A Jewish-vegetarian lawyer, Kevin Shenkman, has sued Chipotle Mexican Grill for selling a bean dish that contains pork. Shenkman filed a putative class action (seeking to form a class action suit) against ChipotleMexican Grill, Inc., alleging that the company failed to adequately warn consumers that its pinto beans are prepared with or contain bacon or pork. Shenkman v. Chipotle Mex. Grill, Inc., No. BC467980 (Cal. Super. Ct., Los Angeles County, Cent. Dist., filed August 19, 2011). According to the complaint, the company does not disclose in its in-store menus that pinto beans contain pork, and, when specifically asked, employees informed Shenkman that the pinto beans did not contain bacon or pork. Relying on these representations, he purportedly purchased and ate the beans to his alleged detriment.
Shenkman seeks to certify a class of California residents who “abstain from consuming bacon or pork” for “ethical, religious, moral, cultural philosophical, or health-related reasons” and purchased the pinto beans from any Chipotle restaurant in California in the preceding four years. He alleges intentional and negligent misrepresentation, fraud and violations of California’s False Advertising and Unfair Business Practices acts. This is other words the familiar labeling lawsuit. Shenkman requests compensatory and punitive damages, disgorgement and restitution, injunctive relief, payment to a cy pres fund, a corrective advertising campaign, an apology, attorney’s fees, and costs.
Labeling lawsuits are notoriously difficult to win, but California provides the best odds of winning. For starters, just this year the California Appelate court boldly held “labels matter.” So long as a plaintiff can show reasonable reliance along with financial harm then they stand a chance of winning in California. Shenkman has in his favor the fact that he asked employees whether there was pork in the beans. What he must contend against is the Chipotle menu lists black beans as vegetarian and pinto beans as not. Is this inference enough to destroy his case? It may well be for the jury to decide. Shenkman also stands to show financial harm. California Courts have said this must not be trivial. The measure of financial harm will be the difference between what Shenkman paid for Chipotle pinto beans versus the cost of true vegetarian pinto beans. This is another significant hurdle. It is also a clue as to why Shenkman wants to make it a class action – it aggregates trivial damages into something significant.
The trouble Shenkman will face is proving that class is cohesive and suffered a single injury. There has not been a loud chorus of complaints about the pinto beans. Shenkman also has cast the net quite broadly to include both vegetarians who avoid meat on ethical or health reasons and those who abstain for religious reasons. This wide class definition may not be cohesive to meet the standards of federal rules (Fed. Rul. Civ. Pro. 23) but may meet state court standards (if the case is not removed to federal court by Chipotle). This will be an interesting case to watch over the next couple of months; stay tuned for updates.
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