don't bring a chef to a food class action

Marotto v. Kellogg Co., No. 18 Civ. 3545 (AKH), 2019 WL 6798290, --- F.Supp.3d ---- (S.D.N.Y. Dec. 5, 2019)

Here, the plaintiff’s status as a highly trained chef makes his class claims against Pringles dubious, but the class certification ultimately falters on predominance because Kellogg changed the labels a bunch and it’s hard to say that everyone saw the same allegedly deceptive “no artificial flabors” promise.

Marotto is a chef with training in molecular gastronomy who loved Pringles Salt and Vinegar crisps.  He testified “at some length … about the importance to him of purchasing only natural, high-quality ingredients,” and that “[p]rice isn’t really a concern” to him. He testified that he never buys packaged food of any kind, and “even make[s] [his] own pasta.” Between April 2012 and the present, Pringles were sold under twenty different labels, four of which included “No Artificial Flavors.” Every version of the label listed all ingredients.

In early March 2018, Marotto learned from his wife—an attorney at one of the law firms seeking to represent the putative class—that Pringles contain artificial flavors despite the label saying “No Artificial Flavors.” These are “sodium diacetate” and “malic acid,” which make up “2% or less” of Pringles. Marotto sued for violation of NY state consumer protection law.

 

The court found Marotto’s arguments for typicality and adequacy “at best, dubious,” based on his special expertise and price indifference. Adequacy was also questionable, as Marotto was “uniquely susceptible to questions as to whether this suit is brought for his own benefit, or for that of his wife’s firm.”

But it was lack of predominance that was key here. While common issues may predominate if a product and its labeling “remain[ ] constant and [are] uniform between customers,” this is not so when “it is not demonstrated that all members of the class saw the same advertisements ... and not all the advertisements contained the alleged misrepresentations.” Only four of the twenty different versions of Pringles labels contained the accused language during the class period. Finding the subset that in fact saw the “No Artificial Flavors” label would likely be impossible, and the court wasn’t willing to accept self-certification. Even if they bought the can, the court thought that it would be required to confirm that class members “in fact looked at the miniscule back-of-the-can lettering,” which is not generally the law and which is a far more restrictive standard than “the advertising directed at consumers was consistent.”

Second, and also broadly helpful to defendants, the court thought an individualized inquiry into consumers’ motivation to buy Pringles and/or to pay a price premium would be required, defeating predominance. “Common sense dictates that a purchaser who does not care whether Pringles contain artificial flavors and instead is only interested in, e.g., taste, cannot make out a claim for fraud, misrepresentation, or breach of express warranty.” And there was no evidence that a price premium actually existed.