U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Vegetarian Loses Federal Beef Fat French Fries Lawsuit

In a case that's sure to open the eyes of many vegetarians, Buffalo Wild Wings has just succeeded in knocking out a potential class action claim stemming from some of their fried menu items. The lawsuit alleged that BWW's French fries, and other non-meat containing fried foods, aren't actually vegetarian because they're fried in beef fat rather than vegetable oil.

Unfortunately for the plaintiff, the federal court found that the complaint failed to state a claim for relief due to not sufficiently alleging an injury. However, the district court seemed to rather strongly suggest that the plaintiff's allegations could be corrected (and Footnote 2 even explicitly details how).

Vegetarian Inequity

One of the primary concerns of the court involved the equity of the damages alleged by the plaintiff, Alexa Borenkoff. Rather than claiming a personal injury, or an economic injury related to receiving an inferior good, she alleged that the injury was buying something she wouldn't have bought. The court, perhaps being overly semantic, noted that the complaint lacked an economic injury because the plaintiff actually got what they paid for, and rather just didn't like what they paid for.

The court explained that had the plaintiff claimed that fries cooked in beef fat were less valuable than fries cooked in vegetable oil, and as such, she was deceived into overpaying, there'd be a cognizable economic injury.

Interestingly, the dismissal of the case was silent as to whether it was with or without prejudice. The clerk of the court was ordered to terminate the action. Given the court's clear explanation of what was needed to fix the case, this seems rather curious.

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