Serving Subpoenas

On the pain and suffering of restaurateurs falsely accused

So have you heard the one about the Columbia University School of Business assistant professor who wrote to 240 New York City restaurants, claiming he'd contracted food poisoning at each establishment? He's being sued for $100 million.

Good for those restaurants, you might think. The professor, 29-year-old Frank Flynn, says he was conducting a research study on how vendors respond to complaints. But his fabricated story, that he fell ill after celebrating an anniversary dinner with his wife -- their first wedding anniversary, no less -- seemed a little dramatic. And the letter he drafted seemed particularly vicious. Among other choice phrases, he wrote: "It makes me furious that our special romantic evening became reduced to my wife watching me curl up in a fetal position on the tiled floor of our bathroom in between rounds of throwing up. Given that it was our anniversary, we will always remember bitterly this occasion despite how much we wish to forget its aftermath."

I mean really, are we talking about a bout of food poisoning or September 11? While Flynn claimed at the end of every letter that he wouldn't be contacting the Better Business Bureau or Department of Health, the general tone of the letter can be construed as threatening. Certainly the proprietors of these eateries as well as members of the food media such as Elissa Elan, associate managing editor of Nation's Restaurant News, have every reason to launch class-action suits and write vitriolic editorials that conclude: "It's too bad he didn't show a little sensitivity or respect toward the hard-working entrepreneurs he falsely accused in his missives."

Sayeth the righteous, anyway. I sayeth it's ridiculous.

Sure, Flynn exercised incredibly poor judgment, and ethics aside, the strict legality of his actions is questionable, especially if he received any gain from the restaurants in terms of compensation or replacement meals. (Note that he did not request anything specific in return but that he did hope the restaurateurs would "respond accordingly" and that he "awaited [their] response.") In this country we call such things mail fraud, not field research. Columbia University, which is also named in the suit, should take disciplinary action if Dean Meyer Feldberg, who penned a formal letter of apology to the restaurateurs on behalf of the university, hasn't done so already (Flynn is still listed on the university Website as a member of the faculty). But sued for $100 million? By restaurateurs claiming libel and emotional distress?

Let's tackle the first issue. The strictest definition of libel is, according to the Encarta World Dictionary, "a false and malicious published statement that damages somebody's reputation." And as Arthur Forgette, general manager of South Beach's Smith & Wollensky, rightly points out, "Bad press can shut down a restaurant. New York[ers] are very sensitive to PR." (Smith & Wollensky in New York did not receive a letter.)

But by writing to the restaurants, Flynn was communicating, not publishing. Nor was he the one who made the allegations public. That happened when restaurateurs around the city noticed certain detailed information missing from the letters -- such as what he ate specifically and the date that he ate it -- and began to query each other to see if a scam was afoot. The New York Times first reported it in September under the headline "Scholar Sets Off Gastronomic False Alarm" -- after both Flynn and Dean Feldberg had sent letters of apology to the restaurants in question. Previously only the restaurateurs and those they cared to share the letters with were privy to the "false and malicious" information; the public was not made aware until afterward, when the justifiably outraged restaurateurs were interviewed by plenty of media outlets. How much damage did such free publicity cause their unblemished reputations, you might wonder?

Then there's the emotional distress issue. C'mon. Running a restaurant might be one of the most stressful occupations a person could have. A reliable proprietor should be able to handle problems and issues without mass hysteria resulting. Our local restaurateurs get these and other written complaints all the time and deal with them accordingly. For instance Jonathan Eismann, of Pacific Time here and Thom in New York, notes that "we absolutely respond to every complaint." But should he discover the letter was false, would he sue? "No, I'd laugh," he says, a shrug clearly evident in his tone. "I have better things to do with my time." He adds that he'd be more likely to sue the couple who, while having sex in the ladies room, broke something off the wall; fortunately the patrons had paid for their meal with a credit card, so Eismann simply charged them accordingly.

Willis Loughhead, executive chef of Tantra, agrees with Eismann's assessment. "They must have a lot of time on their hands and be seriously hurting for money. Though it is defamation of character," he observes.

Still this was only one letter -- Nation's Restaurant News even reports that as a result of the incident, one of the plaintiffs had to "put himself under psychiatric care." Please tell me I am not the only one laughing here.

Nor do I believe that Flynn's single missive to each restaurant caused sleepless nights and needless firings. I've called restaurants to tell them personally that I became ill after eating at their establishments, and the most concern this news engendered -- even when I revealed that I was a restaurant critic -- was that I might be lying or mistaken. No owner rushed around trying to figure out what foodstuff could have been contaminated. No chef committed culinary suicide. No manager even asked me to come back so they could make it up to me.

Of course I don't want to impugn the restaurants that have lined up the suit, including Herban Kitchen, Jezebel, March, and Chez Josephine. The proprietors have a real right to their disgust with the whole mess. So I will say only that the story broke on September 8, and follow-up editorials (and a correction, I might add) were printed in the Times, strangely enough, on September 11. You'd think the events of that day would have erased Frank Flynn and his misguided missive from the collective consciousness. You'd be justified in calling this frivolous lawsuit, first filed in January, a waste of time and taxpayers' money. And you'd be supported in your belief that instead of looking for a way to simultaneously punish Flynn (whose reputation and career have both been ruined sufficiently) and make a little dough in the process, these owners would be better off serving food to a recovering city than serving subpoenas.

But how's this for irony? Only a month after Flynn's letters, The Bottom Line, Columbia Business School's newspaper, reported that "The New York City Department of Health, in its inspections of licensed eating establishments, has cited a number of popular campus eateries for violations of food safety regulations designed to protect the dining public." The violations range from both cold and hot foods kept at unsafe temperatures to live vermin found in prep, storage, and service areas. Had Frank Flynn waited for the school year to commence to begin his research, chances are he wouldn't have had to go so far afield.

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