Dwain Downing, an attorney in Arlington, Texas, says he is suing a Mansfield diner that ran out of soup at 2 p.m. during a Saturday lunch special. The server and on-site manager told Downing that while he didn’t have to order the sandwich, two sides, and soup special at all if the lack of soup made it unattractive to him, the restaurant’s policy was not to discount the $7.95 price or offer a third side dish as a substitute. “Downing demands $2.25 – the cost of an additional side at Our Place – plus $250 in legal fees.” Why didn’t he handle it through an online review, calling the owner on the phone or simply not coming back? “‘I’m a lawyer,’ Downing said Friday by phone. ‘And lawyers write letters.'” [Marc Ramirez, Dallas Morning News]
13 Comments
“If all you have is a hammer, everything looks like a nail.”
Send him a certified check for $2.25 with memo line completed “In full & final settlement.” Under most statutes providing for attorney’s fees, a lawyer who represents him/ herself does not qualify for a fee shifting award. If he sues, counter claim for abuse of process and follow up with ethics complaints to the local and state Bar Associations and letters to the editor to the Bar Journal, and newspaper, and do some TV interviews. They’ve offered to pay his claimed damages in full, so further demands begin to look like extortion.
I’m not a Texas lawyer but it seems to this amateur that this is not merely over-litigiousness on the part of the lawyer but legal error. Although a valid contract was apparently formed, the restaurant presents the valid equitable defense of impracticability. The lawyer suffered no damages due to his reliance on the ephemeral contract so estoppel does not help him. In other words, the contract formed was shortly therefore abrogated for a legally valid reason by the restaurant, leaving the lawyer with the options of going away, accepting one of the other offers on the menu, or negotiating a contract not on the menu. He had no legal basis for insisting on a new contract based on the terms of the soup-and-sandwich special.
“I’m sorry. We’re out of soup. However, if you will wait right here until we finish the next batch, we’ll make sure you get the first bowl. How long? Next Saturday. Now don’t go away or you’ll lose your place in line.
Bob
I come from the other side of this equation – the side of a restaurant / retailer.
There are laws saying that companies who have sales or giveaways must have a reasonable amount of the product on hand or a specific number of the item.
If the restaurant is advertising the free cup of soup, they should have at the very minimum, a “reasonable” amount of the soup on hand to fill customer’s requests.
To me, that would mean that if the restaurant runs out of the soup every day, they aren’t meeting that requirement. Restaurants know how many customers they have and what the numbers of orders for a particular item.
I know that we are talking about a cup of soup, but remember that the first object of a retail operation is to get people in the door. You are much more likely to have someone buy something when they are in the location than leaving and going elsewhere.
One thing we don’t know is when is the restaurant running out of soup? By that I mean, if the place is advertising “free cup of soup” on their website with their specials (and they are) is all they have to do is make a “cup o noodles” and then tell every other customer that they ran out of soup? Would anyone really consider that fair or right?
(In fact in Maryland, there were cases of car dealers advertising cars at special prices and then only having one on hand. So when people came to get the deal, it was “gone” but the people were then on the lot which got the car dealers more sales. That was stopped and fines were issued for deceptive practices.)
Lastly, the cited article says this: “Isn’t it amazing?” Arslanovski told the newspaper. “This could have been solved with a simple phone call, and he could have come by and gotten a free cup of soup.”
Arslanovski has staff and a manager that knew of the situation. Why didn’t they tell him? Why didn’t he reach out to the customer? Don’t blame the customer for his lack of trust and belief in his employees to make decisions in the best interest of the restaurant.
The lawyer is over the top here in my opinion. But his being over the top doesn’t mean he is wrong and the restaurant is right either legally or in the sense of good customer service.
As I read the article, the restaurant ran out of soup just once – there was no pattern of it running out every day.
One, this doesn’t look like a typical bait and switch, which is what the type of fraud you describe is called. A bait and switch would be oh, we are out of the special, here, order this more expensive meal instead. That’s not at all what happened. He got the same meal, except no soup, at the advertised special price.
There are also several issues relevant to a restaurant that you are ignoring and wouldn’t be applicable to most other type or retailer.
A restaurant is dealing with items that are highly perishable. (good for a day or two at most.
Soup is something very few restaurants prepare to order. It is generally prepared ahead of time in large batches. If you run out of something made in batches, towards the end of the day, making more can be very costly because if you don’t sell all of the next batch, many items can’t be held over to the next day, health regulation require that the extra be disposed of.
They have to predict demand ahead of time and prepare accordingly. Any prediction will have some degree of error. If demand is higher than expected, they can easily run out of things. Predicting high is very costly, because you can end up having to throw out perfectly good food.
This particular restaurant only does breakfast and lunch, they don’t do a dinner service. The incident in question happened at 2:00 PM the restaurant closes at 3:00 PM. Even if the ingredients were available, if they ran out of soup between 1:30 and 2:00 it can easily be uneconomical to make another batch.
I read the full story at the link, there is absolutely nothing to suggest any deliberate fraud on the part of the restaurant.
Legally, I think the restaurant is easily in the right. It was however, bad customer service. He should have been allowed a substitution for the unavailable soup.
MattS and Bill Poser,
While the cited article seemed to indicate that this was the first time running out of the soup had occurred, other reviews in support of the restaurant have said that running out is not an uncommon thing. To me that is troubling on a small level.
While I appreciate the fact that soups and food are different than a “hard good,” a case can be made that the fact that the soup is made daily and part of the restaurant’s regular fare would indicate to me that they have a history of the sales of the soup and the specials. They know or should know when they are not making enough soup to put on the menu as a free giveaway.
I don’t think that this was a deliberate attempt by the restaurant to defraud or cheat someone, but at the same time just because you aren’t trying to do something wrong doesn’t mean that you haven’t done anything wrong.
As I said, in my opinion, the restaurant is not perfectly right and Downing perfectly wrong. The opposite is true to me as well – Downing is not totally right and the restaurant is not totally wrong.
Finally, I heard about this story over the weekend before our esteemed host decided to bring it to light. One of the articles I read said that the online menu for the restaurant did not have the disclaimer of “while supplies last” on the free offer of the soup.
I went to the restaurant’s site and downloaded the menu and it does not include the disclaimer on the free soup offer.
Last night I went back to the site and the menu is gone. In it’s place is a new section devoted to the menu and that section does have the disclaimer of “while supplies last.”
It has me wondering if the restaurant’s lawyer said “you have a small problem here because you did advertise the free soup without the disclaimer on it. Change it.”
If the restaurant’s owner not convinced that he was doing something wrong, in a grey area or exposed him to some sort of action, why change the website as he did?
I would prefer that this whole thing be resolved with the owner taking some soup and couple of specials over to the lawyer’s office. Sit down with the guy, drink a Dr Pepper and move on. The lawyer, for his part, should recognize the gesture and offer an hour of legal time to the restaurant or a cause of his choosing. To me, that would have been the best way of handling it.
“They know or should know when they are not making enough soup to put on the menu as a free giveaway.”
Sorry, in the real world demand will fluctuate over time, it is never perfectly stable. No restaurant can perfectly predict demand. Expecting them to do so is patently unreasonable.
“I went to the restaurant’s site and downloaded the menu and it does not include the disclaimer on the free soup offer.”
Anyone who is not a complete moron should understand that “while supplies last” is implicit in any offer from any restaurant.
“If the restaurant’s owner not convinced that he was doing something wrong, in a grey area or exposed him to some sort of action, why change the website as he did?”
Because defending against even patently meritless lawsuits costs money and most restaurants aren’t making huge profits. Anything that doesn’t cost much and makes it less likely that the next guy will sue is worth the effort.
“As I said, in my opinion, the restaurant is not perfectly right”
True, but the restaurant’s error in this matter is not something that should be legally actionable.
“I would prefer that this whole thing be resolved with the owner taking some soup and couple of specials over to the lawyer’s office. Sit down with the guy, drink a Dr Pepper and move on.”
Read the linked article again. A free soup at a subsequent date was already offered by the restaurant’s owner and refused by the lawyer.
“To me, that would have been the best way of handling it.”
Only if the lawyer was rational, and he clearly isn’t.
UPDATE: Lawyer backed off when he started feeling the backlash. Sunlight is, of course, a powerful disinfectant.
http://thescoopblog.dallasnews.com/2016/04/stewed-lawyer-who-missed-out-on-soup-drops-threat-to-sue-diner.html/
Matt S,
Expecting them to do so is patently unreasonable.
While demand fluctuates, it seems that this restaurant only fluctuates below the demand. Secondly, as someone who works with computers and systems, I would think you would know that restaurant ordering systems are very sophisticated and can track number of orders, time of day, etc. (Your assumption also means that restaurants never increase ordering or prepping more food on weekends when demand is higher than during the week. That’s not a realistic assumption on your part. Third, the owner has said “we make a big pot of soup When it is gone, it is gone.” He’s not even trying to determine demand.
Anyone who is not a complete moron should understand that “while supplies last” is implicit in any offer from any restaurant.
I am going to let that insult slide. There is a difference in not having and item and still advertising the item and including it in an order. If a restaurant runs out of fish, that’s fine. If the restaurant runs out of fish and still wants to sell fish and chips at full price, that’s a problem.
Anything that doesn’t cost much and makes it less likely that the next guy will sue is worth the effort.
I don’t follow your logic here. What you seem to be saying is that the restaurant corrected a situation in order not to get sued. That implies that the first demand letter was reasonable.
True, but the restaurant’s error in this matter is not something that should be legally actionable.
Tell that to the law. Change the law. I don’t care. But until that happens, the lawyer may have a case (a small case.)
Read the linked article again. A free soup at a subsequent date was already offered by the restaurant’s owner and refused by the lawyer.
I did read the article. Here’s the “offer” you seem to be speaking of: “Isn’t it amazing?” Arslanovski told the newspaper. “This could have been solved with a simple phone call, and he could have come by and gotten a free cup of soup.”
That’s not an offer. That’s not the owner reaching out to the lawyer. There is nothing there that says the two spoke and an offer was made. The lawyer was told by the staff and manager that there was no way he was getting soup. That’s the last communication between the lawyer and the restaurant until the letter arrived. Once the letter arrived, the owner said he was turning it over to his attorney.
No offer was ever made.
Only if the lawyer was rational, and he clearly isn’t.
It’s irrational to ask a business to follow the law? It’s irrational to expect a business to treat customers fairly and with respect? I would argue that the policy of the restaurant is irrational. After all, it is they who are making an offer of free soup they cannot or will not fulfill. It is the restaurant who wants to charge customers for something they don’t get. It is the restaurant owner who doesn’t allow his employees to use their judgement in making customers happy. The restaurant was just as irrational as the lawyer, if not more.
“While demand fluctuates, it seems that this restaurant only fluctuates below the demand.”
You have zero evidence to support this statement. You only have information on a single incident where they fell short.
” There is a difference in not having and item and still advertising the item and including it in an order.”
In what universe does a restaurant have the capacity to re-print menus in the middle of the day.
” If a restaurant runs out of fish, that’s fine. If the restaurant runs out of fish and still wants to sell fish and chips at full price, that’s a problem.”
It ought not be a privately actionable problem. The courts do not exist to right every wrong no matter how small.
” That implies that the first demand letter was reasonable.”
No it does not. For the value at issue, he shouldn’t be able to sue outside of small claims court. As far as I know, you can’t get attorney’s fees in small claims ever.
“It’s irrational to ask a business to follow the law? It’s irrational to expect a business to treat customers fairly and with respect? I would argue that the policy of the restaurant is irrational.”
It’s patently irrational to demand hundreds of dollars in attorney’s fees over damages less than five dollars. In fact it’s irrational to ask for attorney’s fees at all in such a case.
You have zero evidence to support this statement. You only have information on a single incident where they fell short.
Other people in the comments on various sites have said the soup runs out consistently. Furthermore, why have the policy of no substitutions or discounts if it has not happened more than once?
In what universe does a restaurant have the capacity to re-print menus in the middle of the day.
The universe where specials are changed on a daily basis via a small note clipped to the menu. It happens everywhere in this universe. Are you really saying that you have never seen a restaurant have a special going on, run out of the special and change the menu and signage to reflect that?
It ought not be a privately actionable problem. The courts do not exist to right every wrong no matter how small.
Change the law.
For the value at issue, he shouldn’t be able to sue outside of small claims court. As far as I know, you can’t get attorney’s fees in small claims ever.
Once again, if you don’t like him being able to get lawyer’s fees, then change the law. His letter states that in cases like this, he is able to get fees. You seem to saying the lawyer is wrong for applying the law.
In fact it’s irrational to ask for attorney’s fees at all in such a case.
Change the law.