No records, no class action against Chipotle

Hernandez v. Chipotle Mexican Grill, Inc., 12-cv-05543 (C.D. Cal. Dec. 2, 2013)

The court rejected a proposed class action based on Chipotle’s alleged practice of serving conventionally raised meats on occasions when “naturally raised” meats were not available, though it had heavily advertised its use of “naturally raised” meats. Because the allegations centered on statements on in-store menu signboards and paper menus, which some people might not have seen, the court found the class wouldn’t be ascertainable.

“Most fundamentally, the questions of when a class member ate at Chipotle, the exact location where he ate, and which meat (if any) he ate are all not subject to class treatment.”  Consumers wouldn’t have records of purchase (and nor would Chipotle) and wouldn’t have retained the purchased item, and the dispute concerned a very low price transaction that they couldn’t be expected to recall.  “More importantly, the alleged misconduct took place only with regard to varying products at varying locations within limited time frames.” This made specific dates and locations more important than they’d be in other class actions. “[A] class member needs to know with some certainty – and Chipotle should be allowed some mechanism for confirming or contesting that certainty – the date, location, and particular meat purchased. That kind of certainty in a class action that encompasses purchases of burritos (for example) between June 2008 – more than five years ago – and now is not practical.”  Credit card records wouldn’t show the critical detail of what meat was bought.  “At best, there may be some class members who regularly eat – i.e., weekly or more often – at the same Chipotle location and always order the same thing, but presumably this is a relatively small subgroup of the proposed class.”

Plus, “the important question of whether a class member saw a so-called point-of-purchase (POP) sign when a particular purchase was made cannot be handled on a classwide basis.”  Chipotle stated that restaurants experiencing supply shortages were emailed instructions to post POP signs informing customers of a temporary shortage of naturally raised meats. The possibilities were that the signs were there and seen, there and unseen (due to Chipotle’s negligent placement of the sign or to the class member’s negligence), or not there.  Plaintiff argued that the signs were insufficient in any case, but “even if the sufficiency of the POP signs were an issue that could be handled on a classwide basis, it does not negate the existence of the further critical issue of whether a class member saw the sign on a particular occasion – an issue that cannot be handled on a classwide basis.”

Even assuming a settlement, “there is no reason to believe that class members could be compensated appropriately.” Claims would have to identify specific dates, locations, and items purchased, and the court was confident that very few people could do that.  “People will either (1) lie, (2) attempt to fill out the claim form as best they can but be unable to do so accurately, or, most likely, (3) not bother. Money would be given out basically at random to people who may or may not actually be entitled to restitution. This is unfair both to legitimate class members and to Chipotle.”