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Impossible Whopper Class Action Suit – It’s Possible

Written by: on December 11, 2019 | Category: Blog, Uncategorized

Impossible Foods, founded in 2011, gained nationwide prominence in 2019 when they teamed with Burger King to create the Impossible Whopper. Now, thanks to a discerning vegan, an Impossible Whopper class action suit is pending.

The Rise of Impossible Foods

As an unwavering carnivore who would much prefer waiting for my grill to preheat than waiting in a drive-through line, it likely comes as no surprise that sampling the newly-advertised Impossible Whopper from Burger King wasn’t exactly on the top of my to-do list. While the nutritional benefits, as compared to traditional hamburgers, are still up for debate, it is apparent that more and more restaurants and supermarkets are adding plant-based “impossible” substitutes for meat-based products to their menus.

As is often the case, with increased advertising and mainstream coverage comes full-blown scrutiny. (Seriously, has anybody seen that Peloton commercial?) Though the tongue-in-cheek memes and South Park extracts poking fun at the Impossible Whopper and “impossible” foods can generally be chalked-up to “any press is good press,” the late-November Complaint filed in Federal Court in the Southern District of Florida may be the outlier to that idiom.

Claim against Burger King

Phillip Williams, a Georgia native, claims that Burger King uses the same grills to cook both the Impossible Whopper and their meat-based products, thus contaminating the plant-based patties with beef-fat and meat byproduct. Moreover, he claims he was unaware of this when he ordered the Impossible Whopper, believing it conformed to his strict vegan diet.

Mr. Williams’ Complaint brings this action to “obtain redress for all persons injured by Defendant Burger King’s deceptive and unlawful conduct,” thus seeking class action status.

According to a study conducted by Perkins Coie, an international law firm headquartered in Seattle, Washington, class action lawsuits facing the food and beverage companies continue to grow. The majority of these lawsuits, like the one Burger King is presently facing, center around allegedly false and misleading business practices with respect to marketing.

Challenge of the Claim

The Plaintiff’s first obstacle will be achieving class action status. Under Rule 23 of the Federal Rules of Civil Procedure, one or more members of a class may sue or be sued as representative parties on behalf of all members only if:

  1. the class is so numerous that joinder of all members is 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 protect the interests of the class Fed. R. Civ. P. 23(a)

Rule 23. Class Actions

Furthermore, if Rule 23(a) is satisfied, a class action may be maintained under 23(b) if:

  1. prosecuting separate actions by or against individual class members would create a risk of:
    • inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
    •  adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
  2. the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
  3. the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
    • the class members’ interests in individually controlling the prosecution or defense of separate actions;
    • the extent and nature of any litigation concerning the controversy already begun by or against class members;
    • the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
    • the likely difficulties in managing a class action.

Achieving Class Action Status

If an Impossible Whopper class action status is achieved, consumers across the United States will be able to join in the lawsuit – turning the individual action into a potential high-value claim. And while lawsuits such as this may seem silly from the outside, truthful and non-misleading advertising is essential for the operation of free markets and allowing consumers to make fully-informed decisions. If necessary, that is an area of the law that could be further analyzed at a later date.

All in all, while this lawsuit is in the early stages, I would be careful to write off its merits. Who knows; a big money verdict could be on the horizon. I mean, it’s not…impossible.

Attorney Robert Campbell is a a member of the firm’s Medical Malpractice Defense Group, as well as Criminal Defense team. A PR professional and up-and-coming litigator, Bob is skilled at crafting words and thoughts into well-structured narratives, backed up with citations and evidence. He helps communicate his clients’ stories in a compelling manor.
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