ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Tuesday, February 23, 2021

Judge Shaves the Foam off the Cold Brew Served up at Red Robin

I guess this is a breach of Red Robin contract case.  As reported here (and elsewhere), a bunch of Stella Artois enthusiasts filed a nationwide class action against Red Robin, alleging that they had paid for sixteen-ounce beers but were served in fourteen-ounce glasses. If you multiply those two ounces by all the sales at the franchise-owned stores, you get yourself to the $5 million amount in controversy requirement and qualify to make a claim under the Class Action Fairness Act.  Or so Red Robin Claimed in trying to move the case to federal court.  U.S. District Judge Jennifer Dorsey rejected Red Robin's math and remanded back to state court.  Red Robin's calculations left out the inconvenient fact that  the issue was only two ounces of beer per each sixteen-ounce sale and that not all beer sales were for sixteen-ounce beer sales.

StellaJudge Dorsey then lit up Red Robin with beer puns:

  • Red Robin's figures are mostly foam 
  • [Plaintiff's] remand motion takes the fizz out of those numbers
  • Red Robin distills this number down further
  • [T]emperance must be exercised
  • Red Robin tries to tap into sales 
  • Nor has Red Robin shown that a fee award will get it to the fill line
  • Red Robin attempts to satisfy [its] burden with a strange brew
  • Red Robin makes no effort to address that stout disparity

I'm generally not a fan of jokey legal opinions, as it denigrates the parties' claims.  But as this is only a ruling on a procedural motion in a case where not much seems to be at stake, I raise my glass to Judge Dorsey.

[h/t to OCU 1L Howard Hennessey]

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I don't have a problem with this kind of humor as long as it's done in moderation and not too strained. (Decide for yourself if those qualify as beverage/liquid puns.) And I do recognize that, even though it's not life and death, claims like this in civil cases are still of a serious nature. (On that note, I have seen humor attempted in a criminal case—by a defendant's counsel at appellate argument—and I would certainly not recommend that.)

Besides, as you point out, it's just a procedural motion, so the puns' targets don't even rise (there I go again!) to the level of a party's substantive "claims". They're just procedural arguments. And I don't begrudge the judge and/or her clerks for wanting to spice up (more!) what is otherwise somewhat dry (yet again!) subject matter. Especially here, the judge granted a remand motion. So it's not likely that she's even going to be spending further time on the case.

Posted by: hardreaders | Feb 24, 2021 8:42:44 AM

Sorry for the seriatim comments, but I just remembered a relevant data point. Folks around here likely recall the classic Caterpillar v. Lewis opinion, penned by the late great RBG. That opinion had a line that really stuck in my head: "Caterpillar moves too quickly over the terrain we must cover." Call me crazy, but I always viewed that as RBG punning a bit at the expense of Caterpillar's argument. Of course, it was quite dry and subtle, as is her wont. But if RBG can do that sort of humor at the SCOTUS level, I don't see why it's off limits for a district judge.

Posted by: hardreaders | Feb 24, 2021 8:50:06 AM