Both original posts from here
Currently in Civil Litigation we are currently undertaking a reconstruction of a real case that had at its heart, a claim for ‘misleading and deceptive’ conduct.
These two examples are quite illustrative of some of the legal tests applied to the alleged misleading or deceptive conduct, where the facts lend themselves more easily to a legal analysis.
The class action lawsuit in New York’s Supreme Court accuses the doughnut maker of false advertising, fraud, and unjust enrichment. It calls Dunkin’s jelly doughnuts “defective and deficient due to their skimpy, scanty, paltry, pitiful, meager and otherwise insufficient quantities of jelly within each said doughnut unit.”
In my follow-up post, I’d written how easy it is to “have it your way” and simply ask for less ice.
And now, as expected, the iced coffee lawsuit has been tossed out. (Decision – Forouzesh v. Starbucks) For the same reason that I wrote. And for that matter, the same reason that countless others no doubt had written. Even a child knows you can ask for less ice:
But as young children learn, they can increase the amount of beverage they receive if they order “no ice.” If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.
This conclusion is supported by the fact that the cups Starbucks uses for its Cold Drinks, as shown in the Complaint, are clear, and therefore make it easy to see that the drink consists of a combination of liquid and ice.
As I (and countless others) had indicated, an iced drink contains ice as an obvious ingredient. The court (shocker!) concurs on the obviousness of it all:
When a reasonable consumer walks into a Starbucks and orders a Grande iced tea, that consumer knows the size of the cup that drink will be served in and that a portion of the drink will consist of ice.
The problem with bad suits is that they form public opinion based on anecdotes, not empirical evidence. Empirical evidence can be boring. But an idiotic suit — even if it is one in ten thousand — sells papers.
With the health of the two presidential candidates, aged 68 and 70, in the news, it’s worth revisiting the statement given out by Donald Trump’s gastroenterologist, Dr.Harold Bornstein. You may remember this from last December for its comical and very Trumpian statement:
“If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency” (Full letter)
Yeah, that Harold Bornstein. Dr. Jen Gunter did a full, line-by-line, deconstruction of the letter at the Huffington Post: I’m A Doctor. Here’s What I Find Most Concerning About Trump’s Medical Letter.
Well, it turns out the letter was even worse than Dr. Gunter thought. And that is because of the signature block, where Dr. Bornstein signs his name with “F.A.C.G.”
That stands for Fellow of the American College of Gastroenterologists. In order to be a Fellow, one must be board certified and pay your dues to the organization. And being board certified is a very big thing for doctors, since it entails taking a grueling test to show that you have the knowledge to be an expert in your field.
The gastroenterology boards are a subspecialty of internal medicine.
But as Rachel Madow learned, after being tipped by one of her viewers, that membership in ACG actually lapsed in 1995 — 21 years ago. And according to the American College of Gastroenterologists, he shouldn’t be claiming he is a member of the organization if he is no longer a dues paying member of the organization.
Yet Dr. Bornstein continues to use those initials after his name.
Dr. Bornstein, incredibly, responded to Madow’s request for comment and said that:
F.A.C.G. is a title that they sell for a fee; in reality it has no value.
He then went on to explain to Madow that he would continue to use this title that “has no value.”
Now that I have given you the past, let me stand on the shoulders of Gunter and Madow to go further with some facts and opinion: What he is doing is fraud.
The website for the New York State Department of Health, gives examples of medical fraud:
Examples of Medical Fraud
- False and intentionally misleading statements to patients.
- Submitting false bills or claims for service.
- Falsifying medical records or reports.
- Lying about credentials or qualifications.
- Unnecessary medical treatment or drug prescription.
You can see the one that I highlighted. I posted all of the ones listed so that you can see the significance of the infraction. Not significant to me as someone tossing around opinions, but to the Department of Health.
Is this something that the Department’s Office of Professional Medical Conduct (OPMC) should be investigating? Maybe.
I called Douglas M. Nadjari for an opinion, he being an attorney who represents physicians primarily involving matters of professional misconduct before the Office of Professional Medical Conduct and the Office of Professional Discipline.
While not discussing Bornstein/Trump in particular, since he doesn’t have knowledge of the facts, he said that investigation and charges of professional misconduct could theoretically be pursued regarding a physician with a false credential for:
- False advertising; and
- Practicing the profession fraudulently
- Lack of moral fitness
If the doctor were indeed board certified, OPMC would not pursue discipline unless it received a complaint or if a patient was injured. If one of those two things happened, he would likely be asked to consent to an interview and be asked to change his ways.
The kicker for me, though is that he apparently already knows what he is doing is wrong. And has refused to change it.