A federal court in Illinois, presiding over consolidated multidistrict litigation claims against McDonald’s Corp. for allegedly advertising its French fries as gluten-, wheat- and dairy-free while actually using small amounts of hydrolyzed wheat bran and casein in them, has denied plaintiffs’ motion for class certification. In re McDonald’s French Fries Litig., MDL No. 1784 (N.D. Ill., decided May 6, 2009. The court determined that the class definition was indefinite and overbroad, the proposed class would be unmanageable, and individual issues would predominate over common ones.

The plaintiffs, who alleged violations of all 50 states’ and the District of Columbia’s consumer fraud and/or deceptive trade practices acts, breach of express warranty and unjust enrichment, sought to certify a nationwide class of all persons “who purchased Potato Products from McDonald’s restaurants on or after February 27, 2002 through February 7, 2006 and who at the time of purchase had been medically diagnosed with celiac disease, galactosemia, autism and/or wheat, gluten or dairy allergies.”

According to the court, by definition, “these people have suffered no injury, not even the economic one claimed in this lawsuit.” The court also found that the proposed class definition was overbroad because the plaintiffs’ claims required reliance to connect the representations with the economic harm alleged. Noting that rewriting the class definition would not resolve this certification problem, the court found a second problem, that is, the “evidentiary headache” created to prove a claim, “if the class were limited to persons with one of the stated diagnoses who purchased Potato products in reliance on defendant’s representation and who would not otherwise have purchased french fries or hash browns.” The court found it unlikely that millions of plaintiffs would provide a letter with a medical diagnosis to participate in a class “in which the damage was $1.00 or $1.50 (compounded for repeat purchases but still presumably a very small number). But assuming they did so, plaintiffs are asking the court to review and evaluate potentially millions of such letters.”

While the plaintiffs specifically disclaimed any physical injury from the consumption of the company’s potato products, the court briefly discussed the affidavits of defendant’s experts, who stated that wheat, casein and milk products have not been shown to exacerbate autism and that those sensitive to such products generally learn what foods they may in eat in moderation without experiencing symptoms.

About The Author


For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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