Applebee's: Looking Sued in The Neighborhood or, The Case of the High-Caloric Cajun Lime Tilapia

Ersatz family fun and goode tymes eating establishment Applebee's and Sarah Ferguson workfare sponsor Weight Watchers are being sued for lying (lying!) about the calorie content of their character food. Reports the Cincinnati Enquirer:

At least six lawsuits have been filed against the companies across the country since late last year, when a Scripps News investigation hired a lab to test the food and found that it contained more calories and as much as three times the fat as advertised.

Applebee's spokesman Patrick Lenow said the lab tests are misleading because they are based on testing involving a small sample of menu items from a few locations. He said the menus acknowledged that some variation in fat and calorie content was possible.

"Trying to take a very small number and extrapolate that over a very large chain really isn't possible," Lenow said.

Well, yeah, that's for sure, though isn't that precisely the point of (those mostly state-mandated and/or implicitly coerced) menu information sheets that no one reads? Nevertheless:

The class-action lawsuit seeks unspecified damages from Applebee's and Weight Watchers on behalf of thousands of consumers....

[Plaintiff Pamela] Curry's suit claims that the tilapia dish she ordered contained 14 grams of fat—more than twice the amount claimed on the menu. Another dish, the Teriyaki Steak 'N Shrimp Skewers, contained almost 100 more calories than the 370 claimed on the menu, the suit says.

When she ordered those items, the suit claims, Curry became the victim of fraud and negligence.

Weight Watchers' role in this? They co-branded a series of menu items at Applebee's starting in 2005. No date is set for anything, as the judge decides whether this is a matter rightly decided at the federal or state level. Whole story here.

Paging Ooka the Wise, the mythical Japanese jurist who could solve any difficult case! This raises any number of issues, IMO. First, skip the fat jokes. Of course anyone eating in Applebee's should realize you can't walk out of there without packing on five to 10 pounds, or Imperial quarts or whatever.

Of course, Applebee's and most other restaurants post this sort of thing as much out of fear of regulation by anti-fat nannies, though some of it is done precisely to lure diet-conscious patrons. Etc. You can go on and on about the stupidity of all this, and the tangled roots without exhausting the possiblities, sort of like the chain's exciting new mix and match lunch menu.

Suffice it to be said that diners should expect slippage in calorie counts in real, live restaurants. It's extremely easy to add 100 calories to almost anything, depending on what sort of sauce is where. And that restaurants really should work hard to make sure their published meal totals have some relation to the food they serve.

But then you get to the bigger picture: What sort of damages should be awarded if in fact Applebee's and Weight Watchers were just making crap up (a big if)? How about this: nothing other than public shaming and reputational damage? Seriously, whatcha gonna do, after giving a thick slab of dollars as rich and gooey as the topping on the Maple Butter Blondie to the lawyers? Give the plaintiffs coupons to eat somewhere else? Make each server explain to each diner that they've got no idea how many calories their crap includes? Have the server suggest, like Aristotle, that the best diet is one of moderation and variety? Food has so rapidly become a battlefield in America and the one thing we all know is that war is hell. And so is Applebee's. And so are lawsuits about same.

Reason on obesity.

Anthony Bourdain talked to Reason.tv about food strictures in "Better Enjoy Your Foie Gras Now."

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    If anyone wonders why I despise my colleagues in the plaintiff's bar, this is why.

  • Abdul||

    If anyone wonders why I despise my colleagues in the plaintiff's bar, this is why.

    Don't playa-hate. The plaintiff's in this case will recieve justice!





    Justice = coupons for salads at Applebees for the plaintiffs, and a third vacation home for the lawyer.

  • ||

    I am really worried about this in regards to NY's law that restaurants have the calories on the menu of what they serve. Good cooks do not measure out each individual ingredient--could this set a precedent for going after any restaurant with a specified calorie count? (And by the way, when I eat at a restaurant, I don't want to know how many calories are in it!)

  • Jordan||

    But then you get to the bigger picture: What sort of damages should be awarded if in fact Applebee's and Weight Watchers were just making crap up (a big if)?



    Have Applebees give these fatasses a new pair of running shoes that they know full well they'll never use. Because it's Applebees that's responsible for their weight problem.

    Honestly though, these dipshits shouldn't get a plugged nickel. Ate more calories than you intended? There's a very simple solution that doesn't even involve lawyers: unstick yourself from the couch and start moving.

  • ||

    could this set a precedent for going after any restaurant with a specified calorie count?

    That was the plan by the Nannies with these calorie counts from day one.

  • ||

    I never thought a cook could be a badass but Anthony Bourdain proved me wrong. No Reservations is just a great show.

    That said, it is pretty much impossible to make a dish exactly the same way every time millions of times over thousands of different restaurants. Cooks and managers will mess it up. That is why they idea that you could list nutritional content of restaurant food is a really stupid one.

  • ||

    If the calorie differences are based on inefficient, inconsistent local preparation of "menu items" the only practical solution would be to compel Applebaum's to prepare each meal in an automated factory and ship them, freeze-dried, to the reataurants for microwave resuscitation.

    I doubt anybody would notice the change.

  • ||

    They already do! I worked there, all the food is pre-made, frozen, then nuked to order. I don't see how there could be any variation between locations. They don't really make anything there.

  • ||

    Some Nanny website posted a list of the worst foods recently - fat and calorie content, etc. Our local news ran a story on it. After the story, one of the anchors said "You know, I had one of those [whatevers] not too long ago." His co-anchor looks at him and asks "Was it good?"

    He said "Oh yeah."

  • hotsauce||

    WTF, RC? If Applebee's says one thing and then does another, that's fraud. Especially so because people relied on the advertised fat/calorie counts. The plaintiff's bar has every right to go after the company. And FWIW I think there should be some damages floor for cases like this to deter future misconduct.

  • ||

    P Brooks,

    Their burgers are good. You just have to know what to expect from a place like that. Order something simple and avoid the stuff that has a lot of ingredients.

  • ||

    Yes, I have a crystal ball.

    SugarFree | August 22, 2008, 4:35pm | #
    Elemenope,

    If you think calorie information being on every surface, wrapper, and employee uniform is going to stop the coming wave of food lawsuits, you got mighty high in just three minutes.

    If anything, it will become one long series of "gotcha"s. CSPI will get a sixteen Big Macs, test them all and the find one or two that come back with the wrong numbers because the teen on the line made two passes with the mayo instead of one. Press releases and calls for constant independent testing to follow. Lawsuit for false advertising. Douchebag DAs file criminal charges on behalf of some retard diabetic who took too much insulin.

    The restaurants should fight it in court until they extract some sort of immunity. The "if you don't like, don't shop there" defense should be all they need, but it seems waistlines and IQs have a inverse relationship.

  • Flex Nasty B.I.G.||

    On the one hand, I agree with Nick. On the other hand, I don't have a problem with someone suing a company for fraud. In the minarchist view, isn't it a proper role of the state to protect citizens from fraud and contract violation?

  • creech||

    Only reasonable solution is to have a Food Czar who will require all restaurants to have a certified independent laboratory on the premises where individual platters can be tested for caloric content after they leave the kitchen and before they reach the diner. Think of all the jobs that would be created!

  • the innominate one||

    If the calorie counts came with error bars and not just average values, and the average American understood the minimal amount about statistics, I have to think the restaurants would be shielded from this bullshit.

    On the other hand, Applebee's sucks.

  • Sarah||

    This is expected, not that I agree, but most of the experts agree that lawsuits and fat taxes are the best way to solve the obesity epidemic. I think the new fad diet would work best, it is called eat less and exercise.

  • Warty||

    If you eat at Applebee's, you get what you deserve.

  • ||

    More flashback!

    Anna Keppa | August 22, 2008, 10:44pm | #

    I guarantee you we'll see headlines like this in the future: "Five Hundred Pound Man Sues Over Inaccurate Applebees Calorie Count".



    Where did our Cassandra go?

  • ||

    The class-action lawsuit seeks unspecified damages from Applebee's and Weight Watchers on behalf of thousands of consumers dozens of plaintiff attorneys ....



    FIFY, Cincinnati Enquirer.

  • robc||

    If the calorie counts came with error bars and not just average values

    This. The question is, what are reasonable error bars to assume in their absents?

  • ||

    If Applebee's says one thing and then does another, that's fraud.

    Not so fast. Fraud requires, broadly speaking:

    (1) Intentional misrepresentation, that is

    (2) Reasonably relied on by the plaintiff, causing

    (3) Actual damages to the plaintiff.

    I remain unconvinced that any of those three elements has been met here.

  • Hugh Akston||

    In the minarchist view, isn't it a proper role of the state to protect citizens from fraud and contract violation?

    That view is correct in theory, but in this case it is complicated by the fact that the calorie contents were advertised only to meet a government requirement, or done "voluntarily" to stave off same.

    no-name has it right. Calorie contents should be posted in ranges, not definite figures.

  • ||

    Yes, I have a crystal ball.

    Sugar Free, Don't you just love the site search function? It is so useful in backing up the I told ya so comments.

  • ||

    The calorie counts being wrong does not prove fraud. All it proves is that these sort of variations in preparation are inevitable and not of a tortish nature. Applebee's mistake was posting the calorie counts in the first place.

    "I'll start with the Caveat salad, and then the Assumption of Risk steak with a side of Common Goddamn Sense frites."

  • ||

    Don't you just love the site search function? It is so useful in backing up the I told ya so comments.

    My birthday wish was to be more petty. It's coming true and I can't be happier. :-)

  • ||

    What about personal and organizational accountability? If the company advertises that it will do x or provide y, why shouldn't it be sued when it fails to honor its word?

    Nobody forced Applebees to display the calorie counts on its menus. In fact, it can be argued that the company was displaying calorie counts for competitive purposes.

    It goes witout saying that the state has no business imposing regulations requiring eateries to display calorie counts. That, however, is not the issue.

  • ||

    My birthday wish was to be more petty.

    Don't you hate it when you misspell your birthday wishes?

  • ||

    Don't you hate it when you misspell your birthday wishes?

    ¿Que?

  • Jeff P||

    Have you ever noticed that the "everyman" foods of burgers, pizza, and beer generate the most spirited and snobbiest disagreements?

  • ||

    So it looks like restaurants will have two choices from now on:

    a) Fire all cooks and just prepare every meal by machine in order to eliminate human error or
    b) Calorie counts should be listed as a range along with the confidence interval associated with that range. ex: 500-700 calories with 90% confidence.

  • Cabeza de Vaca||

    SugarFree,

    That's funny I instantly thought of Elemenope, when I was reading this article.

  • ||

    R C Dean-

    Some of the complaints seek relief under state consumer protection and false advertising statutes. You, I am sure, know that a plaintiff need not prove common law fraud in order to prevail under such statutues.

    I am not so sure that some of these plaintiffs can not prove common law fraud. I do not see any material hurdle on proving reasonable reliance as Applebee's promotional literature paves the way.

    Besides, Applebees sucks. Who in their right mind would ever dine at such a third rate cookie cutter chain?

  • ||

    The hell? Since when did we decide to let the market take care of fraud? Last I looked, prosecuting fraud was still a legitimate role of government in libertopia.

    If they advertise their product as having some quality, and it doesn't have that quality, that sounds like fraud to me. If I were on the jury, I don't think I'd be much swayed by the "we just can't be bothered to actually produce what we claim to produce" argument.

  • Spartacus||

    Yes, I have a crystal ball.



    Either that or the ability to foresee consequences that are, well, foreseeable. Which automatically disqualifies you from any government job.

  • hotsauce||

    RC, you don't need to copy and paste the formal elements of fraud for me b/c I know what they are. And really I don't care if this situation isn't covered by the formal definition. It's still fraud in my book. If Applebee's is going to post fat/calorie counts (if I were representing them I would not recommend doing so, and as a libertarian I don't believe they should be forced to do so), then people should be able to rely on those figures. We can talk about what reasonable range of difference is acceptable and therefore not fraud, but to suggest this isn't fraud at all is madness.

  • New World Dan||

    You might as well sue because the food doesn't look as pretty as the picture.

    However, I don't buy the argument that the Applebees menu calorie info is there to avoid government regulation. It's marketing, pure and simple.

    So the question for me is: what is an acceptable margin of error and was Applebees negligent? For starters, it's clear to me that the fat & calorie counts were produced from a carefully prepared meal according to the official spec, and not from real world preparation.

    Also, as I think about it, I eat at Applebees a fair amount and I do look at the nutritional information. And I'm completely opposed to this lawsuit. Also, I'm generally opposed to class action lawsuits. Whenever I get a class action notification, I think I'm going to start sending a response directing that my award be returned to the defendant and that they be reimbursed for pro-rated legal fees that would otherwise go to the plaintiffs' lawyers.

  • hmm||

    Fat people should not be allowed to eat out. We need a restaurant law allowing people to eat at certain restaurants per their BMI or weight/height. We can work that into the new medical bill and save millions on health care while helping fat people realize their inner thin. Instead of regulating the food we can just regulate the people. That way when the people violate the law we can toss them in "fat camp."

  • Spartacus||

    [Plaintiff Pamela] Curry's suit claims that the tilapia dish she ordered contained 14 grams of fat-more than twice the amount claimed on the menu. Another dish, the Teriyaki Steak 'N Shrimp Skewers, contained almost 100 more calories than the 370 claimed on the menu, the suit says.



    What did she do, scoop the whole dinner into a box and take it straight to the lab? How does she know that her dinner was out of spec?

  • creech||

    I used to work in the food industry. It was common practice to overweight packages. e.g. the package said 32 oz. of corn flakes but the packaging machine was calibrated to put 32.2 oz. in the box. Even so, you'd now and then get a pissed off customer complaining about low fill and only getting 31.9 oz. Customer relations would send him a coupon for a couple free boxes. All of this was before the day of class action lawsuits. Maybe Applebee's and the rest could just add 20% to the count. It's not like many patrons would care (and those who did, just put a bigger margin on the lower-calorie choices.)

  • ||

    Cabeza de Vaca,

    I wasn't really trying to smack him around. He and brotherben like to play Devil's Advocate under their own name a little too much.

    Personally, I'd love accurate carb counts for everything I ate in restaurants, but I'm not going to force them to do it and if the government is going to force them to do it, then the restaurants damn sure shouldn't be liable for the strict accuracy of something that cannot be accurate without machine precision. And this litigation is just going to be a perverse incentive for no restaurants to prove this information and fight tooth and nail for it not to be mandated. Unless deliberate fraud can be proved, Applebee's has acted in good faith and shouldn't be sued.

  • Punk||

    As human beings with reasonable intelligence, people should realize that eating at such establishments is not furthering their dietary cause. If you have medical issues that require a restricted diet, why the fuck would you be eating out? Yes, false advertising should be addressed but as with all arguments, everybody thinks the line should be drawn in a different spot. Unless authorities can prove intent, there isn't anything untoward about it.

    I say caveat emptor, mofo.

  • ||

    RC, you don't need to copy and paste the formal elements of fraud for me b/c I know what they are.

    I didn't c & p; that was from memory.

    And really I don't care if this situation isn't covered by the formal definition. It's still fraud in my book.

    Maybe, but if it doesn't meet the legal definition, then there shouldn't be a lawsuit.

    We can talk about what reasonable range of difference is acceptable and therefore not fraud, but to suggest this isn't fraud at all is madness.

    Let's just skip right past the intentionality requirement and the reasonable reliance requirement, and go straight to damages.

    What damages did any of their customers suffer because they took in a few hundred more calories, or a few grams more fat?

  • hotsauce||

    Here's my quick and dirty definition of fraud for libertopia (comments and suggestions welcome, especially from RC):

    (1) Any untrue statement of a material fact (aka material misrepresentation) or omission of any material fact necessary to make the statement made, in light of the circumstances under which they were made, not misleading (aka material omission); and

    (2) Detrimental reliance.

    I wouldn't add a reasonable qualifier in front of "reliance" b/c I assume that reliance on a material fact is always reasonable. And I would construe "detrimental" broadly to cover just about any harm.

  • ||

    If they advertise their product as having some quality, and it doesn't have that quality, that sounds like fraud to me.

    There is a common-law doctrine that basically exempts advertising claims (known as "puffery") from being fraudulent, on the theory that no sane person would take them at face value.

    If you buy a Corvette and aren't dating supermodels within a year, do you sue Chevrolet? Even though they had hot babes draped all over the guy in the ad?

  • ||

    The reliance has to be reasonable, hotsauce. You shouldn't be able to recover damages because you claim to be unusually stupid or gullible.

    And, there have to be damages that are caused by the fraud.

    Finally, there has to be some element of intentionality or knowledge (or at least negligence) on the part of the defendant. I shouldn't be stripped of assets because I made some statement that I had no knowledge was false when I made it.

  • hotsauce||

    I'm not suggesting the plaintiffs here have suffered much harm, maybe a few dollars worth at most. If were judge and jury, I would award nominal damages for actual harm and some additional amount to deter future wrongdoing.

    But damages aren't, and shouldn't be, the issue. It's a follow-up to whether this constitutes fraud, which it does.

  • bubba||

    "AS LOW AS 350 CALORIES!*"

    YMMV

  • ||

    I'm not suggesting the plaintiffs here have suffered much harm, maybe a few dollars worth at most.

    How can you argue that they suffered any harm at all?

    But damages aren't, and shouldn't be, the issue. It's a follow-up to whether this constitutes fraud, which it does.

    No, since we are talking about a court case here, damage is an essential element of fraud. The lack of compensable damages is fatal to a fraud claim.

  • Sandi||

    I took a shit at Applebee's once.

  • jhn||

    Fuck my libertarian ideals, Applebee's should be illegal on the grounds of bad taste.

  • hotsauce||

    The reliance has to be reasonable, hotsauce. You shouldn't be able to recover damages because you claim to be unusually stupid or gullible.



    We're talking about reliance on "material" misstatements and omissions. I'm not saying reasonableness isn't required, I'm saying it's assumed.

    And, there have to be damages that are caused by the fraud.



    Which is why my definition includes "detrimental" reliance.

    Finally, there has to be some element of intentionality or knowledge (or at least negligence) on the part of the defendant. I shouldn't be stripped of assets because I made some statement that I had no knowledge was false when I made it.



    Again, we're talking about "material" misstatements and omissions. Don't go around saying stuff, or incomplete stuff, if you don't know what you're talking about. Eliminating the mens rea qualifier helps ensure the burden is on the party making the statement to know what he is talking about.

  • ||

    Unless this woman died from a food allergy, as a result of an outright lie regarding the contents of the dish, I say let her boycott Applebaum's, and say bad things about them to all her friends. And toss her and her attys right out the courthouse window.

  • hotsauce||

    Let's assume for the sake of argument that Applebee's knew its fat/calorie counts materially understated the actual numbers and that customers reasonably relied on the advertised counts when they chose to patronize Applebee's instead of Friday's or Outback. Let's also assume that each customer suffered only $0.25 worth of harm.

    Applebee's generated arguably millions of dollars of incremental revenue because of its misstatements. You're suggesting the plaintiff's bar shouldn't be permitted to pursue this case because each customer only suffered a few pennies worth of harm? Even $0.01 is compensable. Give me my damn penny. And one for everyone else Applebee's suckered.

  • ||

    Of course, Applebee's and most other restaurants post this sort of thing as much out of fear of regulation by anti-fat nannies, though some of it is done precisely to lure diet-conscious patrons.

    BULL SHIT. And if you are gonna make claims like that maybe there should be some citation?

    It's more likely that he reason why many of these restaurants do it is to give health conscious people the impression that Applebee's has health conscious fare.

    That's also why they co-brand with groups like weight watchers. They want to negate the perception that Mr. Gillespie (and others) have they claim "Of course anyone eating in Applebee's should realize you can't walk out of there without packing on five to 10 pounds, or Imperial quarts or whatever." They want people to think "hey I can eat at Applebee's and still be sticking to my diet."

    The reason why they feature these calorie counts and fat contents so prominently (Friday's does the same thing as do many other chains -- and they put special icons on their menus like little hearts for low fat and healthier options) is to try and get as customers people who wouldn't normally eat there because they are watching what they eat and think eating at Applebee's means eating unhealthy food.

    Now don't get me wrong. I have no problem with them doing that, and it's a sound business decision. You want to maximize customers, and chances are the tilapia is healthier that the nachos supreme. But those fat contents, and calorie counts should be in the ballpark (it's absurd to expect them to be dead on) and based on a good faith effort to be accurate rather than erring on the side of lower fat/calories to make them more appealing.

    Instead of everything being about "nannyism" let's not ignore basic business practices. Applebee's wants more customers, and since eating healthy is very "in" right now they (and other chains like them) are trying to market to that crowd and get them in their restaurants. As they should be doing.

  • jhn||

    RC, you're wrong on damages.

    Let's say that a company advertised its products as being "fair trade" while knowing that they were not. Intentional misrepresentation that would reasonably induce reliance in a consumer who cares about such things.

    In that case as in the food one, the damages are the money spent on the food or product that was mislabeled. But for the misrepresentation, these consumers will claim that they would not have purchased the product.

    If the other two elements of fraud are met, then the damages here are clear, and Applebee's should be forced to disgorge its profits.

  • Heinrick||

    So if you were to buy a car and be shown carfax that says the car has a clean title and later find out you were lied to, or that a mecanic told you that your car had a problem and charged you to fix it and later you found out your car didn't need that work done, you would all be cool with that. That is what Appelbies did, if you make a claim to customers it should be true, and if your lying they should go after you.

  • Zeb||

    To fat people: You are fat because of your genetics and your sedentary lifestyle. Stop trying to blame other people.

  • Rhywun||

    That said, it is pretty much impossible to make a dish exactly the same way every time millions of times over thousands of different restaurants.



    Of course. The only way to get consistency is with those food bulbs they use in space. "Another tube of creamed riblets, sir?"

  • ||

    RC Dean,

    Not so fast. Fraud requires, broadly speaking:

    (1) Intentional misrepresentation, that is

    (2) Reasonably relied on by the plaintiff, causing

    (3) Actual damages to the plaintiff.

    I remain unconvinced that any of those three elements has been met here.


    I'd say you can get 2 easily. 1 is a matter for a jury - misrepresentation is a slam dunk, intentional would mean uncovering some internal memo or something. 3 - ridiculous, but in today's nanny society, being fat is actual damages.

  • ||

    or that a mecanic told you that your car had a problem and charged you to fix it and later you found out your car didn't need that work done, you would all be cool with that.

    Mechanics do that all the time, you have very little or no recourse.

  • jhn||

    Wrong, domoarrigato.

    If you reasonably rely on an intentional misrepresentation you can unwind the sale.

  • ||

    Chi Tom,

    Instead of everything being about "nannyism" let's not ignore basic business practices.

    Ok, but let the consequences be business consequences - not legal ones. If a company does things it's customers don't like, they will lose their customers. you dont have to kill the company with lawsuits.

  • ||

    If you reasonably rely on an intentional misrepresentation you can unwind the sale.

    Mechanic says, "you need a new alternator"

    you say "fine"

    it doesn't work, and the guys says, "whoops guess it was just the battery"

    you think you can refuse to pay for the alternator?

  • ||

    Once we institute the fat tax ($.15/ gram), to fund our National Compulsory Healthiness Initiative, this sort of quibbling will vanish.

  • ||

    Mechanic says, "you need a new alternator"

    you say "fine"

    it doesn't work, and the guys says, "whoops guess it was just the battery"


    The modern business model for the "Automotive Technician" (a guy who had go to trade school to learn how to change parts):

    Just keep replacing stuff until the problem (or the customer) goes away.

  • jhn||

    @domoarrigato

    If there was intentional misrepresentation then there was no contract.

    You have to pay for any *UNJUST* enrichment you received in the absence of a contract. If someone breaks into your house and paints your walls, you don't have to pay a red cent in damages, even though you were enriched. Because you weren't unjustly enriched.

    If you unwind the sale, you probably do have to give the alternator back. But you can't be forced to pay for it and keep if if you can prove there was fraud.

  • ||

    Food is an agricultural product. It is not uniform. My two ribs might have been from a pig that was a little closer to the front of the trough, and is fattier because he got more corn. The half cup of rice might be packed tighter, or undercooked if weighed. The pat of butter might have not been cut with a laser guide or swirl of olive oil might not have been measured with laboratory precision.

    In fact, you food-nannies make a meal and then run it through a lab. I defy you to make the same meal and hit the nutritional marks of the last one. I doubt you can do it with ten tries, but you call it fraud if a restaurant can't do it with 100% accuracy, in a much more hectic and fast-paced setting.

    Again, Ablebee's was stupid for posting the info in the first place, but not being able to make something like food with robotic precision is not fraud.

  • ||

    RC, you're wrong on damages.

    No, I'm not. Your example about fair trade coffee illustrates what a material misrepresentation is - one that induced the plaintiff to take action.

    It does not show that the plaintiff suffered any compensable harm.

    I'm not really interested, right now, in the issue of when "fraud" can be used as an epithet. I'm more interested in what it means in court, and when people should be sued, and what they should be required to pay if they lose the suit.

    I don't think either the coffee buyer or the Applebee's customer has any compensable damages. Ergo, there are no damages for the court to award. Meaning, in turn, that the lawsuit should not have been brought.

    hotsauce, by your 11:45 am post you are essentially assuming all the elements of fraud, which seems kinds of pointless in a discussion about whether the elements are present.

    So if you were to buy a car and be shown carfax that says the car has a clean title and later find out you were lied to, or that a mecanic told you that your car had a problem and charged you to fix it and later you found out your car didn't need that work done, you would all be cool with that.

    No, because in that case you have actual damages - the amount you paid for the unnecessary work, or to clean up the title.

  • ||

    But you can't be forced to pay for it and keep if if you can prove there was fraud.

    yours is the law school answer - the reality is that you can never prove it. As P Brooks points out, this type of business practice is so common, it's inevitable that many shops are doing it on purpose to pad the bottom line - but good luck ever proving it. My parents actually went to small claims court over a transmission issue where the facts matched this pattern - and the judge threw out our claim in ten seconds. The shop is only expected to make their best judgement, and the judge is not going to second guess over some mechanical issue he barely understands.

    I recently paid $200 for a new handlebar for my motorcycle because they said it was bent - it kept rubbing my tank at left lock. the new one still rubbed, and it turns out the issue was another part. I complained and they said, "well the bar WAS bent too"

  • ||

    domo, I'm not sure you can even get reasonable reliance very easily in the Applebee's case, although it may be the easiest one to get.

    How reasonable is it to assume that any calorie count in a restaurant meal is accurate? Not very, I would say, for the reasons SugarFree lays out at 12:19pm.

    Even being fat is damages, the plaintiff has a duty to mitigate their damages.

  • ||

    RC Dean - I'm just playing devils advocate here, but if Applebee's presents an exact number rather than a range - is it reasonable to rely on that as accurate? there is no idication of any variation. While it may seem obvious that it is hard to actually do - isn't the purpose of the claim to get consumers to rely on it?

    As far as mitigation - how can they mitigate? by eating less than a full portion? By conducting their own caloric analysis? What reasonable actions could they take to mitigate excess calorie consumption if the data they relied on is incorrect?

  • hmm||

    Even being fat is damages, the plaintiff has a duty to mitigate their damages.

    I've always wondered about that with respect to the fat cases. It shouldn't be hard to prove that sitting on the couch getting fatter over time is clearly not mitigating the damages if the damages are health and being fat. That sounds too much like personal responsibility. We can't have that.

    I'm proud to say I know very little about any of these food chain's menus. I avoid them like the plague.

  • freeforall232||

    Shouldn't the plaintiffs just be happy that they got more than they paid for?

    Pay for 7 grams of fat and get 14! What a deal!!

  • kilroy||

    To fat people: You are fat because of your genetics and your sedentary lifestyle you consume more calories than you expend. Stop trying to blame other people.

    FTFY

    Conservation of energy is a bitch!

  • hmm||

    As far as mitigation - how can they mitigate? by eating less than a full portion? By conducting their own caloric analysis? What reasonable actions could they take to mitigate excess calorie consumption if the data they relied on is incorrect?

    I mitigate what I eat all the time. Holiday meals equal longer runs. You're not mitigating calorie consumption. You are mitigating the damages.

  • ||

    hmm,

    The lead plaintiff has heart condition/chronic knee problem/fibromyalgia.

    Now what?

  • ||

    don't forget the eggshell skull rule in your answer.

  • ||

    I concur with the entirety of Chicago Tom's 11:46 am post. It is THE libertarian position.

  • hmm||

    The lead plaintiff has heart condition/chronic knee problem/fibromyalgia.

    I'm not sure if you are trying to say the calories caused these or being overweight? Or if these are conditions outside the issue of calories and weight making it harder for the person to mitigate their weight.

  • jhn||

    @RC

    Nope, you're still wrong. Spending money that you wouldn't have spent but for material misrepresentation is damages. Regular, good old fashioned money damages. You don't have to prove physical harm.

    In fraud, as in contract, you're entitled to get the benefit of the bargain. If there's a material misrepresentation, you have not gotten the benefit of the bargain. Thus, you're entitled to whatever the money difference is between what you thought you paid for and what you actually got, OR you can unwind the sale if the difference is subjective (as in this case it probably is).

    @domoarrigato

    In this context, a "law school answer" means the *correct* answer. I am aware of the difficulties of proof. That's not what we're discussing. The fact remains that if someone commits a fraud AND YOU CAN PROVE IT you don't have to pay squat.

  • ||

    hmm,

    I'm saying that mitigation of damages could mean running, but for some people the only option available is closely monitoring their caloric intake. Applebees made that impossible, while simultaneously assuring the plaintiff that they could do so. Standard Libertarian Disclaimer - this is a devils advocate position for me - just trying to advance the discussion, so no calls for ritual suicide, ok guy? There will be plenty of time for that on the Fed thread.

  • ||

    The best mitigation is Applebee avoidance.

  • ||

    jhn,

    also in this context, the "correct" answer means the "totally irrelevant as a practical matter" answer. So irrelevant that in the mechanic business, violating this principle is standard business practice.

  • ||

    Fat people should not be allowed to eat out.

    So how much is the Restaurant Bailout going to cost us?

  • jhn||

    domoarrigato,

    There are two issues here: as an abstract matter, whether it's even possible to sustain a legal action. Yes, I think it is. That's all that I was trying to discuss. The questions of proof and extent of damages are different.

    As a practical matter, don't think that you can prove (as opposed to assert) any of the necessary elements of fraud. At least, probably not to my satisfaction as a juror. I think the fatties would have eaten the food anyway.

  • highnumber||

    I am organizing a boycott of Applebee's.
    Who's with me?

  • ||

    I haven't eaten at an Applebes's in 12 years.

  • hotsauce||

    hotsauce, by your 11:45 am post you are essentially assuming all the elements of fraud, which seems kinds of pointless in a discussion about whether the elements are present.



    Fuck you, RC. I was responding to your comment about damages (see your 11:17 am post). You know, the one where you said it was relevant after I said we should be focusing on the elements on fraud. Eat a dick.

  • highnumber||

    I do not remember the last time I ate at Applebee's either, but if we make enough noise, maybe they'll think we used to eat there.

    Facebook already has four Applebee's boycott groups. Two of them are holding out until they return certain items to the menu, one is upset that Applebee's wants to remove mountaintops (?!), and the fourth was started by a guy who they fired. Clearly, the fourth is the one to join/hijack.

  • ||

    It's extremely easy to add 100 calories to almost anything, depending on what sort of sauce is where.

    Insert dirty joke about blowjobs here.

  • roystgnr||

    I hate it when the liberal sites I visit make up strawman caricatures of libertarians who don't care about corporate fraud, but not nearly as much as I hate seeing self-proclaimed libertarians live up to those caricatures. As long as you're throwing away half of "no fraud, no initiation of force" principles, perhaps it's time to reconsider the other half too? For instance, won't the market solve the domestic abuse problem by making it harder for abusers to find more dates? Besides, a black eye heals on it's own without any hospital bills, so why would a court even award any damages?

  • hotsauce||

    roystgnr, you just don't get it. The good libertarian travelers on this site just care so damn much about the current state of the law and whether the facts fit neatly into the puzzle (read: law school masturbation) that they don't have time to consider first principles. You're wasting keystrokes.

  • ||

    Not thinking a particular situation is fraud is not the same thing as saying fraud shouldn't be illegal. I know there are some fine legal minds here that can't seem to grasp that simple distinction, but that doesn't mean the distinction doesn't exist.

  • Not an asshole||

    I guess roystgnr prefers libertarians to be like the strawman caricatures of Chomsky.

    "[Libertopia]'s a world built on hatred [and endless litigation]." -chomsky

    The menus said, "substitutions or preparation and ingredient variability may cause POINTS® values and nutritionals to vary."

    Where the fuck is the fraud?

  • hotsauce||

    "Vary" implies there is a median or average around which the counts move up or down. That's how most people would read that. If Applebee's items are consistently and materially higher and do not actually "vary" as the term is understood by a reasonable person, then it's still fraud.

  • ||

    You can mitigate the damages from Applebees by either exercising or eating less later on, when/if you notice any weight gain.

    In fraud, as in contract, you're entitled to get the benefit of the bargain. If there's a material misrepresentation, you have not gotten the benefit of the bargain. Thus, you're entitled to whatever the money difference is between what you thought you paid for and what you actually got, OR you can unwind the sale if the difference is subjective (as in this case it probably is).

    Point taken, to a point.

    However, I'm having a hard time seeing how someone who has eaten and enjoyed their Applebee's meal hasn't gotten the benefit of their bargain. Same with the fair trade coffee. They got their meal, they got their coffee, they consumed it.

    Further, once you've eaten a meal or finished your cup of coffee, you can't really unwind that transaction. So that remedy isn't really available, and I think we're back to actual damages. Which there aren't any.

    Jeebus, hotsauce, at 11:17 I say, sure, let's skip right to damages, and ask what they are. At 11:45 you say let's assume damages, and then you get pissed at me for pointing out that you're assuming the conclusion.

    I'm saying there isn't even a penny of goddam damages to any of these people that can be aggregated across the entire universe of customers to make some plaintiff's bar leech rich. And "assuming" there is doesn't really deal with the issue.

    Is that clear enough?

  • an asshole||

    Besides, a black eye heals on it's own without any hospital bills, so why would a court even award any damages?

    Well, shouldn't that really depend on whether she deserved it?

  • dfd||

    So that remedy isn't really available, and I think we're back to actual damages. Which there aren't any.

    Wouldn't the damages be the difference between the value of the meal she thought she was getting and the value of the meal she got? But then the question is, what standard is used -- subjective or objective? In other words, would the court try to determine what value she would subjectively place on a higher-calorie and fat meal (including even a possibly negative value) or would it ask what value a reasonable person would put on the meal? If the former, there could certainly be damages, if the later, probably not.

  • Not an asshole||

    hotsauce,

    jesus... chomksy was right

  • hotsauce||

    It's not assuming the conclusion to say the damages are minimal, like a few cents per person and up to a few dollars. The nominal amount is from the extra calories/fat they consumes, and I could sure as hell convince a jury to put a value on that. But you keep digging your head in sand singing "la la la no damages here."

  • ed||

    Anthony Bourdain talked to Reason.tv about food strictures

    I watched one of AB's No Reservations shows the other day wherein he rhapsodized over how wonderful it was that Vietnamese peasants were still enjoying their backbreaking rice-paddy jobs...he was actually looking for a home in Vietnam where he could get up in the morning and gaze out over his domain, sip his tea, and revel in the picturesque peasants going about their grueling 14th-century agriculture. This is a humanitarian? Please.

  • roystgnr||

    I'm sure Chomsky thinks that people would prefer preventing corporate lies via regulation rather than litigation, and because many libertarians would disagree he sees that as an insulting talking point. So what rebuttal would you like to give him? "Actually, we'd rather not have regulations *or* litigation available to dissuade liars! Corporations should be able to make up whatever numbers they like to describe their products, and if you actually believe the calorie count / horsepower / house square footage / etc. then too bad for you, sucker!" Super. The last time I had this conversation, it was with a liberal who couldn't believe that libertarians might imagine a world without an FDA around to tell ketchup producers that they couldn't use rancid tomatoes. I suggested that perhaps it wouldn't be too hard to convince a libertarian judge that non-rancid tomatoes were implied by the definition of "ketchup" and that fraudulently misrepresenting the nature of the goods you sell would be a crime even in "libertopia". Apparently I was wrong. If I can't even convince the folks here that *explicitly* misrepresenting your products should be a tort, I guess trying to hold anyone accountable for implied merchantability is pretty much out of the question, huh?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement