Petition for Writ of Certiorari — Thompson v. Kentucky Fried Chicken Corp.

Supreme Court, U.S.

FILED

(") 24 17 8 JUL 26 1994

Ulritk UF Tht citRK

In the

SUPREME COURT OF THE UNITED STATES

October Term 1994

NEAL W. THOMPSON, and

PRECISION PROCESSING, INC.

Petitioners,

Vv.

KENTUCKY FRIED CHICKEN

CORPORATION, et al.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JAMES P. ROSS, Esquire

Suite 1310 Ailegheny Bldg.

429 Forbes Avenue

Pittsburgh, PA 15219

412-471-8898

Attorney for Petitioner

QUESTIONS PRESENTED

Whether the United States District

Court for the Western District of

Kentucky-Louisville Division and the

United States Court of Appeals for

the Sixth Circuit (hereinafter "the

Courts below") improperly applied the

statute of limitations of Kentucky,

to a tort which admittedly did not

and could not have accrued or

occurred within Kentucky?

Whether Defendants' Attorneys

Skadden, Arps, Slate, Meagher and

Flom violated their duty of candor to

the Courts below, as set forth in

Demjanjuk v. Petrovsky, 10 F.3d 338,

346; 349, 282, 353,...354,...353. (OS

Cir. 1993) by inter alia advising the

Courts below that if Defendants

(hereinafter "KFC") misappropriated

Plaintiffs' (hereinafter "Thompson"

or "Mr. Thompson") trade secrets,

said theft had to have occurred in

Kentucky in 1967 and 1968 when

council for KFC knew that:

A. No relevant event or events took

place in Kentucky in 1967 or

1968;

B. None of the agents, servants or

employees of KFC who were in-

volved in the theft of trade

secrets were ever physically

within Kentucky in 1967 or 1968;

C. KFC did not move its principal

place of business, its Corporate

Headquarters or its Research and

Development Department to

Kentucky until 1969; and

D. Each and every cooker into which

KFC incorporated Thompson's

trade secrets was manufactured

in a state other than Kentucky?

ii

Whether the Sixth Circuit improperly

concluded, while ignoring allegations

to the contrary in the Complaint as

well as the findings of the District

Court, that each of Thompson's causes

of actions, including the 1984 viola-

tion of civil rights and the 1984

breac fe) contract "stemmed from"

the 1967/1968 theft of trade secrets,

(see Appendix at B-2 and A-16, 17,

18, 19 and 20)?

Whether the Courts below erred by

finding as a matter of law that the

only written contract between the

parties (the "Joint Development

Agreement" - "JDA") was at the same

time both:

A. Unenforceable as aq contract

because of vagueness, and

B. Enforceable as a contract so as

to bar a civil rights cause of

iii

action under part "III" of the

decision in Patterson v. McLean,

491 U.S. 164, i099 S$.Ct. 2363,

105 L.Ed. 136 (1989)?

Whether the above "unenforceable",

but yet "enforceable", "Joint

Development Agreement" contract to

test Thompson's equipment bars, under

part “rv" of Patterson, supra,

Thompson's civil rights cause of

action arising out of KFC's 1984

refusal to enter into a "new and

distinct" contract to buy Thompson's

equipment?

Does the fact that Mr. Thompson, a 70

year old black individual, testified

from his experiences in the 1930s,

1940s, 1950s, 1960s, 1970s, and

1980s, that he believed that certain

employees of KFC, in a general sense,

had been racially prejudiced against

iv

him in the '60s, '70s, and '80s, bar

a specifically pleaded cause of

action for a racially motivated theft

of trade secrets which was not dis-

covered under Pennsylvania's "dis-

covery" statute of limitations until

February of 1984?

Does Thompson's opinion as to KFC's

past history of racial prejudice

grant KFC carte blanche to continue and to

renew its racially prejudiced activ-

ities again in 1982 and 1984.

At the summary judgment level did the

Courts below improperly resolve

disputed issues of fact and did they

do so by improperly drawing all

inferences in the light most favor-

able to the party making the motion,

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 106 S. Ct. 2505, 91 L.Ed.2d

202 (1986); Celotex Corp. v. Catrell,

Vv

477 U.S. 337, . 106 Sse. 25968, 91

L.Ed.2d 265 (1986); and Matsushita

Electric Industrial Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Do the responses to the above

questions establish that the Courts

below and/or KFC's council have "so

far departed from the accepted and

usual course of judicial proceedings"

that this Court is required to in-

tervene and to thereby permit

Thompson to exercise his civil rights

by proceeding to a civil trial for

the purpose of inter alia securing

his civil rights (see Rule 10 of the

Rules of the Supreme Court of the

United States)?

vi

STATEMENT UNDER RULE 28.1

Plaintiff Precision Processing, Inc. is a

closely held corporation and it has no

subsidiaries.

vii

TABLE OF CONTENTS

PAGE

Questions Presented ...-+ ++ + +s * i

Statemerit under Rule 28.1 .....-. vii

Table of Contents . .---++:+ « « « viii

Table of Authorities ...-.-+-+-+-+#-+4e+ &

Opinions Below ..++-+-+-+*+-+-+-s 8 -* 1

Jurisdiction of This Court ....-.-1

Constitutional Provisions and

Rules Involved in this Case .....- 2

Statement of Case ...--+-+-+-+-+-+e«e 2

Reasons for Granting the Writ... .- 11

I. Summary of Argument... =: > 11

II. Statutes of Limitations ... 12

III. The 1984 "Joint Development

Agreement" is "Unenforceable" 17

Iv. The 1994 "Joint Development

Agreement" is "Enforceable" . 22

V. Patterson v. McLean ..-.+-«- - 23

Cee re ee cg ee ee ce OSS

Appendix

January 26, 1993 Memorandum

of the United States District

Court for the Western District

of Kentucky at Louisville ... - A-l

March 23, 1994 per Curiam

Decision of the United States

Court of Appeals for the

Sixth Circuit Affirming the

Granting of Motion for Summary

Pegebene « «© © «© 6s oe we © B-1

April 29, 1994 Order of the

United States Court of Appeals

for the Sixth Circuit Denying

Plaintiffs' Petition for

Rehearing and Petition for

Rehearing En Banc ...-+-+-+- + Crl

viii

TABLE OF CONTENTS (continued)

PAGE

42 U.S.C.A. §1981 (Civil Rights

Act of 1964) ae i. * « « wee

Rule 10 of the Rules of the

Supreme Court of the United

States of America ...-« ss «s+ « Ei

ix

a

TABLE OF AUTHORITIES

CASES PAGE

Alogaili v. National Housing

Corporation, 743 F.Supp 1264,

12713, 1272 (N.D. Ohio, 1990) .. 28,29

Auderson v. Liberty Lobby, Inc.,

477 U.S. 242, 106 S. Ct. 2505,

Se ee ee PT

Celotex Corp. v. Catrell, 477

Use Sh7, £06 S.Ct. 25466, 91

L.Ed.2d 265 (1986) ene ane a eee

Demjanjuk v. Petrovsky, 10 F.3d 338

[ee BONE 6, 6 sw +. 6 e. bgedgee

KFC v. Diversified Pkg. Corp.,

S89 7.20 366, 2660; 3934, Ft. 12

em ig (90h Cir: 2977) «.« «© «© « @ 4

KFC v. Diversified Pkg. Corp.,

376 F.Supp 1136, 1139, 1146,

1147 (S.D.Fla. 1974) lo aa ee 22

Mack Trucks, Inc. v. Bendix, 372

F.2d 18, 20, 21 (3rd Cir. 1966) .. 14

Mackey v. Judy's Food, Inc., 654

F.Supp. 1465, 1471, 1472 (M.D.

oe ee ae a a a a a 14

Matsushita Electric Industrial

Co,, Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 106 S.Ct. 1348, 89

ee ee ee ee

TABLE OF AUTHORITIES (continued)

CASES (continued) PAGE

Patterson v. McLean, 491 U.S. 164,

109 S.Ct. 2363, 105 L.Ed. 136

(1989) Poe ea we ks © 6 bl «8 6. £088

23,25

Pierce v. Rossetta Corp., et al,

No. 88-5873 (E.D. Pa. 1991) (LEXIS

Gen. Fed. Library Dist. file)... 14

STATUTES

Constitution Article 3, Section 2,

Ona 26 U.8.C. Ge@eion i284 ..«-see«ki

42 U.S.C.A. §1981 (Civil Rights

Act of 1964) “ee See cae or ei deta

RULES

Rule 10 of the Rules of the

Supreme Court of the United

ee ea a

xi

OPINIONS BELOW

The Opinions below are unreported.

Copies of those unreported Opinions are

attached hereto at Appendix A, B, and C.

JURISDICTION OF THIS COURT

This Supreme Court has jurisdiction

over this Petition under United States

Constitution Article 3, Section 2, and 28

U.S.C. Section 1254 to review the Memor-

andum Opinions of the United States Court

of Appeals for the Sixth Circuit and the

Decisions of the United States District

Court for the Western District of Kentucky

at Louisville.

The Memorandum Opinion of the United

States Court of Appeals for the Sixth

Circuit affirming the granting of summary

judgment by the United States District

Court for the Western District of Kentucky

at Louisville sought to be reviewed here

was entered on March 23, 1994. The

1

Petitioner here filed a timely Petition

for Rehearing, which was denied by Order

of the United States Court of Appeals for

the Sixth Circuit on April 29, 1994 (see

Appendix A, B and C).

CONSTITUTIONAL PROVISIONS AND RULES

INVOLVED IN THIS CASE

42 U.S.C. 981 (Civil

Rights Act of 1964)

- See Appendix D

Rule 10 of the Supreme Court

of the United States of America

- See Appendix E

STATEMENT OF CASE

Procedural

This is an appeal from the granting

of the Motion for Summary Judgment of KFC,

and the dismissal of each cause of action

of Thompson.

In granting KFC's Motion for Summary

Judgment the Courts below were required to

draw all of the inferences from _ the

evidence in the light most favorable to

Thompson and to conclude, if possible,

that KFC had met its burden of estab-

lishing that there remained no genuine

disputes as to material facts. In

arriving at that conclusion, the Courts

below were not permitted to resolve any

existing disputes in order to find that

KFC met its burden, see Anderson, Celotex,

and Matsushita, supra at V.

Factual

In the early to mid 1960s, Mr.

Thompson, a black businessman, invented a

fully automatic chicken fryer which was

designed for use in commercial estab-

lishments such as KFC's franchisee owned

stores. Mr. Thompson's cooker included

aspects which were patented in 1974 as

well as other aspects which, as of 1967/

1968, were trade secrets. In 1967/1968

KFC, as well as the entire industry, was

using only manually operated pressure

cookers which were hardly more sophis-

ticated than the pressure cookers being

used in the average home and which cooked

inconsistent chicken.

In August of 1967 and under the

protection of a written Confidentiality

Agreement, Mr. Thompson demonstrated his

equipment to KFC in Pittsburgh, PA and in

November of 1967 Thompson permitted KFC's

patent attorneys to review in Washington,

DC or New York City his entire patent

application which at the time was not a

public document.

In December of 1967, Mr. Thompson and

Mr. Greer of KFC agreed that Mr. Parker of

KFC would be sent by KFC from Tennessee to

Pittsburgh to test Thompson's equipment.

During discovery Thompson learned for

the first time that the Chief Executive

Officer of KFC, Mr. Massey, instructed Mr.

Parker, while they were both on an

+

airplane from Tennessee to Pittsburgh, not

to test Thompson's equipment; that Mr.

Parker and/or Mr. Massey then informed Mr.

Greer that it was Mr. Thompson who had

refused to permit Mr. Parker to test Mr.

Thompson's equipment; that by January of

1968 KFC, in Tennessee, had prepared

electrical drawings describing a machine

which used some of the trade secrets

described in Thompson's 1967 patent

application; that by March of 1968 KFC

had, in Tennessee, designed and built and

was in the process of testing a fully

automatic cooker which it designated as

it's 10-3 cooker; and that by January of

1969 KFC was marketing, from Tennessee, to

its franchisee owned stores 10-3 cookers

which used the trade secrets described in

Thompson's 1967 patent application.

By late 1969 KFC moved its principal

place of business, its Corporate Head-

quarters and its Research and Development

Department from Tennessee to Kentucky.

Based upoon the foregoing, it is

obvious that no actions relevant to the

1967/1968 theft of trade secrets took

place in Kentucky. All demonstrations or

reviews of Thompson's technology took

place in Pittsburgh, PA, New York City,

NY, or Washington, DC; and all individuals

involved in the theft or the use of

Thompson's trade secrets resided in

Tennessee.

Also at no time herein relevant did

KFC ever manufacture any cooker in

Kentucky.

In 1972 KFC again agreed to test

Thompson's equipment and did so from 1972

through 1974. In KFC's summaries of that

testing, which was done entirely by KFC

6

—

employees, KFC concluded inter alia that

Thompson's equipment cooked the "pnerfect

Kentucky Fried Chicken" and KFC also

estimated that Thompson's cooker would

save KFC approximately $780,000 a year in

oil costs. Notwithstanding the above con-

clusions KFC again refused to deal with

Mr. Thompson and thereby refused its

franchisees permission to purchase any

automatic cooker other than KFC's 10-3.

In 1981 KFC again inspected

Thompson's equipment and notwithstanding

the fact that KFC's outside consultant and

the head of KFC's Research and Development

Department both recommended testing, KFC

refused to test and again refused to

approve Thompson's equipment for uses by

its franchisees.

After the above refusal, Thompson

secured Underwriters Laboratory approval

| eee

for his equipment as well as approval by

the National Sanitation Foundation.

In 1982 KFC entered into an agreement

with the Reverend Jesse Jackson and PUSH

whereunder KFC agreed to improve its

dealings with minority vendors and to

improve its hiring of minorities. In 1982

KFC and Thompson entered into a "Joint

Development Agreement" under which KFC and

Thompson were to "jointly test" and to

"jointly evaluate" Thompson's equipment.

If Thompson's equipment passed the "joint

testing and evaluation" - that is if

Thompson's equipment cooked "at parity"

with other approved cookers - KFC agreed

to negotiate a new and distinct contract

to purchase Thompson's equipment.

Ultimately KFC performed all of the

"Joint" tests and KFC’ unilaterally

prepared all of the evaluations which were

captioned "Technical Summary" and/or

"Management Summary". These evaluations

were distributed internally to KFC's upper

management, including KFC's Chief

Executive Officer. In the version of a

"Management Summary" given to KFC's Chief

Executive Officer by Dr. Rao, Head of

KFC's Research and Development Department,

Dr. Rao concluded not only that Thompson's

equipment cooked "at parity", but Dr. Rao

also concluded inter alia that Thompson's

cooker reduced cooking time by 35% and

saved approximately $500,000 a year in

milk and egg dip.

This version of Dr. Rao's "Management

Summary" was not given to Thompson until

after this suit was filed.

Dr. Rao, in the version of the

"Management Summary" which was given to

Thompson in 1984, concluded based upon the

same testing as evaluated by the same KFC

he

employees that Thompson's cooker did not

cook "at parity".

At his deposition Dr. Rao could not

explain, and KFC to this date has been

unable to explain how one set of tests

conducted entirely by KFC could establish

that Thompson's equipment cooked both "at

parity" and "not at parity".

During the above testing Thompson for

the first time inspected a KFC 10-3 cooker

and found that KFC had misappropriated

some of his trade secrets. Within one

year of that discovery, Thompson filed

this suit.

In this suit and in addition to the

counts for the theft of his trade secrets

and the racial motivation thereof,

Thompson alleges inter alia various other

independent causes of action, i.e. in 1984

KFC fraudulently breached the "JDA"; in

1984 KFC because of its racial prejudice

10

refused to enter into a "new and distinct"

contract to purchase Thompson's equipment;

in 1984 KFC because of its racial pre-

judice refused to permit its franchisees

to purchase Thompson's equipment.

REASONS FOR GRANTING THE WRIT

S ° ment

The Courts below made findings of

fact which all parties hereto admit are

incorrect and the Courts below further

found that the same contract was at the

same time both "enforceable" and "unen-

forceable", and thereby dismissed each of

Thompson's causes of actions for reasons

which are by definition contradictory

and/or unsupportable by any evidence, rule

of law or school of logic.

Thompson here submits that the above

actions have "so far departed from the

accepted and usual course of judicial

11

proceedings" to require this Court to

intervene.

Thompson further submits that the

decisions below are so blatantly improper

that they, unfortunately, could raise a

question as to whether or not the Courts

below have the budget, the time, the

staffing or the inclination to sit at a

civil trial brought by a black individual

against a major corporation which will and

has already made every attempt to unduly

delay and extend the trial by means of

sophistry and obfuscation.

II. Statutes of Limitations

- 1967/1968 Claims

At the summary judgment level KFC in

its Brief and at oral arguments, advised

the District Court that if KFC misappro-

priated Thompson's trade secrets, that

cause of action occurred or accrued in

Kentucky where KFC made the decisions to

12

misappropriate, where KFC incorporated the

trade secrets, and where KFC manufactured,

sold and repaired the 10-3 cookers which

used Thompson's trade secrets.

The District Court found all of the

above statements of KFC council to be true

(see Appendix here at A-7), and applying

Kentucky's ten year statute of limitation

dismissed all causes of action which

either arose out of the theft of the trade

secrets or arose out of the racial

motivation for the theft of trade secrets.

At page 18 of KFC's Brief of Defen-

dants/Appellees, in KFC's Answer to

Interrogatory 30 and elsewhere, KFC has

admitted that the above factual statements

by KFC's council and findings of fact by

the District Court are incorrect,

Demjanjuk v. Petrovsky, 10 F.3d 338, 348,

349, 352, 353, 354, 355 (6th Cir. 1993).

ad

Since both KFC and Thompson agree

that if the theft of trade secrets took

place, it took place in either Tennessee

or Pennsylvania, the "discovery" statutes

of either state apply. Those statutes, in

general, hold that a plaintiff may file a

complaint within a specified number of

years after the plaintiff "discovered" the

existence of the cause of action, Mackey

v. Judy's Food, Inc., 654 F.Supp. 1465,

1471, 1472 (M.D. Tenn. 1987); Mack Trucks,

inc. v. Bendix, 372 F.2¢a I8, 20, ai (aeG

Cir. 1966) and as cited by KFC, Pierce v.

Rossetta Corp., et al, No. 88-5873 (E.D.

Pa. 1991) (LEXIS Gen. Fed. Library Dist.

file).

Here Thompson has testified in his

Summary Judgment Affidavit and elsewhere

that he did not "discover" the theft of

trade secrets until February of 1984.

Since the Complaint here was filed within

14

one year of that "discovery", all causes

of action arising out of the theft of

trade secrets and the racial motivation

for the theft of trade secrets have been

filea in a timely fashion under either the

Pennsylvania, the Tennessee or the Federal

statutes of limitations and the decisions

of the Courts below must be overturned.

It should be noted here that KFC

attempted to dispute Thompson's testimony

and argued that Thompson knew of the theft

of his trade secrets at an earlier date

and therefore argued that Thompson did not

file his Complaint within a _ timely

fashion. The District Court, however, did

not resolve that factual dispute, as is

proper, at the summary judgment level (see

Appendix A-11 and 12).

It should also be noted that after

eight years of discovery, which included

the taking of five depositions of the

15

three "alleged" inventors of KFC's cooker

(the depositions of two of the alleged

inventors were taken twice), and after the

expenditure by KFC of in excess of

$2,000,000 in legal fees, KFC was not able

to show to the Courts below where, how and

from whom KFC developed its 10-3 cookers

(see Appendix A-4).

It should also be noted that the

Sixth Circuit incorrectly concluded that

all of Thompson's causes of actions

"stemmed from" the theft of trade secrets

(Appendix B-2). A review of the Complaint

herein will establish that Thompson

pleaded separate causes of action for the

breach of contract and the violation of

his civil rights which arose in the

1982/1984 time frame. These 1984 causes

of action as pleaded, remain viable

without regard to whether or not KFC

misappropriated Thompson's trade secrets,

16

without regard to whether that mis-

appropriation was racially motivated, and

without regard to whether or not Thompson

knew of the theft of trade secrets or the

racial motivation thereof at some date

prior to February of 1984.

IiIl. The 1984 "Joint Development

Agreement" is "Unenforceable"

The portion of the District Court's

Memorandum dealing with this issue is

attached at Appendix A-18, 19 and 20. In

Summary, the Courts below found as a mat-

ter of law that Thompson had no contrac-

tual right to be present at the joint

testing described in the "Joint Develop-

ment Agreement", because the word "joint"

was not "defined" and that the "Joint

Development Agreement" was therefore so

vague and ambiguous as to be unen-

forceable.

17

Se aaeen ee

f,

&

:

&

Thompson submits that requiring, as a

matter of law, that the word "joint" be

defined when used in a contract involving

two parties defies logic. Clearly, the

contract involved only two parties, and

giving the word "joint" any conceivable

definition, it is obvious that’ the

contract is not ambiguous. The "Joint

Development Agreement" specifically stated

that both KFC and Thompson would test and

evaluate his cooker.

It is undisputed that Thompson was

not involved in any of the individual

tests. It is undisputed that Thompson was

not involved in any of the evaluations.

It is not disputed that KFC conducted each

and every one of the individual tests and

that KFC prepared totally on its own each

and every evaluation of those tests. It

cannot be disputed, even after giving the

word "joint" any conceivable definition,

18

that KFC, by its unilateral actions,

breached both its duties of good faith and

its written contractual duties under the

"JDA".

Even if one were to assume that there

is a reasonable dispute as to the meaning

of the word "joint", the Court again

resolved that dispute which is improper at

a summary judgment level, and the Court

again resolved that dispute by extending

all favorable inferences to KFC and not to

Thompson. The Courts below further

resolved an ambiguity in favor of the

creator of the ambiguity.

Assuming for the sake of argument

that the word "joint" must be definied in

all two party contracts or only in this

two party contract, the Courts below still

erred in finding that no evidence existed

of a breach of the "JDA". Assuming that

Thompson had no contractual right to

19

become involved in the "Joint" testing,

KFC had no right to prepare conflicting

reports of tests.

Here, it is again undisputed that Dr.

Rao, the head of KFC's Research and

Development Department, personally

authored two conflicting "Management

Summaries". In a version of the

"Management Summary" which was not given

to Thompson until after suit was filed,

Dr. Rao simply declares unequivocally that

Thompson's equipment cooked “at parity"

and therefore, by KFC'sS definition,

Thompson's equipment passed KFC'S test.

In the version of the "Management Summary"

given to Thompson in 1984, Dr. Rao simply

contradicts himself and says that

Thompson's equipment did not cook "at

parity". Here, Dr. Rao and KFC simply

committed a fraud.

20

If the above does not constitute a

fraud, certainly it constitutes a dispute.

The written evidence produced by the

moving party - KFC - is both that

Thompson's equipment at the same time

cooked "at parity" and "did not cook at

parity". KFC's own evidence establishes

that there exists a genuine dispute as to

a material fact - did Thompson's equipment

cook “at parity"? If it did, it passed

KFC's test, and KFC was required to in

good faith negotiate towards a "new and

distinct" contract to buy, and KFC was

further required under its agreements with

its franchisees to approve Thompson's

equipment for use by KFC's franchisees

because KFC could not arbitrarily and

capriciously withhold approval of equip-

ment which was "at parity" with other

approved equipment, K Vv. versified

Pkg. Corp., 549 F.2d 368, 380, 381, ft. 21

21

and 12 (Sth Cir. 1977); also KFC vy.

iversified Pkg. Corp., 376 F.Supp 1136,

1139, 1146, 1147 (S.D. Fla. 1974).

KFC did not approve Thompson's equip-

ment for use by its franchisees. KFC

refused to enter into a contract with

Thompson to buy his equipment. Therefore,

KFC breached ' the "Joint Development

Agreement" and did so without regard to

the definition of the word "joint".

IV. The 1984 "Joint Development

Agreement" is "Enforceable"

Thompson here alleged that in 1984

KFC violated his civil rights by refusing

to enter into a "new and distinct" con-

tract to buy his equipment. The District

Court dismissed this cause of action under

part "III" of the decision in Patterson v.

McLean, 491 U.S. 164, 109 S.Ct. 2363, 105

L.Ed. 136 (1989) (See Appendix at A-16 and

17), by finding that the 1984 violation of

22

Thompson's civil rights arose out of the

performance of an "enforceable" contract

which is the same "JDA" which the court

also found to be "y forceable".

Thompson submits that the "JDA" sim-

Ply cannot be found to be "unenforceable"

for the purposes of depriving Thompson of

his contractual rights, and at the same

time be found to be "enforceable" for the

Purposes of depriving Thompson of his

Civil rights.

V. Patterson v. McLean

Further, this Court has held that the

Civil Rights Act of 1964 (42 U.S.C.A.

§1981 et. seq.) prohibits a racially mo-

tivated refusal to enter into a contract

where the Proposed contract "rises to the

level of an Opportunity for a new and dis-

tinct relationship," (Emphasis supplied)

Patterson, supra, part IV at 2377 et. seq.

23

The use of the words “new and dis-

tinct" logically requires the existence of

a contractual relationship and further

requires the possibility of a second and

different contractual relationship. In

1982/1984 the only contract which existed

was the "JDA" under which KFC agreed to

jointly test and evaluate Thompson's

equipment. Here, the “new and distinct"

contract, which KFC refused to enter into,

was not the contract to test, but a "new

and distinct" contract to buy. Clearly

where the only existing relationship was a

relationship to test, a contract to buy

"arises to the level of an opportunity for

a new and distinct relationship."

Thompson therefore submits at that

the summary judgment level, there existed

a dispute as to whether or not the future

contract to buy rose out of the enforce-

ment of the "unenforceable"/"enforceable"

24

"JDA". The Courts below obviously

exceeded their authority and resolved that

dispute; and the Courts below further

improperly resolved that dispute by

drawing all inferences in the light most

favorable to the moving party - KFC.

Further, the decision of the Courts

below is contrary to this Court's ruling

at Patterson, Part IV, which permits a

civil rights cause of action to enforce a

"new and distinct" contract; or in the

alternative, the decision of the Courts

below is contrary to this Court's ruling

at Patterson, Part III, in that the Courts

below have now extended Patterson to

exclude a civil rights cause of action for

the refusal to contract where no enforce-

able contract existed.

CONCLUSION

Because KFC at the summary judgment

level could not establish how, when, or

25

from whom it developed its own 10-3

cooker, and could not establish that

Thompson "discovered" KFC's theft of trade

secrets prior to February of 1984, KFC was

reduced to the sophistry of arguing to the

Courts below that events which could not

have happened in Kentucky happened in

Kentucky. To date, KFC's style of

"advocacy" and "candor" to the Court has

been successful because the District Court

and the Sixth Circuit, in effect, have

found as a matter of law that what cannot

be is. |

While the Sixth Circuit compounded

its errors by erroneously finding that

each of Thompson's 1984 breach of contract

and violation of civil rights causes of

action "stemmed from" KFC's' 1967/1968

theft of trade secrets, the District Court

did, at least, review the Complaint in

this matter and recognized that Thompson's

26

1984 causes of action existed indepen-

dently of Thompson's 1967/1968 causes of

action. However, in order to dismiss

Thompson's 1984 causes of actions, the

District Court was compelled to find that

the word "joint" as used in a joint

development, joint testing, joint eval-

uating contract involving only two parties

was vague; and was so apparently because

joint could mean only one party and/or

joint under the two party contract could

mean that a third unidentified and unnamed

party would be contractually bound. The

District Court also felt compelled to find

that it is not a fraud, nor a breach of

contract, nor a breach of a party's

inherent duty of good faith for Dr. Rao to

conclude from the same set of tests, at

the same time, and for the same purposes

that Thompson's equipment passed KFC's

testing and did not pass KFC's testing;

27

and the District Court further was

compelled to conclude that it is legally

possible for a contract to be totally

unenforceable and at the same to be

totally enforceable.

While the above may or perhaps should

raise questions concerning the logic and

consistency of the Courts below, other

questions also remain.

Why would a group of otherwise

competent businessmen refuse over a 20

year period to use and/or refuse to let

its franchisees use equipment that those

businessmen found to be "at parity" with

other equipment and which they found also

made the "perfect" product, and also did

so at a cost savings of in excess of

$1,000,000 a year, Alogaili v. National

Housing Corporation, 743 F.Supp 1264,

1271, 1272 (N.D. Ohio, 1990)?

28

If KFC did not believe in its own

mind, that it had a contractual/good faith

duty to negotiate and to enter into a “new

and distinct" contract to buy Thompson's

equipment, why would Dr. Rao be compelled

to change his "at parity" conclusion to a

"not at parity" conclusion, Alogaili,

supra?

Can a corporation which has a docu-

mented and admitted history of racial bias

continue with impunity to refuse to enter

into prospective, "new and distinct"

contracts simply because it is known to

have been racially biased?

Have the Courts below sanctioned a

"win at all costs" style of advocacy and

thereby voided, for calendar control

reasons, the duty of candor owed to the

Courts by attorneys as "officers of the

Court", Demjanjuk, supra?

29

For the above stated reason, this

Court should grant the Petition for

Certiorari and reverse the decisions of

the Courts below.

Respectfully submitted,

nw

~ < \

Re w— < ee

el oa \ : \ Sy...

James P. Ross, Esq.

Suite 1310 Allegheny Bldg.

429 Forbes Avenue

Pittsburgh, PA 15219

412-471-8898

Attorney for Petitioners,

Neal W. Thompson and

Precision Processing, Inc.

30

(Entered January 26, 1993)

(Memorandum granting summary judgment by

Judge Edward H. Johnstone, Judge, United

States District Court for the Western

District of Kentucky - Louisville Div.)

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

NEAL W. THOMPSON, et al.

Plaintiffs

Vv. No. C85-0755-L(J)

KENTUCKY FRIED CHICKEN

CORPORATION, et al.

Defendants

EMORANDUM

The Plaintiffs brought this diversity

action approximately seven years ago,

alleging various torts and civil rights

violations by the defendants, Kentucky

Fried Chicken Corporation and Heublein,

Inc. The defendants have moved the court

for summary judgment. Discovery has been

exhausted and the court heard oral

arguments on the summary judgment motion

on August 19, 1992. Both parties agree

a~i

that the motion for judgment is ripe. For

the reasons stated below, the motion for

summary judgment will be granted.

BACKGROUND

Specific facts pertaining to the

plaintiffs' claims will be set forth as

necessary. However, the following

background information will serve as a

general statement of the case:

The piaintiff, Neal Thompson, is an

African-American entrepreneur. At various

times in the 1960's, Thompson was employed

by Kentucky Fried Chicken (KFC) and KFC

franchisees to install cooking equipment.

KFC restaurants used manually operated

cooking devices which produced an

inconsistent product.

By August of 1967, Thompson had

independently developed an automated

pressure cooking device to uniformly cook

chicken conforming to the KFC recipe. One

A-2

special feature of this device was the

rapid pressurized expulsion of the cooking

oil with steam after the cooking cycle.

Thompson describes this process aS 4a

"pressure drain". This feature allegedly

produced a less greasy, better tasting

product. Thompson's cooker also retained

steam in the cooking vessel after the oil

had been expelled, further cooking the

chicken and producing a "steam cleaning"

effect to reduce shortening absorption.

Beginning in August of 1967, Thompson

embarked on a 20-year campaign to sell his

cooker technology to KFC. Between 1967

and 1984, KFC evaluated the Thompson

cooker on five separate occasions and each

time declined to purchase the process. In

the course of these dealings, KFC

engineers and patent attorneys had the

opportunity to closely inspect Thompson's

cooker.

oe ee

SS

KFC was actively seeking to develop

its own automatic cooking device prior to

its first viewing of Thompson's machine.

KFC had retained the consulting firm of

Booze-Allen Applied Research to approach

the problem. KFC had also entered into an

agreement with L.S. Hartzog, a KFC

franchisee from Texas, to purchase and

develop an automatic pressure cooker of

Hartzog's design and hired Southeastern

Engineering Company to develop the Hartzog

cooker. It is hotly disputed whether any

of these sources developed a workable

pressure drain system prior to Thompson's

first demonstration of his device to KFC

in 1967. However by 1969, KFC was leasing

its own automatic cookers equipped with a

pressure drain feature to its franchisees.

Thompson claims that KFC

misappropriated his pressure drain

technology. In his complaint filed

A-4

January 7, 1985, Thompson alleges the

following causes of action in relation to

his claim:

i. Misappropriation of trade secrets

2 Unjust enrichment

36 Violation of RICO

4. Racial discrimination

5. Breach of contract

6. Inducing a refusal to deal

Thompson originally filed this action in

the Western District of Pennsylvania.

Pursuant to KFC's motion for change of

venue under 28 U.S.C. §1404(a) the case

was transferred to this court.

CHOICE OF LAW

Generally, a federal court sitting in

diversity must apply the choice of law

rule of the state in which they sit.

Klaxon Co. v. Stentor Electric Mfg. Co.,

313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477

(1941). However, when a defendant obtains

A-5

2 ee

Dr tenn one

a transfer of venue under 28 U.S.C.

§1404(a) the law of the transferor forum

applies. Van Dusen v. Barrack, 376 U.S.

612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).

Therefore, the court will follow

Pennsylvania's choice of law rules.

In matters oof substantive law,

Pennsylvania follows the "interest

analysis/most significant relationship"

test for choice of law described in the

Restatement (Second) of Conflict of Laws.

Griffith v. United Airlines, Inc., 416 Pa.

1, 203 A.2d 796 (1964). This approach

calls for the balancing of the relative

interests and policies of each state

regarding the subject matter and outcome

of the litigation. Section 145, comment f

to the Restatement indicates that in

Claims of misappropriation of trade

secrets, the principal location of the

defendant's wrongful conduct will usually

A-6

be given the greatest weight in

determining the state whose local law

controls.

Significantly, Thompson's claims are

founded on the alleged wrongful use of

information legitimately obtained by KFC,

rather than a claim that KFC was

wrongfully in possession of the

information. In this instance, decisions

regarding the use of Thompson's process

occurred at KFC's headquarters located in

Kentucky. Further, all of the testing of

Thompson's equipment occurred in Kentucky.

A joint Development Agreement signed by

the parties in 1982 specifies that

Kentucky law shall apply to that

agreement. These factors weigh more

heavily than Thompson's residence or the

situs of the alleged trade secrets which

he voluntarily revealed. The court finds

that Kentucky has the most significant

A-7

relationship to this action and will apply

Kentucky substantive law.*

MISAPPROPRIATION OF TRADE SECRETS AND

UNJUST ENRICHMENT

Thompson claims that KFC

misappropriated his pressure drain process

by incorporating it into the KFC cooker

sometime before 1969 without his knowledge

or permission. KFC denies the allegations

and contends that it is entitled to

summary judgment on three separate

* Pierce v. Rosettas Corp. et al, No. 88-

5873 (E.D.Pa. April 5, 1991) (LEXIS Genfed

library, Dist file) cited by the plaintiff

is unpersuasive. In that case, all

parties were located in Pennsylvania and

the trade secrets were carried by

employees from one company in Pennsylvania

to another. Accordingly, the contacts

with Pa. were much greater.

grounds; 1) KFC developed the concept of

pressure drain independently, 2) the

pressure drain cooking technology was not

a trade secret, and 3) Thompson's claim is

barred by the applicable statute of

limitations. Because the court finds that

Thompson's misappropriation claim is time

barred, it is unnecessary to address the

other arguments.

KFC argues that, because Kentucky has

the most significant relationship to this

action, Kentucky's statute of limitations

should be applied to Thompson's trade

secret claim. The court agrees, but for

different reasons. Pennsylvania treats

statutes of limitation as procedural ane

will generally apply its own law regarding

limitations periods regardless of the

substantive law applied. Butler v. Dravo

Corporation, Keystone Division, 310

F.Supp. 1265 (W.D.Pa. 1970). However,

A-9

under Pennsylvania statute 42 Pa.C.S.

§5521, foreign statutes of limitation are

borrowed in certain situations. The

"borrowing statute" provides that a claim

“accruing outside this Commonwealth" shall

be governed by the limitations period

which first bars the clain. The court

must therefore determine whether’ the

action accrued outside Pennsylvania and,

if so, whether the claim is barred by the

foreign statute.

A claim arising under Pennsylvania

law accrues at the time and place of the

occurrence of the final significant event

necessary to make the claim suable. Mack

Trucks, Inc. BP Bendix-Westinghouse

Automotive Air Brake Co., 372 F.2d 18, 20

(3rd Cir. 1966). Mack Trucks expressly

rejects the interest analysis approach for

application of the borrowing statute in

conflicts of law situations. The

A-10

significant event in this case was the

actual use of the information obtained

from Thompson and/or observation of his

cooking device. As discussed above, this

occurred in Kentucky where KFC's principal

place of business is located. The action

accrued in Kentucky for purposes of

applying the borrowing statute. (See,

Bates _v.Cook, Inc... (D.C.Fla. 1984);

(trade secret claim accrued in Indiana for

purposes of Florida borrowing statute).

Accordingly, the limitations period which

first bars the claim will control.

The Pennsylvania limitations statute,

42 Pa.cC.S. §5524, places a two year

limitation on tort claims. Pennsylvania

law adopts a discovery rule which would

toll the running of the statute until the

plaintiff knew or should have known of the

injury. Thompson claims he did not have

absolute knowledge that KFC was using the

A-1l

pressure drain technology until 1984.

Although KFC asserts that Thompson's

deposition testimony refutes this

position, it is unnecessary for the court

to decide the matter because Kentucky's

statute of limitations would bar the

claim.

In Kentucky, the limitations period

for bringing a misappropriation claim is

10 years after the cause of action

accrued. KRS 413.160. The misappro-

priation occurred at least by 1969.

Thompson does not dispute that his suit

filed in 1985 would be barred under

Kentucky law. Even if Thompson could

utilize the discovery rule under the

Pennsylvania statute, Pennsylvania would

apply Kentucky's statute to bar the claim.

The unjust enrichment claim is subject to

the Kentucky limitations period of five

'

’

years for implied contracts, KRS 413.120,

and is likewise time-barred.

RICO VIOLA” IONS

Thompson alleges that KFC violated

the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C.§1961

et _seg., through a pattern of mail and

wire fraud activity designed to obtain his

trade secrets. RICO §1962(c) renders

criminally and civilly liable "any person"

who, being employed or associated with an

enterprise engaged in interstate commerce,

conducts or participztes in the conduct of

its affairs "through a pattern of

racketeering activity”. The complaint

catalogs numerous instances of interstate

mail and wire communications between 1967

and 1984 which Thompson alleges were in

furtherance of a scheme to defraud hin.

KFC contends that Thompson cannot

establish the requisite pattern of

A-13

. oat”

pee tiene Reape

racketeering activity because a single

scheme to defraud a single victim does not

Satisfy the statutory requirement. The

court arrives at the same conclusion with

a slightly different analysis. The

Supreme Court rejected the notion that

multiple schemes or victims are necessary

to establish a pattern of racketeering

activity in H.J.Inc. v. Northwestern Bell

Telephone _Co., 492 U.S. 229, 109 S.Ct.

2893, 106 L.Ed.2d 195 (1989). However,

the Court made clear that a RICO plaintiff

must prove continuity of racketeering

activity. The linchpin of the Supreme

Court's analysis of "continuity" is a

threat of continuing criminal conduct.

Whether the predicates proved establish a

threat of continued racketeering activity

depends on the specific facts of each

case. H.J., 109 S.Ct. at 2902.

Thompson has failed to present the

court with any facts indicating what, if

any, trade secrets are claimed to have

been misappropriated post 1968, the date

when he alleges KFC began to use the

pressure drain concept. The alleged

predicate offenses occurred during a

discrete period to accomplish a single

objective which, by its nature, does not

allow for repetition. Thompson does not

allege that KFC engages in mail or wire

fraud as a regular way of doing business,

or that KFC engages in an enterprise of

theft of trade secrets. There is simply

no threat of continuing criminal activity

as envisioned by RICO. The court

concludes that Thompson does not allege a

pattern of racketeering activity necessary

to sustain a RICO claim.

DISCRIMINATION

Thompson believes that KFC's refusal

to purchase and develop his cooing

technology is motivated by bigotry. He

Claims that KFC engaged in a general

pattern of racial discrimination against

him prior to 1982. He also claims that

KFC discriminated against him in the

performance of a Joint Development

Agreement in 1983-1984. Thompson brings

his claims under 42 U.S.C. §1981 and

alleges conspiracy under §§1985(3), 1986.

The claim of discrimination in the

performance of the Joint Development

Agreement is not actionable under §1981.

By its terms, §1981 protects two rights:

the right to make contracts and the right

to enforce them free of discrimination.

The scope of the statute does not extend

to discrimination in the performance of

the contract, as alleged here. Patterson

A-16

vy. McLean Credit Union, 491 U.S. 164, 109

§.Ct. 2363, 105 L.Ed.2da(1989).

The remaining claims of

discrimination are time-barred. Actions

brought under 42 U.S.C. §1986 are subject

to a one year limitations period. In

actions filed under 42 U.S.C. §§1981 and

1985(3), the state statute of limitations

for personal injury claims is applied.

Pennsylvania has a two year statute, 42

Pa.c.S. §5524, and Kentucky's is one year,

KRS §413.140(1) (a). Under either, the

action was filed too late.

Admissions by Thompson establish that

the acts of discrimination complained of

occurred more than two years prior to the

filing of the complaint. Copious

deposition testimony indicates that

Thompson believed he was being

discriminated against by KFC as early as

1968. Therefore his present

A-17

discrimination claims were filed outside

the limitations period.

BREACH OF CONTRACT

On February 7, 1983 KFC entered into

a Joint Development Agreement for formal

evaluation and testing of Thompson's

cooker. Testing occurred in 1984 and KFC

concluded that Thompson's technology did

not offer any advantage over their

existing cooking device. Count V of the

Complaint asserts that KFC breached the

contract by 1) excluding Thompson from

testing, 2) refusing to provide Thompson

with certain technical information, 3)

falsifying test results, and 4) failing to

act in good faith. The court has reviewed

the Joint Dev Lopment Agreement and finds

that Thompson has failed to state a claim

for breach of the Agreement.

The Agreement is four pages in length

and contains no provisions regarding

A-18

Thompson's presence at testing done at

KFC's laboratories. Although the document

does mention that the cooker will be

"Jointly tested", the term is not defined.

Further, there is no requirement stated

that KFC provide any specific technical

information to Thompson. On these points,

the Agreement is either completely silent

or too vague and ambiguous to _ be

enforceable.

Thompson's brief opposing summary

judgment contains no evidence other than

unsupported accusation that any test

results were falsified. Under the

standards set forth in Street v. J.C.

Bradford & Co., 886 F.2d 1472 (6th Cir.

1989), this is insufficient to withstand a

motion for summary judgment. Likewise,

Thompson's amorphous claim that the

testing was not performed in good faith

fails for a lack of substantive evidence.

A-19

INDUCING REFUSAL TO DEAL

Finally, Thompson claims that KFC

interfered with prospective sales of his

cooking device to KFC franchisees. This

claim fails because Thompson admits that

he had no such prospective sales. His

claim is apparently based on what he

believed the marketability of his cooker

to be rather than evidence of actual

interference. This claim, like most of

Thompson's arguments in his brief opposing

summary judgment, is a jumble of facts,

accusation and innuendo devoid of legal

support. As presented to the court, there

is no triable issue and summary judgment

is appropriate.

CONCLUSION

For the reasons stated above, the

Defendant is entitled to summary judgment.

An appropriate order has been entered

this 25th day of January, 1993.

EDWARD H. JOHNSTONE, JUDGE

United States District Court

A-21

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

NEAL W. THOMPSON, et al.

Plaintiffs

Vv. No. C85-0755-L(J)

KENTUCKY FRIED CHICKEN

CORPORATION, et al.

Defendants :

ORDER

For the reasons set forth in the

memorandum filed this date, IT IS ORDERED

that the defendant's motion for summary

judgment be GRANTED. There is no just

reason for delay, and this is a final and

appealable order. This 25th day of

January, 1993.

EDWARD _H. JOHNSTONE, JUDGE

United States District Court

A-22

(Filed March 23, 1994 per Curiam)

(Decision of the United States Court of

Appeals for the Sixth Circuit affirming

the granting of Motion for Summary

Judgment)

NOT RECOMMENDED FOR PUBLICATION

Sixth Circuit Rule 24 limits citation to

specific situations. Please see Rule 24

before citing in a proceeding in a court

in the Sixth Circuit. If cited, a copy

must be served on other parties and the

Court. This notice is to be prominently

displayed if this decision is reproduced.

No. 93-5158

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NEAL W. THOMPSON; and

)

PRECISION PROCESSING, )

INC., ) ON APPEAL FROM

Plaintiff-Appellants, ) THE UNITED

) STATES

Vv. ) DISTRICT COURT

) FOR THE WESTERN

KENTUCKY FRIED CHICKEN ) DISTRICT OF

CORPORATION; AND ) KENTUCKY

HEUBLEIN, INC., )

Defendants-Appellees. )

BEFORE: NELSON and NORRIS, Circuit

Judges; FORESTER, District

Judge. *

kThe Honorable Karl S. Forester, United

States District Judge for the Eastern

District of Kentucky, sitting by

designation.

PER CURIAM. Plaintiffs, Neal W.

Thompson and Precision Processing, Inc.,

appeal the order of the district court

granting summary judgment to defendants,

Kentucky Fried Chicken Corporation and

Heublein, Inc. The numerous claims made

by plaintiffs in their lawsuit stemmed

from their contention that trade secrets

incorporated into their automatic pressure

cooking device were misappropriated by

defendants.

Having had the benefit of oral

argument, and having considered the record

on appeal and the briefs of the parties,

we are not persuaded that the district

court erred in granting summary judgment

to defendants.

Because the reasons judgment should

be entered for defendants have been

articulated by the district court, the

issuance of a written opinion by this

B-2

court would be duplicative and serve no

useful purpose. Accordingly, the judgment

of the district court is affirmed upon the

reasoning employed by that court in its

Memorandum Opinion entered January, 1993.

(Filed April 29, 1%94)

(Order of the United Sta-es Court of

Appeals for the Sixth Cixcuit denying

Plaintiffs' Petition for Rehearing.)

No. 93-5158

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NEAL W. THOMPSON; )

PRECISION PROCESSING, INC. )

)

Plaintiffs-Appellants, )

)

Vv. ) ORDER

)

KENTUCKY FRIED CHICKEN )

CORPORATION; HEUBLEIN, INC. )

)

Defendants-Appellees. )

BEFORE: NELSON and NORRIS, Circuit

Judges; and FORESTER, * District

Judge.

The court having received a petition

for rehearing en banc, and the petition

having been circulated not only to the

original panel members but also to all

tHon. Karl S. Forester, United States

District Judge for the Eastern District of

Kentucky, sitting by designation

Pa -

- °

other active judges of this court, and no

judge of this court having requested a

vote on the suggestion for rehearing en

neni, the petition for rehearing has been

referred to the original hearing panel.

The panel has further reviewed the

petition for rehearing and concludes that

the issues raised in the petition were

fully considered upon the original

Submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

LEONARD GREEN, Clerk

yea ved Sh ene t BR ninternas vid

42 U.S.C.A. §1981 (Civil

Rights Act of 1964)

In pertinent part is as follows:

"All persons within the

jurisdiction of the United

States shall have the same right

in every State and Territory to

make and enforce contracts, to

sue, be parties, give evidence,

and to the full and equal bene-

fit of all laws and proceedings

for the security of persons and

property as is enjoyed by white

citizens, and shall be subject

to like punishment, pains,

penalties, taxes, licenses, and

exactions of every kind, and to

no other." Rev.Stat. §1977.

«2 alee BAERS 1

Rule 10 of the Rules of the

Supreme Court of the

United States of America

In pertinent part is as follows:

-1 A review on writ of

certiorari is not a matter of

right, but of judicial discre-

tion. A petition for a writ of

certiorari will be granted only

when there are special and

important reasons therefor. The

following, while neither con-

trolling nor fully measuring the

Court's discretion, indicate the

character of reasons that will

be considered:

(a) When a United States court

of appeals has rendered a

decision in conflict with the

decision of another’ United

States court of appeals on the

same matter; ... . or has so

far departed from the accepted

and usual course of judicial

proceedings, or sanctioned such

a departure by a lower court, as

to call for an exercise of this

Court's power of supervision.

(c) Whena.. . United States

court of appeals . . . has

decided a federal question in a

way that conflicts with appli-

cable decisions of this Court.