BROOKLYN, N.Y. (Legal Newsline) - The class action lawyers hoping to mount a crusade against Wendy's and McDonald's have lost their lawsuit that alleges customers are tricked into thinking actual hamburgers there look as good as they do in commercials.
New York federal judge Hector Gonzalez decided on Sept. 30 to dismiss the lawsuit brought by plaintiff Justin Chimienti and his lawyers - James Kelly of New York, Anthony Russo of Florida and Mark Anthony Panzavecchia of New Jersey.
Their proposed class action included photos of burgers in advertisements and burgers actually purchased, as well as several online reviews. It alleged the patties are undercooked in commercials to keep them from shrinking and that toppings in ads are more bountiful than what are sold.
However, Gonzalez's decision says Chimienti failed to allege that he ever saw the advertisements and that even if he had, he did not allege they were "materially misleading" under the "reasonable consumer" test applied to consumer deception class actions.
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," the judge wrote.
The size of the burgers in ads is not puffery, he wrote. It is an objective fact, but a "reasonable consumer" would not have been misled, Gonzalez said.
"Plaintiff does not allege that Defendants created a misleading impression about the size of their meals by using more meat in their advertisements than they serve in their stores - he instead alleges hat Defendants create this impression by using an identical amount of uncooked meat in their ads," the ruling says.
"This concession that both advertisements and the products served in stores contain the same amount of meat is fatal to Plaintiff's claims."