May 6th, 2016

Starbucks Iced Coffee Lawsuit – A Rebuttal

Marc Dittenhoefer

The one. The only. Marc Dittenhoefer

On Wednesday, I ran a parody of the Starbucks class action lawsuit regarding too much ice in the iced coffee. And yesterday I posted my explanation  as to why I did it: bad suits hurt good clients.

Now today comes a rebuttal from one of my friends, Marc Dittenhoefer. Take it away Ditt…..


Ok, so let’s get some obviousness out of the way first so we don’t have to waste any more time on it. Of course the “What, there’s Ice in my Iced Coffee!” lawsuit is a bit of a dopey exercise, more than a bit of bad PR, and the latest in a long, long line of easy pickings for satirists, comedians, anti-civil-justice advocates and for dinner table conversations everywhere.

I get that. As a lawyer who has made his living for 40+ years representing harmed people in legitimate lawsuits, these sort of headlines rankle me, too, and do have their effects upon the judges and jury pools that I, too, must practice before. I was no happier than Brother Turkewitz to see this latest juridical jalopy come down the pike. “Whoa Nellie………not, again!!!

Nevertheless, when one thinks about it a bit there are a few legitimate points behind this lawsuit: ones that we should be spending a moment or two on before we jettison this plaintiff and move on to our next exercise in righteous indignation.

Coffee is coffee and ice is ice. One costs money – quite a bit it of it in places such as Starbucks, it turns out – and the other usually is at nominal cost or given free with a purchase. The reason and rationale for why some shops charge the public what they do for a Cup of Joe folks can get for under a buck at a diner is that there IS a difference: you are paying for a comparable amount of beverage which is more expensive to buy and brew than the diner’s.

When someone plunks down $ 6.50 for a “venti” iced Blarfaccino, one has a (I hesitate to use such a lofty word in such prosaic a circumstance) right to expect the comparable 8, 12 or 16 ounces one gets in the diner version of iced coffee from ’round the corner, especially since the sizes of the various servings are posted, advertised and charged for by the Blarfaccino store itself.

It is no different than a can of soda, quart of milk or gallon of gas: what is listed on the signage is what you should receive for your money. But what if your can has only 7.9 ounces of soda, your milk a fraction less than a quart, your gas a tad shy of a gallon?

 To you, the individual Buyer it means perhaps not a whole lot: it might even be healthier for you over all – at least in terms of the coffee or the soda. But to the Seller ? By chintzing a bit on each of a hundred customers, all of a sudden you can sell 110 coffees from the ingredients that used to net 100.

That’s a profit of 10 coffees that have been “stolen” from the clientele. Or 2 TVs falling off every truck; three Mercedes’ off every shipload. Sooner or later, this adds up to some real money from out of the pockets of the unsuspecting and into the till of an already multi-billion dollar corporation. Not so silly any more, is it?

These scams have been done in business for as long as there has been business, and one of the valuable functions that government provides is to guard against such things, via regulation, inspection, quality control and mechanisms for enforcement and restitution. Thus is the “Class Action” invented.

Should a business — say a financial institution — devise a computer program that would take one cent each month from the account of each of its customers and automatically deposit it into the business’ operating account, that would be a theft. Yet most customers would not ever notice it, much less be willing to file a Police Report over it, and no DA would start a criminal action for anyone’s annualized loss of 12 cents. Multiply that amount however by a million customers, and you all of a sudden have a major revenue stream on your hands – or in your pocket.

An old riddle here is instructive: what would you rather have for your birthday, one million bucks or one penny doubled each day for a month? If you took the penny deal, you made the better bargain by far.

So yeah, the suit is dopey, but only in its poor choice of forum. This matter should be handled regulatorily by making Starbucks devise a way to ensure that the proper amount of paid-for coffee is served in their iced offerings. After all, the company that can invent a machine that grinds, brews, and serves up skatey-eight different types of coffee in 3 or more sizes each can certainly find a way to stock themselves with cups large enough to accommodate the proper amount of beverage WITH ice. It ain’t brain surgery – it’s just right. And this lawsuit says so.

As to the rest of it, considering Stella Liebeck’s case against McDonald’s I am convinced that the insurance, big business and and anti-consumer forces are not sitting idly by waiting for things like this to latch onto to further their PR campaigns. They are at it 24/7/365. This case might give them something to work with, true, but it also is one that highlights an area of abuse that could be redirected in a positive, pro-consumer way.

 We should be full-throated in our support, not necessarily of the suit but of the concept that a buyer should get what they pay for, and that sometimes recourse is needed when that does not happen. In this regard – although I am most certainly not of, by or for the “Tea Party” – they have a point. Free and unfettered access to the Courts to air grievances and correct wrongs is as much of a doctrinal touchstone as anything for the “Tea Party”. Why not for coffee ?



May 5th, 2016

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

wasDunkin Donuts LogoYesterday I ran a parody, wherein Dunkin’ Donuts was sued for not putting enough jelly in its jelly donuts. I didn’t do it just for the hell of it. There is (usually) a method to my madness.

Specifically, Dunkin’ was “sued” because their jelly doughnuts were “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”

My posting was spurred on, as noted in the post, by a suit out in Chicago where Starbucks was sued for putting too much ice in an iced coffee. My point was to mock that idiotic suit.

Now why would a guy that does personal injury law mock the work of another, who purports to represent consumers? Don’t lawyers on the same side of the “v” protect each other like cops and doctors do?

But regular readers know that I call ’em as I see ’em, and what I see is that bad lawsuits damage those with good lawsuits. It’s the headlines from poorly considered, outlier lawsuits that make the headlines and then go on to infect the jury pool by making people more cynical.  When jury selection starts, the scales of justice are already tipped in favor of the defendants due to those “damn lawyers” and this makes it more difficult for others in the courthouse to prevail.

Let me be clear: Your bad lawsuit hurts my clients.

So why does the Starbucks suit suck the big wazoo (a legal term of art for you newbies to this site)? Well first off, ice is actually an ingredient in an iced drink. Take out the ice and you have a different drink.

A Starbucks spokesman said:

“Our customers understand and expect that ice is an essential component of any ‘iced’ beverage. If a customer is not satisfied with their beverage preparation, we will gladly remake it.”

So the issue isn’t really that there’s ice in the drink because there’s supposed to be ice in the drink, but rather, how much ice is in there. In other words, it’s an issue of judgment as to how much the customer will like. Different strokes for different folks and all that.

Which leads us to the second issue: Americans are accustomed to having it like we want it when ordering food and drink:

Too much ice? Less ice, please.

Don’t like potatoes with the chicken? Can I substitute rice?

Hold the mayo on that sandwich please.

I’d like the dressing on the side, please.

I’d like extra dressing, please.

Restaurant customers are accustomed to ordering things that are vegan, vegetarian, nut-free, gluten-free, egg-free, lactose-free, shellfish-free, hold the onions, or I’d like my sushi cooked well done.

Burger King has, for decades, had Have it your Way as it’s advertising campaign. In Harry met Sally, it was a running joke when Meg Ryan special ordered everything in a restaurant.

Here’s the thing about Starbucks: It was born and raised in a capitalist society. They offer a premium product and therefore it must cater to the whims of its clientele. This is not a discount chain cutting staff to the bone to save a few bucks.

If Starbucks drops the ball on customer service — and that means giving people what they want at the counter — then they have lost a customer.  Less ice isn’t exactly a tall order, nor even a Grande or Venti one.  Can anyone imagine the diner that Jack Nicholson visited in  Five Easy Pieces, where he tried to get a side order of toast actually surviving as a business?

Since solving this “problem” was not difficult — it would be difficult to find an easier problem to solve since it isn’t actually a problem — the suit is destined for the trash heap of history. Ice is part of the drink, and if there is too much for your liking they will make it the way you like.

So here is my message to my brethren of the bar (in this case, Hart McLaughlin & Eldridge in Chicago) who bring crappy suits and stir headline writers to spew about lawyers which in turn piss of the populace about lawyers and lawsuits: Your suit is manna from heaven for tort “reformers” and insurance companies. They get to “promote” your outlier lawsuit and portray it as typical, and thereby poison the jury pool.

Stop hurting the people I represent.

Addendum, see also:  Starbucks Iced Coffee Lawsuit – A Rebuttal


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


May 3rd, 2016

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

BigLaw-v-SmallLawLast 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 dram 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:

  1. This is the kind of advertising that I like; and
  2. 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

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.