Antitrust Law Daily Wrap Up, ADVERTISING—E.D.N.Y.: Arby’s can’t escape claims that it misled consumers about the quality and quantity of its meats, (Oct 1, 2025)

By Donielle Tigay Stutland, J.D.

The court found the consumer sufficiently pleaded misrepresentations about Arby’s beef being rare, but dismissed claims related to the volume of the Half Pound Roast Beef and Half Pound Beef ’N Cheddar sandwiches.

The U.S. District Court for the Eastern District of New York denied in part a motion to dismiss a proposed consumer class action that fast food restaurant operator Arby’s Restaurant Group, Inc. misled consumers with respect to seven of its sandwiches. Joseph Alongis filed a complaint on behalf of himself and other New York consumers alleging that Arby’s advertisements misrepresented that the sandwiches contain rare roast beef and contain at least double the amount of meat than what is actually sold to consumers. The court denied the motion to dismiss finding that the named consumer had standing to bring a claim related to all seven types of sandwiches, even if he didn’t purchase them all, because the consumer suffered actual injury as a result of Arby’s alleged misrepresentations and Arby’s alleged misrepresentations implicate the same set of concerns with respect to the Purchased Sandwiches and Unpurchased Sandwiches. The named consumer also was found to have standing to bring the suit on behalf of consumers who used online methods to purchase their sandwiches, even though the named consumer did not use such methods himself to order and purchase. The court concluded that although the named consumer did not use online purchase methods, he suffered an actual injury as a result of Arby’s alleged misrepresentations and Arby’s alleged misrepresentations implicate the same set of concerns with respect to online ordering. The court found the consumer sufficiently pleaded misrepresentations about Arby’s beef being rare, but he failed to plausibly plead that Arby’s misled consumers about the volume of beef in two of its sandwiches, the Half Pound Roast Beef and Half Pound Beef ’N Cheddar, so claims related to those sandwiches were dismissed (Alongis v. Arby’s Restaurant Group, Inc., No. 2:23-cv-06593-NJC-LGD (E.D.N.Y. Sept. 29, 2025)).

Background Facts. The consumer alleges that Arby’s used “materially false and misleading advertisements,” which include photographs that “represent to consumers that the [Sandwiches] contain, at a minimum, 100% more meat than contained in the actual menu item customers receive and that Arby’s roast beef sandwiches contain rare roast beef.” Specifically, the suit names seven sandwiches Arby’s Classic Roast Beef, Double Roast Beef, Half Pound Roast Beef, Classic Beef ’N Cheddar, Double Beef ’N Cheddar, Half Pound Beef ’N Cheddar, and Smokehouse Brisket sandwiches (“Sandwiches”).

The Amended Complaint alleges that due to Arby’s advertisements using the allegedly misleading photographs, consumers “ma[d]e purchases that they would not have otherwise made” or “pay a premium” for the Sandwiches “they otherwise would not have” paid and “receiv[ed] a product that is materially lower in value than what” the advertisements “represented.” The Amended Complaint brings claims for violations of New York General Business Law §§ 349 and 350 (“Section 349” and “Section 350”) on behalf of two proposed classes with overlapping membership.

Class Standing. The court first addressed Arby’s argument that the suit should be dismissed due to a lack of standing. Arby’s argues that the consumer lacks standing to assert two sets of claims: (1) claims brought on behalf of the Class and Subclass regarding the Unpurchased Sandwiches, and (2) claims brought on behalf of the Class regarding all Sandwiches purchased through the Online Ordering Services, which Alongis himself did not use.

With respect to sandwiches that the named consumer did not purchase himself, he argued that he has class standing to assert claims regarding the Unpurchased Sandwiches at the pleading stage because these sandwiches are “substantially similar” to the Purchased Sandwiches and because “the alleged misrepresentation, that Arby’s advertises [the Sandwiches] as containing, at a minimum, double the amount of meat that is contained in the actual product,” and “rare roast beef[,] are the same.”

With respect to his claims on behalf of the Class regarding purchases made through the Online Ordering Services, the consumer argues that he “need only establish that he has standing to pursue his own claim, not the claims of other class members,” and that whether he “can represent other unidentified members of the [Class], is a question that should be addressed at the class certification stage of this lawsuit.”

The court found that the named consumer established class standing to bring claims on behalf of all class members, both of which include consumers who bought the same two sandwiches as the named consumer (the Purchased Sandwiches) as well as consumers who bought at least one of the five sandwiches that the named consumer did not purchase (the Unpurchased Sandwiches). The court first noted that the consumer plausibly alleged that he personally suffered some actual injury as a result of Arby’s putatively illegal conduct. The court found the consumer met the second element of the class standing standard because Arby’s conduct alleged to have injured him “implicates the same set of concerns as the conduct alleged to have caused injury to other members of the putative class[es] by the same defendant[].” Moreover, the court indicated that the consumer alleges that Arby’s misrepresented the amount and characteristics of the meat in all of the Sandwiches through the same means: it’s use of misleading photographs in its advertisements viewed by consumers prior to purchasing the items.

As such the court found that the consumer has class standing to bring claims on behalf of the Class at this stage of the litigation notwithstanding the fact that he allegedly did not buy any of the Sandwiches through any of the Online Ordering Services. The court noted that the Class claims do not require “[e]ntirely unique evidence” to prove that the photographs for the Sandwiches viewed on the Online Ordering Services are false and misleading. The court denied the motion to dismiss.

Misrepresentations. The court next addressed Arby’s arguments that the consumer failed to sufficiently plead two types misrepresentations by the fast food chain. According to the Amended Complaint, the consumer pleaded that Arby’s “use[d] photographs in its advertisements that make it appear that the [Sandwiches] contain at least 100% more meat than what the actual sandwiches that customers receive contain.” According to the Amended Complaint, the consumer plead that photographs Arby’s “use[d] . . . in its advertisements” also “deceptively misrepresent[] the quality of the roast beef” in the Sandwiches, because the photographs “show[] the meat” in the Sandwiches “as rare roast beef . . . when the roast beef regularly served to customers is not the rare roast beef as advertised but fully cooked roast beef.”

Arby’s first argued that the Amended Complaint does not plausibly allege that reasonable consumers would be deceived by Arby’s advertisements because they are “non-actionable puffery” and do not contain affirmative statements about the amount of meat in each Sandwich or the degree to which the meat in the Sandwiches is cooked. The court rejected this argument and determined that the Amended Complaint plausibly alleges Section 349 and Section 350 claims against Arby’s use of advertisements featuring photographs that allegedly misrepresented that the Sandwiches contain rare roast beef. Arby’s puffery defense was not sufficient as to the Rare Roast Beef Misrepresentation Claims at the pleading stage. Contrary to Arby’s argument, its photographic advertisements of the Sandwiches are not subjective puffery because they do not consist of “subjective statements of opinion which cannot be proven false.”

With respect to the volume claims, the court dismissed claims related to two of the fast food chain’s sandwiches, the Half Pound Roast Beef and Half Pound Beef ’N Cheddar. The advertisements of the Half Pound Roast Beef and Half Pound Beef ’N Cheddar sandwiches consist not only of the photographs of these Sandwiches, but also their names, which are additional affirmative statements communicating that each of these two Sandwiches contain a half pound of meat. Moreover, the court pointed out that the Amended Complaint does not allege that customers who purchased the Half Pound Sandwiches received less than a half a pound of meat as stated in the names of the Half Pound Sandwiches.

Wrote the court, “it is implausible that any consumer seeking to purchase the Half Pound Sandwiches would be misled to believe that the sandwiches contain more than double the meat shown in the alleged photographic advertisements because the name of each Sandwich references that the sandwiches each contain half a pound of meat and the names of the sandwiches are used in the ordering process, whether the purchase takes place in store, at a drive-through, or through an Online Ordering Service.” The court dismissed the claims related to these sandwiches, having concluded that the Amended Complaint “fails to plausibly allege that a reasonable consumer acting reasonably under the circumstances would be misled by the advertisements for the Half Pound Sandwiches regarding the volume of meat contained in each Sandwich because the volume is explicitly addressed in the name of these sandwiches.”

The Case is No. 2:23-cv-06593-NJC-LGD.

Judge: Choudhury, N.

Attorneys: James Clayton Kelly (Russo Firm) for Joseph Alongis. Elizabeth Anne Buckel (Alston & Bird LLP) for Arby's Restaurant Group, Inc.

Companies: Arby's Restaurant Group, Inc.

Cases: Advertising StateUnfairTradePractices NewYorkNews