A federal judge will tentatively allow a woman to proceed with a class action lawsuit concerning the mozzarella content of TGI Friday’s-branded snacks, though the restaurant chain itself is no longer party to the litigation.
In February 2021, attorney Thomas Zimmerman Jr. and others with Zimmerman Law Offices, of Chicago, filed suit in Cook County Circuit Court against TGI Friday’s Inc. and Phoenix-based Inventure Foods, alleging the shelf-stable bagged snack product, TGI Friday’s Mozzarella Sticks, bears misleading labels because the sticks actually contain cheddar cheese.
Represented by Christopher Sean Hennessy, of Cozen O'Connor, of Chicago, the companies fired back two months later, claiming named plaintiff Amy Joseph ordered the snacks on Amazon simply to file the lawsuit. Friday’s and Inventure said Joseph filed at least eight class actions in Illinois state and federal courts over a decade, including three with representation from Zimmerman Law, which also sued over TGIF-brand potato skin snacks.
After the companies removed the complaint to federal court, they filed a motion to dismiss. U.S. District Judge Robert Dow partially granted that motion in an opinion filed Nov. 28.
Dow agreed with Joseph that TGI Friday’s can’t completely distance itself from Inventure solely due to its role as a licensor of its chain restaurant branding, noting she alleged both companies “had a wide variety of involvement in marketing, distributing and selling toe product.”
However, he agreed the complaint failed to state a claim against the restaurant in that it only ascribes to TGI Friday’s a role as a trademark licensor. Several other courts have dismissed companies like General Mills and MillerCoors facing similar litigation, Dow explained, as well as TGIF on multiple occasions.
With only Inventure remaining to face Joseph’s consumer fraud allegations, Dow said the allegations are enough to survive dismissal, though he offered suggestions for improving Joseph’s position as litigation proceeds.
According to Dow, Inventure argued “the only reasonable interpretation of the product as a ‘shelf-stable, crunchy snack product’ is that it bears no resemblance to the hot appetizer mozzarella cheese sticks and therefore, does not necessarily contain mozzarella cheese, pointing out the lack of representations on the product’s packaging that the product contains mozzarella cheese or photos of mozzarella cheese.”
Dow agreed the label includes no explicit statement the snack “contains mozzarella cheese,” but said the name “Mozzarella Stick Snacks,” with an image of restaurant-ready sticks, means Joseph’s inference about the cheese content is plausible. And although Inventure contended consumers should know mozzarella isn’t shelf stable, Dow explained the conclusions of reasonable shoppers are questions of fact not appropriate for a dismissal motion.
Inventure also argued Joseph shouldn’t be allowed to use alleged violations of the federal Food, Drug and Cosmetic Act to bolster her state-law fraud claims. While Dow declined to dismiss on those grounds, he encouraged Joseph to consider amending the complaint to allege a specific deceptive practice violating the Illinois Consumer Fraud Act because a reliance on the average consumer mindset likely can’t presume broad awareness of nuanced U.S. Food and Drug Administration regulations.
Dow likewise refused to dismiss an unjust enrichment claim. And although he expressed “doubts about whether (Joseph’s) nationwide class allegations are manageable,” Dow said the arguments to strike those allegations are premature and said he “needs additional factual development to determine whether any of the alleged differences in state law create a conflict for (Joseph) and potential class members or whether the class device may be manageable and otherwise appropriate to adjudicate one or more non-nationwide classes or subclasses.”
Dow further advised Joseph to clearly define any subclasses in a certification motion, including clearly establishing under which laws she seeks relief. He directed both parties to file a status report, with an updated discovery plan, by Dec. 19.