The Associated Press is reporting a Montana restaurant listed in the phone book under “Animal Carcass Removal” who became the butt of a Jay Leno joke earlier this year, is now suing the publishing company over lost business.
Hunter Lacey says in his lawsuit that business at his Bar 3 Bar-B-Q restaurants in Bozeman and nearby Belgrade has dropped off since the Dex Media Inc. listing and that his brand and reputation have gone down the tubes.
The listing first appeared in 2009 in the yellow pages of Dex’s telephone book under the “Animal Carcass Removal” section. Lacey said he first found out about it when the calls started coming into the restaurants.
“It was a series of phone calls for several weeks where it was either people in earnest asking us to come and remove carcasses or prank calls,” Lacey said.
The listing was reprinted in other printed and online telephone directories last year and this year. It circulated on the Internet and in forwarded emails, and a reference to the listing ending up in a customer review on the restaurant’s Facebook page.
Then in January, Leno joked about the listing in January on the “Headlines” segment of the Tonight Show, saying, “This seems to be, well, here it is: Animal carcass removal, call Bar 3 Bar-B-Q.”
Lacey wasn’t amused. His restaurants had lost $18,254 from 2009 and 2010. The years and hundreds of thousands of dollars Lacey had spent building up the restaurants’ brand had been wiped out, said his attorney, Geoffrey Angel.
Dex spokesman Chris Hardan said Friday that it was an “erroneous listing” that the company removed from its online directory when it was discovered and then took steps to ensure it wouldn’t be in future phone books.
“We regret the publication of the listing and we continue to engage in every reasonable effort we can to ensure that our listings are accurate,” Hardan said.
Angel said he had been trying to reach an out-of-court settlement with Dex Media for $417,000. The publishing company initially expressed interest, but never responded to the offer, he said.
He filed the lawsuit in state court in August, and the case was moved to federal court on Tuesday. In the lawsuit, he accuses Dex Media of negligence, defamation, slander and other charges and is seeking compensation for the lost expense in building up his brand and for a television commercial to try to right the damage done by the Leno spot.
“I don’t think when people are making dining choices they take lightly issues of cleanliness,” said Angel said. “I don’t think Jay Leno helped the company in any fashion. It only brought more problems.”
Lacey’s lawsuit says a Dex Media employee deliberately published the listing after Lacey declined to buy an advertisement from him. The publishing company failed to properly oversee its employee and didn’t follow quality-control procedures to keep the listing from running, the complaint claims.
In Dex Media’s response filed with the court, though, the company said the restaurant “assumed the risk of errors” when it authorized its telephone number to be listed in phone directories. The restaurant gave that authorization when it bought telephone service through a local telephone service provider, the response said.
Dex Media’s response also said that someone from the restaurant negligently berated a Dex employee. The restaurant should have foreseen that could have had negative consequences, so the restaurant is at least partly responsible for the damages, the publishing company said.
This will be a difficult case for both Dex and the restaurant. Defamation includes several elements for Lacey to establish, including negligence by Dex if the mis-listing was a matter of public concern. Dex may attempt to dodge the difficult issues by disclaiming responsibility. Employers are not responsible for the negligent acts of employees which are outside their responsibilities. Dex is already stating the employee who changed the restaurant’s listing to appear under the “Animal Carcass Removal” heading was operating outside the scope of his job. This will be a messy case to watch.
Restaurant owners pay special attention to this case, it highlights how difficult it can be to protect your brand!
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