The Burger Of Mandatory Binding Arbitration

If you step into this Whataburger in Kilgore, Texas, you automatically agree to the burger joint’s mandatory arbitration clause. At least that’s what the sign on the door says. According to Mother Jones:

Sorey says when he went in, he told a befuddled cashier that he didn’t think that the arbitration notice was enforceable, that anyway he wasn’t agreeing to it, and, “I need a taquito and a coffee.” He says he sat down, watched some traffic, and ate his taquito. “I didn’t choke, I didn’t burn myself, and I didn’t sue ‘em,” he reports.

That’s one burger that’s hard to swallow. Might choke on your after you read this sign. That’s one raw burger. Etc.

Eat Burger, Waive Right to Sue [Mother Jones]
(Photo: Dan Sorey)

Comments

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  1. Abusiveelusive says:

    Mmmm Whataburger.

  2. B says:

    Whataburger? More like WhataresturantI’mneverpatronizingagain.

  3. brent_w says:

    What I want to know is:

    What is wrong back there that they expect people to sue them about?

    Sounds to me like they have a secret.

  4. TMurphy says:

    Well I can’ blame them for wanting to avoid “I spilled coffee on myself so now I am suing you”.

  5. Anonymous says:

    I only eat at places that i can sue.

  6. RandoX says:

    I miss Whataburger.

  7. Ftp1423 says:

    @catdogpigduck: Agreed, It absolutely infuriates me when people are so lazy that they believe all responsibility can be resolved through a letter. Instead of having basic standards, such as serving food that won’t immediately cause death or illness, they would rather pocket that extra $0.03. I hate people who refuse to take responsibility for their actions.

  8. mookiemookie says:

    I just had Whataburger for breakfast. Mmmmm…

  9. Parting says:

    I don’t understand, how a private agreement can trump law? That’s not logical.

  10. Ben Popken says:

    @TMurphy: Change that to “I spilled 190 degree coffee that you had been repeatedly warned not to heat to scalding and then sued you after you refused to pay my medical bills.” 190 degree liquids can cause third degree burns in less than 3 seconds. A third degree burn means flesh is charred all the way to the bone.

  11. MeOhMy says:

    Maybe they are just poking fun of the absurdity of it all.

    Hey I can dream, can’t I?

  12. IrisMR says:

    …What I want to know is what made them create that notice.

    Are they serving rats or something?

  13. AlteredBeast (blaming the OP one article at a time.) says:

    What if the person entering the store doesn’t speak english? Or what if you go to a drive thru (do they have them? This chain isn’t near where I live).

  14. Falconfire says:

    @chouchou: since when are lawyers logical? We are talking about a entire section of the human population whos sole existence is thanks to arguing illogical arguments.

    As for how it trumps law… it cant, its unenforcible. But they are hoping you wont take them to court on it, and that if you do the judge will be some political appointee so fucking stupid as to agree with them and not with law. 99% of the population wont take them to court either.

  15. MeOhMy says:

    @Ben Popken: 3rd degree burns just means the epidermis is burned through, not that it has burned all the way to the bone. “Dammit, Troy I’m a blogger, not a doctor!”

    Also, the coffee is supposed to be 180-190 degrees and as is pointed out at Randy Cassingham’s home of the True Stella Awards, [www.stellaawards.com] the injury rate for hot McDonald’s coffee is 1 in 24M.

  16. kamikasee says:

    I grew up living less than two blocks from this Whataburger. It’s a cool place, 50′s decor, classic cars, Elvis memorabilia.

    I have nothing to add to the discussion. I just thought it was strange that something from my hometown would end up on Consumerist.

  17. FLConsumer says:

    Arbitration agreements/waivers, End User License Agreements that are 15 pages long and other shenanigans needs to stop. We need a judge to rule that such things are practically unenforcable. When it takes a panel of attorneys a month or more to come up with their EULA, you can’t expect the average American consumer with an average reading level of the 7th grade to comprehend and understand in a few minutes (or less if walking in the door of the place).

  18. Balisong says:

    @Ben Popken: Coffee is hot?!?!?

  19. cmdr.sass says:

    I wouldn’t eat in a restaurant that replaces a “welcome” sign with an arbitration notice.

  20. AlteredBeast (blaming the OP one article at a time.) says:

    These things remind of stuff kids would say in a school yard, like “no tag backs!”

  21. econobiker says:

    But if I pay with a check that specifies (in micro print like the checks that enroll people in various credit monitoring or switch phone plans, etc) to the organization accepting the check, that the company withdraws all arbirtation clause, then what??? It seems that we are seriously close to needing this…

  22. Ben Popken says:

    @Troy F.: Guess I was wrong, sounds more like she had a 4th degree burn. Your source says it should be maintained at at 180-185 degrees (how likely is it that you’re going to get the 1st cup from a fresh pot at McDonalds?). The difference between coffee served at 180 degrees and 190 degrees is substantial. 190 degrees causes 3rd degree burns in 3 seconds. 180 degrees causes burns in 12-15 seconds. (source: WSJ)

  23. Uh oh... Cleveland says:

    Welcome to Whata-arbitration!

  24. Ben Popken says:

    @Balisong: The coffee you put in your mouth is boiling hot?!?!

  25. Javert says:

    @TMurphy: @Troy F.: Off topic but have you actually seen the photos of the burns? They are awful plus the fact that McD had been warned about this several times…they deserved the penalty (which amounted to one days coffee sales in the U.S.).

    Now, on topic…you know, this type of sign would make me turn around and go to Taco Bell.

  26. darkened says:

    @econobiker: I think you’d have a very strong case if you had checks printed with “By accepting payment you are waiving any right to mandatory binding arbitration”

    I believe would legally bind them to not bind you.

  27. spinachdip says:

    @Ben Popken: Why is it that people who complain about the coffee case actually know nothing about the case?

  28. Hoss says:

    They should replace the sign with one that says that by entering you accept that any claims for injury or otherwise are limited to the cost of a burger. Seems just as enforceable

  29. Nighthawke says:

    Whataburger=Whatawaste. I worked one for a couple of years while whittling at college. Was not fun mind you, but it was clean and well-kept for an older building.

    This must be a wild card of a manager trying to keep the heat off of his back, only to get sunburn from home office. I just posted an inquiry to their PR department to see what they say about it.

  30. girly says:

    Drive thru–just don’t stick your hands in the window when you’re handed your meal

  31. snoop-blog says:

    i’ve heard of the restaurant that makes you sign a waiver to try their extremely hot, hot sauce, but this is rediculous. it worries me that this may be enforceable, and more restaurants may post these on their doors.

  32. mac-phisto says:

    ARBITRATION NOTICE:

    by reading this comment, you hereby agree to resolve any & all disputes with what i have to say, how i say it & who i say it to in binding arbitration. no suit or action may be filed in any state or federal court by you. i, however, can sue your pants off if you so much as THINK about suing me after reading this notice.

  33. HRHKingFriday says:

    Hm, Whataburger and fancy ketchup… or mcdonalds. Tough choice. I’ll take the arbitration agreement.

  34. RogueSophist says:

    @Falconfire: @chouchou: How is it “illogical” for two parties to contractually agree to be bound by certain rules and not be bound by others, and what do lawyers have to do with it? This is a routine, even fundamental element of our society. In this case, parties don’t have to play in the court system if they don’t want to.

    The problem with this ridiculous sign — and half of the other instances where people “agree” to binfing arbitration, including EULAs — is that there are certain requirements to enter into contracts that probably aren’t met here, not to mention certain bars to the formation of contracts, like unconscionability.

  35. mac-phisto says:

    now if i was whataburger, i’d certify all my store managers as arbitrators with the american mediation association & the arbitration could be solved on the spot. now that’s customer service & a whole new revenue stream all rolled into one!

    customer: i slipped on the wet floor.
    manager: no you didn’t. that’ll be $179.50.

    customer: this burger is raw.
    manager: no it isn’t. but now it’s an additional $5.99.

  36. Falconfire says:

    @RogueSophist: Because you can not contractually agree to not be bound by federal/state/ or local laws. Thats illegal.

    Binding Arbitration is exactly what it is. The only legal way to have arbitration is when a court decides its use is ok as no law has been violated. Its been let go for as long as it has because it used to be used for frivolous things like not getting the right part in a box, or not enough chicken nuggets. Now its being used for everything up to people being injured or KILLED. Thats not why arbitration exists nor is it what its for.

  37. friendlynerd says:

    Reminds me of the Krusty Burger “Whatchamachicken” sandwich

  38. Buran says:

    @Ben Popken: Change that to “and I was drinking it IN A CAR” and it becomes a BS suit again.

  39. Buran says:

    @Troy F.: … but are you a bricklayer too? ;)

  40. mrmysterious says:

    How about companies just take responsibility when the mess up and we, the consumers only collect what is reasonably ours when those companies mess up.

  41. csdiego says:

    @mrmysterious: Now that’s crazy talk.

    What’s next, a line of fine print on the threshold of every Best Buy that says that by walking in you agree to hand over your firstborn son on his eighteenth birthday for five years of unpaid labor?

  42. savvy999 says:

    @mac-phisto: Sweet idea. Store Managers would then be WhataJudgeDredds, with at-the-cashier trials and verdicts. Awesome.

    For much the same reason, I’ve always wanted to become the captain of a ship at sea, then I could invoke my own version of Maritime Justice whenever it pleased me.

  43. outphase says:

    @Buran: If it was a BS case, it would have not gone to trial. The case came down more to the safety of the coffee not the woman’s burns.

  44. RogueSophist says:

    @Falconfire: Dude, unless you’re talking about a “federal, state, or local law” prohibiting binding arbitration, my point regarding freedom of contract — and its limitations — stands. Should binding arbitration be made illegal in some cases? Absolutely. Is it?

    I’m as incensed as you about corporations abusing arbitration and taking advantage of hapless customers. But sweeping statements as to legality and logic don’t further the dialogue, they just confuse it.

  45. rdldr1 says:

    too bad I cant read the text because of the glare, I guess Im not liable over something I cant read!

  46. mac-phisto says:

    @savvy999: lol. I AM THE LAW. PUT DOWN YOUR BURGER & PREPARE TO BE JUDGED!

  47. strathmeyer says:

    @ftp1423: Stolen avatar???

  48. warf0x0r says:

    This reminds me of that scene in HKGTWC where Anthony Anderson says

    [video.google.com]

  49. SacraBos says:

    @snoop-blog: I’ve seen hot source that requires a waiver to purchase. Fortunately, it’s used as a marketing gimick. This What-a-bozo sounds like he’s serious…

  50. camille_javal says:

    @spinachdip: SERIOUSLY. They also don’t mention -

    - Not just 3rd-degree burns, but third-degree burns that required skin grafts and daily physical therapy for several months

    - Again, McDonald’s had been warned repeatedly after similar, but less severe, incidents

    - The woman and her lawyer initially approached McDonald’s for medical bills alone – she was a waitress, as she had been for years, and had no health insurance (many tort lawyers note that a national health plan would cut back on litigation) – McDonald’s refused (there’s in-house counsel who lost his job, I bet)

    - The massive award given by the jury was reduced to something more reasonable by the judge later (as usually happens in these sensationalized, ridiculous-jury-award cases – it is a sign of a problem in the system, but it is kept in check)

    Also, for the person who noted it was hot coffee in a car – McDonald’s is the one who served 190 degree coffee through a window, handing it to you in your car (in a cup with a lid that would come of if you looked at it hard enough).

  51. Ben Popken says:

    @Buran: How about if we add on that the car was parked at the time?

  52. Rectilinear Propagation says:

    @csdiego: I can’t tell who you meant to reply to. Did you mean to reply to anyone?

  53. Rectilinear Propagation says:

    @Buran: Are you sure? What if instead of it spilling on her leg she’d sipped it instead? The resulting burns to her mouth would have occurred no matter where she was at or what else she was doing.

  54. shadow735 says:

    Hah hah by entering this building you are agreeing to accept crappy service and the occasional roach in your burger. If maggots are found you must submit to arbitration to discuss how much extra protein you have ingested.
    Based on the percentage of Extra Protein you have ingested you will recieve a gift certificate equal to one dollar for each ouch of Extra protein consumed.

  55. Trick says:

    I had the place once and it was enough for me to never go back…. they suck.

  56. PlanetExpressdelivery says:

    @camille_javal:
    While I cannot vouch for the one in twenty-four million number, I will say that Liebeck undeniably shares a portion of responsibility. If you read the Stella Awards page, you would realize that:
    1. She was not driving
    2. She put the coffee between her legs
    3. She burned herself immediately after opening the lid
    4. 190 Degrees is the recommended temperature for coffee to be served in order to be palatable, yes that’s hot
    5. I don’t drink coffee but I know well enough that coffee is usually on the scalding hot side (common sense)

    I agree with you that McDonald’s could have avoided the entire gaff by simply paying the medical bills in the first place. I have no problem with that. However, asking for millions of dollars (which was later reduced to a less ridiculous amount) for burning yourself is morally (and legally) questionable.

    As for the actual arbitration sign at this Whataburger, all I have to say is WhataTF.

  57. D-Bo says:

    You know, we should just do away with the whole civil justice system. It would be so much easier for business owners to do whatever they want without any pesky repercussions…

  58. Greasy Thumb Guzik says:

    @PlanetExpressdelivery:
    Here we go again with the misinformation!
    McDonald’s flacks have done an excellent job of spreading the bullshit around!
    1. McDonald’s own consultants had told them the coffee was too hot.
    2. McDonald’s had already settled at least 200 too hot coffee lawsuits.
    3. McDonald’s had approximately 750 more lawsuits awaiting trial over the coffee temperature.
    4. Why was it so hot?
    Because McDonald’s insisted that the coffee would have gotten cold by the time it got to the place where the people were going to drink it.

    Stella Liebeck’s only part of contributory negligence was putting it between her legs.
    But, if the coffee hadn’t been so damn hot, nothing would have happened when it spilled.

  59. shadow735 says:

    I like my coffee cold I dont understand the whole hot thing.

  60. DMDDallas says:

    The lady who spilled the coffee on herself only has herself to blame. Drinking a very hot liquid in a confined space that constricts your movements makes things all the more perilous.

    However, I think anyone who drinks coffee has a reasonable expectation that the liquid is hot and scalding.

    I feel sorry for the poor lady, but I can’t agree that McDonalds should be made to pay up. People need to exercise self-responsibility – something that is lacking in this world.

  61. DMDDallas says:

    @Greasy Thumb Guzik:
    4. Why was it so hot?
    Because McDonald’s insisted that the coffee would have gotten cold by the time it got to the place where the people were going to drink it.

    Yes, imagine people actually wanting to drink hot coffee when they get to work, imagine that?

  62. DMDDallas says:

    On the burger EULA:
    Maybe they will add another section that displays a non-compete agreement: you may not eat at a competing fast food chain for 90 days

  63. jza0y3p2fz8wcr6 says:

    IAAL (I am a lawyer) and it depends on the state in which this restaurant resides (Texas?) but simply walking through a door is not a binding contractual agreement.

    DMDDALLAS, coffee is supposed to be “hot” (a relative description) but it is not supposed to be “scalding” (to cause burns). One can not drink “scalding” coffee. In the infamous case the coffee caused third degree burns. Do a Google image search for “third degree burns” and you’ll understand how hot the coffee was. It was pure negligence on the part of McDonalds to serve what was supposed to be a drink at a temperature that would cause those burns.

  64. csdiego says:

    @Rectilinear Propagation: I was responding to mrmysterious, then I made a general comment on the whole situation.

  65. hhole says:

    Maybe I’m just feeling a bit feisty today after that 5th mocha but I’d love to walk in, drop my pants and squeeze out the biggest turd I could on the floor. Than pull up my pants, point at said turd and say “arbitrate this” as I walk out the door.

    Assclown.

  66. goller321 says:

    @DMDDallas: Would it have been ANY different if she had been sitting at a table and the coffee was spilled into her lap?

    -For the record, she was found 20% at fault, because she had placed it between her legs.
    -The punitive damages of $2.7 million were TWO days of coffee sales for McDonald’s, and that was how they arrived at that figure.
    -The coffee was being served between 20-40 degrees higher than other restaurants. And while coffee is meant to be BREWED at that temperature, is is NEVER meant to be be consumed at that temperature.
    -And let’s be honest, he vast majority of people do not wait to get to work before consuming the drink.

  67. hossfly says:

    dang, and i thought they told me in school that water boils at 230 degrees

  68. solidstate42 says:

    The legal issue that Whataburger will have difficulty with is “consent”. In order for an arbitration agreement to be valid, a judge must find that both parties agreed to binding arbitration.

    @Roguesopist: Unconscionability is not a bar to forming a contract but rather a means to void a contract. If neither party to an arbitration agreement raises unconscionability as grounds for not enforcing it, then the contract will continue on.

  69. Vietnamkid says:

    Ha! Ha! This is so unenforceable.

  70. Scaramanga says:

    These sort of “contracts” don’t actually hold up in court. Also, the contracts you sign when you start a job that says you can never sue your employer for wrongful termination etc are equally BS[www.nashuatelegraph.com] They are designed to scare people off and avoid litigation in the first place, but are not legal contracts under the eyes of the law. Point being, you cannot sign your right to a valid lawsuit away.

  71. BeFrugalNotCheap says:

    @Ben Popken:
    Correct: People tend to forget that the woman that spilled coffee on herself was content with a lower amount for time missed from work. McDonald’s blew her off and paid the price for not only serving such hot coffee but for laughing in her face. McDonald’s could have saved themselves from negative PR and from being the subject of an almost mythical, trend-setting (I remember going into restaurants afterwards and seeing signs saying “We serve hot coffee, use caution”, etc. keep in mind this is before you even entered the damn restarant) and infamous lawsuit . But then again, they’ve never been concerned about negative PR anyways.

  72. BeFrugalNotCheap says:

    @kamikasee:

    lol. Being from south texas I was thinking the same myself. Too bad it’s something as eye-roll inducing as this. But I guess it’s the sign of the times. Whataburger has to protect themselves from billy-bob and cora bonewall from poth, TX walking in, slipping on a damp spot on the floor then screaming bloody murder about how a disc in their back popped out then winning a “shut up and go away” settlement that will just be spent on scratch off lotto tickets and time life music collections.

  73. Buran says:

    @outphase: Plenty of BS cases go to trial. And it doesn’t matter if the car was parked or not, SHE PUT IT BETWEEN HER LEGS, and we expect people to handwave and say that’s OK? How fucking stupid do you have to be to put hot stuff in a place like that? You GET OUT OF THE GODDAMN CAR AND PUT IT ON A TABLE.

    My god, people really have no sense of personal responsibility or common sense anymore!

  74. mac-phisto says:

    there really needs to be a “mcdonald’s lady” corollary to godwin’s law.

  75. Difdi says:

    I would be seriously tempted, if I saw such a piece of paper taped to the door of a local restaurant, to reach inside and grab it (without entering), pull out a pen, line out & initial the binding arbitration clause, sign it, then enter and present it to the cashier with my order. It’s technically not vandalism, since they presented a contract to me, which entitles me to reject, accept, or modify it and return it to them for their approval.

  76. Curiosity says:

    @Difdi:

    Interesting point, considering the nature of express contracts is some aspect of negotiation, you could certainly say that they consented to such an action. Moreover, it also implicates when a parol contract was made and what for (what is the obligation of the joint?)

    A parol contract is defined to be a bargain or voluntary agreement made, either orally or in writing not under seal, upon a good consideration, between two or more persons capable of contracting, to do a lawful act or to omit to do something, the performance whereof is not enjoined by law.

    From this definition it appears, that to constitute a sufficient parol agreement, there must be:

    1st. The reciprocal or mutual assent of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. The agreement must, in general, be obligatory on both parties, or it binds neither. To this rule there are, however, some exceptions, as in the case of an infant’s contract. He may always sue, though he cannot be sued on his contract.

    2d. There must be a good and valid consideration, motive or inducement to make the promise upon which a party is charged, for this is of the very essence of a contract under seal and must exist, although the contract be reduced to writing.

    3d. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void.

  77. Curiosity says:

    Also for those “hot coffee” comments -

    Water boils at 212 °F or 100 °C

    McDonalds required that the franchises served their coffee at 180-190 °F (82-88 °C)

    The National Coffee Association instructs that coffee be brewed “between 195-205 degrees Fahrenheit [91-96 °C] for optimal extraction” and consumed “immediately”. If not consumed immediately, the coffee is to be “maintained at 180-185 degrees Fahrenheit.

    McDonald’s quality control manager, Christopher Appleton, testified that this number of injuries was insufficient to cause the company to evaluate its practices. He argued that all foods hotter than 130 °F (54 °C) constituted a burn hazard, and that restaurants had more pressing dangers to warn about.

    The Defense stated that lowering the temperature would have given more time to people spilled upon (Rejected later as scientifically suspect [www.bailii.org]).

    Fun facts!!!