I Can’t Believe It’s A Class Action Lawsuit!

For those unfamiliar with the acronym, SIHTAF stands for “S[omething] I‘ll Have To Apologize For.”

Jan Polanik lives near Worchester, Massachusetts and like a prodigious percentage of his fellow New Englanders, he sometimes gets breakfast at Dunkin’ Donuts. Jan, he gets the bagel. Hey, he likes bagels! You got a problem with that?

So instead of cream cheese, Jan asked for his bagel to be toasted with butter. (I like them that way sometimes too. You got a problem with that?) But what he got was a bagel, toasted, with margarine. So of course he sued on behalf of all people who “ordered a baked product, such as a bagel, with butter, but instead received margarine or butter substitute between June 24, 2012, and June 24, 2016.”

Polanik’s attorney, Thomas Shapiro, said of the complaint:

Candidly, it seems like a really minor thing, and we thought twice or three times about whether to bring a lawsuit or not. … A lot of people prefer butter. … The main point of the lawsuit is to stop the practice of representing one thing and selling a different thing. It’s a minor thing, but at the same time, if somebody goes in and makes a point to order butter for the bagel . . . they don’t want margarine or some other kind of chemical substitute.

Why did the store give margarine rather than butter? I presume it’s a food safety and delivery-of-product issue: to put the spread on the bagel quickly, it has to be kept at room temperature, and butter has to be kept refrigerated lest it spoil and become a risk of bacterial infestation. Margarine, you can keep at room temperature for much longer before the germs start to build their civilization in it.

So this is news because it’s been recently announced that the defendants, three Dunkin’ Donuts franchisees that own about 20 restaurants in the area, have settled. The terms of the settlement will have to be approved by the court because it is a class action suit but that filing hasn’t been made yet. The lawyer for the majority of the franchisees, Michael Marino, has so far declined to state the terms of the settlement, indicating only “The litigant is satisfied with the operational changes made in those stores.”

I’m reminded of the classic law school limerick:

There once was a lawyer named Rex,
Whose “thing” was too small to have sex.
Charged with indecent exposure,
He made this disclosure:
De minimis non curat lex.”

You got a problem with that?

Burt Likko

Pseudonymous. Practices Law. Lives in Southern California. Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. No Partisan Preference. Likes: respectful and intelligent dialogue, good wine, and puppies. Dislikes: mass-produced barley pop, magical thinking, and insincere people. Follow him on Twitter at @burtlikko, and on Flipboard at Burt Likko.

21 Comments

  1. There are some batty class action suits out there. I did some work that was related to a suit last year where a national pharmacy chain was sued on a theory that their automated prescription reminder calls violated anti-telemarketing statutes and that they owed their customers $100 per call.

      

  2. I get that there are a lot of silly class actions but I find it curious that it is usually this kind of stuff we are supposed to be embarrassed about.

    Perhaps it is my ornery plaintiff side showing but I find it odd that respectability in law always goes corporate. Why can’t we be embarrassed and apologize for when big defense firms play hardball with people seriously injured by dangerous products and polluters? Why does the brass ring always go for BigLaw?

    This is also me being an ornery and dissenting lefty.

      

  3. I presume it’s a food safety and delivery-of-product issue: to put the spread on the bagel quickly, it has to be kept at room temperature, and butter has to be kept refrigerated lest it spoil and become a risk of bacterial infestation. Margarine, you can keep at room temperature for much longer before the germs start to build their civilization in it.

    This is not correct. Butter can be kept at room temperature for *weeks* when resealed in a container. Even if not resealed or covered, it’s is still fine for days. I don’t know what speed they use up butter at the donut place, but grabbing a stick of butter each morning, putting it in a butter crock, and sticking it back in the fridge each night would almost certainly be fine.

    There are plenty of people who purchase stick butter and leave one stick out all the time, use it up, and pull the next stick out of the fridge.

    And butter tastes and smells bad well before it becomes dangerous, so it’s almost impossible for people to become sick that way…evolutionarily, human beings are pretty good at detecting spoiled animal fats by smell and refusing to eat them.

    We, as society, are actually pretty dumb to refrigerate butter we are currently using.

    Margarine, OTOH, last a shorter amount of time. Margarine does take longer to *spoil* than butter, having vegetable fats instead of animals fats…but, being a weird frankenstein constructed entity, it starts losing its *intended consistency* after about a day for hard margarine sticks, and a few hours for the soft, tub margarine. Margarine is *designed* to be a solid at 40 degrees, and doesn’t really stay a solid after extended periods at 70. (And you can’t ‘fix’ it by putting it back in the fridge.)

    It’s not going to kill you, but it might turn into a weird gloopy mess if you don’t refrigerate it, and ‘taste’ a bit weird (By which I mean it will *feel* weird in people’s mouth.), and probably not something you should be serving to customers.

    Heck, maybe that was his actual complaint with getting margarine instead of butter.

      

  4. It really is a false advertising claim, here but could have been fixed easily by instructing the folks behind the counter to say when asked for butter we use margarine is that ok? Just like sometimes in a restaraunt if you ask for a coke they will ask is Pepsi ok, because that is what they sell.

      

  5. You see that same type of thing when you go to a restaurant and ask for coke. If they don’t serve it, the wait staff should ask if X (usually the other brown swill) is okay.

      

    • I know lots of people insist they can tell the difference between the major brands by taste, but I’m skeptical that even the most vocal Coke or Pepsi partisan could back up this claim against a double-blind taste test with statistically significantly more accurate results than chance.

        

      • That’s not the reason restaurants are so specific, it’s about trademark. Coke and Pepsi are diligent in ensuring their trademarks do not become generic and go so far as to do covert testing that when someone asks for a Coke they either get a Coke or they are told they are not getting Coke.

          

        • Exactly. They don’t want coke to become the next Xerox or aspirin.

            

        • I’ve heard that explanation before and I’m skeptical it’s as much of a reason as the explanation suggests. True, I’m sure the restaurant’s legal counsel stresses the importance of trademark, especially if the restaurant is a chain. I also suspect that general managers learn a little bit about it when they go to “training for general managers.”

          But in practice and on a day-to-day level, I suspect the server is rarely, if ever, given a talking to about how they better be honest about the product because of trademark. Instead, I suspect the server is either trying to be honest or trying to prevent the customer from getting angry.

            

      • I’d take that bet with Diet Coke and Diet Pepsi.
        I’ll drink either but vastly prefer the Coke product.

          

      • I know lots of people insist they can tell the difference between the major brands by taste, but I’m skeptical that even the most vocal Coke or Pepsi partisan could back up this claim against a double-blind taste test with statistically significantly more accurate results than chance.

        Really?

        Coke and Pepsi have very different tastes to me. Pepsi is much ‘stronger’ than Coke. Pepsi sorta reminds me of Dr. Pepper mixed with Coke.

        There’s a lot of type of food out there where people cannot actually tell the brands apart, because they are basically the same thing, like milk or corn flakes. But I am pretty sure ‘colored carbonated water flavored with random chemicals for flavor’ is going to have different random chemicals for flavor, and, thus, be easy to tell apart. (I mean, no one is mistaking Mtn Dew for Coke, and it’s not just different coloring.)

        I’d wager that even people who don’t *drink* soft drinks could tell them apart, if you were to give them six cups, three of each, they could sort them into two sets…although they wouldn’t know which was what.

          

      • I believe I could tell the difference between Coke and not-Coke, but not between different brands of not-Coke. To me, Coke has a distinctive flavor (which I dislike, but it seems to work for others).

          

      • Pepsi does taste different from coke. I’m pretty sure I could tell. Coke does have a slightly more complex flavour. Pepsi’s sweetness is purer/more overwhelming than coke’s.

          

    • I often see places do this. I don’t drink soda but when I dine with people who do, if they ask for a Coke (or Pepsi) and the place only serves Pepsi (or Coke), they often say, “Is Pepsi (or Coke) okay?” The trouble is I have almost no way of knowing the times they make the swap without asking. But it does happen often enough that I remember.

        

  6. “I know lots of people insist they can tell the difference between the major brands by taste, but I’m skeptical that even the most vocal Coke or Pepsi partisan could back up this claim against a double-blind taste test with statistically significantly more accurate results than chance.”

    I can taste the difference very clearly in the bottled or canned product, because it’s consistent. It’s very difficult in machine dispensed sodas because the mixture of base, water and gas it’s anything but regular. It’s a crap shot many times, though you can still “lean” towards Coke of Pepsi.

    In my taste buds, Pepsi is noticeably both sweeter and more tart that Coke. Hence it has more punch. Coke tastes, to me, like watered down Pepsi.

      

    • coke is more bitter than pepsi giving you a more full bodied flavour rather than the feeling of drinking gassy coloured sugar water

        

  7. A while back Burt (I believe it was Burt) posted about a lawsuit involving cheese. If I recall correctly, some cheese was sold as 100% pure but it turned out to have been adulterated with 3% (or some such) of something else. I forget if I commented at the time, but I thought, and still think, that it’s reasonable to allow some for impurity even in something advertised as “100% pure.” Whether 3% (or whatever the percentage was) is too much impurity is a different question.

    In the Dunkin case, though, I’m much more categorically in favor of the plaintiff’s position. (Disclosure: I didn’t read the article.) To me, margarine is so different from butter that to represent it as butter is fraudulent. I would not buy a bagel and margarine, but I would buy a bagel and butter. Perhaps that just goes to my own preference. I know I want butter instead of margarine. One reason I tell myself is the taste, although I’m not 100% sure I could tell the difference in a blind test. Another reason is that margarine is transfatty while butter isn’t, although I’m not 100% sure the pat of margarine really makes much of a difference, especially in the context of all the other undoubtedly transfat-laden junk food I consume.

      

  8. I don’t think this is silly at all. If this really happened over a 4-year time period, it was intentional. I can think of various reasons why D&D would call it butter when it was really margerine, all of which are advantageous to the company and neutral or negative for the consumer. This feels like pretty textbook fraud/false advertising to me.

      

  9. The King asked
    The Queen, and
    The Queen asked
    The Dairymaid:
    “Could we have some butter for
    The Royal slice of bread?”
    The Queen asked the Dairymaid,
    The Dairymaid
    Said, “Certainly,
    I’ll go and tell the cow
    Now
    Before she goes to bed.”

      

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