We have (less of) the meats: court mostly denies Arby's motion to dismiss in misleading photos case

Alongis v. Arby’s Restaurant Group, Inc., 2025 WL 2772810, 2:23-cv-6593(NJC) (LGD) (N.D.N.Y. Sept. 29, 2025)

The court declines to dismiss claims under the NY GBL thatArby’s photographs misrepresented (1) whether its roast beef was rare ratherthan fully cooked and (2) the amount of meat in a sandwich by at least 100%. Thephotos are on Arby’s website, on menu ordering boards located within the store,and in the drive-through at every Arby’s store location in New York such that,plaintiff alleged, “every customer will view said photographs prior to the timeof the purchase.”

Rare roast beef:  Itwas plausible that the photos would mislead reasonable consumers, since they visuallydepict reddish, light-colored meat, which is associated with rare, rather thanfully-cooked, roast beef. The claim could not be dismissed as puffery; thephotos weren’t “subjective statements of opinion which cannot be proven false.”Rather, it can be readily determined whether the meat actually used in thephotographs consisted of rare meat. Nor was the photo “patently hyperbolic” andthus unreliable. Even in the context of a relatively lower priced and fast meal,it was plausible that a reasonable consumer would believe they’d receive rareroast beef. Thus, “a fact-intensive inquiry on how a reasonable buyer wouldreact” was required. The court distinguished cases where an ingredients listwould disclose the truth, as well as cases involving verbal statements thatwere puffery, because the photos here were “both provable as true or false andalso plausibly deceptive and misleading.”

Unlike some other courts, the court here also allowed theplaintiff (at this stage!) to include online purchasers in his proposed classdefinition, because the alleged misrepresentations were identical.

Volume misrepresentation: Similar reasoning with respect tonon-half pound sandwiches. “The advertisements of the Half Pound Roast Beef andHalf Pound Beef ‘N Cheddar sandwiches consist not only of the photographs ofthese Sandwiches, but also their names, which are additional affirmativestatements communicating that each of these two Sandwiches contain a half poundof meat.” It was implausible that a consumer ordering a Half Pound Sandwichcould do so without actually using the name, and there was no allegation thatthey received less than a half a pound of meat. For the other sandwiches, “ineach photograph used in the advertisements, the meat in the sandwichesplausibly appears to constitute at least double the amount of meat in thesandwiches actually purchased.” Other cases involving only photos of singleingredients were inapposite.