July 13, 2020

Volume X, Number 195

July 13, 2020

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July 10, 2020

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Second Circuit Finds Consumer Suit Against Dunkin’ Not Well Done

A Second Circuit panel recently affirmed the dismissal of a putative false advertising class action against Dunkin’ Brands, which alleged the company misled consumers as to the contents of products Dunkin’ described as “Angus steak.” Chen v. Dunkin’ Brands, 18-cv-3087 (2d Cir. Mar. 31, 2020). The complaint asserted claims under various state consumer protection laws, including New York General Business Law (“GBL”) §§ 349 and 350. The district court dismissed the non-New York plaintiffs for lack of personal jurisdiction, and found the complaint failed to state a claim under the GBL.

The plaintiffs alleged Dunkin’ deceptively marketed two of its trademarked products: the Angus Steak & Egg Breakfast Sandwich and the Angus Steak & Egg Wake-Up Wrap. Plaintiffs claimed that, through representations made in labeling and television advertisements, Dunkin’ deceived consumers into believing that these products contained an “intact” piece of meat, when the products actually contained a ground beef patty with additives.

The complaint identified three allegedly misleading television advertisements that showed actors holding the products, which were described using the words “Angus” and “steak.” However, the panel noted that all three advertisements concluded with multiple zoomed-in images that clearly showed the “steak” was a beef patty. Because no GBL claim can stand if the allegedly deceptive practice is fully disclosed, the panel concluded that the district court properly decided as a matter of law that the advertisements were not actionable under the GBL. Additionally, the district court’s dismissal was supported by the dictionary definition of steak, which includes both “a slice of meat” and “ground beef prepared for cooking or for serving in the manner of a steak.”

It was also undisputed that the two products did in fact contain “Angus beef” (that is, beef derived from the Angus breed of cattle). While literally accurate statements can still be misleading, the court emphasized the importance of context in determining whether a reasonable consumer would have been misled by a particular advertisement. In this case, the plaintiff bought the Angus Sandwich for less than $4 and the Angus Wrap for less than $2. As the television advertisements showed, the products were marketed and sold as ‘grab-and-go products’ that could be consumed in hand, without the need for a fork and knife. The court concluded that a reasonable consumer purchasing one of the products from Dunkin’ in that context would not be misled into thinking she was purchasing an unadulterated, intact piece of meat.

This decision is another in a long line of cases from the Second Circuit and other circuit courts (including cases we have covered on this blog) recognizing that common sense and the ordinary meaning of words are key considerations when a court assesses the plausibility of a false advertising complaint at the motion to dismiss stage.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 128


About this Author

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

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.

Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney

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.

Emily H. Kline Associate Litigation

Emily Kline is an associate in the Litigation Department.

Emily earned her J.D. from Columbia Law School, where she was an editor of the Human Rights Law Review. While at Columbia, she interned at Volunteer Lawyers for the Arts, a legal services nonprofit, and in the Consumer Frauds and Protections Bureau of New York State Attorney General’s Office. She also worked as a judicial intern for the Honorable Kiyo A. Matsumoto at the United States District Court for the Eastern District of New York.