Ryan Cushley-Spendiff-Research Assistant Nottingham Law School https://www.ntu.ac.uk/staff-profiles/law/ryan-cushley-spendiff
‘Nothing is more elementary in all the law of contract than that an agreement to deliver a horse is not satisfied by delivery of a cow’
It has been exactly 80 years since William Prosser made what must be the most banal observation of the common law of contract. Yet it is this very question that seems to have raised its head in Chicago, Illinois (serendipitously neighbouring Prosser’s home state of Indiana). Yet, in the world of farmyard animals causing havoc to contractual interpretation, it is not cows or horses in dispute, but chickens.
Buffalo Wild Wings has found itself subject to a lawsuit from Aimen Halim who is claiming false and deceptive marketing as his boneless chicken wings were, in fact, not wings, but chicken breasts. Seeking a class-action claim, Halim wishes for damages, injunctive relief, restitution, declaratory relief, along with whatever relief the court may deem appropriate.
For readers who are not accustomed to culinary chicken corpses, there is actually a significant difference between a chicken wing and a chicken breast. Chicken breasts are purely white meat, with a particular taste and texture. Chicken wings on the other hand, have managed to evade precise definition since, while they contain the similar colouring, they have almost 3 times the fat of chicken breast (3.5% to 1.25% respectively) and their skin has led to a texture and taste akin to dark meat. So, any such ‘bait and switch’ of wings for breasts would certainly qualify for deceptive practice and one would need to question how any business would consider such basic deception a good business strategy.
Yet, ask a stupid question, get a stupid answer. ‘Boneless chicken wings’ were never considered chicken wings from their very inception. In the 2010s, they were rolled out as a cheaper alternative to chicken wings due to an interesting reversal of price caused by the American’s consumption of chicken wings almost achieving hyper-carnivore status (See, for example, the 1.5 billion Chicken Wings being consumed on a single day for the 2023 Superbowl) leading to shortages. The concept of the boneless chicken wing is not so much as a fraudulent practice as much as it is an industry norm.
Similar to Posser’s original observation, this case is really very mundane. Due to boneless chicken wings having a well-known industry standard, it is unlikely that deceptive practices will be found as fact. However, this situation has presented a rather interesting insight on a cultural phenomenon: Corporate Cognitive Capture.
What is Corporate Cognitive Capture? Cognitive capture refers to when people are unable to perceive stimuli that are within plain sight (regardless of how dangerous or important it is) because their attention is focused elsewhere. This is also referred to as Inattentional blindness within psychology. Corporate Cognitive Capture is when a business, even without malice, attempts to shift attention away from an event or an issue, causing us to become blind to even the most obvious failures of governance, social responsibility, and at times illegality. There is no better example of this than McDonald’s Coffee-gate.
Many readers will have had the experience of a scoffing parent, relative, or friend, tell us that we need to have “Caution Hot” on coffee cups because ‘some people are too dumb to understand that coffee is hot and they sued McDonald’s! It’s Health and Safety Gone Mad! Common Sense!’. What few people know is the tragic circumstances of the case in question: Liebeck v. McDonald's Restaurants (1994). Mrs Liebeck obtained coffee from McDonald’s that was heated to 180 Degrees Fahrenheit (82 Celsius); hot enough to cause third degree burns within 1-2 seconds. Unsurprisingly, after the coffee was spilled on her, she received third degree burns to the bone on 6% of her body, leaving her permanently disfigured. Liebeck initially did not wish to take legal action, but merely get compensation for the medical bills, which came to around $20,000, yet McDonald’s only offered $800. After escalation to a trial, the jury felt so outraged at McDonald’s apathy to the injuries through the course of the trial that they awarded $2.7 Million (two days of coffee sales) to Mrs Liebeck.
The aftermath of the trial could not have been worse for Mrs Liebeck. The media turned on the judgement quickly, calling it an absurd judgement and akin to Liebeck winning the lottery (See the San Diego Tribune 1994, August,). Perhaps the most prolific externality entrepreneur in this saga was the American Tort Reform Association (ATRA). ATRA was notorious for using this incident as a horror story of litigation, which was quite the boon for them as they were close to extinction just prior. The case sprang new life into the movement to the point where they were able to use it to successfully be heard in Congress. Their influence did not stop with the regulatory system, as they garnered public interest with the “Judicial Hellhole” campaign in which they decry certain states as being hellholes of litigation, claiming that such states have a “lawsuit tax” that the general public would have to pay.
Why would a group of citizens be so concerned about destroying the reputation of a heavily injured woman? The simple answer is that the ATRA is not a group of laypeople, but rather has hundreds of corporate members, with both itself and its sister groups being heavily funded by corporations. Regardless of any lawsuit on a company’s negligence, dangerous conduct, or outright fraud, the battle for public perception has shifted out of the courtroom and into a war of attrition that special interest groups are rather experienced at fighting. Despite permanently disfiguring a woman for life, and genuinely arguing in court that she should have individual responsibility, McDonalds kept their ‘family friendly’ image despite some particularly callous behaviour.
So how is Buffalo Wild Wings related to this? After all they have not caused anywhere near as much damage as Mrs Liebeck suffered and, arguably, haven’t done anything wrong. What is interesting is Buffalo Wild Wing’s response to the Lawsuit. Was there an apology, or even virtue-signalling remorse, that one of their customers was dissatisfied? No. Was there any form of reassurance of their own quality an attempt to damage control? No. Was there even a serious response to the complaint publicly? No. Instead, they responded in a tweet akin to an internet meme. "It's true: Our boneless wings are all white meat chicken. Our hamburgers contain no ham. Our buffalo wings are 0% buffalo."
Make no mistake, while boneless chicken wings are now an industry norm, not everyone is happy about it. In fact, some people are particularly angry and refer to it as a culinary lie. The case itself isn’t actually frivolous either as while it was dismissed for procedural grounds by District Judge John Tharp Jr, they were given leave to fix the complaint and refile.
Yet, with a single tweet that echoes the plethora of memes along the lines of “If there is no ham, why is it caused a hamburger?”, Buffalo Wild Wings have already won the hearts and minds war of attrition. The media has already turned on Halim, with the Daily Mail already deciding that the case is ‘frivolous’. A search on social media of any mention of the case reveals an almost uniform mockery of Halim, with exceptional parallels to the mockery of Mrs Liebeck 30 years ago. What previously took corporations millions of dollars and thousands of jobs to accomplish in the 90s and early 2000s, can now be replicated with humorous tweets and pop-culture references.
While it would certainly be unfair on Buffalo Wild Wing’s to label this a new coffee-gate case, it gives us an insight to how Corporate Cognitive Capture can play out in the digital age of social media. Few lay people actually read legal cases beyond the headlines, and with a 280-character limit (4000 if you are US Subscriber) businesses have an unprecedented ability to distort the flow of information regarding their own scandals. With corporate twitter recently getting involved in the “funny responses for more retweets” game, through memes and pop-culture references, their retweets saturate the social media story. Really, when the retweets started rolling in from every side, whether Halim had a legitimate claim or not was irrelevant. The law, regardless of if it is justified protection or over-zealous regulation, no longer seems to matter beyond the memetic narrative. A new method to weaponize inattentional blindness had started to spread its blue wings.
Further reading:
National Chicken Council, ‘As Prices Ease, Americans Projected to Eat 1.45 Billion Chicken Wings for Super Bowl LVII’ (2023)
On the McDonalds Context:
Liebeck v. McDonald's Restaurants No. CV-93-02419, 1995 WL 360309 (N.M. Dist. CT/ Aug. 18, 1994)
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