069: Everybody Wants to Be a Critic

Stella Case No. 069, Originally Published: 7 January 2004

Restaurants usually love reviewers. Business can skyrocket on a good — or even mediocre — review. But what if the review turns out to be bad? In America, the restaurant sues.

Lucky Cheng’s, in Manhattan’s East Village, features a bit of shtick with their steak. The waiters — men — dress as women, for instance.

In its “opinionated, witty and no-holds-barred” review, the popular restaurant guide from Zagat opined, “God knows ‘you don’t go for the food’ at this East Village-Asian Eclectic. Rather you go to ‘gawk’ at the ‘hilarious cross-dressing’ staff who ‘tell dirty jokes,’ perform ‘impromptu floor shows’ and ‘offer lap dances for dessert’.” It offered a score of 9 for the food — but that’s out of 30 possible points.

People “don’t go to the restaurant for its food”? That’s not definitude, that’s defamation, the restaurant says. It has filed a suit in Manhattan Supreme Court saying it was “libelously attacked” in Zagat’s review, which “falsely state[s] the quality of food and beverage, service, wait staff, sanitation and cleanliness are substandard and unworthy of patronage.”

The owners claim that the review, published in October 2003, did not take into account improvements in the food since the restaurant came under new management in April 2003.

Thus, those new owners have asked the court to award it $10 million, plus $250,000 for loss of reputation and goodwill, plus $30,000 per week in lost revenue starting October 14, 2003, when Zagat published its 2004 guide. It argues Zagat should have checked the low score assigned to its food to ensure accuracy. (What, they’re expected to eat that stuff more than once?)

Unlike many review services, Zagat does not rely on a particular person, but rather “hundreds or thousands” of patrons who turn in ratings to the company. The ratings cover food, atmosphere and service. Their 2003 guide gave the restaurant a food rating of 8, so a 9 actually represents a 12.5 percent improvement. Isn’t it more likely, then, that the restaurant’s supposed reduction in business is more a reflection of the new management’s actions than the result of a single, improved review?

In response to the suit, a Zagat spokeswoman said the company is “confident of our review of Lucky Cheng’s, and we stand by it. This is the collective opinion of the contributors.” The spokeswoman notes the company has been sued three times before; two of those suits have been dismissed.

Reviews are not statements of fact, they’re opinion. And where would we be without the ability to express it without retribution? Courts have consistently held that the publication of opinion, including product reviews, is protected free speech. If you told someone you didn’t like a restaurant’s food, should they be able to turn you in for a reward? Should TSA be sued because we expressed the opinion that this is a silly and overblown example of lawsuits gone nuts? Because, in our considered opinion, that’s exactly what it is.

Sources

• “Transvestite Eatery Sues Zagat,” Reuters newswire, 25 December 2003.
• “Cabaret-Restaurant Sues Zagat over Food Rating,” Associated Press, 24 December 2003.

Case Status

“Disregarding the common wisdom that ‘all publicity is good publicity,’” the New York Supreme Court said in its decision, “This dispute presents a nation-wide issue of first impression, for no court has been called upon to consider the standards applicable to a defamation claim raised against a review of a commercial establishment based upon combined extracts of quoted anonymous consumer comments, accompanied by ratings based upon scores given by those consumers.” Also, “the motion highlights the need for clear guidance in relation to the level of pleading specificity required to plead malice in a defamation claim where free speech and First Amendment protections are applicable.”

Indeed: Zagat’s defense was that they have a free speech right under the First Amendment to publish their opinion. The court immediately brought up a 1985 decision that established in case law that “a restaurant review, no matter how harsh, is not an appropriate basis for a libel action because it reflects an individual’s subjective opinion about the quality of food, service and decor”, unless the plaintiff can prove “constitutional malice, also termed actual malice, i.e., that the statement was made with knowledge of falsity or with such reckless disregard of truth that the publisher or author in fact ‘entertained serious doubts’ as to the truth of a published statement.”

The restaurant’s lawsuit claimed that business dropped 35 percent after the Zagat review came out — er, was published.

“[T]he motion to dismiss is granted,” the court ruled on 19 August 2004, and the restaurant’s “request for sanctions is denied.”

It could hardly go any other way.

I found no mention of an appeal. I guess the restaurant didn’t want to drag things out.

Source: “Decision: Themed Restaurants Inc v. Zagat Survey LLC”, Supreme Court, New York County, New York, 19 August 2004.

My 2021 Thoughts on the Case

1. Really, this just had to be case No. 69! No, it isn’t one of the commentary jokes.
2. I have a hard time believing the restaurant owners (or, more properly, their attorneys) actually thought they could win this. So, publicity stunt? They are still in business, so hard to say for sure, but I still clicked that as a category since it smacks of it.

Letters

Case 068 of the man suing his dog sitter for $160K hit a nerve, and boy, did I get letters on it — almost universally condemning the mutt’s master.

Jeff, a highway patrolman in Arizona: “I am curious as to why the missing dog’s owner didn’t sue the pet ‘psychics’ instead of the pet sitter. He only paid the sitter $30 for a service that was real, whereas he was out considerably more for the ‘psychics’ who actually sent him in wrong directions.”

Chris in California: “Let me get this straight Mr. Baker spent $20,000 of his own money and let his business go under in order to find the dog that essentially ran away from him? He, an adult man, cried daily and avoided certain rooms in his house over a skitish dog? He hired multiple psychics and a witch? Did God steer him towards them as well?

Not to downplay the strong emotional bond that can exist between an owner and pet, but quite frankly, Ms Dunbar should settle out of court by offering to pay Mr. Baker’s psychiatric bills. I think this would benefit him more in working through his ‘emotional anguish’ than $100K would. I mean, come on, this is a man who admitted to marking his territory with his own urine.”

This is just a guess, but she’d probably scoff at that idea, claiming that paying the $100K would be cheaper than paying his psychiatric bills….

Rory, a Barrister-at-Law in NSW, Australia: “C’mon Randy, admit it, you made this story up. I have posted it up in the Common Room amongst Barristers-at-Law here in Sydney. Nobody believes it. Seriously. Everyone laughed at it though. You can tell me. I promise not to breathe a word to your readers. Mind you, your comedy writing is pretty good. I mean, ‘Duckler’ [the name of the dog owner’s attorney]. That’s a stage name like Mrs. Malaprop from a Sheridan play, isn’t it? You can’t fool us this time Randy. Ducking the real issues here??? C’mon Randy. I mean, Really!”

Well, as I’ve often said in relation to my main column, This is True: “Truth is stranger than fiction, because fiction has to make sense.”

But Sean, a solicitor and barrister in Western Australia at least partially disagrees: “I can’t agree with your view of the case. Certainly he went over the top in terms of what steps he took to locate the dog, but when he contracted with an individual to look after his dog, that person took on a duty of care towards him. Simply, [the dog-sitter] was in breach of contract and should be liable for losses incurred as a consequence of her failure to properly monitor the dog. Unfortunately the (from an overseas perspective) runaway U.S. legal system has turned a valid claim into a nonsense by attempting to hold someone responsible for the owner’s excessive emotional dependence on the dog rather than reasonable expenses. It is indicative of the blame culture that ‘someone must be responsible and it sure isn’t me’. I can only say that we are fortunate in Australia in that whilst we have a few Stella cases, the courts tend to dismiss excessive damages claims. The risk of paying the other sides costs if you lose also makes people think about any claim they might make.”

Sean added that the typical U.S. system of a lawyer taking a case on contingency, and collecting 30-50 percent of the winnings, “is generally barred [here] as it gives the solicitor a financial interest in the outcome of the litigation. If the lawyer’s fee is linked to the amount recovered then there will always be a temptation to inflate a claim.” Gee… ya think?

Lynne in Oregon: “This morning I woke up cuddling my most precious ‘posession,’ Tobi, and thinking about Fremont, the lost German Shepherd Dog with the confused, vindictive owner. As an animal lover I’ve followed the case in the local papers and reader response up here agrees with you — if Fremont was so valuable to its owner, where were the tags and the microchip that would have identified him and returned him sooner? I’m broke and can’t afford the microchip, but this fellow seems to have had plenty of money and confused priorities. Relying on supernatural forces instead of common sense seems to be very expensive and not very useful, and for all the talk of deities, what happened to the philosophy of ‘turning the other cheek?’ Of course, Portland being the lovely, caring place that it is, I wouldn’t be surprised if we rallied around the pet sitter and raised money for her legal defense.”

I hope so! People who are unfairly sued go through a lot, and I’m sure she could use your support. (I take it ‘Tobi’ is a pet, and not your boyfriend….)

Josh, a pre-law student in Colorado: “Even if he really spent [$20,000], according to a) avoidable harm doctrine, as well as b) causation rules, she can only be liable for damages that a) a reasonable man could prevent, and b) reasonably connected to the negligence. Not one thing he mentioned, except the emotional damages, passes either of these rules. Maybe a few bucks for search ads. And the [claimed] emotional damages are ridiculously high. Emotional damage charges are often thought ridiculous, and it’s cases like this that give them such a bad name. Please let us know how this one turns out.”

I certainly will try, Josh, but as a pre-law student you should probably know by now that such denouements often take years.

Eric in New York: “As a dog owner and lover I can sympathize with Fremont’s owner Doug Baker, but you know what? It’s time to let go and move on! This nation is law suit happy. Grow up Mr. Baker; you got your dog back [even though] Fremont wasn’t tagged (aren’t there fines for that?)”

John in California: “OK, the only word that comes to mind: IDIOT!!! But the girlfriend must be worse for staying with him. Besides, pets, in my opinion, are just emergency ration in case of an earthquake.”

Clyde in South Dakota brings up a couple of excellent points: “How much did Mr. Baker spend (time; effort; money) attempting the find the ‘skittish’ dog’s ACTUAL owner? Oh, that’s right; ‘God led him to the dog, and they connected’; that made him automatically ‘Fremont’s’ owner. Never mind that a scenario similar to the dog sitter’s subsequent loss of Fremont may be what led the dog to be in the road for Mr. Baker to ‘rescue’ in the first place. I can’t help wonder how ‘devastated’ Fremont’s original was, never knowing what happened to the dog. As the IRS told me in disallowing a casualty-loss deduction concerning a stolen vehicle that had been *given* to me by my father, ‘If you didn’t PURCHASE or other wise PAY FOR the property, there is no loss to you.’ Maintenance and driving expenses, etc. did not count; nor did it count that money would have to be spent to replace it.”

Quinn in Colorado: “Does this man not know the saying ‘God giveth, and God taketh away’? He says God sent him the dog; why then did he assume that the dog running away was not also God’s will? Especially after such overwhelming difficulty in finding said dog? I see that as another sign of an overblown sense of entitlement.”

And Leisa in Australia: “Was just wondering who the dog owner was going to sue when the dog dies. Presumably God?”

If Baker can figure out a way to subpoena Him, maybe!

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