A Krafty Lawsuit

A Florida woman is suing Kraft Heinz for allegedly misleading advertising based on the time the box says it takes to microwave a cup of macaroni and cheese.


According to the complaint Amanda Ramirez filed in Florida federal court, the defendant advertises, including on the box, that Velveeta Shells & Cheese are “ready in 3 ½.” But the complaint alleges that the “3 ½” is the time each cup needs to be microwaved. Supposedly, the advertising deliberately omits the actual preparation process, which takes longer. This includes adding the water, cheesy powder, and letting the sauce thicken. The plaintiff doesn’t allege how long this actually takes, but it’s apparently longer than 3 ½ minutes.


She’s asking for five million dollars in damages.


The Kraft Heinz Company has called the lawsuit “frivolous.” So have lots of folks weighing in on social media.


But is it? Let’s do a frivolity assessment.


Right or wrong, the first thing to do is check the signature line on the plaintiff’s complaint. We’re looking to see whether the plaintiff is proceeding “pro se”—by herself, acting as her own attorney. Or has a law firm put their name on this filing? While “pro se” plaintiffs are, in a way, the glory of our legal system, they are more often also the bane of its existence. When a civil complaint is filed pro se, it’s a good bet the plaintiff shopped this lawsuit around to every law firm in town, and none of them were interested in the case. In this case, a law firm has signed on to represent this plaintiff. That tells us that a law firm is willing to invest in a class action lawsuit, a category of cases that is often very expensive to prosecute. Again, a law firm’s presence doesn’t automatically validate the claim. It doesn’t mean the plaintiff will win. If nothing else, it tells us that this is not another Pollyanna pro se plaintiff tilting at a corporate windmill.


Every civil lawsuit can be broken down into three components: liability (whether the defendant did something wrong), damages (the harm to the plaintiff), and a nonlegal element: the ability to pay. That last element is established here: Kraft Heinz has “deep pockets.” It can pay a judgment. While this is not an element of the actual claims, it’s an essential element of the decision to bring a lawsuit. There’s not much point in having an extraordinary claim against a defendant with no money.


The plaintiff has an uphill battle regarding liability, even though Florida law is decidedly favorable to consumers like her.


Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) broadly protects “the consuming public…from those who engage in unfair methods of competition, unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” A “deceptive” practice is simply one that is “likely to mislead” consumers. An unfair practice includes conduct “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” Precisely defining “deceptive” or “unfair” is a task primarily left to the courts and creative lawyers. So, is the Kraft Heinz packaging deceptive or unfair?


According to her complaint, Kraft Heinz sells Velveeta-brand microwavable single-serve cups of mac and cheese represented in photographs of the packaging as “READY IN 3½ MINUTES”. She alleges that the statement “ready in 3½ minutes” is false and misleading because the Product takes longer than 3½ minutes to prepare. But then, as evidence that preparation time is longer than 3½ minutes, she cites the same packaging. This packaging includes the 3½ minute cook time, plus the other steps. So, the same packaging clarifies the cooking time relative to the prep time. In other words, the clarification is on the same packaging as the supposedly deceptive statement.


This will be Kraft Heinz’s most robust defense: that the packaging alleged in the complaint adequately informs a consumer in the grocery store what the 3½ minutes refers to, as long as this reasonable consumer just reads the entire package.


As far as damages go, it’s hard to imagine that Amanda Ramirez suffered $5 million when her lunch took 5-6 minutes to prepare instead of 3½ minutes. Folks might think, at best, she’s entitled to a refund, which she probably could have gotten without filing a federal lawsuit. But if this plaintiff can survive the liability issues, this could be a case with real damages. First, this is not a David vs. Goliath situation. This is a class action complaint. If the class gets certified, the plaintiff will be one of the hundreds–even thousands–of similarly-situated plaintiffs. It will be an army of “Davids” versus one corporate “Goliath.” But even if you aggregate the alleged $10.99 for eight 2.39 oz cups that these plaintiffs “suffered” when they purchased the mac and cheese, assuming a class of a thousand plaintiffs, that’s a little over ten thousand dollars total damages. The plaintiff’s firm will need a lot more than a thousand plaintiffs to make a one-third contingent attorney’s fee look appetizing. That’s why it’s also about the statutory attorney’s fees. Like many others, the Florida consumer protection law allows the plaintiff to seek attorney’s fees against the defendant. That definitely sweetens the (microwaveable) pot for the attorneys.


As with many lawsuits, especially class action lawsuits, if the plaintiffs can survive the inevitable motion to dismiss by the defendants, then the defendants have something to worry about. Unlike many lawsuits, this is a case that the defendants have a good chance of tossing out of court early in the litigation.


Danny Cevallos

Danny Cevallos is a legal analyst for NBC and MSNBC and co-founder of the law firm Cevallos & Wong, LLP. He focuses his practice in the areas of state, federal, and territorial criminal defense and civil litigation.


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