Court denies chain’s motion to dismiss

Blueberry Bombshell

Bartosz Grabowski’s world was rocked.

In early December 2016, Grabowski entered a Dunkin’ Donuts in Chicago, Illinois and purchased a glazed blueberry donut. Grabowski consumed said donut, presumably enjoyed it and went on his way.

We don’t know where or how he learned that the blueberry-flavored ingredient in his Dunkin’ Donut donut was not, in fact, blueberries, but something else entirely. We don’t know how emotional or distraught he was. All we have is one stoic sentence in the complaint that opened his class action suit: “After Plaintiff learned that the Blueberry Products do not contain blueberry, he ceased purchasing and consuming the Products, and retained counsel.”

In Plain Sight

Grabowski filed his suit in the Northern District of Illinois, Eastern Division, in July 2017. He alleged that the Dunkin’ blueberry products – its Blueberry Butternut, Blueberry Crumb Cake, and Glazed Blueberry donuts – did not include blueberries at all but rather sophisticated man-made imitations of blueberries that went so far as to mimic the size and shape of the fruit.

He claimed that he would never have purchased the product if he understood it did not contain genuine blueberries – a fact it was impossible to know because there was no ingredient list provided in the store where they were sold. Moreover, Grabowski shared, Dunkin’ Donuts actually used genuine blueberries in its blueberry muffin, which was presented in the same display rack as the fake-blueberry donuts, and uses the same blueberry tag.

Grabowski sued for damages under the Illinois Consumer Fraud and Deceptive Business Practices Act, and leveled charges including common law fraud, intentional misrepresentation and negligent misrepresentation.

The Takeaway

Dunkin’s recent motion to dismiss was denied almost in its entirety by the court on Dec. 7, 2017.

A common theme struck by the court in its decision was that the case law cited by Dunkin’ did not apply to the current case on several counts because the cases involved claims dealing mostly with product packaging. For instance, Dunkin’ cited Williams v. Gerber Prod. Co. In this case, the plaintiffs were complaining about packaging that read “fruit juice” and contained images of fruit but did not contain actual fruit juice from the depicted fruit.

The court waved off this and other cases cited by Dunkin’ because there was no product packaging involved in Grabowski’s allegations. Since the blueberry products were unpackaged and presented in the same display with products containing real blueberries, precedent involving the prominence of certain words or disclosure information on packaging was irrelevant. Likewise, the court gave short shrift to Dunkin’s insistence that ingredient lists that are available online were sufficient to alert Grabowski to the fake blueberries in his donut.