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`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
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`FAEGRE DRINKER BIDDLE & REATH LLP
`Rita Mansuryan (CA Bar No. 323034)
`rita.mansuryan@faegredrinker.com
`1800 Century Park East, Suite 1500
`Los Angeles, California 90067
`Telephone: (310) 203-4000
`Facsimile: (310) 229-1285
`
`Sarah L. Brew (admitted pro hac vice)
`sarah.brew@faegredrinker.com
`Tyler A. Young (admitted pro hac vice)
`tyler.young@faegredrinker.com
`Rory F. Collins (admitted pro hac vice)
`rory.collins@faegredrinker.com
`2200 Wells Fargo Center
`90 South Seventh Street
`Minneapolis, MN 55402
`Phone: (612) 766-7000
`Fax: (612) 766-1600
`
`Counsel for Defendant
`McDonald’s Corporation
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Eugina Harris, individually, and on behalf
`of all those similarly situated,
`Plaintiff,
`
`v.
`McDonald’s Corporation,
`Defendant.
`
`Case No. 3:20-cv-06533-RS
`DEFENDANT MCDONALD’S
`CORPORATION’S NOTICE OF
`MOTION AND MOTION TO
`DISMISS PLAINTIFF’S FIRST
`AMENDED COMPLAINT;
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT
`THEREOF
`
`Date: June 24, 2021
`Time: 1:30 p.m.
`Courtroom: 3, 17th Floor
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`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
`Case No. 3:20-CV-06533-RS
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`FAEGRE DRINKER BIDDLE &
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`NOTICE OF MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that on June 24, 2021 at 1:30 p.m., or as soon thereafter as
`this matter may be heard, at the United States District Court for the Northern District of
`California, in Courtroom 3, located at 450 Golden Gate Avenue, San Francisco, California before
`the Honorable Richard Seeborg, Defendant McDonald’s Corporation will and hereby does move
`for an order dismissing Plaintiff Eugina Harris’s First Amended Complaint (“FAC”).
`This motion is made pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
`Procedure on the grounds that Plaintiff lacks standing to seek injunctive relief and the FAC fails
`to state a claim upon which relief can be granted.
`This motion is based upon this Notice of Motion and Motion to Dismiss, the attached
`Memorandum of Points and Authorities, the reply papers, the pleadings on file, and such other
`evidence and argument as the Court may allow.
`
`Dated: May 7, 2021
`
`
`FAEGRE DRINKER BIDDLE & REATH LL
`
`By:
`
`/s/ Sarah L. Brew
`Sarah L. Brew
`Tyler A. Young
`Rory F. Collins
`Rita Mansuryan
`Attorneys for Defendant
`McDonald’s Corporation
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`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
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`Case 3:20-cv-06533-RS Document 43 Filed 05/07/21 Page 3 of 18
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................................................... 1
`BACKGROUND AND STATEMENT OF FACTS ....................................................................... 2
`ISSUES TO BE DECIDED ............................................................................................................. 4
`LEGAL STANDARD ...................................................................................................................... 4
`ARGUMENT ................................................................................................................................... 5
`I.
`Plaintiff Fails to State A Claim Under the UCL, FAL, or CLRA. .................................... 5
`A. Plaintiff Has Not Plausibly Alleged that Reasonable Consumers Are
`Deceived. .................................................................................................................. 5
`Plaintiff Has Not Plausibly Alleged Economic Injury. ............................................ 8
`B.
`Plaintiff Lacks Standing to Seek Injunctive Relief. ........................................................ 10
`II.
`III. Plaintiff’s Claims Should Be Dismissed with Prejudice. ................................................ 12
`CONCLUSION .............................................................................................................................. 12
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
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`Federal Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .................................................................................................................. 5
`
`Babaian v. Dunkin’ Brands Grp. Inc.,
`No. 17-4890, 2018 U.S. Dist. LEXIS 98673 (C.D. Cal. June 12, 2018) ............................ 9, 10
`
`Barreto v. Westbrae Nat., Inc.,
`2021 WL 76331 (S.D.N.Y. Jan. 7, 2021) .................................................................................. 7
`
`Becerra v. Dr. Pepper/Seven Up, Inc.,
`945 F.3d 1225 (9th Cir. 2019) ................................................................................................... 6
`
`Budhani v. Monster Energy Co.,
`2021 WL 1104988 (S.D.N.Y. Mar. 22, 2021) .......................................................................... 1
`
`Clark v. Westbrae Nat., Inc.,
`2020 WL 7043879 (N.D. Cal. Dec. 1, 2020) ............................................................................ 7
`
`Clark v. Westbrae Natural, Inc.,
`2021 WL 1580827 (N.D. Cal. Apr. 22, 2021) ............................................................ 1, 6, 8, 12
`
`Colella v. Atkins Nutritionals, Inc.,
`348 F. Supp. 3d 120 (E.D.N.Y. 2018) ...................................................................................... 9
`
`Cordes v. Boulder Brands USA, Inc.,
`2018 WL 6714323 (C.D. Cal. Oct. 17, 2018) ......................................................................... 11
`
`Dashnau v. Unilever Mfg. (US), Inc.,
`2021 WL 1163716 (S.D.N.Y. Mar. 26, 2021) .................................................................. 1, 6, 8
`
`Davidson v. Kimberly-Clark Corp.,
`889 F.3d 956 (9th Cir. 2018) ......................................................................................... 9, 10, 11
`
`Ebner v. Fresh, Inc.,
`838 F.3d 958 (9th Cir. 2016) ............................................................................................... 5, 12
`
`Gilchrist v. Joshua,
`2017 WL 2123640 (S.D. Cal. May 16, 2017) ....................................................................... 4, 5
`
`Izquierdo v. Mondelez Int’l, Inc.,
`2016 WL 6459832 (S.D.N.Y. Oct. 26, 2016) ........................................................................... 9
`
`Joslin v. Clif Bar & Co.,
`2019 WL 5690632 (N.D. Cal. Aug. 26, 2019) ........................................................................ 12
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`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
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`Kearns v. Ford Motor Co.,
`567 F.3d 1120 (9th Cir. 2009) ................................................................................................... 5
`
`Myers-Taylor v. Ornua Foods N. Am., Inc.,
`2019 WL 424703 (S.D. Cal. Feb. 4, 2019) ............................................................................... 5
`
`NEI Contracting & Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc.,
`926 F.3d 528 (9th Cir. 2019) ................................................................................................... 10
`
`Pelayo v. Nestle USA, Inc.,
`989 F. Supp. 2d 973 (C.D. Cal. 2013) ................................................................................ 6, 10
`
`Pichardo v. Only What You Need, Inc.,
`2020 WL 6323775 (S.D.N.Y. Oct. 27, 2020) ........................................................... 3, 7, 11, 12
`
`Red v. Kraft Foods, Inc.,
`2012 WL 5504011 (C.D. Cal. Oct. 25, 2012) ........................................................................... 6
`
`Viggiano v. Hansen Nat. Corp.,
`944 F. Supp. 2d 877 (C.D. Cal. 2013) .................................................................................. 7, 8
`
`Workman v. Plum Inc.,
`141 F. Supp. 3d 1032 (N.D. Cal. 2015) .................................................................................... 6
`
`Yothers v. JFC Int’l, Inc.,
`2020 WL 5015262 (N.D. Cal. May 14, 2020) ........................................................................ 11
`
`State Cases
`
`Durell v. Sharp Healthcare,
`183 Cal. App. 4th 1350 (2010) ................................................................................................. 7
`
`Hill v. Roll Int’l Corp.,
`195 Cal. App. 4th 1295 (2011) ................................................................................................. 5
`
`Kwikset Corp. v. Superior Court,
`51 Cal. 4th 310 (2011) .............................................................................................................. 9
`
`Lavie v. Procter & Gamble Co.,
`105 Cal. App. 4th 496 (2003) ............................................................................................... 5, 7
`
`Shaeffer v. Califia Farms, LLC,
`44 Cal. App. 5th 1125 (2020) ................................................................................................... 9
`
`Federal Statutes
`
`15 U.S.C. § 78m .............................................................................................................................. 3
`
`State Statutes
`
`California Consumers Legal Remedies Act, Cal Civ. Code § 1750 et seq. ............................ 4, 5, 9
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`iii
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`False Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq. ............................................ 4, 5, 9
`
`Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. ......................................... 4, 5, 9
`
`Rules
`
`Fed. R. Civ. P. 9(b) ......................................................................................................................... 5
`
`Fed. R. Civ. P. 12(b)(6) ................................................................................................................... 4
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`This case is about McDonald’s “vanilla” soft serve cone (the “Product”)—specifically,
`whether calling it a “Vanilla Cone” misleads consumers into believing that the vanilla flavor
`comes exclusively or predominantly from vanilla beans. The Court previously dismissed these
`claims for two independent reasons: first, because Plaintiff Eugina Harris had not plausibly
`alleged that reasonable consumers would be deceived; and second, because Plaintiff had not
`plausibly alleged an economic injury. (ECF No. 40 at 3-4.)
`Plaintiff’s First Amended Complaint (“FAC,” ECF No. 42), does not cure any of the fatal
`defects of her original pleading. On the reasonable consumer issue, Plaintiff merely added
`allegations that McDonald’s mentions “quality ingredients” in its SEC filings and on its website.
`(FAC ¶¶ 9-12, 48-52.) These cursory allegations do not change the analysis: Plaintiff does not
`allege that she saw or relied on these statements or that reasonable consumers would be aware of
`these statements. Even if reasonable consumers were aware of these statements, Plaintiff alleges
`no facts suggesting they would conclude that “quality ingredients” means “the Vanilla Cone is
`flavored exclusively or predominantly with vanilla beans.” Regarding economic injury, the FAC
`adds only one thing: a conclusory and speculative allegation that the price of the Product would
`drop if Plaintiff won an injunction. (FAC ¶ 89.) This is insufficient to plead economic injury.
`Meanwhile, courts continue to find that similar claims brought by Plaintiff’s counsel fail
`as a matter of law, even when the complaint includes far more detail than Plaintiff’s FAC. For
`example, another court in this district recently dismissed the second amended complaint in Clark
`v. Westbrae Natural, Inc., 2021 WL 1580827, at *2-4 (N.D. Cal. Apr. 22, 2021) (“Clark II”),
`finding that the plaintiff failed to plausibly allege consumer deception, even though the plaintiff
`included allegations about a consumer survey and identified a competing soy milk flavored
`exclusively with vanilla beans—allegations that the FAC does not make. And courts continue to
`dismiss similar claims filed in New York, where the wave of vanilla cases began. See Dashnau v.
`Unilever Mfg. (US), Inc., 2021 WL 1163716, at *6 (S.D.N.Y. Mar. 26, 2021); Budhani v. Monster
`Energy Co., 2021 WL 1104988, at *8 (S.D.N.Y. Mar. 22, 2021).
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`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
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`The FAC fails to state a claim for the same reasons the original complaint failed to state a
`claim. Plaintiff’s claims should be dismissed, this time with prejudice.
`BACKGROUND AND STATEMENT OF FACTS
`The Court granted McDonald’s motion to dismiss the original complaint on March 24,
`2021. (ECF No. 40.) Plaintiff filed her FAC on April 23, 2021. (ECF No. 42.) A redline showing
`the changes made in the FAC is attached as Exhibit A to the Declaration of Sarah Brew.
`Although the FAC, like the original complaint, repeatedly references the Product’s
`“labeling,” McDonald’s soft serve vanilla cone does not have a label. Instead, the Product is
`displayed on some McDonald’s menu boards in restaurants and drive-thru locations and on self-
`order kiosks. The way the Product is presented varies by location. The menu boards in some
`McDonald’s restaurants and drive-thrus do not mention the Product’s flavor at all—they simply
`list “Cone,” along with the price and calories. At other locations, the menu boards list “Vanilla
`Cone.” The FAC includes the same image of a “Vanilla Cone” from a McDonald’s self-order
`kiosk as the original complaint:
`
`(FAC at 12.)
`Plaintiff does not allege that McDonald’s makes any other representations about vanilla
`and the Product—for example, no images of vanilla beans and no statement that the Product is
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`“made with vanilla.” Even consumers who seek out the Product’s ingredient list online will not
`find another reference to vanilla, only “natural flavor.” (Id. at 13 (reproducing the Product’s
`ingredient list as shown on McDonald’s website).)
`She also alleges that McDonald’s “markets its company as a values based company
`focused on ‘quality food’” and “quality ingredients,” but the only examples she points to are
`McDonald’s Securities and Exchange Commission (“SEC”) filings1 and statements on its website
`and in interviews with its executives. (Id. ¶¶ 9-12; 48-52.) She does not allege that she has
`personally seen any of these statements. (See id.; see also id. ¶¶ 82-85 (describing what Plaintiff
`allegedly “read and relied on”).) Nor does she allege that any of these statements mention the
`Product specifically.
`Although Plaintiff alleged in her original complaint that she believed the Product’s vanilla
`flavor was provided “exclusively” by vanilla beans (Compl., ECF No. 1, ¶ 62), she now alleges
`that she thought the vanilla flavor was only “primarily” derived from vanilla beans (FAC ¶ 82).
`She claims that the “Vanilla” in “Vanilla Cone” leads her and other consumers to believe this
`about the Product. (Id. ¶ 8.)
`Plaintiff claims that McDonald’s “vanilla representations” are misleading because,
`according to the purported results of a gas chromatography-mass spectrometry (“GC-MS”)
`analysis commissioned by her counsel, the Product contains added vanillin2 from non-vanilla
`sources. (Id. ¶ 85; see id. ¶¶ 60-80.) Plaintiff does not dispute that the Product contains vanilla—
`in fact, she implicitly concedes that it does. (See id. ¶ 70.) Rather, she complains that the Product
`contains “far less vanilla than consumers expect,” (id. ¶ 6), but notably fails to allege how much
`vanilla consumers would expect in the Product or how much vanilla the Product contains.
`
`
`1 The SEC requires public companies such as McDonald’s to file periodic financial statements
`and other disclosures. See, e.g., 15 U.S.C. §78m. Financial professionals and investors rely on
`SEC filings to make informed decisions when evaluating whether to invest in a company. The
`specific SEC filing that Plaintiff cites in her FAC is McDonald’s 2021 Notice of Annual
`Shareholders’ Meeting and Proxy Statement. (FAC ¶ 10, n.3 (citing
`https://www.sec.gov/Archives/edgar/data/63908/000120677421001039/mcd_courtesy-pdf.pdf).)
`2 Vanillin is the main flavor component of vanilla. Pichardo, 2020 WL 6323775, at *1 n.3.
`Vanillin can be derived from vanilla beans and from other natural sources. (See FAC ¶¶ 71-72.)
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`Plaintiff alleges that she purchased the Product “regularly and consistently” during 2019
`and 2020 based on McDonald’s description of the Product as “Vanilla.” (Id. ¶¶ 19, 22-23.) She
`does not allege how much she paid for the Product, but she claims that the Product “costs
`significantly more per ounce” than other similar products (which she does not identify) that do
`not claim to be “Vanilla.” (Id. ¶ 95.) She also claims that “the market demand and price for [the]
`Product . . . has been artificially and fraudulently inflated” (id. ¶ 89) and that the Product she
`purchased “may have been worth nothing at all” (id. ¶ 91).
` The FAC asserts the same four causes of action as the original complaint: violation of the
`“unlawful” prong of the Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.
`(“UCL”); violation of the “unfair and fraudulent” prong of the UCL; violation of the False
`Advertising Law, Cal. Bus. & Prof. Code § 17500 et seq. (“FAL”); and violation of the California
`Consumers Legal Remedies Act, Cal Civ. Code § 1750 et seq. (“CLRA”). All fail as a matter of
`law for the same reasons they did before.
`ISSUES TO BE DECIDED
`1.
`Should Plaintiff’s claim be dismissed because reasonable consumers would not
`understand “Vanilla” as used to describe McDonald’s soft serve on some menu boards and self-
`order kiosks (e.g. “Vanilla Cone”) to mean that the Product derives its flavor exclusively or
`predominantly from the vanilla plant, such that Plaintiff fails to state a claim under the UCL,
`FAL, and CLRA?
`2.
`Does Plaintiff fail to plausibly allege an economic injury, such that Plaintiff lacks
`statutory standing to pursue claims under the UCL, FAL, and CLRA?
`3.
`If Plaintiff has alleged any actionable claim, does Plaintiff lack standing to seek
`injunctive relief because she fails to plausibly allege an imminent risk of future injury?
`
`LEGAL STANDARD
`To survive a motion to dismiss under Rule 12(b)(6), a complaint must “contain sufficient
`factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Gilchrist v.
`Joshua, 2017 WL 2123640, at *1 (S.D. Cal. May 16, 2017) (quoting Ashcroft v. Iqbal, 556 U.S.
`662, 678 (2009)). Facts indicating the “‘mere possibility of misconduct’. . . fall short of meeting
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`this plausibility standard.” Id. at *2 (quoting Iqbal, 556 U.S. at 678). “Determining whether a
`complaint states a plausible claim for relief . . . requires the reviewing court to draw on its judicial
`experience and common sense.” Iqbal, 556 U.S. at 679 (emphasis added).
`In addition, Rule 9(b)’s heightened requirements apply to consumer protection claims like
`Plaintiff’s that sound in fraud. See Myers-Taylor v. Ornua Foods N. Am., Inc., 2019 WL 424703,
`at *3-4 (S.D. Cal. Feb. 4, 2019) (citing Kearns v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir.
`2009)). Because Plaintiff alleges “a unified course of fraudulent conduct,” her complaint “as a
`whole must satisfy the particularly requirement.” Kearns, 567 F.3d at 1125.
`ARGUMENT
`
`I.
`
`Plaintiff Fails to State A Claim Under the UCL, FAL, or CLRA.
`Each of the claims in the FAC fail as a matter of law for the same two reasons the Court
`dismissed the original complaint. First, Plaintiff has not plausibly alleged that reasonable
`consumers would be deceived by McDonald’s description of the Product as “Vanilla.” Second,
`Plaintiff lacks statutory standing to pursue any of the claims because she has not plausibly alleged
`an economic injury. Each of these issues is an independently sufficient reason to dismiss the
`entire case.
`
`A.
`Plaintiff Has Not Plausibly Alleged that Reasonable Consumers Are Deceived.
`Claims under the UCL, FAL, and CLRA are governed by the “reasonable consumer”
`standard. Ebner v. Fresh, Inc., 838 F.3d 958, 965 (9th Cir. 2016). Under this standard, Plaintiff
`must “show that ‘members of the public are likely to be deceived.’” Id. (quoting Williams v.
`Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008)). This requires more than a “mere
`possibility” that McDonald’s use of the term “Vanilla” on some of its menus “might conceivably
`be misunderstood by some few consumers viewing it in an unreasonable manner.” Id. (quoting
`Lavie v. Procter & Gamble Co., 105 Cal. App. 4th 496, 508 (2003)). Rather, it must be “probable
`that a significant portion of the general consuming public or of targeted consumers, acting
`reasonably in the circumstances, could be misled.” Lavie, 105 Cal. App. 4th at 508 (emphasis
`added); see also Hill v. Roll Int’l Corp., 195 Cal. App. 4th 1295, 1304 (2011) (emphasizing that
`“the standard is not a least sophisticated consumer,” but a reasonable one).
`
`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
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`
`
`
`
`5
`
`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
`Case No. 3:20-CV-06533-RS
`
`

`

`Case 3:20-cv-06533-RS Document 43 Filed 05/07/21 Page 12 of 18
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`Where a court can conclude as a matter of law that members of the public are not likely to
`be deceived, dismissal is appropriate. Pelayo v. Nestle USA, Inc., 989 F. Supp. 2d 973, 978 (C.D.
`Cal. 2013). Accordingly, courts regularly grant motions to dismiss where the alleged consumer
`deception is based on an unreasonable or implausible interpretation of a product’s name or
`description. See, e.g., Becerra v. Dr. Pepper/Seven Up, Inc., 945 F.3d 1225, 1229 (9th Cir. 2019)
`(affirming dismissal because a reasonable consumer would not believe that “diet” soda assists
`weight loss); Workman v. Plum Inc., 141 F. Supp. 3d 1032, 1035 (N.D. Cal. 2015) (dismissing
`claim because a reasonable consumer would not assume that the ingredients pictured on the front
`of the products’ packaging are the most prominent ingredients); Red v. Kraft Foods, Inc., 2012
`WL 5504011, at *3-4 (C.D. Cal. Oct. 25, 2012) (holding that “Vegetable Thins” and “Roasted
`Vegetable Ritz” labeled “made with real vegetables” and with images of vegetables would not
`lead a reasonable consumer to think the product contained a “significant amount of vegetables”).
`The Court concluded that Plaintiff’s original complaint failed to plausibly allege that a
`reasonable consumer would be misled because the complaint “lack[ed] a factual foundation to
`support any determination as to what reasonable consumers do (or do not) believe.” (ECF No. 40
`at 3.) As the Court explained, “in the case of ‘vanilla’—a word that can be used to mean ‘plain’—
`it is not obvious or indisputable what ‘a significant portion of the general consuming public or of
`targeted consumers acting reasonably in the circumstances’ would believe.” (Id.) This conclusion
`was correct, and it is consistent with the line of cases that have dismissed similar “vanilla” claims
`on the pleadings. See, e.g., Clark II, 2021 WL 1580827, at *2-4; Dashnau, 2021 WL 1163716, at
`*5 (collecting cases).
`Nothing in the FAC changes the analysis or renders Plaintiff’s claim plausible. First,
`Plaintiff continues to rely on FDA regulations governing packaged ice cream and alleges that
`these regulations “provide guidance on consumer expectations for ‘vanilla’ products.” (FAC ¶
`38.) But the Court already concluded that those regulations do not apply to this Product—“not
`even . . . indirectly to support an inference as to what consumers are likely to expect from
`McDonald’s use of the term ‘vanilla.’” (ECF No. 40 at 3 n.1.) And Plaintiff’s “new” allegation on
`this point “is only a conclusion; it does not include any facts that plausibly support the inference
`
`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
`
`
`
`
`
`6
`
`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
`Case No. 3:20-CV-06533-RS
`
`

`

`Case 3:20-cv-06533-RS Document 43 Filed 05/07/21 Page 13 of 18
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`Plaintiff wants the Court to draw.” Clark v. Westbrae Nat., Inc., 2020 WL 7043879, at *4 (N.D.
`Cal. Dec. 1, 2020) (“Clark I”) (rejecting similar allegation about relevance of FDA regulations).
`Second, Plaintiff’s new allegation that “Vanilla Cone” implies that the Product is flavored
`“primarily” by vanilla beans (FAC ¶ 8), instead of “only” or “exclusively” as she previously
`alleged (Compl. ¶¶ 6, 62), does not lead to a different result. The flaw in Plaintiff’s claims is that
`she has not alleged facts supporting her conclusory allegations of how a reasonable consumer
`would understand “Vanilla” in this context. Substituting “primarily” for “exclusively” in the FAC
`does nothing to fix this problem. Indeed, courts have reached the same conclusion regardless of
`variations in how Plaintiff’s counsel words this claim. Compare Pichardo v. Only What You
`Need, Inc., 2020 WL 6323775, at *1, 5 (S.D.N.Y. Oct. 27, 2020) (plaintiff failed to plausibly
`allege that reasonable consumers would believe that product’s vanilla flavor is “exclusively”
`sourced from vanilla beans) with Barreto v. Westbrae Nat., Inc., 2021 WL 76331, at *1 (S.D.N.Y.
`Jan. 7, 2021) (same as to allegation that “vanilla” implied that the flavor was “exclusively or
`predominately” from vanilla beans).
`Finally, Plaintiff’s allegations that McDonald’s makes statements about the “quality” of
`its food and ingredients do not support Plaintiff’s theory of how consumers interpret the words
`“Vanilla Cone.” For starters, these alleged statements appear in McDonald’s SEC filings and
`online. Plaintiff does not allege that she herself saw or relied on these alleged statements, let
`alone any facts from which the Court could conclude that reasonable consumers would be aware
`of such statements in SEC filings or that they would rely upon those statements to understand
`what “vanilla” means when used to describe McDonald’s cones. See Lavie, 105 Cal. App. 4th at
`508 (reasonable consumer test asks whether “a significant portion of the general consuming
`public or of targeted consumers, acting reasonably in the circumstances, could be misled”)
`(emphasis added); cf. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1363, (2010) (plaintiff
`lacked standing to challenge representations on website that plaintiff did not allege he ever
`visited).
`Even if consumers were aware of these statements, “quality” lacks a specific meaning and
`is often found to be nonactionable puffery. See Viggiano v. Hansen Nat. Corp., 944 F. Supp. 2d
`
`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
`
`
`
`
`
`7
`
`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
`Case No. 3:20-CV-06533-RS
`
`

`

`Case 3:20-cv-06533-RS Document 43 Filed 05/07/21 Page 14 of 18
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`877, 895 (C.D. Cal. 2013) (collecting cases). And here, Plaintiff has not alleged any facts
`suggesting that a reasonable consumer who saw these statements would (a) connect a generic
`statement about “quality” to this particular Product, and (b) conclude that “quality” means vanilla
`flavor derived exclusively or primarily from vanilla beans. See id. at 895 n.41 (even if “premium”
`constituted an express warranty, plaintiff “allege[d] no facts supporting his conclusory assertion
`that the soda was not ‘premium’ because [defendant] used sucralose and ace-k to sweeten it
`and/or enhance its flavor”).
`Comparing the FAC’s allegations to two other vanilla cases that were recently dismissed
`underscores the deficiencies in the FAC. In Clark II, the plaintiff commissioned a consumer
`survey that purported to support his theory and identified a competing product at a similar price
`point that allegedly was flavored exclusively with vanilla beans. 2021 WL 1580827, at *2-3. The
`court nonetheless concluded that the plaintiff had failed to plausibly allege deception. Id.
`Similarly, the court in Dashnau rejected plaintiff’s consumer deception theory, even though the
`product at issue was labeled as “vanilla bean ice cream,” and the court acknowledged that the
`addition of the word “bean” made the claims “marginally stronger” than in other vanilla cases.
`2021 WL 1163716, at *5. The court nonetheless concluded that “vanilla bean” in context was “a
`representation about the Product’s flavor, rather than a specific claim about the Product’s
`ingredients.” Id. at *6.
`In short, he factual allegations that Plaintiff makes in support of her theory of consumer
`deception are far weaker than the allegations that were found insufficient in Clark II and
`Dashnau. Like her original complaint, the FAC is based on “her own belief and conclusions about
`consumers’ beliefs without additional facts to ‘nudge’ her claim ‘across the line from conceivable
`to plausible.’” (ECF No. 40 at 3 (quoting Twombly, 550 U.S. at 570).) As a result, all the claims
`in the FAC fail as a matter of law and should be dismissed.
`
`B.
`Plaintiff Has Not Plausibly Alleged Economic Injury.
`The FAC also fails to cure the other deficiency the Court identified with the original
`complaint: Plaintiff lacks statutory standing to bring her claims because she has not plausibly
`alleged an economic injury.
`
`FAEGRE DRINKER BIDDLE &
`REATH LLP
`ATTORNEYS AT LAW
`MINNEAPOLIS
`
`
`
`
`
`8
`
`MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
`Case No. 3:20-CV-06533-RS
`
`

`

`Case 3:20-cv-06533-RS Document 43 Filed 05/07/21 Page 15 of