🍔 FAST FOOD

Court’s Full↗

These cases move fast (not as fast as the food but you know what we mean). Last week, a false advertising case against Wendy’s and McDonalds was dismissed after the Court. To cut to the beef of the order, the burger chains advertisements were found to not be misleading.

Not familiar with this one? Let’s dig in.

In 2022, Wendy’s and McDonalds were sued for “false and misleading advertising concerning the size of the beef patty and/or the amount of ingredients or toppings contained in said menu item.” And:

The complaint asserted claims for violation of state consumer protection laws, breach of contract, negligent misrepresentation, and unjust enrichment and was jam packed (we live for these food puns) with pictures, screenshots, and tweets like this:

This lawsuit may look a bit familiar to you. The reason why is it’s just a slice of the false advertising litigation pie (see e.g. Burger King and Taco Bell). In fact, the Burger King case made news a few months ago for having their motion to dismiss denied by the court.

That’s not what happened here. The Court, reviewing the complaint in the light most favorable to the plaintiff, dismissed the complaint for four reasons:

1. Plaintiff did not adequately alleged that he was injured by Defendants’ advertisements, since he does not allege that he ever saw them;
2. Plaintiff failed to allege that the advertisements were materially misleading;
3. Plaintiff failed to allege the material terms of his purported contracts with Defendants;
4. Plaintiff  failed to allege that Defendants engaged in any unfair practices, and, even if he had, it would be duplicative of his claims under the General Business Law.

Will this dismissal mark an end to the food false advertising cases? Doubt it (especially with the others still lingering). People are hungry to take these companies on.

🙊 DISCLOSURE

California Dreaming (about Discovery)↗

Get ready to disclose. On September 30th, California’s legislature passed the Civil Discovery Act (effective January 1, 2024), which authorizes the court to order parties to provide initial disclosures to the other parties within 45 days, with the added bonus of requiring all insurance policies and contracts potentially on the hook.

SO WHAT CHANGES?

The Civil Discovery Act does the following:

First, each party appearing in a civil action must provide initial disclosures to other parties to the action within 60 days of a demand, unless modified by the parties’ stipulation.

Second, a party making initial disclosures must disclose all persons or records that are relevant to the subject matter of the action, except as specified, and disclose information and records regarding insurance policies or contracts that would make a person or insurance company liable to satisfy a judgment.

Third, a party who has made, or responded to, a demand for initial disclosures may propound supplemental demands, as specified.

And fourth, initial disclosures must be verified via the written declaration of the party or the party’s authorized representative, or signed by the party’s counsel. (Section 1 specifies that any party not represented by counsel is exempt from these requirements.)

WHY DO I CARE?

On the whole, this Act tightens initial disclosure processes and cracks down on lack of good faith efforts to keep the discovery process chugging along. It also requires parties (and their in-house legal departments) to ready to disclose information and records at the onset of litigation. As we keep tabs on this emerging legislation, we’ll be sure to keep you updated on what we discover.