Tuesday, May 29, 2018

Some Lawyers Give Lawyers a Bad Name: The Great McDonald's Quarter Pounder Cheesy Caper

Some lawyers can give the legal profession a bad name. A lawyer in Florida filed a class action suit seeking $5,000,000.00 from McDonald’s because the two named plaintiffs, who shall go nameless in this blog, felt they were ripped off by having to buy a quarter pounder with cheese from McDonalds. They complain that the McDonald’s menu used to offer four choices of quarter pounders and double quarter pounders, with and without cheese. The cheese pounders cost $.30 to $.90 more than the cheeseless pounders. The new menu excludes the without cheese option. The plaintiffs asked for, and received, cheeseless quarter pounders, but with no reduction in price. They claim they were overcharged. The lawyer is trying to puff $.30 into $5 million. Plaintiff is alleging the antitrust theory of tying, which means if you X, you also have to but Y. If you want the beef, then you must also purchase the cheese. The basic rule of tying is simple. Defendant must have sufficient market power in the tying market to substantially affect commerce in the tied market. We have options in the tying market. Plaintiffs don’t have to eat junk food at McDonald’s. They can go down the block and “Have it Their Way” at Burger King. They can pay more by going to Five Guys. The Wendy’s, Carl’s Jr/Hardee’s, Jack in the Box, In-n-Out, A&W, and a host of smaller chains, not to mention the Red Robins, Ruby’s and Johnny Rockets, are ubiquitous throughout the United States. Conversely, McDonald’s is being sued for no cheese, that’s right, no cheese in its mozzarella sticks, which contain a starch filler rather than cheese. Wendy’s Clara Peller asked “Where’s the beef? McDonald’s is being asked “Where’s the cheese” in its mozzarella cheese sticks? The MscDonald’s litigation is emblematic of the class action suits beginning to plague the fast food industry. Starbucks is fighting a wave of lawsuits. It's accused of underfilling its cups with less coffee than advertised while overfilling ice in the drinks. Judge Percy Anderson put the ice case on ice. He held it had no weight, saying: “If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.” He also stated that the consumer could always order the beverage without ice. Back in the days when I drank a lot of soda, I would always order the drink without ice. A restaurant once charged me more for the iceless Coke. I paid it, left no tip, and never went back to that restaurant. We have options. Restaurants’ profit margins rise with the percent of ice in the beverage. Frozen water is cheaper than drink extract. SUBWAY is being sued because someone, probably a lawyer, measured it to be short of 12”. Where’s the beef? Here’s the beef. These cases may be in the name of an individual plaintiff (I don’t want to say victim), but they’re brought by attorneys. This suit is not about Thirty Cents; it’s about a lawyer trying to become the Big Cheese in a class action lawsuit. The lawyer reaps a large fee out of any settlement or judgment while the class members receive chomp change, coupons, or peanuts. Let us remember the great sequence in Five Easy Pieces. Jack Nicholson orders toast at a restaurant. Bobby: I'd like a plain omelette, no potatoes, tomatoes instead, a cup of coffee and wheat toast. Waitress: [points at his menu] No substitutions. Bobby: What do you mean? You don't have any tomatoes? Waitress: Only what's on the menu. You can have a number two, a plain omelette, it comes with cottage fries and rolls. Bobby: Yeah, I know what it comes with, but it's not what I want. Waitress: Well, I'll come back when you make up your mind Bobby: Wait a minute, I have made up my mind. I'd like a plain omelette, no potatoes on the plate, a cup of coffee and a side order of wheat toast. Waitress: I'm sorry, we don't have any side orders of toast. I'll give you an English muffin or a coffee roll. Bobby: What do you mean you don't make side orders of toast? You make sandwiches, don't you? Waitress: Would you like to talk to the manager? Palm Apodaca: Hey, mac... Bobby: Shut up. [to the waitress] Bobby: You've got bread and a toaster of some kind? Waitress: I don't make the rules. Bobby: OK, I'll make it as easy for you as I can. I'd like an omelette, plain, and a chicken salad sandwich on wheat toast, no mayonnaise, no butter, no lettuce, and a cup of coffee. Waitress: A number two, a chicken salad sand. Hold the butter, the lettuce, and the mayonnaise, and a cup of coffee. Anything else? Bobby: Yeah, now all you have to do is hold the chicken, bring me the toast, give me a cheque for the chicken salad sandwich, and you haven't broken any rules. Waitress: You want me to hold the chicken, huh? Bobby: I want you to hold it between your knees.

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