Ethics Quiz: The Harvard Prof and The Erroneous Chinese Restaurant Menu

Perfect! Just what you need to handle that pesky flea, Professor!

Perfect! Just what you need to handle that pesky flea, Professor!

Ben Edelman, a rather well-noted Harvard Business School professor, had this fascinating exchange with a local Szechuan restaurant:

Edelman 1Edelman 2Your Ethics Alarms Ethics Quiz:

“Is Prof. Edelman’s conduct ethical?”

As you might expect, the overwhelming majority of opinion on social media and on various websites is that Edelson is a pompous, Ivy League, bullying jerk. Edelman’s fellow professor, law professor Ann Althouse, takes his side, however:

If a business systematically overcharges everyone but give a refund and only a refund to any customer who: 1. Notices and 2. Confronts, there’s no disincentive. This is why class actions were invented. You can make a lot of money taking small amounts from a lot of people. The remedy needs to be more than the small amount that gives back what you took from only one person. I think this reality is hard to see because a Harvard professor is such a ripe target, and his tenaciousness in making his point is so unusual and so displayable on line…The most interesting sentence in the correspondence between the professor and the restauranteur is: “The more you try to claim your restaurant was not at fault, the more determined I am to seek a greater sanction against you.”

Even where the customer noticed and confronted, this restauranteur’s first move was to say only that the website was “out of date for quite some time” and he’d “make sure to update it.” I think many customers would simply back off and say something like “Thanks, I’m glad I could help you, and by the way, I really do love your restaurant.” The professor teaches the law here, and there is a Massachusetts law that makes it “a serious violation to advertise one price and charge a different price.” Do we believe in this kind of law or don’t we? If we don’t and we think the professor is a prick for being a stickler about it, then get rid of the law and stop burdening business owners with the appearance that there are rules that must be followed.

Do we believe in this kind of law? Sure. I also believe small businesses are regulated to death, that keeping websites up to date is a chore that defeats many restaurants, that the law, like many such laws, predates the internet and was more reasonable when an owner could easily correct a price himself, and that a rational law enforcement official is going to respond to a four dollar over-charge with “don’t do this again,” and not a formal charge. Absent evidence that the restaurant was intentionally gauging customers (some of Althouse’s commenters seem to assume this), what a kind, compassionate, fair, reasonable, customer would do is explain why the online menu needs to be keep up to date, accept a reasonable accommodation by the owner, and check later to see if proper corrective measures have been taken. If not, then his enforcement measures would be fair and dictated by principles of responsible citizenship.

But Edleman is obviously not kind, compassionate, fair, and reasonable; nor does he endorse the Golden Rule.  He is an officious jerk and a bully, and deserves every bit of criticism being hurled his way. His conduct was akin to, say, gang-tackling a guy for selling loose cigarettes in Staten Island, and choking him in the process.

I also have this thought, as Edleman’s bio suggest that he is, like most denizens of John Harvard’s legacy, a reflex-progressive. I wonder if he excuses illegal immigrants and believes their illegal transgressions should be ignored on grounds of compassion. I’m betting he does,

_______________________

Pointer: Mediaite

Facts: Boston.com

Source: Althouse

 

51 thoughts on “Ethics Quiz: The Harvard Prof and The Erroneous Chinese Restaurant Menu

  1. “and that an rational law enforcement official” Should say A rational etc. Just a nitpicky editing thing. Also… is “like moist denizens of John Harvard’s legacy” some form of Fruedian slip? Again, nitpicking.

    On topic, I completely agree that he blew it out of proportion. The owner even agreed to give him his four dollars back. I don’t think the direct comparison is with Gardner’s… I want to say negligent homicide? Not touching that with the ten-foot pole that I, as an avowed D&D nerd, of course always carry. It’s more in line with someone jumping the counter at McDonald’s because their burger isn’t coming fast enough.

  2. As a graduate of Harvard Business School, I can underscore and personalize your reaction: this is the absolute worst of pomposity, arrogance, and the abuse of the law, learning, etc. This is what gives business people a bad name. I’m embarrassed.

    The only possible excuse is that apparently this guy’s a lawyer. That can trump an MBA.

    (By the way, your labeling of “reflexive-progressive” has a lot less validity on the HBS side of the Charles River; you’re)thinking of the college, law school, etc. all on the other side.

    • You are right about the B-school, Charles…it’s easily the most ideologically diverse institution in Cambridge. Good point. HE, however, resigned from the Clinton administration due to welfare reform.

  3. Yeah, he’s being a jerk and a bully. I’m glad the restaurant owner is standing up to him.

    Just out of curiosity, how worthwhile is that disclaimer the owner says is on the web site? I would think a ‘fair warning’ type if disclaimer would hold water, but I know next to nothing about the law.

    • A better disclaimer would include a time frame of internet updates.

      Several of our suppliers caveat their online price lists with disclaimers that their prices are within 6 months of accuracy.

    • I would imagine it would very strong, especially if it said something to the effect of “call to confirm current pricing”. A lot of franchise restaurants are linked to from a corporate website, and it would be impossible for the corporate menu to match every independent’s owners pricing. This seems to be the issue in Boston on a smaller scale, where two owners share a common website for the local area.

  4. Good analysis.

    I do believe online menu pricing should be taken as seriously as physical menu pricing and that restaurants should be held accountable for both, however. The internet has been a serious phenomenon for long enough now that business owners should either have a reliable way of updating their online pricing or not bother in the first place. If the owner doesn’t take it seriously, they must be forced to.

    On the other hand, four bucks difference at a local restaurant? Edelman’s an ass. Accept the $4 difference, remind them that you will be checking back, and escalate when they fail to be diligent. Easy, more ethical, and now you have the internet’s sympathy on your side when you seek justice.

  5. Edelman’s conduct is unethical in a much more literal sense. He says he is an attorney and acknowledges he can’t communicate directly with the store owner if the store is represented by counsel, yet he continues to communicate with the store owner even after being advised that the store owner had sought counsel, and without obtaining either permission from the lawyer or clarification about the scope of the attorney-client representation.

    Lets see if he is still a stickler for the rules after a disciplinary investigation…

    • Love it, Dan. And in the past, Mass has held that a lawyer quoting a law to a non-lawyer in a matter constitutes giving legal advice if the non-lawyer is NOT represented by counsel. Thus the sequence violates both Mass. RPC 4.2 and 4.3.

      • Those were going to be my points: he gives legal advice (and does not advise him to get a lawyer) and then continues to communicate with him after he says he cannot.

        Then, unless my math is wrong, he swindles the guy. He says that he deserves $12.00 back, under the law. Then, he demands half-price, which appears to be more than $12.00.

        And, then he doesn’t get his facts straight. On his December 7, 2:23 e-mail, he says that if Ran had responded appropriately to his first message – providing the refund requested and a genuine and forthright apology- he would not have been such an ass (my words). Problem is that: 1) he did not request a refund or an apology; and 2) Ran’s first words were “I apologize.”

        -Jut

      • I understand the fact that this website is devoted to getting into the minutiae of ethical conduct. This, though, is so completely ridiculous on so many levels that it seems almost beneath your dignity to delve into it. Some people just need a good cupped-hand smack; no words, just..smack !! I wonder, Jack, if quoting him what you mentioned about giving legal advice to a non-represented party would suffice in lieu of the aforementioned smack? I’m guessing that this series of exchanges is in the public domain?

  6. What..a…dick !! This guy seriously needs to get laid or something. Didn’t his mommy tell him to never trust anyone that you can blindfold with dental floss? (j/k) He is, however, doing his part to maintain the litigious atmosphere needed to keep unscrupulous lawyers employed, so I suppose there’s that. Massachusetts seems to be the sort of place you don’t even drive through on your way to Vermont without consulting a lawyer. Why anyone would want to live there or conduct commerce is beyond me.

  7. “I also have this thought, as Edleman’s bio suggest that he is, like most denizens of John Harvard’s legacy, a reflex-progressive. I wonder if he excuses illegal immigrants and believes their illegal transgressions should be ignored on grounds of compassion.”

    But those are HISPANIC illegal immigrants and this is an Asian restaurant. Asians should be treated the opposite of hispanics. Harvard’s affirmative action policies say so!

    (sorry, that was bad…and a different court case)

  8. No wonder Harvard Law Students want education refunds! Professors can’t even use their legal acumen to secure a $4 restaurant refund!

  9. How often does the restaurant change it’s prices? If it is only once or twice a year then it should be easy enough to contact the web designer to alter the prices so they are correct. If he changes prices more often then he needs a web site where he can correct the prices himself. There is no excuse for having the wrong prices.
    This is not a four dollar overcharge. If you calculate the number of items overcharged at a dollar per item times the number of items he sells per day times the number of days he has been advertising the incorrect prices then the overcharge is thousands of dollars. Perhaps the money brought in by this false advertising is why he doesn’t keep the prices up to date.

    • With regard to the restaurant alone, you’re not entirely wrong. They are responsible for keeping their online prices accurate.

      I’ve updated websites for enough mom & pop businesses. They’re often adorably ignorant of the internet in the most endearing ways, while simultaneously leaving you with the desire to strangle the next person who walks through the door. It’s tough.

      They may not be scheming bastards, but ignorance isn’t much better than greed when either way the business unfairly profits from incorrect pricing.

      The online menu needs to be corrected, and someone has to prod them into keeping it that way. What is the most ethical way of seeking a correction, as a customer?

    • For a Mom-and-Pop place, I tend to think it’s more of a situation where they just haven’t got to it yet. There are a lot of independent businesses out there where the owners spend all their time in the day-to-day operations and don’t bother to get around to handling less-pressing details. It’s obviously not an excuse, but they probably just don’t see fixing the website as a priority.

      There’s a tendency in this country for people to assume something that doesn’t work as it should must be the result of deliberate malfeasance. Largely, I’ve found that there are usually far simpler answers. In this case, it would seem that they either don’t know how to edit it or are just too lazy to do it.

      • Or not. Small businesses are no less swayed by greed than big corporations. The owners here likely aren’t villains out to deliberately screw customers, but an extra 10% that everyone silently puts up with can be insidiously tempting when you’re a little establishment with small margins. Everybody does it! Tony’s pizza hasn’t updated their site in years! We’ll fix it next month, after these bills are paid; better late than never! There are worse things: do you know what some other Chinese places put in their food? Don’t sweat the small stuff, it’s only a dollar off. If our regulars don’t mind, why would anyone else? It’s not like a Harvard Business School professor is going to sue us.

        The rationalizations abound. “We’re too busy” and “we don’t know how” are among them. Find someone else to do it.

        But yes, as a customer, you don’t know what’s going on internally. The reasons could be entirely innocuous, and probably are. At least give them the chance to behave ethically.

    • Thanks for that update. The apology was short but to the point:

      Many people have seen my emails with Ran Duan of Sichuan Garden restaurant in Brookline.
      Having reflected on my interaction with Ran, including what I said and how I said it, it’s clear that I was very much out of line. I aspire to act with great respect and humility in dealing with others, no matter what the situation. Clearly I failed to do so. I am sorry, and I intend to do better in the future. I have reached out to Ran and will apologize to him personally as well.

      There is no way to tell whether this is an apology born of genuine self-awareness and contrition, or a desperate, compelled instance of self preservation, as in, “Holy crap, the world is saying I’m a pompous asshole, and this could really hurt my reputation. I was right, but never mind: I had better come up with the best-sounding apology possible, and stop this hate before it gets out of hand.”

      The ethical thing is to give him the benefit of the doubt.

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