by Richard W. Millar, Jr.

There are two subjects that fall in the “don’t get me started on . . .” category: certain class actions and serial ADA lawsuits.

By serial ADA lawsuits, I mean those where you don’t need a GPS to track the plaintiff, all you have to do is pull up the case filings and you will see that the plaintiff’s pattern of suing virtually every establishment on a given street based on visits made the same day. Not even the most avid shopper would likely run into such a string of bad luck in one day.

Not all class actions are bad. Just last year, I found out that I was a compensable victim of something which entitled me to a check for $3.06. I am not sure that would get me a cup of coffee at Starbucks, but the plaintiff’s lawyer probably retired.

The class actions that get to me are the ones that are just plain silly. A number of years ago, I reported on one which claimed false advertising by Kellogg’s because Froot Loops didn’t contain fruit. (I suppose that was an easier burden than trying to contend the cereal didn’t contain Froot, but I digress.)

Now the folks at Kellogg’s are back in the wringer over Pop-Tarts. Specifically, strawberry Pop-Tarts.

Someone named Stacy Chiappetta filed an action against Kellogg’s in the United States District Court in the Northern District of Illinois, Eastern Division “individually, and on behalf of all others similarly situated,” assuming there are any.

She alleged that she purchased a twelve Pop-Tart package at a Jewel Osco store in Chicago Heights for “a premium price” of $5.49, which would put her way ahead of my apparent $3.06 expenditure, although short of what I would call a “real money” category.

She was, she says, misled by the packaging, which depicted a half strawberry by itself and some red-colored filling inside a tart. She claims she was tricked into believing that the tarts contained either “only strawberries and/or more strawberries than it does.”

I know you will be as shocked as I was to learn that not only did the Pop-Tart contain strawberries, it also contained dried pears, dried apples, and a food dye called “red-40.” Thus, according to her, it was “unable to confer [many strawberry] health-related benefits because it has less strawberries than it purports to have.” Pop-Tarts are a health food? Who knew?

But for the fact that she was bamboozled, she would not have bought the package or would have paid less for it, thus positing that her deception could be monetarily quantified.

To raise the ante, Ms. Chiappetta’s complaint asserted claims for violation of the Illinois Consumer Fraud and Deceptive Practices Act, negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability, the Magnuson-Moss Warranty Act, fraud, and unjust enrichment. That is a whole lot of effort just to say there were not enough strawberries.

Kellogg’s, a veteran of at least four Froot Loops suits, moved to dismiss. It argued that it never said that there were no other fruits besides strawberries, that there was a certain amount of strawberries, and that the use of “red-40” does not signify that its product contains certain specific ingredients. In fact, Kellogg’s argued, the use of the red dye, which is an unnatural color, is, itself, an indicator that the product contains something other than just strawberries.

The trial court noted that the essence of Ms. Chiappetta’s claim was “that the word ‘Strawberry,’ combined with a picture of half a strawberry and a Pop-Tart oozing red filling, misleads consumers into believing that the Product’s filling consists of ‘only strawberries and/or more strawberries than it does’ have.” It held that no reasonable consumer would conclude that the filling had a certain amount of strawberries based on the pictures and statements on the packaging.

In a twenty-page decision, the court granted Kellogg’s motion to dismiss. However, since this was federal district court, she has an opportunity to amend, raising the specter of a litigation version of Strawberry Fields Forever.

Some class actions are déclassé.

Richard W. Millar, Jr. is Of Counsel with the firm of FSG Lawyers PC in Irvine. He can be reached at rmillar@fsglawyers.com.