On Ben Edelman and Sichuan Garden

As someone who shares Ben Edelman’s passion for standing up to businesses that rip off consumers (and someone who’s been doing it for longer than he has!), I feel compelled to weigh in on the recent hubbub.

There are four different aspects to this incident that need to be untangled: the facts; the law; Edelman’s conduct; and the conduct of the Sichuan Garden’s spokesman, Ran Duan.

The Facts

I’m not going to rehash the basic facts; you can read the article above for those. Rather, I want to talk about a critical fact that most of the stories covering this incident and people commenting about it have ignored.

Duan claims that when Edelman looked at the menu on the Sichuan Garden web site, there was a disclaimer there warning that menu prices differ by location. Edelman claims there was no such disclaimer, which means he accuses Duan of putting the disclaimer onto the web site to cover his ass after Edelman complained.

Unfortunately, the web site isn’t cached in the Internet Archive or Google, so it’s impossible for us to determine for certain who’s telling the truth. Personally, I think it is more likely that Duan is, i.e., that the disclaimer was there and Edelman missed it. Having said that, since we can’t know for certain, this analysis covers both possibilities

The Law

Massachusetts General Laws Chapter 93a covers “unfair and deceptive trade practices,” which includes false advertising. Advertising incorrect prices on a web site falls under the purview of Chapter 93a. Furthermore, Chapter 93a allows individual consumers harmed by such practices to sue to recover their actual damages and reasonable legal fees and costs. Furthermore, if a court finds that the violation was willful and knowing, the court must order punitive damages of double or triple the actual damages (but no more than that).

If the pricing disclaimer was on the web site, then Edelman has no claim whatsoever under Chapter 93a.

Maybe he could have mentioned to the restaurant that it would be nice if their web site had accurate prices for all of their locations; that would certainly have been legitimate feedback to give them. He could even have said to them, “Hey, you know what, I know you’ve got this disclaimer on your web site, but I didn’t see it, and I sort of feel a little ripped off about paying more than I thought I was going to pay for my food, so could you be a champ and refund the difference?” and I bet they would have obliged.

What Edelman couldn’t legitimately do if there was a disclaimer on the web site, and did anyway, was accuse the restaurant of violating the law, threaten to report them to the authorities, actually report them to the authorities, threaten to sue them for damages, etc., etc. All of that stuff was completely unjustified by the law, again, if the disclaimer was on the web site when Edelman looked at it.

Chapter 93a has detailed procedures that consumers are required to follow if they wish to invoke its protections. I know this first-hand, because I have successfully invoked them on numerous occasions, including once when I won more than $1,000 in triple damages from Sprint. To invoke the protections of Chapter 93a, a consumer must:

1. Contact the business in writing and spell out in detail the complaint and what remedy is required.
2. Give the business 30 days to respond to the complaint.
3. If the business’s response is unsatisfactory, file suit.
4. If you want to be win double or triple damages, convince the judge that the defendant’s action “was a willful or knowing violation or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of” was a violation.

Furthermore, if you can make a good enough case that other people were definitely harmed by the defendant’s actions, you can sue on behalf of all the people who were harmed and compel the defendant to pay the damages outlined above to all of them.

It is important to understand that one of the purposes of Chapter 93a is to allow, and indeed to encourage, individual consumers to bring suit on behalf of an entire injured class of consumers and to seek redress for all of them.

If you read the email conversation between Edelman and Duan with this understanding of Chapter 93a, then you will see that from a legal point of view, Edelman did absolutely everything right. Everything he did was consistent with the procedures outlined in Chapter 93a, and everything he did was consistent with his expressed motive of protecting not only him, but other customers from what he believed to be unlawful, unfair, and deceptive trade practices by the business.

The entire previous paragraph is true whether or not the pricing disclaimer was on the web site, because Edelman sincerely thought it wasn’t. In other words, given what Edelman knew when he contacted the business, his actions were entirely justified and even perhaps encouraged by Massachusetts law.

Edelman’s conduct

People are all uptight about the fact that Edelman demanded $12 off his bill, but the fact of the matter is that Chapter 93a permits consumers to demand what they believe is reasonable compensation for their injury, and in my opinion, neither of his demands were unreasonable, given the time he spent arguing with Duan.

“But he didn’t have to argue with Duan. He could have just let the whole thing drop!” you say? Yes, that’s true, but the point is that in Edelman’s opinion, the restaurant was knowingly ripping them off by advertising false prices for takeout, and he was fighting the good fight by arguing with them about it. Sorry, Edelman haters, but I’m with him on this.

However, Edelman isn’t totally in the clear. His behavior jumped the shark when the business took the menu down from the web site and pointed out to him that there was a disclaimer on the site mentioning that prices differed by location. At that point, it should have become clear to Edelman that since his initial complaint may in fact have been legally groundless, and since the restaurant had taken steps to address his concerns, he should declare victory and get on with his life. Instead, Edelman accused Duan of lying about the disclaimer, threw in some garbage about how even if the disclaimer had been there, it didn’t matter (not!), and then demanded more money.

At that point, he was no longer crusading on behalf of everything right and good, he was just being petty and argumentative for no good reason. Ben, Ben, it all started so well, and then you blew it.

Duan’s conduct

Duan was wrong to minimize the severity of advertising incorrect prices on a web site. Everyone who operates a business should take seriously their obligation to advertise fairly and accurately. If you aren’t willing to take responsibility for ensuring that the prices on your web site remain accurate, then don’t post prices on your web site.

I think Duan was also wrong to send the email thread to the press. It seemed pretty clear to me by the end of the thread that Edelman wasn’t going to take any further action and that it was unlikely that there would be any enforcement action from the city either. Therefore, the only motive I can see for Duan publishing the emails was to get revenge on Edelman for being a jerk. Not cool, bro.

Aside from those two mistakes, I think Duan’s interaction with Edelman was entirely civil and appropriate.

The big picture

Edelman was trying to do the right thing, with good motives, and with the law on his side.

Duan was trying to do the right thing, with good motives, and with the facts (probably) on his side.

All of this would have just gone away, with no permanent harm to anyone, if Duan hadn’t forwarded the emails to the media.

Therefore, if we’re keeping score, then Duan was more in the wrong here than Edelman.