NEW YORK - A judge has refused to give class action status to a lawsuit that charges a frozen dessert company fudged figures about its calorie and fat content and caused consumers to gain weight.
Manhattan state Supreme Court Justice Emily Jane Goodman denied Stephen Brandt's request to add possibly thousands of plaintiffs to his lawsuit against CremaLita, saying he had failed to show they would have complaints similar to his.
Brandt sued CremaLita in 2004, saying the maker of low-calorie ice cream in dozens of flavors such as Hawaiian Coconut and Coffee Toffee lied about its caloric, cholesterol and fat content to sell more of it. He alleged fraud and false and deceptive business practices and advertising.
Claiming he was caused to gain weight and suffer other health problems by eating CremaLita, Brandt, 32, sued shortly after the city's Department of Consumer Affairs (DCA) charged that CremaLita lied about having virtually no cholesterol and fat.
DCA later announced that it had been mistaken in saying CremaLita lied, and the agency found that the company had erred only slightly in its calories-per-serving count, CremaLita's court papers say.
The judge said in her decision to dismiss the class action bid that Brandt, a Manhattan law firm paralegal, admitted he had eaten one serving of CremaLita a week for about four months in his firm's cafeteria. The company serves more than 70 flavors of ice cream plus cakes, smoothies and root beer floats.
The judge also said Brandt admitted while answering questions under oath in a deposition that he ate at fast-food restaurants and was unable to do much exercise because of a bad knee. She also noted that a medical examination showed him to be generally in good health.
“Although plaintiff throws out a litany of possible medical conditions typically associated with high fat, high calorie and/or high cholesterol intake (such as diabetes, hypoglycemia, cardiovascular problems and cancer), he appears to suffer none of these afflictions, except for being overweight,” the judge said.
She said Brandt “failed to demonstrate that his claims are typical” of those who would be represented in a class action lawsuit.
“As a result, the court cannot find that the class action mechanism would be a superior method for the fair and efficient adjudication of (Brandt's claims),” the judge wrote in her 13-page decision, which was made public Wednesday.
CremaLita, whose Web site boasts “the freshest, creamiest taste in fat and cholesterol-free ice cream,” has stores throughout Manhattan.
CremaLita Management LLC's lawyer, Philip Sellinger, said Brandt's individual lawsuit, which seeks unspecified damages, is still pending.
“Our hope is that he will walk away,” the lawyer said. “That's what he ought to do.”
He said the case demonstrated “everything that is wrong and everything that is right” about the American legal system.
“First, anybody can file a lawsuit,” he said, “and second, justice will prevail.”
Brandt sued CremaLita in 2004, saying the maker of low-calorie ice cream in dozens of flavors such as Hawaiian Coconut and Coffee Toffee lied about its caloric, cholesterol and fat content to sell more of it. He alleged fraud and false and deceptive business practices and advertising.
Claiming he was caused to gain weight and suffer other health problems by eating CremaLita, Brandt, 32, sued shortly after the city's Department of Consumer Affairs (DCA) charged that CremaLita lied about having virtually no cholesterol and fat.
DCA later announced that it had been mistaken in saying CremaLita lied, and the agency found that the company had erred only slightly in its calories-per-serving count, CremaLita's court papers say.
The judge said in her decision to dismiss the class action bid that Brandt, a Manhattan law firm paralegal, admitted he had eaten one serving of CremaLita a week for about four months in his firm's cafeteria. The company serves more than 70 flavors of ice cream plus cakes, smoothies and root beer floats.
The judge also said Brandt admitted while answering questions under oath in a deposition that he ate at fast-food restaurants and was unable to do much exercise because of a bad knee. She also noted that a medical examination showed him to be generally in good health.
“Although plaintiff throws out a litany of possible medical conditions typically associated with high fat, high calorie and/or high cholesterol intake (such as diabetes, hypoglycemia, cardiovascular problems and cancer), he appears to suffer none of these afflictions, except for being overweight,” the judge said.
She said Brandt “failed to demonstrate that his claims are typical” of those who would be represented in a class action lawsuit.
“As a result, the court cannot find that the class action mechanism would be a superior method for the fair and efficient adjudication of (Brandt's claims),” the judge wrote in her 13-page decision, which was made public Wednesday.
CremaLita, whose Web site boasts “the freshest, creamiest taste in fat and cholesterol-free ice cream,” has stores throughout Manhattan.
CremaLita Management LLC's lawyer, Philip Sellinger, said Brandt's individual lawsuit, which seeks unspecified damages, is still pending.
“Our hope is that he will walk away,” the lawyer said. “That's what he ought to do.”
He said the case demonstrated “everything that is wrong and everything that is right” about the American legal system.
“First, anybody can file a lawsuit,” he said, “and second, justice will prevail.”
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