The Case of the Missing Tuna

July 25, 2021 00:19:47
The Case of the Missing Tuna
USLawEssentials Law & Language
The Case of the Missing Tuna

Show Notes

Episode 13

The USLawEssentials Law & Language Podcast continues its What’s New in the Legal News series with a case about …. tuna! Or allegedly missing tuna. Daniel Edelson introduces a recent news story about plaintiffs who sued a restaurant franchise for mislabeling its tuna sandwich. And Stephen Horowitz tells us about his favorite hoagie restaurant.

If you’re hungry for legal English, or just hungry to know more about hoagies, subs, class action lawsuits, and detecting tuna DNA, you’ll enjoy this episode.

Here is a link to the article:

And here is a link to the Complaint:


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Episode Transcript

Speaker 0 00:00:00 Welcome to the U S law essentials law and language podcast, the legal English podcast for non-native English speakers that helps you improve your English, listening, improve your legal English. You build your knowledge of American legal culture. Speaker 1 00:00:22 Welcome to the U S law essentials law and language podcast. I'm Steven Horowitz and I'm Daniel Edelson. And today's episode is part of our what's new in the legal news series, where one of us picks a legal news event to talk about today. It's Dan's turn. So Dan what'd you pick for us today. Speaker 0 00:00:43 Okay. Before I tell the story, Steve, I'm going to ask you a question. Okay. Steve, do you like sandwiches? Speaker 1 00:00:53 Do I like sandwiches? Yeah, I love sandwiches. Speaker 0 00:00:56 Excellent. Okay. So Steve, now, if you, if you were to eat a sandwich with two long pieces of bread, would you call it a sub a submarine sandwich or would you call it a hoagie? Speaker 1 00:01:10 Ah, I know this question. Well, I am from New Jersey. That's where I grew up and there and in New Jersey, especially in, in south Jersey and around Philadelphia, they call it a hoagie. So that's what I grew up calling it. I call it a hoagie. And in fact, we have the best hoagie place in the world in Princeton, New Jersey, where I grew up called hoagie Haven, hokey Haven. Speaker 0 00:01:34 You see, I knew we had something in common. You see, I was born outside of Philadelphia, although we moved to New York when I was young and when I moved, I had to change my dialect. So I had to stop calling them hoagies. And then I had to start calling them subs or submarine sandwiches Speaker 1 00:01:53 Just because you went from New Jersey to New York, from Pennsylvania to New York. Wow. You know, I, and I think if you went up just a little bit further up to Boston, you'd be called, you know what, you'd call it. Right, right. In Boston. Uh, I'm not sure in Boston, they're called grinders. Speaker 0 00:02:11 Oh, that's right. You know, I'm embarrassed to say I lived in Boston for a while and I completely forgot that. Speaker 1 00:02:16 And I think it's just this Northeast where we have this, this, uh, different dialects or words for, for hoagies or subs. I think the rest of the country just calls them subs. Speaker 0 00:02:28 Well, you're obviously an expert. So if you are familiar with subs or hoagies, then you've got to be familiar with the sandwich restaurant chain called subway. And I think they're even international Speaker 1 00:02:44 Now. Yes. I'm very familiar with subway. I remember when I was living in Japan and they opened up a subway in Nagoya and I had not had like a, a full on, you know, hoagie type sandwich for, I guess it was like two years. So I was actually very excited now I don't really eat subway anymore, but at the time I'm very excited. All right then, Speaker 0 00:03:07 Well, I won't get into whether or not you like the subway restaurant better than hoagie Haven, but our news story today. And there's a link in the show notes. Our new story today is subway is being sued for mislabeling. It's tuna as tuna. Speaker 1 00:03:27 It, it called it's tuna, tuna, but it's not, but that's not the right label for tuna. That's Speaker 0 00:03:35 Pretty much it, but it's not that the label isn't the right label for tuna. It's that there's no tuna at all. The lawsuit alleges that the subway restaurant chain is misrepresenting its sandwiches as containing tuna, but really there's no tuna at all in these sandwiches Speaker 1 00:04:00 And, and who, who is suing? Like what, how do you Sue on that basis? You go, you get it. You order, you have to go in and order one first you get a tuna sub and then you just Sue and say, I've been injured because I there's no tuna on my tuna up. Speaker 0 00:04:19 You know, I guess you could do that. But then there's a question about how much you paid for the sandwich, how much it would cost to get a lawyer and all the time involved in the lawsuit, you know? So it might not really be worth it to you. Speaker 1 00:04:34 They just give me back, right? They just give me a coupon for another kind of sub instead of tuna. Speaker 0 00:04:40 You know, I bet if you complained long enough and hard enough that the restaurant might give you a coupon, although I doubt they would admit that the food didn't contain tuna, but this lawsuit is being brought as a class action class action, right? A class action. Now some countries have class action lawsuits, other countries don't I think, but essentially in a class action, you have one plaintiff or just a few plaintiffs. And remember plaintiffs are the people who are suing and they're suing as representatives or on behalf of a larger group of people. And that larger group of people is known as the class. So a class action lawsuit is where you have some named plaintiffs. Those are the plaintiffs who are named in the lawsuit and they're suing on behalf of this larger class. Speaker 1 00:05:41 And who's this larger group. How do you get into this larger group? Do I have to ask to be in it? Or how does that work? Do you think Speaker 0 00:05:49 You wouldn't ask to be part of the class before the lawsuit starts and there are different kinds of class lawsuits, but essentially here what's happened is you have a few plaintiffs who say, well, we are typical tuna sandwich eaters. And we went to the subway restaurant. We got tricked into buying what we thought was a tuna sandwich, but it really wasn't a tuna sandwich. And so now we can represent this larger group of people who have bought tuna sandwiches from subway and got tricked into buying something that actually wasn't tuna Speaker 1 00:06:34 And, and what what's the basis that is there, is there some sort of law that's being violated? You think there's Speaker 0 00:06:41 A number of different allegations in the complaint about what defendants have done wrong. And keep in mind that in the us civil litigation plaintiffs will typically include every reasonable cause of action that they can come up with and included in their complaint. Speaker 1 00:07:01 A cause of action. You said, Speaker 0 00:07:04 Right? A cause of action. A cause of action is the legal theory on which the plaintiff is basing his complaint. So I'll give you a couple of examples in this litigation. One cause of action is fraud or intentional misrepresentation that is plaintiffs are alleging that defendant knew that the sandwiches didn't contain tuna, but they lied in order to trick people and to make them think there was tuna in the sandwiches. Okay. Speaker 1 00:07:38 So that's one cause of action, Speaker 0 00:07:41 Right? That's just one cause of action. Another cause of action in the complaint is that defendants were negligent and negligence is like carelessness. That is maybe the defendant didn't intentionally lie, but the defendant had an obligation to tell the truth was careless with the truth should have known that these tuna sandwiches didn't really contain tuna. And therefore the defendant is liable because they carelessly told something untrue. Speaker 1 00:08:15 Ah, so they're trying to arguments. One is, they're saying you and you did this on purpose. You know, it's not tuna. And you said it was. And then just in case we can't prove that one, a negligent misrepresentation is you should have known you're in a position and you're in charge of the company. You should, you should know if it's 200 or not. So even if you personally didn't know, um, you, you know, you should know better. So those are two different arguments they make. And they're hoping that at least one of them were, yes, that's right. Speaker 0 00:08:46 And there's also other legal theories in the complaint, in addition to misrepresentation and negligent, misrepresentation plaintiffs also alleged in the complaint that defendants violated certain consumer protection statutes. And these are laws that are intended to protect people who buy things like food or other goods. So the complaint alleges that the defendants violated the statutes by selling food that wasn't really tuna and that the plaintiffs have a right to Sue under these consumer protection laws. Speaker 1 00:09:26 You keep using a word, uh, alleged, you keep saying they alleged. Why, why don't you just say? They said, Speaker 0 00:09:33 Yeah. And I think that's pretty typical for lawyers. Um, and allegation that's something that's not proven yet. And I think lawyers tend to be pretty careful to be clear that something is just being alleged because it hasn't been proven true yet. The closest word to alleged, I think would be like accused, but accused is used more often in a criminal context. And the, and because this is a civil lawsuit, we would just say these are allegations Speaker 1 00:10:05 Because you could say claim also they claim that, that, you know, there was intentional misrepresentation, but they always, but we like to use the word allege. I think it, maybe it sounds a little more neutral than claim. Speaker 0 00:10:18 That's a good point. Allegation does have a fairly neutral connotation. And I think it's interesting noting how some legal English words often have very similar, regular, regular meaning. So for example, we say the complaint and the plaintiff has filed a complaint and that's the document that starts the lawsuit. But on the other hand, let's say you went to the restaurant and the food wasn't very good. Well, yeah, you might submit a complaint to the restaurant, but obviously that complaint is much different from a legal complaint. Speaker 1 00:11:04 Ah, I see. Got it. So then, so the complaint is how you start a lawsuit. You file a complaint I guess. Right? All right. So Speaker 0 00:11:11 Here, the complaint is drafted to be a class action complaint. Speaker 1 00:11:18 So here's another question. Getting back to the, these poor customers who thought they were getting tuned up, but now are worried that they didn't like, I guess I sort of asked this before, but what's the damage like how much can somebody really get and who wants to spend time doing this? Speaker 0 00:11:36 I think that hits on one of the reasons why we have class action lawsuits in the United States. So let's say you have a large number of people, who've all sustained a similar kind of injury. And in this case it would be, well, every person who bought a tuna sandwich that wasn't really a tuna sandwich and it would be hard to argue Speaker 2 00:12:00 That that any individual Speaker 0 00:12:02 Customer suffered some grave, economic loss. I mean, how much did each person really spend for this tuna sandwich? So each of these individual plaintiffs might not really have the time or money to file a lawsuit by turning this into a class action. We combine all of these different claims. Now the plaintiff's counsel, the class action counsel has an incentive to bring this case because if there is money awarded at trial, or if the defendant agrees to pay a certain amount of money in a settlement, well then the plaintiff's class action attorney will get a large percentage of that money and there'll be a procedure to distribute the remaining money to each member of the class. Yes. Speaker 1 00:12:56 So, so Dan, if these plaintiffs are just a, maybe a handful of plaintiffs, that's suing on behalf of this entire class, I mean, do those plaintiffs then have to pay for the lawyers? Is that how it works? And isn't that kind of unfair that they have to do all the pay? Speaker 0 00:13:14 Well, typically in this type of class action lawsuit, the plaintiff's counsel is working based on a contingency. That is if there is some sort of monetary award or if the defendant agrees to pay, then plaintiff plaintiff's counsel will receive a percentage. And again, this can be money that's awarded at trial, or it can just be money that the defendant agrees to pay Speaker 1 00:13:43 Like a, like a negotiated settlement. Speaker 0 00:13:46 Right. And, and it can often, in some cases at least end up being a lot of money. Speaker 1 00:13:52 Wow. I, I can see now why, why the rest of the world must see America as a very, um, litigious and, uh, litigious society that likes to Sue a lot. I mean, there's these incentives for lawyers to sort of create these cases? I mean, on one hand, I think about, um, famous class action suits, like, um, uh, when a drug, uh, like the thalidomide case where there was a drug that caused the birth defect, uh, back in the, I think it was the seventies. So of course there's a lot of people affected and there's a class action lawsuit to make sure that everybody is compensated for these horrible losses they suffered. But then on the other hand, I get things in the mail occasionally where it's like a coupon from Microsoft because of some class action lawsuit. So now I can get a discount if I buy something at Microsoft. So I don't, I'm not going to use that discount. I hardly get anything, but I'm guessing that the law firm, my getting a little bit thinking of the value of that and get some payment from the company. Um, I hate to use the word, but it almost sounds like a, like a bit of a shakedown Speaker 0 00:15:08 You're bringing up a good point. And I think there would be general agreement though, that class actions in some ways have been beneficial in terms of enabling people to bring lawsuits against companies that were creating dangerous products and law class action lawsuits have also been instrumental in certain civil, civil rights cases. But to be sure there's some cases that have just been a lot more controversial. Speaker 1 00:15:41 Yeah. So do you think w what's your sense in the subway cases, this feel more like a, a shakedown, a controversy or a suit created by lawyers, and then they gather they gather the plaintiffs up afterwards, or do you think there were plaintiffs that were really angry and said, you know, this needs to be corrected. Let's go to the, let's go find a lawyer. I Speaker 0 00:16:01 Really have no idea, but I have to admit every time I hear about this case, I think about this one Simpsons episode, do you watch the Senate? Speaker 1 00:16:11 Yeah. I used to love the Simpsons and it was, it was always really great social commentary and they had a lawyer character on there. Right, right. Speaker 0 00:16:18 And this lawyer is a really unintelligent, immoral, or amoral character. But in this Simpsons episode, Homer goes to an all, you can eat seafood restaurant. And eventually the restaurant has to throw him out because Homer Simpson just won't stop eating and the restaurant has to close. So this lawyer brings a lawsuit on behalf of Homer because he really didn't get all he could eat. Wow. Speaker 1 00:16:50 Never thought about that scenario. Speaker 0 00:16:52 Yeah. It was a really creative episode, but I think we'll have to keep watching this tuna case because there's been some recent developments. Apparently some scientists have tested the tuna sandwiches to see whether or not they can detect tuna in the sandwiches. Speaker 1 00:17:13 Oh yeah. I saw that in the, in the New York times article, I mean the New York times, actually the journalists actually got tuna fish from, they got subway sandwiches and got the tune efficient, send it off to, to labs, to have them, uh, check it for DNA or something. Speaker 0 00:17:31 The article, the initial result was that no tuna DNA was detected. So that would seem to indicate that there's absolutely no. Tonight in these tuna sandwiches, on the other hand, other experts are saying, well, it's possible that the DNA so degraded that it just wasn't possible to detect the tuna. Speaker 1 00:17:55 Wow. So, so you think that, that, that just sending it to a lab would answer the question. It's like a black and white question, but I guess in law nothing's ever fully black and white because there's, if there's no DNA, no tuna DNA in there, there's two different possibilities. One which could mean that they didn't use tuna. And one which could mean that they did, you just can't detect the DNA anymore. Speaker 0 00:18:18 Right. So, Steven, I got one more question for you. Yes or no. Do you think they're ever going to make a movie out of this case? Speaker 1 00:18:31 Wow. That's a, that's a tough question, Dan. Um, in my capacity, as an expert in legal English, I would say I have no idea. I think they can make movies about anything. Um, I guess if they did make a movie about this, I might file a class action suit against the movie because I don't know because why Speaker 0 00:18:58 They stole our idea, obviously. Speaker 1 00:19:02 Yeah. There we go. Okay. They stole our idea intentional or negligent theft of our bad ideas. Speaker 0 00:19:11 Perfect. And in an earlier podcast you interviewed an intellectual property lawyer, so we know who's going to represent us. Yeah, I guess, I guess I do. All right, Steve. Well, thank you so much. Speaker 1 00:19:23 Yeah. Thanks. This is a great case, Dan. I'm glad you found this one. I'm kind of hungry. Now, do you want a tuna fish sandwich? Speaker 0 00:19:29 Sure. Maybe if I'm feeling brave, but you go ahead and get yourself a sandwich or a hoagie or sub or whatever you like. And remember Steve stay essential and thank you very much for listening to the us law essentials law and language podcast.

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