FORT LAUDERDALE, Fla. (Legal Newsline) – Class action lawyers are preparing their appeal of a loss in their lawsuit against Burger King that complains Impossible Whoppers are cooked on the same grills as regular Whoppers.
Attorneys at Dudley Sellers in Tallahassee, Fla., and McGuire Law in Chicago noted in court papers that they are appealing Judge Raag Singhal’s decision to toss their case. They asked Singhal to enter judgment against them so that they can file their appeal, and he obliged.
He ruled against them on July 20, dismissing all 10 of the claims in plaintiff Phillip Williams’ lawsuit.
He threw out the first nine without prejudice, meaning Williams can re-file and try again, but the claim for unjust enrichment was tossed with prejudice.
“Plaintiffs argue Burger King’s advertisement promised more than a non-meat patty,” the decision says. “Further, Plaintiffs argue it is too early to make such a determination at this stage of the proceedings.
“This Court cannot agree. Burger King promised a non-meat patty and delivered with the ‘Impossible Burger.’”
Williams claims that since Burger King began to offer the Impossible Whopper on Aug. 8, the restaurant chain has been misleading consumers due to the fact the Impossible Whopper is cooked on the same grill as traditional meat products, coating the meat-free patty in meat by-products.
"Plaintiff and other consumers purchased the Impossible Whopper, reasonably relying on defendant's deceptive representations about the Impossible Whopper and believing that the Impossible vegan meat patty would be prepared in a manner that maintained its qualities as a vegan (meat-free) burger patty," the suit states.
Singhal did not agree. He ruled the plaintiffs are putting words in Burger King’s mouth.
“Plaintiffs’ argument… loses momentum when they claim there was a presumption the ‘Impossible’ patties would be cooked on a different grill than other items sold at Burger King,” the decision says.
“This is not an essential term of the contract. Furthermore, as Burger King’s slogan has boasted for forty years, Plaintiffs’ could have ‘Had it [their] way’ by requesting a different cooking method…”
The appeal will be filed with the U.S. Court of Appeals for the 11th Circuit.