The Restaurant Insider: Inside The Foie Gras Lawsuit

Staff Writer
Restaurateur James Mallios investigates the lawsuit behind Napa’s La Toque restaurant
James Mallios
James Mallios

James Mallios

James Mallios is the managing partner of Amali restaurant, a Mediterranean restaurant in Manhattan.  He spent five years as a plaintiff-side lawyer for aggrieved employees in the securities business before turning to a career in restaurants. In this column, "The Restaurant Insider," he plans to demystify the restaurant experience. His opinions are his own and not associated with Amali and its sister restaurants.  

When I read about the lawsuit filed by the Animal Legal Defense Fund (ALDF) against La Toque restaurant in Napa Valley, Calif., for serving complimentary foie gras, I thought of the time I was tacitly accused of almost burning down 115 East 60th St.  

Last summer, our restaurant roasted whole pigs on the sliver of yard space that we rent on East 60th Street in Manhattan. It is, admittedly, uncommon to roast pigs outside in the middle of midtown New York, so I should not have been surprised when one of the tenants called the fire department. The ensuing investigation resulted in gridlock from the Ed Koch Bridge traffic for more than half an hour until the FDNY decided that our permits were in order.  

First, I called my mother to tell her I had once again used my law degree while operating a restaurant. My friend Devious (who was in the restaurant) remarked, "I would have been impressed if you told me you called the fire department yourself." I explained the immense aversion that all restaurateurs have to any municipal attention and questioned his business acumen.  

The next day a food website picked up the story and we fielded 25 phone calls asking about our outdoor cooking program. Simultaneously, I realized that Devious may deserve his $75,000 a month fee as a marketing consultant.  

The thought to call the FDNY had never occurred to me. To quote Sallazo, I'm not that clever. This metaphysical thought, however, occurred to both La Toque and ALDF. The foie service and ensuing lawsuit are publicity stunts, and good ones at that.  

I applaud their respective ingenuity.  

First, the ALDF. Their lawsuit is based in the California's Unfair Competition Law, formally cited as the Business and Professions Code, Section 17200-17210. The law is clear that the only person with standing to sue under this statute is a government prosecutor, municipal attorney, or person who has suffered a monetary injury as a result of the alleged conduct. Because ALDF is not a municipal/state attorney or a competing restaurant, they lack standing as a matter of law. The case will be dismissed as a matter of black letter law.  

Their lawyer knows this fact. But I am willing to bet that they receive a sharp increase in donations in the coming weeks, more than enough to pay their (mostly donated) legal fees. 

La Toque also knows the lawsuit will be dismissed. Owner Ken Frank is no slouch as a chef or as a business man (as La Toque's reviews will attest). While I don't doubt his integrity, no one cares that much about the politics of foie gras. Maybe you think I am a cynic and that chefs and restaurateurs in California serve foie out of principled loyalty to French culinary tradition.  

So let's do some basic arithmetic.  

The law does not ban possession or consumption of foie, only the sale or production. The chef claims he serves complimentary foie and sauternes every night to diner(s). Assuming La Toque isn't riddled with solo diners, average a deuce and a four-top into three servings a night. Let’s also assume that La Toque serves seven nights a week and is open 360 days a year.  

That is 1,080 foie gras servings and 1,080 glasses of sauterne. Now, some restaurant math.  

Wholesale foie from D'Artagnan (the Hudson Valley Farm used by chef Frank) is roughly $45 a pound wholesale. Assuming a 3-ounce portion size per person, La Toque gives away 216 pounds of foie a year, or $9,720 worth of foie. Add a traditional 3-ounce pour of a wholesale $18 sauterne (375 milliliter) for $4,860 and we get a total of $14,580. That calculation ignores the labor and additional foodstuffs that go into that complimentary dish (no garde manger is touching foie, I can assure you) as well as the attorney’s fees.  

Like I wrote earlier, I doubt anyone likes foie that much.

Unless of course, that $14,580 is accounted for as advertising in the 95 percent of costs that eat up La Toque's gross. As a result, La Toque (who has been sued not once but twice for this "foiephilia") served foie in the hopes of receiving national press for his defense of Escoffier's tradition. I respect that decision. Brilliant. When I saw the Internet and print traffic for La Toque, I remembered the appreciation in Robert Muldoon's dying words in Jurrasic Park.  

Clever girl.

There is nothing wrong with either side of this issue advancing their interests, but we should recognize the inherent self-interest of each party. They clearly take the public relations adage "just spell my name right" to heart.

Chefs and restaurateurs can do noble things. We can and should make a difference in the way people eat, the food they choose to buy, and the way it is transported to our plates. But restaurateurs operate in perhaps the most competitive business in this economy, and I commend Ken Frank not for his principles, but for being able to mix those principles with a sound strategy to make sophisticated diners aware of his restaurant. If restaurateurs benefit from a principled decision that has the advantage of promoting their business, all the better.  

 

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