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Food for Thought: Food Industry Decisions with Bite

Food for Thought: Summary Judgment Affirmed in False ‘GMO’ Advertising Class Action Against Chipotle

Class Actions   |   Mass Tort and Product Liability   |   October 4, 2017
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Reilly v. Chipotle Mexican Grill, Inc., 700 F. App'x 525 (11th Cir. 2017)

The Eleventh Circuit Court of Appeals affirmed the district court’s summary judgment in favor of defendant, Chipotle Mexican Grill, Inc. Plaintiff Leslie Reilly sued defendant on behalf of herself and other Floridians, based on alleged violations of Florida’s Deceptive and Unfair Trade Practice Act (FDUTPA) and allegations of unjust enrichment. Specifically, plaintiff alleged that Chipotle falsely advertised that it had eliminated genetically modified (GMO) ingredients from its menu, despite using meat from animals that were given GMO feed and dairy products from farms that give their animals GMO feed. Plaintiff further alleged consumers paid a premium for products that were not non-GMO.

The district court initially granted in part and denied in part defendant’s motion to dismiss. The district court held that plaintiff had not failed to allege a threat of real or immediate injury to give her standing to pursue injunctive relief under FDUTPA. The district court allowed the plaintiff to proceed on her claims for monetary relief under FDUTPA, and for unjust enrichment.

However, Chipotle succeeded when it moved for summary judgment on the ground that plaintiff lacked standing to sue for violations of FDUTPA and for unjust enrichment. The district court entered summary judgment against plaintiff’s claim of unjust enrichment, but the plaintiff did not contest that ruling on appeal and the district court deemed it abandoned.  However, the plaintiff did appeal the district court’s summary judgment in favor of defendant on the FDUTPA claims and, similarly appealed the district court’s dismissal of plaintiff’s motion to stay a ruling on the motion for summary judgment.

The Eleventh Circuit held, to prevail under FDUTPA, plaintiff had to prove the existence of a deceptive act or unfair practice, causation, and actual damages. And, that to prove actual damages, she had to establish that there was a difference between the value of the product she received and the value of the product she should have received. In this case, the evidence (in the form of bank records and testimony of the plaintiff herself) showed that she had suffered no actual loss. And, because FDUTPA does not provide for recover of speculative losses, the plaintiff could not succeed on her claim. As a result, the Eleventh Circuit declined to address plaintiff’s argument that she was deceived by the advertising because proof of actual damages is necessary to sustain the FDUTPA claim. An absence of this element of the claim entitled defendant to summary judgment.

Finally, the court held that the district court did not abuse its discretion when it entered summary judgment in favor of the defendant before ruling on plaintiff’s motion to stay. The court held that the lower court was not required to stay the ruling on the motion for summary judgment when the plaintiff had not provided good reasons to justify her request. Although the nonmovant in a summary judgment may request a continuance to take discovery pursuant to Rule 56(d), the rule requires that the nonmovant “show by affidavit or declaration that, for specified reasons, she cannot present facts essential to justify its opposition to summary judgment.” In this case, plaintiff merely asserted that discovery could lead to supplemental briefing and could be used in opposition to summary judgment, but she did not file any affidavits or declarations explaining why she waited three months after filing her opposition to the summary judgment to file the motion to stay.


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