Pelman v. McDonald’s going forward

by Ted Frank on September 22, 2006

The infamous class action litigation seeking to blame McDonald’s for the obesity of putative class members is going forward, having survived a third motion to dismiss. (Mark Hamblett, “N.Y. Judge Rebuffs McDonald’s Motion to Dismiss Deceptive Ad Claims”, New York Law Journal, Sep. 22). Judge Sweet’s opinion will be posted to the AEI Liability Project Documents in the News page later today. I discuss the Pelman case in my Taxonomy of Obesity Litigation paper. The failure of the motion means that, unless McDonald’s can persuade Judge Sweet to bifurcate discovery to resolve class certification issues first, the plaintiffs will be able to impose millions, and perhaps tens of millions, of dollars of litigation expenses on McDonald’s if they dare to defend themselves instead of buying off the class. Copycat litigation is likely.

Ironically, yesterday was the day that the folks at the Bizarro-Overlawyered site chose to attack pending legislation shutting down such ludicrous suits as “pure hype” because there supposedly were no such suits. (The House already passed the bill in a bipartisan 306-120 vote.) It’s a mystery to me why the special interest group of the litigation lobby is devoting so many resources trying to shut down legislation that they claim makes no difference. Earlier at Overlawyered: Apr. 20, 2005; Jan. 27, 2005; Sep. 4, 2003. Cross-posted at Point of Law.

{ 10 comments }

1 riskprof 09.22.06 at 9:20 am

Bizarro-Overlawyered….. Heh. That’s why they pay you the big $$$.

2 Deoxy 09.22.06 at 10:05 am

I see no further reason to link to those guys – they ignore plain evidence and logical argumentation in favor of their current irrefutabl (to them) beliefs. There is no possible convincing on either side, as they refuse to either be convinced of anything or make any kind of useful argument to convince anyone else.

3 Deoxy 09.22.06 at 10:13 am

Oops, forgot to comment on the actual post itself…

I actually agree with these special interest groups (oddly enough) that these laws are a bad idea – each group threatened with death-by-legal-fees (such as the gun lobby) or continuing expense of ludicrous lawsuits like this must individually get their own law.

Why not just pass a general tort reform that would apply to everyone and have done with it?

Of course, barring that (which these same special interest groups oppose even mor vehemntly), then these individual laws are the next best thing.

4 Ted 09.22.06 at 11:06 am

Deoxy’s view in his second post is similar to mine. Trying to gerrymander small classes of cases through the legislative process has two drawbacks: (1) creative plaintiffs’ attorneys and compliant judges find workarounds to the narrow compromises, thus nullifying the original effort; and (2) as a matter of politics, a potential ally that has climbed the reform ladder may not be willing to expend resources to extend a hand to those left behind.

There is in fact a movement towards a general tort reform that would require a showing of reliance in consumer “fraud” cases, thus ending these class actions where the nearly every member of the class has suffered no cognizable injury.

I’ve been remiss in not giving enough attention to either of these issues, and owe y’all a couple of long posts on the subjects in Point of Law.

5 Piotr Reysner 09.22.06 at 1:40 pm

Now wait a minute! I absolutely agree that the lawsuit against McDonald’s is a horrific display of unscrupulous plaintiffs and their lawyers leaching off society. This lawsuit is emblematic of much that is wrong in our society.

However, what about the rest of the points made by TortDeform? What about the fact that maybe this is a state’s rights issue? What about the fact that the proposed law does not appear to be narrowly tailored and could provide greater immuniities from suit than is warranted?

I agree that TortDeform is misguided in his assumption that this lawsuit against McDonald’s is innocuous. It’s not. It’s dangerous. I also feel that the entire thrust of the website is dangerously misguided and is likely more motivated by a plaintiff’s lawyers desire to line his own pockets (which is usually the motivation of anyone who is against tort reform) than a desire to help people. But this guy makes some good points that should not be ignored.

6 Ted 09.22.06 at 2:30 pm

For reasons I stated (and a couple of others), I’m not especially fond of the particular legislation; there are better, more comprehensive, solutions and the bill suffers from some awkward draftsmanship.

TortDeform publishes dozens of inaccurate or false things a day. If someone wants to provide funding for a person to do nothing but point these out, we’ll take it and hire someone to provide that service, but it’s not a particularly good use of my time to systematically rebut every piece of nonsense they put out when they appear to have a limitless supply. I just found the coincidence entertaining in this particular case.

With respect to substantive preemption, the states’ rights issue doesn’t bother me especially, at least not when the people raising it only raise it when it comes to the pockets of plaintiffs’ lawyers. Moreover, Andros overstates the federalism concern. Congress has interstate commerce power, and has carved out an exception for state laws to specifically address the issue. If Massachusetts wants to bar the sale of sugary breakfast cereal, the bill doesn’t stop it; if Massachusetts wants to create a civil cause of action for obesity caused by justifiably relying upon fraudulent advertising, the bill doesn’t stop it. The suits (which ask for local state law to decide cases on behalf of a nationwide class) are already an upside-down distortion of federalism.

The procedural preemptions potentially trouble me, but not for the reasons Andros gives. The procedures are standard procedures for fraud cases, and are not “anti-plaintiff” in any meaningful sense of the word. The bill does not create any unusual or controversial procedural requirements that state courts haven’t already been dealing with for decades, so the notion of upsetting precedent just doesn’t exist: state courts apply federal law all the time. Where these sections do trouble me is that it is unclear to me that Congress has the power to regulate state court civil procedure. (I’m open-minded on this question.) Far better for Congress to be straightforward and simply create federal question jurisdiction—though, as the bill reads, I would expect to see attempts at removal, so state courts may not be affected at all.

All sorts of federal statutes create new rules of decision for state courts: the difference is that, for the last fifty years, the vast majority of them created new rights of action for plaintiffs to be applied by state courts. Public Citizen and similar organizations aren’t arguing for exclusive federal jurisdiction on Title VII, so their complaints that state courts might have to decide things under laws that were made by Congress rather than a state legislature seems to me to be disingenuous.

The scare scenarios Andros suggests are fundamental misreadings of the bill, which no court will read to prohibit suits over liver damage–as mentioned, the bill doesn’t even prohibit all obesity lawsuits. (See Section 4(5)(B)(ii).) To the extent the bill fails to perfectly circumscribe obesity litigation, the problem is that the bill is too narrow, rather than too broad.

7 Linda Andros 09.22.06 at 5:39 pm

Franks’ World: Going Backwards

As Frank recognizes, there has only been a single case blaming the food industry for a person’s becoming obese. But what he neglects to tell you is that in that case, Pelman v. McDonald’s Corp., the court dismissed claims grounded in the theory that McDonald’s failed to inform that its fatty junk food could lead to obesity if over-consumed. The sole claim remaining in the case is a simple run-of-the mill deceptive advertising claim brought under New York’s consumer protection statute. Apparently, Frank does not like deceptive advertising laws either, for he would have the court dismiss the case without giving the plaintiffs the chance to show whether, in fact, McDonald’s engaged in false advertising from 1987-2002. In Frank’s world, this New York statute should require a higher standard of pleading for a plaintiff to get into court, just like S. 908. Yet, this New York statute follows the typical pleading standard found in most state civil procedure rules (and in the federal rules) for all manner of cases. Why must a consumer protection standard require more when, for example, a contract dispute does not?
You might well ask why this bill is being pushed so relentlessly. The answer is not to stop “fat lawsuits” — which do not exist — but to re-write consumer protection laws in favor of corporate profits, not the public’s welfare. See “At It Again: The Junk Food Protection Act”(www.tortdeform.com). There is no mystery why the real “special” interests – like Kraft Foods and the National Restaurant Association — will benefit from the bill and so have been lobbying hard for its passage. Frank wants you to fear the civil justice system. What you really should be afraid of is being pulled backwards to Frank’s world.

8 Ted 09.23.06 at 1:06 pm

For the record, my policy on comments is that I generally refuse to let commenters to play the Monty Python game of “Argument Clinic.”

Andros’s comment is that sort of comment: I now have to waste time pointing out that she systematically misrepresents my arguments, fails to address what I do say, and apparently hasn’t read my detailed writing on the subject, and thus falsely accuses me of omissions I haven’t made (as well as makes false factual statements that are contradicted by my article: there have been multiple obesity lawsuits).

Some notes:

1) Andros claims the legislation has nothing to do with fat lawsuits, yet, on her blog, calls it the “Junk Food Protection Act,” even though the bill doesn’t distinguish between Vietnamese tofu restaurants or sugary Snapple or Ben & Jerry’s or McDonald’s.

2) Anti-reformers can’t make up their mind: they recognize that they need to say that the obesity lawsuits are ridiculous because over 90% of Americans think so; but, here Andros is, defending the Pelman lawsuit and criticizing me for wanting to shut it down. Let’s see Public Citizen be honest and make a post “Why Pelman should be allowed to sue McDonald’s for getting fat,” so they can lose all credibility in the reform debate instead of trying to have it both ways.

3) Need I mention that Andros’s rant doesn’t address any of my criticisms of her post?

4) Yes, consumers and the food industry will benefit from not having to spend millions of dollars defending themselves against meritless lawsuits, and, worse, risking the chance that they might lose one of the meritless lawsuits seeking billions of dollars. Again, either this bill shuts down illegitimate litigation or it shuts down legitimate litigation. If Andros thinks Pelman should succeed, she should say so; if not, then why protest a bill that saves consumers millions of dollars and unclutters the court system for people with legitimate claims? Such a bill is moving us forwards past a world where lawyers are allowed to extract billions of dollars from the economy with impunity for bringing meritless lawsuits. It would be nice if consumer-defenders really were consumer defenders and stopped defending a system that hurts consumers far more than it helps them.

5) Who says the bill is being pushed so relentlessly? I sure haven’t been pushing it; my one published piece on the subject suggests that we’re better off pushing more comprehensive legislation. The bill passed the House by a bipartisan veto-proof margin over a year ago, with only the legislators completely in the plaintiffs’ bar’s pocket opposing it, was introduced in the Senate in April 2005, and the Judiciary Committee hasn’t scheduled anything to get it out of committee, so the bill almost certainly doesn’t even have time to pass this Congress, even though, with at least six Democratic co-sponsors, it has surely has a filibuster-proof majority of supporters. It’s Public Citizen that’s shooting itself in the foot by devoting resources to bringing attention to an overwhelmingly popular and common-sense bill that it opposes.

9 Cyrus Dugger 09.23.06 at 7:47 pm

Hi Ted,

I think the different camps will just have to disagree about this issue.

I do just want to add that not everything that is popular…………. is good.

10 Ted 09.23.06 at 8:52 pm

You left that conveniently vague. Which issue are we disagreeing about, Cyrus? Is Pelman’s suit frivolous, or not?

And if it is frivolous, why shouldn’t the law be changed such that it is explicitly frivolous so innocent defendants who are the victims of these frivolous suits be protected from harassment?

And if it is not frivolous, why won’t your blog make an explicit post why “Pelman should be allowed to sue McDonald’s because he is fat” rather than beating around the bush?

I agree that not everything that is popular is good. They laughed at Galileo, after all. But they also laughed at Bozo. Are 90% of Americans wrong on this question, or not? And if they’re wrong, where’s the reasoned defense of the lawsuit? All I’ve seen from your side is insults of those who oppose the lawsuit, without any justification for why we’re supposedly wrong.

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