Friday Frivolity: Nutty Warranty Claim Against Cold Stone Creamery Can Proceed

It was as if Judge Gary Brown (right) of the U.S. District Court for the Eastern District of New York knew he was writing fodder for Friday frivolity.  Ruling on defendant's motion to dismiss purported class action claims arising from frustrated ice cream customers, he began with a citation to Van Halen, "They say all my flavors are guaranteed to satisfy." The opinion includes a liberal sprinkling of such citations. 

In general, I'm not a fan of jokey legal opinions, unless they are really well done, and they rarely are. It is not that there is no place for humor in a courtroom.  Part of the appeal of a Justice Scalia or a Justice Kagan is their wit. But it is another matter when a judge treats a claim as a joke or when an opinion scoffs at the serious legal wrongs alleged.

Here, the court's attempts at witticisms fall short.  Blogs can be serious without being solemn, but people bring lawsuits when they are genuinely aggrieved.  One ought to treat such claims with the sobriety they deserve.  And if the claims are not serious, wasting court resources also is not the stuff of jokes.  

In Duncan v. Kahala Franchising, the claims are borderline. Plaintiff alleges that Cold Stone Creamery's pistachio ice cream contains no actual pistachios. Rather, the pistachio flavor was produced through chemical means.  The complaint alleged violations of New York's General Business Law, §§ 349 & 350, which prohibit deceptive acts and false advertising, as well as breach of warranty claims. On the one hand, why can't the seller just be honest and fess up that is selling pistachio-flavored ice cream?  On the other hand, get a life!  It's not as though you ordered a kale smoothy as part of a cleanse regimen and received a St. Patrick's Day ice cream float instead.  You ordered ice cream; you got ice cream.  Did it taste good?

Other ice cream brands, readers may be relieved to learn, include actual pistachios in their pistachio ice cream, and Cold Stone Creamery's strawberry and banana ice creams include strawberries and bananas respectively.  The proposed plaintiff class provided survey evidence indicating that the vast majority of pistachio ice cream buyers expect it to contain pistachios.  

Interestingly enough, New York courts have developed a line of cases addressing allegations such as those at issue here in a line of cases relating to claims that food products were "vanilla."  In order to make out of a claim under §§ 349 & 350, courts consider:

(1) the presence or absence of express representations, (2) context of the alleged misrepresentation, (3) etymological analysis, (4) allegations about competitor products and (5) consumer survey evidence . . . 

Here, Cold Stone Creamery did not represent that its pistachio ice cream was "made with" or contained pistachios. However, the court was not impressed with the defendant's disclosure of its true ingredients online. Such disclosure is not helpful to a person who is just looking for a treat. 

By Stan Shebs, CC BY-SA 3.0

What the test calls "etymology" turns out to be more of a usage question.  In the vanilla cases, plaintiffs claims were dismissed, because vanilla is more of an adjective than a noun.  But "pistachio," when used as an adjective, is used to describe a color, according to the Oxford English Dictionary, so Judge Brown gives the edge on that one to the defendant.

Oh, please. Now, this opinion is actually pissing me off. A dictionary is a mirror.  If you hand it to a lawyer who has no background in linguistics, don't expect Paul frickin' Grice to peer out. "Pistachio" can also be used adjectivally to mean "pistachio-flavored," and the usage here undoubtedly related to flavor rather than color.  If the purpose of the name were to describe the ice cream's color, it might have been called anything from Avocado to Chartreuse to Lime to pea pod. Still, the fourth and fifth categories clearly favored plaintiffs, at least as to their allegations relating to the pistachio ice cream.

Given the joking tone, it is something of a relief that Judge Brown found that the proposed class had alleged sufficient facts to survive defendant's motion to dismiss, at least as to its pistachio-related claims sounding in §§ 349 and 350, as well as in breach of express warranties.  Plaintiffs made the same claims relating to other flavors but did not present the same kind of evidences relating to those other flavors.  In any case, plaintiffs produced no customers who were disappointed that, e.g., their butter pecan ice cream contained no butter.  All non-pistachio claims were accordingly dismissed.