Alice Cooper probably never envisioned his lyrics being used to resolve a doughnut-shop franchise dispute.
But anyone who’s appeared before U.S. Magistrate Judge Jonathan Goodman in Miami knows he loves a good musical reference. So when Canadian doughnut-and-coffee chain Tim Hortons went after a franchisee for missing a deadline to make default payments, the judge opened with a lesson from the long-haired rocker.
“In a hit song released on its 1973 ‘Billion Dollar Babies” album, the Alice Cooper band, sometimes considered the pioneers of ‘shock rock,’ belted out the following musical anthem: ‘No more Mister Nice Guy / No more Mister Clean / No more Mister Nice Guy / He said you’re sick, you’re obscene,’ ” Goodman wrote Wednesday. “The concept of not being a nice guy resonates with [the franchisees]‘ perspective about the factual and legal issues generated in this lawsuit.”
Goodman handed a partial victory to Tim Hortons, which has no restaurants within 1,000 miles of South Florida but has its U.S. headquarters here following a 2014 merger with Miami-based Burger King.
The judge ruled the franchisor could recover about $60,000 from a New York franchisee that was given until July 12, 2016, to pay past-due royalties, advertising and rent. The franchisee offered to pay the day after — but that was too late under the contract, Goodman noted.
“These results may appear harsh but, without a specific statute or regulation prohibiting or restricting certain provisions or rights, contracts do not become unenforceable merely because their agreed-upon remedies create an unpleasant result for the breaching party,” the judge wrote. “This reality exists even if the breaching party is a ‘Mister Nice Guy’ (or if the nonbreaching party pursues a ‘No More Mr. Nice Guy’ strategy).”
Tim Hortons had perhaps been a “nice guy” with franchisee Panagg Cafe Inc. at first, helping the company with payment issues resulting from tax increases. But when sanitation issues arose along with the owed amounts, Tim Hortons sought to recover its money and give the franchisee the boot.
Panagg hired Nixon Peabody, which sent an “aggressive” letter that contained incorrect allegations, according to Goodman’s order. So Tim Hortons took the dispute to court, seeking the $60,000 plus about $200,000 for lost profits.
After a bench trial, Goodman dismissed the lost profits claim, finding Tim Hortons’ witness didn’t have sufficient knowledge for his testimony to be admissible. But the judge awarded the $60,000 under the contract and dismissed counterclaims from the franchisee.
Tim Hortons attorney Michael Joblove of Genovese Joblove & Battista in Miami has no immediate comment on the ruling.
The order is at least the third time Goodman has used lyrics to make a point this month. In a dispute over a disability claim rejected by an insurance company, the judge opened with a Gwen Stefani line.
“In their song ‘Don’t Speak,’ the rock band No Doubt sang the following lament about being rejected: ‘Don’t speak / I know what you’re thinking / I don’t need your reasons / Don’t tell me cause it hurts,’ ” he wrote. “But in the instant case, plaintiff urges a completely contrary theme: he wants to know why he was rejected.”
In the same case, Goodman admonished the litigants Oct. 11 for filing reams of supporting documents, telling them: “In the immortal words of disco queen Donna Summer, ‘enough is enough is enough.’ ”
After the Tim Hortons case concluded, the franchisee’s trial attorney had his own set of lyrics in mind.
“ This decision is appropriate for Halloween week,” Miami attorney Joseph DeMaria of Fox Rothschild said via email. ”Any potential franchisee who is offered such a one-sided contract, governed by unforgiving Florida law, should be scared witless before agreeing to do business with this franchisor. While the court thought this case was best described by the lyrics to the Alice Cooper song ‘No More Mr. Nice Guy,’ I believe the more appropriate song lyrics to describe what a franchisee faces in doing business with Tim Hortons is from AC/DC’s ‘Highway to Hell.’ “