Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020).

Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible Burger” led them to believe the burger would be prepared separately from Burger King’s meat items. According to plaintiffs, they later learned Burger King cooks Impossible Burgers on grills that are also used to cook meat. They then filed this lawsuit alleging breach of contract, unjust enrichment, and violation of Florida, New York, California, Michigan, and Georgia consumer protection laws.

Although the court accepted plaintiffs’ allegations of a contract between them and Burger King formed by Burger King’s advertising, the court held that the alleged contract did not contain a promise as to any specific method of preparation. Rather, the court remarked, plaintiffs “could have ‘Had it [their] way’ by requesting a different cooking method, thereby altering the terms of the contract”.

The court also dismissed plaintiffs’ consumer fraud claims, finding that the advertising was not deceptive under the reasonable consumer standard because Burger King only promised a non-meat patty (and nothing more), and it delivered on that promise.

The court also granted defendant’s motion to deny class certification, finding plaintiffs’ claims too individualized to support class-wide adjudication. The court’s conclusion was guided by Burger King’s argument that each consumer has different personal preferences for the preparation of his or her food, and plaintiffs failed to plausibly assert that all “Impossible Burger” purchasers share their stance. The court acknowledged dismissal of class allegations at the pleading stage is an “extreme remedy,” but noted it is appropriate where, as here, “a defendant demonstrates from the face of the complaint that it will be impossible to certify the classes alleged by the plaintiff regardless of the facts the plaintiff may be able to prove.” Why the court addressed class certification at all, having dismissed the complaint, is puzzling.

This case reinforces that claims based only on consumer assumptions not grounded in the text of the advertising are ripe for a motion to dismiss. Watch this space for further developments.