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McDonald’s

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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Happy Meal lawsuit, cont’d

by Walter Olson on December 17, 2010

My New York Daily News opinion piece stirred up a whole lot of discussion: at Megan McArdle/The Atlantic, Hans Bader/CEI, Mike Riggs/Daily Caller “TheDC Morning”, Outside the Beltway, Radley Balko, AllahPundit/Hot Air, Never Yet Melted, Modeled Behavior, Above the Law, Twitter mentions, John Hayward/Human Events, Jammie Wearing Fool, Andrew Stuttaford/NRO “Corner”, Amy Alkon, Chris Robinette/TortsProf, Ira Stoll/Future of Capitalism, Tom Kirkendall, John Steele Gordon/Commentary, and my own write-up at Cato at Liberty.

Also: Check out the further information Ira Stoll has developed at his site about the meals San Francisco serves at its own schools, which seem to compare not at all favorably with the meals the city’s council has seen fit to ban.

Remember, this isn’t a once-every-so-often treat provided at parental discretion, like a Happy Meal — this is the food the state is serving for lunch in the essentially compulsory government schools. The fact that it’s McDonald’s rather than the government schools that are getting sued by this parent and advocacy group gives away what the lawsuit is really about. It’s not really about food, or calories — it’s about an attempt to increase the power of the state over private enterprise by restricting the power of the private enterprise to market its product. The suit isn’t about the “meal,” it’s about the “happy.”

More on the nutritional background: Patrick Basham and John Luik, “A Happy Meal Ban Is Nothing to Smile About”, Spiked Online; David Oliver. On the legal: Russell Jackson. And welcome listeners of Lars Larson’s Portland, Ore.-based radio show, which welcomed me as a guest to discuss the case Dec. 17.

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The Center for Science in the Public Interest, also known as Busybody Central, is filing a would-be class action under California consumer law over the hamburger giant’s marketing of fast food with toys. I have much more to say about that at the New York Daily News online opinion section (& linked at Above the Law, John Hayward/Human Events, Jammie Wearing Fool, Andrew Stuttaford/NRO “Corner”, Chris Robinette/TortsProf, Ira Stoll/Future of Capitalism), and am also quoted in the Reuters coverage. Earlier on Happy Meal law here, including a pointer to this Bruce Nye post from June on why CSPI’s claims are unlikely to prevail.

P.S. Happy to see that as of late Wednesday evening my piece is the most read, most emailed, and most discussed at the Daily News opinion site. Followups and links here.

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It took eight years to get the wretched thing thrown out. [noted earlier; Wajert, Frank, Bader]

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A nation laughs, even if many kids don’t. [CNN, earlier] More: “Why the government has no business banning Happy Meals” [Steve Chapman] “Banning Happy Meals Could Be Bad for Kids” [Atlantic Wire]

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