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Anyone who tried to get their free grilled chicken last year can attest that it was just short of a nightmare.  Besides long lines, many franchises refused to honor the coupons. The stores also ran out of food as they were busier than normal.  However, what really irked consumers were the stores that did not run out of grilled chicken and ignored consumers with a valid coupon in order to sell to paying customers. From this, a class action lawsuit with 5MM people ensued.

Recently, Rebecca Tushnet’s blog on 43(b) discussed the case and what the defense team was doing to protect KFC and parent corporation Yum!. There were a number of interesting approaches used by the KFC legal team, however, none seem be panning out in court.  Not to jump to the end, but I have no idea what the courts will do… require KFC to provide a free coupon to those in the suit… we saw how that played out the first time.

Example defenses for KFC:

• Do expiration dates really matter… Does the two window window really require that KFC honor the coupon for 2-weeks? Answer: Yes!
• The rain-check policy sufficiently covered the coupon…Well, when additional PII is involved, then consumers are thus required to provide more action and value to the interaction… thus making the transaction more costly to consumers… Answer: No go on defense.
• KFC did not pull a bait-and-switch routine because a more expensive item was not sold… well, consumers still were argue they were harmed… I am sure they took time out of their day to go to KFC, to wait in line, and to be rejected.

In any case, this is a very interesting case to me considering that I have consulted with a number of manufacturers that run coupons. At the time, I was not concerned with the need to ensure limited liability, maintain adequate stock, and accurately project demand; obviously that is something I will keep in the back of my head going forward.