A report in today's "USA Today" about a new obesity law suit filed against McDonald's is incorrect in several regards.  "USA Today" says that the new law suit was filed "one day after McDonald's announced plans to use healthier cooking oil for its french fries"; actually, the new law suit was filed on August 22nd.
  Perhaps that's one reason why  MSNBC  and other media outlets have suggested that law suits filed against McDonald's — including one initiated by law students at George Washington University Law School which McDonald's was forced to settle for over $12 million, as well as a more recent one filed on behalf of obese adult Caesar Barber — may have been in factor in McDonald's decision to lower the amount of trans-fatty acids in its french fries.
  The new suit is the latest in a series aimed at the problem of obesity, and this time it's on behalf of young children rather than adults.  "This tactic avoids the major argument that plaintiffs are supposedly responsible for their own actions, since one can hardly blame youngsters who are lured into McDonald's by playgrounds, gotta-have toys in Happy Meals, birthday parties, etc.," says public interest law professor John Banzhaf.
  While suits by children may lead to arguments that the parents should be responsible for their child's obesity, Banzhaf notes that, by law, any negligence by parents is not a defense in a legal action by their children.  "Amusement parks do not let small children on many rides, even if their parents agree, since the owners are responsible to any foreseeable plaintiffs, even if the parents should have known better" says Banzhaf.
  Similarly, he notes that fast food companies issue strong warnings about the dangers many of their give-away toys pose to very young children since they know that, in the absence of specific warnings, many parents would give toys to children even if they might be harmful.  The same principle should apply to fatty foods which are clearly very harmful to young children, he argues, even if parents should have known about the health risks without the need for any warnings.
  This latest class action law suit is filed by two young girls who became obese and subsequently developed serious health problems, allegedly in part because they ate fast food.  McDonald's is the only named defendant.  Having only one defendant avoids the problem of potentially divided responsibility present in the earlier law suit filed by Caesar Barber at the same time it avoids defenses of assumption of risk and contributory negligence, says Banzhaf, suggesting why this legal action is more likely to earn the plaintiffs their day in court and the right to obtain discovery information under oath.
FOR A COPY OF THE NEW COMPLAINT, PLEASE SEE BELOW:

Plaintiffs, on behalf of themselves and all other similarly situated persons, upon information and belief, respectfully show and allege as follows:

6.That theDefendant, MCDONALD’S, is the owner, manager, franchisee, and/or operator, of a certain “McDonald’s” food establishment located at 1865 Bruckner Boulevard, Bronx, New York,and conductsbusiness in the County of Bronx, City and State of New York.

7.That theDefendant, MCDONALD’S, is the owner, manager, franchisee, and/or operator, of a certain “McDonald’s” food establishment located at 2630 Jerome Avenue, Bronx, New Yorkand conductsbusiness in the County of Bronx, City and State of New York.

8.That at all times hereinafter mentioned, the Defendant, MCDONALD’S CORPORATION, was and still is acorporation that performs and conductsbusiness in the County of Bronx, City and State of New York. 

9.That at all times hereinafter mentioned, the Defendant, MCDONALD’S RESTAURANTS OF NEW YORK, INC, was and still is acorporation that performs and conductsbusiness in the County of Bronx, City and State of New York.

10.That at all times hereinafter mentioned, each of the Defendants, their respective agents, servants, and/or employees, derive substantial revenue from the aforementioned goods and food products consumed in the State of New York.

11.That at all times hereinafter mentioned, each of the Defendants, their respective agents, servants, and/or employees, expected or should have reasonably expected its acts and business activities to have consequences in the State of New York.

12.That at all times hereinafter mentioned, each of the Defendants, their respective agents, servants, and/or employees, placed theaforementioned goods and or product within the “stream of commerce” within the Stateof New York.

13.That, upon information and belief, and at all times hereinafter mentioned, the Defendants wereand still are corporations and/or legal entities engaged in the distribution, ownership retail, manufacture, sale, marketing and/or production of certain food productswithin the State of New York.

14.That the Defendant, MCDONALD’S CORPORATION, its agents, servants, and/or employees, operates both company-owned stores and franchise stores, and prescribes the ingredients, qualities and quantitiesof the food products served therein, so as to insure that its food products sold in one state or location is substantially identical to food products sold anywhere else in the country.

15.That the Defendant, MCDONALD’S RESTAURANTS OF NEW YORK, INC, its agents, servants, and/or employees, operates both company-owned stores and franchise stores, and prescribes the ingredients, qualities and quantities of the food products served therein, so as to insure that its food products sold in one state or location is substantially identical to food products sold anywhere else in the country.

16.That at all times hereinafter mentioned, the Plaintiffs, ASHLEY PELMAN and ROBERTA PELMAN, purchased and/or consumed food products, as stated hereinafter,at a certain store franchised, owned, operated an/or managed by the store-Defendant, MCDONALD’S, located at 1865 Bruckner Boulevard, Bronx, New York.

17.That at all times hereinafter mentioned, the Plaintiffs, JAZLEN BRADLEY and ISRAEL BRADLEYpurchased and/or consumed food products, as stated hereinafter, at a certain store franchised, owned, operated an/or managed by the store-Defendant, MCDONALD’S located at 2630 Jerome Avenue, Bronx, New York.

18.That all products, ingredients, promotions, ads, and/or marketing campaigns sold, provided, utilized, advertised, and/or promotedby the store Defendants, MCDONALD’S, 1865 Bruckner Boulevard, Bronx, New York and MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, were authorized by the Defendant, MCDONALD’S CORPORATION and/or MCDONALD'S RESTAURANTS OF NEW YORK, INC., their respective agents, servants, employees or approved distributors.

1.The United States is experiencing substantial increases in overweight and obesity that cut across all ages, racial and ethnic groups, and both genders,[1] has been increasing in every State in the Nation that has reached epidemic proportions. [2]

2.In 1999, an estimated 61 percent of U.S. adults were overweight or obese, and 13 percent of children and adolescents were overweight. [3]

3.Today,there are nearly twice as many overweight children and almost three times as many overweight adolescents as there were in 1980. Approximately 300,000 deaths a year in the United States are currently associated with overweight and obesity, and as indicatedin the U.S. Surgeon General’s 2001 Report on Overweight and Obesity, “left unabated, overweight and obesity may soon cause as much preventable disease and death as cigarette smoking.” [4]

4.The most recent data (1999) estimate that 13 percent of children aged 6 to 11 years and 14 percent of adolescents aged 12 to 19 years are overweight.During the past two decades, the percentage of children who are overweight has almost doubled (from 7 to 13 percent), and the percentage of adolescents who are overweight has almost tripled (from 5 to 14 percent).[5]

1.Epidemiological studies show that obese individuals have a 50 to 100 percent increased risk of premature death from all causes, [6] and an estimated three hundred thousand (300,000) deaths a year may be attributable to obesity. [7]

2.Additionally, overweight classification and obesity are associated with an increased risk for coronary heart disease; type 2 diabetes; endometrial, colon, postmenopausal breast, and other cancers; and certain musculoskeletal disorders, such as knee osteoarthritis. [8]

3.Studies have shown that both modest and large weight gains are associated with significantly increased risk of disease. For example, a weight gain of 11 to 18 pounds increases a person’s risk of developing type 2 diabetes to twice that of individuals who have not gained weight, while those who gain 44 pounds or more have four times the risk of type 2 diabetes.[9]A 10 to 20 pound gain results in an increased risk of coronary heart disease (nonfatal myocardial infarction and death) of 1.25 times in women , [10]and 1.6 times in men.[11]A gain of 22 pounds in men and 44 pounds in women result in an increased coronary heart disease risk of 1.75 and 2.65, respectively.[12]

4.In certain obese women, the risk of developing endometrial cancer is increased by more than six times.[13] Overweight and obesity are also known to exacerbate many chronic conditions such as hypertension and elevated cholesterol and such individuals also may suffer from social stigmatization, discrimination, and poor body image.^[14]

1.The associated health problems and effects of obesity and overweight classification have substantial economic consequences for the United Stateshealth care system and individuals.[15] The increasing prevalence of overweight and obesity is associated with both direct and indirect costs. Direct health care costs refer to preventive, diagnostic, and treatment services related to overweight and obesity (for example, physician visits and hospital and nursing home care).[16] Indirect costs refer to the value of wages lost by people unable to work because of illness or disability, as well as the value of future earnings lost by premature death.[17]

2.In 1995, the total estimated (direct and indirect) costs attributable to obesity amounted to an estimated $99 billion.[18]In 2000, the total cost of obesity was estimated to be $117 billion ($61 billion direct and $56 billion indirect).[19] Most of the costs associated with obesity is due to type 2 diabetes, coronary heart disease, and hypertension.[20]

1.The action is brought and may properly be maintained as a class action pursuant to the provisions of Article Nine ofthe New York State Civil Practice Law and Rules. Infant-Plaintiffs seek certification of this action based upon being members of a certain class of infant-persons and/or child consumers, under the age of eighteen years,who consumed products of the Defendants and have become obese, overweight, developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases. Guardian-Plaintiffs seek certification of this action based upon being members of a certain class of legal guardians and/or natural parents of child consumers, under the age of eighteen years,who consumed products of the Defendants and have become obese, overweight, developed diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases.

2.The exact number of Plaintiff-Children class members is not known. Plaintiffsestimate that the class includes millions of Americans children and the Plaintiff estimates that the class is so numerous that joinder of individual members is impractical. The number and identities of the class members can only be ascertained through appropriate investigation and discovery.

3.Common questions of law and fact predominate the claims of all class members, including the named Plaintiffs. These claims depend on proving the Defendants are liable for their acts and/or missions, in part, based upon a common similar course of conduct. 

4.There are several questions of fact and law are common to the class members, which include:

a. whether the defendants engaged in, or employed deceptive practices in the advertisement, sale,and/or promotion of their respective food products, in violation of New York General Business Laws §349 and §350; 

b. Whether the Defendants’ engaged in, or employed deceptive practices in the direct advertisement, sale,and/or promotion of their respective food products to children and parents, in violation of New York General Business Laws §349 and §350;

c. whether consumption of the Defendants’ products and foods facilitate, cause,exacerbate, and/or induce obesity, overweight classification, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases;

d. whether the Defendants’ knew or should have knownthat the consumption of its products and foods facilitate, cause,exacerbate, and/or induce obesity, overweight classification, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, and/or other detrimental and adverse health effects and/or diseases;

e. whether the Defendants adequately warned the consumers and users of the Defendants’ products and foods of the health risks associated with said respective products;

f. whether the Defendants has been unjustly enriched at the detrimental expense of the Plaintiff and class-members;

g. whether, as a result of the Defendants’ actions and products, the Plaintiff-class is entitled to restitution or equitable relief or to compensatory or punitive damages;

h. whether certain or some of the Defendants’ respective products are addictive in physical or psychological nature;

4.That Plaintiff and their attorneys are able to and will fairly, and adequately protect the interest of the Class. Plaintiffs’ attorneys can vigorously prosecute the rights of the proposed class members.

5.That the prosecution of separate actions by individual Plaintiffs is not feasible or efficient, and would be unduly burdensome. Said individual prosecution will create the risk of inconsistentand varying adjudications and will establishincompatible standards of conduct for the Defendants, in that different Courts may order the Defendants to provide different types ofreliefs and the Plaintiff and class members proposed evidentiary showings would be based on the same documents and testimony concerning the Defendants’ action or omissions, thereby conserving judicial resources.

6.A classaction is superiorto the other available methods for the fair, just and efficient adjudication of the controversy. The class action device allows a single court to provide the benefits of a single adjudication, conserving judicial economy and the fair and equitable handling of all of plaintiffs claims in a single action and forum. The conduct of this action as a class action conserves the judicial resources of the parties and of the judicial system, and reserves the rights of each class member. 

1.Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, MCDONALD'S CORPORATION, MCDONALD'S RESTAURANTS OF NEW YORK, INC., MCDONALD’S,1865 Bruckner Boulevard Bronx, New York and/or MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, their respective agents, servants, and or employees,engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.)) and/or New York City Administrative Codes, Chapter 5, 20-700 et seq., by failing to adequately disclose the ingredients and/or health effects ofingestion of certain respectivefood products with high levels of fat, salt, sugar, and cholesterol content,which have or can beshown to cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases; by promoting, marketing, distributingtheir food as nutritious; by engaging in marketing practices which enticed the Plaintiff-Class members to consume their respective products in larger portions through the use of “value meal” and meal combo advertisements without disclosing the detrimentalhealth effects as a result thereof; by failing to adequately label and/or provide the nutritional contents of their respective food products; by failing to provide and/or display the nutritional contents of their respective food products at point of purchase, including drive-through-locations, and by otherwise engaging in deceptive marketing practices and promotions of their respective food products.

3.That the Plaintiff-Class Members relied upon said representations to their detriments.

4.That the Defendants, their agents, servants, and/or employees engaged in such conduct and activitiesin the course of trade and commerce.

5.That by reason of the foregoing, the Plaintiffs and Plaintiffs-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

AGAINST THE DEFENDANTS

1.Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, MCDONALD'S CORPORATION, MCDONALD'SRESTAURANTS OF NEW YORK, INC., MCDONALD’S,1865 Bruckner Boulevard Bronx, New York and/or MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, and/or MCDONALD’S, their respective agents, servants, and or employees, directly marketed the said respective foodproducts to children and parents and enticed the Plaintiffs to consume their food products thorough the use of promotional incentives and marketing directly to children, without properly and adequately disclosing the health effects thereof,by promoting, marketing, distributingtheir food as nutritious,and otherwise engaged in unfair and deceptive acts and practices, in violation of the consumer fraud statutes and provisions of the New York Consumer Protection Act (N.Y. Gen. Bus. Law §§349, 350 (Consol.)) and/or New York City Administrative Codes, Chapter 5, 20-700 et seq.

3.That the Infant Plaintiff-Class Members and/or Guardian-Plaintiff-Class Members relied upon said representations to their detriments.

4.That the Defendants, their agents, servants, and/or employees engaged in such conduct and activitiesin the course of trade and commerce.

5.That by reason of the foregoing, the Plaintiffs and Plaintiffs-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

1.Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,negligently, recklessly, carelessly and/or intentionally engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of food productsthatare high in fat, salt, sugar,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

3.That by reason of the foregoing, the Plaintiffs and Plaintiffs-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

1.Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, MCDONALD'S CORPORATION, MCDONALD'SRESTAURANTS OF NEW YORK, INC., MCDONALD’S, 1865 Bruckner Boulevard, Bronx, New York and/or MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, their respective agents, servants, and/or employees, engaged in the distribution, ownership, retail, promotion, manufacture, sale, marketing and/or production of food productsthatare high in fat, salt, sugar,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

3.That, upon information and belief, the Defendants failed to warn and/or adequately warn the users and consumers of the aforesaid food products of the ingredients, quantity, qualities and levels of fat, salt, sugar,ingredients,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

4.That, upon information and belief, the Defendants, their respective agents, servants, and/or employees,failed to adequately label packages and containers, failed to properly account to the users and consumers of the ingredients, and/or nutritional values of such products,including but not limited to, the ingredients, quantities and qualities of fat, salt, sugar, and cholesterol content, contained within their respective food products; failed to provide and/or display the nutritional contents of their respective food products at points of purchase, including drive-through-locations, failed to adequately disseminate the nutritional values and contents of the aforesaid respective food products,promoted, marketed, distributedtheir food as nutritious, and failed to adequately warn the infant-users, parentsand Plaintiff-Class-Membersthat ingestion of such food products with high levels of fat, salt, sugar, and cholesterol content,have or can beshown to cause obesity, diabetes, coronary heart disease, high blood pressure, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases. 

5.Plaintiffs and Plaintiffs-Classrelied upon the skill and judgments of Defendants, their respective agents, servants and/or employees and the representations and the warranties of the aforementioned in connection with the use and consumption of the aforementioned food products.

6.That by reason of the foregoing, the Plaintiffs and Plaintiffs-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

AGAINST THEDEFENDANTS

1.Plaintiffs reallege and incorporate all the foregoing facts and allegations as if fully set forth herein.

2.That, upon information and belief, the Defendants, MCDONALD'S CORPORATION, MCDONALD'SRESTAURANTS OF NEW YORK, INC., MCDONALD’S,1865 Bruckner Boulevard Bronx, New York and/or MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, MCDONALD’S, 2630 Jerome Avenue, Bronx, New York, their respective agents, servants, and/or employees,negligently, recklessly, carelessly and/or intentionally engaged in the distribution, ownership, retail, manufacture, sale, marketing and/or production of their respective food products that are physically or psychologicallyaddictive and/or addictive in nature and are high in fat, salt, sugar,and cholesterol content which numerous studies have shown cause obesity, diabetes, coronary heart disease, high blood pressure, strokes, elevated cholesterol intake, related cancers, and/or other detrimental and adverse health effects and/or diseases.

3.That Defendant engaged in such conduct and activitiesin the course of trade and commerce.

4.That by reason of the foregoing, the Plaintiffs and Plaintiffs-Class have suffered and sustained injuries and are entitled to compensatory damages in an amount to be determined by a jury at trial.

5.WHEREFORE, Plaintiffs and Plaintiffs-Class demand a jury trail and judgment and damages against the Defendants,and further relief as follows:

2.For an Order certifying the Plaintiff-Class herein;

3.For compensatory damages in an amount to be determined by a jury at trial together with interests;

7.For the Costs of this Action.

Dated:New York, New York

August 21, 2002

_____________________________

SAMUEL HIRSCH, ESQ.

Attorney for Plaintiff

350 Fifth Avenue

New York, New York 10118

(212) 947-3800

SAMUEL HIRSCH, an attorney duly admitted to practice law in the State of New York, under penalties of perjury, affirms the following:

That deponent is the attorney for the Plaintiff(s) in the action within; that deponent has read the foregoingCOMPLAINT and knows the contents thereof; that the same is true to the deponent’s own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters believes it to be true and the reason this verification is not made by Plaintiff(s) and is made by deponent is that Plaintiffs is/are not presently located in the county where the deponent-attorney maintains his office.

___________________

SAMUEL HIRSCH