Unflippable Lawyer Bites Mickey D’s With Burger Suit

By Lisa Keys

Published February 21, 2003, issue of February 21, 2003.
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At times it seemed as if the entire McWorld was against Samuel Hirsch.

The Manhattan lawyer catapulted to infamy last summer as he spearheaded a class-action lawsuit against McDonald’s on behalf of obese teenagers. As the latest player in the assign-the-blame-game, Hirsch became the brunt of late-night talk show jokes and a poster boy for those who claim the courts are choked with frivolous litigation. When Hirsch’s suit was rejected last month by a Manhattan judge, many commentators cried that the ruling was a “victory for common sense!”

Nonetheless, Hirsch proved unflippable — er, unflappable — in pursuit of the burger suit and this week filed a new-and-improved complaint against the Golden Arches.

“It’s not simply ‘I eat a burger ergo I’m fat and it’s McDonald’s fault,’” said Hirsch, sitting at his lawyerly desk in his lawyerly office at the lawyerly address of the Empire State Building. “It’s about deceptive practices and McDonald’s continuous pattern of exploiting children.”

Hirsch can point to some support for his position. While U.S. District Judge Robert Sweet invoked “common sense” in his January 22 dismissal of the suit, he declared the restaurant chain’s Chicken McNuggets “a McFrankenstein creation of various elements not utilized by the home cook.” The judge also suggested that if “plaintiffs were able to flesh out this argument in an amended complaint, it may establish that the dangers of McDonald’s products were not commonly well known and thus that McDonald’s had a duty toward its customers.”

During the last month, Hirsch chewed it over (so to speak) and did exactly that. This week he filed an amended complaint seeking “to secure redress from deceptive practices in the promotion, distribution, advertising, processing and sale of certain products” by McDonald’s. Among many grievances are the “McFrankenstein creations” which McDonald’s touts in its nutritional booklet as being made from “whole cuts of breast and minced thigh meat.”

Hirsch is a small, trim man with a disconcerting habit of reading, writing and staring at his desk while speaking — looking anywhere, basically, but at a reporter. A one-time New York State assemblyman who represented the chasidic Brooklyn neighborhood of Boro Park, he is an Orthodox Jew whose lips have never touched treyf and who hasn’t eaten a french fry in years — but nonetheless litigated the suit that gripped our fast food-obsessed nation.

Hirsch acknowledged that he was motivated by “an element of compensation,” but insisted that the suit was “not an attempt to fleece McDonald’s or the fast food industry. Our goal is to establish an educational fund. Knowledge is power.”

Last spring, goaded by an associate as well as by the success of recent books such as Eric Schlosser’s “Fast Food Nation” and Greg Critser’s “Fat Land: How Americans Became the Fattest People in the World,” Hirsch began to investigate what he calls the “deceptive practices” of Mickey D’s. “We found that clients from lower socioeconomic backgrounds have come to rely on McDonald’s,” he said. “McDonald’s acts as their home away from home. In the mornings, they start their day with an Egg McMuffin for breakfast; they complete the day with a super-size meal for dinner.”

The Bronx, for example, “has a total saturation of stores,” Hirsch said, noting that there are 20 locations of the restaurant within a two-mile radius.

“What is missing is a lack of real understanding and knowledge,” Hirsch said. “The nutritional information is so unknown. One has no idea how many grams of fat are in a super-size meal. It’s on their Web site, but we have to assume that one has a computer available. How many people go to a Web site to look at nutritional information? Certainly not a child, especially not one from a disadvantaged family.”

Whatever the cause, obesity has become a problem of epidemic proportions in the United States. According to the Centers for Disease Control, 60% of adults are overweight, and almost a third of American adults qualifies as obese. Today, 15% of children ages 6 to 19 are obese — almost three times the percentage of 1980.

Hirsch is quick to state that Big Macs are only part of the problem. “No doubt our sedentary lifestyle contributes to obesity,” Hirsch said. “But McDonald’s marketing strategy of hooking children is what this is all about.”

Born in a displaced persons camp in Austria, Hirsch, 54, has lived in New York since he was 1 year old. As a child, he said, he idolized Perry Mason and after graduating from Brooklyn College obtained a law degree from New York University in 1972. After graduation, he worked as a trial assistant to Jacob Fuschsberg, who later became an associate judge of the New York State Court of Appeals.

After toiling as a law assistant for the city, Hirsch ran in 1977 for New York State Assembly; “it went together with the whole Perry Mason thing,” he said. In December 1978, after the Sabbath murder of a religious Boro Park resident, a violent clash erupted between some 3,000 chasidim and the local police precinct. Not only was Hirsch injured in the melee, he was arrested on charges of third-degree assault.

Hirsch said he was “famous for being an agitator in the riots” and it’s a memory he seems to regard fondly. Framed on his wall — amid diplomas and snapshots with President Reagan and Vice President George Bush — is a press photo taken at the time of his arrest, with Hirsch looking dapper in a three-piece pinstriped suit and a trench coat and with his fair-haired wife, Ruthie, on his arm.

In 1981, after he took an “unpopular approach” as a New York Democrat — supporting Reagan in the presidential race — Hirsch lost his seat and returned to the full-time practice of law. Until the McDonald’s suit, personal injury actions were his practice’s “bread and butter,” he said.

Today Hirsch lives in Suffern, N.Y., with his wife. They have four children and six grandchildren.

As for the prospects for success with another McDonald’s lawsuit, Hirsch said, he is “cautiously hopeful.”

“It’s a difficult case, a difficult concept,” he said. “We realize it’s an uphill fight.”

Hirsch said he has no plans to sue other fast food chains. “The other area I’d consider is the weight-loss industry,” he said, noting the proliferation of “miracle” weight-loss products. “The common sense argument doesn’t hold when people are vulnerable and can be exploited.”

“There’s a biblical injunction against putting a stumbling block in front of a blind person,” Hirsch said. “In the Talmud it’s interpreted as forbidding all types of deceptive acts. I think McDonald’s is involved in that type of practice.”

“They have wrapped themselves in the American flag but what McDonald’s is really about is the corporate bottom line.”

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