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When To Commence Civil Litigation: A Look At The Impossible Whopper Lawsuit.

Posted by Christopher A. Jensen | Dec 04, 2019 | 0 Comments

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A key question for most litigation clients is whether or not to start a civil lawsuit. Most clients want a favorable outcome at a reasonable cost. They should explore practical solutions and settlement. If that doesn't work, they can commence civil litigation.

Recently, a vegan customer sued Burger King after eating an Impossible Whopper (a new plant-based burger) that was allegedly cooked alongside beef burgers. Rather than pursuing practical solutions, the class-action attorneys dove straight into a lawsuit. My question is: why is it acceptable to sue over a $5 burger instead of focusing on practical solutions?

This article looks at the Impossible Whopper lawsuit and the rationale for deciding when to “pull the trigger” on civil litigation.

The Impossible Whopper Lawsuit

The Impossible Whopper is a plant-based burger that Burger King started selling a few months ago. Burger King ads state that the burger is “100% Whopper, 0% beef”.

Apparently, the Impossible Whopper has attracted vegetarians and vegans to Burger King. However, these customers require that meat alternatives be accurately disclosed. Vegans don't eat animal products and don't want their food cooked alongside meat. Burger King's website apparently offers them Impossible Whoppers that are cooked in a “non-broiler method” upon request, but it's unclear whether this notice is provided in stores.

Recently, a vegan customer in Atlanta named Phillip Williams ate an Impossible Burger that was allegedly cooked in broilers used to cook beef. He lawyered up and has sued Burger King in Florida as part of a class-action case. Here is the Complaint:

Here is a summary of the Claims:

  • Count 1 – Breach of Contract: Williams alleges that he was induced to pay a premium for the Impossible Whopper based on Burger King's advertisement of “0% beef”. Since his Impossible Whopper was “contaminated” with “meat by-product”, Burger King breached a contract with him.
  • Count 2 – Violation of Florida's Deceptive and Unfair Trade Practices Act: Williams alleges that Burger King failed to adequately disclose that the meat-free Impossible Whopper contained meat by-product. Williams claims that Burger King engaged in “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices”, in violation of Florida consumer laws.
  • Count 3 – Unjust Enrichment: Williams alleges that Burger King has been unjustly enriched by profits it obtained from customers that bought Impossible Whoppers.

Williams makes several Requests for Relief, including for a court order:

  • Declaring that Burger King's actions were unconscionable and forcing it to “return all benefits gained, profits received, etc. from its deceptive marketing and sale of its Impossible Whopper so as to make full restitution to Plaintiff and the Class”;
  • Declaring that [Burger King] be “financially responsible for actually providing a meat-free ‘Impossible' meat patty when selling its ‘Impossible Whoppers' to consumers”;
  • Awarding actual compensatory and any other damages; and
  • Awarding Plaintiffs their reasonable attorneys' fees, costs, and other litigation expenses.

My Take

The Plaintiffs appear to have a viable case. Meat by-product likely touches Impossible Whoppers at some point in the cooking process. However, Burger King may have defenses. It may rely on its website notice offering a non-broiler method of cooking Impossible Whoppers. It may also argue that it's “0% beef” slogan is mere “puffery” (advertising statements that reasonable persons would not rely upon).

The bigger issue is the lack of practicality. I think Mr. Williams' lawyers dove into civil litigation without considering practical solutions. Class-action lawyers get paid when they recover money, not by pursing practical solutions. Their business model is based on cash settlements. Don't get me wrong – they often do good work that protects consumers and the public at large. However, the problem is that they have little incentive to find practical solutions. Here, there is no indication that the attorneys explored practical solutions. They instead filed a lawsuit that claims $5 million or more from Burger King.

What practical solutions could Mr. Williams have pursued?

  • Spending his money on more traditional restaurants that offer reliable vegan alternatives.
  • Asking the Burger King cashier how the Impossible Whoppers are prepared and then making an informed decision on whether to eat it.
  • Researching how they are prepared and the alternative cooking methods offered by Burger King (such as a non-broiler method indicated on the website).
  • Notifying a state consumer protection agency, which could investigate and enforce consumer laws for his benefit.
  • Writing a letter to the Burger King location he patronized, Burger King executives, vegan advocacy groups, a journalist, or his congress-person.
  • Having a lawyer investigate the issue and press Burger King for a resolution.
  • Having a lawyer send Burger King a demand letter threatening civil litigation if it doesn't offer better disclosures or non-broiler alternatives.
  • Having a lawyer negotiate with Burger King or mediate the issue with the goal of changing Burger King's practices.

Williams did not have to pursue an informal resolution, and Burger King may not have offered one. But Burger King surely would have listened to his concerns, since he is a target market for Impossible Burgers. He might have convinced Burger King to change its disclosures and food preparation. This would have saved everyone money that will instead go to the class-action lawyers.

My view is that this dispute was begging for a practical solution that may still be available, but will be more costly (and perhaps contentious) with the class-action attorneys.

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Photo by Caleb Jones on Unsplash

 When Should You Wait to Commence Civil Litigation?

For a client, the key decision in many civil disputes is whether to start a lawsuit. You may save money by pursuing practical solutions in lieu of a lawsuit. If the other party agrees to a settlement without having to go to court, both parties will save on attorney's fees and have more control over the outcome. You may also preserve a relationship with the opposing party.

Here is a list of reasons to temporarily hold off on civil litigation:

  • You are able to communicate with the other party about the dispute.
  • You are able to exchange information and documents with the other party.
  • You want to see the other party “play their hand” so that you understand their legal arguments and avoid being surprised after starting a lawsuit.
  • You want to gauge the opposing party and attorney's demeanor before starting a lawsuit.
  • You need to identify the opposing party's “pressure points” and weaknesses before considering a lawsuit.
  • You want to flesh out the real decision-maker and motivation of the opposing party.
  • You want to preserve a relationship with the opposing party or other stakeholders.
  • You want to protect your reputation for being reasonable and collaborative.
  • You want to avoid any PR issues associated with a lawsuit.
  • You are selling your business or property and a lawsuit may hold up the sale.
  • You need assurances from stakeholders or witnesses that they will stand behind you in the case.
  • You already have a strong negotiating position without the need for a lawsuit.
  • You want more control over the issue and the pace at which to solve it.
  • You want to keep the legal dispute private.
  • You want to try mediating the dispute without any constraints or participation by lawyers.
  • You think your case may improve by the time you are ready to start a civil lawsuit.
  • You currently have more important personal or business priorities in your life.
  • You don't currently have the resources to pay an attorney but may at a future time.
  • You don't want the risk of having to pay the defendant's court costs if you do not prevail in the lawsuit.
  • The dispute centers upon a contract or statute that allows the opposing party to recover attorney's fees if they prevail in a lawsuit.
  • Your opponent has significantly more resources than you and could drive up the cost of litigating the case in court.
  • Your witnesses are unavailable and your evidence is not yet developed.
  • You don't yet have a plan for winding up the case or collecting a judgment.
  • Laws or rules prevent you from filing a lawsuit at this time (i.e., you must follow a dispute-resolution procedure in statute, you have to exhaust administrative remedies, the opposing party is involved in a bankruptcy, etc).
  • You cannot locate the opposing party for purposes of service.
  • You think that the opposing party will hit you with a large counterclaim if you start a lawsuit.
  • You are not concerned with any procedural advantages by filing the case first.
  • There is no looming statute of limitations, statute of repose, or other deadline for commencing or filing your civil lawsuit.

When Should You Commence Civil Litigation?

Generally, a client decides to start a lawsuit because (a) there is a looming deadline, or (b) he or she has been unable to reach a resolution with the other party through informal means. If you have a case and the resources to fund it, your best option may be to start a lawsuit.  

Here is a list of reasons to start litigation:

  • There is a looming deadline to file suit under statute or court rules.
  • You have a contract dispute and the contract has deadlines for commencing an action.
  • You need an injunction to immediately restrain the defendant's action.
  • You want to sue first in order to get your preferred venue, court, judge, or other procedural advantage (i.e., being the plaintiff with the ability to present evidence first).
  • You are a creditor and need to gain priority over a lien or interest of another creditor.
  • The opposing party is uncooperative and unwilling to explore practical solutions.
  • The opposing party will not respond to you or share information.
  • You need to conduct formal discovery under the Rules of Civil Procedure.
  • You need to subpoena documents or a witness that will not cooperate.
  • You think the opposing party or a witness will destroy evidence and you want judicial supervision over the case.
  • You think a lawsuit will strengthen your negotiating position against the opposing party.
  • You think the opposing party is afraid of a lawsuit, unable to defend it, or lacks the resources to stop it.
  • You want to get your case moving and you want a judge to set a litigation schedule.
  • You have already developed the facts and legal arguments you need for the case.
  • You have the resources to cover the litigation costs and attorney's fees.
  • You are in a contract dispute and there is a clause for you to recover your attorney's fees if you prevail.
  • You have a larger case and want to trigger pre-judgment interest against the defendant (often in personal injury cases).
  • You don't care about preserving a relationship with the other party.
  • You don't care if the public knows about the lawsuit, or the lawsuit will hurt the opposing party more that it hurts you.
  • You know that you have a viable claim, and don't think the defendant will bring a counterclaim against you.

Conclusion

Whether or not to commence a civil lawsuit is a key question for clients. The Impossible Whopper lawsuit was commenced by class-action attorneys that have little incentive to explore practical solutions. If you are paying a litigation attorney on an hourly basis, you should explore practical solutions. It could save you time and money, and preserve a relationship with the opposing party. If you cannot resolve the case by informal means, then you may still have a viable remedy by commencing civil litigation.

About the Author

Christopher A. Jensen

About Chris Jensen  Chris Jensen is an experienced litigation attorney that has successfully handled civil lawsuits in state, federal, administrative, and appellate courts.  He has been honored as a Rising Star attorney, which is a distinction awarded to less than 2.5% of attorneys.  He is not a...

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