CENTRAL ISLIP, N.Y. (Legal Newsline) - Arby's is hoping to cut off the lawsuit over the size of its sandwiches before it gets going.
Attorneys for the fast-food chain want New York federal judge Nusrat Choudhury to hold a conference even before they file a motion to dismiss plaintiff Joseph Alongis' proposed class action.
Alongis says his beef-and-cheddar and brisket sandwiches were smaller than pictures on the Arby's in-store menu. He is represented by Anthony Russo Jr. of Florida.
Arby's points at another lawsuit that failed against Wendy's and McDonald's. There, a judge from the same district as Choudhury found reasonable consumers would not expect fast-food sandwiches to be the same size as those in advertisements.
Much of the portrayals in ads is merely puffery, he ruled.
"Defendants' efforts to present appetizing images of their products are no different than other companies' use of visually appealing images to foster positive associations with their products, which courts within the Second Circuit have held to be immaterial puffery as a matter of law," Judge Hector Gonzalez wrote in that case.
Lawyers for Arby also note a 2018 decision from the U.S. Court of Appeals for the Sixth Circuit in a lawsuit over pet-food packaging. Those plaintiffs claimed, among other things, the bags showed lamb chops but the food inside was made from trimmings.
"Think, for instance, of the reasonable consumer at the fast-food drive through," that ruling says. "Does he expect that the hamburger he receives at the window will look just like the one pictured on the menu?
"Of course not. He knows that puffery is a fact of life."
Jason Rosenberg of Alston & Bird in Atlanta represents Arby's.