Would You Like Unprincipled Prior Restraint With That?
When Ahmed Ahmed filed a class action against McDonald's on the theory that they advertised halal food but sold non-halal food, reactions fell into three familiar categories. There was incoherent Gellaresque pants-wetting about how this was the harbringer of SHARIA LAW being enforced on every man, woman, child, and chicken nugget in God's Country. There were impolite suggestions that one would have to be an idiot to rely on McDonald's to abide by complex gustatory or cultural rules, and rude speculation that the natural and probable consequence of driving through McDonald's and asking for a halal meal is winding up with a week-old McRib spat in by Menachem Begin. Then there were the legal realists who suggested — correctly, as it turns out — that whatever else happens, this means money in the pockets of lawyers.
Nobody expected a free speech fight. Yet they got one.
See, when a potential settlement was announced, attorney and class member Majed Moughni didn't think much of it. He thought that it gave too much money to lawyers and let McDonald's off the hook too easily and didn't really accomplish anything of substance for class members. That sounds like a classic class action settlement to me, but I'm a notorious cynic. Moughni created a Facebook page criticizing the proposed settlement and urging class members to opt out:
McDonald's was going to pay $700,000 for selling "Haram" chicken sandwiches and labeling it as "Halal". The current lawyer on the case wants the the [sic] majority of the money to go to a medical center ($275,000) and a museum ($150,000), that lawyer Kassem Daklallah, wants to pocket $230,000 and the plaintiff, Ahmed Ahmed will keep $20,000. We think the money should go to you, the people who were lied to and bought and ate "Haram" chicken sandwiches, not a medical center or a museum who were not injured. …
Did somebody say injunction?
Jaafar & Mahdi, the law firm representing the class, was outraged. It reacted first by threatening Moughni with libel and a report to the state bar, and then with a motion seeking an injunction forcing him to take down the critical page and prohibiting him from criticizing the settlement. Incredibly, Judge Kathleen McDonald (no relation, apparently) granted a broad injunction, leading Paul Alan Levy and Public Citizen to step in to represent Moughni. The injunction purports to require Moughni to take down his criticism, replace it with Judge McDonald's orders and the class counsel's position, and refrain from any communications with class members without Jaafar & Mahdi's consent. As Public Citizen's brief convincingly demonstrates, the injunction is an unconstitutional prior restraint that misconstrues advocacy and opinion as false statements of fact — for instance, by suggesting that it is a false statement of fact to characterize Jaafar & Mahdi as "pocketing" substantial amounts of money. The same brief shows that the injunction not only violates Moughni's First Amendment rights by silencing him, but violates them by compelling him to say things he doesn't believe. The ACLU is backing Public Citizen and Moughni, and Judge McDonald's ruling has drawn substantial criticism.
Rather than vacating her lawless injunction promptly based on the compelling authorities submitted by Levy and Public Citizen, Judge McDonald has allowed the parties to dither and delay over whether or not to support the continued injunction. Meanwhile, as Levy points out, while Moughni is gagged by the court about class counsel Jaafar & Mahdi, Jaafar & Madhi has felt free to bad-mouth Moughni in the press.
I understand there is another hearing this week, perhaps that will produce results. Meanwhile, I understand that Judge McDonald has suggested that she will file a bar grievance against Moughni. If there are amongst our readers any Michigan attorneys who practice attorney discipline law, Public Citizen would appreciate your help.
Moughni's conduct — questioning the fairness of a settlement reached purportedly on behalf of a class of people, submitted for approval to a court — is at the heart of the First Amendment. It constitutes both petitioning the government and speaking freely about the government and its functions. Even if Judge McDonald lifts the injunction today, it is a travesty that it stood for even an hour.
Members of a class must necessarily repose great trust in the judgment of class counsel. Obviously the attorneys for the defendant corporation aren't looking out for the interests of the class, and judges have limited time and resources to delve into the truth of allegations and the fairness of a settlement. So ask yourself, class members: why would you possibly repose an iota of trust in a law firm like Jaafar & Mahdi that reacts to criticism by demanding a broad, lawless injunction silencing criticism of its judgment?
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