A California tech company that tried to solve the problem of malfunctioning ice cream machines claims in the suit that it was thwarted by McDonald’s.
It’s a perennial lament of McDonald’s loyalists: Why are the ice cream machines always down?
For fans of the fast-food giant’s soft-serve cones, sundaes and, of course, McFlurries, the seemingly constant technical difficulties can feel personal. The situation has inspired snarky memes and social media mockery, serious news inquiries and less-than-serious conspiracy theories. All the while, rival chains like Wendy’s have reveled in the dysfunction, and frustrated customers have taken out their anger on employees.
In 2018, two friends in California saw an opportunity and created an app that they said would help restaurant owners fix the glitches in the machines without having to call a technician. Their company, Kytch, sold the program to hundreds of franchisees. But in 2021, its growth was stopped cold when McDonald’s began sending notices to the franchisees warning them that the technology could lead to worker injuries.
The company is now suing McDonald’s, accusing the chain of working with the Taylor Company — the manufacturer of its ice cream machines — to libel Kytch while simultaneously trying to copy its technology.
In the meantime, many customers are still crying out for relief.
‘We thought we were the solution’
Melissa Nelson and Jeremy O’Sullivan, who met in 2005 as freshmen at Bucknell University in Lewisburg, Pa., say Kytch was born out of FroBot, a business they started in 2011 that sold frozen desserts from automated soft-serve machines.
FroBot used machines from the Taylor Company, but they kept breaking down, Ms. Nelson, Kytch’s co-founder and president, recalled last week. The only way to fix them was to call technicians authorized by Taylor, which would often chalk the problem up to a lack of electrical power, if the company found a problem at all, she said.
Frustrated, Ms. Nelson and Mr. O’Sullivan came up with the Kytch Solution, an online platform that allowed customers to monitor and control soft-serve machines remotely by retrieving data from McDonald’s machines and then displaying it on Kytch’s interface.
They began marketing the device to franchise owners at McDonald’s and Burger King, who praised the product. In 2019, Kytch sold the technology to more than 400 McDonald’s franchise owners, Ms. Nelson said.
“We thought we were the solution,” said Mr. O’Sullivan, the company’s co-founder and chief executive.
Then, in November 2020, the notices declaring their product unsafe went out, he said.
“If their goal was to destroy Kytch, they’ve succeeded,” Mr. O’Sullivan said.
Tim FitzGerald, chief executive of the Middleby Corporation, which owns the Taylor Company, denied that that was the goal.
“We’re not in business to put other companies out of business,” he said. “The product had not been tested or validated working in conjunction with the food safety protocols of a Taylor machine.”
This month, Kytch’s founders filed a lawsuit against McDonald’s in U.S. District Court in Delaware seeking $900 million in damages. Ms. Nelson and Mr. O’Sullivan say the number reflects damages and what their company would have been worth had McDonald’s not scared off current and prospective customers with the alarming notices.
McDonald’s said that Kytch’s claims were “meritless.”
“McDonald’s owes it to our customers, crew and franchisees to maintain our rigorous safety standards and work with fully vetted suppliers in that pursuit,” the company said in a statement this week.
Kytch said that at the same time that McDonald’s was trying to undermine the product, the chain and Taylor were holding regular meetings with franchise owners who had bought Kytch’s program to figure out how to copy the technology, according to the lawsuit. Kytch separately sued Taylor in Alameda County Superior Court in California.
Last week, a judge in that court denied Kytch’s request for an injunction against Taylor, which has been developing a similar product. The judge, Michael Markman, said there was no evidence that Taylor’s system “was built with or incorporates any Kytch trade secret.”
The case is still pending.
“We’re still very early on in the case, and we look forward to seeing what the evidence reveals,” said Daniel Watkins, a lawyer for Ms. Nelson and Mr. O’Sullivan.
‘McBroken’
The ice cream at McDonald’s comes from the Taylor Model C602, a combination shake and soft-serve freezer with a touch panel that is supposed to let employees quickly fulfill dessert orders.
Other Taylor models are used in Wendy’s and Burger King locations and in ice cream shops throughout the country. But when the machines stop working at McDonald’s, they set off particularly strong emotions in disappointed customers.
There is even an online map and app, McBroken.com, that purports to give McDonald’s customers a real-time look at which locations nationwide have broken ice cream machines. (As of Thursday morning, more than 22 percent of the McDonald’s locations in New York had broken ice cream machines.)
When the machines shut down, they give “confusing messages that leave McDonald’s franchisees frustrated and unable to operate the machine,” according to Kytch’s lawsuit.
Owners and employees have no choice but to call technicians authorized by Taylor to fix the problem, usually at a cost of hundreds of dollars per visit, Mr. O’Sullivan said.
Darcy Bretz, a Middleby spokeswoman, says that the machines come with operating manuals that explain the error codes.
Mr. FitzGerald says that the machines have to be shut down throughout the day for cleaning and routine maintenance.
“It can give the perception that the machine is broken,” he said.
Mr. FitzGerald said Taylor ice cream machines could run 24 hours a day and had an average life span of 16 years. Servicing them is far less expensive than replacing them, he said.
In a statement, McDonald’s, which has poked fun at the reputation of its machines, said that the company had begun offering new training resources for crew members and that it was conducting regular maintenance on its machines.
The complaints, however, have led the Federal Trade Commission to start asking questions, according to The Wall Street Journal, which reported in September that the agency had sent a letter to McDonald’s about the machines. Mr. FitzGerald said that the commission had not reached out to Middleby.
Betsy Lordan, a spokeswoman for the commission, declined to comment on the issues with the machines.
“We don’t comment unless we are issuing a complaint,” she said.
David Kass, a former economist with the commission and a clinical professor at the Robert H. Smith School of Business at the University of Maryland, says the agency gets involved when there are both numerous complaints about a product and “sufficient substance” to the complaints.
Professor Kass said he was perplexed that McDonald’s had gone so long without finding a permanent fix for its ice cream machines.
“Customers, if they’re disappointed frequently enough, will go elsewhere,” he said.
Want a McFlurry? Call your state legislator.
In New York State, a bill known as the “Digital Fair Repair Act” would require manufacturers to make their diagnostic and repair information available to independent repair technicians and customers.
Since 2021, 25 states have introduced similar bills, but the legislation in New York has gained more traction, said State Senator Kevin Thomas, a prime sponsor of the bill whose district includes parts of Nassau County.
The legislation was passed by the State Senate last year, he said, making it the first of its kind to clear a legislative chamber. It was stalled in the Assembly, Mr. Thomas said.
He said that there had been strong lobbying by manufacturers against the bill, but that he was hopeful that consumer demands would overtake that resistance.
“For a faster McFlurry,” Mr. Thomas said, “you must pass this bill.”
Kirsten Noyes contributed research.
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