How to Feed a Lawyer (and Other Irreverent Observations from the Legal Underground)

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So no doubt you support the Congressional and state legislation meant to stop such suits, right? Because, after all, they're so silly, and we might as well nip them in the bud so defense lawyers can stop scaring their corporate clients, right?


Ted: You've heard the phrase "making a mountain out of a molehill"? That's what I think about that legislation. Do the corporations suffering from these hundreds of lawsuits--I'm sorry, ten lawsuits, according to the article--need something other than the protections that are already afforded them by the law, e.g., the right to remove certain cases to federal court; the right to file a federal or state-equivalent Rule 11 motion; the right to file a motion to dismiss; the right to file a motion for summary judgment? Legislation isn't necessary. Watch what happens when restaurants are sued solely for making people fat: not much will happen. (By the way, how many defense firms are on record supporting the legislation?)


Nice rhetorical bait-and-switch, since we both know that the strategy behind the obesity lawsuits is not to sue "restaurants solely for making people fat" but to concoct some consumer fraud theory by which food producers can be held liable for societal obesity in a show trial where the causation element mysteriously disappears from the elements of proof. Are you as dismissive of the latter category of lawsuit, which is what the NYT article focuses on? You very carefully carved it out of your initial post.


Ted: "Rhetorical bait-and-switch" is my middle name. Seriously, though, I meant to carve it out, whether very carefully or not. I believe any corporation that intentionally lies to its customers in order to make money gets what's coming to it. I don't know how this general principle would apply specifically to the restaurant/food industry. Have they been intentionally lying to their customers to make money?


Ah, so after all that, you come out in favor of the obesity lawsuits, which claim that restaurants should be liable for the nation's obesity because of purported lies; those are just cases of corporate America (or, at least, the little old ladies who were foolish enough to have stock in their retirement portfolio) getting what's coming to it. And if the lawyers collect a few billion in bounties for bringing the supposed miscreants to justice? So be it.


Ted: From now on, I'll let you write my comments as well as yours, since you are so adept at placing words into my mouth. I'm referring, course, to your last comment, in which you attributed to me things I never said. But all's fair (well, almost) when two attorneys are being advocates in support of contrary positions.

I'll say it again: as a general rule, I'm not in favor of obesity lawsuits. Whether a consumer fraud case exists against a particular defendant for a particular set of facts, I can't say.

By the way, as for attorneys' fees, I wouldn't deny the right of any lawyer to make a living, plaintiff or defense. But billions?--that's the tobacco litigation again, and I think it's a silly comparison. I do know, however, that the defense bar has apparently found a way to live high off the hog on the "threat" of this litigation. Is this money well spent or money down the drain? We'll know in a few years, I guess.


As for money down the drain, what social benefit did plaintiffs' lawyers bestow upon society that merited their payout?

Once tobacco companies are bled dry, plaintiffs' lawyers will go after other corporations that sell products consumers want. And it's a lottery: all it takes is one outlier judge with one outlier jury to set the precedent, a handful of other judges and juries follow through the breach, and before you know it, there's a tipping point, and it's socially acceptable to redistribute money from Big Food to Trial Lawyers Inc. Can anyone blame businessmen faced with this mandatory Russian roulette game for wanting to practice defensive restauranting?


Ted: I just don't think it's going to happen as you describe. However, if businessmen want to practice defensive restauranting, that's their decision to make. Then, as I said, we can all wait and see whether it was money well spent. (If by "defensive restauranting" you mean generally behaving in a more health-conscious manner, I don't think that's a bad thing, by the way.)


Are obesity lawyers going after Big Food for selling French Fries? Are big fat food lawyers advising their clients to offer Freedom Fries, in the name of defensive restauranting? And, aren't lawyers on both sides just salivating over supersized fees?


I'd also like to note a couple of the cases they mentioned in the article:

1. McDonalds was sued for failing to disclose the beef fat in their french fries. This is only part of the truth. The reason they were sued is because the claimed that the french fries were vegertarian and some Hindus (who cannot eat beef or any beef byproduct) ate the fries, under the belief that there was no meat in them.

2. The makers of Pirate's Booty were sued for understating the fat grams in their product. Well, gee, isn't that against food labeling requirements? They act like this is the result of greed. Yeah those greedy bastards. They actually had the gall to get pissed off when the nutrional information they relied on was intentionally incorrect.


1) There are suits against french fries pending in California, as overlawyered documents.

2) If Pirate's Booty literally misreprented fat grams in their product, a la the famous Seinfeld yogurt episode, that's certainly actionable. One has to be amused by last summer's similar Florida lawsuit against an ice cream manufacturer with a similar problem that was resolved with ice cream coupons.


Like Kramer's personal injury claim against Bigbucks Coffee was settled with a lifetime supply of free lattes, against the better judgement of his lawyer, Jackie Chiles.


Of the bona fide anti-fat lawsuits (i.e., those lawsuits NOT filed under various other theories, such as the Hindu beef fat case or the lying about fat grams case), how many actually reached a jury without being tossed out on summary judgment? The answer to that question (which I think we all know) also tells us how important it was for our federal and state legislators to "take immediate action" to stop these actions in their tracks, so to speak. It's obvious to me, as a civil defense lawyer, that all this legislative action was unnecessary, tax dollar-wasting, overkill. It accomplished absolutely nothing. The legislators who supported it are as worthy of ridicule and scorn as the lawyers who filed these lawsuits.

I would love for one of these cases to reach a jury, though. How did these lawyers ever think they could prove causation? Just imagine the fun a defense lawyer would have first deposing and then cross-examining an overweight plaintiff on all the hundreds of other activities em engaged in (and all the millions of other things em ate) for the past decades of em's life, to prove that em's current weight was not caused purely by eating McDonald's hamburgers.


UCL, a judge in a certain county that I'll leave unnamed just awarded $10.1 billion on a theory against a tobacco company indistinguishable from various obesity theories. Without any showing of causation or reliance--or, indeed, personal injury.

Your criticism rests on the presumption that every judge in the country will correctly apply class action law in good faith. If that presumption was correct, your criticism would be apt. But the empirical evidence is quite clear that that does not happen, and that, with a potential multi-billion-dollar payday, it is worth it to plaintiffs' lawyers to keep trying with different judges until they get the desired result.

It's of little solace to the Russian Roulette player that he has won four out of four times if he's required to keep playing -- even if it's a 100-chamber gun instead of a six-chamber gun.

George Wallace

Unrelated to the merits of this discussion: Apologies for the excessive number of Trackback pings that have been sent from my post linking to this one, Evan. TypePad is acting eccentrically today, and seems to have re-pinged you each time I've made a minor correction to the linking post. Feel free to delete the surplus.


"a judge in a certain county that I'll leave unnamed just awarded $10.1 billion on a theory against a tobacco company indistinguishable from various obesity theories."

I don't know what that sentence means. I do know that it does NOT mean that there is a single case out there which allowed a bona fide "fat food" lawsuit to even make it to a jury.

So far, Ted, and with all due respect, I'm having trouble distinguishing your criticism from the chain emails I get about fake lawsuits that never happened. I think my favorite was the burglar who broke into someone's house, got locked in the garage, and sued the homeowner because he almost starved to death. And according to my ignorant friend, "He won $23 million!!!!!!"


UCL, I see you don't want to discuss this seriously since you're resorting to puerile insults while simultaneously bragging about your ignorance about what's happening in tort law (not to mention the apathy of not even doing a google search for --10.1 billion tobacco lawsuit-- to attempt to be able to communicate about this intelligently if you're not up to speed). Suffice it to say there was once upon a time when tobacco lawsuits were oh-for-four. I knew Snopes before there was a snopes.com, and I can assure you that what's pending against Altria right now is not the fictional case of the Winnebago on cruise control.


For some reason, the 800 lb gorilla of the fast food industry, McDonald's, is on some kind of crusade against obesity. Note to obesity lawyers--Keep Moving. (read more)


Yes, Abnu, McDonald's has introduced Happy Meals for adults, which contain a salad, bottled water, and a pedometer. More here. As the McDonald's lawyers told the senior executives: "A Happy Meal each day helps keep lawsuits away."

Even better: I have it on good authority that if you already own a pedometer, for an extra 50 cents McDonald's will happily substitute a large chocolate shake. Health consciousness with a smile!

Meanwhile, the sinister marketing geniuses who devised the McDonald's plan are now working on an even bigger problem: How to cure alcoholics by luring them into local taverns. Stay tuned!


Ted, I certainly didn't mean to insult you. I frankly do not feel very sorry for tobacco defendants. The industry brought this on-slaught onto itself by having its top CEOs perjure themselves before Congress.

But my main point is a very simple one: what's the big deal about obesity lawsuits? They're ludicrous. They've been tossed out by the courts. Do you honestly believe we need legislation to combat them?


The problem with obesity law suits is not what lawyers think of them, but what the Joe and Sue citizen think of lawyers after these type of suits are filed. We should as a community of lawyers be able to line up and flog the individuals who think of such garbage. The papers love it and our only defense is to talk about it among ourselves on web sites such as this.

Federalist No. 84

UCL wrote: "[W]hat's the big deal about obesity lawsuits? They're ludicrous. They've been tossed out by the courts."

Since you are the UCL, you know how much it costs to take a case to MSJ. Those legal fees add up. Does a company have to take a case all the way to trial before preemptive legislation is needed?

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