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.

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