Leslie Reilly v. Chipotle Mexican Grill, Inc.

711 F. App'x 525
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 4, 2017
Docket16-17461 Non-Argument Calendar
StatusUnpublished
Cited by1 cases

This text of 711 F. App'x 525 (Leslie Reilly v. Chipotle Mexican Grill, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leslie Reilly v. Chipotle Mexican Grill, Inc., 711 F. App'x 525 (11th Cir. 2017).

Opinion

PER CURIAM:

Leslie Reilly appeals the summary judgment in favor of Chipotle Mexican Grill, Inc. Reilly complained,' on behalf of herself and other Floridian's, that Chipotle had violated the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201-.213, and had been unjustly enriched by falsely advertising that it had eliminated genetically modified ingredients from its menu. The district court entered summary judgment against Reilly’s claim that Chi-potle . violated the Act and dismissed as moot Reilly’s motion to stay a ruling on the motion for summary judgment pending additional discovery, Fed. R. Civ. P. 56(d). Reilly challenges those rulings. The district court also entered summary judgment against Reilly’s claim of unjust enrichment, and as Reilly does not contest that ruling, we deem that claim abandoned. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir. 2012). After careful consideration, we affirm.

I. BACKGROUND

Chipotle operates a chain of fast-food restaurants that serve Mexican fare. On April 27, 2015, Chipotle announced that it had “mov[ed] to only non-GMO ingredients to make all of the food in its U.S. restaurants.” On its webpage, Chipotle stated that “[t]he meat and dairy products we buy come from animals that are not genetically modified!)]” yet “it is important to note that most animal feed in the U.S. is genetically modified, which means that the meat and dairy served at Chipotle are likely to come from animals given at least some GMO feed.” Chipotle restaurants displayed menu panels and window clings saying “Farewell to GMOs” and “all of our food is non-GMO,” and directing customers to “chipotle.com/gmo.” In June 2015, Chi-potle switched to menu panels and window clings stating that it served “Food with Integrity” and “[tjhis includes ... only non-GMO ingredients.”

Reilly began consuming Chipotle items in 2010 on the recommendation of a friend’s son. Thereafter, she visited a Chi-potle restaurant an average of once a month. Reilly routinely ordered a chicken burrito with cheese, lettuce, black beans, and brown rice and paid $10.37 for her order. Reilly, who had been a personal trainer, testified that she was always satisfied with her meal.

In April 2015, Reilly noticed the signs at Chipotle touting that its ingredients were free of non-genetieally modified organisms. She was “pleasantly surprised and [thought], Oh, how nice.” Reilly continued to visit Chipotle monthly and to purchase the same meal for the same price. Both before and after the advertising campaign, Reilly thought that the food she received was a “good value” for her money. Occasionally, she ordered her meals online. On at least one occasion, she reviewed “briefly” the ingredient statement and noticed that it stated “the animals are given, at least, some GMO feed.”

The meat and dairy products at Chipotle became a topic of discussion between Reilly, other personal trainers, and her attorney, who also had represented Reilly in a successful lawsuit against another restaurant for false advertising. Reilly formed the opinion that, “if an animal is eating feed that contains GMO, its in the animal” and “in the dairy for the cheese” because the genetically modified organisms would be “in the milk, the blood, on a cellular level.” Reilly thought that “the chickens that are eating the genetically modified feed ... would have ... the GMOs that would be in the food,” but she did not investigate what effects the food had on her body.

In August 2015, after Reilly discussed the Chipotle advertising with her attorney, she stopped eating at Chipotle and began frequenting Lime, which is also a Mexican grill. Lime advertises that its food is “healthy,” but does not offer ingredients without genetically modified organisms. Reilly’s cost of ordering a chicken and cheese burrito at Lime was “about the same as Chipotle; maybe $1.00 more,”

Reilly filed a class action against Chipo-tle for violating the Deceptive Practices Act and for unjust enrichment. Reilly alleged that Chipotle had “misbranded” its products because “meat and cheese products that come from animals that consume GMO feed are in fact GMO products, and not GMO-free as advertised.” She also alleged that she and other consumers had “pa[id] a premium price for products that do not satisfy the minimum standards established by law for [non-genetically modified] products and ... for products that contain ingredients that are not disclosed.” Reilly defined a “genetically modified organism” as “an organism whose genetic material has been altered in an unnatural way.” Reilly requested injunctive relief and monetary damages.

Chipotle filed a motion to dismiss Reilly’s complaint, which the district court granted in part and denied in part. The district court ruled that Reilly “fail[ed] to allege a threat of real or immediate [future] injury” to give her standing to pursue injunctive relief under the Deceptive Practices Act and dismissed without prejudice that count of Reilly’s complaint. The district court ruled that Reilly’s claims for monetary relief under the Deceptive Practices Act and for unjust enrichment alleged facts sufficient to avoid dismissal.

Chipotle moved for summary judgment on the ground that Reilly lacked standing -to sue for a violation of the Deceptive Practices Act or for unjust enrichment. Chipotle argued that Reilly had not been deceived by the advertising because she had seen the online disclosure about the animal feed containing genetically modified ingredients and because she knew the meat had not been sourced from genetically modified animals. Chipotle also argued that Reilly had not been damaged because she “paid no more for the Chipotle food products advertised as having been prepared with only ‘non-GMO ingredients’ than she previously did for ... products that were not so advertised”; she had testified that the Chipotle food was not worthless; and she was not requesting reimbursement for the meals she purchased. Chipotle attached to its motion a declaration from Margaret Mellon, an expert in molecular biology, that the consumption of feed containing genetically modified organisms did not “convert a non-GM chicken, pig or cow into a GM animal” because “[t]he individual chemicals resulting from digestion, including those absorbed by the body, are not [genetically modified].” Mellon explained that “[o]rganisms are biological entities that can reproduce and respond to their surroundings” so “[t]he chemical mixtures that result from the digestion of GM grains do not have those properties; they are not living organisms.”

Reilly opposed the motion for summary judgment. Reilly argued that she had been deceived and submitted a report from Catherine Adams Hutt stating that, for meat and dairy to be classified as “non-GMO,” the items “must” be sourced from animals that consume feed satisfying the non-GMO standards established by the USDA National Organic Program, the Non-GMO Verification Project, and the GMO Guard.

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Bluebook (online)
711 F. App'x 525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leslie-reilly-v-chipotle-mexican-grill-inc-ca11-2017.