17-2504-cv
Jessani v. Monini North America

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

               At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 3rd day of December, two thousand eighteen.

PRESENT:
                  ROBERT A. KATZMANN,
                      Chief Judge,
                  AMALYA L. KEARSE,
                  DENNY CHIN,
                      Circuit Judges.


VINAY JESSANI and WENDY BURNETT,
individually, and on behalf of all others similarity
situated,

                            Plaintiffs-Appellants,

                  v.                                                      No. 17-2504-cv

MONINI NORTH AMERICA, INC.,

                            Defendant-Appellee.


 For Plaintiffs-Appellants:                              JOSHUA D. ARISOHN, Bursor & Fisher, P.A.,
                                                         New York, NY.

 For Defendant-Appellee:                                 JEFFREY WARSHAFSKY (Lawrence I.
                                                         Weinstein, on the brief), Proskauer Rose LLP,
                                                         New York, NY.

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        Appeal from a judgment of the United States District Court for the Southern District of

New York (Stanton, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiffs in this putative class action, Vinay Jessani and Wendy Burnett, appeal from a

judgment entered in favor of defendant Monini North America, Inc. (“Monini”) on August 8,

2017. We assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.

        We review de novo a district court’s decision on a motion to dismiss, “accepting all

factual allegations as true and drawing all reasonable inferences in [plaintiffs’] favor.” Hogan v.

Fischer, 738 F.3d 509, 515 (2d Cir. 2013). To satisfy the pleading requirements of Fed. R. Civ.

P. 8(a), a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 679.

        Plaintiffs here argue that “whether a reasonable consumer is likely to be misled by a

labeling claim is almost always an issue of fact that is inappropriate for decision on a motion to

dismiss.” Appellants’ Br. at 6. But it 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). Accordingly, plaintiffs must do

more than plausibly allege that a “label might conceivably be misunderstood by some few

consumers.” Ebner v. Fresh Inc., 838 F.3d 958, 965 (9th Cir. 2016) (internal quotation marks



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omitted). Plaintiffs must plausibly allege “that a significant portion of the general consuming

public or of targeted consumers, acting reasonably in the circumstances, could be misled.” Id.

(internal quotation marks omitted). Plaintiffs’ own allegations in this case preclude us from

reaching such a conclusion.

       According to plaintiffs, truffles are the most expensive food in the world. Appellants’

App. at 12 (“The rarity of truffles has made them—at thousands of dollars per pound for Italy’s

prized white truffles—the most expensive food in the world.”); see also id. (“In 2007, a Macau

casino owner set a record by paying $330,000 for a 3.3-pound truffle unearthed in Tuscany.”).

Unlike artificial truffle flavoring—which plaintiffs describe as “a distant cry from…real

truffles,” id.— “actual truffles cost hundreds or even thousands of dollars per ounce,” id. at 13.

Moreover, real truffles are highly perishable (a real truffle begins “to lose its flavor as soon as it

is pulled from the ground”), “seasonal,” and “impossible to mass produce.” Id. at 12. In this

context, representations that otherwise might be ambiguous and misleading are not: it is simply

not plausible that a significant portion of the general consuming public acting reasonably would

conclude that Monini’s mass produced, modestly-priced1 olive oil was made with “the most

expensive food in the world.” Id. This is particularly so given that the product’s ingredient list

contains no reference to the word “truffle” and the primary label describes the product only as

being “Truffle Flavored.” Accordingly, plaintiffs’ state law consumer protection claims fail.2




       1
          Although plaintiffs conveniently omit from their complaint the amount of money
plaintiffs paid for Monini’s olive oil, defendants represent that a bottle sells for $11.95 at the
store Jessani frequented, and, at most, plaintiffs spent $20.95.
       2
        Plaintiffs’ claims for breach of warranty, negligent misrepresentation, fraud, and unjust
enrichment fail for the reasons stated by the district court.
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       We have considered all of plaintiffs’ other contentions on appeal and have found in them

no basis for reversal. Thus, the judgment of the district court is AFFIRMED.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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