McDonald's fires back in cheese lawsuit filed on behalf of South Florida customers

Fast-food chain wants suit thrown out, says it doesn't control franchisee prices

By Peter Burke - Local10.com Managing Editor

FORT LAUDERDALE, Fla. - McDonald's claims it has no control over product pricing at franchisee locations, refuting the argument made in a class-action lawsuit filed on behalf of two South Florida customers who claim they were forced to pay for cheese they didn't want on the fast-food restaurant chain's signature Quarter Pounder burger.

The 21-page response filed Monday asks a federal judge to dismiss the amended lawsuit.

"Plaintiffs' amended complaint fails to fix the fundamental and fatal flaw that marred the original complaint -- a complete lack of standing," Miami-based attorney Jennifer Olmedo-Rodriguez wrote in her legal response.

Olmedo-Rodriguez wrote that the plaintiffs -- Cynthia Kissner and Leonard Werner -- "now concede" that McDonald's doesn't control the "exact price" that its franchisees charge for the Quarter Pounder or Quarter Pounder with cheese, but they "vaguely still insist" that McDonald's controls the "policies regarding the pricing structure" of menu items "through some unidentified set of 'policies and directives' that plaintiffs fail to name, cite to, quote from or attach to their amended complaint."

"It is easy to explain why plaintiffs are unable to better describe the mysterious set of 'policies and directives' -- they simply don't exist," Olmedo-Rodriguez wrote.

The initial lawsuit, filed in Fort Lauderdale federal court in May, claims McDonald's has historically sold both the Quarter Pounder and Double Quarter Pounder "with cheese" option as four separate items, but at some point "ceased separately displaying these products for purchase on menus."

However, Olmedo-Rodriguez points out that "the inconvenient truth" for the plaintiffs is that "all such restaurants offer the Quarter Pounder both with and without cheese, and all charge a lower price for the plain product -- and have consistently done so long before this suit was filed."

The response goes on to explain that the amended complaint "does nothing to rebut these inescapable facts."

Instead, Olmedo-Rodriguez wrote, the plaintiffs try to shift their focus to the sale of products on the McDonald's app and in-store kiosks in an effort to prove that McDonald's "somehow exerts monolithic control over the availability and pricing of these products."

"However, anyone who actually uses the McDonald's app to check the availability and pricing of menu items would learn that these continually change as one travels from neighborhood to neighborhood, reflecting the fact (as the app itself clearly advises anyone who reads its terms and conditions) that these factors vary as the app updates the digital menu to reflect the menu of the nearest restaurant -- most of which are franchisee operated, and therefore free to set their own pricing," Olmedo-Rodriguez wrote.

The McDonald's response also included three declarations from McDonald's employees who all claimed McDonald's corporate doesn't dictate or control the prices set by franchisees.

"We believe this is a simple matter in which McDonald's should allow consumers to purchase the Quarter Pounder without cheese at the lower price and not require them to order the Quarter Pounder with cheese without cheese and pay an inflated price," Fort Lauderdale-based attorney Russell Adler, who represents the plaintiffs, said in an email to Local 10 News. "We believe McDonald's has substantial controls over their franchisees to the extent that they should require them to offer consumers menu items and place those menu items on the menu where people can see them and order appropriately." 

Ultimately, a federal judge will decide whether the lawsuit has merit.

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