Business Law Prof Blog

Managing Grief and Sharing Our Way Forward (Music Edition)

Like so many law schools, we're navigating our way to online and other remote teaching and learning in a rapid and unexpected way.  We started classes yesterday, and it's gone fairly well.  Our faculty has worked hard, and our students have been incredibly resilient in the face this adversity we all, unfortunately, share. It does, though, impact people in many different ways.  

Some people face additional health risks, financial challenges, childcare problems, technology limitations, learning disabilities, and more, and I have been so impressed with the strength and composure I have seen in our community. I suspect it's that way a lot of places, and I hope so, but it has been remarkable to see.  

The Harvard Business Review posted a piece yesterday that framed this whole COVID-19 experience in a way I had not considered. The piece is titled, That Discomfort You’re Feeling Is Grief. I would not have framed it the way, but I think it's an important perspective.  The whole piece is worth a read, but here are some important points worth considering: 

Anticipatory grief is the mind going to the future and imagining the worst. To calm yourself, you want to come into the present. This will be familiar advice to anyone who has meditated or practiced mindfulness but people are always surprised at how prosaic this can be. You can name five things in the room. There’s a computer, a chair, a picture of the dog, an old rug and a coffee mug. It’s that simple. Breathe. Realize that in the present moment, nothing you’ve anticipated has happened. In this moment, you’re okay. . . . .

You can also think about how to let go of what you can’t control. What your neighbor is doing is out of your control. What is in your control is staying six feet away from them and washing your hands. Focus on that.

Finally, it’s a good time to stock up on compassion. Everyone will have different levels of fear and grief and it manifests in different ways. A coworker got very snippy with me the other day and I thought, That’s not like this person; that’s how they’re dealing with this. I’m seeing their fear and anxiety. So be patient. Think about who someone usually is and not who they seem to be in this moment.

This all makes sense to me, and it is a helpful way to think about things when everything feels a little off.  And right now, that seems to be often.  Another thing I have tried to do is find some routine and ways to share with one another.  We have been having family dinners and family movie night most nights. And we have been reconnecting with friends around the country via phone calls, but more often on Zoom. Sharing some time with friends works remarkably well, at least now that we lack other options interaction.  

In the interest of sharing, here are a few recommendations.  As to movies and music, if periodic coarse language, drug references, etc., are not for you, my recommendations may not be for you.  So in closing, I will share some (mostly new) songs you may not have heard (and I think you should).  Be safe, be well, and be good to each other.   

1. I think I'm OKAY, Machine Gun Kelly, et al., -- seems about right. 

2. how will i rest in peace if i'm buried by a highway?, KennyHoopla (for old guys like me, there's a modern edge with an old techno, maybe New Order, feel)

3. Hit the back, King Princess (sultry, smooth, with a 70s dance vibe, not too sappy). 

4. Celoso, Lele Pons (chill Latin dance that's upbeat yet goes well with a cocktail) 

5. Don't You (Forget About Me), beabadoobee (Okay, you've probably heard this one, but not this version.  Like I said, I'm Gen X).  

Mourning the Loss of My Favorite Meal Delivery Kit Service

Last night, my husband and I made our last meal from Plated, our favorite home meal delivery kit merchant.  (As readers may recall, I have been a meal kit delivery fan for quite a while.  See here, here, and here.)  Plated announced that it would cease producing meal kits for home delivery last month.  The message I received from Plated, which arrived a full week after pubic announcement had been made of the closure of the home delivery business, was simple.

To our loyal customer,

Just in case you haven’t heard, Plated will be closing its subscription business. Our last boxes will be shipped on November 26, just in time for Thanksgiving. Please log into your account to manage your subscription at any time before that, or contact us if you have any questions.

Plated is part of the Albertsons Companies family of stores, including many of your favorite grocery store brands across the country, like Safeway, Vons, Acme Markets, Jewel-Osco and more.

Over the next year, Albertsons Companies will be moving Plated's chef-inspired dinners, brunches and other delicious recipes to its family of stores.

You might not live near one of the stores that offers Plated, but that may change in the future. Please know we have enjoyed serving you for the past 7 years.

Forever grateful,
The Plated team

A true "loyal customer" (and I have been one) should receive notice of a business closure roughly simultaneously with any public announcement as a matter of courtesy (at the least).  But I will leave discussion of that for another day.

It seems significant to note from Plated's message to me (and its public disclosures) that Plated meal kits are not, apparently, going the way of the dodo.  They will continue to exist, but not for home delivery.  Of course, home delivery has been an important part of the draw of this service for me and my husband.  We do not have an Albertsons Companies store anywhere near us.

The press on this business closure has covered a range of related issues, including (as one might predict) prognostications on the overall sustained profitability of meal delivery kit businesses.  One online outlet reports that "in recent months, it seems the tide has turned against meal kits, with countless headlines saying they’ve 'fizzled,' or worse, are 'doomed to fail' or already 'DOA.'"  Another observes that "[t]he bloom is definitely off the rose for mail order meal kits. Blue Apron, a pioneer in the business, continues to limp along with dismal results. A report earlier this year from Nielsen said that sales of meal kits grew with in-store retail being the engine for meal kit growth."  I certainly hope that reports of the industry's death are premature (if not, as Mark Twain once said, "greatly exaggerated").  But I understand it has been hard to make the business model sustainable.

In any event, in honor of our years of great service (and super recipes) from Plated, I am posting a picture of the meal we made last night (Chicken-Avocado Burgers with Lemon Aioli and Sautéed Haricots Verts).  It was delicious.  And we had fun making and eating it together.

Farewell, dear Plated.  Alas, we knew you well and enjoyed our time with you.  I hope others continue to enjoy your recipes and convenience by purchasing your kits in supermarkets.

Business, Church, and State: My Memorial Day Memories

[Image by Keturah Moller from Pixabay ]

When I was young, Memorial Day meant one thing: the Memorial Day Fair at my church, The Cathedral of the Incarnation in Garden City, New York.  As I contemplated how to honor our war dead this Memorial Day, I kept coming back to thinking about that fair.  Others have also had memories of the fair on their minds this week.  A May 25th post in a Facebook group I belong to, I grew up in Garden City, New York, asked: "What are your memories of the Memorial Day fair at the cathedral? I looked forward to it every year!"  At the time this post was published, there were over 100 comments and replies posted.  The Memorial Day Fair even gets a nod on the TripAdvisor page for the church--"Wonderful [sp] Memorial Day Fair and Concert."  Local press stories on the preparations and schedule for this year's fair can be found here and here.

The Memorial Day Fair is a collaborative community event in which local businesses join together with church volunteers to produce a major good time.  The webpage for this year's fair notes ten business sponsors and boasts that the fair "will feature games, inflatables, rides, prizes, and delicious fair food! You'll also find arts & crafts, vendors, organ concerts with patriotic sing-alongs (at 1pm and 3pm), historic tours, and an archives display."  Those commenting in the Facebook group remembered the goldfish (most of which died rather soon after the fair) that many of us won by throwing ping-pong balls into goldfish bowls, the games, the rides, and the food--especially the cotton candy.

I remember all that--and selling ice cream to a famous actor visiting our local famous basketball player.  But I also remember the American Legion's red poppies and the local Memorial Day Parade (which many also remembered in response to the Facebook group post).  These parts of the day were directed almost exclusively toward honoring those who lost their lives fighting for our country and became intertwined with the fair in meaningful ways.

My memories of the Cathedral of the Incarnation Memorial Day Fair remain relatively strong as I take time out today to remember why Memorial Day exists:  to honor the lives of people who died while serving in the U.S. armed forces.  (See also here and here.)  The forces of community in my home town--business and religious interests alike--that came together (and apparently continue to come together) in honor of the men and women who died in military service to our country is a great example of social responsibility in action.  It continues to inspire.

Positive Competitive Effects of the Meal Kit Wars?

Couples Cooking with Plated: Curried Lamb Tacos
with Cabbage Slaw and Cilantro-Lime Yogurt

Since I last wrote about meal kits--those boxes of goodness (recipes and ingredients, all shipped to your door)--they have continued to be in the news.  There's been some consolidation in the industry (referenced here), continued speculation about whether the industry is sustainable (for a negative view, see here), and ongoing interest in what meal kits are all about (here).  Now, there even is an industry information page dedicated to meal kits (here).

A central concern in much of what is being written is competition.  But I have my own perspective on competition in this industry: if enough of these firms can find a financially sustainable, cost-effective business model (and I certainly hope they do), I have a good feeling about the continued survival of a few of these firms.  Why?  Because each of the three firms I have ordered from--Blue Apron, Hello Fresh, and Plated--has evolved toward each other a bit as time has gone on, converging toward better service norms.  Among the areas of convergence: segregated ingredients (put in a separate bag or mini-box) and lower calorie/simpler preparation options.  In other words, the service elements of the businesses appear to be learning from each other's successes in meaningful ways.  I actually enjoy all three services.

Having said that, there are certain competitive service advantages, as I perceive them, that Plated has over Blue Apron and Hello Fresh. What are those important competitive features?  Bottom Line:  the fact that Plated has (1) relatively simple, (2) varied, recipe/meal choices--all of which are (3) just a bit more sophisticated than we normally would eat and (4) delicious--at (5) an affordable cost and are (6) available in a two-meal-a week-for-three-people format.  Basically, Plated has everything I want and need.  And the few deliveries that have not been perfect have either included a substitute for the unavailable item (with a message to that effect) or have been remedied by a discount off a future order.  (Honestly, I have been impressed by the level of customer service in all three firms when I have had a question or complaint.  Good for all of them.)

This does not mean that I do not still enjoy Blue Apron and Hello Fresh, but neither, for example, has a three-person meal option . . . .

Perhaps I will have more to say about this industry at some point in the future.  But this (finally) completes the three-part series I started and promised over a year ago.  Honestly, and I tell just about everyone this, other than general convenience and great food, one of the best things about getting meal kits delivered is just what my husband originally intended to give me in the first place when he began ordering Blue Apron for us: easy time with him in the kitchen creating a family meal together, glass of wine in hand . . . .

Pros and Cons of Meal Delivery Kits

Just over a month ago, I published a post on meal delivery kits, describing the nature of the service and noting a few points about the market, including some information about legal claims.  In that post, I promised more--specifically, a review of the kits themselves.  That review will come in two parts.  This is the first.  Today, I want to note some of the advantages and disadvantages of using meal kits, from my perspective.

First, the advantages:

• delivery to your doorstep
• the convenience of food and recipe in one box
• little food waste (tailored quantities of food and fixings)
• exposure to new recipes
• introduction to new ingredients (most recently for us, spaghetti squash)
• the chance to learn new cooking techniques
• recipe cards that
  • lay out sequential steps
  • include helpful pictures and tips
  • have a glossy finish and wipe clean
  • fit in a magazine rack or storage unit

Now, the disadvantages:

• undue packaging waste? (box, internal containers, cold packs)
• uneven quality instructions (e.g., herbs divided . . . how--by type or by volume?)
• expense (depending on what your household would do instead)

I have included below some pictures (click on any for full-size images) of the packaging for Hello Fresh and Plated, the two services we use most often.  

Hello Fresh:

Plated:

As for the cost, here's what we pay for each:

Hello Fresh (4 people, 3 meals) - $129, including shipping
Plated (3 people, 2 meals) - $59.70 + $7.95 shipping

In a third post, I will say more about the relative merits of the individual services.  My husband orders Blue Apron for us from time to time, and I also will try to get some information from him for my next post.  Feel free to post observations or ask questions in the comments.

Christmas Cheer for All!?

Merry Christmas to all celebrating today.  I am enjoying a white Christmas in Pittsburgh, Pennsylvania with my dad and my brother and his husband, joined later today by my son and his fiancée (who had to work the night shift last night--she's a hospital nurse).  For the first time in many, many years--I think since before I was married in 1985--I am separated from my husband this Christmas.  He is back in Tennessee with my daughter, who celebrated her 26th birthday yesterday.  Their work schedules didn't accommodate holiday travel this year.  My daughter, in particular, worked yesterday and will work again tomorrow.  The working world is a different place now during the holidays than it was when I was a child.

As I sit here with a blood orange mimosa on Christmas morning, that observation set me to thinking about blue laws and Christmas.  (Ann and I are thinking along similar lines this week, it seems . . . .)  A lot of folks save their shopping--including shopping for alcohol--until somewhat the last minute.  This year, Christmas is on a Monday, meaning that Christmas Eve--a prime shopping day--was on a Sunday.  I wondered whether any blue laws prevented stores from being open or alcohol from being sold yesterday (or today, for that matter) . . . .

Back in 2006, when Christmas also was on a Monday, National Public Radio's All Things Considered covered this story from a South Carolina perspective.  Tennessee law, TCA § 57-3-406(e) (2016), provides as follows:

No retailer shall sell or give away any alcoholic beverage between eleven o'clock p.m. (11:00 p.m.) on Saturday and eight o'clock a.m. (8:00 a.m.) on Monday of each week. No retail store shall sell, give away or otherwise dispense alcoholic beverages except between the hours of eight o'clock a.m. (8:00 a.m.) and eleven o'clock p.m. (11:00 p.m.) on Monday through Saturday. The store may not be open to the general public except during regular business hours. Likewise, all retail liquor stores shall be closed for business on Thanksgiving Day and Christmas Day.

So, folks in Tennessee could not buy drinking alcohol yesterday from any store but can buy spirits today (absent applicable local ordinances to the contrary) from a retail store that is not a liquor store (if I am reading that correctly).

Massachusetts, my immediate former home state, has many exceptions to its blue laws, including allowing certain retail establishments to be open on Sundays, provided that rank-and-file (non-executive, non-administrative over a certain pay grade) retail employees are paid time-and-a-half if the business employs more than seven people.  See MGL c. 136, § 6(50).  This exception does not apply to any state-defined legal holiday (and to Christmas, when it is on a Sunday), but the exception does apply to the day following Christmas when Christmas occurs on a Sunday.  The exception for alcohol sales is more detailed and includes:

The retail sale of alcoholic beverages not to be drunk on the premises on Sundays by retail establishments licensed under section 15 of chapter 138; provided, however, that notwithstanding this chapter, a municipality may prohibit the retail sale of alcoholic beverages on Sundays by licensees under section 15 by vote of the city council or board of selectmen; provided further, that there shall be no such sales prior to the hour of 10:00 a.m. or on Christmas Day if Christmas occurs on a Sunday; and provided further, that establishments operating under this clause which employ more than 7 persons shall compensate all employees for work performed on a Sunday at a rate of not less than one and one-half of the employee's regular rate. No employee shall be required to work on a Sunday and refusal to work on a Sunday shall not be grounds for discrimination, dismissal, discharge, deduction of hours or any other penalty.

MGL c. 136, § 6(52).  Massachusetts apparently delegates significant control to municipalities on the alcohol issue.  The general Massachusetts blue law proscriptions are contained in MGL c. 136, § 5:

Whoever on Sunday keeps open his shop, warehouse, factory or other place of business, or sells foodstuffs, goods, wares, merchandise or real estate, or does any manner of labor, business or work, except works of necessity and charity, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars for a first offense, and a fine of not less than fifty dollars nor more than two hundred dollars for each subsequent offense, and each unlawful act or sale shall constitute a separate offense.

Even where retail establishments may be open, states may regulate work on Christmas--and on other holidays, too--designated as legal holidays by the state.  I grew up with a system of federal and state holidays that serve this purpose.  But The Legal Genealogist tells us that Christmas has not been a government-designated holiday from work for very long.  The Tennessee list for 2017 can be found here.  The Massachusetts legal holiday list is here.

Anyway, lest I bore you with my holiday blue law musings, I will close now by wishing you a happy continuing holiday season from here in Pittsburgh. Enjoy time with and memories of family and friends.  From my house to yours, this brings wishes for a lovely holiday week.  Enjoy.

Food, Glorious Food: Meal Delivery Kits

As I earlier noted, I have planned to write on meal delivery kits.  What is a meal delivery kit, you ask?  It is a delivered-to-your-door box of ingredients and recipes for meals.  All of the ingredients (except pantry essentials) needed to produce the meals shown and described in the recipe cards are included in the box.  All the recipient has to do is follow the recipe instructions and produce the meals.  Reviews of meal kits that describe additional features can be found here (July 2017), here (October 2016), here (May 2016), and here (May 2015).

My husband ordered us our first meal kit (from Blue Apron) last year as an anniversary present to me.  The idea (which has worked exceedingly well) was that we would be able to more easily prepare meals together, since I often design meals on the fly and cook based on what I sense is needed.  It's pretty hard to assign tasks consistently and continuously using my natural method of meal preparation.  The meal kits solved this problem neatly.  So, having found success with Blue Apron, we decided to try a few other brands.  Specifically, we also have ordered meal kits from Plated and Hello Fresh.  In a later post, I plan to offer a review of the kits themselves.  For today, I simply want to describe the services and the market.

It's been a healthy market from a financing and financial point of view. Accordingly to a TechCrunch article published back in April, "U.S. meal kit delivery startups have raised more than $650 million in venture capital . . . ."  The same article reported that "[m]eal kit companies sold between $1 billion and $1.5 billion in 2016, according to industry estimates from MarketResearch and others."  Yet, Blue Apron's initial public offering ("IPO") was not as successful as all had hoped.  An August 2017 CNBC report noted that the Blue Apron IPO priced on June 29, 2017 after decreasing the expected offering price range significantly (from $15-$17 per share to $10-$11 per share).

Legal claims brought against and by meal kit delivery firms so far seem to be typical of those in any business, based on published reports.  For example, a BuzzFeed News October 2016 article reported on workplace safety and other worker-related issues at Blue Apron.  A brief search on Westlaw relating to the three services we have used revealed a run-of-the-mill wrongful termination action (Hello Fresh), a case involving defamation and interference with business relations (Blue Apron), and a racial discrimination, harassment, and related retaliatory wrongful termination claim (Plated).  In addition, Blue Apron participated in a successful arbitration in the World Intellectual Property Association over the right to the domain name <blue apron.reviews>.

Notably absent?  Customer actions relating to advertising or the food or recipes included in the meal delivery kits.  It may be that these are just not publicly reported or available.  Or it may be that these types of problems are resolved amiably without the need of judicial or alternative dispute resolution processes.

There are, however, a fair number of Better Business Bureau complaints.  This would seem to come with the territory.  For the record (and what it may be worth), Plated fares best in Better Business Bureau ratings.  Hello Fresh comes in close behind, with Blue Apron coming in a distant third.

Have you tried these meal services?  What are your impressions of the business model and the service?  Are they just a passing fad, or will they survive the test of time?  I am interested in your thoughts. 

Faculty Development Opportunity -- Business Innovation in Chile: A Case Study of the Wine Export Sector

If you're a fan of wine (I am) and international business if of interest (it is), this Faculty Development might be for you.  It overlaps with the AALS Annual Meeting, so it won't work for me this year, but it looks like a good program.  Have a look: 

Temple University’s Center for International Business Education and Research (CIBER) presents

Faculty Development in International Business: Santiago, Chile (January 5-11, 2018)

Business Innovation in Chile: A Case Study of the Wine Export Sector

Leave winter behind this January and join us for a summer experience in Chilean wine country. As an innovation-driven economy, the United States prides itself on developing and delivering innovative goods and services domestically and globally through high-tech exports, creative branding, and in-demand services. Among those exports is our growing wine sector, led by Napa Valley but recently expanding into other parts of California, Oregon, Virginia, and other lesser-known wine producing regions of the United States. Despite this expansion, the United States remains behind old world wine producers in Europe. Chile and Australia also outpace the United States in terms of wine exports and have been leading the way in innovative production and marketing techniques.

On this faculty/professional-oriented immersion experience, participants will visit a number of innovative businesses in the wine export sector and related industries in Chile to better understand how innovation in a highly-regulated sector can disrupt the traditional approaches taken by Old World producers in Europe and provide a comparative advantage for modern producers.

Some of the key learning outcomes on this immersion include:

• An understanding of how innovation is utilized to drive growth in emerging markets;
• A comparative perspective of an innovative sector active in the home and target market;
• A better sense of the supply chain for a commodity such as wine and how innovation can accelerate movement along that supply chain and;
• Tools that can be used to leverage enhancements in innovation for U.S. exporters.

The immersion experience is being led by Fox School of Business Assistant Professor, Dr. Kevin Fandl, a Latin America specialist with deep knowledge of the region. Dr. Fandl’s research emphasizes the relationship between law, policy, and business in global markets. He takes his extensive experience at senior levels of federal government policymaking to the marketplace by examining how laws and regulations drive or inhibit innovation and business opportunity. His knowledge of Chile, as well as the wine industry, add significant academic value to this immersion experience.

Program Fee: $2,700 per person (fee includes: hotel accommodations, corporate visits, cultural activities, some meals, visits to Chilean Vineyards, and in-country transportation)

Deposit:  A $500 non-refundable deposit is due at initial time of registration. Final payment will be due on October 27, 2017. To register: https://noncredit.temple.edu/templeciberfdib

Space is limited. A guest package is also available.

For questions or additional information, please contact Lauren Letko at [email protected]

Pressing Forward to the New Year in Business Litigation

The end of the calendar year brings many things--among others: the holidays (and I hope you have enjoyed and are enjoying them), the release of the last Oscar-contender movies, and the publication of oh-so-many "top ten" lists.

Apropos of the last of those three, I admit to being a bit proud, in a perverse sort of way, about spotting a "top ten" and commenting on it here on the BLPB.  Back in May and June, I blogged about consumer litigation against Starbucks (my daughter's employer) involving coffee--too much ice, too hot, etc.  Apparently, those types of legal actions are among the "Top Ten Most Ridiculous Lawsuits of 2016."  Specifically, two of those lawsuits against Starbucks (the one for too much ice and another alleging too much steamed milk) are #1 on the list.  Another consumer suit takes the #2 spot--a legal action asserting that a lip balm manufacturer's packaging is misleading (specifically, making customers beehive there is more product in the tube than there actually is).  I continue to maintain (while acknowledging that consumer class action litigation can be useful when employed in cases that present a true danger to the consuming public), as I noted in my May post, that there are better ways to handle customer complaints.  

Back in the spring, Weil, Gotshal shared some observations on litigation trends.  Many of the underlying matters on which the co-authors of the report comment remain unresolved, and many involve actual or potential business litigation (including consumer litigation involving supply-chain-related or False Claims Act allegations).   Certainly, a new U.S. Supreme Court appointee may make a difference in business law cases accepted by the Court this year . . . .

What will 2017 bring in business litigation?  Any predictions?  Now is the time to stake your claim!

Some (Don't) Like it Hot

Back in May, I posted about a legal action against Starbucks for too much ice in its drinks.  I referenced in that post the earlier legal action taken against Starbucks for under-filling its latte drinks and against McDonald's for damage done by hot coffee.  I can't resist adding another hot coffee case to the mix . . . .

Another suit has been brought against Starbucks--my daughter's employer (as I disclosed at the outset in my previous post).  This time, the case involves damage caused by hot coffee resulting from a bad drive-through pass-off.  The plaintiff requests up to $1 million "for medical expenses, loss of work, and for the mental and physical pain she claims the burning coffee caused her," according to the news report.  The case involves second-degree burns--a serious matter in anyone's eyes.  Depending on the facts elucidated at trial, this case may (like the McDonald's case from 20+ years ago) have some traction in court.  (Apparently, there have been other Starbucks cases involving hot drinks.)

I do feel sorry for plaintiffs who are damaged by hot coffee or beverages.  These cases undoubtedly have more gravitas than cases alleging damages based on the amount of ice or beverage served.  Yet, the hot beverage cases still nag at me a bit--maybe because I have trouble conceptualizing suing a coffee service business for damage created by a hot beverage that I ordered.  Today, reflecting on this new Starbucks case, I did some soul-searching to determine why I am unlikely to sue.

The bottom line is that I understand there is something inherently dangerous about ordering hot coffee in a paper cup with a plastic lid, especially for pick-up at a drive-through window.  I know I am assuming a risk in those circumstances.  I also know that I may share or bear blame for any spill that happens after I order--the lid on a cup properly sealed and handed to me loosens and sometimes pops right off if I grab the cup from the top under the lid area.  Maybe you've noticed that in handling coffee at your favorite coffee shop . . . .  

I am no tort lawyer, but I guess I see myself in many of these cases, which makes me wonder whether the plaintiffs and their lawyers place too much reliance on litigation for the achievement of their respective desired objectives . . . .  I would hope that many controversies between businesses and consumers, as I indicated in my prior post, could be resolved outside the litigation process.  Not every injury is or should be compensable through a legal action.

Moreover, in my work, I have been critical of many securities fraud (including insider trading) class actions as at best inefficient means of addressing certain plaintiffs' concerns.  In my experience, I also have seen cases brought against high-profile or deep-pocket defendants more for their settlement value than to redress or prevent a wrong to the plaintiff or society.  My gut tells me that I might be critical of some of the hot coffee cases on the same bases if I came to know more of the facts.  But I cannot be sure.  

Is my instinct off-base?  Am I too quick to see fault in the claims of potential plaintiffs?  Am I giving coffee service businesses too much cred?  I am interested in any thoughts you may have.  In any event, we can be confident that the hot beverage cases will continue for the foreseeable future.

Hat tip to Lou Sirico at Legal Skills Prof Blog for pointing out this case to me.

What a difference a year makes

A year ago today, President Obama shocked the world and enraged many in Congress by announcing normalization of relations with Cuba. A lot of the rest of the United States didn’t see this as much of a big deal, but here in Miami, ground zero for the Cuban exile community, this was a cataclysmic event. Now Miami is one of the biggest sources of microfinance for the island.

Regular readers of this blog know that I have been writing about the ethical and governance issues of doing business with the island since my 10-day visit last summer. I return to Cuba today on a second research trip to validate some of my findings for my second article on governance and compliance risks and to begin work on my third article related to rule of law issues, the realities of foreign direct investment and arbitration, what a potential bilateral or multilateral investment agreement might look like, and the role that human rights requirements in these agreements could play.

This is an interesting time to be visiting Cuba. The Venezuelan government, a large source of income for Cuba has suffered a humiliating defeat. Will this lead to another “special period” for the nation similar to the collapse of the Soviet Union? Major league baseball players who defected from Cuba just a few years ago announced a homecoming trip today. Yesterday, the US government authorized commercial flights to return to Cuba. The property claims for the multinationals and families who had homes and business confiscated by Castro are being worked out, or so some say.

Over the next few days in between touring Old Havana and fishing villages, I will learn from lawyers and professors discussing arbitration law in Cuba, foreign investment law 118/2014, tax and labor implications for the foreign investor, the 2015 amendments to the Cuban Assets Control Regulations, requirements for gaining government approval and forming state partnerships, and the Cuban banking system.

Strangely, I am excited. While I should be decompressing from the shock of reading student exams discussing “creepy tender offers” and “limited liability corporations,” I can’t wait to delve into the next phase of my research and practice my business Spanish at the bar of the Parque Central in La Habana. My internet access will be spotty and expensive but if you can think of any pressing questions I should ask leave a comment below or email me at [email protected].

"Beer Keurig" Shows Crowdfunding Works, Sometimes for No Apparent Reason

No, I am not really going too deep into the crowdfunding legal world. I am mostly venting. My co-bloggers, especially Steve Bradford, Joan Heminway, and Haskell Murray, are far more knowledgable than I am on the actual legal regime. 

Kickstarter and other sites have done some creative things to help people start their businesses, and I am fine with that. There are travel jackets and luggage, as well as other things like potato salad and gadgets that someone thinks someone else needs.  That's all good.  But some of the ideas just seem dumb to me.  Case in point: the PicoBrew, about which one outlet noted: Seattle company develops 'Keurig for beer.' 

So, the deal is that you can make your own beer recipes (or borrow from others), and make beer at home.  Fast(ish).  KOMO News explained: 

Depending on the recipe, users add grain to the main compartment of the step filter and add hops into the appropriate hop cages inside the unit. The entire canister slides into the Zymatic and the brewing begins.

The brewing takes about four hours, leaving the unfermented beer in the keg that originally held the water. Add the yeast, then after a week of fermentation you get beer ready to be carbonated for dispensing from the keg.

So, if I want a (potentially) good craft beer, I can plan a week ahead, and zowie, with a little work I will have a bit more than a 12 pack at the ready. The Keurig was bad enough -- it's wasteful, expensive. And, did I mention it's really wasteful?  But it can make pretty good coffee in a way that is more convenient in some circumstances. So there's that.  

PicoBrew doesn't seem to have any of those things. I mean, it does let you act like you brewed beer yourself, if you wanted to be that guy or gal.  But really, this seems like an expensive gift for people who don't know really understand what it means to make your own beer.  

I am all for people coming up with ideas to build creative businesses.  And I am all for letting people spend their money on things they like (goofy or not). But that this thing raised $1.4 million still seems wrong to me. I know, some people really like this making stuff at home without really "making" much of it, but even with the recipe delivery services, there you're just over paying for someone else to do most of the work for you. I get that. That allows you to pay someone else to do most of what you don't want to do, while giving you flexibility and fresher food.  Maybe it's pricey and not too creative from a cooking perspective, but still sensible for some folks. 

The PicoBrew website quotes CNET as saying, "They tasted liked craft beers I would pay money for." After paying $500 to $1000 for the machine, plus ingredients, I am pretty sure you would still be paying money for the beer.  And you would be doing the work, waiting for it to ferment, and carbonating it, too.  I just don't see the great value. Personally, I'd much rather buy my craft beers straight from the good folks at places like Bell's, Founders, and Chestnut Brew Works, LLC(!).  Now if I could just get a distributor in the state to make the first two more accessible. Hey, Kickstarter . . .

Social Enterprise, Brazilian Style

As a semi-closeted (now "out," I guess) foodie* and as a lover of "things Brazilian" (including Havaianas flip-flops and Veja sneakers, as well as churrascarias and caipirinhas), I read with interest a recent electronic newsletter headline about a thriving Brazilian chef.  I clicked through to the article.  I loved it even more than I had thought I would.

The article tells the story of an emergent Brazilian chef and restauranteur, Rodrigo Oliveira, and his flagship establishment (Mocotó), as promised.  That was great.  But that was not all.  The piece also told the story of a business run using a "holistic business model."

Today, Oliveira focuses on his employees as much as his customers. . . .  Oliveira pays for his employees’ part-time education. And their kids’ health care. And daily jiujitsu and yoga classes in the room he built upstairs. It’s a rarely encountered, holistic business model that contributes to his restaurant’s roaring success. . . .

 . . . 

Beneath the street level they’re boring out new dormitories for employees, for a quick nap and shower between jiujitsu, work and class. . . .

He also seems to be attentive to the greater local community beyond his customers and employees, preferring (to date) to expand his business locally rather than into larger metropolitan areas.  Good business?  Yes!  But it seems like more than that.  This business appears to have more than one bottom line!

Perhaps this is not a remarkable story, in the end.  Regardless, I wanted to share it.  Another Brazilian social enterprise, Ashoka, gets a lot of attention.**  But it's now clear to me that we can and should look beyond larger, storied examples of social entrepreneurship for other manifestations of social enterprise in action in Brazil.

 

*Yes, Steve Bainbridge, I do read  your wonderful posts on food and beverage pairings, including this one on my birthday earlier this month.

**Actually, much to my surprise, Ashoka is a U.S. organization that networks social enterprises across the globe.  So, it's not even Brazilian!  Having been in Rio teaching for a few summers and known of its presence there, I  assumed it was a Brazilian organization.  Please forgive the error.  Hat tip to co-blogger Haskell Murray for pointing it out to me.

 

The Separation of Church and For-Profit Corporations

My co-blogger Haskell Murray recently posted “Religion, Corporate Social Responsibility, and Hobby Lobby” and asked me to respond, which I am happy to do. I will admit that I am still developing my thoughts on the issues raised by Haskell’s post, so what follows is a bit jumbled but still gives a sense of why I currently oppose for-profit corporations being permitted to evade regulation by pleading religious freedom (if you have not read Haskell’s post, please do so before proceeding):

1. Corporate power threatens democracy. Corporations and other limited liability entities have been controversial since their creation because, among other things, the combination of limited liability, immortality, asset partitioning, etc., makes them incredible wealth and power accumulation devices. Of course, on the one hand, this is precisely why we have them – so that investors are willing to contribute capital they would never contribute if they risked being personally liable as partners, and thus unique economic growth is spurred, a rising tide then lifts all ships, and so on. On the other hand, because of their unique ability to consolidate power, corporations are aptly considered by many to be one of Madison’s feared factions that threaten to undermine the very democracy that supports their creation and growth:

Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles. The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S.

[More after the break.]

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