BROOKLYN, N.Y. (Legal Newsline) - Wendy's is making its argument to throw out a class action lawsuit that complains its hamburgers look much worse in real life than they do on advertisements.
Wendy's filed a motion to dismiss Sept. 30 in New York federal court as it tries to cut off a case filed against it and McDonald's. The suit says they use pictures of beef patties that are not fully cooked to make them seem larger than they are when purchased.
"In general, meat shrinks 25% when cooked. A food stylist for Wendy's has admitted that she tricks and deceives customers by using undercooked patties in burger advertisements," the suit says.
Wendy's noted plaintiff Justin Chimienti referenced the Wendy's website but forgets to mention prominent disclosures next to pictures of burgers disclose each one's approximate weight before cooking.
"The Complaint never grapples with these disclosures or alleges that they misrepresent anything about the burgers Plaintiff actually received," the motion to dismiss says.
"In short, his claim for false or misleading advertising is simply inconsistent with the realities of the very advertising he purports to attack..."
The lawsuit alleges toppings are also overstated in advertisements, mentions several online reviews and features photo comparisons.
"Even assuming mere standalone images satisfy pleading requirements (they don’t), and could somehow convey an ambiguity regarding the size of a burger or its toppings (they can’t), such visual representations constitute classic puffery that is not actionable. The images alone make no representation that can be considered true or false," Wendy's says.
Wendy's also wonders why the plaintiff filed a federal lawsuit after ordering two hamburgers instead of complaining directly to staff at the restaurant. The lawsuit says Wendy's overstates the sizes of 17 types of burger.
"How he could possibly know this, Plaintiff does not say," the motion says. "He certainly cannot have unsatisfied expectations about products that, according to his own complaint, he never purchased."