We have (less of) the meats: court mostly denies Arby's motion to dismiss in misleading photos case

Alongis v. Arby’s Restaurant Group, Inc., 2025 WL 2772810, 2:23-cv-6593 (NJC) (LGD) (N.D.N.Y. Sept. 29, 2025)

The court declines to dismiss claims under the NY GBL that Arby’s photographs misrepresented (1) whether its roast beef was rare rather than fully cooked and (2) the amount of meat in a sandwich by at least 100%. The photos are on Arby’s website, on menu ordering boards located within the store, and in the drive-through at every Arby’s store location in New York such that, plaintiff alleged, “every customer will view said photographs prior to the time of the purchase.”

advertised/actual

Rare roast beef:  It was plausible that the photos would mislead reasonable consumers, since they visually depict reddish, light-colored meat, which is associated with rare, rather than fully-cooked, roast beef. The claim could not be dismissed as puffery; the photos weren’t “subjective statements of opinion which cannot be proven false.” Rather, it can be readily determined whether the meat actually used in the photographs consisted of rare meat. Nor was the photo “patently hyperbolic” and thus unreliable. Even in the context of a relatively lower priced and fast meal, it was plausible that a reasonable consumer would believe they’d receive rare roast beef. Thus, “a fact-intensive inquiry on how a reasonable buyer would react” was required. The court distinguished cases where an ingredients list would disclose the truth, as well as cases involving verbal statements that were puffery, because the photos here were “both provable as true or false and also plausibly deceptive and misleading.”

Unlike some other courts, the court here also allowed the plaintiff (at this stage!) to include online purchasers in his proposed class definition, because the alleged misrepresentations were identical.

Volume misrepresentation: Similar reasoning with respect to non-half pound sandwiches. “The advertisements of the Half Pound Roast Beef and Half Pound Beef ‘N Cheddar sandwiches consist not only of the photographs of these Sandwiches, but also their names, which are additional affirmative statements communicating that each of these two Sandwiches contain a half pound of meat.” It was implausible that a consumer ordering a Half Pound Sandwich could do so without actually using the name, and there was no allegation that they received less than a half a pound of meat. For the other sandwiches, “in each photograph used in the advertisements, the meat in the sandwiches plausibly appears to constitute at least double the amount of meat in the sandwiches actually purchased.” Other cases involving only photos of single ingredients were inapposite.