Via The Volokh Conspiracy and the Washington Post comes news that the same lawyers who brought us the class action litigation against the tobacco industry are set to file lawsuits against the beverage industry for allegedly making America’s children fat.
A coalition of lawyers who have actively and successfully sued tobacco companies says it is close to filing a class-action lawsuit against soft-drink makers for selling sugared sodas in schools. The lawyers, who have been trying to develop a case against the soft-drink makers for more than two years, say a lawsuit could be filed within the next few weeks, probably in Massachusetts, which has one of the nation’s most plaintiff-friendly consumer-protection laws
In other words, they are forum shopping. This is one of the things about the legal system that bothers me significantly. Where you file a lawsuit shouldn’t matter, but every lawyer knows that it does.
And as for the merits of this impending lawsuit:
“The idea is to get soda machines out of schools because they are clearly making a substantial contribution to the obesity epidemic,” Daynard said yesterday in an interview. “This is an unfair practice under state consumer-protection laws,” he said. The suit’s legal basis will be tied to the concept of “attractive nuisance: If somebody has something on his land like a swimming pool that he knows is attractive to kids and dangerous, then he has some obligation to keep the kids away from it,” Daynard said. “You want to keep kids away from dangerous objects, and a soda machine is demonstrated to be a dangerous object for kids.”
This is nonsense. If you are going to apply the “attractive nuisance” doctrine to a soda machine, you may as well apply it to an ice cream parlor. Additionally, the “danger” posed by the soda machine is inherently different from the danger posed by an unattended open-access swimming pool. A swimming pool is dangerous because of the risk that a child could drown. The soda machine is “dangerous” because, allegedly, the child might drink too much soda and become obese. Of course, in order to drink that soda, they have to pay for it. And where does the money come from ? From the parents, of course. But holding parents responsible for their children’s health is so old-fashioned.
And then there’s this:
Daynard said that while the legal theory is ready, the challenge is finding the right set of parents to sign on as plaintiffs for the class-action case. “It’s taking us longer than we expected,” he said
In other words, they’ve invented a legal theory without first determining if it has any basis in reality. Now, they’re searching for a Plaintiff. The way I was taught to practice law, you usually find the Plantiff before you determine what type of lawsuit you’re going to file. But we live in the days of activism-by-litigation.
Daynard, by the way is Richard A. Daynard, “an associate dean at Northeastern University School of Law in Boston, who is also president of the Tobacco Control Resource Center and chairman of the Tobacco Products Liability Project, both of which have provided legal support to attorneys suing tobacco companies.” So he is no stranger to this strange new form of legal practice.
They’ve tried cases like this against the gun companies and fast food companies with little success, but their choice of forum may give them an advantage.
Victor E. Schwartz, a Washington lawyer who has advised many major companies on product-liability policies, said the case “would require a radical modification of traditional liability laws with an expansion of statutory consumer-protection claims.” However, he noted, Massachusetts is one of the few states in the country where plaintiffs do not have to demonstrate actual damage in a consumer-protection case — just that a violation occurred.
As an attorney, I detest what people like this are doing to the public’s view of the profession.
