Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 1 of 35 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`Justin Chimienti,
`
`Case No.: 1:22-cv-02880
`
`Plaintiff,
`
`JURY TRIAL DEMANDED
`
`vs.
`
`Wendy’s International, LLC, and
`McDonald’s Corporation.
`
`Defendants.
`
`CLASS ACTION COMPLAINT
`
`Plaintiff Justin Chimienti, by and through his undersigned counsel, upon personal
`
`knowledge as to himself and upon information and belief as to all other matters, allege as
`
`follows:
`
`1.
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`Plaintiff brings this action against defendants Wendy’s International, LLC
`
`(“Wendy’s”), and McDonald’s Corporation (“McDonald’s), (together at times referred to
`
`herein as “Defendants”), on behalf of himself and all other similarly situated individuals who
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`purchased a Wendy’s or McDonald’s menu item based on false and misleading advertising
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`concerning the size of the beef patty and/or the amount of ingredients or toppings contained in
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`said menu item.
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`Justin Chimienti,
`
`Case No.: 1:22-cv-02880
`
`Plaintiff,
`
`JURY TRIAL DEMANDED
`
`vs.
`
`Wendy’s International, LLC, and
`McDonald’s Corporation.
`
`Defendants.
`
`CLASS ACTION COMPLAINT
`
`Plaintiff Justin Chimienti, by and through his undersigned counsel, upon personal
`
`knowledge as to himself and upon information and belief as to all other matters, allege as
`
`follows:
`
`1.
`
`Plaintiff brings this action against defendants Wendy’s International, LLC
`
`(“Wendy’s”), and McDonald’s Corporation (“McDonald’s), (together at times referred to
`
`herein as “Defendants”), on behalf of himself and all other similarly situated individuals who
`
`purchased a Wendy’s or McDonald’s menu item based on false and misleading advertising
`
`concerning the size of the beef patty and/or the amount of ingredients or toppings contained in
`
`said menu item.
`
`1
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 2 of 35 PageID #: 2
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`FACTUAL ALLEGATIONS
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`2.
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`This is a class action against Wendy’s and McDonald’s for unfair and deceptive
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`trade practices concerning the sale of certain falsely advertised menu items.
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`Wendy’s Materially Overstates the Size of Its Beef Patties and Toppings
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`3.
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`Wendy’s advertises its burgers as large burgers compared to competitors and
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`containing thick and juicy beef patties stuffed with toppings to make it appear that the burgers
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`are substantially larger in size than the actual burger served to customers.
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`4.
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`For example, Wendy’s currently represents
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`that
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`the Bourbon Bacon
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`Cheeseburger looks as follows on its website and store menu ordering boards:
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`See
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`https://order.wendys.com/product/31298/bourbon-bacon-cheeseburger.
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`2
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 3 of 35 PageID #: 3
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`5.
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` The commercial for the Bourbon Bacon Cheeseburger displays the burger as
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`follows:
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`See
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`https://youtu.be/hFyOUTS3JBU?t=2.
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`6.
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`However, the Bourbon Bacon Cheeseburger that is regularly served to customers
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`
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`looks as follows:
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`3
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 4 of 35 PageID #: 4
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`See
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`https://youtu.be/HfI0LoEzR7g?t=162.
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`
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`7.
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`Wendy’s materially overstates the amount of toppings on the Bourbon Bacon
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`Cheeseburger and materially overstates the thickness of the beef patty contained therein.
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`8.
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`The beef patties that Wendy’s uses for its advertisements are not fully cooked to
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`make it appear that they are approximately 15-20% larger than the beef patties that are actually
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`served to customers.
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`9.
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`10.
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`In general, meat shrinks 25% when cooked.
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`A food stylist for Wendy’s has admitted that she tricks and deceives customers
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`by using undercooked patties in burger advertisements.
`
`11.
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`“Food stylist Ellie Stern says she prefers to use burgers that are undercooked in
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`photos. That ensures a big, plump patty, whereas fully cooked burgers tend to shrink and look
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`less appetizing.” See https://www.moneytalksnews.com/how-they-make-fast-food-look-good/.
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`12.
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`According to Ellie Stern’s website, her recent clients include Wendy’s and
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`McDonald’s. See https://www.elliestern.com/about/.
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`13. Wendy’s materially overstates the amount of toppings and the size of the beef
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`patties for nearly every menu item in its current advertisements, including the Big Bacon
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`Cheddar Cheeseburger, the Big Bacon Cheddar Cheeseburger Double, the Big Bacon Cheddar
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`Cheeseburger Triple, the Bourbon Bacon Cheeseburger, the Bourbon Bacon Cheeseburger
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`Double, the Bourbon Bacon Cheeseburger Triple, Dave’s Single, Dave’s Double, Dave’s
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`Triple, the Baconator, the Son of Baconator, the Big Bacon Classic, the Big Bacon Classic
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`Double, the Big Bacon Classic Triple, the Bacon Double Stack, the Jr. Bacon Cheeseburger,
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`4
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 5 of 35 PageID #: 5
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`the Jr. Cheeseburger Deluxe, the Jr. Cheeseburger, and the Double Stack (each of these items
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`are referred to at times herein as an “Overstated Wendy’s Menu Item”).
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`14.
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`For example, the current advertisement for the Dave’s Single burger on Wendy’s
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`website and store menu ordering boards compared to the actual burger served to customers is
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`as follows:
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`ACTUAL DAVE’S SINGLE
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`CURRENT ADVERTISEMENT
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`
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`See
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`https://youtu.be/Q-leCr5bjYU?t=86;
`https://order.wendys.com/product/30000/daves-single.
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`15. Many food reviewers have recently criticized Wendy’s for serving smaller menu
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`items than advertised.
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`16.
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`For example, a food reviewer, with a Youtube channel named Natalino Reviews,
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`compared the Bourbon Bacon Cheeseburger to the advertisement and stated “this don’t look
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`like the picture….Why is this burger so small?....It looks so big in the picture.” See
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`https://youtu.be/HfI0LoEzR7g?t=106.
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`5
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 6 of 35 PageID #: 6
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`17.
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`Natalino Reviews posted the following side-by-side comparison of the Bourbon
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`Bacon cheeseburger as advertised to the actual burger received:
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`
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`See
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`18.
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`https://youtu.be/HfI0LoEzR7g?t=163.
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`A food reviewer, with a Youtube channel named Hogs Fan 4 Life, reviewed the
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`Bourbon Bacon Cheeseburger and stated that “when you go order…you look at the sign and
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`think it’s going to be a big burger, don’t expect that, because it’s going to be a small burger
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`folks. I am just telling you straight up what to expect so you won’t be disappointed like me.”
`
`See https://youtu.be/GaQHcGPcGG0?t=85.
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`19.
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`A food reviewer, with a Youtube channel named SomethingNew, reviewed the
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`Dave’s Single burger and stated “I don’t know what’s going on here guys, um, they don’t look
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`anything like the marketing.” See https://youtu.be/tb3AO-hRqeM?t=131.
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`20.
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`A food reviewer, with a Youtube channel named Adaryl Fisher Reviews,
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`reviewed the Dave’s single burger compared to the advertisement and stated “…this is worth a
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`dollar…this is not no five-dollar burger.” See https://youtu.be/Q-leCr5bjYU?t=104.
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`6
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 7 of 35 PageID #: 7
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`21.
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`A food reviewer, with a Youtube channel named Central Mass Food Reviews,
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`reviewed the Bourbon Bacon Cheeseburger and stated “the size of this thing is very
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`underwhelming…[and]…the picture looks like this huge over stacked thing….” See
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`https://youtu.be/6DspTZAsA68?t=208. Central Mass Food Reviews posted the following
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`thumbnail for its Bourbon Bacon Cheeseburger review:
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`
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`22.
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` A food reviewer, with a Youtube channel named Keely, reviewed the Bourbon
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`Bacon Cheeseburger and stated “[i]t’s looking a little sad a bit, not like the picture honestly.”
`
`See https://youtu.be/YjU00F2TH9k?t=10.
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`23.
`
`In an article published by Insider.com, titled “I spent over $120 to try every
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`burger at Wendy’s, and the best is a classic”, the author reviewed the Double Stack burger and
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`stated “First Impression: In real life, this burger looked a lot smaller than the picture….” See
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`https://www.insider.com/eating-all-of-the-burgers-on-wendys-menu-review-photos.
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`7
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 8 of 35 PageID #: 8
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`24.
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`Several consumers posted complaints on Twitter complaining about the size of
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`several menu items. Some examples include the following:
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`8
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`© zakiya Taylor
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`@Wendys. Damn Wendy where's the beef? My
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 9 of 35 PageID #: 9
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`sandwich is dry and small. Nothing like the picture.
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`9
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 10 of 35 PageID #: 10
`Case 2:22-cv-02880-HG Documenti Filed 05/17/22 Page 10 of 35 PagelD #: 10
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`:
`,
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`Kate Alstadt
`@katealstadt
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`Expectation vs. reality with the Bourbon Burger at
`@Wendys .
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`
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`
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`I rae| , ‘
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`
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`1 Like
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`Start an order
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`710 cal
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`Nutrition
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`8:08 PM- Jun 25, 2021 - Twitter for iPhone
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`10
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 11 of 35 PageID #: 11
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`Case 2:22-cv-02880-HG Documenti1 Filed 05/17/22 Page 11 of 35 PagelD #: 11
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`JayFiggy | Content Creator
`Mar @ayFig225
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`@Wendysthis is supposed to be your new Bourbon
`Bacon Burger??! This is not worth $9. Y’all tripping.
`
`Look at this...
`2:43 PM - Nov 28, 2021 - Twitter for iPhone
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`
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`
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`11
`
`
`
`it
`A
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`IC White
`(2 |Cole manVi
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`,
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`@Wendys This literally looks nothing like the bourbon
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 12 of 35 PageID #: 12
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`Case 2:22-cv-02880-HG Documenti Filed 05/17/22 Page 12 of 35 PagelD #: 12
`bacon burger pic? Y’all played me. Not cool.
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`12
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 13 of 35 PageID #: 13
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`Case 2:22-cv-02880-HG Documenti1 Filed 05/17/22 Page 13 of 35 PagelD #: 13
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`wie AngryLarryDFS
`Naa’39@AngryLarryDFS
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`$10 bourbon bacon cheeseburger meal where the
`burger isn't even as thick as nugget sauce. @Wendys
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`Where's the beef?
`5:19 PM- Jun 11, 2021 - Twitter for Android
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`13
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 14 of 35 PageID #: 14
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`=
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`=
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`Case 2:22-cv-02880-HG Documenti Filed 05/17/22 Page 14 of 35 PagelD #: 14
`@& Brynell Ballard jr
`= @JaeBallard
`Luuuucccccccyyyyy.....Ju got some splaining to do
`....915 dollars huh E You guys better promotethis
`bourbon burger the way it really is @Wendys
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`ee”
`10:15 PM - May 19, 2021 - Twitter for iPhone
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`14
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 15 of 35 PageID #: 15
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`cryptorabbit.eth
`@Rickbi415
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`Damn @Wendys whatis this crap? Try you new
`bourbon bacon cheeseburger meal that cost me $11,
`get home andthe burger lookslike it should be in the
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`9:39 PM - May 9, 2021 - Twitter for Android
`dollar menu.... you can do better than that
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`15
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 16 of 35 PageID #: 16
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`Stephanie
`=)
`SS9 @AutheticChibi
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`sauce andIt’s cold as well. eee
`as.
`
`eee
`
`ae
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`@Wendys big bacon cheddar cheeseburger is sad. And
`when | called your supervisor at my local Wendy's did
`not seem to really care. Sad since | generally enjoy
`Wendy's. Cheddar cheese sauce that Is not really
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`Pf b
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`2:05 PM - Sep 1, 2021 - Twitter for iPhone
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`E
`2eee
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`Justin Van Zuiden
`Gsticardinalsb4
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`This is my Jr Bacon Cheeseburger from @Wendys
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`What you see is the entire sandwich
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`+.
`Pin!
`tin te!
`Ae q
`OP Alire
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`1
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 18 of 35 PageID #: 18
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`McDonald’s Materially Overstates the Size of Its Beef Patties
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`25. McDonald’s also materially overstates the size of its beef patties using the same
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`deceptive practice as Wendy’s.
`
`26.
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`The beef patties that McDonald’s uses for its advertisements are not fully cooked
`
`to make it appear that they are approximately 15-20% larger than the beef patties that are
`
`actually served to customers.
`
`27.
`
`For example, the current advertisement for the Cheeseburger on McDonald’s
`
`website and store menu ordering boards looks as follows:
`
`https://www.mcdonalds.com/us/en-us/product/cheeseburger.html.
`
`However, the actual cheeseburger that customers receive looks as follows:
`
`
`
`18
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`See
`
`
`28.
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`
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 19 of 35 PageID #: 19
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`
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`See
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`29.
`
`https://www.insider.com/the-best-and-worst-burgers-at-mcdonalds-ranked-
`2019-11.
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`As can be seen from above, the advertisement for the McDonald’s Cheeseburger
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`shows the beef patty extending all the way to the edge of the bun.
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`30.
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`However, the actual cheeseburger that a customer receives has a materially
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`smaller beef patty that comes nowhere near the edge of the bun and cannot even be seen in the
`
`above photograph.
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`31.
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`A Youtube video from a McDonald’s employee further shows how much the
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`Cheeseburger beef patty shrinks after it is fully cooked:
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`
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`19
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 20 of 35 PageID #: 20
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`
`
`See
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`https://youtu.be/hC74VQEGzik?t=129.
`
`
`32.
`
`A food stylist for McDonald’s has admitted that she tricks and deceives
`
`customers by using undercooked patties in burger advertisements.
`
`33.
`
`“Food stylist Ellie Stern says she prefers to use burgers that are undercooked in
`
`photos. That ensures a big, plump patty, whereas fully cooked burgers tend to shrink and look
`
`less appetizing.” See https://www.moneytalksnews.com/how-they-make-fast-food-look-good/.
`
`34.
`
`According to Ellie Stern’s website, her recent clients include Wendy’s and
`
`McDonald’s. See https://www.elliestern.com/about/.
`
`
`
`20
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`
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 21 of 35 PageID #: 21
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`35.
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`In general, meat shrinks 25% when cooked, depending upon the amount of fat
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`and liquid contained in the meat.
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`36. McDonald’s only sears the outside of the patty it uses for its advertisements, but
`
`it does not fully cook the patty so to deceive customers.
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`37. McDonald’s materially overstates the size of the beef patties for nearly every
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`menu item in its current advertisements, including the Big Mac, the Quarter Pounder, the
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`McDouble, the Cheeseburger, the Double Cheeseburger, and the Hamburger (each of these
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`items are referred to at times herein as an “Overstated McDonald’s Menu Item”).
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`38.
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`Defendants’ advertisements for its burger and menu items are unfair and
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`financially damaging consumers as they are receiving food that is much lower in value than
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`what is being promised.
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`39.
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`Defendants’ actions are especially concerning now that inflation, food, and meat
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`prices are very high and many consumers, especially lower income consumers, are struggling
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`financially.
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`40.
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`Defendants’ promise to consumers of a large portion of food with their purchase
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`are also causing consumers to come to, or order from, Defendants’ restaurants and make
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`purchases that they would not have otherwise made.
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`41.
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`Defendants are also unfairly competing with burger restaurants that more fairly
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`advertise the size of their burgers and menu items.
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`42.
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`Defendants advertise larger portions of food to steer consumers to their
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`restaurants for their meals and away from competitors that more fairly advertise the size of their
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`burgers and menu items, unfairly diverting millions of dollars in sales that would have gone to
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`competitors.
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`21
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 22 of 35 PageID #: 22
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`43.
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`Plaintiff, on behalf of himself and all others similarly-situated, seek to end
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`Defendants’ unfair and materially misleading advertising and request the following: 1)
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`monetary damages fully compensating all individuals who were deceived by Defendants as a
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`result of purchasing an overstated menu item; 2) injunctive relief requiring Defendants to
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`provide corrected advertising and/or to discontinue the overstated menu items; and 3) such other
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`relief as the Court deems necessary and appropriate.
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`THE PARTIES
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`44.
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`Plaintiff Justin Chimienti is a resident of the state of New York. During the
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`Class Period (defined below), Mr. Chimienti purchased a Bourbon Bacon Cheeseburger and a
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`Big Bacon Cheddar Cheeseburger at a Wendy’s store located in the state of New York, within
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`the Court’s district. During the Class Period (defined below), Mr. Chimienti also purchased a
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`Big Mac and a cheeseburger at a McDonald’s store located in the state of New York, within the
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`Court’s district. Mr. Chimienti expected the burgers that he purchased to be similar in size to
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`the pictures of the burgers in Defendants’ advertisements and on Defendants’ store menu
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`ordering boards. However, the size of the burgers that Mr. Chimienti received were much
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`smaller than advertised and he was financially damaged as a result.
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`45.
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`Defendant Wendy’s International, LLC, is an Ohio limited liability company,
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`with its headquarters located in Dublin, Ohio. Wendy’s conducts business, directly or
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`indirectly, in this state under the name Wendy’s.
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`46.
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`Defendant McDonald’s Corporation is a Delaware Corporation, with its
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`headquarters located in Chicago, Illinois. McDonald’s conducts business, directly or indirectly,
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`in this state under the name McDonald’s.
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`22
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`JURISDICTION AND VENUE
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`47.
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`This Court has original diversity jurisdiction over this action under the Class
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`Action Fairness Act, 28 U.S.C. § 1332(d)(2) (“CAFA”). Plaintiff is a citizen of the State of
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`New York and Defendant Wendy’s is a citizen of the State of Ohio and is headquartered with
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`its principal place of business in the state of Ohio. Defendant McDonald’s is a citizen of the
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`State of Delaware and is headquartered with its principal place of business in the state of Illinois.
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`The matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and
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`costs, and this is a class action in which the number of members of the proposed class is not
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`less than 100.
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`48.
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`In addition, this Court has diversity jurisdiction over Plaintiff’s state law claims
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`pursuant to 28 U.S. C. § 1332(a). The matter in controversy exceeds the sum or value of
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`$75,000, exclusive of interest and costs, and certain members of the proposed class are citizens
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`of states different from the states in which Defendants are citizens.
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`49.
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`Venue is proper pursuant to 28 U.S.C. § 1391. A substantial part of the events
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`or omissions giving rise to Plaintiff’s claims occurred in this judicial district. Further,
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`Defendants reside in this judicial district for purposes of § 1391. Also, Defendants have used
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`the laws within, and has done substantial business in, this judicial district in that they have
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`promoted, marketed, distributed, and sold the products at issue in this judicial district. Finally,
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`there is personal jurisdiction over Defendants in this judicial district.
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`CLASS ACTION ALLEGATIONS
`
`50.
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`Plaintiff brings this action pursuant to Federal Rules of Civil Procedure 23(a)
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`and 23(b)(2) and (b)(3) on behalf of the following class:
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`
`
`23
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`
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`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 24 of 35 PageID #: 24
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`All persons or entities in the United States who purchased an Overstated
`Wendy’s Menu Item or an Overstated McDonald’s Menu Item between May
`1, 2016 (the “Class Period”), and the date of the final disposition of this
`action, and/or such class or subclass as the Court may deem appropriate (the
`“Class”).
`
`51.
`
`Plaintiff reserves the right to amend the definition of the Class if discovery and
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`further investigation reveals that the Class should be expanded or otherwise modified.
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`52.
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`53.
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`Plaintiff reserves the right to establish sub-classes as appropriate.
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`This action is brought and properly may be maintained as a class action under
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`the provisions of Federal Rules of Civil Procedure 23(a)(l)-(4) and 23(b)(2) and (b)(3), and
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`satisfies the requirements thereof.
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`54.
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`There is a well-defined community of interest among members of the Class, and
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`the disposition of the claims of these members of the Class in a single action will provide
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`substantial benefits to all parties and to the Court.
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`55.
`
`The members of the Class are so numerous that joinder of all members of the
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`Class is impracticable. At this time, Plaintiff believes that the Class includes thousands of
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`members. Therefore, the Class is sufficiently numerous that joinder of all members of the Class
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`in a single action is impracticable under Federal Rule of Civil Procedure Rule 23(a)(l), and the
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`resolution of their claims through the procedure of a class action will be of benefit to the parties
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`and the Court.
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`56.
`
`Plaintiff’s claims are typical of the claims of the members of the Class whom he
`
`seeks to represent because Plaintiff and each member of the Class has been subjected to the
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`same deceptive and improper practices by Defendants and have been damaged in the same
`
`manner.
`
`
`
`24
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 25 of 35 PageID #: 25
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`57.
`
`Plaintiff will fairly and adequately represent and protect the interests of the
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`members of the Class as required by Federal Rule of Civil Procedure Rule 23(a)(4). Plaintiff
`
`has no interests that are adverse to those of the members of the Class that he seeks to
`
`represent. Plaintiff is committed to the vigorous prosecution of this action and, to that end,
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`Plaintiff has retained counsel that is competent and experienced in handling complex class
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`action litigation on behalf of consumers.
`
`58.
`
`A class action is superior to all other available methods of the fair and efficient
`
`adjudication of the claims asserted in this Complaint under Federal Rule of Civil Procedure
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`23(b)(3) because:
`
`a. The expense and burden of individual litigation would not be economically
`
`feasible for members of the Class to seek to redress their claims other than
`
`through the procedure of a class action.
`
`b. If separate actions were brought by individual members of the Class, the
`
`resulting multiplicity of lawsuits would cause members to seek to redress
`
`their claims other than through the procedure of a class action; and
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`c. Absent a class action, Defendants likely would retain the benefits of their
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`wrongdoing, and there would be a failure of justice.
`
`59.
`
`Common questions of law and fact exist as to the members of the Class, as
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`required by Federal Rule of Civil Procedure 23(a)(2), and predominate over any questions that
`
`affect individual members of the Class within the meaning of Federal Rule of Civil Procedure
`
`23(b)(3).
`
`60.
`
`The common questions of fact include, but are not limited to, the following:
`
`
`
`25
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 26 of 35 PageID #: 26
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`a. Whether the nationwide practice by Defendants of selling falsely advertised
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`menu items violates the applicable consumer protection statutes;
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`b. Whether Defendants engaged in unlawful, unfair, misleading, or deceptive
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`business acts or practices;
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`c. Whether Defendants engaged in consumer fraud, deceptive trade practices,
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`or other unlawful acts;
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`d. Whether Defendants made any negligent misrepresentations;
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`e. Whether Defendants were unjustly enriched; and
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`f. Whether Plaintiff and members of the Class are entitled to an award of
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`reasonable attorneys’ fees, pre-judgment interest, and costs of this suit.
`
`61.
`
`In the alternative, this action is certifiable under the provisions of Federal Rule
`
`of Civil Procedure 23(b)(2) because Defendants have acted or refused to act on grounds
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`generally applicable to the Class, thereby making appropriate final injunctive relief or
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`corresponding declaratory relief with respect to the Class as a whole and necessitating that any
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`such relief be extended to members of the Class on a mandatory, class-wide basis.
`
`62.
`
`Plaintiff is not aware of any difficulty that will be encountered in the
`
`management of this litigation that would preclude its maintenance as a class action.
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`COUNT I
`Violation of State Consumer Protection Laws
`
`Plaintiff incorporates by reference the allegations in every paragraph of this
`
`63.
`
`complaint.
`
`
`
`26
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 27 of 35 PageID #: 27
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`64.
`
`Plaintiff brings this claim on his own behalf and on behalf of all other persons
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`or entities who purchased an Overstated Wendy’s Menu Item or an Overstated McDonald’s
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`Menu Item based on false representations as alleged herein of said products.
`
`65.
`
`Plaintiff and each member of the Class is a consumer, purchaser or other person
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`entitled to the protection of the consumer protection laws of the state in which he/she purchased
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`an Overstated Wendy’s Menu Item or an Overstated McDonald’s Menu Item.
`
`66.
`
`The consumer protection laws of the state in which Plaintiff and each member
`
`of the Class who purchased an Overstated Wendy’s Menu Item or an Overstated McDonald’s
`
`Menu Item declare that unfair or deceptive acts or practices in the conduct of trade or commerce
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`are unlawful.
`
`67.
`
`Each of the fifty states and the District of Columbia have enacted statutes
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`designed to protect consumers against unfair, deceptive, fraudulent and unconscionable trade
`
`and business practices and false advertising. These statutes are:
`
`a. Alabama Deceptive Trade Practices Act, Ala. Statues Ann. §§ 8-19-1, et
`
`seq.;
`
`b. Alaska Unfair Trade Practices and Consumer Protection Act, Ak. Code §
`
`45.50.471, et seq.;
`
`c. Arizona Consumer Fraud Act, Arizona Revised Statutes, §§ 44-1521, et seq.;
`
`d. Arkansas Deceptive Trade Practices Act, Ark. Code § 4-88-101, et seq.;
`
`e. California Consumer Legal Remedies Act, Cal. Civ. Code § 1750, et seq.,
`
`and California’s Unfair Competition Law, Cal. Bus. & Prof Code § 17200,
`
`et seq.;
`
`f. Colorado Consumer Protection Act, Colo. Rev. Stat. § 6-1-101, et seq.;
`
`
`
`27
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 28 of 35 PageID #: 28
`
`g. Connecticut Unfair Trade Practices Act, Conn. Gen. Stat § 42-110a, et seq.;
`
`h. Delaware Deceptive Trade Practices Act, 6 Del. Code § 2511, et seq.;
`
`i. District of Columbia Consumer Protection Procedures Act, D.C. Code § 28
`
`3901, et seq.;
`
`j. Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. § 501.201,
`
`et seq.;
`
`k. Georgia Fair Business Practices Act, § 10-1-390 et seq.;
`
`l. Hawaii Unfair and Deceptive Practices Act, Hawaii Revised Statues § 480
`
`1, et seq., and Hawaii Uniform Deceptive Trade Practices Act, Hawaii
`
`Revised Statutes § 481A-l, et seq.;
`
`m. Idaho Consumer Protection Act, Idaho Code § 48-601, et seq.;
`
`n. Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS §
`
`505/1, et seq.;
`
`o. Indiana Deceptive Consumer Sales Act, Indiana Code Ann. §§ 24-5-0.5-0.1,
`
`et seq.;
`
`p. Iowa Consumer Fraud Act, Iowa Code §§ 714.16, et seq.;
`
`q. Kansas Consumer Protection Act, Kan. Stat. Ann §§ 50 626, et seq.;
`
`r. Kentucky Consumer Protection Act, Ky. Rev. Stat. Ann. §§ 367.110, et seq.,
`
`and the Kentucky Unfair Trade Practices Act, Ky. Rev. Stat. Ann §§
`
`365.020, et seq.;
`
`s. Louisiana Unfair Trade Practices and Consumer Protection Law, La. Rev.
`
`Stat. Ann. §§ 51:1401, et seq.;
`
`
`
`28
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 29 of 35 PageID #: 29
`
`t. Maine Unfair Trade Practices Act, 5 Me. Rev. Stat. § 205A, et seq., and
`
`Maine Uniform Deceptive Trade Practices Act, Me. Rev. Stat. Ann. 10, §
`
`1211, et seq.;
`
`u. Maryland Consumer Protection Act, Md. Com. Law Code § 13-101, et seq.;
`
`v. Massachusetts Unfair and Deceptive Practices Act, Mass. Gen. Laws ch.
`
`93A;
`
`w. Michigan Consumer Protection Act, §§ 445.901, et seq.;
`
`x. Minnesota Prevention of Consumer Fraud Act, Minn. Stat. §§ 325F.68, et
`
`seq.; and Minnesota Uniform Deceptive Trade Practices Act, Minn. Stat. §
`
`325D.43, et seq.;
`
`y. Mississippi Consumer Protection Act, Miss. Code Ann. §§ 75-24-1, et seq.;
`
`z. Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.010, et seq.;
`
`aa. Montana Unfair Trade Practices and Consumer Protection Act, Mont. Code
`
`§30-14-101, et seq.;
`
`bb. Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59 1601, et seq., and
`
`the Nebraska Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. § 87-
`
`301, et seq.;
`
`cc. Nevada Trade Regulation and Practices Act, Nev. Rev. Stat. §§ 598.0903, et
`
`seq.;
`
`dd. New Hampshire Consumer Protection Act, N.H. Rev. Stat.§ 358-A:l, et seq.;
`
`ee. New Jersey Consumer Fraud Act, N.J. Stat. Ann. §§ 56:8 1, et seq.;
`
`ff. New Mexico Unfair Practices Act, N.M. Stat. Ann.§§ 57 12 1, et seq.;
`
`
`
`29
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 30 of 35 PageID #: 30
`
`gg. New York Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law§§ 349, et
`
`seq.;
`
`hh. North Dakota Consumer Fraud Act, N.D. Cent. Code §§ 51 15 01, et seq.;
`
`ii. North Carolina Unfair and Deceptive Trade Practices Act, North Carolina
`
`General Statutes §§ 75-1, et seq.;
`
`jj. Ohio Deceptive Trade Practices Act, Ohio Rev. Code. Ann. §§ 4165.01. et
`
`seq.;
`
`kk. Oklahoma Consumer Protection Act, Okla. Stat. 15 § 751, et seq.;
`
`ll. Oregon Unfair Trade Practices Act, Rev. Stat § 646.605, et seq.;
`
`mm. Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73
`
`Penn. Stat. Ann. §§ 201-1, et seq.;
`
`nn. Rhode Island Unfair Trade Practices And Consumer Protection Act, R.I.
`
`Gen. Laws § 6-13.1-1, et seq.;
`
`oo. South Carolina Unfair Trade Practices Act, S.C. Code Laws § 39-5-10, et
`
`seq.;
`
`pp. South Dakota’s Deceptive Trade Practices and Consumer Protection Law,
`
`S.D. Codified Laws §§ 37 24 1, et seq.;
`
`qq. Tennessee Trade Practices Act, Tennessee Code Annotated §§ 47-25-101, et
`
`seq.;
`
`rr. Texas Stat. Ann. §§ 17.41, et seq., Texas Deceptive Trade Practices Act;
`
`ss. Utah Unfair Practices Act, Utah Code Ann. §§ 13-5-1, et seq.;
`
`tt. Vermont Consumer Fraud Act, Vt. Stat. Ann. tit. 9, § 2451, et seq.;
`
`uu. Virginia Consumer Protection Act, Virginia Code Ann. §§ 59.1-196, et seq.;
`
`
`
`30
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 31 of 35 PageID #: 31
`
`vv. Washington Consumer Fraud Act, Wash. Rev. Code § 19.86.010, et seq.;
`
`ww. West Virginia Consumer Credit and Protection Act, West Virginia Code
`
`§ 46A-6-101, et seq.;
`
`xx. Wisconsin Deceptive Trade Practices Act, Wis. Stat. §§ 100.18, et seq.;
`
`yy. Wyoming Consumer Protection Act, Wyoming Stat. Ann. §§ 40-12-101, et
`
`seq.
`
`68.
`
`The Overstated Wendy’s Menu Items and Overstated McDonald’s Menu Items
`
`marketed and sold by Defendants constitute products to which these consumer protection laws
`
`apply.
`
`69.
`
`Defendants violated the above stated consumer protection laws by their
`
`deceptive practices and Plaintiff and Class members were damaged as a result, the exact amount
`
`to be determined at trial.
`
`COUNT II
`Breach of Contract
`
`70.
`
`Plaintiff incorporates by reference the allegations in every paragraph of this
`
`complaint.
`
`71.
`
`Defendants, through their advertising in store and online, offered Overstated
`
`Wendy’s Menu Items and Overstated McDonald’s Menu Items based on the materially false
`
`and misleading advertisements described above.
`
`72.
`
`Plaintiff and numerous other customers purchased said Overstated Wendy’s
`
`Menu Items and Overstated McDonald’s Menu Items based on Defendants’ representations.
`
`
`
`31
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 32 of 35 PageID #: 32
`
`73.
`
`Defendants breached their sales contracts with Plaintiff and similarly situated
`
`customers who purchased an Overstated Wendy’s Menu Item or an Overstated McDonald’s
`
`Menu Item.
`
`74.
`
`Defendants failed to disclose that the Overstated Wendy’s Menu Items and
`
`Overstated McDonald’s Menu Items were materially smaller than advertised.
`
`75.
`
`As a result of Defendants’ breach of contract, Plaintiff and similar purchasers of
`
`an Overstated Wendy’s Menu Item or an Overstated McDonald’s Menu Item suffered damages,
`
`the exact amount to be determined at trial.
`
`COUNT III
`Negligent Misrepresentation
`
`Plaintiff incorporates by reference the allegations in every paragraph of this
`
`76.
`
`complaint.
`
`77.
`
`Defendants, directly or through their agents and employees, made false
`
`representations, concealments, and nondisclosures to Plaintiff and members of the Class.
`
`78.
`
`Defendants, through their advertising in store and online, offered Overstated
`
`Wendy’s Menu Items and Overstated McDonald’s Menu Items based on the materially false
`
`and misleading advertisements described above.
`
`79.
`
`Defendants made and intended the misrepresentations to induce the reliance of
`
`Plaintiff and members of the Class to purchase an Overstated Wendy’s Menu Item or an
`
`Overstated McDonald’s Menu Item.
`
`80.
`
`Plaintiff and numerous other customers purchased an Overstated Wendy’s Menu
`
`Item or an Overstated McDonald’s Menu Items based on Defendants’ representations.
`
`
`
`32
`
`
`
`Case 2:22-cv-02880-HG Document 1 Filed 05/17/22 Page 33 of 35 PageID #: 33
`
`81.
`
` Defendants failed to disclose that the Overstated Wendy’s Menu Items and
`
`Overstated McDonald’s Menu Items were materially smaller than advertised.
`
`82.
`
`In m
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