McDonald’s asks judge to dismiss ‘nonsense’ cheese suit

If two South Florida McDonald’s customers’ class action lawsuit against the fast food giant is allowed to proceed because they are upset they have to pay for a Quarter Pounder with Cheese when they don’t want the cheese, it would create “utter chaos” for the retail food industry.

That was McDonald’s response in papers filed Friday to a lawsuit filed on May 8 by Cynthia Kissner of Broward and Leonard Werner of Miami-Dade in the U.S. District Court in Fort Lauderdale.

Kissner and Werner complained that they have been charged the full price of a Quarter Pounder with Cheese, one of McDonald’s signature sandwiches, even after they asked that the burger be modified to hold the cheese.

The class action suit, filed on their behalf by Andrew Lavin of the Miami-based Lavin Law Group, asks for at least $5 million. The suit claims the Quarter Pounder used to be sold in cheese and no cheese versions. The price differential is between 30 cents to 90 cents more for the cheese version.

Prices for a Quarter Pounder with Cheese vary by franchise, but average about $4.20 for the single and $6.20 for the double.

The McDonald’s company’s response, filed by Jennifer Olmedo-Rodriguez of the Miami law firm Buchanan Ingersoll & Rooney, calls the May complaint “nonsense.”

McDonald’s, based in Delaware, asks that the Fort Lauderdale court dismiss the suit on the grounds it doesn’t even offer a Quarter Pounder without cheese as a regular menu item on its menu boards.

Kissner and Werner’s “allegation that McDonald’s restaurants still offer the plain Quarter Pounder hamburger without cheese as an advertised and listed menu item is incorrect,” the response reads. “In fact, Plaintiffs admit that ‘(f)or some time, McDonald’s has not listed as menu items either the Quarter Pounder (without cheese), the Double Quarter Pounder (without cheese), or value meals including these products.’ ”

For more than five years, the only version of the Quarter Pounder that McDonald’s has advertised and displayed on its menu boards is the version with cheese, according to the fast food chain’s response.

“Thus, when a customer orders a Quarter Pounder with cheese or a Double Quarter Pounder with cheese as displayed on the menu, but asks the restaurant to hold the cheese, the customer is customizing a standard menu item to meet a personal preference, in the same way a customer may omit pickles or onions.”

Lavin’s suit countered that the sandwich is available sans cheese when ordered off McDonald’s app.

“First of all, within the past couple months McDonald’s has updated its mobile app and if you want you can, in fact, purchase a Quarter Pounder using the mobile app,” Lavin told the Miami Herald in May. “So McDonald’s is offering two specific products: one is a Quarter Pounder and one is a Quarter Pounder with Cheese. But if you go into the restaurant that option is not available to you.”

McDonald’s disputes Lavin’s claim and says Werner and Kissner have suffered no injuries.

“The customer’s decision to refuse the cheese advertised as part of the sandwich, and which the restaurant is perfectly willing to supply, is no basis for imposing liability on McDonald’s Corp. Any such notion is based on the second fundamental flaw in Plaintiffs’ theory of liability: that retail restaurants have some legal obligation to reduce the price of a standard menu item to reflect the customer’s decision to decline some ingredient or component of that item. This is, in a word, nonsense,” Olmedo-Rodriguez’s response reads.

“Common sense and common human experience dictates that if a customer enters a restaurant and orders a listed menu item, such as a ‘BLT’ sandwich, but elects to customize it to meet dietary restrictions or preferences, such as by omitting the mayonnaise, the restaurant has no duty to modify the listed price of that item to reflect the value of the mayonnaise,” according to the response.

The core premise of Kissner and Werner’s complaint that restaurants have a legal duty to reduce the price of an item to reflect a customer’s decision to ‘hold’ or delete an ingredient, “not only has no basis in law, but would create utter chaos in the retail food industry.”

Kissiner and Werner have until July 13 to respond to McDonald’s motion to dismiss the suit.

TNS