Court shrinks the plaintiff pool, then tosses false ad claims on the merits 

High Steaks

According to the commercial, the first thing that people crave after hearing great news is not champagne, but … steak and eggs.

Back in 2013-2014, (pre re-brand), Dunkin’ Donuts was making a big push on its steak sandwich products, including a steak-and-egg breakfast offering and something called the Angus Steak Big N’ Toasted sandwich. The commercials are your typical hybrid of the appealing and the implausible − in the aforementioned commercial, an attractive young professional man announces to his attractive young professional friends that he just landed a job. Their reply? “Steak and eggs!”

The ads also made claims about the sandwich’s ingredient list: Angus beef, meat derived from Scottish Angus cattle. Angus beef has been a bit of an obsession in the fast-food industry since the early 2000s; both McDonald’s and Burger King have offered their own Angus-derived sandwiches in the past few years.

Ground Down

Consumers who purchased Angus beef sandwiches and wraps from Dunkin’ Donuts sued the company in the Eastern District of New York in June 2017. They alleged that despite the names of the products, the sandwiches didn’t contain Angus steak − that is, a whole, intact cut of meat. Instead, the patties that made up the sandwiches consisted of ground Angus steak and other ingredients.

In the second amended complaint, the putative class charged Dunkin’ with violations of a number of state laws, including deceptive practices and false advertising claims under the Magnuson-Moss Warranty Act, the California Unfair Competition Law, the Florida Deceptive and Unfair Trade Practices Act, the Massachusetts Consumer Protection Act, the Michigan Consumer Protection Act, the New York General Business Law, and the consumer protection laws of the 45 other states and the District of Columbia.

Dunkin’ Donuts moved to dismiss in February, attacking the plaintiffs’ standing, the Eastern District’s personal jurisdiction and the merits of the false advertising claims themselves.

In an order filed in September, the court dismissed the plaintiffs’ demands for injunctive relief straight away and agreed with Dunkin’s overall jurisdictional arguments.

In the end, the court picked off all the plaintiffs except for Chufen Chen, the New York consumer who filed the original complaint. In her case, the court dismissed her Magnuson-Moss Act claims, holding that the ingredient disclosed by Dunkin’ Donuts in its advertising was a product description, and “not a written warranty under the Magnuson-Moss Act.”

As for her allegations made under New York General Business Law, the court dismissed them as well. Chen had claimed that the commercials were deceptive in that they obscured from the audience’s view the fact that the steak in the products was not a single cut of meat; the court dismissed this argument by including several unobscured closeups of the sandwiches drawn directly from the commercials.

The court also did away with Chen’s argument that additives, preservatives and other ingredients gave the lie to the Angus steak marketing claims. “Had Defendant used terms such as ‘All-Meat Patty with 100% Angus Steak’ or ‘All-Natural Angus Steak’…Chen’s case would be different,” the court maintained. “Without other qualifications, ‘Angus Steak’ guarantees just some Angus beef.”

The Takeaway

With the lawsuit effectively gutted, it is unclear how the case will proceed. If we were willing to bet, we’d place our money on settlement.