by Richard W. Millar, Jr.

When I went to law school a half century ago, we were told there were various legal maxims which were so important that they were ultimately codified. One of those was to the effect that the law does not concern itself with trifles. It makes a lot of practical sense.

But it is routinely ignored.

One workaround, if indeed a workaround was necessary, was the advent of the class action which could be described by paraphrasing an old saying: “One man’s trifle is another man’s class action.”

A class action is the “cure” when a person’s claim is worth less than a court filing fee and no person with any sense of economic perspective would ever pursue it. By bundling a trivial claim with an unknown number of similarly marginally worthless claims, a “basket of trifles” (to paraphrase a phrase from a past election) is created in which the sum of the nominal parts becomes an economic incentive that cannot be ignored.

Which brings me to ice cream. I remember from my youth the then popular song, “I scream, you scream, we all scream for ice cream.”

But instead of screaming, one Jenna Marie Duncan sued. In federal court in New York. And, of course, as a class action.

A couple of years ago at a Cold Stone Creamery in Levittown, she “was confronted with [a] lovely array—a literal and figurative smorgasbord of confectionery choices: summoning significant restraint, [she] limited her order solely to the bin marked ‘Pistachio.’” According to her complaint, she assumed that Pistachio ice cream contained pistachios. She later learned that, Heaven forbid, it was only pistachio flavor without real pistachios.

As is so often the case in stories, however, heartbreak followed: by later reviewing
defendant's ingredients list on its website, plaintiff learned that the products “use a mixture
of highly processed ingredients to mimic the flavor of the . . . nuts, and other ingredients specified in the Products’ names[.]”

In other words, it contained pistachio flavoring but no nuts and, of course, she would not have purchased it or would have paid less had she known. Curiously, her complaint does not aver that she didn’t like the ice cream or that it didn’t taste like pistachio, nor does she disclose why she later sought to investigate the ingredients.

In any event, her suit claimed not only that Pistachio ice cream did not contain pistachios, the Mango, Coconut, Mint, Orange, and Butter Pecan versions were similarly bereft of their namesakes, although Butter Pecan missed only the butter.

According to a court opinion, her initial complaint was filed in December, 2022, “when, presumably, the summertime longing to purchase ice cream had waned.” In July, 2023, the court granted the defendant’s motion to dismiss with leave to amend. Her amended complaint added consumer survey information to back up the claim that consumers would expect that Pistachio ice cream would contain pistachios. The survey asked respondents which ingredients they would expect to find in Pistachio ice cream to which they unsurprisingly volunteered “pistachio.” The survey did not ask if they cared if there were or were not real pistachios so long as it was pistachio flavored.

The defendants moved to dismiss the amended complaint.

The District Court on May 22, 2024, a year and half after the complaint was filed, granted the motion and dismissed her claims as to the non-pistachio flavors that she had never purchased, but denied the motion as to the pistachio purchase.

I think she is onto something and that I, too, will sue.
I had some Rocky Road ice cream the other day, and I could swear that it did not contain real rocks.

Richard W. Millar, Jr. is tired and retired. He can be reached at dickmillar9@gmail.com.