May 4th, 2016

Dunkin’ Donuts Sued Over “Meager” Jelly in Doughnuts

Dunkin’ Donuts finds itself in sticky trouble today as suit was filed against it for failing to put enough jelly in its jelly doughnuts. The class action, filed on behalf of all similarly aggrieved individuals, was filed by local attorney Harlan Wittenstein.

Charging that the doughnuts are no longer “jelly filled” as they used to be, but are now merely “jelly flavored,” Wittenstein said, “Consumers are sick and tired of being short-changed on the jelly.”

Wittenstein admitted that the recent Starbucks lawsuit over putting too much ice in the iced coffee was the inspiration for going forward with the food-fleecing lawsuit. “If Starbucks can be sued for putting too much ice in the iced coffee,” he continued, “then certainly Dunkin’ can be sued for not enough jelly.”

“I mean, let’s face it,” Wittenstein said comparing the two suits, “you can always ask for less ice in the coffee cup, but how the hell are you going to get more jelly in the doughnut?”

For the past 10 years, plaintiff Beignet Sinker has purchased jelly doughnuts from Dunkin’ and found herself repeatedly chagrined by the diminished jelly, according to the suit. So rather than buying her doughnuts elsewhere, Sinker decided to take legal action.

The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

The suit calls for $42 million in damages on behalf of herself and the millions of Americans who have purchased a Dunkin’ jelly doughnut over the past 10 years.

The defective jelly issue is very well known to Dunkin’, as this NSFW viral 2012 video from Angry Grandpa makes abundantly clear.

In an email to me, a Dunkin’ spokesman said he was aware of Sinker’s suit, but that they had not yet been served with the papers. He went on to say, “We put exactly the amount of jelly in our donuts that we think they deserve. If Sinker doesn’t like it, she can start her own donut store. We’ll be happy to open a franchise next door to see who is favored by the public. We’ll even give away free samples for awhile to make sure people taste ours.”

The Dunkin’ spokesman also insisted that if he was being quoted, that doughnut be spelled “donut.”

The suit looks to me like a good one. It’s about time, after all, that consumers spending hard-earned money get what they paid for — more jelly in our doughnuts.

While some may want to demonize this suit as part of the problem of overzealous lawyering, perhaps we should step back and salute this woman for her courage taking a stand and risking her name and reputation taking on this giant food conglomerate.

Dunkin’ Brands, after all, also owns Baskin-Robbins, which has been rumored to face accusations of diminishing chip size in its legendary chocolate chip ice cream. A success with either Starbucks or Dunkin’ would seem to benefit millions of consumers in a wide variety of claims against food-fleecing companies affecting the quality of their purchases.

Addendum: The Great Jelly Donut Parody (Hey, why’d you do dat?)

Addendum 2: Starbucks Iced Coffee Lawsuit – A Rebuttal

May 3rd, 2016

Big Law v. Small Law (Which is Better?)

Last week while out on the ball field, I couldn’t help but notice the names of the sponsors on the team uniforms. The match-up was a classic one, my firm against Akin Gump: BigLaw v. SmallLaw.

And it got me thinking about a subject I’ve never broached here: What kind of firm does the client want, a big one or a small one?

The subject comes up often on the consumer end of the law — personal injury, criminal defense, immigration, matrimonial, etc. The client can go with the small 1-3 lawyer firm or the much bigger outfits. (Bigger in this type of law is 20 or more. We aren’t talking hundreds or thousands of lawyers.)

Will your case get individual attention, or be one of thousands of injury/immigration/whatever cases that the firm handles, assembly-line style? Some people like small firms with personal attention, and others like larger firms. It’s a matter of personal preference.

So here’s my perspective, from the small law side as a solo practitioner for the last 25+ years, and it comes from litigating against many Big Law firms: The bigger the firm, the more likely that this matter is not a client but a file. At 5:00 o’clock the partner in charge may yell out, “Yo Lisa, here’s the Smith file, please read it and take the deposition tomorrow.” Or perhaps, “Go pick a jury.”

What is often missing on the Big Law side is continuity. If the same person handles the file from soup to nuts, then many small details are appreciated. The client is not a file with an injured shoulder, but someone who had a passion for cooking who can’t lift heavy pots and fulfill her dream of opening a catering business. Innumerable details from client meetings and depositions can more easily be retrieved when necessary at trial, because they were learned over the course of a few years, not over the course of a weekend.

Given that law firms are likely to grow and consolidate in the future as larger firms try to cross state lines by acquiring smaller practices in other states, this is not an insignificant issue. The bigger the firm, the more institutionalized it is, the less likely there will be personal attention to the client and to the details.

On the flip side — and I need to always appreciate that other side — if the firm is small there will be inevitably be scheduling conflicts for which other lawyers are needed. The lawyer you hired may not be able to handle a certain conference or deposition because s/he is engaged elsewhere. But this merely puts the clients where they would have been anyway with a larger firm, with a new lawyer handling a particular aspect of the case.

There are some clients, of course, who simply like the comfort of Big. But big doesn’t mean better, particularly in law. Clients don’t want to be treated like files, but like people.

Personal service is vanishing in the country. From outrageous treatment on airlines, to godawful voicemail systems that won’t let you find a human to speak to big box stores with no sales help.

But this is law, which is very much a profession of service. There are no shortcuts. Big won’t get you more.

And, just for the record, about those uniforms and that game:

This is the kind of advertising that I like; and
Small Law won the game.

April 13th, 2016

Let’s Go for a Horsie Ride…(And Fall Off)

Ridin-Hy promo image from its website

Today we go horseback riding at the Ridin-Hy Resort. So put on your cowboy boots and climb into the saddle at my little stable.

Wait! Is the saddle secure? I know, you’ve only had a grand total of 10 hours of horseback riding experience in your life, but isn’t that enough to know that the saddle may slip and you might fall to the ground?

Isn’t that what assumption or risk is all about! It’s a horse: everyone knows they kick, they toss people, sometimes folks get hurt!

You’re not going to blame me for flopping off the horsie on the beginner ride, are you?

What do you mean you want to sue me because you got hurt? So your saddle slipped. It can happen. You must have been sitting on it wrong! Here’s how our funny judge wrote about you:

As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record in this motion in limine if the saddle came off of the horse but the plaintiff certainly did.

Huh? Whaddya mean, judge, that I can’t show the jury the release she signed! I know, in New York we can’t get cases like this dismissed by having the participant simply sign a waiver absolving me of negligence, as that would violate the law and be against public policy.

But look, that risk was right here there in our release that you signed! OK, well maybe that particular risk isn’t really spelled out, but shouldn’t we show the release to the jury anyway so that the jury might get the gist of it? The judge summarized my argument well!

“The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall…”

OK, I see judge. You’re going to keep this release away from the jury because our injured rider was still a rookie, or at least, the jury gets to determine that:

[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct’ ” (Decision: Boland v Riding High Dude Ranch, Inc.)

So maybe next time I’ll put this into the release — that the saddle may slip — so that riders are aware of the problem and can recognize problems before they get hurt?

Perhaps I’ll get that Turkewitz fellow to write me a better release — one that isn’t just poorly designed to dissuade lawsuits and gets chucked as being against public policy — to actually educate participants in the sporting activity they are undertaking. So they are less likely to get injured to begin with.

Like he did here with his trail race, whose release and waiver he once crowd-sourced on his blog.

Because in order to assume a risk, one has to actually have an awareness that the risks exist.

April 5th, 2016

Non-Driving Text Sender May Be Liable in Crash

Query: If you’re not the driver of a car, can you be held liable for a collision that occurs when the recipient reads and responds while driving?

Answer: Quite possibly, yes.

In a case last month, not previously reported in any media, a Pennsylvania Court of Common Pleas judge wrote that if the sender had reason to believe that the recipient would read the text while driving, s/he could be held responsible in an ensuing accident.

This horrible distracted driving case apparently arose when Laura Gargiulo took a text from her “paramour” Timothy Fend, and while distracted, hit a motorcycle ridden by Daniel Gallatin. Gallatin was pinned under the vehicle, dragged 100 feet and killed.

In addition to suing the driver and owner of the offending vehicle, the Estate sued the texter, Fend.

The Court noted that there was only one other case in the nation that dealt with the subject, in New Jersey in 2013. In Kubert v. Best, the NJ appellate court held, in a matter of first impression in the country, that under certain limited circumstances it was possible to hold the texter liable. T’he court wrote:

The issue before us is not directly addressed by these statutes or any case law that has been brought to our attention. We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

It was this theory that the Pennsylvania court explicitly followed, quoting the NJ court in writing that, “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

The decision of Judge Hodge is here:Gallatin-v-Gargiulo

Does this mean that the texter will be liable? No, it doesn’t.

The motion came on as part of, what PA lawyers call, a preliminary objection or demurrer. This is similar to the motions to dismiss made in NY practice that are based solely on the filed Complaint. It isn’t a question of whether the texter will be liable, but rather, if you take all the allegations in the Complaint and accept them as true, is it possible that the defendant is liable? Or should the case be dismissed forthwith because the concept is hopeless? (The defamation cases against me were both dismissed this way.)

Citing not only to the Kubert case from NJ, but to Section 876 of the Restatement (Second) of Torts, the PA court said that alleging the texter was acting “in concert” with the tortfeasor gets the complainant over the legal hurdle:

Section 876 – Person Acting in Concert

For harm resulting to a third person from the tortious conduct of another, one is subject toliability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his ownconduct, separately considered, constitutes a breach of duty to the third person

So, will a jury one day find the “paramour” liable? My guess here from the cheap seats: It will depend on what those texts actually said, and if he had actual knowledge that his friend was texting him and driving at the same time. Remember, those allegations are only that, allegations. This case has not gone through any discovery yet and there are no details of what was said (if anything).

Is there another lesson in here other than lawyers jockeying over potential liability? Why yes, there is.

Distracted driving kills, which is why self-driving cars will make our roads safer (and kill off much of the personal injury bar). So don’t tempt your friend/relative with texts if you know they can’t resist checking their iDevices.

The plaintiff is represented by the PA firm of Dallas Hartman, which originally posted about the case on its website.

(hat tip for finding it: Mark Bower)

Addendum (5.23.16): It seems entirely possible that Uber and other car-sharing services that rely on apps and texts may be subject to liability this way. See: Uber Cars are Uber Dangerous

April 2nd, 2016

Deconstructing the Trump Sanction Hoax

Is it April 2nd already?

It’s been a number of years now since I’ve run April Fools’ gags. But the time was right to come out of retirement.

For those new to this joint, I ran them from 2008-2012, and had a lot of fun. I do it with a motive. And, as I do here today, I always have a deconstruction the next day, because a gag without a point isn’t much fun to do.

This includes my gig as the official White House Law Blogger, that punked the NY Times, as well as a 23-blog conspiracy the following year that sent readers round in web circles. My first, and one of my favorites, was the time the Supreme Court had three justices recuse themselves in a fantasy baseball case, because they were involved in a high court league themselves.

OK, enough about the past. Yesterday I took on Donald Trump for his conduct in bringing a frivolous defamation claim that I wrote about last year.

And in doing so, I confess it wasn’t an easy thing to do. Within minutes of the post going up, folks that knew my prior pranks were already hollering that, on this particular day, they wouldn’t believe a word I wrote, no matter what. The passage of four years, it seems, did nothing to diminish my April Fools’ Day reputation.

But the hoax had a point to make (or I wouldn’t do it), and it was rather straightforward: I’ve now been sued twice for defamation for my writings on this blog (Rakofsky and Katz). Both cases were completely frivolous and tossed into the judicial trash can on an immediate motion to dismiss. No discovery, no answer, no nothing, other than my motion to chuck it. But neither judge wanted to go the sanctions route, despite being so clearly warranted.

Such is the judicial culture in New York.

I followed up with an op-ed in the NY Law Journal, calling on the Legislature to approve Anti-SLAPP legislation that was pending. Vacuous suits, and threats of suits, serve to chill free expression. If you are fearful of writing your opinion, or using satire, parody or any other literary device to make a point, then your First Amendment rights have been devalued.

Enter, stage right, Donald Trump and his comments to a Washington Post reporter about a defamation suit he brought (and lost):

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

Add to hit the numbers defamation suits he has brought or threatened (like the recent threat to sue Sen. Ted. Cruz)

And so, when my scheduled depositions on Thursday busted, I had an extra few hours to put on my jester’s hat and make use of our glorious First Amendment by slapping together this “decision” by a judge that sanctioned Trump for a whopping $500M. Who better than the Official White House Law Blogger to write it up?

The judge in the hoax, by the way, was Lester Bruce Sullivan, aka, L.B. Sullivan, better known as the guy who helped make First Amendment history by losing an important piece of litigation: New York Times v. Sullivan.

Was that $500M a dumb number? You bet it was. But that was the laughable number that Trump sued for, in order to get headlines. Which it did. So my “judge” thought that was the fitting sanction.

The point of the exercise was to show that, when folks have money, they can stamp on the First Amendment rights of others simply by making “life miserable,” in Trump’s own words.

Unless, of course, the weight of a real sanction makes them weigh that decision more carefully.

The use of sanctions should not be confused with costs or some kind of fee shifting merely because someone has lost. This isn’t an issue, after all, of two sides each saying they had the green light, or two experts in a medical malpractice case disagreeing on the standard of care.

No, this is an entirely different beast: This is about those that deliberately abuse the legal system, even when they know full well beforehand that there is utterly and completely no merit to the claims.

The Legislature should take action: The time to pass the Anti-SLAPP legislation is now. If, that is, you believe our free speech rights are important.

[Addendum, 4/4, A reader who is on staff in the Assembly has pointed out that the NYS Assembly passed this legislation three times: in 2014, 2015, and 2016. It is the Senate which has not passed it to date.]

My thanks to Paul Alan Levy at Public Citizen and Scott Greenfield at Simple Justice for likewise blogging on the subject to help push the story.