The infamous McDonald’s obesity case (Sep. 4, 2003) was reinstated yesterday on the highly technical grounds that the lower court applied the Federal Rule 9(b) “heightened pleading” standard to the New York consumer fraud statutes instead of the more lenient Rule 8. The court cites no relevant precedent for this assertion, which contradicts the language of the rule. As Jim Copland notes on our sister site, the Second Circuit effectively ruled that it was interpreting the Federal Rules so that it would be nearly impossible to dismiss a New York consumer fraud case before giving the plaintiffs an opportunity to conduct discovery. The decision seems wrong (compare, e.g., Tuttle v. Lorillard Tobacco Company, 118 F. Supp. 2d 954 (D. Minn. 2000)), and its main effect will be to raise the cost of defending against meritless claims–which will encourage nuisance settlements, which in turn will encourage more meritless claims in the hopes of extorting such nuisance settlements. (Pelman v. McDonald’s (2d Cir. 2005).).

Filed under: procedure, tobacco