Arguments only a Lawyer Could Make with a Straight Face: A Burrito is a Sandwich

When Panera Bakery signed a lease agreement with the White City Mall of Massachusetts in 2001, they included an exclusivity clause that both parties agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches.

Easy right? Fast forward 5 years and White City Mall signs a lease agreement with Qdoba Mexican Grill to lease space in the same food court.

Panera went bananas. They started threatening litigation, demanding recission of the Qdoba lease agreement, and rolling around red-faced on the floor. Panera believed and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Qdoba under the Lease. “Au contraire my little baker friend,” replied the opposing counsel and the court. Superior Court Judge Jeffery Locke opined in a seven page opinion:

The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “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.

This has got to be the first time that a court had to delineate the characteristics of the sandwich in a judicial opinion. And if that wasn’t enough, the Court put a final nail in Panera’s burrito-is-a-sandwich coffin: “Even though Panera vigorously argued for a broad definition of ‘sandwiches’ under the lease agreement to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean ‘sandwiches.'”

Prof. Marjorie Florestal of McGeorge finds the fact that Judge Locke leaned so heavily on common sense in this case troubling. In the introduction to her law review article she writes, “In short, a judge’s common sense or gut-level intuitive reactions– while permissible and useful–must undergo a second layer of logical, deliberative reasoning if she is to arrive at a truly holistic and fully-formed assessment of the case.”

While the Professor is correct that law requires such analysis, things like “Is a burrito a sandwich?” “Is waterboarding torture?” and “Is a horse a bird?” ostracize the layman and offend our notions of reality when lawyers try to justify the absurd conclusion.

White City v. PR Restaurants (2006).

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