Kytch, the company that tried to fix McDonaldâs broken ice cream machines, has unearthed a 3-year-old email it says proves claims of an alleged plot to undermine their business.
A little over three years have passed since McDonaldâs sent out an email to thousands of its restaurant owners around the world that abruptly cut short the future of a three-person startup called Kytchâand with it, perhaps one of McDonaldâs best chances for fixing its famously out-of-order ice cream machines.
Until then, Kytch had been selling McDonaldâs restaurant owners a popular internet-connected gadget designed to attach to their notoriously fragile and often broken soft-serve McFlurry dispensers, manufactured by McDonalds equipment partner Taylor. The Kytch device would essentially hack into the ice cream machineâs internals, monitor its operations, and send diagnostic data over the internet to an owner or manager to help keep it running. But despite Kytchâs efforts to solve the Golden Archesâ intractable ice cream problems, a McDonaldâs email in November 2020 warned its franchisees not to use Kytch, stating that it represented a safety hazard for staff. Kytch says its sales dried up practically overnight.
Now, after years of litigation, the ice-cream-hacking entrepreneurs have unearthed evidence that they say shows that Taylor, the soft-serve machine maker, helped engineer McDonaldâs Kytch-killing emailâkneecapping the startup not because of any safety concern, but in a coordinated effort to undermine a potential competitor. And Taylorâs alleged order, as Kytch now describes it, came all the way from the top.
On Wednesday, Kytch filed a newly unredacted motion for summary adjudication in its lawsuit against Taylor for alleged trade libel, tortious interference, and other claims. The new motion, which replaces a redacted version from August, refers to internal emails Taylor released in the discovery phase of the lawsuit, which were quietly unsealed over the summer. The motion focuses in particular on one email from Timothy FitzGerald, the CEO of Taylor parent company Middleby, that appears to suggest that either Middleby or McDonaldâs send a communication to McDonaldâs franchise owners to dissuade them from using Kytchâs device.
âNot sure if there is anything we can do to slow up the franchise community on the other solution,â FitzGerald wrote on October 17, 2020. âNot sure what communication from either McD or Midd can or will go out.â
In their legal filing, the Kytch cofounders, of course, interpret âthe other solutionâ to mean their product. In fact, FitzGeraldâs message was sent in an email thread that included Middlebyâs then COO, David Brewer, who had wondered earlier whether Middleby could instead acquire Kytch. Another Middleby executive responded to FitzGerald on October 17 to write that Taylor and McDonaldâs had already met the previous day to discuss sending out a message to franchisees about McDonaldâs lack of support for Kytch.
But Jeremy OâSullivan, a Kytch cofounder, claimsâand Kytch argues in its legal motionâthat FitzGeraldâs email nonetheless proves Taylorâs intent to hamstring a potential rival. âItâs the smoking gun,â OâSullivan says of the email. âHeâs plotting our demise.â
Although FitzGeraldâs email doesnât actually order anyone to act against Kytch, the companyâs motion argues that Taylor played a key role in what happened next. Itâs an âambiguous yet direct message to his underlings,â argues Melissa Nelson, Kytchâs other cofounder. âItâs just like a mafia boss giving coded instructions to his team to whack someone."
On November 2, 2020, a little over two weeks after FitzGeraldâs open-ended suggestion that perhaps a âcommunicationâ from McDonaldâs or Middleby to franchisees could âslow upâ adoption of âthe other solution,â McDonaldâs sent out its email blast cautioning restaurant owners not to use Kytchâs product.
The email stated that the Kytch gadget âallows complete access to all aspects of the equipmentâs controller and confidential dataââmeaning Taylorâs and McDonaldâs data, not the restaurant ownersâ data; that it âcreates a potential very serious safety risk for the crew or technician attempting to clean or repair the machine"; and finally, that it could cause âserious human injury.â The email concluded with a warning in italics and bold: âMcDonaldâs strongly recommends that you remove the Kytch device from all machines and discontinue use.â
Kytch has long argued that McDonaldâs safety warning was bogus: In its legal complaint, it noted that its devices received certification from Underwriters Laboratory, an independent product safety nonprofit, including meeting its safety standards. It also countered in the complaint any claim that a Kytch deviceâs remote connection to an ice cream machine could result in the machine turning on while a personâs hand was insideâin fact, Taylorâs own manual advises unplugging the machine before servicing it, and removing the door of the machine to access its rotating barrels automatically disables its motor.
Kytchâs legal motion now argues that FitzGeraldâs email reveals that the McDonaldâs warning to restaurant owners was never really about safety, so much as protecting its equipment partner from a startup that might represent competition. The CEOâs email âessentially put into place their plan to defame us," Nelson says.
She and OâSullivan also argue that the internal email directly contradicts FitzGeraldâs public statements that Middleby hadnât sought to kill Kytch. âWeâre not in business to put other companies out of business,â FitzGerald told The New York Times early last year.
When WIRED reached out to Middleby, Taylorâs parent company, for comment, a spokesperson responded in a statement disputing Kytchâs interpretation of its internal emails. âMcDonaldâs decided to issue the November 2020 field brief on its own accord, not at Middleby or Taylorâs direction,â the statement reads. âTaylor stood, and continues to stand, by the accuracy of statements made in the field brief.â The spokesperson also notes that Taylor won an early ruling in the lawsuit against Kytchâs request for a preliminary injunctionâwhich would have prevented Taylor from developing a device that Kytch claims was copied from its productâand promises an upcoming filing responding to Kytchâs argument, which court documents say will happen in early 2024.
At the time of McDonaldâs warning email to franchisees about Kytch, Taylor was developing its own internet-connected ice cream machine, what it referred to as Taylor Shake/Sundae Connectivity, which McDonaldâs recommended in the same email. But, even now, more than two years after it was promised for delivery, that device has yet to arrive in restaurantsâand the publicly documented ice cream headaches at McDonaldâs appear to have continued. According to the website McBroken, which tracks ice cream machine downtime at McDonaldâs restaurants across the US, between 13 percent and 17 percent of McDonaldâs restaurants have had broken ice cream machines at any given time just this month. That percentage has recently been as high as 35 percent in New York City and 28 percent in Washington, DC.
Taylor declined to comment on any upcoming internet-connected ice cream machine model. But that long-touted solution to the problem has still not been made available to franchisees, according to one McDonaldâs restaurant owner who goes by the handle McFranchisee (and previously used the handle McD Truth) on X. But McFranchisee says that Taylor has integrated those new features into its next model, which is expected to be available in four to six months. (McFranchisee has also criticized Kytch, claiming that the startupâs failure was due to its own reliability problems and an increase in its prices, not a Taylor or McDonaldâs conspiracy against them.)
Despite the email from Middlebyâs CEO that Kytch claims suggests dissuading franchisees from using Kytchâs product, Kytch argues that other documents released in the lawsuitâs discovery phase show McDonaldâs itself was also eager to stymie Kytch from the beginning. In February 2020, Taylor president Jeremy Dobrowolski wrote in another email that âMcDonaldâs is all hot and heavy aboutâ Kytchâs growing use in restaurants. Before the company sent out its November 2 email warning franchisees about Kytch, Taylor and McDonaldâs executives had a meeting to discuss the message, and a McDonaldâs exec also sent a draft to Taylor for its approval. A Taylor executive wrote to others within the ice cream machine company, âI am a bit in shock they are willing to take such a strong position.â
When WIRED reached out to McDonaldâs for comment on Kytchâs new argument about the âsmoking gunâ email from Taylorâs CEO, a spokesperson responded with a statement: âMcDonaldâs wonât speculate about the intent behind this email discussion that we werenât a part of. The intent of our Nov. 2020 communication was to bring awareness to potential safety concerns regarding the unapproved Kytch device.â
In addition to its lawsuit against Taylor, Kytch is still pursuing a bigger lawsuit against McDonaldâs itself, asking for $900 million in damages for what it describes in its legal complaint as McDonaldâs effort to âdrive Kytch out of the marketplace.â That lawsuit against McDonaldâs, if it moves forward, may soon produce more answers explaining Kytchâs legal claims that McDonaldâs appears to have cooperated with Taylor in telling its customers not to use Kytchâeven as many of its restaurants took a significant hit from lost ice cream sales.
In the meantime, Kytch says it plans, if necessary, to take the lawsuit against Taylor to trial, currently set to take place in May at Alameda County Superior Court in Oakland, California. âThe conspiracy described in Kytchâs complaint involved folks at the highest levels of leadership, not just at Taylor but also at Middleby and at McDonaldâs,â says Daniel Watkins, Kytchâs attorney. âWeâre really looking forward to the opportunity to present it to an Oakland jury trial.â
Itâs funny people think this is some sort of secret. Itâs right in the name of the product: soft-serve.
Thatâs what soft-serve is. Basically a bastardized form of ice-cream mixed with air to make it soft and add volume. The mix is often extended with stuff like CMC, but thatâs hardly unique to McDonaldâs.
The formulation of the mix at McDonaldâs is probably just âextendedâ more than you might find at other places, but the fact itâs âfoamâ is hardly the scandal.
and soft serve ice cream was partly invented by Maggie Thatcher, much-maligned ice queen of Britiain
This sounded so wild I looked it up.
Unfortunately, âmost sources agree that the soft-serve industry arose in the United States, not Britain, and that it preceded Thatcherâs arrival at J. Lyons by about a decade. In 2008, Marian Burros offered a version of the conventional narrative in the Times.â
https://www.newyorker.com/news/news-desk/the-margaret-thatcher-soft-serve-myth