Free Declaration in Support - District Court of California - California

Case 4:08-cv-03685-CW

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Trenton H. Norris (California State Bar No. 164781) Sarah Esmaili (California State Bar No. 206053) ARNOLD & PORTER LLP 90 New Montgomery Street, Suite 600 San Francisco, CA 94105 Telephone: (415) 356-3000 Facsimile: (415) 356-3099 Email: [email protected] Email: [email protected] Peter L. Zimroth (pro hac vice) Kent A. Yalowitz (pro hac vice) Nancy G. Mifburn (pro hrrc vice) ARNOLD & PORTER LLP 399 Park Avenue New York, NY 10022 Telephone: (212) 7 15-1000 Facsimile: (212) 715-1399 \ , Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Plaintiff CALIFORNIA RESTAURANT ASSOCIATION

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION CALIFORNIA RESTAURANT ASSOCIATION, Plaintiff,
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No. CV-08-03685 CW (Related to No. CV-08-03247 CW) DECLARATION OF SCOTT RANDOLPH IN SUPPORT OF PLAINTIFF'S MOTION FOR DECLARATORY RELIEF AND A PRELIMINARY INJUNCTION Hearing Date: August 28,2008 Hearing Time: 2:00 p.m. Courtroom: Courtroom 2,4th Floor The Honorable Claudia Wilken Complaint filed: July 22,2008 Notice of Removal filed: August 1, 2008

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THE COUNTY OF SANTA CLARA and THE SANTA CLARA COUNTY PUBLIC HEALTH DEPARTMENT, Defendants.

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-1CASE NO. CV-08-03685 CW DECLARATION OF SCOTT RANDOLPH IN SUPPORT OF PLAINTIFF'S MOTION FOR DECLARATORY RELIEF AND A PREL,IMINARY INJUNCTION

Case 4:08-cv-03685-CW

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Trenton M. Norris (California State Bar No. 164781) Sarah Esmaili (Califorl~ia State Bar No. 206053) ARNOLD & PORTER LLP 90 New Montgomery Street, Suite 600 San Francisco. CA 941 05 Telenhone: (415) 356-3000

t J-l 2t, 2008 3:07t U I L PM u 4
David H. Y a m a s a k i
Chief Executive OfficedCIerk Superior Coun of CA, County of Sanla Clara Case #I-08-CV-117885 Filing #G-9873 By M. Rosales. Deputy

Peter L. Limroth @ro hac vice admission pending) Kent A. Yalowitz @YO hac vice admission pending) Nancy G. Milburn @vo huc vice admission pending) ARNOLD & PORTER LLP New York, NY I0022 Telephone: (212) 71 5-1000 Facsimile: (212) 715-1399

Attorneys for Plaintiff CALIFORNIA RESTAURANT ASSOCIATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA C1,ARA

CALIFORNIA RESTAURANT ASSOCIA'I'ION, Plaintiff,

Case No. 1-08-CV-117885 DECLARATION OF SCOTT RANDOLPH IN SUPPORT OF PLAINTIFF'S MOTION FOR DECLARATORY RELIEF AND A PRELIMINARY 1NJUNC:I'ION Date: Time: Dept: August 15,2008 9:00 a.m. 8

THE COUNTY OF SANTA CLARA and 'TI IF, SANTA CLARA COUNTY PLJBLIC HEALTH DEPARTMENT, Defendants

Action filed: July 22, 2008

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DECLARA I LON O F SCOTT RANDOLPH IN S U P P O R T O F PLAINTIFF'S MOTION FOR IEC'LARA I DRY Rbl,IEI' AND A PRELIMINARY INJUNCTION

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0: Ju124.2008 3:07 PM, Superior Court of CA, Countyof Santa Clara, Case #?-08-CV-117885Filing #G.9873

1, SCOTT RANDOLPH, declare:

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I provide this declaration in support of Plaintiff's Motion for Declaratory Relief and

a Preliminary Injunction. if called as a witness, I could and would competently testify to the matters set out in this declaration. 2.
1 am the Senior Director of Culinary for T.G.I. Friday's. I am respolisible for the

hands-on leadership of T.G.I. Friday's culinary team in the development and implementation of innovative food ideas and concepts to increase company sales, efficiency, market share, and profitability, while continuously improving processes and methodology. I have been a chef since 1989 and with T.G.I. Friday's for two ycars. Prior to T.G.I. Friday's, I worked in the culiriary departnlents for Walt Disney World, LSG Sky Chefs, and Sheraton I-Iotels.
3.

T.G.I. Friday's was one of the first casual dining chains to be cstablishcd in the

United States. It opened its first restaurant in New Yorlc City in 1965. It offers a wide selection of food and alcoholic and non-alcoholic beverages. In 2003, T.G.I. Friday's was the first national casual dining chain to partncr with Atkins Nutritional Approach to offer low carbohydrate menu items. In 2007, T.G.I. Friday's introduced a Right Portion, Right Price menu, which contains 10 entrees that are about 30 per cent smaller in portion than regular entrees and priced about one third less than regular entrees. The tiienu is designed to assist our customers in meeting their personal health goals. 4. T.G.I. Friday's strongly disagrees with Santa Clara County's Ordinance NS-300.793

(the "Ordinance") which would require it to list certain nutritional infoimation, namely calories, saturated f i t , trans fat, carbohydrates, and sodium, for its food and bcvcragc itcnls on its menns. There is a wide variability among chefs and other kitchen employees, ingredients, raw food materials, and consistency of preparation in casual dining restaurants such as T.G.I. Friday's. This wide variability in turn creates variability in tlie nutritional levels for see~i?il~gly identical menu items. Our experience has shown that given the variability in our portions, ingreclicnts, atid food preparation, it is very difficult for us to consistently be accurate in making statements about the nutritional contetit of our menu items.

-2DECLARAT~ON SCOTT RANDOLPII IN SUPPORT OF PLAINTIFF'S MOTION FOR OF DECLARATORY RELIEF AND A PRELIMINARY INJIJNCTION

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ED: Ju124,2008 3:07 PM, Superior Couii o CA, CounWof Santa Clara. Case #I-08-CV-117885 Filing #G-9873 f

5.

Most of the food ingredients that T.G.I. Friday's uses to prepare its meals are not

purchased pre-cut, prepackaged or pre-measured. For example, we do not servc processcd meats or cliiclten which tend to be prepackaged and of unifonn size and quantity. Rather, we serve chicken far111 wings and sides of ribs, and tliesc items can vary individually in size and fat content beca~ise animals vary in size and body conterit.
6.

The majority of our food offerings are cut, measured and prepared by hand by

individual cooks in our restaurants. Since such menu items are prepared by hand from scratch, portion sizes for appetizers, entrees, side dishes, and even sauces, can vary widely from plate to plate depending on which cook is preparing the food, his particular cooking praclices, and how busy he is. Some cooks use formal measuring devices to measure ingredients; others add ingredients by hand (a pinch or a fistful), and others eyeball amounts. Many cooks use a combination of these methods, and their practices mayvary depending on thc day and how busy they are. A cook on a busy Friday night may usc different food preparation and service methods than he uses when working a quiet midweek day lunch. A cook on a busy night is Inore likely to eyeball servings of sauce on rice, whereas a cook who has more time will use a measuring spoon. Similarly, a busy cook may put a handful of French fries on a customer's plate, while a less busy cook may use a standardized measurement to serve the fries.
7.

Because food items are prepared froin scratch using raw ingredients, and each plate

is prepared to order by one or more individual enlployees in the kitchen, it is very difficult for T.G.I. Friday's to assure complete consistency in portions and nutrition levels of ingredients. Therefore, accuracy in the niitritional infornlation of menu items is not always achievable despite T.G.I. Friday's best efforts to do so. This variability in the nutrition levels of menu items creates a difficult situation for restaurants such as T.G.I. Friday's. If they try to comply with the Ordinance they risk being sued or receiving unfair and unfavorable publicity if someone determines that the stated nutrition levels of their food items are not accurate.

8.

This is not a hypothetical problem. A few years ago an employee at T.G.I. Friday's

who was preparing containers of an Atkins.progran1 food item "to go," added Inore sauce to the

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.D: Jug 24, 2008 3:07 PM, Superior Court of CA. County of Santa Clara, Case #1-08-CV-117885 Filing #G-9873

food item than the T.G.I. Friday's recipe specified. A local television station had the item analyzed and found that tlie carbohydrate level represented by T.G.I. Friday's was not accurate. In that i~istance individual employee's well-meaning desire to give his customers some additional sauce an in the "lo go" container causcd the representation on the menu to be inaccurate. We are very conccmed that such an incident may occur if T.G.1. Friday's is forced to follow the ordinance.

9.

IJlilike the proposed federal law that T.G.I. Friday's has supported, the Santa Clara

County Ordinance does not provide a safe harbor for restaurants whereby, as long as the restaurant are provides a standardized recipe with sufficient detail on the correct preparation and e~iiployees trained in lbllowing those specifications, a restaurant will not be subject to legtal liability in tlie event therc is variability in the listed nutritional levels of its menu items. Even though our chefs follow specificatioiis on how to prepare dishes, and they and other employees receive training on how to prepare and present our lnenii items, there is inevitably a level of variability in the portions, preparation and presentation of the food, just as there would be in a single unit restaurant or in one's own home kitchen. This variability in turn creates variability in the nutritional levels of seeming!^ identical food items. 10. The Ordinance fails to recognize this fact. It provides that restaurants will be in

violation of the Ordinance ifthey deviate from tlie average content of a representative sample of a or menu item by more than 20%. In order to remove any potential for inco~lsistency variability, out T.G.I. Friday's would have to add so many checks and balances that costs to the consu~ner would increase signi ficaiitly. I I. Additionally, the provision in the Ordinance allowing the calorie level lo be

expressed as a "range" is impractical and harmful to our business. T T.G.I. Friday's lists a f haniburger on its menu with a range of250-400 calories, some customers will expecl that they should be able to order a hamburger that is at a fixed number within that range and will be annoyed when told that the restaurant cannot tell them the precise number of calories ofthe menu item because of variations in preparation methods and raw ingredients. The restaurant industry is a highly competitive one, and achieving and maintaining customer satisfaction is paramount. It is
-4DECLARATION OF SCOTT I'AKDOLPH IN SUPPORT OF PLAINTIFF'S MOTION FOR DECLARATORY RELIEF AND A PRELIMINARY INJUNCTION

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D: Jul 24, 2008 3:07 PM, Superior Court of CA, County of Santa Clare. Case#l-08-CV.117885 Filing #G-9873

very unfair to force a restaurant chain to place informati011on its menus that will annoy and Cruslrate ctlstomers and raise questions tliat cannot he answered salisfactorily.
12.

The provision in tile Ordinance allowing for "disclainiers" is also impractical from a

business perspective. In today's litigious world, customers are accusto~ned seeing disclaimers. A to disclaimer. like "Skate at your own risk," does nothing to remove the annoyance of the customer nor does it provide a proper safe harbor fro111litigation.

I declare under penalty of perjury ofthe laws of the State of California and the United States
that the foregoing is true and correct. k, Executed on ~ u l ~ i2008 at [GW&,,\~~

SCOTS RANDO

-5DECI.ARATION OF SCOTTRANDOLYH IN SUPPORTOF PLAINTIFF'S MOTION FOR DECLARATORY U L I E F AND A PIELIMINARY INJUNCTION