Chipotle Non-GMO Class Action Survives Motion to Dismiss

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Following denial of the defendant’s motion to dismiss, a consumer class action lawsuit against Chipotle Mexican Grill Inc. will continue – though not with the injunction the plaintiff had hoped to secure.

Plaintiff Leslie Reilly filed the class action lawsuit against Chipotle in September 2015, claiming the company falsely promotes its food as containing no genetically modified organisms, or “non-GMO.”

In denying Chipotle’s motion to dismiss, U.S. District Judge Marcia G. Cooke allowed Reilly’s claims for unjust enrichment and violation of Florida consumer protection laws to continue.

Defendant Chipotle runs a nationwide chain of “fast casual” restaurants serving Mexican-inspired food.

According to Reilly, Chipotle advertises that “all of [its] food is non-GMO.” Reilly says she understood these statements to mean that not only the animals involved in producing the food were not genetically modified but that the food those animals ate was also non-GMO.

The Chipotle class action lawsuit says Reilly bought food from Chipotle understanding the term “non-GMO” to include what the source animals were fed. She later found out that the meat and dairy products in her food came from animals that had been fed GMO corn, soy and other products, she alleges.

Chipotle argued that Reilly’s class action lawsuit should be dismissed because it does not specify which Chipotle products she bought. The company argued her allegations were too “vague and conclusory.”

Judge Cooke disagreed. She noted that while “each successive stage in a lawsuit requires a plaintiff to support factual allegations with greater specificity,” at the pleading stage Reilly needs only to raise “general factual allegations of injury resulting from the defendant’s conduct.”

Judge Cooke concluded that the Chipotle class action lawsuit had successfully raised such allegations by claiming Reilly suffered monetary loss when she paid a premium price for GMO-containing food, in reliance on Chipotle’s alleged misrepresentation that it was non-GMO.

The defendant also tried to argue that Reilly’s idea of “non-GMO” is implausible and “nonsensical.” The idea that the term “non-GMO” must also refer to the feed on which animals were raised “would not plausibly be espoused by a reasonable consumer,” the company argued.

Judge Cooke concluded that an applicable definition of “non-GMO” would have to be determined on the basis of more evidence to be produced later in the course of the litigation, as would the question of whether a reasonable consumer would adopt Reilly’s definition of the term.

Chipotle did succeed in knocking down Reilly’s request for an injunction under the Florida Deceptive and Unfair Trade Practices Act. Judge Cooke found that Reilly had failed to allege a threat of real and immediate harm that would result if Chipotle was allowed to continue its conduct.

If Reilly’s proposed Class is certified, this Chipotle class action lawsuit will be open to all Class Members who bough allegedly GMO food from Chipotle stores in Florida.

Plaintiff’s counsel is Howard M. Bushman, Sara C. Engel and Lance A. Harde of Harke Clasby & Bushman LLP.

The Chipotle Non-GMO Class Action Lawsuit is Reilly v. Chipotle Mexican Grill Inc., Case No. 1:15-CV-23425 in the U.S. District Court for the Southern District of Florida.

UPDATE: On June 17, 2016, Chipotle submitted a 23-page request for summary judgment asking that a Florida federal court judge dismiss the lawsuit on grounds that the plaintiff was not deceived regarding what she purchased and she did not pay a premium price for it.

UPDATE 2: On Aug. 8, 2016, the plaintiffs tried to convince a judge to require Chipotle to submit internal documents for review.