A judge from the U.S. Court of International Trade, sitting by designation in a New York federal district court, has determined that the obesity-related claims filed in 2002 against McDonald’s Corp. cannot be pursued as a class action. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., decided October 27, 2010). Essentially, the court found that individual causation issues predominated over common ones and that, as to any common issues, the plaintiffs had failed to show that the putative class was sufficiently numerous for the court to certify an issues class. A spokesperson reportedly indicated that the company was pleased with the decision, stating, “As we have maintained throughout these proceedings, it is unfair to blame McDonald’s for this complex social problem.” Teenagers alleging obesity-related health problems claimed that they were misled by the fast food chain’s deceptive advertising into believing that the food could be consumed daily without any adverse health effects.…
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Twenty-seven waiters, busboys and others at New York City’s Del Posto restaurant have reportedly filed a lawsuit against owner Mario Batali and partners Joseph and Lidia Bastianich, claiming that they were not paid a legal wage. The plaintiffs allege that the restaurant’s managers pooled workers’ tips in violation of state labor laws and wrongfully withheld a portion of the gratuities on wine and cheese sales. The tip pool was allegedly divided on the basis of a point system, and the plaintiffs also reportedly contend that staff working banquets did not get their proper share of the service charge billed to customers, instead receiving a flat fee. The suit, which is at least the third involving a Batali-owned facility, seeks back pay, unspecified damages and attorney’s fees. See msnbc.com, October 12, 2010.
Darden Concepts, Inc. has filed a trademark infringement action against a TGI Friday’s franchisee located in San Diego, California, alleging that its use of “Never Ending Shrimp” to promote one of its menu offerings infringes the “Never Ending Pasta Bowl” mark that Darden has registered and used in its Olive Garden restaurants for 15 years. Darden Concepts, Inc. v. Briad Restaurant Group, L.L.C., No. 10-2077 (S.D. Cal., filed October 6, 2010). Darden alleges that use of the “Never Ending Shrimp” mark has the potential to confuse the public and will mislead consumers to believe that TGI Friday’s restaurants are affiliated with Darden’s Olive Garden and Red Lobster restaurants. Darden alleges violations of federal and state law and seeks injunctive relief, all profits and damages resulting from defendant’s infringing activities, treble damages, attorney’s fees, and costs.
A number of Burger King Corp. franchisees in California have filed a complaint for declaratory relief in federal court, claiming that the company has no basis for demanding that they pay the cost of settlement or its attorney’s fees and costs in a recently settled disability discrimination lawsuit. Newport v. Burger King Corp., No. 10-4511 (N.D. Cal., filed October 5, 2010). They seek an order declaring that Burger King is not entitled to indemnification as well as attorney’s fees and costs. According to the complaint, Burger King has demanded indemnification for a settlement it reached over complaints that its restaurants were not accessible to the disabled. “If the Plaintiff franchisees do not pay BKC’s unfounded demand, BKC threatens to ‘terminate’ their franchise agreements, engage in self-help by withholding money owed to the franchisees, and/or otherwise retaliate against franchisees by preventing them from obtaining new restaurant opportunities or limiting to whom they…
First Lady Michelle Obama recently urged restaurants to offer healthier fare to help reduce “obesity-related conditions” in the United States. Speaking before the National Restaurant Association on September 13, 2010, Obama said “that while restaurants are offering more options and families take advantage of them more often, they aren’t always the healthiest choices.” Asserting that Americans spend half of their food dollars for meals outside the home, she reportedly called on restaurants to use “creativity to rethink the food you offer, especially dishes aimed at young people.” She suggested substituting wheat pasta for white pasta, cutting the amount of butter or cream, serving 1 percent or skim milk, and offering healthy side dishes like apple slices or carrots as the “default” menu choice. Obama also urged restaurants to actively promote healthy foods to children. “It’s not enough just to limit ads for foods that aren’t healthy,” she said. “It’s also…
Renowned restaurateurs Mario Batali and Joseph Bastianich have reportedly been sued by workers in their East and West Coast restaurants. A complaint filed in late July 2010 by current and former employees of New York City’s Babbo Ristorante e Enoteca was amended to include a class of employees who work in five additional east coast eateries. They reportedly allege that the Batali-Bastianich enterprise “unlawfully confiscated a portion of their workers’ hard-earned tips in order to supplement their own profit. At the end of every shift, instead of distributing customers’ credit card tips to the workers who earned them as the law requires, Mr. Batali, Mr. Bastianich, and their restaurants took from the tip pool an amount equal to approximately 4-5% of the restaurants’ wine sales (and sometimes other beverage sales) for the night and put it in their own pockets.” The New York plaintiffs are apparently seeking class certification and…
Three elected San Francisco officials recently introduced legislation to amend the city’s health code by restricting restaurant toy giveaways to only those meals that meet stringent nutritional guidelines. The Healthy Food Incentives Ordinance (10196) would apply to all San Francisco restaurants, but mostly affect fast food establishments that offer toys linked to the purchase of meals targeted to children and high in calories, salt or fat. In April 2010, Santa Clara County, California, became the first local government to enact a similar measure, highlighted in Issue 347 of this Update. The proposed San Francisco measure would prohibit restaurants from offering an “incentive item” such as toys, trading cards or admission tickets with a single menu item containing more than 200 calories or 480 milligrams of sodium or an entire meal containing more than 600 calories or 640 milligrams of sodium. Another stipulation calls for toy giveaway meals to provide no…
The Center for Science in the Public Interest (CSPI) has called on three national restaurant chains to follow the steps of other food establishments by no longer using artificial trans fat in their fare. “Bob Evans, White Castle, and Long John Silver’s are now the roguish outliers among the restaurant industry,” said CSPI Executive Director Michael Jacobson. “Many Americans might have thought that the era of artificial trans fat was over. At these chains, it lives tragically on.” Artificial trans fat has been dropped by chains, including McDonald’s, Burger King, Wendy’s, and Starbucks. The American Heart Association recommends limiting consumption of trans fat to no more than 2 grams per day that comes naturally from sources such as milk and beef, which “doesn’t leave much room for trans fat from artificial sources,” said CSPI. See CSPI News Release, April 26, 2010.
The California county that helped lead the national push for menu labeling has reportedly approved an ordinance (NS-300-820) that would prohibit restaurants from using “incentive items” to promote meals deemed high in calories, salt or fat. The Santa Clara County Board of Supervisors apparently voted 3-2 on April 27, 2010, to set nutritional standards for restaurant food that comes with such giveaways as toys, games, trading cards, admission tickets, or any other consumer product, “whether physical or digital.” The measure declares that restaurants cannot link incentives to (i) meals that exceed 485 calories or 600 milligrams (mg) sodium; (ii) single food items that exceed 200 calories or 480 mg sodium; or (iii) beverages that contain caffeine, added nonnutritive sweeteners or more than 120 calories, or derive more than 35 percent of their total calories from fat or 10 percent from added caloric sweeteners. In addition, meals or food items offering…
The Public Health Advocacy Institute (PHAI) recently posted a case study that discusses the process which led to the adoption of a restaurant calorie disclosure law in New York City. Funded by the Robert Wood Johnson Foundation’s Public Health Practice & Policy Solutions, the case study focuses on threats of litigation that arose throughout the law’s development and adoption, noting that public health officials considered this possibility early in the process and ultimately prevailed by adopting a broad-based law that survived legal challenge. The article relies on media coverage, legislative materials, scholarly articles, legal filings, and judicial opinions to recommend how other local authorities can prepare to support similar initiatives. While “interviews with opponents were not conducted,” the author did consult in-depth with the law’s proponents in preparing the analysis. PHAI is headed by anti-tobacco attorney and law professor Richard Daynard. It has conducted a number of conferences for lawyers,…
