Federal Courts Remand Two Class Actions Against Applebee’s to State Court

Federal courts in Ohio and Kentucky have remanded putative class claims alleging that Applebee’s International, Inc., DineEquity, Inc. and Weight Watchers International, Inc. misrepresented the calorie and nutritional information on the Weight Watchers menu items available in Applebee’s restaurants. Curry v. Applebee’s Int’l, Inc., No. 09-505 (S.D. Ohio, filed November 17, 2009); Kramer v. Applebee’s Int’l, Inc., No. 09-131 (E.D. Ky., filed November 17, 2009).

Each plaintiff filed her complaint in state court and sought to certify a class of statewide residents. In July 2009, more than ten months after the complaints had been filed and after some discovery and an unsuccessful mediation had occurred, the defendants removed the cases to their respective federal courts. Writing for both courts, the Ohio district court determined that the defendants had filed for removal too late under the Class Action Fairness Act, which requires that a notice of removal be filed within 30 days of receipt of any paper “from which it may first be ascertained that the case is one which is or has become removable.” According to the court, defendants knew in January 2009, on the basis of plaintiff’s settlement offer, that the amount in controversy in each case would exceed $5 million, which is the jurisdictional minimum for removal.

Additional cases with similar claims are pending in state and federal courts in California, Illinois, Kansas, and Washington.