Daly v. Dunkin' Brands, Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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CASSANDRA DALY, individually and
on behalf of all others similarly
situated,
Plaintiff,
-v- 3:24-CV-1475
DUNKIN’ BRANDS, INC. and
INSPIRE BRANDS, INC.,
Defendants.
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APPEARANCES: OF COUNSEL:
TREEHOUSE LAW LLP JOSHUA NASSIR, ESQ.
Attorneys for Plaintiff KATHERINE PHILLIPS, ESQ.
3130 Wilshire Boulevard, Suite 555
Santa Monica, CA 90403
ABIRI LAW, PC ROBERT ABIRI, ESQ.
Attorneys for Plaintiff
30021 Tomas Street, Suite 300
Rancho Santa Margarita, CA 92688
ALSTON & BIRD LLP KARLY BADER, ESQ.
Attorneys for Defendants LISA L. GARCIA, ESQ.
350 South Grand Avenue, 51st Floor
Los Angeles, CA 90071
DAVID N. HURD
United States District Judge
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DECISION and ORDER
I. INTRODUCTION
On December 24, 2024, Cassandra Daly (“Daly” or “plaintiff”) filed this
six-count putative class action against Dunkin’ Brands, Inc. (“Dunkin’”) and
Inspire Brands, Inc. (“Inspire”) (collectively the “defendants”), asserting that
defendants’ Dunkin’ Refreshers products (the “Products”), a line of fruit-
flavored beverages, are marketed and advertised to consumers through the
use of misleading and deceptive practices that violate the New York General
Business Law along with certain statutory and common law protections.
Dkt. No. 1. Relying upon plaintiff’s marketing and advertising, plaintiff
allePlges that she purchased two Dunkin’ Refresher beverages believing that
they contained real fruit when they did not. On February 4, 2025, defendants
moved to dismiss plaintiff’s complaint pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6). Dkt. No. 14. The motion has been fully briefed
and will be considered on the basis of the submissions and without oral
argument. Dkt. Nos. 1, 14-1, 23, 24.
II. BACKGROUND
Plaintiff, a New York resident, brings this suit against defendants Dunkin’
Inspire, who together “are responsible for the formulation, manufacturing,
marketing, naming, advertising, and sale of the beverage products sold in
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Dunkin’s thousands of retail stores located in the United States, including
the Products at issue here.” Compl. ¶¶ 5, 11. Dunkin’ is incorporated in
Delaware, and its principal place of business is in Massachusetts. Id. ¶ 6.
Inspire is also incorporated in Delaware, and its principal place of business is
in Georgia. Id. ¶ 7. Plaintiff contends the Products are marketed as fruit-
based beverages. Id. ¶ 12. According to plaintiff, the Products include the
following offerings: “(1) Mango Pineapple Refresher; (2) Strawberry
Dragonfruit Refresher; (3) Peach Passionfruit Refresher; (4) Blueberry
Pomegranate [Refresher]; (5) Apple Cranberry Refresher; (6) Raspberry
Watermelon Refresher; and (7) Mixed Berry Beats Dunkin’ Refresher.” Id. ¶
2. In or around July 2023, Daly alleges that she purchased two different
flavors of the Products, Mango Pineapple and Strawberry Dragonfuit,
claiming that “[b]ased on the Products’ names posted on Dunkin’s menu
board, [she] reasonably believed the Products contained the represented
fruits.” Id. ¶ 5. Plaintiff contends that “she did not see any statement or
information on the Dunkin’ menu board that there was mango, pineapple,
strawberry, or dragonfruit in the Products.” Id.
Plaintiff alleges that “Dunkin’ has marketed the Products with the name
of specific fruits, representing to its consumers that the Products, which are
supposed to be fruit-based beverages, contained those named fruits. Compl.
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¶ 14. Plaintiff argues that “the presence of fruit in the Products is central to
the Products’ identity[,]” citing defendants’ menu board as depicted here:
Id. ¶ 15.
Plaintiff asserts that the menu board induces reasonable consumers to buy
the Products expecting that they “contain all the fruits clearly listed in their
respective names.” Compl. ¶ 16. Instead, and “unbeknownst to consumers,”
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plaintiff contends “the [Products] do not contain any juice from the named
fruits.” Id. ¶ 17.
Plaintiff alleges that she, along with other consumers who purchased the
Products, relied upon Defendants’ “naming of the Products” in forming a
belief that they contained the named fruits and paid a premium price for it.
Compl. ¶ 4. Instead, plaintiff alleges that each of the Products were
formulated only “to mimic the flavor of the represented fruits with ‘Flavor
Concentrates’ made predominantly from water and sugar.” Id. ¶ 18.
According to Daly, “nowhere” did defendants disclosed that the Products are
missing their “promised ingredients.” Id. ¶ 21. Plaintiff asserts that the
defendants have engaged in false and misleading advertising regarding the
Products [. . .] at the expense of unsuspecting consumers.” Id. ¶ 13. Plaintiff
contends that, had she known of defendants’ alleged misrepresentation as to
the contents of the Products, she would have either paid substantially less for
them or not purchased them at all. Id. ¶ 25.
Plaintiff now brings claims against Defendants for (1) violations of New
York's General Business Law (“GBL”) §§ 349 and 350 (Counts I and II); (2)
breach of express warranty and the implied warranty of merchantability
(Counts III and IV); (3) unjust enrichment (Count V); and (4) fraud (Count
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VI).1 Compl. ¶¶ 37–87. Plaintiff now seeks declaratory relief and monetary
relief as well as the certification of the two proposed classes of plaintiffs
discussed infra. Compl. at 19.2
III. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual
allegations must be enough to elevate the plaintiff’s right to relief above the
speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So
while legal conclusions can provide a framework for the complaint, they must
be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). In short, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To assess this plausibility requirement, the court must accept as true all of
the factual allegations contained in the complaint and draw all reasonable
inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94
(2007). In doing so, the court generally confines itself to the facts alleged in
the pleading, any documents attached to the complaint or incorporated into it
by reference, and matters of which judicial notice may be taken. Goel v.
1 Although plaintiff brings two GBL claims, the Court will analyze them together. Similarly,
the Court will analyze plaintiff’s two warranty claims together.
2 Pagination corresponds to CM/ECF headers.
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Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (quoting Concord Assocs., L.P.
v. Ent. Props. Tr., 817 F.3d 46, 51 n.2 (2d Cir. 2016)).
IV. DISCUSSION
Plaintiff brings this consumer-rights action against defendants on behalf
of herself and two putative classes: (1) a Nationwide Class (the “Nationwide
Class”), defined as all persons who purchased the Products during the
applicable limitations period; and (2) a New York Subclass (the “New York
Subclass”), defined as all residents of New York who purchased any of the
Products in New York for personal, family or household consumption and not
for resale within the applicable limitations period. Am. Compl. ¶ 27. In sum,
Daly alleges the defendants marketed the Products using materially
misleading statements to advertise the Products, inducing reasonable
consumers to believe that they were fruit-based. See generally id. Plaintiff
contends that, acting in reliance upon these statements, she and all similarly
situated individuals paid a premium price for the Products. Id.
A. GBL Claims
Plaintiff’s first two causes of action arise under §§ 349 and 350 GBL.
Plaintiff argues the defendants “misleadingly, inaccurately, and deceptively
advertised and marketed their Products to consumers.” Compl. ¶ 40.
Specifically, Daly claims defendants acted in a materially misleading way
when they represented that the Products contained certain key ingredients,
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i.e., the named fruits, when they do not. Id. ¶ 41. In doing so, plaintiff
contends the defendants “induced” her, along with all other similarly situated
individuals, “to purchase and pay a premium for” the Products when they
otherwise would either have paid less for them or would not have purchased
them at all. Id. Lastly, Daly alleges defendants made the “untrue and/or
misleading statements and representations willfully, wantonly, and which
reckless disregard for the truth.” Id.
Defendants now argue that each of plaintiff’s GBL claims should be
dismissed because: (1) plaintiff fails to plausibly alleges any actionable
misrepresentation; (2) a review of the Dunkin’ menu board confirms there is
no actionable misrepresentation; and (3) plaintiff has not adequately alleged
any actual damages, actual injury, or ascertainable loss. Defs.’ Mem., Dkt.
No. 14-1 at 6–16.
§ 349 bars “[d]eceptive acts or practices in the conduct of any business,
trade, or commerce,” while § 350 prohibits “[f]alse advertising in the conduct
of any business, trade or commerce.” Angeles v. Nestlé USA, Inc., 632 F. Supp.
3d 309, 315 (S.D.N.Y. 2022) (quoting GBL §§ 349–50). “To state a claim
under either section, a plaintiff must allege that: (1) the defendant’s conduct
was consumer-oriented; (2) the defendant’s act or practice was deceptive or
misleading in a material way; and (3) the plaintiff suffered an injury as a
result of the deception[.]” Fish v. Tom’s of Maine, Inc., 705 F. Supp. 3d 72, 77
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(N.D.N.Y. 2023) (quoting Himmelstein, McConnell, Gribben, Donoghue &
Joseph, LLP v. Matthew Bender & Co., 150 N.Y.S.3d. 79, 84 (2021)) (cleaned
up).
“New York courts apply an objective definition of deceptive acts and
practices, concerned only with ‘those likely to mislead a reasonable consumer
acting reasonably under the circumstances.’” Van Orden v. Hikari Sales
U.S.A., Inc., 2023 WL 5336813 at *3 (N.D.N.Y. Aug. 18, 2023) (citing
Weinstein v. eBay, Inc., 819 F. Supp. 2d 219, 228 (S.D.N.Y. 2011) (quoting
Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85
N.Y.2d 20, 25 (1995)). In addition, “[i]t is well settled that a court may
determine as a matter of law that an allegedly deceptive advertisement
would not have misled a reasonable consumer.” Fink v. Time Warner Cable,
714 F.3d 739, 741 (2d Cir. 2013) (cleaned up).
Merely alleging that a “label might conceivably be misunderstood by some
few consumers” is not enough. Van Orden, 2023 WL 5336813 at *3 (quoting
Jessani v. Monini N. Am., Inc., 744 Fed. App’x 18, 19 (2d Cir. 2018). Instead,
“[p]laintiffs must plausibly allege ‘that a significant portion of the general
consuming public or of targeted customers, acting reasonably in the
circumstances, could be misled.’” Id. Context is critical to resolving whether
a particular advertisement would mislead a reasonable consumer. See id.
(quoting Fink, 714 F.3d at 742). Courts, in assessing such claims of
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misrepresentation, regularly depend upon their judicial experience and
common-sense observations. Id. (citing Weinstein, 819 F. Supp. 2d at
228 (collecting cases).
Courts in this Circuit have sustained claims where the language on a
product’s label, in addition to referencing a flavor, indicates the presence of
an ingredient. Angeles, 632 F. Supp. 3d at 316 (quoting Budhani v. Monster
Energy Co., 527 F. Supp. 3d 667, 678 (S.D.N.Y. 2021) (emphasis added).
However, cases in this Circuit are regularly dismissed where, taken in
context, the “product’s label makes no claims about the ingredients
constituting the flavor.” Angeles, 632 F. Supp. 3d at 316 (collecting cases).
Further, “[t]he absence of presence of the words ‘made with’ can make a
substantial difference where the relevant term is both an ingredient and a
flavor.” Id. (quoting Campbell v. Whole Foods Mkt. Grp. Inc., 516 F. Supp. 3d
370, 383 n.4 (S.D.N.Y. 2021))
Broadly stated, Daly’s complaint takes issue with the fact that the
Products are named after certain fruits, e.g., Strawberry Dragonfruit or
Mango Pineapple. However, the sole example of marketing or advertising
that plaintiff alleges in her complaint is the menu board, which: (1) lists the
flavor offerings of the Products; (2) indicates that either Green Tea or
Coconutmilk can be added into the Products for an additional cost; and (3) a
photo of the Mango Pineapple Refresher. Compl. ¶ 15. However, the menu
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board gives no indication that the products are made with real fruits, such as
“made with Mango and Pineapple” or any similar conveyance to suggest the
drink contains real fruit. Id.
Upon review, the Court finds that plaintiff has failed to plausibly allege a
GBL claim against the defendants. Plaintiff offers nothing, aside from bare
conclusions, to suggest that defendants’ representation of the Products
constitutes a deceptive act or false advertising. The menu board contains no
language to suggest the Products are “made with” the actual fruits for which
they are named. See Compl. ¶ 15. Nor has plaintiff alleged that any
representation made on the menu board runs counter to the actual
ingredients contained in the beverage. To the contrary, plaintiff alleges that
“all of the products are formulated to mimic the taste of the represented
fruits with “Flavored Concentrates.” Compl. ¶ 18. In this court’s view,
plaintiff has failed to plausibly allege that defendants’ menu board, or any
other representation, hides the ball as to the fact that the Products are
merely named after the represented fruits. Accordingly, defendants’ motion
to dismiss the GBL claims (Counts I and II) will be granted.
B. Warranty Claims
Next, defendants seek to dismiss plaintiff’s warranty claims. Plaintiff
brings claims on behalf of herself and the New York Subclass for breach of
express warranty and breach of the implied warranty of merchantability in
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violation of New York Uniform Commercial Code § 2-313 and § 2-314,
respectively. Compl. ¶¶ 54–77. As to the breach of express warranty claim,
Daly alleges that when she and the New York Subclass purchased the
Products, a contract was formed with defendants wherein defendants
represented that the Products were fruit-based. Id. ¶¶ 54–62. Plaintiff
contends this representation constitutes an express warranty that was
breached when the Products did not contain the represented fruits. Id.
Turning to plaintiff’s breach of the implied warranty of merchantability
claim, plaintiff contends that: (1) defendants are merchants with respect to
the Products; (2) by advertising and naming the Products as shown on the
menu boards, defendants made an implied promise to consumers that the
Products contain the represented fruits; and (3) given that the Products do
not contain any real fruit, defendants breached the implied warranty of
merchantability. Compl. ¶¶ 63–77. Stated briefly, defendants now argue
that plaintiff’s breach of express warranty claim fails because she has not
cited to or challenged any express representation. Defendant also argues
plaintiff’s breach of the implied warranty of merchantability fails because
Daly has not plausibly alleged that the Products were unmerchantable.
Defs.’ Mem., Dkt. No. 14-1 at 22–23.
To make out a breach of express warranty claim in New York, a plaintiff
must allege “(1) the existence of a material statement amounting to a
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warranty, (2) the buyer's reliance on this warranty as a basis for the contract
with the immediate seller, (3) breach of the warranty, and (4) injury to the
buyer caused by the breach.” See e.g., Van Orden, 2023 WL 5336813 at *7
(quoting Klausner v. Annie's, Inc., 581 F. Supp. 3d 538, 550 (S.D.N.Y. 2022))
(citations and internal quotations omitted).
For much the same reason that plaintiff’s GBL claims fail as set forth
supra, plaintiff’s breach of express warranty claim also fails to plausibly
allege the existence of any material misrepresentation in defendants’
marketing of the Products. Plaintiff relies on the bare conclusion that the
Products, by virtue of their names on the menu board, induced the belief in
reasonable consumers that they contained real fruit. Given this, the Court
cannot find that Daly plausibly alleges the existence of an express warranty.
Turning to plaintiff’s breach of implied warranty claim, under New York
law, “a warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with respect to goods of that
kind.” N.Y. U.C.C. § 2-314(1). “To be merchantable, goods ‘must be [...] fit for
the ordinary purposes for which such goods are used; and [...] conform to the
promises or affirmations of fact made on the container or label if any.’” Van
Orden, 2023 WL 5336813 at *7 (quoting Cosgrove v. Or. Chai, Inc., 520 F.
Supp. 3d 562, 586 (S.D.N.Y. 2021); see also N.Y. U.C.C. § 2-314(2).
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Similar to plaintiff’s breach of express warranty claim, plaintiff has
offered no allegations to support a finding that any promises or affirmations
of fact were made on the menu board. Plaintiff simply fails to go beyond bare
conclusions in asserting the Products’ labeling tends to deceive or otherwise
mislead a reasonable consumer, and this failure is fatal to plaintiff’s
warranty claims at this stage. Accordingly, defendants’ motion to dismiss the
breach of express warranty (Count III) and breach of the implied warranty of
merchantability (Count IV) will be granted.
C. Unjust Enrichment Claim
Next, defendants seek to dismiss plaintiff’s common law unjust
enrichment claim. Defs.’ Mem., Dkt. No. 14-1 at 25–26. Stated briefly,
plaintiff, on behalf of herself and the Nationwide Class, alleges the
defendants knowingly misrepresented that the Products contained the named
fruits to induce reasonable consumers to pay a premium price for the
Products. Compl. ¶¶ 72–78. Defendants argue that plaintiff only
recirculates the same arguments used to advance their GBL this one, and
that duplicative unjust enrichment claims must be dismissed. Defs.’ Mem,
Dkt. No. 14-1 at 25–26.
Defendant is correct. “Numerous district courts in this Circuit have
dismissed an unjust enrichment claim where the plaintiff alleged facts that
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were duplicative of an alleged violation of GBL §§ 349 and 350.” DeCoursey v.
Murad, LLC, 673 F. Supp. 3d 194, 220 (N.D.N.Y. 2023) (collecting cases).
In support of her unjust enrichment claim, plaintiff does nothing more
than repeat her allegations that the defendants misrepresented the Products
as containing the fruits in their names, charged a premium price for them,
and benefited economically to the detriment of plaintiff and all other
similarly situated individuals. Compl. ¶¶ 72–78.
Thus, Daly fails to plausibly allege any misleading, incorrect, or untrue
statements. To the extent that the complaint alleges that such statements
exist or asserts that the menu board constitutes such a statement, those are
bare conclusions. Defendant's motion to dismiss Plaintiffs’ unjust enrichment
claim (Count V) will be granted.
D. Fraud
Defendants next seek dismissal of plaintiff’s common law fraud claim.
Defs.’ Mem., Dkt. No. 14-1 at 23–25. Plaintiff alleges, on behalf of herself and
the Nationwide Class, that when defendants misrepresented the ingredients
through their naming and advertising of the Products, they knew they did
not contain the fruits they are named after. Id. ¶ 81. As a result, plaintiff
contends defendants knowingly, fraudulently, and materially misrepresented
the Products to consumers. Id. Defendants argue Daly’s fraud claim should
be dismissed for failing to plausibly allege fraudulent intent, instead only
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setting forth conclusory allegations that fail to comport with the heightened
pleading requirements set forth under Rule 9(b). Defs.’ Mem., Dkt. No. 14-1
at 23.
“Under New York law, the elements of a fraud claim are: (1) a material
misrepresentation or omission of fact, (2) made with knowledge of its falsity,
(3) with an intent to defraud, and (4) reasonable reliance on the part of the
plaintiff, (5) that causes damage to the plaintiff. Angeles, 632 F. Supp. 3d at
318 (citing Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir.
1997).
In addition, “fraud claims — including common law fraud claims — are
subject to the heightened pleading standard set forth in Rule 9(b).” Van
Orden, 2023 WL 5336813, at *2 (N.D.N.Y. Aug. 18, 2023) (citing Matana v.
Merkin, 957 F. Supp. 2d 473, 484 (S.D.N.Y. 2013) (“[A] claim for common law
fraud under New York law must satisfy the requirements of the heightened
pleading standard under [Rule] 9(b)”)) (collecting cases). “In alleging fraud or
mistake, a party must state with particularity the circumstances constituting
fraud or mistake.” FED. R. CIV. P. 9(b). Under Rule 9(b), “[m]alice, intent,
knowledge, and other condition of mind of a person may be averred
generally.” Lerner, 459 F.3d at 290 (quoting FED. R. CIV. P. 9(b)).
However, because “we must not mistake the relaxation of Rule 9(b)’s
specificity requirement regarding condition of mind for a license to base
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claims of fraud on speculation and conclusory allegations[,] . . . plaintiffs
must allege facts that give rise to a strong inference of fraudulent intent.” Id.
(quoting Acito v. IMCERA Grp., Inc., 47 F.3d 47, 52 (2d Cir. 1995) (internal
quotation marks and citation omitted)). The requisite “strong inference” of
fraud can be demonstrated “either (a) by alleging facts to show that
defendants had both motive and opportunity to commit fraud, or (b) by
alleging facts that constitute strong circumstantial evidence of conscious
misbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d
1124, 1128 (2d Cir. 1994).
Aside from the fact that plaintiff has not made no allegations of fraud that
comport with the heightened pleading requirements of Rule 9(b), much like
with her unjust enrichment claim, Daly has failed to plausibly allege that
that the defendants misrepresented the Products. Indeed, plaintiff has not
offered any non-conclusory allegations regarding defendants’ marketing and
advertising or the intentions behind them. Defendant’s motion will be
granted as to plaintiff’s fraud claim (Count VI).
E. Leave to Amend
The final question is whether plaintiff should be permitted leave to amend
her complaint, which she has not done in this matter. Notably, Daly did not
request such leave in either her complaint or opposition to the motion to
dismiss. Dkt. Nos. 1, 23. However, under Rule 15(a)(2), leave to amend
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should be freely given “when justice so requires.” FED. R. CIV. P. 15(a)(2).
While liberally granting leave to amend after the dismissal of a complaint
pursuant to Rule 12(b)(6) is favored in this Circuit, it is not warranted where
doing so would be futile. See, e.g., Fish, 705 F. Supp. 3d at 82 (collecting
cases). “[F]utility is a determination, as a matter of law, that proposed
amendments would fail to cure prior deficiencies or to state a claim under
Rule 12(b)(6)[.]” Id. (collecting cases).
Upon review, leave to further amend will be granted. First, while
plaintiff’s complaint has been found deficient for the reasons stated supra,
she has not filed an amended complaint in this matter to date. Next, at this
juncture, and even in light of the fact that plaintiff has not requested leave to
amend, the Court is not inclined to rule that amending the pleadings would
necessarily be futile. Accordingly, plaintiff will be granted thirty (30) days
from the entry of this Decision & Order to file a proposed Amended
Complaint for this Court’s consideration.
V. CONCLUSION
Therefore, it is
ORDERED that
1. Defendants’ motion to dismiss (Dkt. No. 14) is GRANTED;
2. Plaintiff’s complaint is dismissed without prejudice and with leave to
amend;
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3. Plaintiff has until March 11, 2026 to file a proposed Amended
Complaint for this Court’s consideration; and
4. In the event that plaintiff does not file a proposed Amended Complaint
for this Court’s consideration by March 11, 2026, the Clerk is directed to close
the file and enter a judgment accordingly without further Order of this Court.
The Clerk of the Court is further directed to terminate the pending motion
and set deadlines accordingly.
IT IS SO ORDERED.
Dated: February 9, 2026
Utica, New York.
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