A Maryland consumer alleges that when she used coupons offering a free sandwich with the purchase of an initial sandwich, Burger King locations in Maryland, Virginia, the District of Columbia and Florida charged her more than they would have if she had purchased sandwiches without the coupons. Anderson v. Burger King, No. 17-1204 (D. Md., filed May 2, 2017). The complaint asserts that Burger King’s coupon promotion offers a “free” sausage, egg and cheese breakfast “Croissan’wich” to customers who buy one Croissan’wich at the regular price. The plaintiff claims she went to a Maryland location, presented a coupon and was charged $3.19 for the two sandwiches she received. She later purchased a single sandwich and was charged only $2.16, the complaint alleges. She found similar results at locations in (i) the District of Columbia, where the two coupon sandwiches cost $4.61 and the single sandwich cost $1; (ii) Virginia, where…
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Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 170842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials. Issue 631
Twenty-three Dunkin’ Donuts franchise locations in Massachusetts have reached a tentative settlement with a plaintiff who claimed the stores served him “margarine or a butter substitute” on his bagels despite his request for butter. Polanik v. Boston Hill Donuts, LLC, No. 17-84914 (Suffolk Cty. Superior Ct., settlement agreement filed March 24, 2017); Polanik v. CM&R Donuts, Inc., No. 17-84915 (Suffolk Cty. Superior Ct., settlement agreement filed March 24, 2017). In both projected class actions, the plaintiff claimed he paid 25 cents each time he ordered butter and was never told a butter substitute was used instead. A Dunkin’ Donuts spokesperson told The Boston Globe in 2013 that the recommended store procedure was to serve individual whipped butter packets if requested by the customer, but otherwise employees apply “vegetable spread” to bagels or pastries. If the settlement is approved, the plaintiff will receive $500 and up to 1,400 customers may claim…
A Las Vegas restaurant called the Heart Attack Grill has filed suit against a Tennessee restaurant calling itself the Heart Attack Shack, claiming trademark infringement. HAG IP, LLC v. Tipps Enterprises Inc., No. 17-0652, (M.D. Ky., filed March 29, 2017). The Las Vegas restaurant, which claims trademarks on its Single, Double, Triple and Quadruple Bypass burgers and Flatliner Fries, alleges that the Tennessee restaurant, which features burgers, wings and “Flatliner XL” fries, has infringed its trademarks. In a February 2017 article in the Chattanooga Times Free Press, the defendant owner claimed he named his restaurant after a “heart attack” burger on the menu of a restaurant that previously occupied his location. For trademark infringement of registered marks, the plaintiff seeks injunctive relief, accounting, damages, attorney’s fees and destruction of all promotional materials bearing the trademarks. In 2012, after the plaintiff sent a cease and desist letter to New York’s Second…
Chipotle Mexican Grill Inc. won decertification of a class action comprising more than 500 management trainees in 37 states when a federal court ruled that there were too many differences in the trainees’ ability to perform managerial duties, causing the action to fail the predominance test. Scott v. Chipotle Mexican Grill Inc., No. 12-8333, (S.D.N.Y., order entered March 29, 2017). Seven named plaintiffs won conditional class certification in June 2013, after which 516 additional plaintiffs opted in. The plaintiffs, who worked as “apprentices,” were temporary workers training for positions as restaurant general managers. The complaint alleged apprentices were classified as exempt and illegally denied overtime even if they spent most of their time on nonmanagerial tasks such as preparing food or serving customers, violating the Fair Labor Standards Act (FLSA) and state labor laws. However, the court found that the plaintiffs’ testimony contained too much conflicting information about the apprentices’…
Eatsa, a fast-food chain featuring high-tech ordering and automated service, faces a putative class action alleging its restaurants are inaccessible to the blind. Am. Council for the Blind, v. Keenwawa, Inc., No. 17-2096 (S.D.N.Y., filed March 23, 2017). Eatsa customers place orders through mobile apps or kiosks in the restaurants, then swipe a credit card to pay; the customer name then appears on a screen next to a wall of food-delivery “cubbies.” When an order is ready, an LCD screen lights up and displays the customer’s name, and the customer must tap a particular corner of the cubby to open it and retrieve the order. The complaint alleges that Eatsa failed to configure either its mobile app or kiosks to use audio technology, rendering the restaurant inaccessible to the blind or those with low vision. Although Eatsa staffs each restaurant with one or two human “hosts” to help customers, the…
Subway has issued a notice of action in Canada against the Canadian Broadcasting Corporation (CBC) following a February broadcast of the network’s “Marketplace” program that claimed DNA testing of the chain’s sandwiches showed its chicken was half processed soy. The sandwich chain is reportedly asking for $210 million in damages for defamation. According to the Toronto Star, Subway asked the CBC to retract the story but decided to file suit after the network refused. Additional details about a U.S. projected class action filed against Subway after the CBC report appear in Issue 627 of this Update. See Fortune, March 17, 2017, Issue 628
A Florida federal court has dismissed part of a data breach complaint against Wendy’s, calling two of the claims “shotgun pleadings” and noting that the plaintiffs “misconstrue the basic legal principles of statutory law.” Torres v. Wendy’s Int’l, LLC, No. 16-0210 (M.D. Fla., order entered March 21, 2017). Additional details on the case appear in Issues 594 and 612 of this Update. The plaintiffs originally filed suit in February 2016 after a data breach of Wendy’s credit card payment system, but the Florida court dismissed the suit for failure to plead an injury sufficient to prove standing. Ruling on the amended complaint, the court found that the plaintiffs could establish standing based on “particularized, concrete injuries,” including late fees, loss of credit card reward points and loss of cashback awards. The court refused to dismiss a breach of implied contract count, reasoning that when a merchant invites a customer to…
A Connecticut plaintiff filed a projected class action against Subway after DNA testing of the chain’s chicken sandwiches allegedly showed the meat was only 42 to 53 percent chicken and the remainder was processed soy. Moskowitz v. Doctor’s Associates Inc., No. 17-0387 (D. Conn., filed March 1, 2017). Researchers affiliated with the Canadian Broadcasting Company’s “Marketplace” news show apparently found that the meat used in Subway’s oven-roasted chicken items was only 53.6 percent chicken, while the meat used in the sweet onion teriyaki items was only 42.8 percent chicken. The plaintiff claims that Subway is “disseminating false and misleading information via advertising, marketing, its website, and menu intended to trick unsuspecting customers, into believing they are purchasing chicken for their money, rather than Sandwiches and Chicken Strips containing a multitude of ingredients.” The complaint alleges violations of the federal Magnuson-Moss Warranty Act, the Connecticut Unfair Trade Practices Act, breach of…
A New York federal court has dismissed a putative class action against Chipotle Mexican Grill Inc. alleging the burrito chain violated the Securities and Exchange Act of 1934 by making material misrepresentations about the company’s response to food-borne illnesses linked to its stores. Ong v. Chipotle Mexican Grill, Inc., No. 160141 (S.D.N.Y., order entered March 8, 2017). The court has granted the plaintiffs, led by Metzler Investment GmbH and Construction Laborers Pension Trust of Greater St. Louis, leave to amend. Chipotle’s stock price dropped in 2015 after outbreaks of foodborne illnesses, including norovirus, E. coli and Salmonella, were linked to its stores. As a result, Chipotle profits declined by 95 percent in 2016 as compared to the year before. The plaintiffs alleged that Chipotle and three of its executives misled shareholders and the public in the statements and reports it released about the outbreaks, although Chipotle predicted poor performance in…
