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In re McDonald's French Fries Litigation

May 6, 2009


The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

[MDL - 1784]


Plaintiffs have brought claims against defendant McDonald's Corporation for violations of all of the fifty states' and the District of Columbia's consumer fraud and/or deceptive trade practices acts, breach of express warranty, and unjust enrichment. Plaintiffs, who have been diagnosed with certain medical conditions, are purchasers of McDonald's french fries and hash browns ("Potato Products") and claim they were deceived by defendant about the Potato Product's ingredients.


The preparation process for defendant's Potato Products begins with the potato suppliers, who cut and par-fry*fn1 the Potato Products before distribution to the franchised McDonald's locations. The suppliers par-fry the potatoes in an oil made of 99% vegetable oil and 1% natural beef flavor. The beef flavor is made, in part, from hydrolyzed wheat bran and hydrolyzed casein (a dairy product). The Potato Products are then finish fried in 100% vegetable oil at the restaurants prior to sale and customer consumption.

Defendant is alleged to have falsely claimed the Potato Products were gluten, wheat, and dairy-free through its website and in literature available at the restaurants, including their mention on a gluten-free menu items list. According to plaintiffs, the information provided was at best incorrect, if not intentionally misleading. Defendant, of course, disagrees.

Plaintiffs specifically disclaim any physical injury from the consumption of McDonald's Potato Products.*fn2 Plaintiffs claim they purchased Potato Products based solely on defendant's representations that those products were free of gluten, milk and/or wheat ingredients ("allergens"), that the Potato Products in fact contained these allergens, and that absent defendant's misrepresentations, plaintiffs would not have purchased the Potato Products. (Am. Compl. ¶¶ 64-66.) They claim economic harm as a result.

Plaintiffs seek recovery under theories of breach of express warranty, unjust enrichment, and violations of various states' consumer protection statutes for their actual economic harm (i.e., the purchase price of the Potato Products) based on the difference in value between the gluten, wheat, dairy, and allergy-free products plaintiffs wanted and the non-conforming products they actually received.


In determining whether class certification is appropriate, I must decide whether the prerequisites for Federal Rule of Civil Procedure ("FRCP") 23(a) are met, and whether plaintiffs can maintain this suit under FRCP 23(b). FRCP 23(a) requires that (1) the class is so numerous as to make joinder of all members impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately represent the class. FED. R. CIV. P. 23(a).

The determination of class certification under FCRP 23(a) turns not on the underlying merits of the case, but on whether the party seeking certification meets its burden under all the certification requirements of FCRP 23(a). Harris v. Circuit City Stores, Inc., No. 07 C 2512, 2008 WL 400862, at *3 (N.D.Ill. Feb. 7, 2008)(citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). The district court has broad discretion in determining the propriety of certification. Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.1998); Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993).

Plaintiffs' motion requests certification under FRCP 23(b)(3), which provides that class certification is appropriate where, in addition to the factors above, (1) common issues of law and fact predominate, and (2) a class action is superior to other forms of adjudication. FED. R. CIV. P. 23(b). Although I evaluate the motion for class certification without regard to the merits of this case, I may make factual or legal inquiries as necessary to determine whether class treatment is proper. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 677 (7th Cir. 2001).


Plaintiffs seek to certify the following ...

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