“Freshly Baked” Bread Lawsuit Dismissed Against Supermarkets

A New Jersey federal court has dismissed putative class actions against
Whole Foods Market Group Inc., Wegmans Food Markets Inc. and Acme
Markets Inc. alleging that they misrepresented their bread products
as “freshly baked” or “baked in-store” despite actually being frozen,
processed or baked elsewhere. Mladenov v. Wegmans Food Mkts. Inc.,
No. 15-0373 (D.N.J., order entered August 26, 2015); Mladenov v. Whole
Foods Mkt. Grp. Inc., No. 15-0382 (D.N.J., order entered August 26,
2015); Mao v. Acme Markets Inc., No. 15-0618 (D.N.J., order entered
August 26, 2015). Additional information about the three complaints
appears in Issue 549 of this Update.

The court found holes in each of the plaintiffs’ amended complaints,
noting that they lacked “any detail as to what Plaintiffs purchased, the
cost of these items, and the supposed value of what they received,” which
are necessary to a price-premium claim. “Nowhere in their complaints
or opposition do Plaintiffs allege facts supporting an out-of-pocket loss,
i.e. that the products they purchased were worthless,” the court said.
“Plaintiffs, claiming to be health conscious consumers, do not even allege
that the relevant products lacked nutritional value or were somehow
less nutritious due to their not being made from scratch in store.
Plaintiffs’ apparent dissatisfaction in the bread and bakery products they purchased, without more, does not suffice under this theory of
ascertainable loss.” Further, the plaintiffs “seem to suggest that the
products they purchased are more like pre-packaged bread than fresh
bread, but that comparison fails.” Accordingly, the court dismissed the
claims in all three lawsuits.

Issue 377