The latest joke of a suit is against McDonalds Corp., which was hit with a huge antitrust claim by two customers who are indignant that the restaurant charges the same price for a Quarter Pounder with or without cheese. Oh the humanity. But hold on: What if the suit isn't just a clumsy attempt at a nuisance-value settlement? What if there's something more nefarious afoot? What if such dumb lawsuits are … wait for it … actually a secret plot by tort reformers to discredit the plaintiffs bar? That's the theory being pushed by plaintiffs lawyer John Uustal of Kelley Uustal in South Florida—and he's offering $100,000 to anyone who can help him prove it. “I look at some of these lawsuits, and I cannot imagine that they have any chance of success,” he wrote in his blog . “When they fail, the lawyer will have lost plenty of time and money. Why would any lawyer try to lose money?” Uustal is an established plaintiffs lawyer, with verdicts including $51 million for a man who was left paralyzed after his seatbelt malfunctioned in a crash and $60 million for a family that lost their son when the fuel tank in their General Motors station wagon exploded. His law partner Robert Kelley won a $300 million jury verdict against Phillip Morris. In other words, he's exactly the kind of lawyer that tort reformers have in their crosshairs. So maybe that's why he's extra-suspicious of suits like the one against McDonalds, which claims (without any case cites) that making customers pay for unwanted cheese is illegal tying, a per se antitrust violation. “We know that big corporate interests have successfully attacked the credibility of our civil justice system by highlighting frivolous lawsuits,” Uustal wrote. “They do it so they can eliminate truly righteous lawsuits. … They're perpetuating the idea that lawyers are shifty scammers. They are brainwashing us to think that lawsuits in general are frivolous.” “When a frivolous lawsuit gets filed, that's bad enough,” he continued. “But is there any possibility this is even worse? Could an entire lawsuit be a scam? A scam to create more smoke for corporate lobbyists … ?” Uustal readily admits he has no hard evidence, but he promises, “If you are the first person to bring me proof that leads to a judgment finding that the lawsuit filed on May 8, 2018 in the Southern District of Florida against McDonald's Corp. is the result of a corporate conspiracy to manufacture frivolous lawsuits, then you will receive a reward of up to $100,000.” It seems pretty unlikely he'll ever have to pay up, but let's look a little more closely at the suit, which was filed on behalf of Florida residents Cynthia Kissner and Leonard Werner by Andrew T. Lavin of the Lavin Law Group in Miami. Lavin, who could not immediately be reached for comment, is a Georgetown Law alum and member in good standing of the Florida Bar since 1978. A quick Pacer search shows that he's represented plaintiffs and defendants for years in a range of civil matters, mostly in Florida. Clients have included local entities like Boca Dental Supply and North Miami Motor Sports. It doesn't really seem like the resume of a corporate shill, although the McDonalds class action appears to be new territory for him. Here's the gist of his argument: “Cheese is a separate and distinct product that can be added to a Quarter Pounder,” the complaint states. “McDonalds forced and coerced members of the nationwide class to purchase and pay for the separate and distinct tied product, cheese, as a condition for purchasing the tied product, a Quarter Pounder, a Double Quarter Pounder, or value meals including these products, even though the class members did not want, and did not receive the tied product.” Mmmkay so I'm no antitrust expert, but compare those facts to a successful tying case, like when the FTC challenged a drugmaker that required patients to purchase its blood-monitoring services along with its medicine to treat schizophrenia. In that case, the drugmaker had market power—it was the only source of the medicine—and by forcing patients to use its blood-monitoring service, it prevented other companies from competing for that business. That's tying. Paying for unwanted cheese on a burger doesn't exactly rise to this level. I don't think I'm going out on a limb here when I say this suit has got failure to state a claim written all over it. I have other questions as well. Like, if the suit is a tort reform conspiracy, why pick on McDonalds? Did they draw the short straw at the secret meeting? But perhaps here's the real giveaway that there's nothing more than old-fashioned, bad lawyering at work: The claim was brought under both the Sherman Act and Florida's Deceptive and Unfair Trade Practices Act. If the point of the suit was to make plaintiffs lawyers look bad, the Sherman Act alone would have sufficed. Because there's a key distinction—the Sherman Act allows legal fees to be awarded to prevailing plaintiffs, but not prevailing defendants Florida's Deceptive and Unfair Trade Practices Act, on the other hand, gives the court discretion to award fees to either winning side. Which means Lavin and his clients could be on the hook for McDonald's attorneys' fees. Carlton Fields is currently facing a $15 million malpractice suit for the same move. Its client Procaps sued a former business partner under both laws, and is now stuck paying its opponent's legal bill. “Since the [Florida state law] claim was duplicative of other claims that did not expose Procaps to attorney's fees, Procaps would have never agreed to bring such a claim if it was fully informed of the attorney's fee risk,”” the malpractice complaint said. If this McDonalds suit really was part of a brilliant master conspiracy, wouldn't they have omitted the state law claim—and its attendant exposure? Invoking the Sherman Act alone would still provide ample grounds for humiliation and mockery. |

What I'm Reading

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