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You have no beef, McDonald’s tells pair who sued over unwanted cheese on Quarter Pounder

The McDonald's menu board at a Doral location on Southwest 87th Avenue shows a Quarter Pounder with Cheese as one of the selections on May 22, 2018.
The McDonald's menu board at a Doral location on Southwest 87th Avenue shows a Quarter Pounder with Cheese as one of the selections on May 22, 2018. hcohen@miamiherald.com

When two South Floridians filed a class-action suit against McDonald’s in May in a Fort Lauderdale federal court alleging that the fast food giant charged them for cheese they did not want on their Quarter Pounders, many called the suit “frivolous.”

Consumers took to the court of public opinion — social media, mostly — to mock the idea of a suit that asked for $5 million because two people claim they were charged for the advertised Quarter Pounder with Cheese sandwich when they wanted it sans the slice of cheese.

When they filed an amended complaint in June alleging violations of federal antitrust laws and Florida’s Deceptive and Unfair Trade Practices Act saying that some McDonald’s don’t reduce the listed menu price of a Quarter Pounder with Cheese when a customer opts to “hold the cheese,” McDonald’s called the amended suit “nonsense.”

The plain Quarter Pounder fans — Cynthia Kissner and Leonard Werner — didn’t give up, but on Monday McDonald’s Corporate filed another response in the same Fort Lauderdale court asking for a dismissal of the amended class-action complaint.

Kissner and Werner’s complaint doesn’t pass muster, McDonald’s argues, because the corporation doesn’t control pricing at its franchises. Their complaint, Jennifer Olmedo-Rodriguez of Miami’s Buchanan Ingersoll & Rooney, wrote, “fails to fix the fundamental and fatal flaw that marred the original Complaint — a complete lack of standing.”

Olmedo-Rodriguez wrote that Kissner and Werner “now concede that McDonald’s Corporate does not control the ‘exact price’ that its franchisee restaurants charge for Quarter Pounder or Quarter Pounder with Cheese products. However, Plaintiffs vaguely still insist that McDonald’s Corporate controls the ‘policies regarding the pricing structure’ of franchisee 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.

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“It is easy to explain why [Kissner and Werner] are unable to better describe this mysterious set of ‘policies and directives’ — they simply don’t exist,” Olmedo-Rodriguez wrote.

The response says that the company-owned McDonald’s outlets — regardless of what McDonald’s entity controls the pricing — offers both with and without cheese Quarter Pounders and “charge a lower price for the plain product and have consistently done so long before this suit was filed.”

Shifting the blame to the McDonald’s app or in-store kiosks, as the original and amended lawsuit attempted, holds no water, according to McDonald’s latest filing, because “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” and that the same is true for the kiosks.

McDonald’s current response also called into question receipts Kissner and Werner filed in the original complaint from franchises at South Pines Boulevard in Pembroke Pines and Griffin Road in Cooper City and South Flamingo Road in Cooper City. The latter restaurant charged 40 cents less for the Quarter Pounder with Cheese “that plaintiffs allege to have ordered without cheese.”

McDonalds receipts.jpg
Two McDonald's receipts from restaurants in Pembroke Pines and Cooper City from plaintiff Cynthia Kissner were included in a lawsuit filed by Kissner and another South Florida customer who claim they have to pay the price of a Quarter Pounder with Cheese when they only want a Quarter Pounder sans cheese. United States District Court/Southern District of Florida

But using only three McDonald’s restaurants in which one did charge less for the cheese-less burger and filing suit against the corporation, which doesn’t control pricing, is another ground with which to toss out the suit, the newest response asks the court.

Andrew Lavin, of the Miami Lavin Law Group, who represents Kissner and Werner and who filed the original suit in May, could not be reached as he is out of town.

Follow @HowardCohen on Twitter.
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