For more proof that we need some sort of loser-pays system in civil liability law, the Center for Science in the Public Interest (CSPI) and others have threatened Viacom and Kellogg with a billion dollar lawsuit over TV commercials. Their demand letter fails to cite an actual cause of action.
They reference Massachusetts General Law, Chapter 93A which has much explanation and precedural statute but basically reads “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Pretty simple. Massachusetts refers to the Federal Trade Commission Act (15 U.S.C. 45(a)(1)) which has similar wording. “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”
What they don’t do is identify an unfair or deceptive act, anywhere in the letter.
Based on this letter, CSPI wants the court to order:
- That CSPI’s definition of “food of poor nutritional quality” be established as correct.
- That such food may not advertised “directly before, during, or directly after any Nick Jr. programming” or any other programming where 15% of the audience is under 8.
- That such food may not be advertised on any TV channel, magazine, G or PG movie, or web site when 15% of the audience is under 8.
- That such food may not be advertised in any other way to children under 8.
- Damages of $25 for every time any child under 8 sees any such advertising, AND every time a parent purchases such food.
- Attorney’s fees.
So, CSPI wants to (1) replace the legislature as the definer of law, (2, 3, 4) create a content based restriction on legal speech, (5) make a legal product effectively illegal to sell, and (6) be paid for doing it.
Whether or not you like the idea of kids eating Captain Crunch when their parents say it’s OK, this is a baldfaced attempt to end-run the democratic process and make law in the courts. This lawsuit violates the parents’ right to feed and raise their kids as they see fit. It violates the basic right of Viacom and Kellogg to engage in lawful commerce. And the “heads I win, tails you lose” state of civil law violates all of our right to be secure in our persons and our possessions. CSPI can’t get their program through legislatively, so they file a lawsuit that will cost the companies millions to defend even if they win. And the threat of a huge potential judgement, however improbable, makes it more likely that the defendants will settle.
Which just gives CSPI more money to go after the next target. But CSPI has nothing to lose. They can file one huge, frivolous, groundless lawsuit after another and never have to pay for their actions. This kind of irresponsible behavior is destroying many legal industries and raising prices of just about everything you buy, with no significant benefit.
This suit should be dismissed in summary judgement, but it won’t be. The legal ‘profession’ has decided that just about every case deserves to be heard, no matter how much everyone else has to pay to lawyers.
Maybe Shakespeare was right.