EAST ST. LOUIS – U.S. District Judge David Dugan, who accepted reports provided by class action attorney Spencer Sheehan about research on butter cake as true last year, found butter in the cake but no truth in the reports.
Dugan granted summary judgment to Bimbo Bakeries on Sept. 30 and closed a potential class action that Vicki Elder of St. Clair County filed in 2021.
Elder claimed an “All Butter Loaf Cake” label on an Entenmann’s brand product constituted fraud under state consumer law and common law.
Dugan denied a motion to dismiss the complaint last year, but Bimbo punched holes in the complaint this year.
Dugan found Bimbo requested documents supporting claims of laboratory analysis, and Elder’s counsel Sheehan responded that she didn’t have any.
Dugan found this raised immediate concern, because her complaint alleged that testing revealed artificial butter flavors.
He found Sheehan might have an excuse or an explanation for the absence of reports, but he offered nothing in his memorandum opposing summary judgment.
Dugan also found Bimbo’s requested documents supporting an allegation that seven of ten consumers avoid artificial flavors because of health concerns.
Sheehan allegedly responded that Elder didn’t have any.
Dugan found allegations in a complaint are to be taken as true and tend toward getting past the scrutiny of a motion to dismiss.
“It is therefore unclear to the court what basis, if any, plaintiff had to make these allegations and why at the time of briefing her response to the motion to dismiss, the absence of support for such allegations was not made known to the Court,” he wrote.
Sheehan’s complaint claimed a reasonable consumer would interpret the label to mean that all the shortening and flavor came from butter.
He claimed it meant no alternatives or substitutes would be used where butter could be used.
He also claimed Bimbo provided some of the shortening function with soybean oil and provided artificial flavoring.
Bimbo counsel August Horvath of New York City moved to dismiss the complaint, claiming the baker used soybean oil only to create a crack along the top.
Dugan denied the motion to dismiss, finding he must accept the soybean oil allegation as true.
He found he couldn’t say that no reasonable consumer would interpret “all butter” as implying the absence of artificial flavors.
He also found “all butter” ambiguous and stated he wouldn’t interpret it on the pleadings.
“Elder has sufficiently alleged that defendant intentionally labelled the cake in a deceptive manner,” he wrote.
Sheehan moved to certify a class action last October, repeating allegations of artificial flavor.
He claimed an expert identified tools for measuring the value of an “all butter” attribute as part of the retail price.
Sheehan also claimed the expert would rely on sales and price figures in Bimbo’s possession to demonstrate damages and restitution.
Horvath moved for summary judgment last December and filed undisputed material facts, including the absence of support for allegations in the complaint.
He claimed there was no artificial butter flavor in the product.
He claimed the only artificial flavor in it was vanillin, which Bimbo used to confer a vanilla flavor, not a butter flavor.
He claimed vanillin represented .2655% of the product and butter represented 15%.
Dugan’s order on the motion stated, “Now the court is called upon not to judge the plausibility of the plaintiff’s allegations, but to judge the sustainability of plaintiff’s claims.”
He found Elder’s complaint asserted the butter flavor was partly artificial, but her opposition to summary judgment pointed to no evidence that this was so.
Elder did not contest Bimbo’s undisputed material facts on that point.
Dugan concluded Elder offered no facts to suggest a typical consumer was misled such that she believed there was more than 15% butter.
Further, he found no facts for the proposition that consumers expect an “all butter loaf cake” to contain more butter than this product contained.
Sheehan practices in Great Neck, New York.