In 2002, parents of obese children sued McDonald’s Restaurants of New York, Inc and particularly the McDonald’s at 2630 Jerome Avenue, Bronx, New York (collectively “McDonald’s”) alleging that McDonald’s engaged in deceptive business practices related to selling their kids food that made them obese. Pelman v. McDonald’s Corp., 2010 WL 4261390 (S.D.N.Y.) (Opinion by Chief Judge Donald Carl Pogue, sitting by designation). After a few years of procedural wrangling, the Plaintiffs were able to seek class certification.
Parents claimed their children had been deceived by a variety of “television, radio, internet, magazine, periodical, in-store poster advertisements and press releases,” which collectively caused injury. Id at 3. The allegations were that McDonald’s falsely claimed that its food was nutritious and reasonably included in a normal healthy diet. Id. at 4. Plaintiffs claimed that eating McDonald’s food caused increases in bad cholesterol, heart disease, pediatric diabetes, and high blood pressure. Id.
The decisive issue was Plaintiffs’ request for class certification. Plaintiffs estimated the class to include thousands of individuals, if not more. The court engaged in the standard analysis of Fed.R.Civ.P. 23(a) discussing the requirements of numerosity, commonality, typicality, and adequacy of representation. It, however, focused on the predominance requirement of Fed.R.Civ.P. 23(b)(3). Plaintiffs argued that they satisfied the requirements of this rule, which requires that “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.” Here the court parted ways with the Plaintiffs’ argument.
The court’s predominance analysis focused on whether the Plaintiffs’ claims were appropriate for more generalized proof applicable to the class as a whole as opposed to an individualized inquiry. Id. at 6. Plaintiffs offered a physician as their expert. He opined that a causal link existed between the claimed medical injuries and eating at McDonald’s. The court concluded, however, that “many foods are high in fat, salt, and cholesterol, low in fiber and certain vitamins, and contain beef and cheese, and because there is no evidence to suggest all who consume such foods develop the kinds of medical conditions which are at issue in this case,” an individualized inquiry predominates over a “generalizable causal connection.” Id. at 8.
Another of Plaintiffs’ experts opined that “increasing weight results from an imbalance between calories consumed (nutrition) and energy expended (physical activity).” Id. at 9. From these opinions, the court concluded that an individualized inquiry of what each child ate, how much each exercised, and where they ate (McDonalds or Subway) would be necessary and predominate. Consequently, the court ruled that the case was not appropriate for adjudication on a class-wide basis. Id.
One interesting consideration for McDonald’s would have been whether to file counterclaims against the parents for their roles in allowing their children to eat too much fast food. Conceivably, such individualized issues could have been considered in the class action certification analysis.
 This was an apparent attempt to defeat subject matter jurisdiction based on diversity.