Hooters Asks Court of Appeals to Rule Prior to Schedlued Hearing

Roseville - Eastpointe Eastsider

By Robin Ruehlen, C & G Staff Writer
November 24, 2010

ROSEVILLE - In an unexpected move in the case of Smith and Convery v. Hooters of America, the defense has asked the Michigan Court of Appeals to immediately reverse a Circuit Court judge's decision to proceed with discovery just three weeks before a scheduled evidentiary hearing. Richard Bernstein, attorney for the plaintiffs, derided the motion as "an abuse of process," and said Hooters has crossed the line.

"It doesn't make sense that before the evidentiary hearing, they are asking the Court of Appeals to rule on the issue of arbitration. How does the court rule when you haven't taken evidence yet?" Bernstein said.

"I've been practicing law for a long time, and I have yet to come across a corporation that behaves this way." Macomb County Circuit Court Judge Peter Maceroni had previously ordered the case to proceed with discovery, writing in an Oct. 14 opinion that "a substantial and good-faith dispute exists as to the putative waiver of rights in light of the claim that the plaintiffs were never afforded an opportunity to take the agreement with them to consult with counsel." Maceroni then ordered both parties to attend an evidentiary hearing at 9 a.m. Dec. 10.

However, in a 36-page motion dated Nov. 9, Hooters of America, Inc. questions if the Circuit Court erred in failing to compel arbitration, scheduling the evidentiary hearing and "implicitly ruling that the enforceability of a contract may depend upon a contracting party's ability to seek advice of counsel prior to signing it." Dan Cohen, attorney for Hooters of America, did not respond to requests for comment by press time. In October, Cohen issued a statement asserting that although Hooters of America believes there is lack of evidence to warrant an evidentiary hearing, he was hopeful it would resolve the question of whether the parties must arbitrate or go before a jury.

"Hooters expects to offer documentary and other evidence at the hearing, which will confirm that these plaintiffs knew of their obligation and agreed to arbitrate their current claims," Cohen said.

In order for the peremptory reversal to proceed, the threejudge panel must agree unanimously that Hooters has proven the previous judgment goes against Michigan law.

"(Hooters) is showing total disrespect and complete disregard to Judge Maceroni, and disrespect to the entire judicial system," Bernstein said.

The case centers on Cassandra Marie Smith and Leanne Convery, former Hooters employees who contend that they were placed on "weight probation" and threatened with termination if they did not lose weight within 30 days. The 5-foot-8-inches-tall, 132.5-pound Smith wore an "extra-small" size uniform at the time, and claims she was actually 145 pounds when she was hired.

Convery, who is 4 feet 11 inches tall and weighs 115 pounds, was told she had 30 days to make her extra-small tank top and shorts "fit more properly," or she would lose her job.

She then launched into a crash diet, she claims, losing 15 pounds in 30 days, but was fired anyway for "no improvement." Both are suing Hooters for more than $25, 000 to cover lost wages, emotional distress and court costs.