1 17-2504-cv Jessani v. Monini North America UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United St ates Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 rd day of December, two thousand eighteen. PRESENT: ROBERT A. KATZMANN, Chief Judge , AMALYA L. KEARSE, DENNY CHIN, Circuit Judges

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VINAY JESSANI and WENDY BURNETT, individually, and on behalf of all others similarity situated, Plaintiffs-Appellants , v. No. 17-2504-cv MONINI NORTH AMERICA, INC., Defendant-Appellee

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For Plaintiffs-Appellants: J OSHUA D. A RISOHN , Bursor & Fisher, P.A., New York, NY. For Defendant-Appellee: J EFFREY W ARSHAFSKY (Lawrence I. Weinstein, on the brief ), Proskauer Rose LLP, New York, NY.2 Appeal from a judgment of the United States Di strict Court for the Southern District of New York (Stanton, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiffs in this putative class action, Vina y Jessani and Wendy Burnett, appeal from a judgment entered in favor of defendant Monini North America, Inc. (“Monini”) on August 8, 2017. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s decision on a mo tion to dismiss, “accepting all factual allegations as true a nd drawing all reasonable infere nces in [plaintiffs’] favor.” Hogan v. Fischer , 738 F.3d 509, 515 (2d Cir. 2013). To satisfy the pleading requirements of Fed. R. Civ. P. 8(a), a complaint “must contain sufficient factua l matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Aschroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “Determini ng whether a complaint states a plausible claim for relief will . . . be a context-spec ific task that requires the reviewing court to draw on its judicial expe rience and common sense.” Id . at 679. Plaintiffs here argue that “whether a reas onable consumer is likely to be misled by a labeling claim is almost always an issue of fact that is inappropriate for decision on a motion to dismiss.” Appellants’ Br. at 6. But it is “well se ttled that a court may determine as a matter of law that an allegedly deceptive advertisement would not have misled a reasonable consumer.” Fink v. Time Warner Cable , 714 F.3d 739, 741 (2d Cir. 2013). Acco rdingly, plaintiffs must do more than plausibly allege th at a “label might conceivabl y be misunderstood by some few
consumers.” Ebner v. Fresh Inc. , 838 F.3d 958, 965 (9th Cir. 2016) (internal quotation marks3 omitted). Plaintiffs must plausibly allege “that a significant portion of the general consuming public or of targeted consumers, acting reasona bly in the circumstances, could be misled.” Id. (internal quotation marks omitted). Plaintiffs’ own allegations in this case preclude us from reaching such a conclusion. According to plaintiffs, truffles are the mo st expensive food in the world. Appellants’ App. at 12 (“The rarity of truffles has made th em—at thousands of dollars per pound for Italy’s prized white truffles—the most expensive food in the world.”); see also id. (“In 2007, a Macau casino owner set a record by paying $330,000 for a 3.3-pound truffle unearthed in Tuscany.”). Unlike artificial truffle flavoring—which plaint iffs describe as “a distant cry from...real truffles,” id. — “actual truffles cost hundreds or even thousands of dollars per ounce,” id. at 13. Moreover, real truffles are highly perishable (a real truffle begins “to lose its flavor as soon as it is pulled from the ground”), “seasona l,” and “impossible to mass produce.” Id. at 12. In this context, representations that otherwise might be ambiguous and misleading are not: it is simply not plausible that a significan t portion of the general consumi ng public acting reasonably would conclude that Monini’s ma ss produced, modestly-priced 1 olive oil was made with “the most expensive food in the world.” Id. This is particularly so given th at the product’s ingredient list contains no reference to the word “truffle” and the primary label describes the product only as being “Truffle Flavored.” Accordingly, plainti ffs’ state law consumer protection claims fail. 2

1 Although plaintiffs conveniently omit from their complaint the amount of money plaintiffs paid for Monini’s olive oil, defenda nts represent that a bottle sells for $11.95 at the store Jessani frequented, and, at most, plaintiffs spent $20.95.

2 Plaintiffs’ claims for breach of warranty, negligent misrepresentation, fraud, and unjust enrichment fail for the reasons stated by the district court.4 We have considered all of pl aintiffs’ other contentions on appeal and have found in them no basis for reversal. Thus, the judg ment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk