Mantikas ex rel. Situated v. Kellogg Co., Docket No. 17-2011

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLEVAL, Circuit Judge
Citation910 F.3d 633
Parties Kristen MANTIKAS, Kristin Burns, and Linda Castle, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants, v. KELLOGG COMPANY, Defendant-Appellee.
Docket NumberDocket No. 17-2011,August Term, 2017
Decision Date11 December 2018

910 F.3d 633

Kristen MANTIKAS, Kristin Burns, and Linda Castle, Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellants,
v.
KELLOGG COMPANY, Defendant-Appellee.

Docket No. 17-2011
August Term, 2017

United States Court of Appeals, Second Circuit.

Submitted: May 4, 2018
Decided: December 11, 2018


Michael R. Reese, George V. Granade, Reese LLP, New York, N.Y., for Plaintiffs-Appellants.

Kenneth K. Lee, Christina A. Aryafar, Jenner & Block LLP, Los Angeles, CA, Dean N. Panos, Jenner & Block LLP, Chicago, IL, Kelly M. Morrison, Jenner & Block LLP, Washington D.C. for Defendant-Appellee

Before: LEVAL, SACK, and DRONEY, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiffs Kristen Mantikas, Kristin Burns, and Linda Castle ("Plaintiffs") appeal from a judgment entered on August 21, 2017 in the United States District Court for the Eastern District of New York (Sandra J. Feuerstein, J. ), granting Defendant Kellogg Company’s motion to dismiss Plaintiffs’ complaint for failure to state a claim, as provided in Fed. R. Civ. P. 12(b)(6). Plaintiffs are residents of New York and California who purchased Defendant’s Cheez-It crackers that were labeled "whole grain" or "made with whole grain." They filed a class action complaint (the "Complaint") against Defendant alleging that the whole grain labels were false and misleading in violation of New York and California consumer protection laws. They alleged that such labeling would cause a reasonable consumer to believe that the grain in whole grain Cheez-Its was predominantly whole grain, when, in fact, it was not. The primary grain content was enriched white flour. The district court dismissed the Complaint pursuant to Rule 12(b)(6). It held that the whole grain labels would not mislead a reasonable consumer, and that Plaintiffs therefore failed to state a claim.

We conclude that the district court erred in dismissing Plaintiffs’ complaint. Reviewed under the proper standards for a Rule 12(b)(6) motion, the Complaint plausibly alleged that a reasonable consumer would be misled by Defendant’s whole grain labels to believe that the grain in whole grain Cheez-Its was predominantly whole grain. Accordingly, we vacate the judgment of the district court and remand for further proceedings.

BACKGROUND

The Complaint alleges as follows. Defendant produces Cheez-It crackers and sells the brand in a variety of flavors, including "original" and "whole grain." During the relevant time period, Defendant packaged and sold the "whole grain" variety in two boxes, each with slightly different labeling. One version contained the words "WHOLE GRAIN" in large print in the center of the front panel of the box, and " MADE WITH 5G OF WHOLE GRAIN PER SERVING " in small print on the bottom. The other version contained the words " MADE WITH WHOLE GRAIN" in large print in the center of the box, with " MADE WITH 8G OF WHOLE GRAIN PER SERVING " in small print on the bottom. Both versions also contained a "Nutrition Facts" panel on the side of the box, which revealed in much smaller print that a serving size of the snack was 29 grams and that the first ingredient on the ingredients list was "enriched white flour." "Whole wheat flour"

910 F.3d 635

was listed on the ingredients list as either the second or third ingredient. As required by federal regulation, the ingredients were listed in order of their predominance, with the primary ingredient listed first. See 21 C.F.R § 101.4 (generally requiring ingredients to be listed "in descending order of predominance by weight").

Plaintiffs purchased one or both versions of the Cheez-Its labeled "WHOLE GRAIN," believing on the basis of that label that the grain content was predominantly whole grain. Contrary to their belief, however, the grain content was not predominantly whole grain, but rather enriched white flour. Plaintiffs assert that they would not have purchased the crackers had they known that the grain content was not predominantly whole grain. Plaintiffs filed the Complaint in the United States District Court for the Eastern District of New York, asserting claims for false advertising and deceptive business practices in violation of New York and California consumer protection laws,1 as well as for unjust enrichment under Michigan law. They sought declaratory and injunctive relief, as well as monetary damages, on behalf of a putative class of all persons residing in the United States and its territories who purchased whole grain Cheez-Its since May 19, 2010.

Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(6). It argued that the " MADE WITH WHOLE GRAIN" version of the Cheez-Its packaging was not false and misleading, because that statement was factually accurate and, in addition, was qualified by the more detailed " MADE WITH 8G OF WHOLE GRAIN PER SERVING " label. Defendant did not specifically address whether the "WHOLE GRAIN" version of the packaging was false and misleading. Defendant also argued that Plaintiffs’ claims were preempted by federal law, that Plaintiffs failed to state a claim for unjust enrichment under Michigan law, and that Plaintiffs lacked standing to pursue injunctive relief because they failed to allege any likelihood of continuing or future harm.

The district court granted Defendant’s motion. It held, first, that both the " MADE WITH WHOLE GRAIN" and "WHOLE GRAIN" labels would not mislead a reasonable consumer, because both statements

910 F.3d 636

were true and were qualified by further accurate language detailing the number of grams of whole grain per serving. The court dismissed Plaintiffs’ Michigan law unjust enrichment claim for lack of standing, a ruling which Plaintiffs do not appeal. Finally, the court concluded that, because Plaintiffs failed to show that the packaging was misleading, they could not demonstrate injury and therefore lacked standing to pursue injunctive relief. Having dismissed the Complaint on other grounds, the district court expressly did not consider Defendant’s alternative argument that Plaintiffs’ state law claims were preempted by federal law. The district court granted Plaintiffs leave to amend. Plaintiffs instead requested a final judgment, which the court entered on August 21, 2017. Plaintiffs brought this appeal.

DISCUSSION

We review de novo the grant of a motion to dismiss pursuant to Rule 12(b)(6), accepting the factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiffs’ favor. Fink v. Time WarnerCable , 714 F.3d 739, 740-41 (2d Cir. 2013). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a...

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88 practice notes
  • Colpitts v. Blue Diamond Growers, 20 Civ. 2487 (JPC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 16 Marzo 2021
    ...Compl. ¶ 15. An ingredients list on the back of a package cannot cure a misleading label on the front. See Mantikas v. Kellogg Co. , 910 F.3d 633, 637 (2d Cir. 2018) (explaining that "a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to......
  • McCrobie v. Palisades Acquisition Xvi, LLC, 15-CV-18
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 14 Febrero 2019
    ...factual allegations in the complaint as true and draw[s] all reasonable inferences in the plaintiff['s] favor." Mantikas v. Kellogg Co. , 910 F.3d 633, 636 (2d Cir. 2018). The FAC tells the following story.In 2007, Centurion Capital Corporation obtained a default judgment against McCrobie, ......
  • Bell v. Publix Super Mkts., Inc., Nos. 19-2581 & 19-2741
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 7 Diciembre 2020
    ...First, Second, and Ninth Circuits in very similar cases also involving food labels. See Dumont , 934 F.3d at 41 ; Mantikas v. Kellogg Co., 910 F.3d 633, 638-39 (2d Cir. 2018) ; Williams v. Gerber Products Co. , 552 F.3d 934, 939 (9th Cir. 2008). In each case, the defendant argued that its f......
  • Hesse v. Godiva Chocolatier, Inc., 19-cv-972 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 29 Mayo 2020
    ...origin counteracting imagery alluding to Australia). To be sure, disclosures are not always curative. See Mantikas v. Kellogg Co. , 910 F.3d 633, 637 (2d Cir. 2018) ("[R]easonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discove......
  • Request a trial to view additional results
89 cases
  • Colpitts v. Blue Diamond Growers, 20 Civ. 2487 (JPC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 16 Marzo 2021
    ...Compl. ¶ 15. An ingredients list on the back of a package cannot cure a misleading label on the front. See Mantikas v. Kellogg Co. , 910 F.3d 633, 637 (2d Cir. 2018) (explaining that "a reasonable consumer should not be expected to consult the Nutrition Facts panel on the side of the box to......
  • McCrobie v. Palisades Acquisition Xvi, LLC, 15-CV-18
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • 14 Febrero 2019
    ...factual allegations in the complaint as true and draw[s] all reasonable inferences in the plaintiff['s] favor." Mantikas v. Kellogg Co. , 910 F.3d 633, 636 (2d Cir. 2018). The FAC tells the following story.In 2007, Centurion Capital Corporation obtained a default judgment against McCrobie, ......
  • Bell v. Publix Super Mkts., Inc., Nos. 19-2581 & 19-2741
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 7 Diciembre 2020
    ...First, Second, and Ninth Circuits in very similar cases also involving food labels. See Dumont , 934 F.3d at 41 ; Mantikas v. Kellogg Co., 910 F.3d 633, 638-39 (2d Cir. 2018) ; Williams v. Gerber Products Co. , 552 F.3d 934, 939 (9th Cir. 2008). In each case, the defendant argued that its f......
  • Hesse v. Godiva Chocolatier, Inc., 19-cv-972 (AJN)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 29 Mayo 2020
    ...origin counteracting imagery alluding to Australia). To be sure, disclosures are not always curative. See Mantikas v. Kellogg Co. , 910 F.3d 633, 637 (2d Cir. 2018) ("[R]easonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discove......
  • Request a trial to view additional results
3 firm's commentaries
  • Kellogg Beats Pop-Tarts Class Actions
    • United States
    • LexBlog United States
    • 26 Mayo 2022
    ...health benefits of fresh strawberries.” In reaching that conclusion, Judge Carter distinguished cases—like Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018)—that involve labels that claim a product is “Made with [Ingredient]” or contains “[Amount] Grams of [Ingredient] Per Serving,” clai......
  • Key Takeaways In Bimbo's 'All Butter' False Label Win
    • United States
    • Mondaq United States
    • 1 Diciembre 2021
    ...Boswell v. Bimbo Bakeries USA Inc ., No. 20-CV-8923 (JMF), 2021 WL 5144552, at *2 (S.D.N.Y. Nov. 4, 2021) (citing Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 3. See Fed. R. Civ. P. 12(b)(6). 4. In re: 100% Grated Parmesan Cheese Mktng. & Sales Pracs. Litig., 275 F. Supp. 3d 910, 923......
  • Key Takeaways In Bimbo's 'All Butter' False Label Win
    • United States
    • Mondaq United States
    • 1 Diciembre 2021
    ...Boswell v. Bimbo Bakeries USA Inc ., No. 20-CV-8923 (JMF), 2021 WL 5144552, at *2 (S.D.N.Y. Nov. 4, 2021) (citing Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 3. See Fed. R. Civ. P. 12(b)(6). 4. In re: 100% Grated Parmesan Cheese Mktng. & Sales Pracs. Litig., 275 F. Supp. 3d 910, 923......

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