New Product Development: Fast Food
BURGERS: THE NEXT CASH COW?
Trial Lawyers, Inc. continues product development by making litigation against the fast-food industry its suit du jour.
Many people scoffed when 270-pound Caesar Barber filed a lawsuit against McDonald’s and three other fast-food companies in July 2002 accusing them of selling high-fat meals that made him obese. Blaming restaurants for making one fat seems, well, fatuous. And when a judge dismissed Barber’s lawsuit, it seemed to be proof that such cases aren’t based on weighty evidence.
But it would be a mistake to think the obesity lawsuits are no longer on the menu. Barber’s was just the first course in what is emerging as the latest strategic initiative by Trial Lawyers, Inc., which aims to feast on the fast-food industry. The strategy is clear: attempt to hold food firms responsible for a portion of the public health costs related to obesity—just as the tobacco industry was eventually forced to fork over the ex-pense of tobacco-related illnesses—and collect big fees for cooking up whopper suits.
A Research and Development Strategy
For Trial Lawyers, Inc., a few early unsuccessful cases represent nothing more than new product development costs: in tobacco litigation, lawyers fought unsuccessfully in court for years before finally working out the kinks that stood in the way of big-fee verdicts. Such early defeats are merely up-front investments, much like research-and-development expenses for other industries. When potential revenues are massive—consider the $30-billion-plus contingency fees extracted from Big Tobacco—Trial Lawyers, Inc. has every incentive to invest heavily in such speculation.
Trial Lawyers, Inc.’s initial line of attack is to go after food companies that make allegedly deceptive claims about fat, calories, and nutrition. That strategy was used in a 2002 class action filing against the makers of Pirate’s Booty cheese snacks, which accused them of presenting inaccurate figures on fat content.
A second line of attack is accusing companies like McDonald’s of misleading people to believe their food is healthy. In his January dismissal of fast-food claims brought in the Southern District of New York, Judge Robert Sweet rejected claims of deception but seemed to leave on the plate the possibility of revisiting whether McDonald’s was negligent, if by processing its food McDonald’s created a more dangerous product. In early September, Judge Sweet again dismissed the plaintiffs’ restated claim, but it is reasonable to expect Trial Lawyers, Inc. to keep trying to Super Size its claim.
A Public Opinion Crusade
As in the tobacco cases, Trial Lawyers, Inc. is banking on a grow-ing din from public health advocacy groups gradually to swing public opinion against the food companies. Longtime trial-lawyer ally Ralph Nader, for instance, has already called a McDonald’s hamburger “a weapon of mass destruction.”
The Center for Science in the Public Interest, an advocacy group started by former lawyers associated with Nader, has been promoting ideas such as imposing a “fat tax” on sodas and greasy snacks to help cover the cost of epidemic levels of obesity and mandating that McDonald’s post calorie counts for each item on its menu boards. Perhaps unsurprisingly, such “public health” advocates make little effort to encourage individuals to take personal responsibil-ity through improved exercise and eating habits.
By forcing food suppliers to foot the bill for a portion of the social cost of diseases related to severe obesity, the lawsuit industry could again pocket tens of billions.
Golden Arches: A Pot of Gold?
The eventual goal for Trial Lawyers, Inc., however, is to force food suppliers to foot the bill for a portion of the social cost of diseases re-lated to severe obesity—including type-two diabetes, sclerotic arteries, heart attacks, and strokes—while taking the lion’s share of the payout themselves. Under its typical contingency-fee arrangements, the law-suit industry could again pocket tens of billions.
The success of the fast-food suits may hinge on the ability of trial lawyers to persuade state attorneys general to begin filing suit to recover obesity-related medical costs from food companies. Similar actions proved to be a breakthrough in the tobacco lawsuits. And if the tobacco settlements are any guide, state lawmakers faced with budget crunches may be all too willing to go after the Golden Arches’ pot of gold—and expand Trial Lawyers, Inc.’s bottom line in the process.
WHAT'S NEXT IN NEW PRODUCT DEVELOPMENT?
Hookers v. Hollywood. A group claiming to represent prosti-tutes, drug abusers, and panhandlers wrote to several Hollywood film companies in August 2002 seeking cash compensation for de-priving them of business opportunities and displacing them from neighborhoods during the filming of various movies.
Like a Cigarette Shouldn’t. A former Winston cigarette model filed a $65 million lawsuit against the cigarette maker for allegedly damaging his reputation. The model, who appeared in print and TV ads in the 1970s, claims he has suffered emo-tional pain as a result of the use of his image to influence others to smoke.
Better Off Dead. A spate of “wrongful birth” lawsuits is being filed and, in several cases, won. Parents testify in court that they would have aborted their child had they been properly informed of genetic risks, accuse the doctors of malpractice, and demand expenses for the care of the child. A law firm in New Jersey claims it has won awards of $950,000 to $2 million for the plaintiffs in each of four such cases over the last two years.
Most Valuable Lawsuit. Proving that litigation madness isn’t limited to the U.S. alone, a father in New Brunswick, Canada, is suing an amateur hockey league for $300,000 after his son failed to win the league’s Most Valuable Player award. The lawsuit seeks psy-chological and punitive damages, and it demands that the trophy be taken away from the player to whom it was awarded and given to his son.
A Matter of Fax. Two class action lawsuits filed in California in August of 2002 are seeking $2.2 trillion in damages against al-leged junk-fax distributor Fax.com and its business partners. The claim amounts to $1,500 for each unwanted piece of paper sent by Fax.com over a period of four years. Under general fee guidelines, if the plaintiffs are successful in winning the full amount, the lawsuit industry might collect as much as $700 billion—the value of the entire GDP of China.
Monkey Business. A group of legal activists, including Harvard Law professor Laurence Tribe, is pressing to grant chimpanzees legal standing in court, similar to that of children. If the group has its way, a chimpanzee theoretically could win an injunction against a medical researcher or a roadside zoo.
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158. See Geraldine Sealey, Whopper of a Lawsuit: Fast-Food Chains Blamed for Obesity, Illness, ABCNEWS.COM, July 26, 2002, http://abcnews.go.com/sections/us/DailyNews/fatsuit020725.html.
159. See Jenny Deam, Hooked on Fast Food? While Law Prof Wants Warnings by Chains, Experts Say Burgers, Fries Aren’t Addictive, DENVER POST, June 25, 2003, at F1 (noting dismissal of Barber’s claims).
160. Libby Copeland, Snack Attack; After Taking On Big Tobacco, Social Reformer Jabs at a New Target: Big Fat, WASH. POST, Nov. 3, 2002, at F1.
161. See Focus: Tobacco Under Attack; A Brief History of Tobacco, CNN.COM, http://www.cnn.com/US/9705/tobacco/history; The US Tobacco Wars, BBC ONLINE NETWORK, Sept. 28, 1999, http://news.bbc.co.uk/1/hi/world/americas/457180.stm.
162. Duncan Campbell, Junk Food Firms Fear Being Eaten Alive by Fat Litigants, THE GUARDIAN, May 24, 2002, available at http://www.guardian.co.uk/bush/story/0,7369,721138,00.html.
163. See Pelman v. McDonald’s Corp., 237 F. Supp. 2d. 512, 527-43 (S.D.N.Y., 2003).
164. See Gail Appleson, Judge Throws Out Obesity Suit Against McDonald’s, RE-UTERS WIRE, Sept. 4, 2003.
165. Guy Barnett, Time for a Fat Fight, HERALD SUN, July 17, 2002 (quoting Ralph Nader), available at http://guybarnett.com/article.asp.
166. Press Release, Center for Science in the Public Interest, Tax Soda and Snacks to Promote Health (June 1, 2000), available at http://www.cspinet.org/reports/tax.
167. See Copeland, supra note 160, at F1.
168. See Cash Demanded for Drug Users and Panhandlers Inconvenienced by Film Crews, OVERLAWYERED.COM, Aug. 23-25, 2002 (citing Don Townson, Canadian Hookers Campaign Against Hollywood, VARIETY/YAHOO, Aug. 21, 2002), http://overlawyered.com/archives/02/aug3.html.
169. See Ad Model Sues Tobacco Company, OVERLAWYERED.COM, May 1-2, 2002 (cit-ing, e.g., Former Tobacco Model Sues Reynolds over “Reputation,” WASH. TIMES, Apr. 30, 2002), http://overlawyered.com/archives/02/may1.html.
170. See Meet the Wrongful-Birth Bar, OVERLAWYERED.COM, Aug. 22-23, 2001 (citing, e.g., Lindy Washburn, Families of Disabled Kids Seek Peace of Mind in Court, BERGEN REC., Aug. 19, 2002), http://overlawyered.com/archives/01/aug3.html.
171. See Father Files Suit after Son Fails to Win MVP Award, OVERLAWYERED.COM, Nov. 8-10, 2002 (citing, e.g., Father Sues Team for Not Naming Son MVP, AP/ESPN, Nov. 7, 2002), http://overlawyered.com/archives/02/nov1.html.
172. See “Junk Fax” Suit Demands $2 Trillion, OVERLAWYERED.COM, Aug. 26, 2002 (citing, e.g., Bob Egelko, $2 Trillion Junk Fax Suit: Silicon Valley Man Demands Fax.com End Unsolicited Messages, SAN FRANCISCO CHRONICLE, Aug. 22, 2002), http://overlawyered.com/archives/02/aug3.html.
173. See Lawyers for Chimps?, OVERLAWYERED.COM, Apr. 29-30, 2002, http://overlawyered.com/archives/02/apr3.html.
174. See David Bank, A Harvard Professor Lobbies to Save U.S. Chimps from Mon-key Business, WALL ST. J., Apr. 25, 2002.