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In late January, federal Judge Robert Sweet dismissed the fast-food lawsuit that’s been fodder for both talk show ridicule and public outcry. The thought of chubby kids, their parents and lawyers in tow, suing Ronald McDonald because a diet of Happy Meals made them fat seems like a poster child for what’s wrong with our litigious world. You can hear the collective relief — common sense prevails. Or has it? Before you join in, think about this. If you get fired because of your gender, defrauded by lying corporate executives or victimized by a deceptive trade practice, your case could get tossed out the same way. That’s because the court dismissed the case using “heightened pleading”: a pro-defendant rule requiring plaintiffs to plead with factual detail or have their case dismissed. Used for years to discourage civil rights and securities fraud plaintiffs, now it’s aimed at consumers. Just last March, the Supreme Court slapped down heightened pleading in an employment discrimination case called Swierkiewicz v. Sorema. The reason is simple. The Federal Rules of Civil Procedure require only notice pleading. If a complaint provides sufficient notice to be answered, it shouldn’t be dismissed. For more detail, we use discovery. Does this “sue now, discover later” approach allow meritless claims to be filed? Yes, but that’s OK. There are other procedural tools — chiefly summary judgment — designed to weed out frivolous cases quickly. Although not quickly enough for some. Why would Judge Sweet impose heightened pleading? He fears “McLawsuits.” Given the “billions and billions sold,” the specter of copycat litigation looms. What’s wrong with nipping this in the bun? Simple: No court should be able to classify an entire type of litigation as presumptively frivolous and impose heightened pleading. Yet that’s precisely what happened here. Rather than allow the kids their day in court, the judge took a peek at the merits and concluded the plaintiffs ultimately wouldn’t win. Better to dismiss it now. Unfortunately, that’s not how the process is supposed to work. Federal procedure favors decisions on the merits, not on the pleadings. It didn’t used to be that way. Old common-law and code pleading denied litigants their day in court because of technicalities, like using the wrong writ or pleading an “evidentiary fact” instead of an “ultimate fact.” The Federal Rules of Civil Procedure trash these hypertechnical distinctions, remove the procedural booby traps and establish merits determination as the norm. Notice pleading is the centerpiece of this reform effort. Consequently, the only question Judge Sweet should have been asking is, “Does McDonald’s have notice of why it’s being sued?” Of course it did. The complaint alleged violation of the New York state Consumer Protection Act. The deceptive conduct included: failing to disclose the ingredients and health effects of the high-fat food, describing its food as nutritious, encouraging consumers to buy “value meals” without disclosing negative health effects and marketing to children. The plaintiffs also alleged that McDonald’s acted negligently by selling dangerous products, failing to warn that its food could lead to health problems and marketing an addictive product. Yet the complaint did not include the specific facts to support these allegations, such as describing the “McChicken Everyday!” or “McDonald’s can be part of any balanced diet” promotions. It didn’t have to. The complaint properly put McDonald’s on notice of the claims against it. That’s all — according to the rules — it had to do. Well, why shouldn’t the teens have to plead their specific evidence of deception? That’s where discovery comes in. Having put the fast-food giant on notice, the kids should be able to ask McDonald’s about their ad claiming “sodium is down across the menu,” when it wasn’t dropped in four of the pictured foods — or maybe french fries, cheeseburgers, McNuggets and shakes don’t count. They should be able to discover why McDonald’s created the “Mighty Kids Meal,” a jumbo-size child’s plate promoted to equate eating bigger portions with being more grown-up. Seems like this strikes at the very core of the lawsuit — targeting teens to eat more junk that McDonald’s knew was unhealthy. Discovery, however, is feared — and not just in McDonaldland. The Kentucky Colonel, Wendy and probably even that little Taco Bell dog sense what’s coming. A barrage of discovery — especially voluminous requests for production of documents — will rain down on them. Plaintiffs will fish around in their corporate papers looking for the smoking french fry. Corporate executives will be deposed, disrupting business as usual. Incessant questioning through interrogatories or requests of admissions will tie up in-house counsel for years. It’s not surprising that Big Food wants to avoid these discovery costs. So does every corporate defendant. Yet discovery is part of the price we pay for a judicial system that focuses on finding out the truth. We don’t want trials carried on in the dark. Nor do we want discovery abuse. So the rules give our federal trial judges discretion to fine-tune discovery if it’s likely to be unduly burdensome. Like Judge Sweet, I’m skeptical that these kids could ultimately win. Still, they should have had the chance. Personally, I don’t think the Golden Arches had some clandestine plan to make me crave those fries (although its past practice of using beef tallow in what it marketed as vegetable oil gives me pause). Decades of dismissals of suits against Big Tobacco should serve as a reminder. In a world after tobacco litigation, we all — and especially the judge — should be less quick to judge these claims. That’s why we have procedural rules that should treat all types of cases and plaintiffs the same. Luckily, the judge ruled that the teens get to plead their case again. He even sweetened the deal by suggesting what “comes closest to overcoming the hurdle” he raised in front of them. The plaintiffs can plead that McDonald’s fare is “entirely different — and more dangerous — food” than the plain-Jane burgers and fries you cook at home. List the 30-plus “McFrankenstein” ingredients of Chicken McNuggets. State that this presumably healthier chicken alternative really has twice the fat of a hamburger. (Who knew?) The youths might prevail if they supersize their claims with these details in an amended complaint, says the judge. That may be a practical solution in this case, but it raises the question of where he came up with all this stuff. Easy — the plaintiffs pointed it out, just not in the complaint itself. Here’s what happened. The kids filed their initial complaint putting McDonald’s on notice of their claim that making and selling McFood was deceptive and that the deception injured them by making them obese. McDonald’s countered with its motion to dismiss based on heightened pleading. In response, the teens came forward with all kinds of facts supporting their allegation — many recounted by the judge in his opinion. Still, Judge Sweet dismissed the case because the details weren’t in the initial complaint. That’s what happens with heightened pleading — a return to the hypertechnical traps that the modern civil justice system seeks to avoid. If this were just an isolated case, our justice system could tolerate it. But it’s not. Civil rights plaintiffs have been victimized by heightened pleading for decades. This anti-plaintiff rule has been imposed by courts based upon a presumption that the cases are frivolous. Once the heightened pleading standard is invoked, courts shield government officials from discovery unless the burden is met. In 1993, the Supreme Court first struck down heightened pleading in a civil rights case called Leatherman v. Tarrant County. The court based its holding on the clarity of the Federal Rules of Civil Procedure. Under the rules, all that is required is notice. This admonition, however, went unheeded, and the Court had to repeat the point again last term in Swierkiewicz. Some courts have gotten the message. As Judge Frank Easterbrook of the 7th Circuit puts it, “‘I was turned down for a job because of my race’ is all a complaint has to say.” Still, there are courts enamored with heightened pleading. And Congress is fond of it, too. Once judicially imposed, it’s now required in securities fraud cases by the Private Securities Litigation Reform Act of 1995. Congress believed that these were largely frivolous cases improperly subjecting corporate defendants to vast discovery. The PSLRA ratchets up the pleading standard so high it deters lawsuits — frivolous or not. This high threshold probably contributes to an atmosphere of insulation that bred recent corporate scandals such as Enron and WorldCom. The PSLRA isn’t the only congressional use of heightened pleading. Remember Y2K? Congress feared a tidal wave of frivolous Y2K suits. The wave turned out to be less than a drop. Still, the Y2K Act has heightened pleading in it. So does the so-called Class Action Fairness Act passed by the House last year. Heightened pleading is quickly becoming the procedural tool of choice when Congress wants to disfavor a claim. Will it now be required for fast-food suits? After Judge Sweet tackled the McDonald’s case, Rep. Ric Keller, R-Fla., piled on by introducing the Personal Responsibility in Food Consumption Act. I’m sure it would have included heightened pleading if it didn’t find a shorter route — ban the lawsuits altogether. Whether imposed by the courts or by Congress, heightened pleading is invidious. Now consumers are apparently the targets. This isn’t fair. Plaintiffs get tossed out of court without the chance for discovery or trial, simply because their papers don’t include the level of detail a court unilaterally imposes. This disregard for a system purposefully designed to encourage decisions on the merits is troublesome. If a court can toss out the McDonald’s suit on heightened pleading, what’s next? Maybe consumers deserve a break today. Christopher M. Fairman is assistant professor of law at the Moritz College of Law at Ohio State University. He published an article, “Heightened Pleading,” in the December 2002 issue of the Texas Law Review.

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