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McDonald’s

Liability roundup

by Walter Olson on November 14, 2014

  • Kip Viscusi: current structure of tort law gives firms like General Motors reason not to investigate risks/benefits of their designs [Alison Frankel, Reuters]
  • California woman in trouble after allegedly sending “faked treatment documents and burn photos from a hospital website” to bolster hot coffee spill claim against McDonald’s [ABA Journal]
  • Despite Kumho Tire, Joiner, and amendments to evidence rules in 2000, Eighth Circuit cuts its own liberal path on expert witness admissibility [Bernstein]
  • “In the BP case, the rule of law is on trial” [Lester Brickman, The Hill, on cert petition]
  • “Fighting and Winning Against Pit Bull Defense Lawyers” [Ronald Miller]
  • Business groups savor victory in racketeering suit over concocted asbestos claims [Barrett, Bloomberg Business Week]
  • Peter Spiro adds another favorable review of Paul Barrett’s Chevron/ Ecuador book Law of the Jungle [Opinio Juris]

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Like most courts to consider the issue, the California Supreme Court in a case involving Domino’s Pizza has held that a franchisor generally cannot be held liable for the independently made employment decisions of one of its franchisees. Who would disagree with that commonsense view? Well, the Obama National Labor Relations Board (NLRB), as well as three liberal dissenters on the seven-member California court, who would have left it up to case-by-case jury factual balancing, an arrangement likely to coax settlement offers from risk-averse franchisor defendants. [Daniel Fisher, Forbes, also; Shaw Valenza; Fox Rothschild; Gordon Rees; related, Epoch Times last week quoting me; earlier here, here, and here]

Aaron Schepler, Quarles & Brady;

In the supreme court’s view, the fact that Domino’s exercised extensive control over the manner in which the franchisee operates its business was merely a way to ensure the uniformity of the customer experience at its franchised outlets. As the court explained, this uniformity actually benefits both parties to the franchise relationship because “chain-wide variations … can affect product quality, customer service, trade name, business methods, public reputation, and commercial image” and, thus, the value of the brand. And because “comprehensive operating system[s]” are present in nearly every franchise relationship, those systems standing alone could not reasonably “constitute[] the ‘control’ needed to support vicarious liability claims like those raised here.”

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Labor roundup

by Walter Olson on August 28, 2014

  • What’s wrong with the NLRB attack on McDonald’s franchising, cont’d [On Labor, earlier here, here, etc.]
  • Postal union calls in American Federation of Teachers, other public employee unions to kill Staples postal partnership plan [Huffington Post]
  • U.S. Department of Labor uses coercive hot-goods orders to arm-twist blueberry farmers, judges say no [Jared Meyer, Econ21 and Salem Statesman-Journal]
  • “Watch Closely Obama’s Treatment of Unions” [Diana Furchtgott-Roth] “Obama ‘Fair Pay and Safe Workplaces’ Executive Order Will Punish Firms in Pro-Worker States” [Hans Bader, CEI]
  • Judge: massive document request signals NLRB’s emergence as litigation arm, and co-organizer, of unions [Sean Higgins, Examiner] Wobblies on top: NLRB sides with IWW workers over poster claiming eatery’s food was unsafe [Minneapolis Star-Tribune, earlier]
  • Academic debate on union issues already wildly lopsided, union-backed labor history curriculum unlikely to help [Alex Bolt, Workplace Choice]
  • Turning unionism into a protected-class category in parallel with discrimination law is one of the worst ideas ever [Jon Hyman, earlier here, etc.]

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Food roundup

by Walter Olson on August 26, 2014

  • “New York Times Hosts Panel on Farming, Forgets to Invite Farmers” [Julie Gunlock, IWF]
  • Historical perspectives on the current attack on food freedom [Baylen Linnekin and Michael Bachmann for the Institute for Justice; report, PDF, and summary; Reason and more Linnekin on the FDA's odd campaign against added ingredients which also occur naturally]
  • Food Safety Modernization Act of 2011 will increase costs and reduce variety in food intended for animals as well as for humans [Jerry Ellig and Richard Williams, Cato Regulation]
  • Elyria pink cookie, pride of the Ohio town’s school system, is casualty of federal food rules [Chronicle-Telegram, WEWS] NYC may launch another attack on toys in McDonald’s Happy Meals [Jeff Quinton, earlier]
  • UC Berkeley project assists effort to step up labor union presence in food area [Bill McMorris on Food Labor Research Center]
  • Lungs are better in the open air: Scotland has at least one haggis food truck [Baylen Linnekin, Vice mag]
  • “Eat great on food stamp budget” cookbook is hit, even if fans may not always have thought through its political valence [Maryn McKenna, National Geographic "The Plate"] Push to make food stamp program data public [Slate, USDA comments]

In this Cato podcast (7:01), I talk with Caleb Brown about the National Labor Relations Board’s groundbreaking attempt last week to tag McDonald’s with liability for labor violations found at its independently owned local operators. (Reportage: Steven Greenhouse, NYT; Jon Hyman; Diana Furchtgott-Roth/RCP) It’s a drastic departure from current law that would carry implications for outsourcing more generally: a food company that contracts with independent farmers to grow a particular crop, for example, might wind up being liable for the farmers’ treatment of farm workers, a company that outsources its cafeteria, vehicle maintenance, or janitorial services to outside vendors might become legally responsible for ensuring the labor-law compliance of those contractors, and so forth.

The McDonald’s case is the first of what is expected to be multiple cases filed by the NLRB’s general counsel (akin to a prosecutor), and the full Board has not ruled on the resulting complaints, although given the union-friendly role of the Obama NLRB that is likely to be little more than a formality. The initiative will inevitably land in the courts, which have not always been friendly toward Obama regulatory adventurism, and perhaps eventually the Supreme Court.

One consequence, successful or otherwise, if this ploy works: by treating legally distinct entities that contract with each other as if they were parts of a single vertically integrated enterprise, progressive labor law thinkers will create an incentive for giantism to become more real, by giving fast-food franchisers, for example, legal reason to move toward company-owned rather than independently-owned store arrangements. Not for the first time, the law would mow down the ranks of mid-sized businesses in favor of large or nothing. Commentary from others: Megan McArdle; Stephen Bainbridge; Catherine Fisk, On Labor (supporting the idea); Steve Caldeira, The Hill; Alex Bolt. And a relevant House hearing.

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Liability roundup

by Walter Olson on April 25, 2014

  • By convention the business/defense side isn’t fond of jury trial while plaintiff’s side sings its praises, but Louisiana fight might turn that image on its head [Hayride, sequel at TortsProf (measure fails)]
  • Generous tort law, modern industrial economy, doing away with principle of limited liability: pick (at most) two of three [Megan McArdle]
  • Fallacies about Stella Liebeck McDonald’s hot coffee case go on and on, which means correctives need to keep coming too [Jim Dedman, DRI]
  • Interaction of products liability with workplace injury often provides multiple bites at compensation apple, overdue for reform [Michael Krauss]
  • Ford Motor is among most recent seeking to pull back the curtain on asbestos bankruptcy shenanigans [Daniel Fisher; related, Washington Examiner] “Page after page he sits on the straw man’s chest, punching him in the face” [David Oliver on expert affidavit in asbestos case]
  • Kansas moves to raise med-mal caps as directed by state supreme court, rebuffs business requests for collateral source rule reform [Kansas Medical Society]
  • Let’s hope so: “More stringent pleading for class actions?” [Matthew J.B. Lawrence via Andrew Trask, Class Strategist]

Food roundup

by Walter Olson on July 29, 2013

  • “Farm Free Or Die! Maine Towns Rebel Against Food Rules” [NPR on "food sovereignty" ordinances]
  • “How much sense does it make for Detroit to be worrying people will open restaurants without enough parking?” [@mattyglesias]
  • Report: undercover cop co-wrote anti-McDonald’s leaflet that resulted in famous UK libel suit [Guardian]
  • Quizzed on food policy, post-Bloomberg NYC mayoral hopefuls offer many bad ideas; Republican John Catsimatidis, grocer, proposes regs “that would require new buildings to rent to grocery stores.” [Edible Geography]
  • Spontaneous consumer discontent over labeling? No, lawyer-driven: consortium of law firms has sued more than 30 food cos. in single federal court [WLF]
  • Private GMO labeling a wave of the future? [Baylen Linnekin]
  • “Eight toxic foods: a little chemical education” [Derek Lowe, Corante "Pipeline", schooling BuzzFeed]
  • Obamacare calorie-count display mandate likely to curb menu variety [Liz Thatcher, RCP, earlier]

“Wayne County, Mich. Judge Kathleen MacDonald slapped a Dearborn man with an injunction ordering him to take down his Facebook comments critical of a class-action settlement of a case against McDonald’s for selling non-halal meat.” [Daniel Fisher, Forbes; Paul Alan Levy, Public Citizen; Ted Frank, PoL] More: Blue Dog Thoughts.

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In San Francisco, Judge Richard Kramer has dismissed the Center for Science in the Public Interest’s lawsuit on behalf of parent Monet Parham seeking to declare unlawful McDonald’s practice of including a toy in its Happy Meal. I wrote about the case last year. [SF Weekly, earlier here, here]

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Some stories just seem destined for this site, including this one about a woman whose legal complaint alleges that “her ex-husband met her after she was hired to work at McDonald’s and later pushed her into prostitution in Nevada.” [Courthouse News, NY Daily News]

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Another law professor finds the hot-coffee and obesity lawsuits admirable, and Ted Frank once more begs to differ.

  • Steve Chapman on FDA salt reduction initiative [Tribune/syndicated] Canada: “Health minister takes sodium-reduction plan off the table” [Calgary Herald] Flashback: FDA holds first hearing on regulating salt content in food [2007, Medical News Today] Discussion of my piece last week [Adler/Volokh, Instapundit]
  • More on McDonald’s sidestepping of San Francisco would-be Happy Meal ban [Fair Warning, earlier; background here, here, here, here, etc.]
  • “Caveat Venditor: Cottage Food Laws Great in Theory, Often Less So in Practice” [Baylen Linnekin of pro-freedom Keep Food Legal, who guestblogged at Reason last week]
  • Rather than get government out of way, left’s farm bill (“Local Farms, Food and Jobs Act”) would cut small/local/organic growers in on more USDA programs [Obama Foodorama, Linnekin]
  • Good riddance to monopoly powers of the Canadian Wheat Board [CBC]
  • Texas now allows home bakers to sell their wares [Austin Chronicle via @pointoflaw]
  • Widespread opposition to new Department of Labor proposal to ban kids from much work on farms [Nebraska Outback]

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San Francisco Happy Meal ban

by Walter Olson on November 30, 2011

It takes effect Thursday, but, as some had predicted, the hamburger chain seems to be evading its reach fairly easily just by assigning a separate price to the toy. [SF Weekly]

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This week has brought one nudge forward and one push back for the paternalistic “food policy” crowd, or so I argue in a new opinion piece for the New York Daily News (& welcome Instapundit/Glenn Reynolds readers, Center for Consumer Freedom “Quote of the Week“).

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Great review by Miami Herald TV critic Glenn Garvin casting a skeptical eye on the trial-lawyer film project (“done in by its essential dishonesty… like any good lawyer — and unlike any good documentarian — [director Susan Saladoff is] intent on concealing the weakness in her case).” Read it here. Meanwhile, from the “How does this sort of thing get past the editors of the Washington Post?” files, there’s this from Hank Stuever:

For to really embrace tort reform, you have to be willing to treat all potential plaintiffs as no-good grifters. … To support tort reform, you have to believe all lawsuits against businesses are a threat to the free market.

Stuever does not, for some reason, name any proponent of reform who has actually asserted either of the propositions. Do you think that might be because he’s trafficking in absurd caricatures? (earlier on “Hot Coffee” here, here, here, etc.)

P.S. More: Cory Andrews, WLF. And if lawyers are really eager to have the facts of the Liebeck v. McDonald’s case come out, it’s curious they don’t take steps to release the trial transcript, in the absence of which critics of the case are obliged to speculate on key points. And as I just wrote in a comment at Abnormal Use:

I believe organized tort reform groups were caught flat-footed by the McDonald’s case and didn’t get around to doing much with it until it had already become the talk of the nation through talk shows, late night TV and so forth. As often happens, plaintiff’s-side advocacy groups were more aggressive in seeking coverage for their side in the media. Thus Public Citizen and allies gave a press conference on Capitol Hill and were rewarded with a big Newsweek story summarizing their talking points (as well as, earlier, coverage in the news-side WSJ). I’m pretty sure no groups critical of the Liebeck award ever did a comparable press push; and the McDonald’s company itself, so far as I know, never chose to cooperate with commentators who might be sympathetic to its legal case.

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Columnist Steve Chapman has their number:

People don’t like cheap, tasty, high-calorie fare because McDonald’s offers it. McDonald’s offers it because people like it. … We live in an age of inexpensive, abundant food carefully designed to please the mass palate. Most of us, recalling the scarcity, dietary monotony and starvation that afflicted our ancestors for hundreds of millennia, count that as progress. But those determined to save human beings from their own alleged folly see it as catastrophic.

[Examiner]

A survey by Tampa’s ABC Action News confirms a point often made by Ted in this space: “The Liebeck case did little, if anything, to alter the manner in which fast food restaurants serve coffee.” [Nick Farr, Abnormal Use]

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Displaying a healthy sense of the absurdity of it all.

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