Class Action;  Law professor John Banzhaf III has a Talent for Stirring up Trouble
American Lawyer Magazine, [07/05]

John Banzhaf III may rank as legal academia's instigator in chief. From behind his large desk, littered with stacks of paper and empty Diet Coke cans, the professor at George Washington University Law School in D.C. files (or threatens) suits about as often as most people change clothes.

He recently concluded one offensive-challenging a George Washington University "rudeness" hot line-and is about to launch another one. Later this summer he plans to sue several school districts across the country for allegedly profiting on the sale of soft drinks. If the professor, who has been dubbed the "Osama bin Laden of Torts," has any reservations about continuously stirring up trouble, he does a good job of hiding it. "He's an agitator," says Randall Levine, a second-year law student who has taken Banzhaf's torts class.

In his time at GW, Banzhaf and his students from his legal advocacy class (known as Banzhaf's Bandits) have sued the tobacco industry for product liability, won many sex discrimination claims, and successfully defended free speech. Their antismoking work prompted a ban on Joe Camel. In May their push for "potty parity" resulted in New York City's Women's Restroom Equity bill, requiring public venues to provide roughly two women's bathroom stalls for every men's stall or urinal. And another crusade prevented campus groups from restricting X-rated films on the GW campus.

Perhaps Banzhaf's greatest hit, however, is his 2002 product liability suit that accused fast-food chain McDonald's of contributing to child obesity through false advertising. The suit was dismissed by a federal judge in 2003, but reinstated by the U.S. Court of Appeals for the Second Circuit. In recent years, the world's largest hamburger maker has become a prime target of Banzhaf and his bandits for other indiscretions as well. (The staff of his neighborhood McDonald's in Arlington, Virginia, now warns its head office when Banzhaf enters.) For example, James Pizzirusso, one of the bandits, filed suit in 2001 (with Banzhaf's backing) alleging that McDonald's precooked its french fries in beef fat, thereby violating the strict diet of vegans, Hindus, and Muslims, who purportedly believed the company's vegetarian-friendly advertising. In 2002 Pizzirusso helped net a class action settlement of $12.5 million, $10 million of which went to religious groups. "John is very well regarded for his work; he's a prolific litigator,"says Charles Craver, a GW law professor.

But Banzhaf has certainly ruffled a few feathers. "He's abusing the court system. . . . John Banzhaf's no knight in white armor," says George Landrith, Banzhaf's chief legal foe and president of the libertarian group Frontiers of Freedom. A few years ago, shortly after Banzhaf brought the McDonald's action, Frontiers of Freedom launched banzhafwatch.com, a Web site monitoring Banzhaf's every legal move, down to the words on an old license plate, "SUE BAS," which stood for the nickname of his GW advocacy class, "Sue the Bastards." (The sole requirement of the class is filing a legal action.)

Even GW, which has employed Banzhaf for 30 years, has come within his crosshairs. Last year the professor challenged a university hot line that was created in 2001 to allow students or faculty to report offensive conduct, whether it be sexually aggressive behavior or the display of a Confederate flag. Last summer Banzhaf became the target of a complaint. The university investigated a report that Banzhaf was rude to someone at his off-campus office. The crux of the complaint, Banzhaf says, was that he impolitely showed a woman the door after she had entered his office without asking. Feeling that GW's investigation had violated his free speech rights, he followed up by exercising them thoroughly. Banzhaf began his attack in the media, sending out press releases that admonished (in large type) the GW "Rudeness Police." Later he threatened to take GW to court.

George Washington spokesman Matt Nehmer responds that the university just followed the lead of many other prominent universities in installing the hot line, including Johns Hopkins and Harvard. Banzhaf now says that largely as a result of his efforts, the University put in writing that the hot line can only be used for violations of law or university policy. The university, however, claims otherwise. "I can't tell you of anything that's changed," says GW's Nehmer.

Whether or not the hot line offensive counts as a win, Banzhaf has moved on to the next matter. At the end of the summer, the litigious professor will take on so-called Cokes for kickbacks contracts. Under these contracts, school districts can earn up to $1 million in commissions from soft-drink bottlers, which they use to defray the costs of athletics and other programs. But Banzhaf sees the programs as trading children's health for cash. A recent study by Harvard University found that kids who drink at least one soft drink per day run a 60 percent higher risk of obesity, says Banzhaf. "These lawsuits should help us persuade school board members that they have a moral as well as a legal obligation not to continue to renew these contracts," says Banzhaf. Does he care that the litigation could bring him further scrutiny? Not at all. "A man is known by his enemies," Banzhaf says. "I think it was Gandhi who once said, 'First they ignore you, then they make fun of you, and then you win.' "