoli that Marissa can grow.

a) Using the test you laid out in 1.b. above, use facts to make the case for the government that they can regulate the amount of broccoli that Marissa can grow. Here you are the government's advocate.

b) Now make the case for Marissa that the government has exceeded its authority. Here you are Marissa's advocate.

c) Let's say for this question that Marissa decides not to sell any broccoli, but plans to use all that she grows only in her restaurant. Will that make a difference? Explain.

Question 3: This question has to do with the banning of Marissa's book from bookstores in Texas.

a) What is the name of the case discussed in the PowerPoint videos that concerned similar facts surrounding the banning of a product? Include the name and a very brief summary of facts.

b) What is the test used by the courts in that case to determine if the government exceeded its authority when banning a product? Just the test.

Question 4:

This question, too, concerns the banning of Marissa's book.
a)Using the test used by the court that you shared in question 3, make the case for the Texas government that they have the right to ban the book.
b)Using that same test, make the case for Marissa that the Texas legislature has exceeded its authority.

Question 5:
Now let's move to the issue concerning the copying of Marissa's recipes in the book written by her former chef, Conrad. For each of the following, list whether the particular component can be protected and, if so, by which form of intellectual property. Provide an explanation for each.
a)The painting on the cover
b)The recipes
c)The book title

Question 6:
Now we're exploring the flaming broccoli incident at Marissa's restaurant that resulted in burn injuries to Marcus, a restaurant guest.
a)Which legal issue should Marcus raise in his tort lawsuit against the restaurant?

b)What are the elements of this particular legal issue
c)Apply the facts to the rule here. You are Marcus' advocate here.

Question 7:
We're still working on the lawsuit filed by Marcus.
a)Can Marcus file his lawsuit in federal court? Explain
b)Can Marissa force Marcus into arbitration? Explain.
c)If Marcus decides not to file a lawsuit, can his next door neighbor file a lawsuit on Marcus' behalf? Explain.
D)If Marcus wins, will he be entitled to punitive damages? Explain.

Question 8: 
Let's say Marcus is successful in his lawsuit and is awarded $2,000,000. For this question only we'll say that Marissa is operating her business as a partnership with her ex-husband.

a) What are the advantages of running this business as a partnership?

b) What are the disadvantages of running this business as a partnership?

c) Let's say Marissa's ex-husband has very little connection to the restaurant ever since their divorce seven years ago. He's not even visited the restaurant since the break up.

Question 9: This question, too, is connected to Marcus' lawsuit and the $2,000,000 judgment.

a) Let's say Marissa was operating her restaurant as a Limited Liability Company (LLC). She's worried because just last year she purchased a home with her new husband. Is she at risk for losing this home to Marcus? Explain.

b) In three sentences or fewer, explain the difference between an LLC and a corporation.

c) Marissa did form the LLC, but she never formally opened a business checking account and continued to pay restaurant bills from her personal account. This account was the same one that she uses to pay household bills. Explain how this might have an impact on Marissa.

Question 10: For this question, let's change things up. The kitchen was abnormally crowded that day because Marissa over-scheduled, resulting in six assistant chefs in the kitchen instead of two. With little room to maneuver, an assistant chef knocks over the pan of flaming broccoli, causing the flame to burn Anthony, one of the six assistant chefs.

a) What are the elements of the test used in California to determine whether or not Anthony is an employee or an independent contractor?

b) Using this test, is Anthony an employee or an independent contractor? Explain.

c) Let's now say Anthony files a lawsuit against Marissa alleging a tort has been committed. What would you say is Marissa's best defense to this specific tort lawsuit? Explain.