Warren v. Stop & Shop Supermarket, LLC

• Decision Date: 16 March 2022
• Docket Number: 20 Civ. 8718 (NSR)
• Citation: 592 F.Supp.3d 268
• Parties: Kari WARREN, individually and on behalf of all others similarly situated, Plaintiff, v. The STOP & SHOP SUPERMARKET, LLC, Defendant.
• Court: U.S. District Court — Southern District of New York

592 F.Supp.3d 268

Kari WARREN, individually and on behalf of all others similarly situated, Plaintiff,

v.The STOP & SHOP SUPERMARKET, LLC, Defendant.

No. 20 Civ. 8718 (NSR)

United States District Court, S.D. New York.

Signed March 16, 2022

Spencer Sheehan, Sheehan & Associates, P.C., Great Neck, NY, for Plaintiff.

Sarah L. Brew, Emily Zambrana, Rory Collins, Tyler Young, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, Lucas Michelen, U.S. Equal Employment Opportunity Commission Tampa Field Office, Tampa, FL, for Defendant.

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge:

This putative class action alleges that Defendant The Stop & Shop Supermarket LLC misrepresented to consumers the extent to which its "Graham Crackers – Honey" from its Stop & Shop brand ("the Product") is made mainly from whole grains, as well as sweetened and flavored only or predominantly from honey. (Am. Compl. at 1–13, ECF No. 17.) Plaintiff Kari Warren, individually and on behalf of others similarly situated, brings this action against Defendant asserting claims for violations of New York's General Business Law §§ 349 and 350, negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, violation of the Magnuson Moss Warranty Act, fraud, and unjust enrichment. (Id. at 13–18.) Presently pending before the Court is Defendant's motion to dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 18.) For the following reasons, the Court GRANTS IN PART, DENIES IN PART Defendant's motion to dismiss.

BACKGROUND

I. Factual Background

The following facts are derived from the Amended Complaint and are taken as true and constructed in the light most favorable to Plaintiff for the purposes of this motion.

Defendant manufactures, distributes, markets, labels, and sells crackers purporting to be sweetened primarily with honey and made mainly from whole grains, as depicted in the image below:

(Am. Compl. ¶¶ 1, 3.) The label also states that the Product's ingredients include:

INGREDIENTS: ENRICHED FLOUR (WHEAT FLOUR, NIACIN, REDUCED IRON, THIAMIN, MONONITRATE, RIBOFLAVIN, FOLIC ACID ), GRAHAM FLOUR (WHOLE GRAIN WHEAR FLOUR), SUGAR, CANOLA AND/OR SOYBEAN AND/OR PALM OIL, HONEY, CONTAINS 2% OR LESS OF SALT, BAKING SODA, SOY LECITHIN, CALCIUM PHOSPHATE (LEAVENING), ARTIFICIAL FLAVOR, SODIUM SULFITE.

(Id. ¶ 23.)

Plaintiff alleges the Product's label is misleading because: first, the Product is sweetened primarily with sugar and contains a miniscule amount of honey; second, it is neither exclusively nor predominantly flavored from honey; and third, it is predominantly made with enriched flour and not graham flour. (Id. ¶¶ 4, 23, 34–37, 42–43.) Specifically, she claims that the Product's ingredients panel, which lists ingredients in descending order of predominance, reveal that the Product predominantly contains "enriched flour" and "sugar" over "graham flour," and "honey," respectively. (Id. ¶¶ 23–24, 42–43.)

Plaintiff further claims that under federal regulations, the Product's packaging is misleading because it fails to disclose that the Product contains artificial flavoring that simulates the taste of honey, as well as the percentage of honey content in the Product. (Id. ¶¶ 32–33, 63–65.) Plaintiff similarly claims that under federal regulations and guidance, the Product's packaging is misleading because the label "Graham Crackers" claims to be entirely or predominantly made with "graham flour," an alternative name for "whole wheat flour," which in turn could be construed to represent that it comprises of "100 percent whole grain" when it in fact does not. (Id. ¶¶ 46–48, 59, 63–64.) She also claims the Product's packaging fails to disclose the percentage of graham flour content in the Product. (Id. ¶ 65.)

In sum, Plaintiff claims that Defendant's branding and packaging of the Product is designed to, and does, deceive, mislead, and defraud consumers. (Id. ¶ 68.) She also claims that Defendant sold more of the Product and at higher prices than it would have in the absence of this misconduct, resulting in additional profits at the expense of consumers. (Id. ¶ 69.) Particularly, Plaintiff claims that as a result of the false and misleading representations, Defendant sold the Product at a premium price, approximately no less than $3.29 per box of 14.4 oz, excluding tax, compared to other similar products represented in a non-misleading way, and higher than it would be sold absent the misleading representations and omissions. (Id. ¶ 73.)

Plaintiff finally alleges that she purchased the Product numerous times during 2018, 2019, and 2020, at Defendant's locations, including 180 N. Main St, New City, NY 10956 and 32 S. Middletown Rd, Nanuet, NY 10954. (Id. ¶ 85.) She claims to be among a class of consumers who were deceived by and relied upon the Product's deceptive labeling, and bought the Product at or exceeding the price of $3.29 expecting it would have a non-de minimis amount of whole grain and honey. (Id. ¶¶ 86–87.) Plaintiff further claims that she would not have paid as much for the Product absent Defendant's false and misleading statements and omissions. (Id. ¶ 88.)

II. Procedural Background

On October 19, 2020, Plaintiff filed the original operative class action complaint (Compl., ECF No. 1.) On March 12, 2021, Defendant filed a letter seeking leave to file a motion to dismiss, which also stated the grounds on which Defendant would move for dismissal. (ECF No. 14.) Five days later, Plaintiff requested an extension of time to file an amended complaint that would address the deficiencies set forth in Defendant's letter and obliviate the need for a motion to dismiss, which the Court subsequently granted. (ECF Nos. 15 & 16.) The Court also granted Defendant leave to file an answer within 30 days of Plaintiff filing her amended complaint or to serve a motion to dismiss (ECF No. 16.) On April 18, 2021, Plaintiff filed her Amended Complaint on behalf of all purchasers of the Product who reside in New York, asserting claims for (1) violation of New York General Business Law §§ 349 and 350 ; (2) breach of express warranty; (3) breach of implied warranty of merchantability; (4) violation of the Magnuson Moss Warranty Act; (5) negligent misrepresentation; (6) fraud; and (7) unjust enrichment. (Am. Compl., ECF No. 17.) As relief, Plaintiff seeks both monetary damages and injunctive relief that would require Defendant to correct the Product's allegedly misleading label. (Id. )

On July 6, 2021, the parties filed their respective briefing on the instant motion: Defendant its notice of motion (ECF No. 18), memorandum in support ("Motion," ECF No. 19) with an accompanying declaration with exhibits (Brew Decl., ECF No. 21), and reply ("Reply," ECF No. 22); and Plaintiff her response in opposition ("Response in Opposition," ECF No. 20).

LEGAL STANDARD

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss, a complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Mere "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action will not do"; rather, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In applying these principles, the Court may consider facts alleged in the complaint and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (internal quotation marks and citation omitted).

DISCUSSION

Plaintiff asserts claims against Defendant for (1) violations of New York General Business Law ("GBL") §§ 349 and 350, (2) negligent misrepresentation, (3) breach of express warranty, (4) breach of implied warranty of merchantability, (5) violation of the Magnuson Moss Warranty Act ("MMWA"), (6) fraud, and (7) unjust enrichment. (See Am. Compl. at 13–18.) Defendant seeks to dismiss all claims based on two grounds, including: (1) failure to state a claim; and (2) federal preemption. (See Mot. at 13–34.) The Court addresses Plaintiff's claims in that order.

I. New York General Business Law Sections 349 and 350

Defendant argues that Plaintiff fails to assert a plausible claim under GBL §§ 349 and 350 by alleging that the Product's packaging is misleading because reasonable consumers would understand that "graham crackers" refers to the type of food the Product contains, not that it is predominantly made from whole grain flour. Defendant also argues that a reasonable consumer would understand that "honey" merely refers to its flavor, and not an ingredient or its predominant sweetener. (Mot. at 19–27.) After due consideration, the Court agrees with Defendant with respect to Plaintiff's allegations on the Product's "honey" label, but it disagrees with respect to her allegations on the Product's "graham crackers" label.

GBL § 349 involves unlawful deceptive acts and practices, while § 350 involves unlawful false advertising. "The standard for recovery under [§] 350, while specific to false advertising, is otherwise identical to [§] 349." Denenberg v. Rosen , 71 A.D.3d 187, 897 N.Y.S.2d 391, 396 (2010) (quoting Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 324 n.1, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002) ). The elements of a cause of action under both §§ 349 and 350 are that: "(1) the challenged transaction was ‘consumer-oriented’; (2) defendant engaged in deceptive or materially misleading acts or practices; and (3) plaintiff was injured by...