PELMAN v. McDONALD'S CORP

(SAC ¶¶ 556-58, 562-64, 568-70, 574-76, 580-82, 586-88, 592-94, 598-600, 615-17, 621-23, 627-29, 633-35, 639-41, 645-47, 651-53, 657-59; see id. at ¶¶ 674, 676.)

(See Pls.' Mot. for Class Cert. Ex. B ("Barnard Aff.") 3 ("[C]onsumption by individuals beyond two to three times per week of typical McDonald's products . . . can be medically, scientifically isolated and identified to be a significant and contributing cause to an individual's development of obesity, diabetes, and their related illnesses." (emphasis added)); see also id. at 2-3 (relying exclusively on the presumption that Defendant's products are "high in fat, salt, and cholesterol, and low in fiber and certain vitamins"; a study concluding the fat content of a typical McDonald's meal to be approximately 43 percent, compared with the 37 percent average fat intake of U.S. consumers; and a study concluding that regular consumption of products "such as those sold at McDonald's" may lead to "a greater [] increase in insulin resistance, the primary abnormality leading to type 2 diabetes" (emphasis added)).)

In addition, even were there sufficient evidence to conclude that consumption of products high in fat, cholesterol, and salt, and/or containing beef and cheese, entails a generalizable causal link to the development of the medical illnesses allegedly suffered by Plaintiffs, given the widespread availability of such products from many different sources, individualized questions would predominate regarding the extent to which, in each particular Plaintiff's case, it was consumption of Defendant's products, and not the myriad other food products on the market high in fat, cholesterol, and salt, and containing beef and cheese, which initiated the causal reaction.

N.Y. State Restaurant Ass'n v. N.Y. City Bd. of Health, 509 F. Supp. 2d 351 (S.D.N.Y. 2007).

(See also id. at ¶¶ 6 ("Heart disease, stroke, cancer and diabetes . . . are all conditions which are significantly more prevalent among persons who are obese." (emphasis added, citation omitted)), 9 ("According to the Surgeon General of the United States: `For the vast majority of individuals, overweight and obesity result from excess calorie consumption and/or inadequate physical activity.'" (emphasis added) (quoting U.S. Dep't of Health and Human Servs., Office of Surgeon General, Call to Action to Prevent and Decrease Overweight and Obesity (2001))), 10 ("People who are overweight or obese are at increased risk for [certain medical conditions]." (emphasis added)), 14 ("[I]ncreasing weight results from an imbalance between calories consumed (nutrition) and energy expended (physical activity). . . .").)

Compare, e.g., Morrissey v. Nextel Partners, Inc., 895 N.Y.S.2d 580, 587 (N.Y. App. Div. 2010) (reversing lower court's denial of motion for class certification of GBL § 349 claim where claim was based on identical communication from the defendant to all putative class members regarding a fee increase, whose small typeface and inconspicuous location within a billing statement was allegedly materially misleading, because "the particular damages suffered by each class member can be easily computed" as the increase in fee which was allegedly assessed without adequate notice) (generalizable causal link — if the notice of fee increase was misleading, then the damage of incurring the additional fee, which can be easily shown, follows as a matter of course); In re Coordinated Title Ins. Cases, 784 N.Y.S.2d 919 (N.Y. Sup. Ct. 2004) (Table) (holding that common questions predominate where "[t]he question raised in the complaint involves the conduct of the defendants in allegedly overcharging or failing to notify the members of the putative class of the availability of the mandated discounts") (generalizable causal link — if it can be shown that this failure was materially misleading, and that the class members did not receive their discount, it is easily inferred that the reason the class members lost the benefit of the discount is because they were not informed of it).

See also Carnegie v. H R Block, Inc., 703 N.Y.S.2d 27, 29 (N.Y. App. Div. 2000) (decertifying class in GBL § 349 action because "questions of whether each individual was exposed to, and influenced by, the advertising would predominate"); Tegnazian v. Consol. Edison, Inc., 730 N.Y.S.2d 183, 187 (N.Y. Sup. Ct. 2000) (declining to certify class in GBL § 349 action because the case "would require individualized inquiry to ascertain which, if any, of the putative class members were misled by [the defendant]'s advertising, and whether it resulted in any damage[,] [which] inquiry would predominate over any common questions") (citingCarnegie, 703 N.Y.S.2d 27).

See also Cordes Co. Fin. Servs, Inc. v. A.G. Edwards Sons, Inc., 502 F.3d 91, 109 (2d Cir. 2007) ("[The Second Circuit] adopted [] the Ninth Circuit's view that Rule 23(c)(4)[] is available to certify particular issues `regardless of whether the claim as a whole satisfies Rule 23(b)(3)'s predominance requirement.'" (quoting Nassau Cnty., 461 F.3d at 227) (citingValentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996) ("Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)[] and proceed with class treatment of these particular issues."))).

As explained above, the court considers Counts II and III of the SAC to be part of the same claim — the claim that Defendant unlawfully omitted to reveal certain material aspects of the nutritional composition of its products, whether through omissions in its advertising (Count II) or the refusal to provide nutritional pamphlets to consumers (Count III).

Specifically, Plaintiffs list the following distinct representations allegedly made by Defendant: 1) that "only delicious chunks of juicy breast and thigh meat go into Chicken McNuggets" (SAC ¶¶ 118-30); 2) that Defendant's Chicken McNuggets were made with "100 percent chicken" (id. at ¶¶ 131-43); 3) that Defendant's Chicken McNuggets were made from only whole cuts of breast and minced thigh meat (id. at ¶¶ 144-53); 4) "that an average of 109 mg of sodium, less than half a cookbook pinch of salt[,] was placed in [Defendant's] French Fries product" (id. at ¶¶ 154-79); 5) that "sodium [was] down across [Defendant's] menu [of products]" (id. at ¶¶ 180-92); 6) that Defendant's food products consisted of "[m]eat and potatoes[,] [m]ilk and bread[,] 100% pure American beef at least 77.5% lean[,] [r]eal milk in every dairy product[,] wholesome bread from local bakeries[,] [g]ood, basic, nutritious food" (id. at ¶¶ 193-206; see also id. at ¶ 427 (discussing representation that "[m]ost of [Defendant's] menu is made from a few basic natural ingredients — meat, fish, eggs, grain and potatoes")); 7) that Defendant's products consist of "[f]ood that's been the foundation of well balanced diets for generations[] [a]nd will be for generations to come" (id. at ¶¶ 207-20); 8) that Defendant shops where consumers shop, buys brands trusted by consumers, and prepares its products "with the same care as [consumers] do at home" (id. at ¶¶ 221-36; see also id. at ¶¶ 250-63 (discussing additional advertisements representing that Defendant "cook[s] the way [consumers] do" and shares consumers' goals of serving tasty and nutritious meals)); 9) that Defendant's products can "fit comfortably into [the consumer's] well-balanced diet" (id. at ¶¶ 237-49; see also id. at ¶¶ 268 (additional representation that Defendant "enrich[ed] [its] hamburger buns with niacin, iron, thiamine, and riboflavin"); 310 (additional representation that Defendant's products "measure[] up to" guidelines for a healthful diet established by the U.S. Department of Agriculture and Health and Human Services, by "serv[ing] many variations within the basic food groups[,] . . . avoid[ing] too much fat, saturated fat and cholesterol[,] . . . [providing] foods with adequate starch and fiber[,] [and] avoid[ing] too much sugar and soda"); 467-80 (additional representations that Defendant's products can be "consumed three times per day, for breakfast, lunch and dinner, and be considered part of a healthy diet for all consumers"); 496-505 (additional representations that Defendant's Happy Meal product provides "an `excellent' or `good' source of nine or more nutrients, [according to Food and Drug Administration labeling guidelines]")); 10) that, "at McDonald's[,] it's easy to get calcium in almost every meal" (id. at ¶¶ 264-67 (see also id. at ¶¶ 280-90 (additional representation of calcium content in Defendant's hamburger buns and English Muffins)); 11) that Defendant cooks its Chicken McNuggets, Filet-O-Fish, and pies with only "100% cholesterol-free vegetable shortening" (id. at ¶¶ 269, 274; see also id. at ¶¶ 331; 356 (same)); 12) that Defendant's milk shakes contain no artificial preservatives and include 22 percent of a person's recommended daily allowance for protein, 32 percent of the allowance for calcium, and 26 percent of the allowance for riboflavin (id. at ¶¶ 292-305); 13) that Defendant's products are made with "beef that's leaner than the kind of beef most people buy in the supermarket" (id. at ¶¶ 306-25; see also id. at ¶¶ 328-29; 345 (same)); 14) that Defendant does not add additives, fillers, or extenders to its beef products, and that its beef products are comprised of "[s]elected cuts including sirloin, chuck and round steak" (id. at ¶ 330; see also id. at ¶¶ 345, 428 (additional representations regarding lack of additives in Defendant's beef products)); 15) that Defendant's French Fries are cooked in 100 percent vegetable oil (id. at ¶¶ 368, 373, 376-81); 16) that Defendant's McLean Deluxe was 91 percent fat-free (id. at ¶¶ 415-24); 17) that daily consumption of meat products "can make it easier to do things like climb higher and ride [a] bike farther" (id. at ¶¶ 440-49); 18) that Defendant's Fish Filet was made with "`100% cod' [and] with only a pinch of salt added to taste after cooking" (id. at ¶¶ 450-66).
As noted above, Plaintiffs' allegations regarding Defendant's Mighty Kids Meal product (SAC ¶¶ 481-95), as well as the allegations regarding Defendant's representations that its French Fries are "cholesterol-free" (SAC ¶ 369), have been stricken. See supra note 9. In addition, Plaintiffs' allegations regarding "other consumer-oriented statements, advertisements, and press releases" have similarly been stricken, with leave to seek amendment of the SAC to add allegations regarding any additional representations for good cause shown. Id.

See also id. at 445 ("[A] general allegation of deception states a claim under GBL § 349." (citing Blue Cross Blue Shield of N.J., Inc. v. Philip Morris Inc., 178 F. Supp. 2d 198 (E.D.N.Y. 2001), rev'd on other grounds sub nom., Empire Healthchoice, Inc. v. Philip Morris USA, Inc., 383 F.3d 312 (2d Cir. 2004); Gaidon v. Guardian Life Ins. Co. of Am., 725 N.E.2d 598 (N.Y. 1999))). See Blue Cross, 178 F. Supp. 2d at 210 ("[P]laintiff adduced sufficient evidence for a jury to find that defendants engaged in a successful scheme to distort the body of public knowledge. . . ."); id. at 271 ("Proof that each individual subscriber was personally addressed by the defendant was not necessary. The evidence was sufficient to support the conclusion that this fraud caused damage to plaintiff recoverable under section 349."); Gaidon, 725 N.E.2d at 603 (holding "extensive marketing scheme" actionable under GBL § 349).

Id. (citing 2 Newberg on Class Actions § 4:23 ("When a court decides to limit a class action with respect to particular common issues only, such limitation will necessarily afford predominance as to those issues." (citations omitted)) (internal quotation marks and additional citation omitted)). See also supra note 33.
The court notes that there is a circuit split with respect to this issue between the Ninth and Second Circuits, on the one hand, and the Fifth Circuit, on the other. Compare In re Nassau, 461 F.3d at 227; Valentino, 97 F.3d at 1234, with Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996) ("A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial. Reading rule 23(c)(4) as allowing a court to sever issues until the remaining common issue predominates over the remaining individual issues would eviscerate the predominance requirement of rule 23(b)(3); the result would be automatic certification in every case where there is a common issue, a result that could not have been intended.").

As discussed above, see supra notes 5 and 9, the applicable three-year statute of limitation bars the claims of all Plaintiffs except those who had not yet reached the age of majority prior to the three years before filing of this law suit, for whom the statute is tolled until majority is reached. Majority is reached at eighteen years. Therefore, potential plaintiffs have until they are twenty-one years old to bring this claim. Because this action was brought in August 2002, the statute of limitations had run for anyone over the age of twenty-one at that time, but not yet for those individuals who had not yet reached that age, who have three years after the statute started running for them at age eighteen. Accordingly, limiting the putative Issue Class in this regard would ensure that the typicality requirement of Rule 23(a) is met.

Cf. Simon v. Philip Morris, Inc., 200 F.R.D. 21, 29 (E.D.N.Y. 2001) ("Rule 23(c)(4)[] accords district judges the discretion to certify a class action as to particular issues in a manner that treat[s] common things in common and distinguishes the distinguishable, thereby satisfying Rule 23(a)'s requirements of commonality and typicality." (internal quotation and alteration marks and citation omitted)).

See, e.g., Robinson, 267 F.3d at 168 ("[L]itigating the pattern-or-practice liability phase for the class as a whole would both reduce the range of issues in dispute and promote judicial economy."); Charron, ___ F.R.D. at ___, 2010 WL 1752501, at *22 ("Forcing individual Class members to separately and repeatedly litigate the liability questions common to their [] claims would be highly inefficient").

Rule 23(a)'s adequacy of representation requirement also necessitates a finding that "`[Plaintiffs'] attorneys are qualified, experienced and able to conduct the litigation.'" In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir. 2009) (quoting Baffa v. Donaldson, Lufkin Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000)). "On a motion for class certification, the moving party bears the burden of proving that all the requirements of Rule 23 are met." McNeill v. N.Y. City Housing Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989) (citing In re Gulf Oil/Cities Serv. Tender Offer Litig., 112 F.R.D. 383 (S.D.N.Y. 1986)). Plaintiffs have submitted no information to allow the court to make this requisite finding at this time.Compare, e.g., Poddar v. State Bank of India, 235 F.R.D. 592, 596 (S.D.N.Y. 2006) ("The class attorneys' qualifications and experience are [] evidenced by the affidavit they submitted in support of plaintiffs' motion."); Andre H. by Lula H. v. Ambach, 104 F.R.D. 606, 612 (S.D.N.Y. 1985) ("The named plaintiff is represented by the Legal Aid Society. Plaintiff sets forth a number of class actions in which Legal Aid has been involved. The list of cases speaks for itself and certainly supports a finding that the plaintiff can adequately represent the class.").
Further, Rule 23(b)(3) provides that one of the considerations pertinent to the superiority inquiry is that of "the likely difficulties in managing a class action." Fed.R.Civ.P. 23(b)(3)(D). One management difficulty of a class action is "the burden of complying with rule 23's notice requirements." In re Vivendi Universal, S.A., 242 F.R.D. 76, 107 (S.D.N.Y. 2007) (citing 7AA Wright, Miller, Kane, Fed. Prac. Proc. § 1780, at 187-90). Plaintiffs have also failed to submit any information on the basis of which the court could conclude that all members of the putative issue class will be adequately and manageably notified of this action and their right to seek exclusion.Compare id. at 108 ("[P]laintiffs have filed a comprehensive affidavit outlining the effectiveness of [their] proposed method of providing notice [to all putative class members].").

(See, e.g., Pls.' Mem. Supp. Class Cert. 21 (citing studies tending to show that consumption of products from fast food restaurants increases the risk of obesity, but providing no evidence of the existence of young persons who specifically developed "obesity, elevated levels of [LDL], significant or substantial increased factors in the development of coronary heart disease, pediatric diabetes, [and/or] high blood pressure" (SAC ¶¶ 558, 564, 570, 576, 582, 588, 594, 600, 617, 623, 629, 635, 641, 647, 653, 659), after regular consumption of Defendant's food products during the relevant time period).)

The court notes Plaintiffs' request for additional class discovery (Pls.' Mem. Supp. Class Cert. 24), as well as Defendant's argument that Plaintiffs are precluded by Judge Stein's ruling at the February 24, 2009 Pretrial Conference, see supra note 10, from seeking further class discovery. (Letter from Def. to Court (Mar. 31, 2010).) The court concludes that Judge Stein's order — that, because Plaintiffs had fully briefed their motion for class certification before bringing a motion to compel discovery, no further discovery with regard to class certification is warranted (Tr. of Ct. Hearing (Feb. 24, 2009) 32-33) — is the law of this case, and accordingly denies Plaintiffs' request for additional class discovery.