Article Curtesy of Forbes.comBy: Daniel Fisher, Forbes StaffCategory: Personal FinancePublish Date: 02/23/2013Both Sides Ask Judge To Drop Ban On Facebook Comments In McDonald's Case
As expected, Judge Kathleen Macdonald told lawyers at yesterday’s hearing she would lift her injunction banning Facebook discussion of a the settlement. “It’s about time,” the target of her order, Majed Moughni, told the Detroit Free Press.
Later today, a judge in Michigan will reconsider her sweeping injunction against a man who protested a class-action settlement over local McDonald’s accused of selling non-halal meat to Muslim customers without their knowledge.
Facebook User Challenges Order To Take Down Criticism Of McDonald's Class Action Daniel FisherDaniel Fisher Forbes Staff
Both sides will ask Wayne County, Mich. Judge Kathleen Macdonald to drop the injunction, which prohibits Majed Moughni from commenting on Facebook (or anywhere else) about the settlement negotiated by lawyers at Jaafar & Mahdi Law Group. That deal would give the lawyers at least $230,000, reward the named plaintiff with $20,000, and give the rest of the firm’s clients nothing.
Public Citizen Attorney Paul Alan Levy flew up to Detroit to represent Moughni, who is himself a lawyer. He said McDonald’s will ask Macdonald to drop her order muzzling Moughni, but not for altruistic reasons, and not without raising questions about who is actually in charge of the litigation.
“We urge it as a remedy for the First Amendment violation, and they urge it so there can be a new notice period” for informing McDonald’s customers about the settlement and giving them an opportunity to reject it and sue on their own, he said. The active involvement of McDonald’s in a case brought and settled by Jaafar & Mahdi does raise a question about “who’s driving the settlement,” he said.
“At this point it almost looks as if McDonald’s is running things, and not the plaintiff class,” he said.
Public Citizen not infrequently intervenes in collusive settlements, where class-action lawyers combine with their targets to negotiate a settlement that rewards the lawyers with fees but provides little or nothing for their clients. Levy declined to say whether he considered this settlement collusive. It provides for several hundred thousand dollars to go to local charities, in addition to the fees to the lawyers who negotiated it.
“This kind of bullying is the hallmark of collusive situations,” he said, however. “Their behavior seems typical of people who have something to hide.”
It’s not clear why Macdonald, an elected judge, decided to engage in the highly unusual practice of prior restraint after Moughni criticized the settlement on a Facebook page he maintains for the Muslim community. He urged people who agreed with him to “like” his criticism, prompting Jaafar & Mahdi to accuse him of interfering with their settlement.
The judge apparently confused her role as an overseer of the conduct of lawyers in her court with Moughni’s rights to engage in free speech. While there are cases where judges have ordered lawyers not to interfere with a class action, Levy said, there is no precedent for a judge to order a lawyer not involved in a case to remain silent about it.
“Macdonald doesn’t hasn’t cited a single case that’s precedent for what’s happened here,” Levy said.
MacDonald’s, meanwhile, has indicated it may argue Moughni is a “third-party tortfeasor,” for interfering with its settlement, Levy said. That would hinge on the idea that by encouraging his readers to “like” his criticism, Moughni was actually misleading them into thinking they were taking the legal step of opting out of the settlement.
But Moughni made it clear he wasn’t involved in the litigation and wasn’t recruiting clients.
“Their theory is he’s a lawyer, and lawyers are different,” Levy said. “But lawyers who stand up for injustice in the community have every much of a First Amendment right as anybody else.”
The hearing starts at 2 p.m.