No “Piggyback” Standing in Putative Cookie Class Action, Court Rules
An Illinois federal court has dismissed part of a putative class action against Lenny & Larry’s Inc., holding that the plaintiffs lack standing and that the application of 50 differing state laws is “unmanageable on a class-wide basis because those states’ laws conflict in material ways.” Cowen v. Lenny & Larry’s Inc., No. 17-1530 (N.D. Ill., entered October 12, 2017). The complaint alleged that Lenny & Larry’s advertises “The Complete Cookie” as “Plant-Based Protein to Build Lean Muscle,” labeling the cookies as vegan, non-GMO, kosher, dairy-free and soy-free without artificial sweeteners or sugar alcohols. The four-ounce cookie is advertised as containing 16 grams of protein, but the plaintiffs allege that independent testing showed the actual protein content of each cookie can vary from four to nine grams.
The court held that the named plaintiffs could not establish they had sustained an injury from cookie flavors they had not purchased. “[T]he Seventh Circuit’s position that plaintiffs cannot ‘piggy-back on the injuries of the unnamed class members’ in order to acquire standing ‘through the back door of a class action’ is clear,” the court stated, dismissing those claims. The court also dismissed three state law claims, finding the defendant’s “in-depth analysis of the many ways in which the laws of the states that comprise the proposed classes conflict” demonstrated that the “’essential requirements to establish a claim and the types of relief available’ vary significantly.” The plaintiffs were given leave to amend.