415 F.Supp.3d 476 (S.D.N.Y. 2019), 18 Civ. 3545 (AKH), Marotto v. Kellogg Co.

Docket Nº:No. 18 Civ. 3545 (AKH)
Citation:415 F.Supp.3d 476, 105 Fed.R.Serv.3d 714
Opinion Judge:ALVIN K. HELLERSTEIN, U.S.D.J.:
Party Name:Matthew MAROTTO on behalf of himself, all others similarly situated, and the general public, Plaintiff, v. KELLOGG COMPANY, Kellogg USA Inc., Kellogg Sales Company, Pringles LLC, and Pringles Manufacturing Co., Defendants.
Attorney:John Kerry Weston, Sacks Weston Petrelli Diamond & Millstein LLC, Philadelphia, PA, Alexander Gabriel Cabeceiras, Derek Smith Law Group, PLLC, New York, NY, for Plaintiff. Dean N. Panos, Pro Hac Vice, Jenner & Block, Chicago, IL, Kenneth K. Lee, Alexander Smith, Christina Avedissian Aryafar, Jenn...
Case Date:December 05, 2019
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 476

415 F.Supp.3d 476 (S.D.N.Y. 2019)

105 Fed.R.Serv.3d 714

Matthew MAROTTO on behalf of himself, all others similarly situated, and the general public, Plaintiff,

v.

KELLOGG COMPANY, Kellogg USA Inc., Kellogg Sales Company, Pringles LLC, and Pringles Manufacturing Co., Defendants.

No. 18 Civ. 3545 (AKH)

United States District Court, S.D. New York

December 5, 2019

Page 477

John Kerry Weston, Sacks Weston Petrelli Diamond & Millstein LLC, Philadelphia, PA, Alexander Gabriel Cabeceiras, Derek Smith Law Group, PLLC, New York, NY, for Plaintiff.

Dean N. Panos, Pro Hac Vice, Jenner & Block, Chicago, IL, Kenneth K. Lee, Alexander Smith, Christina Avedissian Aryafar, Jenner & Block LLP, Los Angeles, CA, Elizabeth Austin Edmondson, Jenner & Block LLP, New York, NY, for Defendants.

ORDER DENYING MOTION FOR CLASS CERTIFICATION

ALVIN K. HELLERSTEIN, U.S.D.J.:

Plaintiff Matthew Marotto, a chef with training in molecular gastronomy, filed this action against Defendants Kellogg Company, Kellogg USA Inc., Kellogg Sales Company, Pringles, LLC, and Pringles Manufacturing Co., alleging that Defendants, makers and marketers of Pringles Salt and Vinegar crisps (or, "Pringles"), label Pringles packaging in a way that misled Marotto and other New York consumers into wrongly believing

Page 478

that Pringles contain no artificial ingredients. The Complaint seeks relief under, inter alia, New York deceptive business practices law, N.Y. Gen. Bus. L. § 349, New York false advertising law, id. at § 350, and various common law theories. Plaintiff now moves to certify a class of all persons who bought Pringles in New York on or after April 1, 2012. See ECF No. 39, at 1. Plaintiff’s motion is denied.

Factual Background

Defendants make and market Pringles, the familiar potato crisp snack that comes in a tubular container featuring a mustachioed mascot. See Compl., ECF No. 1, at ¶¶ 1, 17-19.1 Pringles come in several flavors, including the flavor at issue in this matter: "Salt & Vinegar."2 See id. Pringles cost under $3.00 per can. See id. at ¶ 65.

Between April 2012 and the present— the class period proposed by Marotto, see ECF No. 39, at ¶ 1— Pringles were sold under twenty different labels. See ECF No. 49, at ¶ 2. Of these twenty label iterations, four include the text: "No Artificial Flavors":

(Image Omitted)

See id. at ¶¶ 3-5 (square around the language added); ECF No. 49-1; ECF No. 49-2. The parties agree that every version of Pringles labeling lists all of the product’s ingredients.

Plaintiff Marotto attended the French Culinary Institute ("FCI") in Manhattan. Marotto Dep., ECF No. 49-3, at 16:14-15. As he stated at his deposition, FCI is the "number one culinary institute in the United States." Id. at 16:15-16. Marotto graduated from FCI with a focus in "classic pastry arts," and in furtherance of his studies completed courses in "molecular gastronomy," a subject which involves understanding, inter alia, the role of chemical

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processes in cuisine. Id. at 16:19-17:23. During his tutelage at FCI, Marotto had the opportunity to train under distinguished chef-specialists in molecular gastronomy. See id. at 18:10-17.

Since graduating from FCI, Marotto has competed on televised cooking shows, id. at 18:18-20; worked as an executive pastry chef, id. at 18:15-17; been employed in research and development for a number of culinary businesses, id. at 19:23-20:2; and started a "cryogenic ice cream" company that specializes in using liquid nitrogen to rapidly freeze ice cream, id. at 32:19; see https://www.cryocreamcorp.com (last visited Nov. 27, 2019) ("A true avant-garde chef, Matt [Marotto] is renowned for his mastery of molecular gastronomy."). Marotto explained in his testimony that he "wouldn’t have been able to be employed unless [he] had an extreme amount of knowledge" in nutrition and molecular gastronomy. Id. at 20:7-9.

Marotto testified to having eaten Pringles of various varieties "more or less continuously" since childhood. Id. at 53:17-18. During most of the ten years preceding this action, Marotto stated that he became partial to the "Salt & Vinegar" flavor, buying Pringles of this type every two-to-three weeks, see id. at 55:4-15. Marotto testified at some length about the importance to him— particularly in the couple of years immediately predating this action— of purchasing only natural, high-quality ingredients. He stated that "[p]rice isnt really a concern" to him, and that he does not "really care about money," so long as he has "something that...

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