Why the 'Cheeseburger Bill' Is Hard to Swallow

Jacob Sullum | October 20, 2005

Yesterday the House of Representatives once again passed the Personal Responsibility in Food Consumption Act, which purports to protect food sellers from liability for the consequences of their customers' overeating. I say "purports" because I'm not sure the bill (which has not been considered by the Senate yet) would make much of a difference in the sort of litigation that inspired it.

The so-called cheeseburger bill makes exceptions not only for violations of express warranties but for violations of state or federal law that result in excessive calorie consumption. The latter exception would apply to Pelman v. McDonald's, the case in which two overweight teenagers seek to blame the chain for their chubbiness. The suit was dismissed twice by U.S. District Judge Robert Sweet for failure to adequately state a claim, but it was revived by the U.S. Court of Appeals for the 2nd Circuit, which ruled that the plaintiffs could pursue their argument that McDonald's violated New York's Consumer Protection Act through deceptive marketing practices. The outcome will hinge on whether they can substantiate that allegation and show that it was the proximate cause of their portliness--both long shots, but permissible under the bill passed by the House.

In any case, the bill seems unnecessary, or at least premature. About 20 state legislatures have passed legislation discouraging Pelmanesque lawsuits, and so far there is no indication that state or federal courts are inclined to award damages based simply on the fact that fat people like to eat at certain restaurants. As far as I know, Pelman is the only pending lawsuit involving such claims, and here is how Judge Sweet reacted to it:

Any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge....If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain...it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonald's....Even more pertinent, nobody is forced to supersize their meal or choose less healthy options on the menu.

If this is the general attitude on the bench, there may be no need for a legislative fix, let alone federal intervention.

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|10.20.05 @ 6:03PM|#

The commerce clause is meaningless. Well, not meaningless--- it just means the exact opposite of what it says. Might as well delete the damned thing.

R C Dean|10.20.05 @ 6:17PM|#

The question isn't so much whether the defendants will win every case, but whether they will have to spend vast sums of money to defend themselves against baseless charges.

Because the incentives for plaintiff's attorneys are heavily weighted toward bringing weak cases, something needs to be done to right the balance. Personally, I would prefer to see something systemic (loser pays the winner's expenses, even if the loser is the plaintiff, for example). In the absence of something systemic and strategic, we will just have to be tactical and reactive, by giving immunity on a limited basis to the target industry of the month.

Is this a federal rather than a state issue? Sadly, because the targets tend to be national companies who can be sued in any jurisdiction, the answer is yes. It won't matter at all if 49 states pass laws protecting against abusive litigation, as long as one state holds out, the damage will be done.

|10.20.05 @ 6:34PM|#

Is it ironic that I feel happy that Washington may pass a law that doesn't do that much, since that means it won't screw anything up too badly? sigh...

|10.20.05 @ 6:37PM|#

The commerce clause means what it says. The problem is that sometime during the last two centuries the word "regulate" went from meaning "to make regular" to meaning "micromanage". The point of the commerce clause was to allow congress to keep the flow of commerce er, "regular" by stoping the states from enacting trade barriers.
BTW, the word "regulated" in the 2nd serves a similar purpose. The militia needs to be functional, not centrally controled.

|10.20.05 @ 6:41PM|#

Eryk... yeah. Did you not detect my sarcasm?

|10.20.05 @ 6:45PM|#

Eryk,
Good explanation. It is possible for something to be both regular and micromanaged (i.e. the bowel movements of grade school students.)

|10.20.05 @ 6:50PM|#

Especially those who eat greasy cheeseburgers.

|10.20.05 @ 6:55PM|#

Well, if you consume too much interstate commerce you might feel a craving for some junk food. It would be a shame if some lawyer denied interstate commerce afficionados the ability to enjoy fast food.

So this is totally an interstate commerce issue.

|10.20.05 @ 7:08PM|#

It sounds like a micromanaged intestinal commerce issue. No one has the right to tell me what to do with my own intestines!

|10.20.05 @ 7:33PM|#

Consumers know McDonald's sells shitty food. McDonald's knows it sells shitty food. Why does the Pelman case continue to exist and move forward? Is personal nutritional negligence legitimate grounds for a lawsuit? Really?

If so, then I'm going to start wearing shoes that are two sizes too small for my feet. When my toes fuse together, I'm taking Florsheim to the cleaners.

(Ba-da-ba-ba-bahhhhh... I'm lovin' it.)

|10.20.05 @ 7:48PM|#

"Why 'Cheeseburger Bill' Is Hard to Swallow"

I did not find him to be so.

|10.20.05 @ 7:57PM|#

SPD,

I didn't think ignorance of obvious dangers and stupidity were legitimate grounds for a lawsuit, but someone thinks they are.

Look at a new kids playground, it looks like someone asked a designer from nerf to make a place safe enough for head trama victims.

My local County's Lock-up is getting sued by an inmate for injuries sustained while escaping. He claims it was too easy to escape. This inmate fell 20 feet after being pushed off of a bead sheet rope by another fellon.

It seem that a joke one day become reality the next. Well at least today I'm still laughing.

MP|10.20.05 @ 9:48PM|#

I don't understand the Commerce Clause complaints. If a business operates in multiple states, the Congress has a right to legislation which normalizes the business environment.

|10.20.05 @ 10:06PM|#

"Is this a federal rather than a state issue? Sadly, because the targets tend to be national companies who can be sued in any jurisdiction, the answer is yes. It won't matter at all if 49 states pass laws protecting against abusive litigation, as long as one state holds out, the damage will be done."

And in such a manner the Commerce Clause is absolutely turned on its head.

The problem you cite is not one that requires substantive federal immunities or the like. What is required is a fix of jurisdictional due process rules - the "stream of commerce" standard is the root of this evil. And since such jurisdictional disputes can be removed to federal courts, the need to distort and abuse the commerce clause doesn't even arise.

|10.20.05 @ 10:36PM|#

Regardless of its practical impact, the bill relies on an overly broad interpretation of the Commerce Clause to justify meddling with state tort law. "The food and beverage industries are a significant part of our national economy," the bill says by way of constitutional justification. "The activities of manufacturers and sellers of foods and beverages substantially affect interstate and foreign commerce." That may be enough under the relevant Supreme Court precedents (if a marijuana plant in your closet is "interstate commerce," surely a cheeseburger at McDonald's is), but it shouldn't be.

At least selling a cheeseburger actually is commerce. But is it interstate? I guess one could argue that it could be if the food is transported across state lines at some point. Another arguement would be that customers could come from across state lines to buy. The later would make virtually all commerce interstate commerce. (Yes, I know that all happened a long time ago and that Raich reinforced a legal view which makes virtually all human activity legally commerce.)

Unrelated question: What are the limits to the discression each state has in setting tort policy within its juristiction? Are there certain policies they are prohibited from enacting on grounds that such policies would be substantially unjust towards plaintiffs or defendants?

|10.21.05 @ 12:26AM|#

As one who's always quick to point out the "Law of Unintended Consequences" of these type of ridiculous legislative fiats, I should point out that being able to sue someone is an important right.

I know some folks don't want to hear that but the simple fact is without the threat of lawsuits, corporate behavior only risks greater irresponsibility...the self-destructive kind.

Nobody likes being sued. But some folks - and some businesses - have got it coming. The liberty afforded by access to the courts is an important right as well as an important aspect of commerce with real ecenomic consequences.

I might not like the fact that they exist and have a definite downside. But I KNOW I don't like it when a bunch of idiots produce laws that limit MY right to do something.

|10.21.05 @ 6:06AM|#

"Why 'Cheeseburger Bill' Is Hard to Swallow"

I did not find him to be so.

Just don't spill any Special Sauce® on your dress.

Dave W.|10.21.05 @ 6:32AM|#

Consumers know McDonald's sells shitty food. McDonald's knows it sells shitty food. Why does the Pelman case continue to exist and move forward? Is personal nutritional negligence legitimate grounds for a lawsuit? Really?

If McDonald's hamburgers can be safely eaten as regular hamburgers one would make at home, then there would not be legitimate grounds for a lawsuit. On the other hand, if McDonald's food is considerably more dangerous to health than making comparable dishes at home, then, yes, there could be grounds for a lawsuit, depending primarily upon how different McDonald's hamburgers are from other hamburgers.

Because we don't know the answer to this basic issue of whether McDonald's food is more dangerous than "normal" versions of the same foods, we should not be jumping to any conclusions yet, nor should we want Congress jumping to conclusions just yet. Rather, this stuff should be tried in the courts on a case by case basis in an adversarial setting, rather than behind closed doors in the McDonald's lobbyist's office.

Of course, McDonald's complains about the cost of doing business. I play a very tiny violin for them.

|10.21.05 @ 8:35AM|#

Nobody likes being sued. But some folks - and some businesses - have got it coming. The liberty afforded by access to the courts is an important right as well as an important aspect of commerce with real ecenomic consequences.

Very, very true.

But that doesn't mean that the courts, which serve an important function, should be appropriated by idiots to serve as a jackpot machine for those who want to avoid any responsibility for their bad decisions. When the right to sue is egregiously abused (e.g. "I didn't know that eating lots of fast food and never exercising would be bad for me, so give me millions of dollars!") then there's nothing wrong with the legislative branch of government stepping in and insisting that the nonsense stop and the courts focus their energy on other cases.

Now, whether that should be done on the federal level is a different story. But when frivolous and baseless lawsuits threaten an industry (not meritorious suits, but frivolous suits) I see nothing wrong with laws putting a stop to those suits. Now, whether those laws should be enacted by Congress or state legislatures is a separate issue, but the idea of the legislaure stepping in is a sound one.

And, once again, there's nothing meritorious about some idiot suing on the grounds of "I didn't know that eating lots of high calorie food would make me fat!"

|10.21.05 @ 9:32AM|#

RC Dean,

"The question isn't so much whether the defendants will win every case, but whether they will have to spend vast sums of money to defend themselves against baseless charges."

If the argument behind the cases - not each individual case itself, mind you, but the general argument "serving fattening food is an actionable offense" - is run out of court a few times, no plaintiff's lawyer will take a case based on that argument. It costs money to litigate a case, and lawyers turn down loser cases all the time.

Courts that have looked at these cases have shot down that argument every single time. The reason "the Pelman case continue to exist and move forward" is because there is an additional claim - that McDonald's engaged in deceptive advertising. Ba ba ba ba baa - it's still a greasy cheeseburger. This is probably going to lose on the facts. But even y'all libertoids must agree that deceptive advertising is an actionable offense in court.

Pastafarian|10.21.05 @ 9:46AM|#

But even y'all libertoids must agree that deceptive advertising is an actionable offense in court.

All advertising is deceptive. Only clear falsehoods should be actionable items.

MP|10.21.05 @ 9:46AM|#

(darnit...keep forgetting to change my handle back...)

M1EK|10.21.05 @ 9:53AM|#

R C Dean|10.21.05 @ 10:01AM|#

If the argument behind the cases - not each iidividual case itself, mind you, but the general argument "serving fattening food is an actionable offense" - is run out of court a few times, no plaintiff's lawyer will take a case based on that argument.

joe, the tobacco companies won every cigarette lawsuit for literally decades, but they kept coming, didn't they? I don't know if anyone has ever won an anti-gun lawsuit (maybe one or two), but they keep coming, don't they?

Besides, every plaintiff's lawyer knows that the real value of these suits is the nuisance value. Most companies will pay enough for the plaintiff's lawyer to cover costs, with a little profit, just to make them go away.

So, from a plaintiff lawyer perspective, filing one of these suits presents a very low probability of losing money, a pretty good chance of making a little money, and an outside chance of a jackpot.

Those, my friend, are skewed incentives.

R C Dean|10.21.05 @ 10:03AM|#

I again find it curious how so many hard-core libertarians, whose recommended remedy for environmental harm is the court system rather than regulation, display disdain for using said court system to remedy wrongs which would otherwise be remedied by regulation.

The problem with this analysis, M, is that no one is wronged when they walk into a McDonald's and supersize it. That is a matter for neither the courts nor the legislature.

|10.21.05 @ 10:03AM|#

"Why 'Cheeseburger Bill' Is Hard to Swallow"
I did not find him to be so.

He must have had work done while in office.

MP|10.21.05 @ 10:10AM|#

The real answer is a loser pays system.

|10.21.05 @ 10:16AM|#

RC, the tobacco cases were much stronger than the fast food cases seem to be. There were rooms full of documents demonstrating a conspiracy to cover up information about health effects, manipulate research, and knowingly push untruthful statements. If the people suing McDonald's can assemble such a record, they will win, and they will deserve to win. But, they won't assemble such a record. McDonald's has been publishing their food's nutritional stats for years, and I haven't hear a whisper about studies showing that a high salt, high fat diet is good for you coming from McDonald's-funded researchers. So I don't find the comparison particularly valid.

"Besides, every plaintiff's lawyer knows that the real value of these suits is the nuisance value." It's not even a nuisance, if the defendant knows it will be laughed out of court. It's can only be a nuisance if there really is a valid argument that the courts will accept. Take your classic slip and fall case - if you don't do anything about the snow and ice in your parking lot, you really are liable for people's injuries. It's just a matter of arguing the facts. In this case, McDonald's really isn't liable for people's weight problems because they serve cheeseburgers.

"The problem with this analysis, M, is that no one is wronged when they walk into a McDonald's and supersize it. That is a matter for neither the courts nor the legislature." If it is impossible for them to be harmed, if the argument itself has no merit, that is a case for courts - to dismiss cases based on the lack of a legal argument. If it is possible that a party was harmed, it is a case for the courts, to decide if Party A has presented facts sufficient to find Party B legally liable for his injuries.

|10.21.05 @ 10:18AM|#

MP,

Not all losers are created equal. Not all cases that aren't won are frivolous.

alkali|10.21.05 @ 10:22AM|#

SPD writes:

Consumers know McDonald's sells shitty food. McDonald's knows it sells shitty food. Why does the Pelman case continue to exist and move forward? Is personal nutritional negligence legitimate grounds for a lawsuit? Really?

The reason Pelman is moving forward is as follows: the plaintiff in that case asserted claims against McDonalds based on traditional theories of negligence and New York's consumer protection act, General Business Law ("GBL") secs. 349 and 350. The plaintiff ultimately dropped the negligence claim and went solely with the GBL claims.

The reason she (or her lawyers) did that is that the New York Court of Appeals -- the highest state court in New York -- held in 1999 that any consumer has a potential claim against a business under the GBL based on misleading advertising even if the customer didn't actually believe or otherwise rely on the advertising. All the consumer has to assert is that he/she was somehow "injured" by the advertising and his claims will survive into discovery. (For example, a customer can be "injured" if the advertising doesn't clearly identify potential disadvantages of a product that the customer might not have been aware of.)

Suffice it to say that that ruling created a gold mine for plaintiffs' lawyers. The New York legislature ought to fix it.

MP|10.21.05 @ 10:29AM|#

Not all losers are created equal. Not all cases that aren't won are frivolous.

I don't seek perfection. I seek bettering what we have today. And the benefits of Loser Pays far outweigh the drawbacks.

And I don't understand your stance on "nuisance". As soon as someone has to spend a nickel or a second on defending an unjust claim, it is a "nuisance". Of course, the courts are who decide the justness, so any plaintiff claim imposes a burden on the defendent. But that is the advantage of Loser Pays.

|10.21.05 @ 10:34AM|#

So when it comes to the impact of a "loser pays" system, MP, you're perfectly ok with the all the people with strong claims who won't get their day in court because, in the aggregate, the benefits outweigh the harms.

But when it comes to lawsuits in general, the existence of a nickel in costs or a second in time spent defending against a case is an outrage sufficient to justify a wholesale reform of the judicial system, regardless of any cost/benefit measure.

|10.21.05 @ 10:37AM|#

Not all losers are created equal. Not all cases that aren't won are frivolous.

On this I agree with joe. While I have a lot of sympathy for the "loser pays" proposal, if a case is a really close call then it's harder to argue that a losing plaintiff with shallow pockets and a low-cost lawyer should have to reimburse the legal expenses of a winning defendant with deeper pockets and high-priced legal talent. It was a reasonable claim to bring, just not quite a winning case.

Instead of just having a win/lose verdict, could we have 3 possible rulings? Plaintiff wins, plaintiff loses, or plaintiff loses so badly that he has to pay some/all of the winner's fees?

Or else could judges be given more discretion to toss out frivolous suits early on, so defendants don't have to spend as much defending against frivolous claims?

|10.21.05 @ 10:39AM|#

Most companies will pay enough for the plaintiff's lawyer to cover costs, with a little profit, just to make them go away.

So essentially, bribery is business as usual; sad, really sad.

MP|10.21.05 @ 10:41AM|#

you're perfectly ok with the all the people with strong claims who won't get their day in court because, in the aggregate, the benefits outweigh the harms.

I don't see why they wouldn't get thier day in court. Contingency lawyers would be forced to be more selective, since they would probably end up shouldering the fees that come with losing.

I don't see where I'm not performing cost/benefit analysis. I was defining nuisance, not saying what outrages me. What outrages me are losing suits that cost the defendant far more than a nickel.

And yes, there are significant flaws in our judicial system. Loser Pays only begins to recitify them, but it is a start.

alkali|10.21.05 @ 10:41AM|#

Instead of just having a win/lose verdict, could we have 3 possible rulings? Plaintiff wins, plaintiff loses, or plaintiff loses so badly that he has to pay some/all of the winner's fees?

In theory, we actually have this now -- in federal court, Rule 11 says that an attorney who doesn't have a good faith basis for a document he files in court can be sanctioned (a typical sanction is paying the other side's fees). Most states have a similar rule. It wouldn't be the worst thing if enforcement of Rule 11 were stepped up a bit.

|10.21.05 @ 10:47AM|#

alkali writes: All the consumer has to assert is that he/she was somehow "injured" by the advertising and his claims will survive into discovery.

Would this lead to disclaimers in fast food advertisements? Interesting...

As for the "loser pays" system: What if a corporation wins a case not because they were right, but because they could afford to hire better attorneys? Now the plaintiff is subject to a double injustice, because they lose and have to pick up the tab for the shysters on the other side?

I think reasonable parameters would have to be established before I could support that alternative. I'm not saying it's necessarily a bad idea, just one whose loopholes could easily be exploited by outspending the little guy.

|10.21.05 @ 10:56AM|#

alkali-

Thanks for the info. I'd be fine with trying to implement tort reform by more careful application of current rules, rather than writing a whole bunch of new rules.

MP|10.21.05 @ 11:04AM|#

I think reasonable parameters would have to be established before I could support that alternative. I'm not saying it's necessarily a bad idea, just one whose loopholes could easily be exploited by outspending the little guy.

When I refer to Loser Pays, I'm not referring to a simplistic implementation of this. There are various ways (in which the original link I provided shows) that Loser Pays is implemented worldwide. There is no perfect solution, but almost any movement in that direction is better than what we have now.

|10.21.05 @ 11:07AM|#

Re: Loser pays.

I'll say it again, it sounds nice in theory, but the practical effect is virtually nil. Why? Judgments are just mere pieces of paper. McDonald's has a 300k judgment for costs and fees against granny with 3rd degree burns over a quarter of her body, whose main source of income is SSI disability? Great. Have fun collecting that one, and enjoy the publicity you get when the papers get the story about you putting the screws to granny. All for recovering a couple cents on the dollar, if you're lucky.

And if you think that granny is the exception with PI plaintiffs, you're wrong. Especially with the cases you consider 'frivolous'. Most of those are brought by either people on welfare, looking for a big payday, or people who have suffered a catastrophic accident and are looking for ways to pay medical bills. Both of which are essentially judgment proof.

Meanwhile, when the plaintiffs win, they're gonna get an even bigger windfall, 'cause now they get another chance to soak the deep pockets. Never mind all the new litigation you're going to spawn over what are reasonable fees to collect from a losing party.

It's always a bad idea to completely remove contractual bargaining from price setting. It's bad enough that court verdicts are inherently anti-bargaining. Completely removing the bargaining from contract between lawyer and client and turning it into a question of law on recovery from a defendant who didn't get to negotiate is a bad idea, even in theory, IMHO.

|10.21.05 @ 11:13AM|#

MP,

"I don't see why they wouldn't get thier day in court. Contingency lawyers would be forced to be more selective, since they would probably end up shouldering the fees that come with losing." And you don't see how "forcing contingency lawyers to be more selective" would result in people not being able to get their day in court? This greater selectivity, based on the consequences of losing, wouldn't be partially based on the ability of the defendant to hire really, really expensive lawyers, would it?

thoreau, John Edwards had a proposal to ban attornies who filed three lawsuits deemed frivolous by the trial judge from filing any more cases in federal court. The "tort reform" crowd, of course, would have nothing to do with this, because it would only effect lawyers who file frivilous lawsuits, and wouldn't lower the costs accrued by losing legitimat lawsuits, which has always been their real goal.

|10.21.05 @ 11:16AM|#

And forget to add:

This is the reason rule 11 (and its state analogs) is rarely enforced now - it's just generally not worth the effort.

To reform the monster PI litigation has become, the place to start is in insurance regulation, which denies insurers the ability to set the terms under which they are willing to offer insurance, especially with respect to catering to selected jurisdictions. Example - allow insurers to charge exceptionally high rates to those who conduct business in Philadelphia county, where verdicts are outrageous. Soon, businesses flee Philadelphia, and the residents will feel the costs of their jackpot attitudes. And then allow the county, if it so desires, to impose its own restrictions - matching the solution with the problem. Of course, this also requires some reform of jurisdiction and venue rules (to allow defendants to avoid forums where they don't wish to be hauled into court), but it doesn't require any substantive legislation granting immunities or such.

MP|10.21.05 @ 11:23AM|#

joe,

Since we are not discussing a specific proposal, it is pointless to argue specifics. You've said nothing that indicates that some form of Loser Pays is not worth pursuing.

|10.21.05 @ 11:45AM|#

How are current settlements decided? Does the judge get to overrule the jury's decision? Should the jury be allowed to set the amount in the first place?

Has the concept of "professional jurors" ever been proposed?

|10.21.05 @ 12:06PM|#

In general, I agree with MP that the current extreme version of the "American Rule" (each side pays own costs) in force is unhealthy for our legal system and being abused by some plaintiffs' attorneys.

In the past, I believe judges were more quick to throw out bad cases prior to trial and to find actions frivolous that are now considered acceptable--and the appeals court used to back the judges up on this. What ultimately happened, in my view, was the rise of the 'activist' appellate courts nationwide that began overturning dismissals of lawsuits that, while not technically frivolous, lacked strong legal or factual foundations. After that, trial judges became gun shy about dismissing bad lawsuits, leading to our current disaster of a system.

Ideally, we should be looking to inhibit the plaintiffs' bar from bringing abusive suits, more than punishing the participating plaintiffs. The reality is that most of these suits are initiated by a relatively few nasty firms (i.e., Milberg Weiss), who find some shmoe to act as the lead plaintiff. We need to find a way to make it very painful for these firms to file repetitive and abusive lawsuits that just barely clear the bar over being frivilous.

alkali|10.21.05 @ 12:11PM|#

SPD asks:

How are current settlements decided?

Settlements are negotiated by the parties. I'm guessing you are asking about verdict amounts, which are determined by the jury in jury trials. Essentially, the parties put on witnesses and evidence, the attorneys argue damage amounts to the jury in their closing argument, the judge instructs the jury on the law, and the jury comes to a number.

(The parties can waive jury and try the case before a judge, but plaintiffs generally don't do that in the kinds of cases we're discussing here.)

Does the judge get to overrule the jury's decision?

Yes, but the standard is high. (Generally speaking, the judge has to determine that the jury ignored the facts or was totally unreasonable. The judge can't just pick a different number because he/she thinks that number is more appropriate.)

Should the jury be allowed to set the amount in the first place? Has the concept of "professional jurors" ever been proposed?

Yes, but those kind of proposals run up against federal and state constitutional rights to civil trial by jury. (Which is not to say that you couldn't or shouldn't amend those constitutional provisions, but as a practical matter that does not appear likely to happen.)

|10.21.05 @ 12:15PM|#

"it is not the place of the law to protect them from their own excesses" --Judge Sweet

I agree, but has this guy been locked in a closet for the last century? Sweet for Supreme Court!

MP|10.21.05 @ 12:24PM|#

Yes, but those kind of proposals run up against federal and state constitutional rights to civil trial by jury.

Talk about a item (the seventh amendment) in need of a COLA adjustment...sheesh!

R C Dean|10.21.05 @ 1:38PM|#

RC, the tobacco cases were much stronger than the fast food cases seem to be.

Maybe, but we were talking about your claim that the lawyering class won't bring claims that are historically losers. Tobacco cases were exactly that, but they kept coming.

It's not even a nuisance, if the defendant knows it will be laughed out of court.

Absolutely wrong, joe. The nuisance is having to defend it at all, and put up with the legal fees, discovery demands, etc. until it gets thrown out of court.

If it is impossible for them to be harmed, if the argument itself has no merit, that is a case for courts - to dismiss cases based on the lack of a legal argument.

And yet the McDonald's case is still alive. Causing a nuisance, as it were.

Dave W.|10.21.05 @ 1:45PM|#

On this I agree with joe. . . . defending against frivolous claims?

That is pretty much how it works under the US civil system. Although the default rule in the US is each-pay-own-way, when the cases become one-sided enough, a statute wil often step in and allow recovery based on egregious fact patterns in bringing the litigation. One example of this is the "exceptional case" statutes in copyright and patent contexts.

Dave W.|10.21.05 @ 2:01PM|#

Absolutely wrong, joe. The nuisance is having to defend it at all, and put up with the legal fees, discovery demands, etc. until it gets thrown out of court.

So what? There is no right to be free of nuisance suits, not for Mickey Dee, not for you and not for me. What's more, big comapnies are not the people I want to give legislative charity to, even when I am in a charitable mood. They are profitable enuf as is and need no special bailout (no matter how much $$ their lobbyists have slipped to Congress).

Prediction: after the Cheeseburger Bill passes, McDonald's will use that as cover to start slipping poison in the food (eg, hydrogenated oil, fat and salt way beyond regular hamburgers, saccharine, whatever). The scheme will eventually be uncovered and we will belatedly realize what fools we were for passing that kind of cover.

Frankly, I imagine that there is a secret mountain of evidence out there linking corn sweetner to adult onset diabetes (beyond what a comparable amount of cane sugar would do, I mean). If there is, I sure hope the Cheeseburger Bill doesn't block those suits. Diabetes is huge, its exploding and nobody seems to know why. Not a good situation for prospective gov't prohibitions on access to discovery.

Larry A|10.21.05 @ 2:48PM|#

"The problem with this analysis, M, is that no one is wronged when they walk into a McDonald's and supersize it. That is a matter for neither the courts nor the legislature."

If it is impossible for them to be harmed, if the argument itself has no merit, that is a case for courts - to dismiss cases based on the lack of a legal argument. If it is possible that a party was harmed, it is a case for the courts, to decide if Party A has presented facts sufficient to find Party B legally liable for his injuries.

And therein lies the difference at the foundation of these lawsuits. There is a big difference between being "wronged" and being "harmed."

Every day thousands of people decide that the food and service provided by a MacDonalds store is worth the money charged, and so partake. They are responsible for that decision. Some may well abuse the process and overeat. Regardless, as voluntary customers they are not "wronged."

However, a few activists have decided that eating at MacDonalds is "harmful." They have sought legislation that would force MacDonalds and its customers to conform to the activist agenda. Since they can't get the legislation enacted, because of the MacD fan base, they are now turning to the courts in hopes of suing MacD and its customers into following their agenda.

This is exactly the same process used by anti-gun activists. Their efforts have already bankrupted some companies, and have been used in a major unsuccessful attempt to blackmail manufacturers into complying with rules the activists have been unsuccessful in enacting into law.

The ideal of depending on judges to throw out such suits is good, except that it only takes one judge who agrees with the agenda to allow the suits to reach the ruinous stage.

What's more, big companies are not the people I want to give legislative charity to, even when I am in a charitable mood.

This may or may not be noble, depending on your viewpoint. However, the point of the lawsuit is not to punish MacDonalds, but to force the thousands of people who choose to eat there to adopt what the activists believe is a healthier diet.

|10.21.05 @ 3:54PM|#

"Maybe, but we were talking about your claim that the lawyering class won't bring claims that are historically losers. Tobacco cases were exactly that, but they kept coming." My argument was that cases that are obvious losers won't be brought often. Even with a string of defeats, the tobacco cases weren't obvious losers, because the plaintiffs had the facts, in a way that the plaintiffs in the McDonald's suits don't.

"Absolutely wrong, joe. The nuisance is having to defend it at all, and put up with the legal fees, discovery demands, etc. until it gets thrown out of court."

My argument was that cases that are obvious losers won't be brought often.

"And yet the McDonald's case is still alive." The process takes some time, but the fact that we're still talking about "the" McDonald's case, rather than all the McDonald's cases, would seem to bear out my point.

Larry A, we hold trials, allow the parties to call witnesses, and direct a judge and/or jury to determine whether someone who has been "harmed" was actually "wronged" by the defendant. We don't live in a Larry A-ocracy, in which whole classes of "harms" are declared, without consideration or even knowledge of the facts of each case, to not quality as "wrongs."

I'm not saying your line of thought is wrong. I'm saying, this is a "who decides?" question, and the answer to that question, and as long as there is a question, a citizen is entitled to his day in court.

|10.21.05 @ 4:23PM|#

Any liability based on over-consumption is doomed if the consequences of such over-consumption are common knowledge....If a person knows or should know that eating copious orders of supersized McDonald's products is unhealthy and may result in weight gain...it is not the place of the law to protect them from their own excesses.

i want to live in THAT country.

Larry A|10.22.05 @ 3:22PM|#

Joe: I'm not saying your line of thought is wrong. I'm saying, this is a "who decides?" question, and the answer to that question, and as long as there is a question, a citizen is entitled to his day in court.

<Reduce to absurdity:> Say that 10,000,000 people think, for whatever reason, that MacDonalds is a good place to eat. And 10 people, for whatever reason, think that MacDonalds is a bad place to eat. And the 10 try to convince the 10,000,000 that MacDonalds is a bad place to eat but the 10,000,000 disagree. So the 10 try to convince Legislatures and Congress to pass laws making MacDonalds serve food the way the 10 want it served, and not the way the 10,000,000 want it served, but the 10,000,000 contact their representatives and block the efforts of the 10.

Then the 10 should be able to file a suit in a friendly court and force MacDonalds to serve food the way the 10 want it served, and not the way the 10,000,000 want it served. And if they fail because the jurors disagree they should be able to file another suit in a friendly court and force MacDonalds to serve food the way the 10 want it served, and not the way the 10,000,000 want it served. And if they fail...

And so on until MacDonalds goes broke and they can start on Whataburger. </RTA>

OTOH, I appreciate your point. Yes, an individual that has been "wronged," as in if MacDonalds advertised that no matter how much you eat you won't gain weight, or if eating at MacDonalds results in food poisoning, should absolutely have the right to sue. And any laws we pass must tread carefully around that principle.

It's the crusaders I'm against.

|10.24.05 @ 12:01AM|#

If McDonald's hamburgers can be safely eaten as regular hamburgers one would make at home, then there would not be legitimate grounds for a lawsuit. On the other hand, if McDonald's food is considerably more dangerous to health than making comparable dishes at home, then, yes, there could be grounds for a lawsuit, depending primarily upon how different McDonald's hamburgers are from other hamburgers.

Dave, I'd accuse you of not only being high, but fucking Coo-Coo for Cocoa Crisps high if I didn't know that there were people here who posted, while high, and came off as more erudite and less insane.

WTF is a "comparable dish" made at home? Who gets to be the arbiter of that big wad of subjectiveness? You? Me? Emeril Lagasse? Ted Kennedy? Does it have to be a burger made of beef and topped with a slice of American cheese? What if it turns out I can make a "comparable" sandwich using superlean Ostrich meat, and reduced fat cheese, and then make it even healthier by putting half a head of lettuce on it.

After all, it's a burger, right? Meat, cheese, other stuff smooshed between a sliced Kaiser roll. Why shouldn't McDonald's have to conform to that?

I'll tell you why:
Because you're a fuckwit, that's why. I know that I'm taking your trollbait by even deigning to respond, but you're such a goddamned idiot that I can't help but take the bait, if for no other reason that I can then rub your nose in it.

McDonald's serves shitty food. As has been pointed out already, everyone with an iq higher than that of a bucketfull of steamed clams knows this. They post their nutritional information on a big poster inside the restaurant. They're more than happy to give you a brochure about it if you ask. Hell, they even offer an interactive web page that lets you look this information up on the web.

What do you want? That they be required to tell you the nutritional content of your order? Should they come directly to your house and force you to sit through a nutritional play acted out with interpretational finger puppets? Or perhaps you just want them to use healthier ingredients, thusly driving the price of their swill up to the point that I may as well buy the shit and fry it at home.

Don't like McDonald's? Don't eat there. That's what I do. But you certainly don't see me lamenting all of the poor schmucks who choose to go there.

In summation, Dave, you are an idiot.

|10.24.05 @ 12:12PM|#

Ha ha. geek got so wound up, he contradicted his premise.

So, is there a widespread, common sense understanding about how healthy hamburgers are, or not?

|10.24.05 @ 12:48PM|#

I would say that there's certainly a widespread understanding about how healthy McDonald's hamburgers are.

But that doesn't carry over to how healthy hamburgers are in general because the contents of a burger are going to vary from place to place.

Hope that clears it up.

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