It’s never been easy to run a restaurant — nearly 1 in 3 independent restaurants shutter within their first year — but pandemic-era public health restrictions pushed the industry to the brink of total collapse.
Now, the same mom-and-pop operators who kept their kitchens running by grit and grace must contend with a new nightmare scenario: a plaintiff bar that’s as creative as it is greedy.
Recently, a class-action lawsuit was initiated on behalf of an Illinois man claiming a national restaurant chain “deceived” him and other consumers in the sale of “boneless wings.” This deep-fried debacle began last January, the man’s lawyers said, when wily cooks duped the plaintiff into believing the solid, all-white meat he had purchased was, wondrously, deboned wing meat.
Never mind that any reasonable consumer understands the famously paltry amount of meat attached to chicken wings would amount to a measly pile of scraps without the bones suspending it. Of course, the lead plaintiff is something of a refined gourmand, having previously sued a granola-maker because its product was allegedly not as high in fiber as its marketing suggested.
If successful, class counsel hope to score millions of dollars in ill-gotten attorney fees. Meanwhile, they claim their client suffers the terrifying “ongoing injury” of “uncertainty” in not knowing when he will be deceived again by the next lot of boneless bandits. Notwithstanding, he would be made whole with just a few dollars.
But that’s not the extent of this particular shakedown. It’s common practice among plaintiffs’ lawyers to copy-paste complaints with a quick change of defendant and venue. That means that these aggressive lawyers, who proudly bill themselves as the “premier consumer class-action firm,” will almost certainly pursue a string of parallel claims against other boneless wing retailers.
Not only do several national restaurants serve these tasty treats, but so do hundreds, if not thousands, of small family-owned businesses, which are the least prepared to defend themselves in court. In other words, it’s a target-rich environment for greedy trial lawyers.
Common-law tort principles beg the wisdom of a “reasonable person” in evaluating the merit of consumer-fraud class-actions. Unfortunately, the reasonableness of most class-action claims is rarely considered in court, often to the enrichment of plaintiffs’ lawyers. Most defendants settle — often for millions of dollars — just to avoid the potential for harassment through long drawn-out discovery and the potentially crippling business interruptions posed by the time and expense of litigation.
This settlement reality has fed skyrocketing growth in claims targeting food and beverage companies, with an all-time high of at least 325 cases filed in 2021. This recent wave of frivolous lawsuits included a $5 million class-action targeting Kraft Heinz because its microwaveable macaroni was not, in fact, ready to eat in 31/2 minutes, as its packaging promised. The horror!
The not-fast-enough macaroni case followed a claim alleging Dunkin’ Angus steak-and-egg breakfast sandwiches had defrauded consumers who believed they were getting steak rather than a prepared beef patty. In a rare instance of a class-action going to court because the defendant was willing to shoulder the burden of defending itself, the U.S. Court of Appeals for the 2nd Circuit held no one would be so dense to believe their on-the-go breakfast sandwich actually contained a solid slab of steak.
Both the courts, which have been hesitant to dismiss all but the most ridiculous claims swiftly, and Congress have an urgent role to play in protecting our food service sector from future nonsense claims. In 2017, I sponsored a bill passed by the U.S. House called the Fairness in Class-Action Litigation Act. This bill would have curbed some of the most egregious class-action abuses while preserving the legal device’s true intent. As recent class-action news demonstrates, those reforms are needed now more than ever.
America’s restaurants just endured the most brutal business environment in history, and many are still fighting to find a pre-pandemic equilibrium. But the hits keep coming, thanks to the plaintiff bar’s seemingly bottomless appetite for boneheaded class-action claims that defy common sense.
Bob Goodlatte is a former U.S. representative from Virginia who served from 1993 to 2019, including two terms as chair of the Agriculture Committee and three terms as chair of the Judiciary Committee.
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