Pelman v. McDonald’s Corp.: No Class Certification for Obese Teens

A judge from the U.S. Court of International Trade, sitting by designation in
a New York federal district court, has determined that the obesity-related
claims filed in 2002 against McDonald’s Corp. cannot be pursued as a class
action. Pelman v. McDonald’s Corp., No. 02-7821 (S.D.N.Y., decided
October 27, 2010). Essentially, the court found that individual causation issues
predominated over common ones and that, as to any common issues, the
plaintiffs had failed to show that the putative class was sufficiently numerous
for the court to certify an issues class. A spokesperson reportedly indicated that the company was pleased with the decision, stating, “As we have maintained
throughout these proceedings, it is unfair to blame McDonald’s for this
complex social problem.”

Teenagers alleging obesity-related health problems claimed that they were
misled by the fast food chain’s deceptive advertising into believing that the
food could be consumed daily without any adverse health effects. They also
claimed that the company (i) failed to disclose that some product ingredients
and processing were “substantially less healthy than were represented to
Plaintiffs,” and (ii) represented that it would provide nutritional brochures and
information materials that were not adequately available at its restaurants.
According to the court, these three claims, which alleged identical injuries—
financial costs, false beliefs and obesity-related conditions—actually present a
single cause of action under New York’s General Business Law (GBL).

The court determined that the only viable injuries that could be claimed under the GBL “are those related to the development of certain medical conditions.” Because all of the proposed experts “essentially agree that the presence of such causal connection, if any depends heavily on a range of factors unique to each individual,” i.e., in terms of “the extent of each plaintiff’s consumption and energy expenditure,” the claims fail the predominance test for class certification. The court elaborated, “because factual questions with regard to, at the very least, the nutritional composition of food products consumed by each plaintiff from sources other than Defendant’s facilities, as well as the level of regular physical activity engaged in by each plaintiff, predominate in the inquiry with respect to an essential element of Plaintiffs’ cause of action, this case is not appropriate for adjudication on a class-wide basis.”

Also requiring individualized proof, according to the court, was whether each
plaintiff ate McDonald’s food because he or she “believed it to be healthier
than it was in fact.” In this regard, the court agreed with McDonald’s, which
pointed out “‘[a] person’s choice to eat at McDonald’s and what foods (and
how much) he eats may depend on taste, past experience, habit, convenience,
location, peer choices, other non-nutritional advertising, and cost,’ although
‘[b]eliefs about nutrition may influence a person’s decision in some cases, [it
will] not always [be the case].’”

The plaintiffs also asked the court to certify an issue class “for a determination of Defendant’s liability for its deceptive conduct on consumers under [GBL] § 349.” While the court agreed that the affirmative product representations and the “omission of material information regarding the actual nutritional composition of Defendant’s products” could be evaluated on the basis of objective standards and thus fulfilled commonality, typicality, predominance, adequacy of representation, and superiority class action requirements, the court refused to certify the issues due to insufficient evidence of numerosity. The court stated, “Plaintiffs have not presented the court with any specific evidence that there are any other persons who had not yet reached the age of twenty-one as of August 2002, were exposed to McDonald’s nutritional marketing scheme in New York during the years from 1985 until 2002, ate regularly at McDonald’s, and subsequently developed the same medical conditions as Plaintiffs.” The court also found that the plaintiffs had not submitted sufficient evidence from which these facts could reasonably be inferred. Thus, the court denied the motion for certification of an issue class.

Denying plaintiffs’ request for additional class discovery, the court ordered
the parties to consult and submit a revised scheduling order by November
29. News sources were unable to discuss the case with the plaintiffs’ lead
counsel; the case has already been appealed twice to the Second Circuit Court
of Appeals. Under Federal Rule of Civil Procedure 23(f), the plaintiffs have 14
days to ask an appeals court to consider whether it will permit an appeal from
the ruling. See Bloomberg, October 27, 2010.