Despite their predecessors largely missing the mark, a new batch of plaintiffs has taken aim at quick-service restaurants’ meal pricing. In the suits, plaintiffs allege that the defendant restaurants deceived them by charging more than advertised for various meal deals. However, courts have been largely unreceptive to such claims, holding that customers cannot be deceived when they receive the food they ordered and can compare prices for themselves prior to purchase.

Last month, Taco Bell removed a suit filed by a husband and wife to New Jersey federal court. The suit alleged that the restaurant deceptively advertised its Cravings Boxes. According to the complaint in Estrella-Rosales v. Taco Bell Corp., the plaintiffs viewed a 30-second television commercial advertising Taco Bell’s Chalupa Cravings Box for $5. The plaintiffs claim they then drove to their local Taco Bell, where they ordered two Chalupa Cravings Boxes. However, instead of paying $10 for the two boxes, the plaintiffs allege they were charged $12.18 for both boxes, exclusive of sales tax.

When they inquired as to the price difference, the plaintiffs claim they were told the restaurant did not have to charge what was advertised and that the difference was “covered with the legal fine print.” The plaintiffs concede in their complaint that the television ad contained language stating that “prices may vary,” but allege that such a clause violates New Jersey’s consumer protection statute.

A few days prior, the plaintiff in Dabir v. McDonald’s Corp. filed a putative class action in the Central District of California alleging McDonald’s, the individual McDonald’s restaurant and its franchisee deceptively advertise menu items on McDonald’s Value Menu. In the suit, the plaintiff alleges that he saw ads in his local restaurant that included the Sausage McMuffin on its $1 menu. Allegedly relying on the in-store advertising, the plaintiff purchased two sandwiches but didn’t realize until he left the restaurant that he’d paid $1.89 for each sandwich.

According to the plaintiff, he could not have discovered the true pricing of the sandwiches until after his purchase. The plaintiff seeks to represent a California class of consumers similarly deceived.

Prior decisions in similar meal deal cases suggest the Estrella-Rosales and Dabir plaintiffs face an uphill battle. In Killeen v. McDonald’s Corp., the plaintiff alleged that McDonald’s deceptively advertised and sold its Extra Value Meals because it was actually cheaper to purchase the menu items a la carte than together in a meal. In dismissing the complaint, the Northern District of Illinois held that the plaintiff never alleged the menu prices were unavailable to her at the time of purchase. In fact, the court noted that “anyone familiar with fast-food restaurants … surely knows that prices are typically displayed on menus located near the registers.”

As a result, the court held that while the plaintiff may not have wanted to take the time to compare prices prior to purchase, there was no way she could have been deceived had she simply taken the time to do so. In that crucial respect, the court differentiated the case from typical food-labeling cases where consumers needed to read ingredient lists or other fine print to discover the alleged deception.

In a similar decision, the Southern District of New York dismissed a plaintiff’s claims in Wurtzburger v. Kentucky Fried Chicken. In that case, plaintiff brought a pseudo slack-fill claim, alleging that KFC deceptively advertised its $20 Fill-Up Buckets of chicken by showing a bucket overflowing with chicken. While the plaintiff admitted she received the eight pieces of chicken advertised in the ads, the chicken didn’t overflow the bucket like the ads showed.

As a result, the plaintiff claimed that KFC should either use a smaller bucket so the eight pieces overflowed like in the ads or give her more than eight pieces so the bucket overflowed even though the food product she purchased would be no different. In dismissing the claim, the court held that her suit failed to state a claim because she received exactly as much chicken as was advertised and as she ordered.

Meal-deal suits differ from the typical packaged-food claim in that plaintiffs usually receive exactly what they order. Rather, they just claim they were charged too much for what they ordered. However, the nature of quick-service restaurants has typically been fatal for these claims, given the menu boards featured prominently for consumers to view and the order totals given to customers prior to receiving their meals. To succeed, plaintiffs therefore must somehow convince courts that it was reasonable for them to neither stop to compare prices prior to ordering nor inquire about the price discrepancy at the time of purchase and before receiving their food.

Time will tell whether the Estrella-Rosales and Dabir plaintiffs can get past motions to dismiss. The plaintiffs may theoretically present viable claims by demonstrating pricing that is less transparent than is typical of most quick-service restaurants. But the Killeen and Wurtzburger decisions suggest that most meal-deal plaintiffs will have a tough time explaining to the courts why they didn’t realize the price differences prior to purchase.

Benjamin Abel is an associate at McGuireWoods LLP in Charlottesville, Virginia. He focuses on products and consumer litigation, but also has experience in a number of civil litigation areas, including transportation law and general business litigation.

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