Tuesday, March 11, 2014

Those making fun of the latest lawsuit against McDonald's may be missing the point

A number of outlets and blogs around the internet have been quick to criticize and make fun of a report of a new lawsuit against McDonald's. According to the news stories (all of which are very thin on details, and none of which has a link to the actual complaint), after a customer complained to a McDonald's employee that he needed more napkins, the employee responded with a racist remark and a confrontation ensued. I have not seen any more details than that.
Focusing mostly on the napkin aspect of the story, however, some outlets have found an easy way to suggest that this is another example of frivolous lawsuits or people trying to get a quick buck, etc. The New York Daily News, for example, wrote "Unhappy eater Webster Lucas reportedly wants $1.5 million from the fast-food company after he claimed the staff only gave him one napkin." (And, why does the newspaper say "reportedly", I wonder? The story seems to be based solely on what another secondary source reported (see below).)
None of the stories I found has a link to the actual complaint, so my guess is that all of us, myself included, are speculating as to the actual content of the claim. But given that I don't believe a lawyer would be willing to face almost certain sanctions for filing a complaint asking for $1.5 million in compensation based on the fact that a client was given only one napkin, I am actually going to think about what this case is really about.
Let's be real. This case is not about napkins. This case is about how the plaintiff was treated afterward, particularly about his reaction to the allegedly racist comment. This case is, in fact, just like a very important case in the history of American Tort law we all read in law school called Fisher v. Carrousel Motor Hotel in which an African American man sued for battery after being told he had to leave a hotel dining room because of his race.
If the allegation of a racist comment is true, the claim actually raises important policy and tort law related issues. Should we recognize a cause of action for the effect of racist language absent a battery or assault? That is a question we have struggled with for a long time. A case like this one can create the opportunity for a court to address that discussion again (or for the first time).
Now, like I said, I have not seen the complaint, so maybe I am all wrong. After all, the story apparently was first reported by the always reliable legal news source TMZ and maybe they are right. Maybe the case is all about that missing napkin. Maybe there was no racist comment at all. Maybe the claim is frivolous.
But I am not going to pass judgment until I see the allegations. I think there can be more to this case that what those who want to limit access to civil justice would want you to see.

Having said that, I should comment on the other aspect that others are emphasizing: the amount of money asked for as compensation. First of all, as lawyers, we all know the amount means nothing. It is just numbers on a piece of paper. It has nothing to do with the actual value of the claim. The value of the claim will be eventually determined by the parties through the negotiation of a settlement (in most cases) or by a jury (in the rare instance in which the case actually goes to trial.) and then, in many jurisdictions, it may be reduced by a statutory cap.
The number at the end of the complaint is there to do what it did: attract attention, and, for that reason, it is really just a distraction. The media (and tort reformers) love it because the story now becomes one about how much money the plaintiff's lawyer wants instead of one about the real issues in the case. This is counter productive for the plaintiff. Just like the attention given to the napkin, the emphasis on the amount of the claim detracts from the seriousness of the issue.
For this reason, I like the rule used in some jurisdictions which actually does not allow a specific amount request. New York has such a rule. It makes a lot of sense and I wish more jurisdictions would adopt it.

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