• November 30, 2018

Update #8 (November 30, 2018): We have covered Unitherm v. Hormel, the so-called Bacon Battle, for some years now (see the string, below) but we only recently learned that we might more appropriately call it Pig War II, or PW II, because history already has had a Pig War.

(However, we’re partial to variant names for PW I: “the Pig Episode” (perhaps appropriately understated) or the “Pig and Potato War” (more appetizing and also evocative of the underlying narrative.))

As it turns out, PW I, just like PW II had no shots exchanged and no human casualties. Apparently, in PW I, casualties were limited to one pig and an indefinite number of potatoes. But, while relatively non-violent, both Pig Wars seem to have been quite expensive.

Below, readers will note that we described the Unitherm vs. Hormel case as a “complete disaster” for Unitherm but then we tentatively walked that back to perhaps merely a “mitigated disaster.” We revert to “complete disaster” for Unitherm in light of this week’s rulings on the two litigants’ motions for award of attorneys’ fees.

Hormel sought $1,301,673.44 in attorneys’ fees + $196,105.61 in costs + $173,705.00 in attorneys’ fees for defending Unitherm’s appeal ($1.671 million). Unitherm sought $1,331,731.35.

U.S. District Court Judge Joan N. Ericksen (D. Minn.) held:

In its motions for attorneys’ fees, Hormel applied a 20% reduction to its calculated lodestar to account for its counterclaims, cross-appeal, and for any other inefficiencies in its work product. The Court nevertheless reduces Hormel’s requested fee award by an additional 50%. Hormel cannot recover attorneys’ for defending against Unitherm’s JDA and declaratory judgment claims [for which there was no fee-shifting provision]….Because defeating these ineligible claims was at least as important to Hormel’s overall success as was defeating the eligible claims [i.e., those claims that allowed for fee-shifting], the Court applies the above 50% reduction.The Court therefore awards Hormel $737,689.22 in attorneys’ fees.

The Court awarded Unitherm nothing.

Will either side appeal? Both? Time will tell. We would not put it past them.

Boxing Boxers

George Bellows, Dempsey v. Firpo, 1924

Update #7 (September 28, 2018) (under the headline: “The Bacon Battle is Getting Boaring.”): Minnesota Litigator readers may have had enough of the bacon battle; we have. But it lumbers on. As we predicted immediately below, Plaintiff Unitherm fights Hormel’s motion for award of attorneys’ fees pointing out that both sides lost all of their respective claims under their contract that included a fee-shifting provision. Both sides lost their respective claims on appeal, too, but Hormel nevertheless claims it is entitled to legal fees as “the prevailing party.”

We previously described the lawsuit as “a complete disaster for Unitherm,” but Unitherm points out that “the Court ruled on summary judgment that [a Unitherm executive] conceived of the Unitherm Process…[and] Hormel does not own the Unitherm Process…The Eighth Circuit affirmed that conclusion.”

So, Unitherm implicitly makes the point that things could have gone worse than they did. Maybe the case was not a “complete” disaster for Unitherm, as we said. Maybe merely a mitigated disaster?

From the briefing, we also learn that, “while the Eighth Circuit has not adopted a per se bar against recovery of travel and meal expenses (as some circuits have) [in litigants’ petitions for lawyers’ fees and costs], it has expressed skepticism over such expenses and has directed the district court ‘set forth the particular circumstances which justify such an award'” (linked here at p. 14).

Is it not strange that some circuits have a per se bar against recovery of lawyers’ travel and meal expenses? Are these obviously necessary expenses unrecoverable for some principled reason? And how particular do district courts need to be to “justify” awarding them (“It was okay to order the caesar’s salad at $14.00. Reasonable minds can disagree as to whether the side of Brussels sprouts at $6.99 were excessive. The au gratin potatoes, in addition, however, also at $6.99, were excessive as a matter of law.” (???)).

Update #6 (September 5, 2018)(under the headline Is the Bacon Battle Over Yet?): Long-time readers of Minnesota Litigator will savor the lingering smoky aroma memory of this multi-year pork roast of Plaintiff Unitherm in its claims against the hometown hog honey, Hormel.

It seems fair to say that the litigation has been a complete disaster for Unitherm. As we know from other recent posts about another unrelated legal disaster, really disastrous cases sometime have long (and, in both cases discussed here, presumably twisted (or curly?)) tails. 

And now here comes Hormel, hoping for to slather on a topping of attorneys’ fees atop its fat open-face victory sandwich. (Unitherm, presumably, will point out that both sides appealed and both sides lost their appeals.) Will this bloodbath ever end?

Update #5 (April 18, 2018): Both sides appealed their losses on summary judgment. Both sides lost their appeals. Have these bacon battlers had enough or is it time to head to the U.S. Supreme Court in this porcine battle royale?

Update #4 (July 26, 2016) (under the headline: The Bacon Battle Royale Rages On…(But for How Much Longer?): Unitherm has survived cross-motions for summary judgment but just by a hair (of its chinny chin chin?). U.S. District Court Judge Joan N. Ericksen (D. Minn.) has almost thrown out the whole case, leaving only the issue of the ownership of “the hybrid cooking process” as between Hormel and Unitherm. On the other hoof, the value of ownership of that process might be substantial.

Update #3 (March 16, 2016): It is impossible to assess arguments when one only has documents redacted to conceal information pertinent to the dispute. On the other hand, from where I sit, the bacon battle against home-town honey ham Hormel (based in Austin, Minnesota), discussed in several earlier posts below, looks to be going poorly for Plaintiff Unitherm.

Perhaps the out-of-town under-pig will complain of a home-trough bias. But my pessimism for Unitherm’s case comes from objective factors, such as its lack of success in the case to date and a very strong brief by Hormel in support of its motion for summary judgment. (Unitherm’s own brief in support of its own cross-motion for summary judgment is more heavily redacted and so more difficult to assess.)

From the cheap seats, at least, my money’s on Hormel. Unitherm seems to rely in some large degree on (1) a supposed obligation on Hormel’s part to keep public information secret, and (2) the idea that Hormel should be liable for keeping its own secrets from Unitherm at a time when it had agreed not to divulge Unitherm’s shared secrets to any third party. (Agreeing to keep shared information secret is not the same as agreeing not to have any secrets from one’s counter-party.) These alleged acts, if true, might trigger liability…when pigs fly.220px-Sus_scrofa_avionica


Update #2 (October 19, 2015): The acrid and burnt smell wafting (in my imagination) from U.S. District Court Judge Joan N. Ericksen’s (D. Minn.) order last week denying Plaintiff Unitherm’s objections to Mag. Judge Becky Thorson is the smell of Plaintiff Unitherm’s bitter frustration and defeat in its latest skirmish in this Bacon Battle Royale.

I am sympathetic to Unitherm, the losing side in this round.

Plaintiff Unitherm’s basic theory is that Defendant Hormel infiltrated Plaintiff’s cutting edge bacon technology under the guise of a joint effort with Unitherm and then dumped Unitherm, after which Hormel allegedly went its own way with its own competing product, piggishly trampling Unitherm’s legal rights in the process.

Unitherm sued Hormel for theft of trade secrets, among other claims. As discussed below in an earlier post, U.S. District Court Judge Magnuson (D. Minn.) threw out Unitherm’s trade secret claim, pointing out that Unitherm had a patent on the technology at issue in the lawsuit. Patents are the antitheses of trade secrets, as the word “patent” patently suggests. But Judge Magnuson allowed Unitherm to go forward with two other claims against Hormel for (1) breach of contract and (2) unjust enrichment.

Unitherm’s argument as to the unjust enrichment claim is essentially that Hormel should be liable for its bacon bait and switch, that Unitherm is entitled to some (or all?) of Hormel’s profits from its “Bacon1” product. To make this claim, Unitherm would need to take discovery of Hormel’s Bacon1 product, however. Hormel fought against the discovery arguing that it was irrelevant to Unitherm’s surviving claims and burdensome, to boot.

U.S. Mag. Judge Becky Thorson (D. Minn.) agreed with Hormel and barred Unitherm from getting that discovery. She deemed it to be “irrelevant” since Unitherm’s trade secret case was tossed out and she also said that if the evidence had the “slightest” relevance, the burden of the discovery outweighed its usefulness (see footnote 6, p. 9).

Judge Thorson apparently based her “burden” analysis on a lawyer’s statement that seems to have been a basic (and to me, not very persuasive) protest of “enough’s enough” (see footnote 6, p. 9). Indeed, Unitherm had evidence that the burden on Hormel would have been negligible (see p. 12 in Unitherm’s objection to Mag. Judge Thorson’s order).

Assuming only for the sake of argument that Judge Thorson (and Judge Ericksen) got this decision wrong, because this is far from a “final judgment” in the case permitting for an appeal any time soon, Unitherm is effectively hog-tied up to, through, and past trial.

640px-Pig_in_a_bucketUpdate #1 (February 3, 2015): Plaintiff Unitherm has a bacon-cooking patent and claimed that Defendant Hormel stole its trade secrets related to its bacon cooking technology. “[I]t is axiomatic that a thing patented cannot also remain a secret.” So Unitherm’s trade secret claim got tossed out on a motion to dismiss this past week. Nevertheless, Sr. U.S. District Court Judge Paul A. Magnuson (D. Minn.) also ruled that Unitherm’s breach of contract claim and unjust enrichment claim against Hormel can go forward.

As Unitherm and Hormel stand at the threshold of expensive litigation, maybe they should take heed of an adage I have heard much of lately: “Pigs get fat. Hogs get slaughtered.” I have it on good authority that this adage is literally nonsensical and factually erroneous. But the point is that maybe the two can reach some reasonable compromise instead of one side, the other side, or both sides, overreaching?

Bacon Meme PicOriginal post (October 17, 2014) (under the headline Code-cracking Crackling Pre-cooked Bacon: Unitherm v. Hormel): Bacon is at the center of almost everything. It is at the center of a pig, for example. It is at the center of the economies of several midwest states. These are at the center, of course, of the United States.

Bacon is even the delicate combination muscle/fat meme material that holds the entire internet in place. Without bacon… We should not even contemplate the possibilities…Someone could get hurt.

So, imagine that you invented a way for preparing pre-cooked sliced bacon. You would be a wealthy person.

But it’s hard to imagine. Crackling the code, obtaining the holy grail, finding a process by which one might sell cooked bacon that looks like the bacon we cook at home in  a skillet — not the pale unappetizing inferior alternative that we fish out of a microwave. Not the  pale unappetizing inferior alternative that we see in the supermarket and that we buy with a heavy heart, saying to ourselves, “They can put a person on the moon, but, still, when it comes to selling crispy, pretty, precooked bacon…[sigh].”

David Howard claims to have devised just such a system. And he claims that Minnesota’s beloved Hormel stole his idea (more or less).

The trick appears to be a spiral oven (see Exhibit 3 in the linked exhibits to the Complaint).


Leave a Reply

Your email address will not be published. Required fields are marked *