What Does Chicago's Repeal of the Foie Gras Ban Mean for Philly?

Yesterday, by an overwhelming vote of 37-6, the Chicago City Council repealed its ban on the sale of foie gras. The ban has been a source of embarrassment for the city since it was passed in April 2006.

Philadelphia City Councilman Jack Kelly proposed a similar ban shortly after the now-repealed Chicago ban was passed. Kelly’s bill never made it out of the Committee for Licenses and Inspections. After narrowly wining re-election last fall, Kelly promised to lobby the newly-elected councilmen in January to support his bill. However, it is now halfway through May, Kelly’s bill has officially lapsed and we haven’t heard so much as a peep from Kelly.

The lack of legislative progress has not deterred Hugs for Puppies, the local activist group that has been spearheading protests in front of restaurants that serve foie gras. The group’s questionable protesting tactics essentially have resulted in a de facto foie gras ban in Philly. With the exception of Le Bec-Fin’s Georges Perrier, the Philly restaurant scene’s more vocal supporters, like Ansill's Chef David Ansill, have taken foie gras off the menu for business reasons. Even London Grill’s Terry McNally, Philly’s foie gras poster woman, appears to have caved (a recent visit revealed that only the hanger steak with foie gras butter remains).

Chicago’s repeal is important for Philly because, among other things, it undercuts an argument on which activists have strongly relied to make their case for banning foie gras: Because other legislative bodies have banned foie gras, Philly should ban it, too.

This follow-the-crowd argument has always been flawed. The implication that one need only get in line and follow what others have done without independent scrutiny is inherently troubling. The argument also assumes, of course, that none of the bans were the product of activists’ bullying. [Ironically, the activist group Farm Sanctuary is claiming that Chicago’s repeal was caused by “pressure from political bullies and special interests.”] Plus, there’s never any mention of the fact that the numerous legislative bans proposed in the U.S. since Chicago’s ban was passed have either failed (e.g., Maryland) or have been buried somewhere in the legislative process to die a slow, quiet death.

But now the follow-the-crowd argument has lost its teeth. Chicago was critically important to the activists—it was the first and only U.S. city to ban foie gras and, they maintained, it legitimized a path for other cities to follow. However, after enduring two years of ridicule and now repealing the ban in a loud, lopsided, public display, Chicago now stands for something completely different—the foie gras ban was a mistake. California passed a ban four years ago that doesn't become effective until 2012. However, after the more recent brouhaha in Chicago it’s unlikely that any U.S. city will ban foie gras now. More broadly, Chicago’s repeal also renews the debate as to whether it’s appropriate for local government to legislate what we put on our plate, at least in cases where there is no legitimate public interest to protect.

Chicago’s repeal should be the death knell for any proposed foie gras ban in Philly. Time will tell. But the real question isn’t whether Philly’s proposed ban (now lapsed) will officially be declared dead. The real question is: If it is declared dead, will the activists gracefully walk off the field and let us eat in peace?

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Tipping Point

Voltaire said we should judge others by the questions they ask rather than by the answers they give. This post illustrates why such wisdom rings true.

On Feb. 24, someone posted a comment in the restaurant section of City Paper’s website claiming that Arbol Café was confiscating the servers’ tips. This sparked a tremendous amount of outrage directed toward Arbol Café. Dozens of people chimed in on City Paper’s site, and on other local web sites, with heated opinions on the topic. Some claimed they would boycott the restaurant. Someone even posted claiming to be the owners of Arbol Café. It generated so much controversy that the Consumerist picked up the story.

My editor at City Paper, Drew Lazor, had a radical idea: he thought it would be interesting to find out whether the allegation leveled against Arbol Café was actually true. Turns out, it was not true. You can read the results of Drew’s investigation here. Briefly, Arbol Café keeps the servers’ tips only during training, which consists of three shifts. The irony of this whole thing is that Arbol Café appears to treat its servers far better than other restaurants because it pays its servers a base salary above minimum wage and then throws the tips on top of it.

Before Drew discovered the truth, he asked me to do a legal analysis as to whether the alleged practice was legal. You can read my analysis here. In short, under Federal and PA labor law, the alleged practice would be legal if there was an agreement in place between the servers and the restaurant and if the restaurant paid the servers a base salary above minimum wage. Practically speaking, though, I don’t know if any server ever would agree to surrender all of his or her tips.

Kudos to Drew for getting to the bottom of the controversy and also to FooBooz for throwing a healthy dash of skepticism on the issue.

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An Update on Direct Wine Shipment in PA

I wrote an article on direct wine shipment that appears in this week’s City Paper. Forgive the Madonna reference; it’s called “Over the Border Wine.”

The article explores whether it’s still illegal to have wine shipped to your door under Pennsylvania law. The reason this is an open question is because two court cases rendered Pennsylvania’s existing statutory scheme unconstitutional. And the Pennsylvania legislature has yet to clean up the mess.

Rep. Paul Costa and Sen. Jim Ferlo were kind and gracious enough to speak to me about the direct shipment bills they proposed that are currently pending in the state legislature. Tom Wark, Executive Director of the Specialty Wine Retailers Association, gave his insight on the issues raised by direct shipment legislation. Tom also writes one of the most insightful and thought-provoking wine blogs out there—Fermentation. The PLCB and the PA State Police's Bureau of Liquor Control Enforcement went above and beyond in responding to my questions. Finally, special thanks to Gary Vaynerchuk, Director of Operations at Wine Library and host of Wine Library TV, for throwing in his two cents. Gary sympathizes with Pennsylvania wine drinkers. “What PA residents are going through is so sad,” Gary says. “I get over 50 emails a week from PA residents crying, including one that moved to South Jersey just because of it!”

And that’s one important piece of the puzzle that’s often overlooked—retailers. At the end of the day, what wine lovers in Pennsylvania really want is the ability to order wine from Internet retailers, not out-of-state wineries. The reason is obvious: choice. Internet retailers offer hundreds or even thousands wines from numerous wineries located all over the world. And contrary to the belief held by some well-intentioned folks in Harrisburg, Pennsylvania’s statutory scheme currently leaves Internet retailers out in the cold.

The case law I reference above only talks about wineries. But recently a federal court in Texas held that in-state and out-of-state retailers have to be treated equally as well. In PA, however, there is only one in-state retailer—the PLCB. And the PLCB doesn’t deliver wines to peoples’ doors. That is, at least not yet. If Rep. Costa’s bill passes as is—which would allow the PLCB to deliver wine to your door—they may have no choice but to let Gary and other Internet wine retailers do the same.

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Philly Mag: Publishing LaBan's Picture Was a Mis-Steak

Philadelphia Magazine made some very tasteful choices in its September 2007 issue. For example, they hired Steve Volk (former senior writer for Philadelphia Weekly whose writing I’ve enjoyed since he worked for Pittsburgh Weekly back in the day), who wrote an engrossing feature about Alex Plotkin’s defamation lawsuit against Craig LaBan. In addition, to fill in for the departing Maria Gallagher they brought in Jason Wilson (spirits columnist for the Washington Post), who wrote two engaging restaurant reviews: Beyond Sushi and Mussel-ing In. Let’s hope they keep him on.

However, there was one decision in this issue that was in bad taste: publishing a picture of Craig LaBan’s face alongside Volk’s article.

To justify this decision, Larry Platt, the editor of Philly Mag, claims that LaBan’s anonymity is a gimmick and that everyone in the restaurant community already knows what he looks like. But the main reason for running the photo, according to Platt, is because he believes the debate about LaBan’s identity smacks of self-importance. “Listen, the guy eats meals and writes about them,” Platt says. “He’s not Valerie Plame, OK?”

Let’s assume for the sake of argument that all of Platt’s assertions are true. Why out LaBan now? Platt admits that he had a long history of extending the Inquirer the courtesy of protecting LaBan’s identity. But Platt’s reasons for outing LaBan didn’t just recently become true; people have been making those same claims for years. In other words, those reasons weren’t enough to out LaBan back then. Why switch gears and end the courtesy now? What changed?

One theory is that the videotaped deposition LaBan was compelled to give in the lawsuit may have created the perception that his days of anonymity were all but over. But, in truth, LaBan’s identity was as protected as ever.

First, the videotaped deposition did not create a threat to LaBan’s anonymity that did not already exist the minute the lawsuit was filed. Plotkin’s lawyer has repeatedly said that he plans to use the video at trial, suggesting that the video is the only way the jury would ever get to see LaBan’s face. But the fact is that if the case were to go to trial, LaBan would be compelled to testify in person. Plotkin’s lawyer meant that he would use the video to impeach LaBan at trial if he says something inconsistent with his deposition. The video deposition was taken far too early in the case for it to be used as a substitute for direct or cross examination at trial.

Second, the judge ordered the videotaped deposition to be kept confidential until trial. When Plotkin noticed LaBan to appear for a videotaped deposition, LaBan moved for a protective order. Although the judge allowed the videotaped deposition to take place, he granted the most important part of LaBan’s motion: the judge ordered Plotkin to keep the videotaped deposition confidential to protect LaBan’s identity. In other words, the judge agreed that LaBan’s identity was worth protecting, despite the fact that Plotkin made arguments similar to the ones Platt is making.

Third, there is little chance that LaBan or that video will ever see the inside of a courtroom. Almost all of the defamation cases brought against restaurant critics were dismissed before trial. Of the few I know of that went to trial, they were either dismissed halfway through or the plaintiffs lost on appeal. Given those stats, if Plotkin’s case isn’t booted on summary judgment (and I predict it will be), it likely will settle before its March 2009 trial date. And if it were to go to trial a year and a half from now, LaBan’s lawyers likely would move to have the courtroom cleared the day LaBan testifies.

When you add it all up, there was no legitimate reason to out LaBan now. All of the reasons Platt gave in his editorial for publishing the picture certainly were true all the while Platt had been extending the courtesy of keeping LaBan’s identity secret. And although LaBan was compelled to give a videotaped deposition, it was clear that LaBan’s identity was as protected as ever and would remain so for the foreseeable future.

All told, though, the damage to LaBan may be minimal. Word on the street is that LaBan lost weight since that pic was taken, so it may not be much of a tell after all. Worst case scenario for LaBan is that he has to wear a disguise when he dines out a la Ruth Reichl.

And in a strange twist of fate, Platt’s transgression may actually help LaBan. In litigation, you identify your opponent’s vulnerabilities and apply pressure. LaBan’s was his anonymity. The videotaped deposition of LaBan was Plotkin’s leverage for settlement. Now that LaBan’s been outed, that leverage is gone.

LaBan knew anonymity wouldn’t last forever. But I’m sure he never thought he might lose it like this—being outed by a peer publication while in the middle of a lawsuit. Here’s hoping LaBan doesn’t hold a grudge.

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Chambermaid

Two of the topics that govern my life are law and food. The two don’t often intersect, but when they do, I’m in my glory.

That explains why I enjoyed Saira Rao's first book, Chaimbermaid. Rao is a lawyer who clerked for the Third Circuit Court of Appeals here in Philadelphia. After her clerkship and a stint at a large law firm in New York, she decided to risk it all to become an author. If Chaimbermaid is any indication, Rao made the right choice.

Chaimbermaid is a fictional account of a judicial clerk, Shelia Raj, and her experience at the Third Circuit Court of Appeals here in Philadelphia. A lot of the action takes place in Philadelphia restaurants, including such gems as Rouge, The Continental, Jones, Las Vegas Lounge and Ralph’s. It’s interesting to see the perspective of these restaurants from a character who is not a Philadelphia native. And Shelia’s objectivity is refreshing. For example, Shelia, who hails from New York, is annoyed by the velvet rope elitism practiced at Rouge and is not a fan of The Continental’s “Oriental Ginger Noodle Salad.” Yet, she’s grounded enough to appreciate the simple comforts of the mac-and-cheese and deviled eggs at Jones.

The book has received a lot of press due to its so-called scandalous, fly-on-the-wall perspective of what happens inside the chambers of a federal appeals court judge. This aspect of the book certainly is a draw, especially to us lawyer types, and does carry its share of the book’s humor. But the press’s reaction to all of this is a bit extreme.

Perhaps I have been around the block a few too many times or am thicker skinned than most, but—fiction or not—the colorful behind-the-scenes tales are more silly than scandalous, especially compared to the absurdity of law firm life as told by folks such as Opinionistas and Anonymous Lawyer. Moreover, Rao’s stories did not diminish my respect and reverence for the court. In the end, all judges are human beings. And Rao, in fact, demonstrates that it takes an exceptional kind of human being to be the effective judge that Judge Friedman is in Chambermaid.

In addition, there’s a lot more to Chambermaid than the gossipy goings-on behind chamber doors. For example, one of the key plot threads involves a high-profile death penalty case Shelia has been assigned. Death penalty jurisprudence can be complicated stuff (I know; I represented a death row inmate back in the day). But Rao not only manages to make death penalty jurisprudence approachable, she also makes it engaging.

Yet, Chambermaid is still an escape. Rao’s style is light, witty and entertaining. And her book is chock full of politics, love and other tumultuous happenings in the life of a young lawyer struggling for direction and identity. Chaimbermaid is the perfect beach read for anyone interested in a young professional’s perspective on law, Center City or the Philadelphia dining scene.

Join Saira Rao today (Tuesday) for a rare appearance here in Philadelphia. She will be reading exerpts from Chambermaid and signing books at Barnes & Noble (1805 Walnut St.) at 7:00 p.m. For more info, check out SairaRao.com.

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An Update on the Chops v. LaBan Lawsuit

There have been two significant developments in the Chops v. LaBan lawsuit. The first is that The Philadelphia Inquirer and Craig LaBan have filed an answer, which strikes a serious blow at Plotkin’s claims. The second is that Plotkin’s attorneys took LaBan’s deposition…and videotaped it.

The Answer

The assertions in the Inquirer and LaBan’s answer—one of which Plotkin now admits is true—do not bode well for Plotkin.

LaBan denies that he was served a “steak sandwich without the bread,” as Plotkin alleged in the complaint. Rather, LaBan asserts that he was served “Steak Frites.” And LaBan has the receipt to prove it. LaBan further alleges that “[t]he waiter serving LaBan and his lunch companion described the steak served as ‘Steak Frites’ as a ‘strip steak.’” Presumably, LaBan dines with others so he can taste multiple dishes in one sitting. But the ancillary benefit of having done so here is that LaBan now has a corroborating witness, illustrating that this practice is something other food writers leery of libel suits would be wise to employ. Moreover, LaBan states that “the steak Chops served as ‘Steak Frites’ was sliced from the same piece of meat purchased by the restaurant for the strip steak it serves at dinner as strip steak.” It is not clear from the answer how LaBan knows this; however, it is important to note that this assertion does not start off with the phrase “Upon information and belief…”—a somewhat tepid predicate often used to hedge your bets when you’re not 100%.

Surprisingly, Plotkin has recanted his “steak sandwich without the bread” story and now admits that LaBan ordered and ate “Steak Frites,” a fact that probably should have been discovered before the complaint was filed given that it’s the basis of his lawsuit. Although Plotkin denies the rest of the above-mentioned assertions, this could signal the beginning of the end of his lawsuit. It appears from the pleadings that, at a minimum, LaBan believed that the meat he was eating was strip steak. And if that’s what LaBan believed, Plotkin will not be able to prove “actual malice”—the intent requirement in a libel claim asserted by a public figure, which is what Chops will most likely be held to be. Keep in mind that the “actual malice” standard is subjective, not objective. In other words, it doesn’t matter what a reasonable person would have believed; it only matters what LaBan actually believed. The hurdle for Plotkin is extremely high.

The Deposition

The second development in the case, however—which Steve Volk wrote about today online at Philadelphia Weekly—is a little more sensational. And it shows that this lawsuit may end up being less about truth than about strategy. Plotkin recently noticed LaBan’s deposition, which is a bit early in the case but not improper. But instead of seeking the more traditional type of deposition, where only the deponent’s words are stenographically recorded, Plotkin wanted the deposition to be videotaped.

The defendants sought a protective order to prevent it. “LaBan’s anonymity is important to the process by which he reviews restaurants,” the defendants argued to the court. “If a restaurant knew Mr. LaBan was in its dining room, it might put on a show for him that would not be provided to the general dining public.”

In opposing the defendants’ motion, Plotkin denied that LaBan’s identity was a secret by stating the following:

Defendant LaBan has not only appeared in public recently to promote a book he wrote on behalf of co-defendant The Philadelphia Inquirer, he even permitted another journalist on a widely-read Philadelphia restaurant review website to publicize a photograph of half his face. Anyone with an interest in the “trade secret” of his identity certainly would have attended his book signing, seen his face, listened to his voice, and studied the photo available online.

The journalist to whom Plotkin is referring is yours truly (at least I wasn’t called a “sham blogger”). The website to which he’s referring is this one. And the photograph to which he’s referring is the one LaBan allowed me to shoot at his book signing in December 2006 and post on my blog.

First, I was not happy to discover that I was referenced in a document filed in this lawsuit (though I appreciate that Plotkin and/or his attorneys extended the professional courtesy of not identifying me or my blog by name). Second, my photograph technically does not show half of LaBan’s face; it shows only his lips and his goatee. And to put it in context, my photograph shows less of LaBan’s face than you see in his recently-shot video, “Cheeseburger, I Hold,” or the screenshot accompanying his article about the making of the video (pictured above). Third, contrary to Plotkin’s assertion, the photograph actually demonstrates (as does the video) that LaBan and the Inquirer, in fact, do take great care to protect LaBan’s identity. LaBan showed up at the book signing wearing a hooded cape, a curly wig and a Zorro mask, and he wears the same wig and mask in the video. Wearing a disguise is exactly how you protect your identity, not how you reveal it.

The court technically granted the defendants’ request in part, but denied the most critical aspect of their motion. The judge’s order allows LaBan’s deposition to be videotaped. And although the video will be kept confidential until trial, the order does not prohibit the video from being played at the trial, which could threaten LaBan’s anonymity if the entire proceeding is left open to the public.

In Volk’s article, Plotkin’s attorney says that the videotaped deposition took place on June 5 and that they expect to use it at trial. Plotkin’s attorney claims that the case isn’t about LaBan’s anonymity (though it does play a key role in his complaint as LaBan’s alleged motive for his less than stellar review). Rather, Plotkin’s attorney claims their “interest is in what [LaBan] did wrong and in encouraging him not to do it again.”

However, to the trained or skeptical eye Plotkin’s insistence on videotaping LaBan’s deposition looks like a strategic move designed to leverage a settlement, especially given LaBan’s devastating answer. Videotaped depositions are not all that common, and the need for one in a case like this is questionable (there’s nothing to suggest, for example, that LaBan would be unavailable for trial). Plotkin knows that anonymity is a vulnerable spot for LaBan. So, it’s not surprising that Plotkin’s attorney is attempting to apply some pressure; it’s what lawyers do. But in light of the discussion above and Plotkin’s own admission in his complaint that he previously threatened (“jokingly,” of course) to reveal LaBan’s identity when he visited The Palm in 2002, Plotkin’s insistence on videotaping LaBan’s deposition just leaves a bad taste in your mouth.

Actually, all of this is good news for LaBan. Plotkin’s whole lawsuit was based on LaBan having a steak sandwich without the bread. And LaBan chopped one of his legs off with two words: Steak Frites. If the rest of the above-mentioned assertions in LaBan’s answer are verified through discovery, the game is over for Plotkin. The fact that Plotkin had to play the video deposition card shows that he’s on the ropes. And although it’s troubling that the tape is out there, it’s unlikely that it will ever see the light of day.

Photo Credit: A still from the video of Craig LaBan recording "Cheeseburger, I Hold." Video shot by Chris Jolissaint.

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The Status of Direct Wine Shipping in Pennsylvania

In November 2005, the Pennsylvania law that allowed in-state wineries to ship wine to Pennsylvania residents but prohibited out-of-state wineries from doing so was declared unconstitutional. Last June, Governor Rendell proposed legislation that would allow Pennsylvania consumers to have wine shipped directly to their doors from out-of-state wineries (which I blogged about here). As part of Rendell’s proposal, the wineries would be required collect PA’s 18% Emergency Tax (a/k/a/ the “Johnstown Flood Tax”).

Ever wonder what happened to Rendell’s proposal? The PA legislature put it on the back burner. An article in today’s Pittsburgh Post-Gazette explains why:

Because the buyers of Pennsylvania wines make up such a minority of overall wine consumers, and account for such a small percentage of the state’s wine and spirits business, the issue isn't on the front burner in Harrisburg.

Instead, the respective House and Senate committees -- the Liquor Control Committee in the House, and the Law and Justice Committee in the Senate -- are dealing with beer-related issues: whether Sheetz and other convenience stores and supermarkets can sell beer to go, and whether distributors can sell 18-packs.

The PA legislature is clearly a few bottles shy of a case on the direct shipping issue. This proposed law isn’t about Pennsylvania wines or those who buy them. It’s about making sure the state can collect the 18% Johnstown Flood Tax on non-Pennsylvania wine that is purchased through the Internet and shipped into PA. What’s even more bizarre is that the legislature appears to be oblivious to the fact that these Internet wine sales are happening right now. That’s right—currently, there are Internet sites out there that will sell you wine and ship it directly to your door in PA. So, while the legislators wrestle with the heady issue of whether PA’s archaic liquor laws will allow WaWa to sell a six of Bud, the state is hemorrhaging money in lost taxes as its residents take advantage of wine deals on the Internet.

Not having to pay the Johnstown Flood Tax when they order wine over the Internet sounds like great deal for PA consumers. But if getting burned on lost revenue isn’t enough to convince the legislature to move this issue to the “front burner,” perhaps they should no longer be allowed to operate the stove.

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The Truth About Foie Gras

My most recent WineCHOW column over at ClassicWines.com is called “The Truth About Foie Gras,” and it highlights the scientific studies by Dr. Daniel Guémené and others that debunk many of the claims activists use to argue for a ban on the sale and/or production of foie gras.

I expect some fallout over the column, especially from my vegan and vegetarian friends. But one of the themes of the article that even those who enjoy a vegan or vegetarian lifestyle should be able to appreciate is this: Personal beliefs are one thing, but when it comes to legislating those choices on others, the science should support the claims being made.

The part of the article that may be harder for some to swallow, though, is that many of the claims used to justify foie gras bans simply are not all they're quacked up to be.

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PhilaFoodie Interviewed by WHYY's Marty Moss-Coane on Radio Times

I was invited to participate in a radio segment today regarding the power of restaurant reviews on WHYY’s Radio Times hosted by Marty Moss-Coane. Recently, restaurants have been making news by fighting the critics who gave them unflattering reviews: the spat between Kobe Club owner Jeffrey Chodorow and New York Times reviewer Frank Bruni, an Ireland court’s verdict against a restaurant critic for libel (apparently one of the first of its kind), and of course the t-bone of contention between Chops Restaurant and Philly’s own Craig LaBan. Marty thought it would be fun to explore with me some of the general legal issues regarding libel as they pertain to restaurant reviews, so that’s what we did.

For those interested in listening to the podcast, here are the links: MP3 and Real Player.

The first caller was a little BENT-up about a review that HAMMERED his restaurant several years ago. Marty eventually PRIED out of him the POINT the critic had made in the review that ended up being too much for his restaurant to HANDLE: believe me, it’s a NAIL-biter.

In retrospect, I think this was a prank caller. While nobody likes to be the target of such a prank, you've got to give the guy props for executing it without being caught in the act, which, presumably, is the goal. Well done, sir.

Many thanks to Marty and her wonderful and talented staff for inviting me onto the show and for being so welcoming and gracious while I was there.

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The New York Times Weighs-In On Chops Restaurant's Lawsuit Against LaBan

In today’s New York Times you’ll find an illuminating article by Adam Liptak about the lawsuit Chops filed against Craig LaBan. (See “Serving You Tonight Will Be Our Lawyer”) (registration required).

Liptak puts some meat on the bone by placing the Chops lawsuit in context with other cases in the U.S. that have been litigated against restaurant critics, all of which have failed. Liptak covers the international angle as well; apparently such lawsuits are more successful in Ireland. You’ll also find a quote in there from yours truly.

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Chops' Beef With LaBan

The Daily News reported last week that Chops and Alex Plotkin, the managing member of Chops, sued Craig LaBan and the Philadelphia Inquirer for libel. The subject of the lawsuit is this three-line review of Chops in the “Or Try These” sidebar to LaBan’s Feb. 4 review of Fleming’s in Radnor:

A serious power-lunch crowd makes this sunny room feel like “the Palm on City Line.” A recent meal, though, was expensive and disappointing, from the soggy and sour chopped salad to a miserably tough and fatty strip steak. The crabcake, though, was excellent. Revisited January 2007.

No matter how unkind, a restaurant review typically is not fertile ground for a successful libel action. Those who sue restaurant critics often don’t win for one or both of the following two reasons:

1. Restaurant Reviews Are Considered Opinions. Generally, opinions are privileged (and, therefore, not actionable), while statements of fact are not. The distinction between fact and opinion, though, is not always clear. For example, even statements of fact in restaurant reviews can be considered part of the opinion when read in context of the entire review. Of course, statements of fact are protected if they are true. But statements of fact don’t have to be 100% true to be protected; they only have to be substantially true.

2. Restaurants Are Seen As Public Figures. If you’re a public figure, you can’t win a libel suit merely by proving that what somebody wrote was false. You also have to show that the false statement was made with “actual malice.” This means you have to show that the person either knew that what he or she was writing was false or that he or she entertained serious doubts as to the truth of the statement but published it anyway. Public figures have this higher burden because they’re expected to use the public forum to which they have access to set the record straight. Restaurants are considered limited public figures for purposes of a review because they are places of public accommodation seeking public patrons.

Plotkin has a beef with two words in the review: strip steak. In his complaint (which I obtained from the court), Plotkin alleges that LaBan “ate a steak sandwich without the bread, not a strip steak . . . .” But it’s still not clear what the sandwich was made of. Although Plotkin alleges that “[t]here is a significant difference in the meat, preparation of and presentation to the customer of a steak sandwich compared to a strip steak,” he does not come out and say that the sandwich was not made with strip steak. If the sandwich was made with strip steak, or if LaBan believed it was made with strip steak, Plotkin may have a tough time proving the libel claim.

Plotkin’s complaint also contains some extraordinary allegations that are bridge-burners, to say the least. For example, Plotkin claims LaBan has a “vendetta” against him because Plotkin “jokingly” threatened to reveal his identity to a room full of Chops patrons in 2002. He also claims that LaBan’s invite to participate in his weekly Q&A forum was a “set up” during which LaBan planned to further embarrass Plotkin with the aid of (and I love this phrase) “sham ‘bloggers’.”

But perhaps the most brazen allegation is the one in which Plotkin drops the F-bomb—fraud. Plotkin does not assert a cause of action for fraud; however, he does allege that LaBan fraudulently publishes food reviews based on what he is told by others instead of his own personal experiences.

Vendetta? Sham-bloggery? Fraud? These are bold allegations. But will it all backfire?

There’s another reason you don’t often see restaurants suing critics—it’s not good for business. Restaurants need critics. Even if a review is less than stellar, it’s still press. Negative reviews certainly can sting, and it’s instinctive to want to fight back. But there is something worse than a negative review: no reviews at all. Or perhaps even worse, a positive review that no one can trust.

In other words, Plotkin’s lawsuit could have a chilling effect. Reviewers may now believe that if they say something negative about Chops, they too could get sued. How many restaurant critics do you think are going to rush out to review Chops now that it has a reputation of suing a restaurant critic? My guess is very few, if any. What critic is going to take that risk? It could be long time before you read another review of Chops, positive or negative.

But that’s only half of it. Let’s say someone does give Chops a positive review sometime in the future. Aren’t you going to wonder whether the reviewer was influenced by the fear of getting sued? Can a favorable review of Chops be trusted at this point? Possibly. But as a result of Plotkin’s lawsuit—win, lose or draw—these are questions that could dog every positive word that is written about Chops for a long time to come.

Disclaimer:

The information provided in this blog post is not intended to be legal advice, but merely conveys general information related to certain legal issues and the possible contents of a steak sandwich someone else ate. (Keep in mind, I write a food and wine blog. Any lawyer who has time to write a food and wine blog probably isn’t worth listening to for legal advice.) The information is not guaranteed to be correct, complete or current. PhilaFoodie makes no warranty, expressed or implied, about the accuracy or reliability of the information in this post or at any other website to which this post is linked. (Nobody really reads or links to this blog anyway, but, hey—belts and suspenders, yo.) The views and opinions expressed herein are PhilaFoodie's and are not the views or opinions of his employer.

This information is not intended to create any legal relationship between PhilaFoodie and the person reading this post. This post is not intended to create and does not create an attorney-client relationship between the reader and PhilaFoodie. This post is not soliciting clients and does not propose any type of transaction. You should not act or rely on any information in this post without seeking the advice of an attorney. (Again, I’m makin’ it up as I go along here, folks. Just in case that wasn’t clear by now.) The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on blog posts, especially posts from a food and wine blog for cryin’ out loud.

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Guacamole or Guaca-faux-le?

According to an article in Thursday’s LA Times, a California woman filed a class action lawsuit against Kraft for misrepresentation because its guacamole dip didn’t have enough avocado in it.

Now, just hold on a minute. I know what you’re thinking—another frivolous lawsuit, right? Wrong. You should be ashamed of yourself. Read the LA Times article. Believe me, you don’t file a lawsuit like this unless you have an FDA rule tucked under your belt telling you exactly how much avocado should be in guacamole.

“[T]he Food and Drug Administration has no legal standard mandating how much avocado should be in guacamole.”

OK, so there’s no FDA rule. No worries. That doesn’t mean the package isn’t misleading. Certainly, for someone to actually file a lawsuit against Kraft for misrepresentation, the label must not list how much avocado is in the dip.

“If consumers read the fine print, they would discover that Kraft Dips Guacamole contains less than 2% avocado … All of the ingredients are listed on the label for consumers to reference.”

Alright, alright. So the package tells you exactly how much avocado is in the dip. But that doesn’t mean she hasn’t been injured. You can’t sue somebody unless you’ve been injured. And I’ll bet you dollars-to-donuts that she suffered some grave and serious injury—one that will tug at the jury’s heartstrings, one that we can all relate to.

“Brenda Lifsey, the plaintiff, said she made a three-layer dip with Kraft guacamole last year only to discover that it contained almost none of the ingredient she most expected: avocado. ‘It just didn't taste avocadoey,’ said Lifsey….”

OK, so…no injury either. Hmm. Well, look, don’t judge this woman too harshly. I mean, it’s not like she’s one of those people who has made a career out of suing large corporations.

“Lifsey has been a plaintiff in other lawsuits against large corporations. A few years ago, she joined a lawsuit against Sears, claiming that the retailer misrepresented that its Craftsman tools were U.S. made. That case is still in the courts. She also was part of a suit filed last year against vehicle reporting service Carfax Inc., alleging that it did not have access to police accident reports in California and other states even though it advertised that it could provide vehicle history records. Carfax denied the claims.”

Oh well, Brenda. I tried.

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Wine Fraud On the Rise

The Wall Street Journal reported today that wine fraud is on the rise. (See “Swell or Swill?,” subscription required.) Wine fraud is a form of counterfeiting—“bogus bottles bearing some of the most prestigious labels.” Detection has become more difficult because now the fraudsters actually put half-decent wine in the bottles bearing their fake labels.

Fortunately, U.S. winemakers have been largely untouched; counterfeiters usually target historic labels and wines that are in vogue.

To combat the problem, winemakers are experimenting with placing holograms into the wrapping that seals the cork and embedding microchips in the labels.

Most of us aren’t buying the type wine that people want to counterfeit. Nevertheless, here are two easy ways you can protect yourself, or at least look cool at a cocktail party:

• Check the cork. A lazy counterfeiter may simply remove the label from a bottle of low-grade wine and replace it with a fake label bearing the name of a prestigious winemaker. To detect this type of fraud, check the cork for the name of the winemaker and compare it to the label. If the two don’t match, you know something screwy is going on. That’s actually why the server presents you with the cork after he or she has opened the bottle; it’s old school ceremony left over from when wine didn’t have labels. Oh, and by the way, don’t sniff the cork. You’re not going to learn anything from doing that. If the wine is tainted, you’ll know by tasting it before you accept the bottle.

• Educate yourself. Spend some time learning about the types of wines a counterfeiter likely would target. As high-end wines become more available on the Internet by the bottle (including via Internet wine auctions), you may decide one day to splurge and buy an expensive bottle of wine for a special occasion. Knowing that the wine you’re considering may require closer scrutiny will be helpful. Even if you don’t plan to splurge, appreciating wine is a cerebral experience—learning about it is just as much fun as drinking it. Well…maybe not AS fun….

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WWGD: What Would Geno’s Do?

The Philadelphia Inquirer reported yesterday that Philadelphia’s Commission on Human Relations (“PCHR”) filed a complaint on Monday against Geno’s Steaks alleging violations of two of the City’s anti-discrimination laws: (1) refusing service to someone because of his or her national origin; and (2) posting written notices to the effect that services will be denied on account of national origin. (See Phila. Code §§ 9-1105(a)(1)(a) & (b).)

What puzzles me is this: the inflammatory signs at Geno’s have received national attention, scarring Philadelphia’s image and eroding its reputation as the City of Brotherly Love. People in Philly are pissed at Geno’s owner, Joe Vento; he has received complaint letters and even death threats. So, then, why hasn’t any non-English speaking, cheesesteak lover filed a private law suit against Geno’s?

Normally, if you want to sue for a violation of federal or state discrimination laws, you have to exhaust all of your administrative remedies before you file your lawsuit in court. The administrative process, however, can be long and drawn-out, and often is criticized as an impediment to true legal redress. The Fair Practices chapter of Philadelphia’s City Code, however, does not appear to have such a limitation. Rather, it has it’s own private right of action that does not appear to be limited by an exhaustion requirement. (See Phila. Code §§ 9-1110.)

To put it in plain English (because, of course, that’s what Geno’s wants us to do), if you believe someone discriminated against you in violation of Philly’s Fair Practices Code, it looks like you don’t have to wait for a green light from some administrative agency before you go to court, which is sorta like not having to wait in line to get your cheesesteak after you stumble out of Ray’s Happy Birthday Bar at 2:00 a.m. on a Saturday morning. Plus, the Code allows you to ask for attorney’s fees, which is kinda like having Geno’s pay someone to stand in line to get you a Whiz wit. Capisce?

All I’m saying is, ask yourself this question: If you’ve been wronged by Geno’s antics, why not show them that you know what it really means to be a citizen in this country and hire a lawyer? After all, isn’t that the American way? If that’s the American way, isn’t that what Geno’s would do? And if that’s what Geno’s would do, isn’t that what you should do?

Speaking of the American way, I’ll end this post with a disclaimer. After all, what sign is more American than a good ol’ fashioned disclaimer? Being fond of signs themselves, I’m sure Geno’s would agree.

Disclaimer:

The information provided in this blog post is not intended to be legal advice, but merely conveys general information related to certain legal issues and cheesesteaks. (Keep in mind, I write a food and wine blog. Any lawyer who has time to write a food and wine blog probably isn’t worth listening to for legal advice, especially if the lawyer analogizes discrimination law to standing in line for cheesesteaks.) The information is not guaranteed to be correct, complete or current. PhilaFoodie makes no warranty, expressed or implied, about the accuracy or reliability of the information in this post or at any other website to which this post is linked. (Nobody really reads or links to this blog anyway, but, hey—belts and suspenders, yo.)

This information is not intended to create any legal relationship between PhilaFoodie and the person reading this post. This post is not intended to create and does not create an attorney-client relationship between the reader and PhilaFoodie. (I could be Joe Vento, for all you know. Would you want Joe Vento to be your attorney? I didn’t think so.) This post is not soliciting clients and does not propose any type of transaction. You should not act or rely on any information in this post without seeking the advice of an attorney. (Again, I’m makin’ it up as I go along here. Just in case that wasn’t clear by now.) The determination of whether you need legal services and your choice of a lawyer are very important matters that should not be based on blog posts, especially posts from a food and wine blog, for cryin’ out loud.

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Rendell Uncorks PA Wine Shipping Plan

The Philadelphia Inquirer reported today that Gov. Rendell has proposed legislation that would allow Pennsylvania consumers to have wine shipped directly to their door from out-of-state wineries. As part of the proposal, the wineries must collect PA’s 18% Emergency Tax (a/k/a/ the “Johnstown Flood Tax”).

This is a good plan.

The Inquirer article, however, implies that the glass is only half full. The article appears to express disappointment with Rendell’s proposal, stating that the “rub” is that the plan includes the consumer paying the 18% Johnstown Flood Tax on direct shipments. This apparent criticism is a bit unfair.

First, the Johnstown Flood Tax had to be part of the deal. In a Feb. 20, 2006 Inquirer article, Rendell said he “would support direct shipments of wine to Pennsylvanians if it can be done with minimal loss of state revenue.” He’s talking about the Johnstown Flood Tax. The state has been feeding from that teat for over 70 years. It ain’t letting go now, if ever. Rendell admitted that the state needs that money. So there was never going to be a direct shipping law that did not include the Johnstown Flood Tax. That’s the political compromise. If people want inexpensive wine, the PLCB has plenty of offerings in their stores. The people who are going to be ordering directly from wineries aren’t going to mind paying the taxes they’ve already been conditioned to pay in exchange for the ability (finally) to choose what to drink.

Second, Rendell’s proposal could have been worse:

• It could have banned direct shipments altogether. PA’s law was declared unconstitutional on Equal Protection grounds. Banning all direct shipments—from both in-state and out-of-state wineries—would have complied with the U.S. Supreme Court’s decision. Sadly, this is what some other states, such as Alabama, chose to do in response to the ruling. So, at least we’re not Alabama.

• It could have had the wine being shipped directly to state stores instead of your door. Proponents of this option argued that if direct shipment is allowed at all, the shipments must go directly to the state stores because (1) that’s the only way to collect the Johnstown Flood Tax; and (2) underage kids would be ordering wine. Both of these arguments have been debunked. Taxes can be collected through a license procedure, which is part of Rendell’s plan. That’s how other states have done it, and if you couldn’t figure that one out, you probably don’t deserve to be a state legislator. Also, other states haven’t had any problems with direct shipment leading to underage drinking.

• It could have made direct shipment even more expensive. My understanding is that if you want to order wine through the PLCB’s Special Liquor Order (“SLO”) process, they tack on a 30% mark-up in addition to the Johnstown Flood Tax. When Rendell signaled that the direct-shipping plan needed to be done “with a minimal loss of state revenue,” it was unclear how the 30% mark-up factored into the equation. If you could order directly from the winery, there would be no need to do an SLO, which would mean lost revenue for the state. While taxes can be collected from the out-of-state wineries through the permit process, the 30% mark-up may be a different story. So, my concern was that the proposal actually would include an increase to the Johnstown Flood Tax to make up for any anticipated loss in revenue from potentially not being able to collect the 30% mark-up. It didn’t. Be thankful.

But there may be a few bugs in Rendell’s proposal. It is not clear from the Inquirer article whether the proposal allows restaurants to order directly from out-of-state wineries. The article says that Pennsylvania wineries would lose their right to ship directly to restaurants. However, Kevin Joyce, the owner of the Carlton Restaurant in Pittsburgh and the president of the Pennsylvania Restaurant Association, implies that the ban extends to out-of-state wineries as well. If Joyce is correct, that could be a problem. First, it may raise further Equal Protection issues. Second, if out-of-state wineries can’t ship directly to restaurants, it could be a disincentive for out-of-state wineries to apply for direct shipping permits. And, ultimately, that could translate into consumers not having that many additional choices, which was the whole point of allowing direct shipment in the first place.

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