May 4th, 2016

Dunkin’ Donuts Sued Over “Meager” Jelly in Doughnuts

Dunkin Donuts Logo 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.

Hmm DonutsIn 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.

AddendumThe Great Jelly Donut Parody (Hey, why’d you do dat?)

Addendum 2Starbucks Iced Coffee Lawsuit – A Rebuttal


December 23rd, 2014

Will Google Cars Eviscerate the Personal Injury Bar?


Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.


The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me  —  “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced.  (Likewise reduced will be the need for  trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See  The Google Car Is A Huge Threat To The Auto Industry (Business Insider)



April 1st, 2014

Knicks and Dolan to Be Sued in Class Action?

Blame DolanIt isn’t often that you see the Chairman of a company acknowledge that he doesn’t know his company’s business. But that, it seems, is what James Dolan has done.

And now as a result, rumors are swirling around New York’s legal community about a potential shareholder class action lawsuit.

If you aren’t from New York, you might not know that Dolan’s father, Charles Dolan, is the billionaire founder of Cablevision and HBO. Cablevision owned the NY Knicks before being spun off in 2010 as The Madison Square Garden Company. And the MSG Company owns the Knicks (as well as the Rangers, Madison Square Garden and MSG Networks). 

Both Cablesvision (CVC) and MSG Co. (MSG) are publicly traded, which is to say, legally accountable to their shareholders.

Now Charles’s son James has been running the Knicks for close to two decades, during which the team has no championships, much misery, and one lost sexual harassment lawsuit. Through the years he’s said little to nothing publicly, sometimes going years between press conferences.

The times of saying little have apparently changed, however, as Dolan has turned into a chatterbox with his recent introduction of Phil Jackson as the team’s latest savior.

Of course, when someone who hasn’t been giving interviews for years suddenly opens his mouth, it might be wise to get a little practice first. Dolan didn’t, as he apparently spoke the truth when he said:

“That I don’t know basketball.”

Yet he’s running the team and still holds the title of Executive Chairman.

Now let  us ruminate on that concept for a moment.  The guy who runs a pro basketball team, that is publicly owned, admits that for nearly two decades he doesn’t know  basketball. And lest you think it was an off the cuff joke, the Knicks’ performance over those years back that statement up. The team’s front office is ranked dead last by ESPN.

And then he goes on to say that in two hours with Phil Jackson, the Zen Master taught him basketball. So, will any of the protesting fans contact counsel (not me) regarding a class action lawsuit? Well, they might try, but they need to be a deceived shareholder also.

Knick fans are pissed. A group calling  itself Knick Fans 4 Life, has set up a Facebook page to organize its activities (with 2,658 likes and growing). Part of its mission statement regards Dolan’s failure to allow knowledgeable basketball people the autonomy/power to make basketball related decisions.

Of course, today is April Fool’s Day, and long-time readers know I have, shall we say, a bit of a history with running April Fools gags (SCOTUS and fantasy baseball, official white house law blogger, and more).

So the question the reader might ask: Are today’s rumor of a shareholder class action suit real or did Turkewitz make it up?

And the answer: Does it matter?


November 2nd, 2012

Legal Implications for Cancelling NYC Marathon? (Updated)

I assume that my readers know already, as this is the type of news that flies quickly around the web, that the NYC Marathon was cancelled. And that this cancellation came just hours after Mayor Michael Bloomberg had reiterated his position that the marathon would go forward. Will there be legal fallout (a/k/a lawsuits) over that decision?

When the decision was first made about the race going forward, there was one key point in my mind: Would any resources be diverted from those hit hard by the tsunami of water that was Hurricane Sandy? If the answer is yes, then you don’t run the race. You just don’t let people struggle any longer than necessary to put on the event. An emergency had been declared, the race would be cancelled and that would be that. Those that paid money for airlines, hotels and whatnot would have to fend for themselves with any trip insurance that they might have had, if any, but that is life for things we lawyers like to call Acts of God. This certainly qualifies.

But if the answer was no, that the city had sufficient resources to cover the race logistics and handle the areas most badly affected, then you can consider putting on the event. Reasonable minds may differ over whether it should go forward, but logistically it could take place.

Mayor Bloomberg, however, has now done something odd. He said New York City had enough resources to put the race on, and said repeatedly that it would go on, and then reversed course.

But he didn’t reverse course because the city needed those extra cops, according to this statement. He cancelled because it was politically unpopular. His statement was released jointly with the New York Road Runners Club, but whether there are sufficient police to staff the marathon and handle the disaster is obviously a city decision, not a Road Runners decision. The joint statement read (and note my highlights in the middle):

“The Marathon has been an integral part of New York City’s life for 40 years and is an event tens of thousands of New Yorkers participate in and millions more watch. While holding the race would not require diverting resources from the recovery effort, it is clear that it has become the source of controversy and division. The marathon has always brought our city together and inspired us with stories of courage and determination. We would not want a cloud to hang over the race or its participants, and so we have decided to cancel it. We cannot allow a controversy over an athletic event — even one as meaningful as this — to distract attention away from all the critically important work that is being done to recover from the storm and get our city back on track.

So what of those that relied on his comments to come to the city from overseas, of which they anticipated about 20,000? And those that traveled here from distant states?

If he canceled because he underestimated the needs of the police, that would be one thing. Things can change in a state of emergency as officials try hard to gain as much information as possible from broken information systems. If there was an understaffing possibility, he could have, and should have, hedged. He should have ‘fessed up that he messed up when it came to resources.

It’s also worth noting that the ability to staff the race may not be as certain as the mayor said. Patrick J. Lynch, president of the police officers’ union said staffing was too low, with many members of the department suffering the effects of Hurricane Sandy, to hold the marathon. “We are spread far too thin fighting crime, terrorism and the effects of this disaster,” Mr. Lynch said in a statement.

I’ve never heard of such a circumstance before, and the lack of precedent opens the door to the inevitable: Those that spent money relying on assurances the event would go forward only to have it canceled because it was a politically unpopular decision, may be angry.

Finish line, 2010, with my kids

Long time readers know, of course, that this is one of my favorite races,  I currently appear in ads for one of the sponsors, once did a Blawg Review based on it and had a letter published in the New York Times regarding it. If you have an interest in suing, in other words, don’t call me. I’m not  your man and that isn’t what I use this blog for.

But I have to think that, due to the way Bloomberg fumbled this situation and people lost money relying on his assurances, that someone may try to hold him (or the New York Road Runners, of which I’m a member) accountable.

Donations to those in need can be made here:

Red Cross, Greater New York Region

New York Road Runners

Updated 11/7/12 – Two articles worth mentioning: The first is from Runner’s World discussing the potential legal implications of canceling the event, whether this represents a breach of contract, and whether the “no refund” policy was prominent and clear:

While runners wait to hear what the New York Road Runners will do regarding entry fees for this year’s canceled marathon, some have wondered how a court of law would view the matter.

(In that same vein, I just created a page on the no refund policy for my own race on the Paine to Pain site that will be linked to the home page for next year’s event.)

The second article comes from the New York Times, discussing the hostility that exists for some runners over the late cancellation of the race. It should be noted, of course, that while some are hostile, many others agreed with the decision to cancel. And some who had planned to run with mixed feelings were actually relieved at the decision.


August 23rd, 2012

NYC Marathon Cancels Baggage Check (Legal Fallout?)

Verazanno-Narrows Bridge at the start of the NYC Marathon

Ahh, running and the law, my sweet spot. Before going on to read this story about the New York City Marathon, I need to tell you that I am planning to run this November for the 14th time. I once did a Blawg Review devoted to the event and had a letter published in the New York Times regarding this magnificent piece of urban theatre. My passion for the event, however, will not temper my comments here.

In the news today, the NYC Marathon decided to cancel its baggage checking at the beginning of the race. And legal problems could result by killing off a service that had been promised, and on which participants relied, when signing up for the race many months ago.

This is the way the service has worked in years past: Runners show up at Fort Wadsworth in Staten Island, sitting at the base of the Verazanno-Narrows Bridge. We arrive by buses and ferry and private cars hours before the event start, because you can’t have 40-50,000 people arrive at the same time. It is a logistical issue that gets coordinated with military precision.

Runners bring many things to this village, including extra clothes to wear in the early morning November chill, as well as dry clothes for the end of the run. Many will bring disposable clothes for the start — I’ve made many a trip to the Salvation Army in the week before to buy a few items that will be discarded as the canon booms for the race’s start.

But the clothes needed for the end of the marathon are what’s really important (not to mention car/house/hotel keys, phones, cash,metro cards, etc.). Once the body cools down at the end of 26.2 you will still wearing wet clothes, socks and sneakers. Any commute longer than an hour is not something you want to be doing while dressed like that.

Because those dry clothes are so valued, runners check their bags on dozens of UPS trucks in the staging area to be reclaimed later.  And that leads to the finish area of the NYC Marathon being turned, each year, into the world’s largest locker room as runners strip down and change.

Now that service is gone, and runners are stuck in the wet, smelly clothes. If you live on Manhattan’s Upper West Side and are walking home it isn’t a big deal. But most don’t. And the only solution to the keys/phone/cash problem, is to carry them during the race, which few people really want to do.

The reason for killing off the service is that, at the end of the race in the tight confines of a Central Park roadway, it could take a good 30-45 minutes to retrieve that checked bag. The walk will be another mile, on top of the ones you just ran, as you wind your way through the finishers chute getting food, water, finisher medals, heat shields, medical attention and finally to the endless line of UPS trucks and the lines at each truck waiting for the bags.

The New York Road Runners Club, which puts on the event, has found this logistical nightmare to be too much, even when pulling trucks out of the park last year to use side streets. As they expand upwards to the 50,000 runner barrier – and perhaps beyond in the year to come — they can no longer manage. They either cap the growth of the event, or kill the baggage check.

Because they decided to kill it they will offer to the runners a one-size-fits-all fleece hooded poncho in the finish area. But that only covers up the now-disgusting clothes that are glued to the body; it doesn’t get rid of them.

Is there a legal angle here? I think so. Runners pay a hefty fee to run this race, $216 this year. And one of the things they knew they were getting was the transportation of their clothes, cell phones, wallet, etc. Some stuff can still be stuffed in pockets for those of us who are non-elite, but many really don’t want to carry anything for the race.

Does this lead to a potential consumer class action on behalf of runners? That is certainly a possibility, because they have not offered runners the option of cancelling and getting their money back due to the policy change. According to Business Week:

There will be no reimbursements for runners who don’t agree with the policy change, said Richard Finn, a spokesman for the organization.

Runners, after all, paid for one thing and will receive another. If they wanted to make this change, it was something that should have been announced before registration was opened up.

One other note on my running credentials, I’m also the founder and Race Director of a half marathon trail race just north of New York City. The idea of not having a baggage check is unthinkable to runners. We even have the showers at ours (since we finish at a High School, we use the locker room). I know what it means to runners, both as participant and race director, to have such services.

If you go to Twitter right now, you will see it lighting up with complaints. Mary Wittenberg, the CEO of the New York Road Runners (and former BigLaw attorney and marathon champ), invited comment at #NYRRListens and has been getting an earful. A few select comments:

From @ashlyntastic @INGNYCMarathon There’s nothing I dislike more than marinating in wet running clothes post race. #NYRRlistens

From @arunninglifetc This organization isn’t about serving the runners anymore, not when you don’t listen to the runners. #NYRRListens

From ‏@mldemmons SUPER excited about being soaking wet in 50+ degree weather after running 26.2 miles in November in NYC! #NYRRlistens #NoTheyDont

From ‏@UrbanRunr Makes no sense for a race in Nov. I’ve never been so cold as after my first NYC. People need their dry clothes after. #NYRRlistens

Someone, somewhere, may elect legal action. (And no, it won’t be me.) Whether it succeeds or not is another story, but clearly the better move would have been to implement the policy change before people started to pay their money.