Answering a question certified by the Ninth Circuit Court of Appeals, a divided Washington Supreme Court has determined that a deputy sheriff who was served, but did not consume, a Burger King hamburger contaminated with an employee’s spit, may recover under state product liability law for emotional distress, “but only if the emotional distress is a reasonable reaction and manifest by objective symptomatology.” In re Bylsma v. Burger King Corp., No. 86912-0 (Wash., decided January 31, 2013). The deputy had alleged ongoing emotional distress, including vomiting, nausea, food aversion, and sleeplessness, symptoms that purportedly led him to seek treatment from a mental health professional. So ruling on a matter of first impression, the court majority agreed with the deputy sheriff that the Washington Product Liability Act allows recovery for emotional distress damages absent physical injury. The federal district court which had considered the deputy’s claim, dismissed it on the ground…
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A federal court in California has reportedly approved the settlement of wage-related claims in a class action filed by restaurant managers against Benihana National Corp., which owns and operates a Japanese hibachi steakhouse chain. Akaosugi v. Benihana Nat’l Corp., No. 11-1272 (N.D. Cal., settlement approved January 24, 2103). The company has apparently agreed to pay $660,000, including attorney’s fees and costs, to settle claims that it forfeited managers’ accrued vacation and failed to compensate them for it, forced them to work more than eight hours a day without paying overtime, failed to provide meal and rest breaks, and failed to provide accurate wage statements. See Mealey’s Class Actions, February 1, 2013.
Burger King has reportedly dropped one of its suppliers after finding traces of horse DNA in beef provided for sale in the United Kingdom and Ireland. The restaurant chain apparently tested its own products in the wake of a Food Safety Authority of Ireland (FSAI) investigation that allegedly found horse DNA in beef patties and meals linked to three processing plants, one of which apparently received its product from a Polish distributor. “Our independent DNA tests results on product taken from Burger King® restaurants were negative for any equine DNA. However, four samples recently taken from the Silvercrest plant have shown the presence of very small trace levels of equine DNA,” said a company statement on PR Newswire. “This product was never sold to our restaurants. Within the last 36 hours, we have established that Silvercrest used a small percentage of beef imported from a non-approved supplier in Poland. They…
In addition to a lawsuit filed in Illinois and two filed in New Jersey, a fourth has been filed against Subway Sandwich Shops Inc. in Pennsylvania, alleging that the company’s “Footlong” sandwich “consistently measures significantly less than twelve inches in length.” Roseman v. Subway Sandwich Shops, Inc., No. 130102647 (Philadelphia Cty. Pa. Ct. Com. Pl., filed January 24, 2013). Information about two of the other lawsuits appears in Issue 468 of this Update. The Pennsylvania complaint alleges that this size discrepancy “is not an accident” and that the company knew about the discrepancy “since Subway named its large sandwich the ‘Footlong’ sometime prior to January 24, 2007.” Seeking to certify a class of all persons who purchased a “Footlong” sandwich from a Pennsylvania Subway restaurant since that date, the plaintiff, a New Jersey resident who purports to work in Pennsylvania and regularly purchased the disputed sandwiches in Philadelphia, alleges violations of…
McDonald’s Corp. and a franchisee that owns a Dearborn, Michigan, restaurant which purported to sell halal chicken products have agreed to settle complaints that some of the products sold to consumers were not prepared according to Islamic law. Ahmed v. Finley’s Mgmt. Co., No. 11-014559-CZ (Wayne Cty. Cir. Ct., Mich., hearing held January 18, 2013). While denying any liability, the defendants will post notices about the settlement in two area restaurants, at area mosques and in several other locations. The settlement amount is $700,000, including attorney’s fees and an incentive award for the plaintiff. The net proceeds will be distributed to a health clinic and to the Arab American National Museum in Dearborn. According to plaintiff’s counsel, “McDonald’s from the very beginning stepped up and took this case very seriously. They made it clear they wanted to resolve this. They got ahead of the problem.” See The Washington Post, January…
As consumers around the world have begun posting images online of their Subway “footlong” sandwiches with rulers showing that the restaurant’s offerings are actually 11 or 11.5 inches in length, several have taken their claims to court. Buren v. Doctor’s Assocs., Inc., No. 13 498 (N.D. Ill., filed January 22, 2013); Pendrak v. Subway Sandwich Shops, Inc., No. ___ (N.J. Super. Ct., filed January 22, 2013). Plaintiff Nguyen Buren filed his lawsuit in a federal court in Chicago, claiming that his sandwich was less than 11 inches long and alleging a “pattern of fraudulent, deceptive and otherwise improper advertising, sales and marketing practices.” New Jersey residents John Farley and Charles Pendrak allege in state court, “Despite the repeated use of uniform language by Subway stating that this sandwich is a ‘footlong,’ the product in question is not, in fact, a foot long. Rather this product consistently measures significantly less than…
The Center for Science in the Public Interest (CSPI) has released its 2013 “Xtreme Eating” report, which singled out restaurant foods that are allegedly laden with excessive calories, fat and sodium. Claiming that some restaurants seem to “scientifically engineer[] these extreme meals with the express purpose of promoting obesity, diabetes, and heart disease,” the report condemns menu items from The Cheesecake Factory, Maggiano’s Little Italy and other retailers that in some cases purportedly contain as much as “four-and-a-half days’ worth” of recommended fat and more than a day’s worth of recommended calories. “I hope the Obama Administration promptly finalizes overdue calorie labeling rules for chain restaurants,” said CSPI Executive Director Michael Jacobson. “Not only do Americans deserve to know what they’re eating, but, as our Xtreme Eating ‘winners’ clearly indicate, lives are at stake. And perhaps when calories become mandatory on menus, chains will begin innovating in a healthier direction,…
A woman who formerly worked as a LongHorn Steakhouse server has asked a federal court for permission to modify her motion for a collective action under the Fair Labor Standards Act following the court’s denial of her motion in December 2012 on the ground that she lacked personal knowledge as to practices at the company’s steakhouses across the country. Velez v. GMRI, Inc., No. 12-4857 (N.D. Ill., filed January 14, 2013). The suit involves claims that the defendant failed to pay minimum wages. As part of her motion, the plaintiff seeks leave to amend her complaint “both to correct the LongHorn corporate entities brought in as defendants, and to clarify the claims brought under the collective procedure.” According to the motion, “the only claim on which Plaintiff seeks collective treatment is the claim that Defendants required tipped employees to perform non-tipped duties while paid the tip-credit wage rate, in violation of…
The U.S. Equal Employment Opportunity Commission (EEOC) has filed a consent decree with a federal court in Texas to resolve claims that a Burger King franchise operator discriminated against a former cashier on the basis of religion. EEOC v. Fries Rest. Mgmt., LLC, No. 12 3169 (N.D. Tex., filed January 16, 2013). Without admitting liability, the operator has agreed to settle the claims by paying $25,000 to the former employee, who was allegedly fired for wearing a skirt on the job as required by her Pentecostal Christian religion, in two checks: one for $5,000 attributable to wages, and one for $20,000 attributable to claims of mental anguish and suffering. The Burger King franchisee will also post on employee bulletin boards “its policy against religious discrimination and duty to accommodate” and “conduct an annual training session [in 2013 and 2014] for all district managers and general managers for Defendant’s Texas Burger King Restaurants,…
A recent article in The New York Times has highlighted the efforts of Fast Food Forward, a campaign seeking to unionize fast-food workers in New York City. According to Times labor and workplace reporter Steven Greenhouse, the campaign has worked with 40 full-time organizers with the support of community and civil rights groups to recruit employees at fast-food restaurants across the city and coordinate a walkout in protest of low wages “and retaliation against several workers who have backed the unionization campaign.” In particular, Greenhouse notes the many challenges facing the nascent initiative, which has not yet decided on an overall strategy or mechanism for pursuing unionization. Labor experts and companies also emphasized that the high turnover in most fast-food positions makes organization difficult. “It’s a fairly high-turnover position, so there’s never been a successful union effort,” said one spokesperson for Domino’s Pizza. “People who are doing this part time,…
