Back in November and December of 2006, there was an E. Coli outbreak involving Taco Bell restaurants; dozens of customers were sickened. (It goes without saying that this led to lawsuits against the restaurant chain by those who got sick.) By early December, health officials had linked the outbreak to the chain; Taco Bell immediately went into action to locate the source of the problem.
Initial testing indicated that green onions used by Taco Bell were contaminated; moreover, in previous outbreaks, green onions had been the problem. So Taco Bell, in an effort to reassure the public, announced its findings and assured the public, via a series of press releases over the next few days, that “in an abundance of caution” it was removing green onions from its restaurants and would no longer sell them.
A few days later, Taco Bell announced that in fact green onions were not the culprit, but that to be extra-cautious, it would switch produce suppliers. (As we know, it turned out that lettuce was probably the source of the problem, and this was announced.) Everything that Taco Bell said was accurate; moreover, it correctly informed the public that green onions were not to blame once the CDC had confirmed this. Additionally, Taco Bell never mentioned the identity of its green onion supplier. Nonetheless, that supplier, Boskovich Farms, filed a lawsuit against the chain this past Friday, accusing Taco Bell of defamation and a series of related claims.
In short, Taco Bell is being blamed for being too open with the public in revealing information as the investigation developed. Of course, to the extent that Taco Bell failed to provide this information, the lawyers for the people who were sickened would be screaming “cover up.”
By the way, you may wonder why Boskovich Farms is claiming it was defamed even though Taco Bell never mentioned its name. Well, the company claims that those in the produce industry knew its identity as Taco Bell’s green onion supplier, so even though Taco Bell never mentioned it by name, its reputation was harmed. A reasonable claim, in the abstract. Presumably, though, those knowledgeable and sophisticated enough to possess this information are probably sophisticated enough not to be swayed by a Jay Leno monologue (!) almost three months after the incident — one of the two pieces of evidence cited by Boskovich in its complaint.
5 Comments
“In an abundance of caution” and to be “extra-cautious”. Those statements mean (rather specifically) that no actual fault is found; that is, it is specifically NOT defaming anyone. It is rather specifically saying that they is NO EVIDENCE of anything wrong with (in this case) the supplier, and they are changing suppliers just in the off-chance that it MIGHT be.
If that can be spun as defamation…. well, that’s the system we’ve got, isn’t it? Excuse me whil I puke.
It’s hard to imagine how you can say that coherently though. How can you, at the same time, say there is nothing wrong with a supplier but also that caution requires you to change suppliers?
If there’s an off-change that there might be a problem with the supplier, sufficient to justify changing suppliers, then perhaps other people who are also cautious should change suppliers too.
However, I don’t see how there’s a defamation case. I don’t see how a series of factually true statements can constitute defamation or libel. The fact is, Boskovich is the victim of an unfortunate series of events, not the intentional or reckless actions of Taco Bell.
Legitimate business concerns justified what might seem like an over-reaction. You can’t say, “well, yeah, people are dying from our food, but we’ll wait until we know for sure why before we do anything.” You have to assure people you are doing everything possible to fix the problem, even things that don’t seem justified.
“It’s hard to imagine how you can say that coherently though.”
Really? You mean, if you know that SOME part of the food you are serving is causing problems, but you have no idea which part it is, you might not just change suppliers just to see if MAYBE that’s it? People do things like that all the time!
In fact, process of elimination is a great way to determine what IS causing the problem (especially if other methods have failed) – change providers, see if the problem goes away. If not, change providers of another ingredient, see if the problem goes away. etc. When the problem goes away, there’s a good chance that the problem was with the product of which you most recently changed suppliers.
None of those changes state ANYTHING about any of the provicers involved, except that one of them was causing the problem… which was already a known fact. WHICH one? None of those changes state one in particular.
In fact, by changing providers, if the problem doesn’t go away, you have just (for all practical purposes) proven that the supplier in question was NOT the problem! If that’s “slander”, well, we’ve got a problem in our slander laws.
“Really? You mean, if you know that SOME part of the food you are serving is causing problems, but you have no idea which part it is, you might not just change suppliers just to see if MAYBE that’s it? People do things like that all the time!”
The claim was that they were saying:
1) There was no evidence that green onions were the cuprit.
2) They were changing green onion suppliers just in case.
I stand by my claim that you cannot say those two things coherently unless you also say that green onions were chosen randomly (as you suggest).
The problem is that Taco Bell did not say that green onions were chosen randomly and nobody would have gotten that impression from their announcement.
The problem is their claim that the green onions were the only food that did not test negative. It takes quite a bit of analysis to understand that this doesn’t mean the green onions were the culprit. A naive reading of that statement suggests that it is almost certain they are.
In fact what happened was the preliminary test on the green onions was unable to exclude them (the test did not come back positive or negative, but unable to exclude) and the sample of lettuce that was tested (lettuce was ultimately shown to be the culprit) just happened to be negative.
The only justification for changing green onion suppliers with such weak evidence is the ability to assure the public you have done something.
Which, of course, probably had enormous business value in this case. I’m not saying that’s not a sufficient justification. I am saying the behavior is only rational because the public needed something to be done even when there was nothing to be done.
Hmmmm…. Wonder if Taco Bell’s general liability policy covers this sort of thing.
It’s an odd offshoot of the “Oprah”-like cases, where Oprah was sued over allegedly disparaging remarks about beef (“trade libel; product disparagement; product libel; trade disparagement). It’s the kind of twist only a lawyer could love.