Case 1:19-cv-24755-AHS Document 37 Entered on FLSD Docket 07/20/2020 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 19-24755-SINGHAL
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`Plaintiffs,
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`PHILLIP WILLIAMS, et al.,
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`v.
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`BURGER KING CORPORATION,
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`Defendant.
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`_____________________________________/
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`ORDER
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`THIS CAUSE is before the Court on the Defendant’s Request for Judicial Notice
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`in Support of Burger King Corporation’s Motions to (1) Dismiss Plaintiff’s Complaint
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`Pursuant to Fed. R. Civ. P. 12(b)(6); and (2) Deny Class Certification Pursuant to Fed. R.
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`Civ. P. 23(c)(1)(A) and (d)(1)(D) (“Request for Judicial Notice”) (DE [20]) and the
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`Defendants’ Motion to Dismiss Second Amended Complaint and Deny Class Certification
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`(“Motion to Dismiss”) (DE [25]). This Court heard oral argument from counsel on June
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`30, 2020. Having considered the motion, the record, and being otherwise fully advised in
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`the premises, this Order follows.
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`I.
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`BACKGROUND
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`In the First Amended Complaint (“Complaint”) (DE [24]), Plaintiffs Phillip Williams,
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`William Jones, Michael Roberts, Ali Bey, Christopher McGee, Tiffany Cuthrell, and Marie
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`Venter (collectively “Plaintiffs”) assert Defendant Burger King Corporation (“BKC”)
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`“duped” them. Specifically, Plaintiffs allege they were misled into believing the
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`“Impossible” plant-based patty in Burger King’s “Impossible Whopper” sandwich, supplied
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`by Impossible Foods, Inc., would be flame broiled on a different grill than the one used to
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`cook beef and chicken. Plaintiffs have since dropped the claim that BKC marketed the
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`“Impossible Burger” as vegan.
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`Plaintiffs allege in their Complaint (DE [24]) BKC operates myriad fast food
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`restaurants across the country and is best known for its “Whopper” burgers made with
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`beef. (Compl. (DE [24]), ¶ 24). In April 2019, knowing that there is a growing consumer
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`demand for vegan, vegetarian, and meat-free food options, BKC decided to tap in by
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`creating its “Impossible Whopper,” with a burger patty made from “Impossible” meats. Id.
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`at ¶¶ 5, 25. Plaintiffs bring suit against BKC alleging (1) breach of contract (Count I); (2)
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`violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Count II); (3)
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`violation of New York’s Deceptive Acts or Practices (Count III); (4) violation of New York’s
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`False Advertising Act (Count IV); (5) violation of California’s False Advertising Law (“FAL”)
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`(Count V); (6) violation of the “Unlawful Prong” of the California Unfair Competition Law
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`(“UCL”) (Count VI); (7) violation of the “Fraudulent Prong” of the California Unfair
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`Competition Law (“UCL”) (Count VII); (8) violation of Michigan’s Consumer Protection Act
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`(“MCPA”) (Count VIII); (9) violation of Georgia’s Deceptive and Unfair Trade Practices
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`Act (Count IX); and (10) unjust enrichment (Count X).
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`In the instant motion, BKC argues Plaintiffs do not dispute the “Impossible Burger”
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`is 100% plant-based and Plaintiffs claims cannot meet the “reasonableness” requirement.
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`BKC insists its advertising campaign never promised the “Impossible Burger” would be
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`cooked on a separate surface, and Plaintiffs could not have had an objectively reasonable
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`belief that it would unless specifically requested by a patron when placing an order.
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`Plaintiffs admit they did not ask about the cooking method nor did they request an
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`alternate method of preparation to satisfy their unique dietary requirements.
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`BKC also takes exception to the creation of a class, arguing that Plaintiffs cannot
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`represent a class of all “Impossible Burger” purchasers because each Plaintiff has
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`different personal preferences, and Plaintiffs fail to plausibly assert that all “Impossible
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`Burger” purchasers share their stance. Plaintiffs disagree and claim BKC’s misleading
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`advertising created purchasers where none would have otherwise existed. Plaintiffs also
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`argue it is too early to consider class certification.
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`II.
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`LEGAL STANDARD
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`A. Motion to Dismiss
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`At the pleading stage, a complaint must contain “a short and plain statement of the
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`claim showing the [plaintiff] is entitled to relief.” Fed. R. Civ. P. 8(a). Although Federal
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`Rule of Civil Procedure (“Rule”) 8(a) does not require “detailed factual allegations,” it does
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`require “more than labels and conclusions . . . a formulaic recitation of the cause of action
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`will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion
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`to dismiss, “factual allegations must be enough to raise a right to relief above the
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`speculative level” and must be sufficient “to state a claim for relief that is plausible on its
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`face.” Id. at 555. “A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`In considering a Rule 12(b)(6) motion to dismiss, the court’s review is generally
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`“limited to the four corners of the complaint.” Wilchombev v. TeeVee Toons, Inc., 555
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`F.3d 949, 959 (11th Cir. 2009) (quoting St. George v. Pinellas Cty., 285 F.3d 1334, 1337
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`(11th Cir. 2002)). Courts must review the complaint in the light most favorable to the
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`plaintiff, and it must generally accept the plaintiff’s well-pleaded facts as true. Hishon v.
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`King & Spalding, 467 U.S. 69, 73 (1984); Am. United Life Ins. Co. v. Martinez, 480 F.3d
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`1043, 1057 (11th Cir. 2007). However, pleadings that “are no more than conclusions are
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`not entitled to the assumption of truth. While legal conclusions can provide the framework
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`of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679.
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`B. Class Certification
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`“A class action may be maintained only when it satisfies all the requirements of
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`Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of Rule 23(b).”
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`Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997) (footnotes
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`omitted). Rule 23(a) sets forth the four prerequisites to maintain any claim as a class
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`action, commonly referred to as: (1) numerosity, (2) commonality, (3) typicality, and (4)
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`adequacy of representation. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir.
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`2009); see also Fed. R. Civ. P. 23(a). If the proposed class satisfies the four factors of
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`numerosity, commonality, typicality, and adequacy, as well as the implicit requirement of
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`ascertainability, it must then demonstrate entitlement to class relief under one of the three
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`provisions in Rule 23(b). See Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1279 (11th
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`Cir. 2000). Certifying a class action under Rule 23(b)(3) requires additional findings that
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`“the questions of law or fact common to class members predominate over any questions
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`affecting only individual members, and that a class action is superior to other available
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`methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
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`The burden of satisfying Federal Rule of Civil Procedure 23 is on the party seeking class
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`certification. Hudson v. Delta Air Lines, Inc., 90 F.3d 451, 456 (11th Cir. 1996).
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`III.
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`DISCUSSION
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`A. Count I – Breach of Contract
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`“For a breach of contract claim, Florida law requires the plaintiff to plead and
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`establish: (1) the existence of a contract; (2) a material breach of that contract; and (3)
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`damages resulting from the breach.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272
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`(11th Cir. 2009); see e.g., Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA
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`2008). “To prove the existence of a contract, a plaintiff must plead: (1) offer; (2)
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`acceptance; (3) consideration; and (4) sufficient specification of the essential terms.” Id.
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`(citing St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004) (citing W.R. Townsend
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`Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297, 302 (Fla. 1st DCA 1999))).
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`Here, the parties agree there is a valid contract. The dispute is based on whether
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`such contract is express or implied. “An express contract differs from an implied contract
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`in that “[a]n express contract is one where the intention of the parties and the terms of the
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`agreement are declared or expressed by the parties, in writing or orally, at the time it is
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`entered into, while an implied contract is one not created or evidenced by distinct and
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`explicit language.” Davidson v. Maraj, 609 Fed. Appx. 994, 998 (11th Cir. 2015) (citations
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`omitted). In this case, Burger King made an offer (the ad for the “Impossible Burger”),
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`which Plaintiffs accepted (by ordering the “Impossible Burger”), consideration was
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`exchanged (Plaintiffs’ money for the “Impossible Burger”), and the essential terms were
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`clear. Thus, this Court must conclude the parties had an express contract.
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`Plaintiffs’ argument, however, loses momentum when they claim there was a
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`presumption the “Impossible” patties would be cooked on a different grill than other items
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`sold at Burger King. This is not an essential term of the contract. Furthermore, as Burger
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`King’s slogan has boasted for forty years, Plaintiffs’ could have “Had it [their] way” by
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`requesting a different cooking method, thereby altering the terms of the contract.
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`B. Count II – FDUTPA
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`FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or
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`practices, and unfair or deceptive acts or practices in the conduct of any trade or
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`commerce.” § 501.204(1), Fla. Stat. A complaint states a FDUTPA cause of action if it
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`alleges (1) an unfair practice or deceptive act; (2) causation; and (3) actual damages.
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`See Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1356 (S.D. Fla. 2012). Stated
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`otherwise, the law allows for a plaintiff to recover under FDUTPA if he proves he was
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`injured “by an objectively deceptive act or statement.” State Farm Mut. Auto. Ins. Co. v.
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`Performance Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1316 (S.D. Fla.
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`2017). Here, Plaintiffs’ FDUTPA claim is premised on the fact that the “Impossible
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`Whopper” was cooked on the same grill as meat-containing products. The Complaint
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`(DE [24]) fails to provide any more specific details regarding the preparation of the
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`“Impossible Whopper.”
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`The remainder of Plaintiffs’ consumer fraud claims will be set forth below but
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`analyzed collectively following section I. Each claim rests upon the “reasonable
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`consumer” test also outlined below.
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`C. Count III – New York’s Deceptive Acts or Practices
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`New York General Business Law, N.Y. Bus. Corp. Law § 349 makes unlawful
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`“[d]eceptive acts or practices in the conduct of any business” and creates a private right
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`of action under which a litigant may recover actual damages. NY CLS Gen Bus § 349;
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`see generally Belair Care Ctr., Inc. v. Cool Insuring Agency, Inc., 168 AD3d 1162, 1165–
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`1166, (2019); Benetech, Inc. v. Omni Fin. Group, Inc., 116 AD3d 1190, 1190–119 (2014).
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`As a threshold matter, “[a] claim brought under this statute must be predicated on an act
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`or practice which is consumer-oriented, that is, an act having the potential to affect the
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`public at large.” Elacqua v. Physicians’ Reciprocal Insurers, 52 AD3d 886, 888, 860
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`(2008) (citation omitted). “A cause of action to recover damages pursuant to General
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`Business Law § 349 has three elements: first, that the challenged act or practice was
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`consumer-oriented; second, that it was misleading in a material way; and third, that the
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`plaintiff suffered injury as a result of the deceptive act.” Beneficial Homeowner Serv.
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`Corp. v. Williams, 113 AD3d 713, 714 (2014).
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`D. Count IV – New York’s False Advertising Act
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`New York General Business Law, N.Y. Bus. Corp. Law § 350, states “[f]alse
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`advertising in the conduct of any business, trade or commerce or in the furnishing of any
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`service in this state is hereby declared unlawful.” NY CLS Gen Bus § 350. To establish
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`a claim under either section of this law, a plaintiff must show “(i) that the act or practice
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`was misleading in a material respect, and (ii) that the plaintiff was injured.” Coors Brewing
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`Co. v. Anheuser-Busch Cos., 802 F. Supp. 965, 975 (S.D.N.Y. 1992); see also McDonald
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`v. North Shore Yacht Sales, Inc., 513 N.Y.S.2d 590, 593 (N.Y. Sup. Ct. 1987).
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`E. Count V – California’s False Advertising Law
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`California’s False Advertising Law (FAL), Bus. & Prof. Code, § 17500 et seq., has
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`been accurately described as the major California legislation designed to protect
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`consumers from false or deceptive advertising. See Nationwide Biweekly Admin., Inc. v.
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`Superior Ct., 9 Cal. 5th 279, 305 (2020) (citation omitted). The procedures set forth in
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`the FAL and in California’s unfair competition law (UCL), Bus. & Prof. Code, § 17200 et
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`seq., are in many respects parallel to one another, and the UCL specifically provides that
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`any practice that violates the FAL is also prohibited by the UCL. See Bus. & Prof. Code,
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`§ 17200. California’s FAL prohibits “not only advertising which is false, but also
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`advertising which[,] although true, is either actually misleading or which has a capacity,
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`likelihood or tendency to deceive or confuse the public.” Kasky v. Nike, Inc., 27 Cal. 4th
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`939, 951 (2002). Thus, to state a claim under either the UCL or the false advertising law,
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`based on false advertising or promotional practices, “it is necessary only to show that
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`“members of the public are likely to be deceived.” Id. (quoting Leoni v. State Bar, 39
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`Cal.3d 609, 626 (1985).
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`F. Count VI – Violation of the “Unlawful Prong” of the California Unfair
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`Competition Law
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`The UCL sets out three different kinds of business acts or practices that may
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`constitute unfair competition: the unlawful, the unfair, and the fraudulent. See Cal. Bus.
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`Prof. Code § 17500 et seq. A private person has standing to bring an action under the
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`California Unfair Competition Law, Bus. & Prof. Code, § 17200 et seq., only if he or she
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`has suffered injury in fact and has lost money or property because of the unfair
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`competition. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350, 1360–61 (2010). A
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`private plaintiff must make a twofold showing: he or she must demonstrate injury in fact,
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`and a loss of money or property caused by unfair competition. Id. “An unlawful business
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`practice under [Business and Professions Code] section 17200 is an act or practice,
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`committed pursuant to business activity, that is at the same time forbidden by law.” Id.
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`(citations omitted).
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`G. Count VII – Violation of the “Fraudulent Prong” of the California Unfair
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`Competition Law
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`A UCL claim based on the fraudulent prong can be made not only on
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`representations that deceive because they are untrue, but also those which despite some
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`level of accuracy still tend to mislead or deceive. “A perfectly true statement couched in
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`such a manner that it is likely to mislead or deceive the consumer, such as by failure to
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`disclose other relevant information, is actionable under the UCL.” Morgan v. AT&T
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`Wireless Servs., Inc., 177 Cal. App. 4th 1235, 1255 (2009) (citations omitted).
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`H. Count VIII – Michigan’s Consumer Protection Act (“MCPA”)
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`The Michigan Consumer Protection Act (MCPA) prohibits unfair, unconscionable,
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`or deceptive methods, acts, or practices in the conduct of trade or commerce. See Mich.
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`Comp. Laws Ann. § 445.903. “The MCPA is much broader than the common law tort of
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`fraud, covering not only deceptive practices but also unfair and unconscionable conduct.”
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`Date v. Sony Elecs., Inc., 2010 WL 3702599 (E.D. Mich. Sep. 16, 2010). It applies only
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`to purchases by consumers and does not apply to purchases that are primarily for
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`business purposes. See Nedschroef Detroit Corp. v. Bemas Enters. LLC, 106 F. Supp.
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`3d 874, 887 (E.D. Mich. 2015) (citations omitted). The MCPA prohibits making an
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`omission of fact that tends to mislead or deceive any consumer, but only if the omitted
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`fact could not reasonably be known by that consumer. Zine v. Chrysler Corp., 236 Mich.
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`App. 261, 283–84 (1999).
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`I. Count IX – Georgia’s Deceptive and Unfair Trade Practices Act
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`The stated intent of the Georgia Fair Business Practices Act, O.C.G.A. § 10-1-390
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`et seq., is to protect the public from acts and practices which are injurious to consumers,
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`not to provide an additional remedy for private wrongs which do not and could not affect
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`the consuming public generally. Henderson v. Gandy, 270 Ga. App. 827, 829 (2004)
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`(citations omitted). The scope of the Georgia Fair Business Practices Act, O.C.G.A. §
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`10-1-390 et seq., is limited to acts in the conduct of consumer transactions and consumer
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`acts or practices in trade or commerce. Id. at 829–30. O.C.G.A. § 10-1-392 (a) (3),
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`defines “consumer acts or practices” as “acts or practices intended to encourage
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`consumer transactions,” and defines “trade” and “commerce” as “the advertising,
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`distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services,
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`or any property, tangible or intangible, real, personal, or mixed, or any other article,
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`commodity, or thing of value wherever situated and shall include any trade or commerce
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`directly or indirectly affecting the people of the state.” OCGA § 10-1-392 (a) (2.1).
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`PLAINTIFFS’ CONSUMER FRAUD CLAIMS
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`Plaintiffs’ counts II through IX are governed by the “reasonable consumer” test.
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`Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citations omitted).
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`“Under the reasonable consumer standard, [Plaintiffs] must show that members of the
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`public are likely to be deceived.” Id. (citations omitted); see also Ebner v. Fresh, Inc., 838
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`F.3d 958, 965 (9th Cir. 2016). “The Florida Supreme Court has noted that ‘deception
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`occurs if there is a representation, omission, or practice that is likely to mislead the
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`consumer acting reasonably in the circumstances, to the consumer’s detriment.’” Zlotnick
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`v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (citation omitted). “This
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`standard requires a showing of ‘probable, not possible, deception” that is “likely to cause
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`injury to a reasonable relying consumer.’” Id. (citation omitted); see also Ebner, 838 F.3d
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`at 965 (requiring more than a mere possibility that Burger King’s advertisement “might
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`conceivably be misunderstood by some few consumers viewing it in an unreasonable
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`manner.”).
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`Plaintiffs argue Burger King’s advertisement promised more than a non-meat patty.
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`Further, Plaintiffs argue it is too early to make such a determination at this stage of the
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`proceedings. This Court cannot agree. Burger King promised a non-meat patty and
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`delivered with the “Impossible Burger.”
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`J. Count X – Unjust Enrichment
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`“A claim for unjust enrichment is an equitable claim, based on a legal fiction created
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`by courts to imply a “contract” as a matter of law.” Tooltrend, Inc. v. CMT Utensili, SRL,
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`198 F.3d 802, 805 (11th Cir. 1999). “Liability in unjust enrichment has in principle nothing
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`to do with fault. It has to do with wealth being in one person’s hands when it should be in
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`another person’s.” Guyana Tel. & Tel. Co. v. Melbourne Int’l Comms., Ltd., 329 F.3d
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`1241, 1245 n.3 (11th Cir. 2003). The doctrine applies only where (1) the plaintiff conferred
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`a benefit on the defendant, who had knowledge of the benefit; (2) the defendant
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`voluntarily accepted and retained the benefit; and (3) under the circumstances, it would
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`be inequitable for the defendant to retain the benefit without paying for it. See Shands
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`Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So. 2d 1222, 1227 (Fla. 1st DCA
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`2005).
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`This Court must dismiss Plaintiffs’ claim for unjust enrichment with prejudice
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`because the existence of a contractual relationship between the parties typically
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`precludes an unjust enrichment claim arising out of a contract. See White Holding Co.,
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`Ltd. Liab. Co. v. Martin Marietta Materials, Inc., 423 Fed. Appx. 943, 946 (11th Cir. 2011).
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`Furthermore, Burger King gave adequate consideration to Plaintiffs for the benefit
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`conferred (i.e., the “Impossible Whopper” in exchange for the price).
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`K. Defendant’s Motion to Deny Class Certification
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`“At an early practicable time after a person sues or is sued as a class
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`representative, the court must determine by order whether to certify the action as a class
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`action.” Fed. R. Civ. P. 23(c)(1)(A). However, dismissal of class allegations at the
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`pleading stage “is an extreme remedy appropriate only where a defendant demonstrates
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`from the face of the complaint that it will be impossible to certify the classes alleged by
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`the plaintiff regardless of the facts the plaintiff may be able to prove.” Lawson v. Life of
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`the S. Ins., Co., 286 F.R.D. 689, 695 (M.D. Ga. 2012) (citations omitted). “Failure to prove
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`any of the four Rule 23(a) requirements and at least one of the alternative requirements
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`of Rule 23(b) precludes class certification.” Id. at 696 (citations omitted).
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`As an initial matter, “[c]onsidering whether questions of law or fact common to
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`class members predominately begins, of course, with the elements of the underlying
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`cause of action.” Local 703, I.B. of T. Grocery & Food Emps. Welfare Fund v. Regions
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`Fin. Corp., 762 F.3d 1248, 1253 (11th Cir. 2014). Plaintiffs argue it is too soon for this
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`Court to consider whether they satisfy Rule 23. Defendant disagrees and argues Plaintiffs
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`claims are too individualized to support class certification. This Court agrees.
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`Accordingly, it is hereby
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`ORDERED AND ADJUDGED that the Defendant’s Request for Judicial Notice in
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`Support of Burger King Corporation’s Motions to (1) Dismiss Plaintiff’s Complaint
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`Pursuant to Fed. R. Civ. P. 12(b)(6); and (2) Deny Class Certification Pursuant to Fed. R.
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`Civ. P. 23(c)(1)(A) and (d)(1)(D) (DE [20]) is GRANTED. The Defendants’ Motion to
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`Dismiss Second Amended Complaint and Deny Class Certification (DE [25]) is
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`GRANTED. Plaintiffs’ claims for breach of contract and consumer fraud (Counts I through
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`IX) are DISMISSED WITHOUT PREJUDICE and Plaintiffs claim for unjust enrichment
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`(Count X) is DISMISSED WITH PREJUDICE. Further, as stated on the record, the
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`Plaintiff’s request for class certification under Rule 23(b)(3) is DISMISSED WITHOUT
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`PREJUDICE. Plaintiff may file a motion for leave to amend its complaint by July 27,
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`2020.
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`DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 20th day of
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`July 2020.
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`Copies furnished to counsel of record via CM/ECF
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