But a defendant’s subsidiary may be brought to task for surviving claim

Proud to Be an —

Love them, judge them, fear them – you haven’t committed to the American project in all its grandeur without at least wishing you could down a platter of TGI Fridays potato skins. The small “loaded” potato skins variant, for example – a testimony to our national brand of Rabelaisian freedom and excess. “Crispy Maine-grown white potatoes topped with a layer of melted cheddar and crispy bacon.” Yum.

Sure, it weighs in at 2,660 calories, but who cares? Go on. Go look at them. Go ahead. And we’ll wait for you to order some and return.

Chip Off the Old Skin

Done? Do you feel happy? Or ashamed? However you feel, just own it.

Moving on – when a restaurant chain puts together something as awesome as these skins, it can’t rest on its laurels. What if its customers want the same potato-skin goodness when their local franchise is closed? A committed company would make that happen. And TGIF is committed.

Partnering with iconic American snack maker Utz, TGIF licensed its name and trademark to one of the company’s subsidiaries. The result? “TGI Fridays Potato Skin Snacks,” which come in a variety of delicious flavors.

So, what’s the problem, you ask? This sounds like a situation where everyone wins, right? Not so fast.

Mashed Claims

Solange Troncoso, the plaintiff with the coolest name ever, brought a class action against TGIF, Utz, and Utz’s subsidiary and the manufacturer of the skins, Inventure, filed in March 2019, with a second swing at the complaint filed in July 2019. Troncoso accused the companies of deceptive trade practices, false advertising and fraud, and she sought injunctive relief. Why?

According to the Southern District of New York, which undoubtedly reviewed the defendants’ motion to dismiss over a platter of pan-seared pot stickers, no one is quite sure.

According to the court, the accusations were “noticeably, and perhaps intentionally, imprecise.” According to the court’s review, Troncoso might have maintained that the snack chips were “actually derived from TGIF’s famous potato skins appetizer.” But at other points in the complaint, she “alleges that she believed the snack chips were ‘comprised of skins peeled from potatoes.’”

“Ultimately, [we] will not waste words parsing Plaintiff’s intent,” the court wrote.

Target Practice

Instead, one by one, the court relied on hypothetical instances outlined in the motion to dismiss to systematically pick off the claims … all except one.

“Defendants argue that Plaintiff has potentially alleged [italics ours] that she and other reasonable consumers were misled into believing that: (i) the snack chips tasted like the Potato Skins appetizer that one could order inside a TGIF’s restaurant; (ii) the snack chips were a genuine Potato Skins appetizer that one could order inside a TGIF’s restaurant; or (iii) the snack chips were healthier than they actually are.”

All three hypotheticals were dismissed on the reasonable consumer standard – “No reasonable consumer would believe that the snack chips, shelf-stable and sold at room temperature in gas stations, would be identical in taste or substance to an appetizer, prepared with perishable dairy products and served hot in a restaurant.”

The Takeaway

But … one claim, despite the odds, survived. The complaint “can reasonably be read to assert a claim that Plaintiff was misled into believing that the snack chips contain potato peels as an ingredient,” the court held.

Noting that the motion to dismiss failed to defuse this line of attack, the court concluded that “[t]he [complaint] does not merely present a bald assertion that the snack chips do not contain potato peels; it includes factual allegations to support this assertion. Plaintiff notes that the only potato-based ingredients in the snack chips are potato starch and potato flakes.”

So – the class action limps along, does it not?

Sort of. After all the torturous close reading engendered by the complaint, the court removed TGIF and Utz from the case. TGIF had simply licensed its trademark to Utz, and Utz was merely the parent company of Inventure, which manufactured and packaged the snacks; therefore, the court concluded, neither company bore any liability for the remaining claim.

A much-reduced class action continues. We’ll let you know what happens when Inventure prepares for battle.