A judge has melted a lawsuit, which claimed retailer Costco scammed consumers by selling chocolate coated ice cream bars that had little chocolate, saying plaintiff's own arguments showed there is indeed plenty of chocolate in the bars.
The July 21 decision was issued by Judge Charles Norgle, of U.S. District Court for the Northern District of Illinois. The ruling was sweet news for Costco in a putative class action brought against it by Mike Karlinski, of suburban Darien. The company, which runs big box retail outlets around the globe, is based in Issaquah, Washington.
Karlinski lodged his suit in July 2021, alleging the chocolate in Chocolate Almond Dipped Vanilla Ice Cream Bars sold by Costco is made mainly of vegetable oils, with little chocolate or cacao beans. According to Karlinski, definitions of chocolate do not include vegetable oil as an ingredient, but do include cacao beans. Karlinski asserted vegetable oil is cheaper, leaves a bad aftertaste and can cause heart problems. Cacao beans do not carry these disadvantages, Karlinski said.
Spencer Sheehan
| spencersheehan.com
Karlinski alleged Costco violated the Illinois Consumer Fraud and Deceptive Business Practices Act, as well as the U.S. Magnuson Moss Warranty Act.
Costco asked Judge Norgle to throw out the case, which he did, finding the coating is mostly chocolate.
Norgle said Karlinski did not show his definition of what constitutes chocolate "aligns with the expectations of a reasonable consumer." Further, Karlinski used faulty calculations to try to demonstrate the coating contains more vegetable oil than chocolate.
Karlinski's own arguments misfired, suggesting there is actually more chocolate in the coating than Karlinski claimed, Norgle said. Karlinski's own arguments also cast doubt on his presumption of what consumers expect chocolate to be made of, Norgle concluded.
"Plaintiff's alleged dictionary definitions of chocolate and the chocolate-making process suggest reasonable consumers would expect ingredients other than cacao, like sugar, in their chocolate," Norgle said.
Norgle determined the ingredients that make up the coating are comprised of 61 percent chocolate, with only 31 percent vegetable oils — percentages much more favorable to Costco than those calculated by Karlinski.
In terminating the case, Norgle noted it is rare for a federal judge to dismiss a suit without letting the plaintiff amend their action and try again. However, Karlinski's suit was one such "rare" instance, because Karlinski put forth an "unreasonable interpretation" of what constitutes chocolate, according to Norgle. No set of "alleged facts" that Karlinski could submit would change the ruling, making it "futile" for Karlinski to amend his complaint, Norgle said.
Costco has been defended by August T. Horvath, of the New York City firm of Foley Hoag.
Karlinski has been represented by Spencer Sheehan, of Sheehan & Associates in Great Neck, New York.
Sheehan is also representing Lawrence Rice, of suburban Buffalo Grove, in a similar Chicago federal suit against Dreyer's Grand Ice Cream, which makes Haagen-Dazs products. A motion by Dreyer's to dismiss the case is on the table, but no ruling has yet been rendered by District Judge Gary Feinerman.