NEW YORK (Legal Newsline) – Buffalo Wild Wings, sued by a vegetarian for allegedly using beef tallow in its food and not disclosing it to customers, continues to argue that the case against it should be dismissed as a matter of law.

The restaurant claims it was unaware of the issue until it received the lawsuit and it doesn't get any particular financial benefit from using beef tallow in its menu offerings, so plaintiff's claims of unjust enrichment are unsupported.

The case was reassigned to Judge Kevin Nathaniel Fox on Sept. 26 but there have been no rulings since then.

Alex Borenkoff filed a class action against Buffalo Wild Wings Inc. in the U.S. District Court for the Southern District of New York last year, alleging that she and other vegetarian customers were damaged by being misled into buying food items containing beef tallow. She holds the restaurant responsible for allegedly not disclosing the presence of beef tallow.

She later amended her complaint to add Blazin Wings Inc. as a defendant. 

Borenkoff stated in the original complaint that she dined at two Buffalo Wild Wings locations in New York, ordering french fries and mozzarella sticks, but the restaurant didn’t disclose to customers that beef tallow was used to prepare the items. 

The defendants' motion to dismiss the amended complaint, filed April 24, states that “Plaintiff lacks the requisite standing under Article III of the U.S. Constitution to proceed with her claims before this court. In order to meet this constitutional predicate, plaintiff must establish that she suffered an ‘injury in fact’ that is ‘concrete and particularized,’ and ‘that a causal connection [exists] between the injury and the conduct complained of.’”

The motion to dismiss goes on to note “Plaintiff’s claims of economic injuries related to the purchase price of the menu items, and her conclusory and unsupported allegations of ‘premium’ payments for these items, are insufficient to confer Article III standing.”

Plaintiff also must prove she will be injured in the future, the motion states.

“Plaintiff’s Deceptive Acts and Practices claim also fails to state a claim for relief. First, plaintiff has not alleged she has suffered any damage that could sustain this claim. New York law provides that plaintiff cannot simply rely on the alleged purchase of the menu items as a basis for her damage claims under New York general business law 349,” the motion states. 

The motion to dismiss concludes “Defendants respectfully request that plaintiff’s Deceptive Acts and Practices claim (count I) and her unjust enrichment claim (Count II) must be dismissed as a matter of law.”

In response to the motion to dismiss, Borenkoff filed a brief arguing that she paid a “premium” price and she could allege Article III standing. Defendants responded by filing a reply brief on June 5. 

They argued the plaintiff had not established Article III standing, and noted “she neglects to allege any facts that would establish the requisite causal connection between BWW’s (Buffalo Wild Wings) alleged failure to disclose its use of beef tallow in preparing the menu items at issue and her purported payment of a ‘premium.’”

Plaintiff also lacks the ability to prove her injunctive relief claims because “she failed to demonstrate that she suffered a ‘real and immediate threat of future injury’ as a result of the challenged conduct,’” the reply brief argues. 

The reply brief also notes her unjust enrichment claim must be dismissed as a matter of law because “...BWW was entirely unaware of plaintiff’s subjective dietary restrictions and received the same benefit it would have received from any other paying customer who ordered and consumed its food.”

Saul Ewing LLP of Princeton, N.J. represents the defendants. 

Michael L. Braunstein of The Braunstein Law Firm PLLC represents Borenkoff.

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