McDonald's french fry class action suit dismissed in part by district court

Legal News Line Jun. 4, 2007, 3:00am

A class-action suit predicated on the allegedly fraudulent use of gluten in McDonald's french fries was dismissed in part on May 30 in an Illinois federal district court. Two counts – breach of express warranty and unjust enrichment – survived the recent motion to dismiss by the McDonald's Corporation, while allegations of fraud, breach of implied warranty, and a request for injunctive relief were dismissed by the court. The partial dismissal could significantly weaken the plaintiffs' case against McDonald's. The case, In Re McDonald's French Fries Litigation (MDL-1784), was initially brought in February 2006 by two Florida plaintiffs whose autistic daughter allegedly suffered ill effects from consumption of the company's french fries. The suit was consolidated in the Northern District of Illinois (Eastern Division) and currently sits before Judge Elaine E. Bucklo. The original complaint, filed by the firm of Zebersky & Payne, LLP in Florida, alleged that the company misrepresented the contents of its fries as gluten-free "through longstanding fraudulent conduct." The class action was brought on behalf of the named plaintiffs and "all United States citizens adhering to a gluten free diet who purchased McDonald's french fries from the first date the Defendant advertised their french fries were gluten free yet placed french fries containing gluten into the stream of commerce…" As a result of the failure to disclose gluten levels of its fries, McDonald's allegedly caused severe detrimental health risks to individuals (such as those with autism) with sensitivities to gluten. The complaint alleged that "(McDonalds') failure to disclose the fact that their french fries contained gluten constitutes deceptive, unfair, unconscionable, misleading and fraudulent trade practices. Defendant has unfairly and unjustly profited from their conduct." Plaintiffs allege that McDonald's "achieved massive financial success through the deceit and the deception of the members of the Plaintiff Class." The plaintiffs' theory of recovery rested on allegations of fraud, deceptive and unfair trade practices, unjust enrichment, and breach of warranty. McDonald's attacked the allegations in its motion to dismiss by pointing out that most of the plaintiffs' legal causes of action were barred as a matter of law. Essentially, McDonald's asserted that the plaintiffs pled themselves out of court by arguing facts which demonstrate that they have no claim. For instance, McDonald's argued, the breach of implied warranty claims fail since the only individuals harmed were those who were "abnormally sensitive" to gluten. Thus, no general implied warranty of merchantability existed between the defendant and plaintiffs, according to the company's brief. Judge Bucklo agreed with the corporation in her ruling, stating that although the plaintiffs could argue that the products were for a purpose other than their ordinary use, "plaintiffs still fail to identify what the non-ordinary use of a french fry or hash brown is." For that reason, the court dismissed the implied warranty count for failure to state a claim. Meanwhile, the plaintiffs' fraud allegations failed because they were not pled with the specificity required under the federal rules. McDonald's pointed out that the plaintiffs argued fraud and misrepresentation without stating how, when, or where any of the alleged misrepresentations took place. Federal Rule 9(b) of Civil Procedure requires that all averments of fraud be stated with particularity; otherwise, they face dismissal. Indeed, Judge Bucklo dismissed the plaintiffs' fraud counts because "(o)n their face, these allegations are insufficient to plead the "when" with specificity as required under Fed. R. Civ. P. 9(b)." Bucklo noted that the plaintiffs' complaint did not "specify the time frame or method through which any other alleged misrepresentations were made to the plaintiffs." The plaintiffs' complaint only specified that McDonald's updated its web site on Feb. 13, 2006 to reflect the gluten content in its products, but did not detail any other relevant time period to meet the court's satisfaction. Meanwhile, the plaintiffs' claim for injunctive relief failed because there was no threat of future wrongful conduct on the franchise's part. The company revised its web site in 2006 to reflect that its fries and hash browns contain gluten, and public awareness brought on by the suit arguably eliminates the need for injunctive relief against the corporation. The plaintiffs apparently conceded this argument, and Judge Bucklo dismissed the injunctive relief request accordingly. While a majority of the plaintiffs' counts were dismissed under McDonalds' motion, Judge Bucklo allowed two counts to stand: the plaintiffs' breach of express warranty claim and the unjust enrichment allegation. With regard to express warranty, the court noted that the plaintiffs' claim failed to allege privity among plaintiffs and defendant (normally a requirement in such claims), but found that the complaint could survive on this count under exceptions available under various state laws. Because the breach of express warranty count survives dismissal, the court allowed the plaintiffs' unjust enrichment claim to move forward as well. With three of the five counts dismissed, plaintiffs now have 28 days to amend their complaint. Otherwise, the case will proceed on the two counts allowed by the court to stand.

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