Gender: Male
Status: In a Relationship
Age: 30
Sign: Leo
City: CAMBRIDGE
State: MASSACHUSETTS
Country: US
Signup Date:
12/16/05
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Friday, November 10, 2006
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It's the law: A sandwich has two pieces of leavened bread; a burrito: but one tortilla
Current mood:  drunk
Category: Food and Restaurants
Oh those wacky lawyers.
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Arguments spread thick
Rivals aren't serving same food, judge rules
By Jenn Abelson, Globe Staff | November 10, 2006
A burrito is not a sandwich.
That's the culinary ruling of a Worcester judge, ending, for now, a food fight between Panera Bread Co. and Qdoba Mexican Grill.
In issuing his decision, which blocks Panera Bread's attempts to keep the burrito maker off its turf, Worcester Superior Court Judge Jeffrey A. Locke relied on testimony from Cambridge chef Chris Schlesinger and a former high-ranking USDA official, not to mention the Webster's Third New International Dictionary.
The burrito brouhaha began when Panera, one of the country's biggest bakery cafes, argued that owners of the White City Shopping Center in Shrewsbury violated a 2001 lease agreement that restricted the mall from renting to another sandwich shop. When the center signed a lease this year with Qdoba, Panera balked, saying the Mexican chain's burritos violate its sandwich exclusivity clause.
Not so, Qdoba countered, submitting affidavits from high-profile experts in the restaurant and food industry. "I know of no chef or culinary historian who would call a burrito a sandwich," Schlesinger said in his affidavit. "Indeed, the notion would be absurd to any credible chef or culinary historian."
In his ruling, Locke cited Webster's definition of a sandwich and explained that the difference comes down to two slices of bread versus one tortilla: "A sandwich is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans," he wrote.
Panera spokesman Mark Crowley declined to discuss the matter or say whether the St. Louis company planned to appeal the ruling. Mitchell Roberts , manager of the franchise group that runs the Shrewsbury Panera, could not be reached for comment yesterday.
"We were surprised at the suit because we think it's common sense that a burrito is not a sandwich," said Jeff Ackerman , owner of Qdoba franchise group, known as Chair 5 Restaurants, which plans to open the eatery next year. "We're just delighted that the experts and judge saw it the same way we did."
The case, observers say, is less about common sense and more about the high stakes of the Massachusetts restaurant market. Panera Bread, as the established player in the region with 31 locations, is trying to fend off upstart Qdoba, which plans to build at least nine new stores in the market next year, up from eight now. Panera serves up fresh-baked artisan breads and sandwiches, while Qdoba is known for its signature burritos .
"It shows you how competitive the business is when a bakery cafe feels like it's in direct competition with a Mexican chain," said Ron Paul , president of Technomic Inc., a restaurant consulting firm in Chicago. "They're fighting for a share of the stomach."
The fight began earlier this year when Panera learned that the owners of White City Shopping Center were in negotiations to lease space to Qdoba. Panera, citing the exclusivity clause in its lease, sought assurances that White City would not rent to the Mexican chain, saying its burritos, tacos, and quesadillas were all types of sandwiches, according to court papers.
But the landlords refused, and in August they agreed to lease about 2,100 square feet to Qdoba, which planned to spend more than $300,000 on construction. A month later, the landlords sought a court ruling that renting to Qdoba would not breach its lease with Panera.
In turn, Panera filed a counter-claim trying to stop Qdoba from moving into the neighborhood. Qdoba rolled out an all-star line-up of food experts to testify that a burrito is just a burrito.
Schlesinger explained that a sandwich is of "European roots" and generally recognized as "two pieces of leavened bread," while a burrito is "specific to Mexico" and typically contains hot ingredients rolled into a flat unleavened tortilla.
Schlesinger, whose All Star Sandwich Bar includes items such as the Pastraminator and Meat Loaf Meltdown, also features hot dogs -- though they are on the menu with this disclaimer: "not a real sandwich, but a close friend."
Judith A. Quick, who previously worked as a deputy director of the Standards and Labeling Division at the US Department of Agriculture, said in her affidavit: "The USDA views a sandwich as a separate and distinct food product from a burrito or taco."
Panera, in court filings, argued for a broad definition of sandwich, saying a flour tortilla qualifies as bread and a food product with bread and a filling is a sandwich.
Ultimately, the judge ruled against Panera's request to stop Qdoba from moving into the shopping center. In his eight-page ruling released last week, Locke said Panera had not stipulated that burritos and tacos be covered in the exclusivity clause. Moreover, Panera failed to show that its survival was dependent on preventing Qdoba from opening.
Panera has up to 30 days to file an appeal.
"This was a very important case for us," said Lawrence Green , a lawyer with Burns & Levinson LLP, which represented Qdoba. "Panera frankly got a bit greedy here. What are they afraid of?"
Jenn Abelson can be reached at abelson@globe.com. |
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Currently
reading
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Joy of Cooking: 75th Anniversary Edition - 2006
By
Irma S. Rombauer
Release date: 31 October, 2006
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7:54 AM
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Tuesday, November 07, 2006
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Britney's (very close) lawyers
Current mood:  curious
Category: Movies, TV, Celebrities
I'm not one to peruse the gossip columns, whether they be in Us, the Enquirer, or the Times, but now and again I find myself reading about those celebrities we all hold near and dear in a law related article. How could anyone resist CNN's headline: Britney sex tape lawsuit dismissed.
More amazing than the headline was the text of this article. According to the AP, as reported in CNN, Spears and K Fed, "feared the release of a secret sex tape, which", and I can't make this up, "they had viewed with their estate planning lawyers"!! Now, I've spent a little time working with estate planning lawyers and they're generally not the types of folk you'd sit down with to watch a self-made porno.
According to Us, again, according to the AP as reported by CNN, "Spears gave a copy of the tape to lawyers on September 30 and she and Federline were 'acting goofy the whole time' while watching the video" with their lawyers! For their part, the lawsuit claimed "There was no laughter, disgust or goofy behavior while watching the video in the company of lawyers because they did not watch any video, and because there is no such video".
For my part, I hope there is such a video . . . and maybe someday Britney will need some quality (ahem) tax advice.
On a (perhaps) related note, a friend just told me I'm funnier than Dan Savage. Hooray!
Cheers.
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Currently
listening
:
Oops!... I Did It Again
By
Britney Spears
Release date: 16 May, 2000
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10:19 AM
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5 Comments - 2 Kudos
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Tuesday, October 24, 2006
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Map
Current mood:  busy
Category: MySpace
So I've mapped my profile and mapped my bulletin . . . may as well map the blog. And viola, here it is. Gotta run.
Cheers,
David
7:45 AM
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Thursday, October 12, 2006
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Those boring BU administrators
Current mood:  exhausted
Category: Life
The following biography (slightly edited) was submitted to the Boston Univerity Graduate Tax Program as my "continuing student bio". Sadly it was rejected and they suggested I replace it with something a little more . . . well, you'll figure it out:
David started his academic tenure at Mounds Park Academy, a small K-12 school in St. Paul, Minnesota. While there, he learned more than just the three "R"s: he learned about life and love. In retrospect, he should have learned much more about alcohol and illicit drugs. There he was the proud recipient of the first ever MPA Forensics Award. He is certain there were other academic awards, but none come to mind on a Friday afternoon . . . perhaps due to later education in the aforementioned intoxicants. David continued his scholastic endeavors at Claremont McKenna College where he was an Edward J. Sexton PPE Fellow, meaning nothing more than he was admitted to the program in Politics, Philosophy & Economics. While enjoying sunny southern California, he pursued only two of the three "R"s and began a more focused education in life, love, and inebriation. His senior thesis on Zamboni ice resurfacers and the apocalypse was titled, "Zambonis in the 21st Century: An ironic exegesis of the year 2000" and is available in the Crocker Reading Room.
Some more forensics awards later, David managed to graduate cum laude in addition to achieving honors in his major, PPE. David enjoyed the leisure of the theory class too much to let go, so went immediately to law school. He studied law in Ann Arbor because Chicago and New York just weren't cold enough to balance out Los Angeles' balmy winters. Just one "R" was learned there; it being law school, he also abandoned his education in life and love. Eventually, he got bored and shaved his head. In spite of the admirable efforts of the local bars, he graduated cum laude. He is currently a part time student in the Graduate Tax Program at Boston University.
During law school, David decided that his summer experiences as a Capitol Hill environmentalist would be best put to use as a corporate attorney in Boston. He started work at Day, Berry & Howard but while there decided that tax was awesome and securities sucked, so he looked for greener pastures. As a member of the Massachusetts bar only, David was stuck in Boston (or else would have to take another bar exam). Sullivan & Worcester came to the rescue, and David completed his section 355 spin-off from Day Berry. According to the Sullivan & Worcester web site, his practice currently focuses on: structuring mergers and acquisitions; structuring real estate transactions, including REIT transactions; international tax planning for multinational clients; and other tax planning for business entities. He recently published an article on corporate inversions and the "substantial business activities" standard under code section 7874 (Tax Notes International (Aug. 7, 2006, p. 515), republished in Tax Notes (Sept. 4, 2006, p. 863)).
Though David has mostly mastered the English language, il parle Français comme une vache Espagnole. He has been known by many names including: David, Captain, Kappy, Kaplan, Kaps, Dave, Davey, and The D-Kapitator. His professional goals include achieving national recognition, preferably for something not criminal. He loves card games -- particularly bridge and poker. He loves board games -- particularly chess and Scrabble. And he was once a croquet master (though has since lost some touch). David's favorite code section is 274 because it's funny. He thinks code section 170(h) and pirates are the shiznit. He has never been to Peru.
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Currently
reading
:
All About Me
By
Philipp Keel
Release date: 20 January, 1998
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6:22 PM
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2 Comments - 4 Kudos
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Wednesday, September 20, 2006
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How to get third graders to learn the ABCs
Current mood:  hungry
Category: School, College, Greek
Actually given to partents at a Pine Tree Elementary School open house. Oops.
11:29 AM
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1 Comments - 1 Kudos
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Monday, September 18, 2006
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Y'argh!
Current mood:  satisfied
Category: Religion and Philosophy
Yarrr! It be International Talk Like a Pirate Day t'day. I be swamped at the office so canno regale ye with tales of priate woe, but I send ye off with comics of scallywags with hats and swords:
http://www.gocomics.com/arrr.phtml
Piratey science! http://www.sciam.com/podcast/podcast.mp3?e_id=0002B89F-F8EC-150E-B8EC83414B7F00FF&ref=p_sciam
A pirate walks into a bar. He's got the sword, the sash, the boots, the eyepatch, the parrot, the whole get-up. He swaggers up to the bar and says "Y'ar bartender, gives me a beer!"
The bartender replies, "Uh, sure . . . but do you know you have a steering wheel sticking out of your pants?"
The pirate replies, "Y'ar, I know; it's drivig me nuts!"
Cheers matey.
10:06 PM
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2 Comments - 3 Kudos
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Sunday, September 17, 2006
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Taxtastic!!
Current mood:  cheerful
Laurence Silberman, senior judge on the U.S. Court of Appeals for the D.C. Circuit, on Lady Booth, Former Solicitor General Theodore Olson's fiancée:
Silberman offers Booth two compliments. "She's a lovely woman, and she's a tax lawyer," he says. Tax lawyers are the most stable and well-adjusted members of the profession, Silberman explains, because "they spend their time working puzzles that no one else understands."
Legal Times
September 11, 2006
It doesn't get any better than this . . . or does it? Granted I am writing this from my office on one of the more beautiful Sunday afternoons we'll likely see until next spring. And I did get a message from one of my corporate attorney friends last Friday night at about 11:30 that had no body and a subject reading only: Dave, do u know anything about 280G? Help!
Of course I had to reply and spent the next hour working on the problem. But at least I was out having fun, unlike my corporate cohort who was still at the office when she e-mailed me (and I think for another hour after I stopped working). But these minor inconveniences are a small price to pay for the opportunity to spend my "time working on puzzles that no one else understands" . . . and to be well compensated for it to boot.
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Currently
reading
:
How to Be Good
By
Nick Hornby
Release date: 30 April, 2002
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11:46 AM
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Thursday, August 10, 2006
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My doppelganger -- spotted! (again!)
Current mood:  confused
Category: Life
This picture is on CNN.com's gallery for this article. I *swear* I wasn't at Logan today. First it was the Jose Cuervo ad, then I saw him in Somerville, now here. Why does this guy keep showing up?!
http://www.cnn.com/2006/TRAVEL/08/10/terror.passengers.ap/index.html
(If you haven't seen it, here's the Cuervo ad.)
12:23 PM
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Wednesday, August 09, 2006
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My article was finally published!
Current mood: cheerful
Category: Jobs, Work, Careers
Finally my article on corporate inversions was published. It basically demonstrates how under new treasury regulations a corporation can exit the United States and thus aviod U.S. taxation on all of its foreign income. If your eyes have not yet glossed over, here's the intro (footnotes omitted) (oh, and don't hesitate to contact me if you want a copy of the full article):
Inversions Lite: Finding Substantial Business Activity Under the New [Section 7874 Regulations]
In light of some very high-profile corporate inversions, the U.S. Congress added section 7874 to the Internal Revenue Code as part of the American Jobs Creation Act of 2004 (P.L. 108-357). In its harshest form, section 7874 treats the new foreign parent (the "surrogate foreign corporation") as a U.S. corporation for all purposes of the code. In its milder form, section 7874 only denies the use of some tax attributes (net operating losses and most credits) to offset the inversion gain.
Specifically, if after an inversion the former shareholders of the U.S. corporation own 60 percent or more of the shares of the new foreign parent corporation, but less than 80 percent of the shares of the new foreign parent, then section 7874 applies in its milder form and some tax attributes cannot be used to offset the inversion gain. If after an inversion the former shareholders of the U.S. corporation own 80 percent or more of the shares of the new foreign parent corporation, then section 7874 applies its harshest form, that is, the foreign corporation is treated as a U.S. corporation for all purposes of the code. For section 7874 to apply, three conditions must exist:
a U.S. corporation becomes a subsidiary of a foreign corporation or otherwise transfers substantially all of its property to a foreign corporation (that is, the U.S. corporation inverts);
the shareholders of the U.S. corporation end up with 60 percent or more of the vote or value of the shares of the new foreign parent corporation; and
the new foreign parent corporation, along with all of its subsidiaries (the expanded affiliated group, or EAG), does not have "substantial business activities" in its country of incorporation when compared with the total business activities of the EAG.
Given the need for "substantial business activities" in the new foreign parents country of incorporation, section 7874 appears to represent an absolute bar to the typical inversion that involves the replacement of the U.S. parent with a tax haven parent (that is, a parent company that is organized under the laws of Bermuda, Barbados, the Cayman Islands, or similar jurisdictions). That said, the question arises whether, given the right fact pattern, an inversion into Ireland, Switzerland, or the United Kingdom (an "inversion lite") is still possible.
Tax Notes Int'l, August 7, 2006, p. 515, by Lewis J. Greenwald & David H. Kaplan
11:09 AM
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Wednesday, August 02, 2006
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Today's snowfall forecast
Current mood:  hot
Category: Life
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Currently
reading
:
Love in the Time of Cholera (Vintage International)
By
Gabriel Garcia Marquez
Release date: 07 October, 2003
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10:15 AM
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1 Comments - 0 Kudos
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