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Op-Ed

Burgers, Candles and Horses

May 24, 2021

You can sue a business for discrimination if they won’t serve you because of who you are. But can you sue a customer for not buying from you because of who you are?

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Can you sue someone for not patronizing your business? You can sue a business for discrimination if they won’t serve you because of who you are. But can you sue a customer for not buying from you because of who you are?

We now have such a suit. Last week two media companies owned by comedian and mogul Byron Allen sued McDonald’s Corporation for not advertising on his networks because McDonald’s wrongly perceived his company as catering only to an African-American audience.

And McDonald’s thinks African-Americans don’t like hamburgers?

No, that’s not it. According to the lawsuit, “it is estimated that McDonald’s stores earn billions of dollars each year from African American consumers.” This happened even though McDonald’s in 2019 spent only 0.31% of its ad budget on African American-owned media. Apparently that small amount of spending was all it needed for a lot of business.

The lawsuit, though, says the lack of advertising with Allen’s Entertainment Studios Networks Inc. was “the result of racial animus and racial stereotyping” and McDonald’s should fork over more than $10 billion in compensation.

You read that right — $10 billion. It was written by a lawyer with a straight typeface.

I’m all for supporting minority-owned businesses. That’s important. But this suit seems like a publicity stunt — one that worked pretty well. It definitely got a lot of straight-faced news coverage.

I’m waiting for the barrage of follow-up suits. There must be thousands of other companies that have never advertised on Allen’s networks. This should have been a class action.

In the meantime, I’m going to buy things from everyone. I don’t want to be sued.

Goop. Sometimes the jokes write themselves. Unfortunately, when it comes to the class action lawsuit filed against Goop Inc. in Los Angeles last week, most of them are in terrible taste so I’ll have to save them for my comedy club act if I ever have one.

In case you missed the news reports, a man — and a I stress the word man sued Goop because a $75 candle called “This Smells Like My Vagina” became “engulfed in flames” after burning for three hours.

No word on what the man who bought the $75 candle was doing during those three hours.

Think about that while I tell you what Goop, on its website, says the candle smells like: “With a funny, gorgeous, sexy, and beautifully unexpected scent, this candle is made with geranium, citrusy bergamot, and cedar absolutes juxtaposed with Damask rose and ambrette seed to put us in mind of fantasy, seduction, and a sophisticated warmth.”

Um, I’m not an expert, but does this sound like an accurate description of vagina smell to you? Maybe the plaintiff should have sued for false advertising.

Bettor logic. There’s always an excuse in horse racing when things don’t go your way. Usually, it’s something like a traffic problem (other horses got in the way) or a stumbled start. And, usually, the logic isn’t always extremely sound.

Consider this from a class action suit filed in federal court in Los Angeles against the owner and trainer of the horse that won the Kentucky Derby this year but might be disqualified (as of this writing) if a positive drug test gets confirmed:

“Medina Spirit won the race, contrary to what Plaintiffs’ analysis and observations of the horse’s previous racing form and analysis of the race suggested would be the result. Consequently, the other horses on which Plaintiffs placed their bets finished second, third, fourth, and fifth, instead of first, second, third, and fourth.”

Would they have? This supposes that Medina Spirit would have finished worse than fourth without the drug (which may not have been performance-enhancing). Medina Spirit had never finished worse than second in his racing career so him winning wasn’t exactly shocking.

And how exactly do you define and find the plaintiff class? The horse that ran second and could be moved up to first if MS is disqualified went off at 28-1. That means not a whole lot of bettors would have won if MS was taken off the board.

You could find the online betters but how do you find all those guys who tore up their tickets at the track? And how do you do the payoff math? With or without Medina Spirit bets in the pool? With or without Medina finishing in the money without a bad drug test?

Disgruntled sports fans rarely win lawsuits but I guess this one might have a shot since there was money on the line for the plaintiffs. You just have to figure out what Medina Spirit would have done without the drug which, again, may or may not have been performance-enhancing.

I should note here that one of the named plaintiffs is a guy named Michael Beychok who is a former national handicapping champion. I think he just wants to brag that he picked the longshot who could have won.

If nothing else, I’ve got to agree with Beychok’s May 14 tweet: “Man I thought twitter for faux doctors was bad but whew… these faux lawyers. Just like horseplayers we all got opinions.”

Indeed.

One or two of you at this point are probably wondering what I, a very small-time horse owner, thinks of all this. The answer is: I just don’t know.

Medina Spirit should be disqualified if the blood test is confirmed. That part is easy. The hard part is figuring out whether his famous trainer, Bob Baffert, did this on purpose. We should be outraged if he did. We should be a little sad but not too upset if he didn’t. I’m hoping we’ll find out which is true but we may not.

There’s also the issue of the drug itself. It’s supposedly not performance-enhancing, so we don’t really know if it made a difference. Another possibility is the drug masked the existence of something else. Who knows? I’m hoping somebody eventually does.

Sigh. Fairness is hard.

Does it make a difference that Medina Spirit ran third in the Preakness? No, it doesn’t. Favorites don’t always win and, in the Preakness, the two favorites got into a speed duel and, predictably, tired. They got passed by a good horse who wasn’t in the Derby. This could have happened with or without drugs.

I will stop now because I know most of you are bored with this.

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