Although FitzGerald’s email doesn’t actually order anyone to act against Kytch, the company’s motion argues that Taylor played a key role in what happened next. It’s an “ambiguous yet direct message to his underlings,” argues Melissa Nelson, Kytch’s other cofounder. “It’s just like a mafia boss giving coded instructions to his team to whack someone.”
On November 2, 2020, a little over two weeks after FitzGerald’s open-ended suggestion that perhaps a “communication” from McDonald’s or Middleby to franchisees could “slow up” adoption of “the other solution,” McDonald’s sent out its email blast cautioning restaurant owners not to use Kytch’s product.
The email stated that the Kytch gadget “allows complete access to all aspects of the equipment’s controller and confidential data”—meaning Taylor’s and McDonald’s data, not the restaurant owners’ data; that it “creates a potential very serious safety risk for the crew or technician attempting to clean or repair the machine”; and finally, that it could cause “serious human injury.” The email concluded with a warning in italics and bold: “McDonald’s strongly recommends that you remove the Kytch device from all machines and discontinue use.”
Kytch has long argued that McDonald’s 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 device’s remote connection to an ice cream machine could result in the machine turning on while a person’s hand was inside—in fact, Taylor’s 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.
Kytch’s legal motion now argues that FitzGerald’s email reveals that the McDonald’s warning to restaurant owners was never really about safety, so much as protecting its equipment partner from a startup that might represent competition. The CEO’s email “essentially put into place their plan to defame us,” Nelson says.
She and O’Sullivan also argue that the internal email directly contradicts FitzGerald’s public statements that Middleby hadn’t sought to kill Kytch. “We’re not in business to put other companies out of business,” FitzGerald told The New York Times early last year.
When WIRED reached out to Middleby, Taylor’s parent company, for comment, a spokesperson responded in a statement disputing Kytch’s interpretation of its internal emails. “McDonald’s decided to issue the November 2020 field brief on its own accord, not at Middleby or Taylor’s direction,” the statement reads. “Taylor stood, and continues to stand, by the accuracy of statements made in the field brief.” The spokesperson also notes that Taylor won an early ruling in the lawsuit against Kytch’s request for a preliminary injunction—which would have prevented Taylor from developing a device that Kytch claims was copied from its product—and promises an upcoming filing responding to Kytch’s argument, which court documents say will happen in early 2024.
At the time of McDonald’s 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 McDonald’s 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 restaurants—and the publicly documented ice cream headaches at McDonald’s appear to have continued. According to the website McBroken, which tracks ice cream machine downtime at McDonald’s restaurants across the US, between 13 percent and 17 percent of McDonald’s 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.