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Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger

Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020).

Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible Burger” led them to believe the burger would be prepared separately from Burger King’s meat items. According to plaintiffs, they later learned Burger King cooks Impossible Burgers on grills that are also used to cook meat. They then filed this lawsuit alleging breach of contract, unjust enrichment, and violation of Florida, New York, California, Michigan, and Georgia consumer protection laws.

Although the court accepted plaintiffs’ allegations of a contract between them and Burger King formed by Burger King’s advertising, the court held that the alleged contract did not contain a promise as to any specific method of preparation. Rather, the court remarked, plaintiffs “could have ‘Had it [their] way’ by requesting a different cooking method, thereby altering the terms of the contract”.

The court also dismissed plaintiffs’ consumer fraud claims, finding that the advertising was not deceptive under the reasonable consumer standard because Burger King only promised a non-meat patty (and nothing more), and it delivered on that promise.

The court also granted defendant’s motion to deny class certification, finding plaintiffs’ claims too individualized to support class-wide adjudication. The court’s conclusion was guided by Burger King’s argument that each consumer has different personal preferences for the preparation of his or her food, and plaintiffs failed to plausibly assert that all “Impossible Burger” purchasers share their stance. The court acknowledged dismissal of class allegations at the pleading stage is an “extreme remedy,” but noted it is appropriate where, as here, “a defendant demonstrates from the face of the complaint that it will be impossible to certify the classes alleged by the plaintiff regardless of the facts the plaintiff may be able to prove.” Why the court addressed class certification at all, having dismissed the complaint, is puzzling.

This case reinforces that claims based only on consumer assumptions not grounded in the text of the advertising are ripe for a motion to dismiss. Watch this space for further developments.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 246
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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney
Associate

Jeffrey H. Warshafsky is an Associate in the Litigation Department, resident in the New York office. He is a commercial litigator with a particular emphasis on false advertising, trademark, and counterfeiting disputes. Jeff also advises clients on trademark portfolio management, anti-counterfeiting strategies, cybersquatting prevention, and other Internet-related trademark infringement matters.

212-969-3241
Anisha Shenai-Khatkhate Litigation Attorney Proskauer Rose Law Firm
Associate

Anisha Shenai-Khatkhate is an associate in the Litigation Department at Proskauer Rose LLP.

212.969.3574
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