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Florida judge rules waitress can sue Hooters in toy Yoda case
http://www.nj.com/newsflash/index.ssf?/cgi-free/getstory_ssf.cgi?a0404_BC_BRF--ToyYoda&&news&newsflash-national ^ | 10/13/01 | AP

Posted on 10/12/2001 10:02:31 PM PDT by World'sGoneInsane

Edited on 07/06/2004 6:36:44 PM PDT by Jim Robinson. [history]

PANAMA CITY, Fla. (AP) -- A judge ruled Friday that a former waitress can sue Hooters over allegations the restaurant promised her a new Toyota for winning a beer sales contest then gave her a toy Yoda Star Wars doll. Jodee Berry, 26, won the contest in May and believed she'd drive away in a new car. She was blindfolded, led to the restaurant parking lot and found herself in front of a toy Yoda.


(Excerpt) Read more at nj.com ...


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To: World'sGoneInsane
"Law suits not make one great."
41 posted on 10/12/2001 11:26:49 PM PDT by Redcloak
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To: connectthedots
When it hits the SCOFLA, Hooters is a dead owl.
42 posted on 10/12/2001 11:30:47 PM PDT by HiTech RedNeck
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To: boston_liberty
I have been to Hooters a few times, and some of the waitreses are false advertising! And thier food sucks!
43 posted on 10/12/2001 11:31:30 PM PDT by operation clinton cleanup
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To: bluefish; ConservativeLawyer
While there is certainly no shortage of "scum lawyers", not every lawyer who represents a client with a bad case is scum (you can't imagine how hard this is for me to say this). If the client wants to go ahead with the case against the advice of his attorney, it is the client that is scum, not the attorney. Now I will agree that a scum client can also have a scum attorney; and in fact, is usually the case, but not always.

As for the legalities, she has a slam dunk case. The real dispute here is not really whether she will get the car; that is a done deal. The real dispute is who will get to decide who and how much more money she will get for additional damages.

ConservativeLawyer, What is your take on what is really at issue here?

44 posted on 10/12/2001 11:33:23 PM PDT by connectthedots
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Comment #45 Removed by Moderator

To: Amore
All this legalease is just that ....meaningless legalease.

She will win. Ping me if you can prove me wrong when there is a conclusion.

If you can come out of your obsession with the legal ramifications, and just come down to what a jury would do, she wins.

This is fraud. LOL or what ever the proper legal term is.

46 posted on 10/12/2001 11:38:50 PM PDT by Syncro
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To: Syncro
This is fraud. LOL or what ever the proper legal term is.

It is called "fraud in the inducement" or "fraudulent inducement".

47 posted on 10/12/2001 11:41:59 PM PDT by connectthedots
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To: connectthedots; Professional
There has to be some expectation on the waitress in this case. Could she reasonably have an expectation that she and her coworkers could sell enough extra beer (beyond the average consumption) which would provide the resteraunt with enough revenues to buy her a car? How much extra beer did she sell? 100 glasses, 1000 glasses? Did she think this was enough to actually earn a car? Did she ever wonder "how can they afford to buy me a car on X glasses of beer?"

Another factor is agency. Was the person who promised her the car authorized to act as an agent for the owners? Perhaps under the terms of her employment contract she was made aware that the sales manager couldn't bind the company to such a deal. Yet she relied on him despite reading in the manual that he couldn't deliver on any promises made on behalf of his employer. Isn't there an expectation on her to find out the terms and conditions of such a contest?

Obviously the guy thought he was playing a joke. But IMHO a bad joke is not an intention to commit fraud. Literally, he may win, since she technically won a toy yoda. But, I suppose some compensation is due..not much... perhaps $1 a glass or something. But as I said, it would be cheaper for the owners to just buy her a Toyota than to pay a retainer in this case.

48 posted on 10/12/2001 11:50:23 PM PDT by monkeyshine
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To: World'sGoneInsane
I hope this isn't considered abuse. Please forgive me. I'm only a newbie here.


49 posted on 10/12/2001 11:51:19 PM PDT by kolacky
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To: connectthedots
ConservativeLawyer, What is your take on what is really at issue here?

Ms. Berry has won the first round on the threshold issue: i.e. whether she gets a jury trial or will she be forced to arbitration.

Arbitration clauses are generally enforceable, but in this case the article reads:

Company lawyers filed a motion to dismiss saying employees agree when hired to TRY TO settle disputes through mediation or arbitration before suing.

I don't know whether that is just sloppy writing on the part of the AP or whether the clause only requires that the parties "try" to settle the dispute before suing.

That doesn't sound very binding to me. Its an agreement to agree. One would expect a good binding arbitration clause to mandate arbitration for all disputes arising out of or relating to employment and expressly waive the right to a jury trial. Otherwise, why give the plaintiff a choice between arbitration (usually with a binding result, but not necessarily) and mediation (never binding result unless agreed by the parties at mediation)? And why say "before suing" if you don't contemplate a lawsuit if the "trying" fails?

Lastly, Ms. Berry's lawyer could argue that this promotion was a whole new contract that superseded the previous agreement, and therefore not bound by the arbitration provision.

50 posted on 10/13/2001 12:01:03 AM PDT by ConservativeLawyer
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To: kolacky
That is false advertizing? No hooters around here...
51 posted on 10/13/2001 12:03:16 AM PDT by Syncro
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To: kolacky
It's not abuse in my legal opinion. Indeed, I think it is required for this thread!

Welcome to FreeRepublic!

52 posted on 10/13/2001 12:07:54 AM PDT by ConservativeLawyer
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To: Syncro
What is the leagal definition of a "hooter"? If I were to enter a "Hooters" establishment, could I have a reasonable expectation of seeing some?
53 posted on 10/13/2001 12:15:47 AM PDT by operation clinton cleanup
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To: ConservativeLawyer
I don't know whether that is just sloppy writing on the part of the AP or whether the clause only requires that the parties "try" to settle the dispute before suing.

In this case. I think one can safely assume the writing on the part of the reporter is sloppy. I can't imagine any arbitration clause would say "try". If it did, the rules of construction in contract law would tend to favor the plaintiff's interpretation.

Back to my main question. Do you think the issue of her getting the car is pretty much a done deal and that the only remaining real question is that of additional damages? Frankly, I think if Hooters could resolve this case at this point by simply giving her the car, they would do it. If Hooter's offered to give her the car now and pay her attorney's fees to this point, that would go over very well with a jury or an arbitrator. Is there a provision for a party to make an offer of settlement under Florida law or procedures. If so, that might quickly end this case if Hooters made such an offer.

54 posted on 10/13/2001 12:17:21 AM PDT by connectthedots
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To: ConservativeLawyer
Lastly, Ms. Berry's lawyer could argue that this promotion was a whole new contract that superseded the previous agreement, and therefore not bound by the arbitration provision.

I would think that "arising out of or related to" language would encompass the contest. Can't get much broader than that language, especially since the contest could be considered a "bonus" to the employee and not somethin that was taken away.

55 posted on 10/13/2001 12:22:29 AM PDT by connectthedots
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To: kolacky
LOL, I don't think any of the men here will be pushing the abuse button. So, they didn't have that Toyota promotion up in Canada, I take!
56 posted on 10/13/2001 12:37:14 AM PDT by World'sGoneInsane
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To: connectthedots
Do you think the issue of her getting the car is pretty much a done deal and that the only remaining real question is that of additional damages?

You of all people should know that there are no "done deals" in litigation!:)

Nonetheless, I think she has a strong case to recover the value of the car. But what model of Toyota?? Does she get a Tercel or a Landcruiser?

Getting additional damages gets dicey. You can't really recover for pain and suffering for a breach of contract case. She might eventually ask for punitive damages, but in Florida you can't ask for those until you jump through some procedural and evidentiary hoops.

Any settlement offers made would never be heard by the jury--they are all inadmissible in evidence as a matter of law.

And yes, Florida has an offer of settlement procedure as well as a mirror image demand for judgment procedure. I doubt this case will ever go to trial. Now that the motion to dismiss has been denied, the economics point toward settlement.

57 posted on 10/13/2001 12:38:47 AM PDT by ConservativeLawyer
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To: operation clinton cleanup
Well geeze, I don't know...This is what I was replying to...whadaya think?
58 posted on 10/13/2001 1:03:15 AM PDT by Syncro
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To: Amore
Wow. Pinning this suit as assanine is about as assanine as the original assasine behavior that brought it about.
59 posted on 10/13/2001 2:35:19 AM PDT by nanomid
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To: ConservativeLawyer
You of all people should know that there are no "done deals" in litigation!:)

Touche'

60 posted on 10/13/2001 2:37:06 AM PDT by connectthedots
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