KFC Sued Because Chicken Isn’t Finger-Licking Overflowing: The Problems of Scant Complaints and a New Civil Procedure

By Stephanie Criscione

This past week, a customer filed a lawsuit against Kentucky Fried Chicken (“KFC”) claiming the television ads KFC released for its “$20 Fill-Up” promotion were false advertising. Anna Wurtzburger, the plaintiff and a woman from the suburbs of Manhattan, is seeking damages of $20 million. Ms. Wurtzburger claims that the KFC $20-Fill Up commercials show an overflowing bucket of chicken, whereas the bucket she purchased contained small pieces of chicken that only filled the bucket about halfway. The five-page complaint barely lists any of the claims or even the facts in dispute other than the plaintiff’s belief that the commercials were deceptive.

(Image) The KFC Logo

Wurtzburger v. KFC is exemplary of inherently unsuccessful consumer cases. The complaints in these types of cases generally do not have the proper elements to survive a Twombly challenge. The overzealous and expedited nature of the complaints in these cases makes them exceptionally more susceptible to a procedural dismissal for a failure to state a claim upon which relief may be granted. Claims like Ms. Wurtzburger’s are unlikely to survive a motion to dismiss. An understanding of the minimal requirements that every complaint must have would get a potentially successful plaintiff, such as Ms. Wurtzburger, to the discovery phase. In a world where more consumer lawsuits survive a motion to dismiss, the ensuing bad press in connection with those claims would help address issues related to the potentially deceptive business practices of larger corporations. A single, successful consumer lawsuit can positively alter how a corporation treats its customers, even if the press surrounding those claims is negative.

Ms. Wurtzburger’s complaint is riddled with problems and gaps that a drafter should avoid in order to survive the Twombly “plausible” hurdle. Under Bell Atlantic Corporation v. Twombly, a complaint “requires more than labels and conclusions . . . [and/or] a formulaic recitation of the elements of a cause of action.” A successful complaint must state enough “[f]actual allegations . . . to raise a right to relief above the speculative level” to survive a motion to dismiss for failure to state a claim upon which relief can be granted. The plaintiff’s complaint in Wurtzburger v. KFC does not cite the section of the New York Business Code under which relief can be sought, nor does it reach beyond legal conclusions and provide enough factual allegations to bring forth deceptive practices and false advertising claims.

The complaint also lists KFC’s principal place of business as New York, likely relying on the address where the plaintiff purchased her meal. Yet, several opinions and complaints properly list Kentucky as KFC’s principal place of business. This unfortunate oversight augments the complaint’s insufficiency under Twombly: If the complaint does not factually label and address the defendant, can there truly be a claim for relief?

(Image) The very first KFC location in South Salt Lake, Utah

This KFC complaint sheds light on a bigger issue in the American legal system: the time and client pressure associated with consumer complaints. Without the basic fundamentals included in a complaint, the case is unlikely to survive, and a possible meritorious claim will be dismissed before the issues can even be addressed. The answer may lie in more prevalent usage of Rule 11 sanctions. Truthfully, the use of Rule 11 in consumer suits is a double-edged sword; more forceful use of Rule 11 in these cases runs the risk of discouraging consumer complaints that should be filed and seen to fruition. Despite the chance of setting a precedent unfavorable to consumers, it remains important to reserve Rule 11 sanctions for only the most egregious infractions. Courts should not permit scant complaints and other submissions, should give them little attention, and they should be subject to immediate dismissal. Cases like Wurtzburger v. KFC should be susceptible to Rule 11.