Give Us this Day Our Daily Bread…
… And a sense of humour
It is not usual for us to copy-paste from others’ work; but, this time, we make an exception. The language, used in the report, is so filled with beautiful phrases that it would be a shame to change it.
This story is about bread; ‘Promised’ bread. Do we get what we pay for? Do we get what we think we are getting? It also involves the accuracy of the complaint and whether it meets the standards of evidence required in a suit for damages.
Some members of a community took the local baker to court. They complained that the bread, which was advertised as fresh, was not really so. Not oven-fresh. The thin red line and the reasonable man, once again. 
You be the judge.
If you asked for ‘fresh’ bread, what is it that you would expect? Hot? Warm? Cooled down? An hour out of the oven? Two hours? Or more? Where does one draw the line? And is there any place a line can be drawn?
Asking for relief, per se, is not a valid claim. There has to be tangible damage. Quantifiable, substantial, tangible, verifiable, linked, misrepresented. It’s not that easy to convince the courts.
We quote:
“The warranty claims disintegrated into mere crumbs. An express warranty claim ‘requires a plaintiff to allege that she brought a product based on a particular promise regarding that product, which ultimately proved false.’ But, again, the plaintiffs cannot successfully plead such a claim without identifying in the complaints any specific sign or advertisement they saw and the products they purchased as a result. Again, the plaintiffs simply did not satisfy the recipe.”
The court slices open the plaintiffs’ allegations and finds more puff than filling. 
“… conclusory allegations regarding numerous potential purchases of various products over a substantial period of time with the mere spectre of supposedly misleading advertisements generally existing in Defendants’ stores and websites will not suffice.
The claims for injunctive and declaratory relief also found their way to the waste bin. There was no plausible claim of threat of immediate harm. How could there be?  After all, the plaintiffs disclaimed any intention to continue to purchase the defendants’ bread and bakery products. Instead, the plaintiffs argued that they were entitled to injunctive relief based on the threat of future harm to other consumers. How thoughtful. How inadequate.” 
We add our metaphors. Ingredients. All actionable laws are dependant on a set of facts that needs to be satisfied before action can be taken using them. These are the ‘ingredients’. Just as one needs a number of things, ingredients, to make a really tasty dish, so is it with law. The how, why, when, where, what, which, who, are questions that must be answered before rushing to court. Lest one is shown the door for inadequate preparation or missing ingredients. This is, in fact, in crime matters, not only a prerequisite, but a mandatory one. One missing ingredient and accusations become as unpalatable as stale tea. 
“We will end with the icing on the cake, the aspect of the case that is most relevant to… law. The plaintiffs’ claims under the New Jersey consumer protection statute appeared to rely on regulations. But it is ‘well settled… that the FDCA creates no private right of action.” The plaintiffs in this bakery fraud case could not use the New Jersey statute “to bootstrap a FDCA claim they could not otherwise bring.” That is a tasty result.  
Plus there’s this: “… all lawyers should know that one cannot walk into Judge’s courtroom with legal arguments that are half-baked.”
Who says that judgements must read like ancient prose? Why cannot an order from the court taste like a buffet that starts with, and ends with, desserts? Cannot the text emanating from our judicial authorities be preserved, as much for the thought, as for the language? Taste and tasty? A pleasure to read, over and over again.
Lip-smacking justice, anyone?

(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])

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