Boswell v. Bimbo Bakeries USA, Inc.

Boswell v. Bimbo Bakeries USA, Inc.

Opinion

 [*93]  MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

This case is the latest in a long string of putative class actions brought by the same lawyer alleging that the packaging on a popular food item is false and misleading.¹ In this case, Plaintiff Monica Boswell sues Defendant Bimbo Bakeries USA, Inc. ("Bimbo Bakeries"), which owns the Entenmann's brand of food products, alleging that the packaging on Entenmann's "All Butter Loaf Cake" — a picture of which appears in Appendix A to this Opinion and Order — is misleading because the cake contains not only butter, but also soybean oil and artificial flavors. Bimbo Bakeries now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss. For the reasons that follow, the motion is GRANTED.

In evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all facts alleged in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). Significantly, however, the Supreme Court has made [**2]  clear that a court should not accept non-factual matter or "conclusory statements" set forth in a complaint as true. Ashcroft v. Iqbal, 556 U.S. 662, 686, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Instead, a court must follow a two-step approach in assessing the sufficiency of a complaint in the face of a Rule 12(b)(6) motion. See id. at 680-81. First, the court must distinguish between facts, on the one hand, and "mere conclusory statements" or legal conclusions on the other hand; the latter are not entitled to the presumption of truth and must be disregarded. Id. at 678-79. Second, the court must "consider the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 681. A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2008)). A plaintiff must show "more than a sheer possibility that a defendant acted unlawfully," id., and cannot rely on mere "labels and conclusions" to support a claim, Twombly, 550 U.S. at 555. If the plaintiff's pleadings "have not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. at 570.

Boswell's principle claims in this case are brought pursuant to Sections 349 and 350 of New [**3]  York General Business Law. See ECF No. 13 ("FAC"), ¶¶ 78-85. The former prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce," N.Y. Gen. Bus. Law § 349(a), [*94]  while the latter bans "[f]alse advertising in the conduct of any business, trade or commerce," id. § 350. To state a claim under either provision, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice." Orlander v. Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015) (citing Koch v. Acker, Merrall & Condit Co., 18 N.Y.3d 940, 941, 967 N.E.2d 675, 944 N.Y.S.2d 452 (2012)). To satisfy the second element, "a plaintiff must plausibly allege that the deceptive conduct was 'likely to mislead a reasonable consumer acting reasonably under the circumstances.'" Mantikas v. Kellogg Co., 910 F.3d 633, 636 (2d Cir. 2018) (quoting Fink v. TimeWarner Cable, 714 F.3d 739, 740-41 (2d Cir. 2013) (per curiam)). Significantly, "in determining whether a reasonable consumer would have been misled by a particular advertisement, context is crucial." Id. (cleaned up). Thus, a court must consider "the challenged advertisement as a whole, including disclaimers and qualifying language." Id.; see also id. ("An allegedly misleading statement must be viewed in light of its context on the product label or advertisement as a whole . . . ." (internal quotation marks omitted)). [**4] 

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