My Big Fat Class Action:
Why The Lawsuit Against McDonald's Is Not a Good Candidate for Class Action Treatment

Last week, the lawyers in Pelman v. McDonald's filed their amended complaint. The much-publicized lawsuit is their effort to hold McDonald's responsible for many of the ills of New York State's children. The suit contends that McDonald's lies about the content of its food, that children eat too much of it, and that, as a result, those children suffer from obesity and host of attendant illnesses.

The lawsuit, of course, is a class action. That is, the lawyers seek to represent not only the two plaintiffs named in the complaint, but all the children in New York who eat too many Big Macs and believe they are unwell as a result.

And just as surely as the lawsuit is a class action, it is not intended merely as a lawsuit, but as an instrument of social policy. Indeed, the lawyers are explicit about this. When they filed their amended complaint, they told CNN, "We are not looking to get rich from a large money settlement. We are proposing a fund that will educate children about the nutritional facts and contents of McDonald's food."

Who could possibly object to that?

Unfortunately, it's not so simple. There is a mismatch between what the plaintiffs say they seek, and what they actually have to prove to get what they seek. And that mismatch is a sure sign that the procedural tool of class action litigation is being misused.

A Short History of The McDonald's Suit

The plaintiffs have sued McDonald's under New York state law, alleging the common law tort of negligence and violations of state consumer protection laws. The named plaintiffs are both minors who have - like nearly everyone else in America - eaten at McDonald's.

They claim to have overeaten McDonald's food because McDonald's has advertised that its food is healthy when, in fact, it's not. They also say that McDonald's was negligent in selling such dangerous stuff. And they claim that as a result of having eaten there, they are overweight and suffering from a variety of related illnesses, including diabetes, heart disease, and high blood pressure.

Every one of their claims requires, as a matter of New York law (and the law of every other state), that the individual suing have been harmed by McDonald's alleged actions. It's not enough, in other words, for named plaintiff Ashley Pelman to prove that McDonald's lied about what's in the Chicken McNuggets. She has to prove that she, Ashley, suffered an injury as a result.

Earlier in the suit, in a careful opinion, the judge dismissed every count for failing to state a claim, but did so without prejudice and with leave to file them again. (For a discussion of the court's opinion, see Sherry Colb's prior column for this site.)

Now, in chapter two, the plaintiffs have filed their amended complaint. But even if the plaintiffs manage to sneak a claim or two past the judge, this case ought to end in chapter three, wherein the plaintiffs will move for class certification. That motion should be roundly rejected. But we needn't wait until then for this case to provide some object lessons in what is wrong with class action litigation today.

Class Actions, Then and Now

Most litigation involves a single plaintiff (say, a woman who slipped and fell on the wet floor of her local McDonald's) and one defendant. Class actions are simply a device for joining claims together when a class of people are "similarly situated" - that is, when they were treated, and have been harmed, in the very same way.

A class action is intended to be an efficient way of resolving identical claims - one that saves parties and courts time and resources. It is not intended to be anything more than that.

All the class action rules boil down to this: you can join claims together, in a class action, when it is fair to do so. If everyone's claim is more or less identical to everyone else's, then litigating one or two of them can properly be said to settle the matter for all.

Take, for example, a hypothetical lending institution with a policy that all African-American borrowers will be subject to a $100 surcharge - just because they're black. When an individual African-American borrower sues the bank, she will prove three things: the bank had this policy; she was charged $100 pursuant to this policy, and she's now out $100.

Assuming our hypothetical borrower wins at trial, is there any reason to have further trials for each of the aggrieved borrowers? No - as long as the first borrower did, in fact, prove that she was charged pursuant to such a discriminatory policy.

If that's the case, then every member of the "class" - every African-American borrower for this bank - was treated and injured in the same way. Liability in the first case has fairly established liability in all. Relitigating the case over and over would only be a waste of everyone's time.

The McDonald's Case: Why It Requires Individualized, Not Class, Litigation

Now, back to McDonald's. If Ashley Pelman had brought her suit as an ordinary, individual case, she would have had to prove that whatever illnesses she suffers from were the result of her eating at McDonald's. In doing so, it wouldn't be nearly enough for her to prove that she ate there a lot, and that she is now suffering from illnesses consistent with eating McDonald's food.

No: her burden would be to prove that McDonald's food actually caused her illnesses - not just that it might have. Thus, at trial, the jury not only would hear about how often she ate at McDonald's, and what she ate there, and what was in that food, they'd also hear about a lot more. What other fast food did she eat? Maybe she ate at McDonald's a lot, but at Burger King much more. Presumably many, perhaps most, of her meals were eaten at home. What did her mother (or father) serve? Maybe mom's home cooking, not the Filet O'Fish, was the real culprit.

And while we're on the subject, what exactly did Ashley - and her parents - know about the dangers of McDonald's food, or of any food high in fat, cholesterol, and other potentially harmful ingredients?

No company is liable for dangers that are well known - Budweiser doesn't have to warn you that drinking can make you drunk. If McDonald's can prove Ashley knew all about the risks, then it's not liable for anything.

Moreover, obesity and its attendant diseases are not only about diet. There are genetic factors at work, too. The jury would learn a lot about Ashley's family history of eating, and of physical health. Perhaps Ashley's diabetes is more the product of the chemistry of her ancestors than the chemistry of her french fries.

Ashley's case thus depends on evidence that relates only to Ashley. The proof involving her health cannot stand in for the proof involving anyone else's health. Showing that she is suffering from high blood pressure due to daily consumption of McDonald's cheeseburgers says nothing about Johnny's coronary heart disease and his bi-weekly Happy Meal habit.

Cases So Different, and So Individualized, Should Not Be Joined Together As A Class

Eating habits, diets, personal and family medical history - this is all highly individualized stuff. Unlike the hypothetical bank customers who have all been victimized by the same policy and lost the same amount of money, the fast-food customers in the Big Fat suit are not the type of plaintiffs for whom liability with respect to one means liability with respect to all.

It is unfair to hold McDonald's responsible for the illnesses of Johnny, or Brittany, or Justin based solely on proof involving Ashley. And so the McDonald's lawsuit is not a viable candidate for class action treatment. It's not even a close call. There are no efficiencies to be gained here, because the evidence in Ashley's case just isn't relevant to the evidence for anyone else's.

The plaintiffs' lawyer's insistence that they are simply seeking money that they will use uniformly to educate consumers makes it sound as though the case is, in fact, amenable to class treatment. After all, who couldn't use more information? And if McDonald's responds to the suit by issuing additional, special warnings, we will all see the same ones.

But just because the likely remedy might affect everyone equally, doesn't mean liability can be established that way. Plaintiffs seem to have targeted a widespread problem (ill health and rotten eating habits among children). They seem also to have chosen a suitably wide-ranging solution: more information to convince parents to get their kids to eat differently (and perhaps to convince some of the kids themselves, too).

But lawsuits are about more than simply identifying problems and finding possible solutions. They are about finding the responsible parties - fixing blame, assigning liability. And in most cases - and certainly in this one - than can only be done one person, one company, and one Happy Meal at a time.