Response to Jeff Nelson

Life is short, and discussion is endless. Anyone who’s read my original story ("The McDonald’s Lawsuit: What’s the Story?" in the March/April 2004 issue of VegNews), read Nelson’s lengthy response, and then has the patience to get through my rebuttal, is going above and beyond the call of duty to understand what’s going on here. I don’t want to get into an endless round of internet postings or "tit for tat" responses, so I’m just going to highlight the more obvious errors that Nelson’s "correction" has.

But it’s worthwhile to take a moment and see what Jeff Nelson and I agree on. He never questions my basic framework of events — the timeline of events given at the bottom of pages 34-35 in my article. Secondly, he acknowledges his own central role in the lawsuit and the objections to it. Thirdly, he recognizes that this is a controversial and divisive issue which should be publicly discussed. When you think about it, that’s a quite wide area of agreement. This creates a framework within which a reasonable discussion can occur. I can’t respond to all the inaccuracies in his response, but I think the following covers his major points.

1. "Akers did not interview any of these vegetarian individuals who are appealing the McDonald’s settlement allocation."

This is not true. John McDougall, one of the most prominent of the appellants, agreed to be interviewed and I featured his remarks conspicuously in my article. I asked all of the appellants, except Jim Glackin and Mary Liro for whom I had no contact information, if they would like to be interviewed. Alex Hershaft, Joanne Stepaniak, and Colin Campbell all politely declined. The other appellants never responded to my phone calls or e-mails.

I also asked to interview Michael Hyman, the appellants’ attorney, and Jeff Nelson himself. Nelson responded in a seemingly angry manner, threatening a lawsuit if I wrote the article, and declining to be interviewed. Hyman never responded to repeated phone calls and e-mails.

2. Nelson quotes Bruce Friedrich as saying, "I was surprised to see myself quoted in Keith's article. I haven't studied the issue and thus wouldn't have commented." 

Bruce Friedrich (right) responds to questions from Keith Akers (left) about the McDonald's lawsuit 

I did indeed interview Bruce at the United Poultry Concerns conference in Boulder, Colorado in 2003. I told Bruce clearly beforehand that I was interviewing him for a story in VegNews. I also offered him the opportunity to speak off the record, which he did not take me up on.  I was well aware of the sensitive nature of this issue and gave the exact same introduction to every interview.  Some activists took me up on the offer to speak "off the record," and though I never quoted them, their help was indispensable in writing the article.

My quotation of Bruce Friedrich's "criticism" of Jeff's article is completely accurate.  Several people, including some other prominent animal rights activists, were standing around during part or all of the interview and listened in.  I also reported some of the favorable things Bruce said about Jeff.  The whole discussion lasted nearly an hour, and we got several photographs of him for possible use in the story, one of which is above.  

Bruce is a savvy and effective activist. His statements showed that he was quite familiar with the lawsuit and the politics of the issue.  Perhaps in the future Bruce would like to tell us all what his real views are; until that time, I can only report on what happened then.

3. Nelson denies that the phrase "Sleeping with the Enemy" has anything to do with NAVS and VRG — he didn’t intend this to refer to VRG and NAVS, but to the "copycat" lawyers. "I never said those organizations were ‘in bed’ with McDonald's — I said the copycat attorneys were."

This is ludicrous.  Interested readers should go back and re-read "Sleeping with the Enemy" and the other articles and posts which have been or still are prominently posted on his web site. No reasonable person could read "Sleeping with the Enemy" without believing that this phrase applied specifically to some sort of betrayal on the part of Brian Graff and the vegetarian groups NAVS and VRG. 

What are we supposed to make of such phrases as "aiding and abetting" an "outrage"?  What about the statement that NAVS and VRG were "servants of McDonald’s"?  What about the statement that McDonald's had given a "reward" to NAVS for their "unethical" behavior?  What about Nelson's statement that Brian Graff "was a member of McDonald's secret club"?  What about the graphic of a devil figure, smiling and burning money, before one of his articles attacking NAVS and VRG? 

Nelson never spells out that NAVS and VRG were "sleeping with the enemy," but no reasonable reader could reach any other conclusion. Pat Fish’s declaration, prominently featured on the VegSource web site in 2003, states that "some in the vegetarian community" allege that VRG is "in bed" with the meat industry; this is the likely origin of this claim.

My article was already very long. The way this story has developed, the alleged unethical behavior of the attorneys was not nearly as explosive as the alleged unethical behavior of the other vegetarian groups.   The attorneys were accused of filing "copycat" lawsuits.  It is debatable whether filing a "copycat" lawsuit is unethical, but even if it is, this particular behavior has nothing to do with betrayal of those clients, by the way -- a "copycat" lawyer might conceivably be much more effective and competent than the original lawyer.  Bharti did accuse the plaintiffs’ lawyers of collusion, but he did not bring forward any direct evidence of this and the judge brushed aside his objections.

3. "This settlement allocation is opposed by everyone I can find in the vegetarian community with the exception of two vegetarian groups receiving settlement money, Vegetarian Resource Group (VRG) and North American Vegetarian Society (NAVS). "

Yes, there’s a lot of opposition to the settlement, but this statement is inaccurate on several points. In the first place, there are a lot of people — at this point, probably the vast majority of activists — who are sitting this dispute out. Some agree with Nelson that the allocation is bad, but don’t want to be associated with Nelson’s tactics. Others just don’t know about the situation, or are afraid to get involved now that the politics seem to be getting dicey, or have other things on their mind besides lawsuits.

In the second place, it is clear that NAVS does oppose the settlement and submitted a declaration to the court explaining why. (Nelson wasn’t pleased with their statement because it did not detail which groups should be excluded, and Nelson continued to attack NAVS.)

Thirdly, at least one prominent and well-respected vegetarian, Howard Lyman, thinks the appeal will be counter-productive. His reasons (given in my original article) seem to be more pragmatic than ideological, but nevertheless, here is a prominent vegetarian who does not oppose the settlement.

4. My article discusses that the McDonald’s attorneys had probably vetoed some groups such as FARM, PCRM, and so forth, and Nelson states "But Akers did not report the fact that the copycat attorneys, representing the vegetarian class, had the exact same veto power as McDonald’s."

I most certainly raised this issue and gave it a considerable amount of attention. I pressed Cory Fein very hard, specifically asking how Muslim groups, or Tufts, could be considered vegetarian groups, and this occupied quite a bit of space in my article.

5. "Akers also refers to a conversation between Howard Lyman and me that never took place."

I’m glad to hear Nelson’s point of view on this. I did not evaluate whether Lyman is telling the truth, I simply reported what Howard said; readers should make up their own minds as to whether there’s an issue here and if so, whether we should believe Howard Lyman or Jeff Nelson.

6. "In his article, Akers noted that during settlement Judge Richard Siebel opined that the case against McDonald’s was ‘problematic’ and might not have succeeded had it gone to trial. . . . This is mere courtroom ritual — there is no question the vegetarians had a strong claim."

Whether right or wrong, the judge’s statement that the case would have been difficult to argue on legal grounds was not a courtroom ritual. His order makes this clear. He could have disapproved the settlement if the plaintiff’s case warranted a bigger settlement. His conclusion was that the plaintiff’s legal case was weak, and therefore that the plaintiffs’ attorneys had consequently struck a good deal.

Interested readers who want to pursue this further are urged to read the court’s order and make up their own minds. How are you going to argue your case in front of a meat-eating jury? We can just imagine some of the McDonald’s arguments: "Here we have another bunch of picky-picky vegetarians outraged over something that really doesn’t harm them, we told them that there were 'natural flavors' in the fries, and they don’t even have receipts to prove they ate at McDonald’s." Sure, the vegetarians would win their case every time in front of a vegetarian jury; but the judge was saying that making a case in an actual courtroom is a lot more problematic than vegetarians have naively assumed. The jury might have returned much less than $10 million in damages, perhaps only a token amount, or even found for the defendants. We may not agree with what the judge was saying, but it wasn’t a courtroom ritual.

One important fact to remember is that McDonald’s had actually "won" the "McLibel" case in the U. K., where libel laws do not protect freedom of speech nearly as much, but it boomeranged into a stream of negative publicity, which they wanted to avoid. There are other reasons for settling a case than that your legal case is weak.

7. "In my 2002 article I criticized Brian Graff of NAVS for not sharing information he had received about the settlement with others in the community. Akers criticized me for this and quoted from my article in his VegNews piece, attempting to show I had been unfair to NAVS."

Nelson’s statement is untrue. I did not criticize Nelson; I simply quoted differing opinions. First I quoted Nelson, then I quoted Sharon Graff. This is called "reporting a story."

8. "What Akers omitted from my quote above [about Graff’s unethical behavior] and substituted with ellipses (…) was part of the first sentence. That sentence read in full: ‘Brian Graff of NAVS kept to himself his special relationship in the case, even when asked for suggestions for funding for another veg organization.’ Akers’ omission was significant."

I don’t think so. If Sharon Graff is telling the truth (and I believe she is), her statement makes clear that NAVS had no special relationship to begin with, so there was nothing to conceal. The issue of how hard they were pressed to reveal this non-existent information, therefore, is irrelevant.

9. "Akers tells us that Graff complained of getting ‘angry emails’ about the McDonald’s matter, as if this were my fault. But Akers does not discuss the substance of those emails . . . ."

This was a very long article, and I couldn’t include everything. I’d be delighted to give some quotes from them now: "Shame on you, Brian Graff," "I will no longer support your group," "I just read on VegSource about your unforgiveable behavior."

Clearly, these respondents believed Nelson’s statements about NAVS and thought they were "sleeping with the enemy." Nelson had urged his readers to write to NAVS and complain about their behavior; how can he deny that he had a role in this?

10. "Regarding the Vegetarian Resource Group (VRG), Akers says that VRG did not oppose this specific McDonald’s lawsuit because the lawsuit had not been formally filed when the VRG article went to press; VRG only opposed the concept of this kind of lawsuit, according to Akers."

I did not say that VRG only opposed the concept of this kind of lawsuit at all. What I said was that VRG in fact did not oppose lawsuits at all. Interested readers should read my article and read the VRG editorials for themselves and make up their own minds. VRG even said that "sometimes protest is called for." I believe that Nelson has fundamentally misread the VRG editorials which he submitted as evidence to the court.

11. "In his article Akers argues for ‘a more casual approach’ to small amount of non-vegetarian ingredients over what he calls the ‘vegan police’ who insist that food be 100% vegetarian. But Akers appears to miss the point of the lawsuit entirely, which was about food being 100% vegetarian when it is represented as such."

Nelson is referring to the issue of VRG’s publication of an article on "vegetarian" fast foods which did not address the question of whether these fast foods contained mono and diglycerides, and similar "maybe" ingredients. It is not true that I argue for a more casual approach, nor do I argue against the "vegan police." Rather, this is simply the context of the discussion of the debate among vegetarians about how to approach nonvegetarians — not the debate over how to sell french fries.

What do you say when your meat-eating, diabetic, and obese older brother wants to order the Burger King veggie burger? Do you tell him not to order it because it may have some animal products in the bun? Or do you applaud him for making a step in the right direction? What do you recommend, and when, and why? There is no one opinion on this within the vegetarian movement. That’s a decision based on the right way to talk to the public about vegetarianism and all those "maybe" ingredients — not a decision on how to sell french fries.

12. "My central criticisms of VRG were entirely ignored by Akers — namely, that once it was obvious to everyone in the vegetarian community that the proposed allocation list included non-vegetarian recipients, why didn’t VRG object? Why did VRG instead become the only vegetarian organization to submit multiple declarations endorsing the bad list, and giving McDonald’s the only cover it got from the vegetarian community?"

This is also false. VRG submitted no declarations on this subject. It is simply false to conclude that Sue Hobbs speaks for VRG because they paid her something. (I worked for years for CIBER, Inc., but that doesn’t mean that CIBER advocates a vegan diet and cutting carbon emissions by 80%.) Sue is a private individual and her declarations should be read, in my opinion, as a response to Colin Campbell. It is also false that Sue is the only one to suggest it might be appropriate for the money to go to nonvegetarian organizations. Colin Campbell, one of the vegetarian appellants, submitted a declaration which also requests that some of the money go to a nonvegetarian organization (namely, Cornell University). Even Nelson himself suggested in his statements giving some of the money to Preventive Medicine Research Institute, which the vegetarian appellants’ brief says is not a vegetarian organization.

This whole story is not a simple tale of good versus evil. It is a complex and deeply divisive issue. Moreover, the practical complications of legal action are not at all clear. Who is to say that the appeal may not fail, and that all that we will have accomplished will be to waste a bunch of money on lawyers, plus to give McDonald’s an interest-free loan of $10 million for two years?

It is revealing that Nelson persists in holding up Freya Dinshah as a heroine of the movement for filing a declaration opposing the allocation. Good for her! But why does he not listen to Dinshah’s other comments, that the damage done by the excessively political tactics we’ve seen in the past year or two has been "despicable" and "horrible"? The best thing that we can do in this situation is to sort out the issues as best we can, learn the lessons that we need to learn, and move on.

— Keith Akers