Hon. Vice Chancellor Leo E. Strine, Jr., carved up the parties’ discovery motions and a motion to amend Thursday in KFC National Council v. KFC as KFC and its franchisees crossed the road toward a September 20 trial date that would determine which side would ‘rule the roost’ in allocating chicken marketing dollars.
Vice Chancellor Strine determined that KFC would be prejudiced were the Court to approve the franchisees’ proposed new claim less than three weeks before trial, and so the claim would have to be asserted, if at all, in a subsequent action.
The Court also ruled that KFC’s attorney-client privilege would not be waived based on its counsel’s failure to keep up with her CLEs, which resulted in her not being a bar member in good standing. It would be unfair to punish the client, which in good faith believed that it was getting its legal advice from and communicating with a bar member, and it did not make sense to require clients to keep abreast of their attorneys’ CLE status.
The Court also advised that a party’s attorney-client privilege would not be waived based on a communication with a former in-house counsel who was currently functioning as a member of the business, rather than of the legal team, if the former counsel were in fact an attorney giving legal advice related to the prior representation rather than business advice.
The Court urged the parties to settle their differences and helpfully suggested that the parties introduce “The Shar Pei Chicken…manufacturing a chicken like a Shar Pei dog…I’m telling you, a cookie sheet full of just the skin, that’ll solve all your financial problems.”
Having perhaps revealed a palate aligned with the franchisees’ sensibilities, Vice Chancellor Strine reassured the parties that his family members were split on the question of fried versus grilled, and that his own taste would not influence his ruling, although, he conceded, “If KFC has any hint that they’re ever going to actually pull the original recipe, then I might recuse, because that would seem to be a crime against humanity and an unpatriotic act,” which concerns would not apply if KFC merely intended to sell an additional product that was also in line with another American chicken-cooking tradition.