Fat Chance


Last week U.S. District Judge Robert Sweet allowed two overweight New York teenagers who blame McDonald's for making them fat proceed with their lawsuit against the fast food chain. Sweet rejected the company's motion to dismiss the complaint on the grounds that it did not adequately describe a cause of action. He had twice dismissed the suit for that reason, but the second time around an appeals court concluded that attorney Samuel Hirsch, who seems to be learning his trade as he goes along, had alleged something resembling a claim under a New York consumer protection law that forbids deceptive advertising. On remand, Sweet asked Hirsch to cite specific ads and explain how the plaintiffs, Ashley Pelman and Israel Bradley, were injured by relying on them. Satisfied that Hirsch had met this minimal requirement the third time around, Sweet is letting the case, which aspires to be a class action, continue to the next stage. McDonald's now has 30 days to respond to Hirsch's complaint.

The plaintiffs claim McDonald's misleadingly implied its food was healthy, did not adequately disclose the use of additives, and did not follow through on its promise to provide nutritional information at its New York City outlets. Assuming the case goes to trial, they will have to show that these alleged actions and omissions caused them to eat at McDonald's when they otherwise would not have and that eating at McDonald's caused their "physical injuries of weight gain, obesity, hypertension, and elevated levels of LDL cholesterol." This is a tall order, especially for a lawyer who needed three tries to state a legally valid claim.