by Paul Alan Levy
A status conference was held today in connection with Maged Moughni’s motion to vacate the impermissible prior restraint that Judge Kathleen McDonald issued a month ago, forbidding Moughni to discuss in public the class action lawsuit brought against McDonald’s for selling haram Chicken McNuggets that had been advertised as halal, or the proposed class action settlement. Judge Macdonald refused to vacate the injunction even though the parties who obtained the injunction have been unwilling to meet the legal deadlines for defending her illegal injunction.
The motion to vacate the prior restraint was originally to be heard on Friday, March 1. Briefs in opposition to this motion were due three days before the hearing date. Having missed this deadline, the lawyers for McDonald’s, its Dearborn franchisee, and the plaintiff class conferred with the judge on Thursday, February 28 about timing (Moughni was not allowed to have a lawyer at this meeting). The hearing was delayed until March 5 to let McDonald’s try to negotiate its way out of the mess its lawyers (as well as the lawyers for the plaintiff class) had created for themselves. On March 5, the hearing was delayed again until today.
Instead of holding a hearing today, the judge decided to hold a "status conference" in her chambers. McDonald’s admitted that there was no lawful basis to extend the prior restraint; it also indicated that, as we argued in our motion to vacate, a new notice should be given to class members so that they can decide whether to support or oppose the settlement, or to opt out entirely. I give McDonald's credit for saying this (and for hiring a fine lawyer here in DC to try in good faith to reach agreement), although I expect we will not agree with its reasons for that posture. Counsel for McDonald’s Dearborn franchisee and for the plaintiff told the judge they could not decide what position to take but promised to make a decision soon. All three told the judge that they were anxious to file written briefs justifying her past actions, but none presented their arguments orally.
Instead of rescinding the injunction because the parties have yet been unwilling to defend their handiwork, Judge Macdonald has given them more time to file briefs, and set a hearing on the motion to vacate the injunction for Monday, March 11 at 2 PM.
All the while, Moughni continues to be muzzled, even while plaintiff’s lawyers have been publicly attacking him (a local paper obligingly published their statement in full) as well as buttonholing individual members of the class as well as opinion leaders in the Dearborn community to justify their conduct and, at least implicitly, to impugn Moughni.
It doesn’t take much courage to beat somebody up while his hands are tied behind his back. Here, it is a judge who is using the power of the state and the threat of contempt to tie the victim’s hands, and she is acting at the behest of the lawyers administering the beatings. The law firm that is responsible for this outrage should be ashamed of itself.
The first time I discussed this case, I withheld judgment about the merits of the class action. At the time, one of the lawyers involved in the case was assuring me that he was ready to fill me in on the details of why the settlement was so sensible. I have continued to hear this, but the right time to convey the information always seems to be in the future. I'd like to keep an open mind, but the continuing efforts to shoot the messenger – that is, to go after Majed Moughni for having the audacity to challenge a judge, the lawyers for the class, and the lawyers for McDonald’s for actions that he opposes – suggests to me that this emperor may really have no clothes.
As anticipated, McDonald's has urged Judge Macdonald to vacate the injunction, while arguing at length that she was right to issue it in the first place. Its strategy now seems to be to blame Moughni for the fact that new notice has to be given to the class, and its brief hints that the brand-new tort of wrongful opposition to a class action settlement will be used to try to make Moughni pay for the costs of the notice. First, the McDonald's Dearborn franchisee concurred in McDonald's argument; class counsel have now done so as well.