Marotto v. Kellogg Company

Background

Matthew Marotto sued Kellogg Company, Kellogg USA Inc., Kellogg Sales Company, Pringles LLC, and Pringles Manufacturing Co. He alleged that the defendants’ packaging for Pringles Salt & Vinegar crisps falsely suggested that the product contained no artificial flavors. The complaint asserted claims under New York deceptive-business-practices and false-advertising laws, along with negligent misrepresentation, intentional misrepresentation, breach of express warranty, and breach of the implied warranty of merchantability.

Marotto proposed a class consisting of people who bought Pringles Salt & Vinegar chips in New York for personal or household use, rather than resale, on or after April 1, 2012. The opinion states that the product labels disclosed all ingredients and that sodium diacetate and malic acid, identified by Marotto as artificial flavors, made up “2% or less” of the product’s flavorings. During the proposed class period, the defendants used twenty different labels, but only four included the words “No Artificial Flavors.”

The court had previously granted the defendants’ motion to dismiss Marotto’s implied-warranty claim and had separately ruled that he lacked standing to seek an injunction. The remaining claims were the subject of the class-certification motion.

Legal standard

Federal Rule of Civil Procedure 23 requires a proposed class to satisfy four basic conditions: enough members to make individual lawsuits impractical, shared legal or factual questions, claims typical of the class, and adequate representation. For a class sought under Rule 23(b)(3), common questions must predominate over individual questions, and a class action must be the superior method for resolving the dispute.

The court explained that it had to conduct a rigorous analysis and could look beyond the complaint, including at declarations, documents, and testimony. It could also consider factual issues that overlapped with the merits of the underlying claims.

Court’s analysis

The court expressed doubts about whether Marotto’s claims were typical of other purchasers or whether he was an adequate class representative. It pointed to his training in molecular gastronomy, his testimony that price was not important to him, his stated avoidance of packaged food, and the fact that his wife—an attorney at one of the firms seeking to represent the class—first told him about the alleged artificial flavors. The court did not need to resolve those issues, however, because it found that the proposed class failed the predominance requirement.

First, the court found that individual questions would be required to determine which purchasers actually saw the “No Artificial Flavors” wording. The proposed class covered purchases made during a period when twenty label versions were used, only four of which contained that wording. The court questioned how it could identify consumers who saw the label, evaluate claims by purchasers without receipts, and determine whether purchasers with receipts actually looked at the relevant small print.

Second, the court found that individual questions would be necessary to determine whether each consumer relied on the label when buying Pringles or paying any premium. The court reasoned that a consumer who did not care about artificial flavors and bought the product for another reason, such as taste, could not establish the same type of injury alleged by Marotto. The court also noted that Marotto had offered no evidence that a price premium actually existed.

Disposition

The court denied Marotto’s motion for class certification. It ordered the parties to appear for a status conference on January 3, 2020, and directed the clerk to close the motion. The order addressed class certification and did not resolve the underlying labeling claims on their merits.