For one patron of one of Manhattan’s many Pret A Manger sandwich shops, a few inches of empty space in the packaging for the chain’s wraps may be worth millions.
On Monday, the disappointed diner, Yee Ting Lau, filed a class action suit in the Southern District against the chain over the amount of space between the two halves of a wrap she purchased in June and joined a growing list of plaintiffs seeking damages for the air content, or “slack fill,” in their food packaging.
According to her suit, on June 12, Lau went to the Pret A Manger at East 39th Street and Madison Avenue and plunked down $7.49 for a Chakalaka Wrap “on the reasonable assumption that [the] wrap fully occupied the package.”
“But a significant portion of the package was not occupied by the sandwich,” the suit states. Instead, she found a full inch of slack fill between the two halves of her wrap, hidden behind a cardboard “shroud.”
Lau had been tricked into “paying for air,” she alleges in her complaint, and the deception doesn’t stop with her particular menu item: every wrap on the menu, from the Bang Bang Chicken to the Green Goddess Turkey & Avocado contains anywhere from one to two and a half inches of separation in the center.
Lau alleges that Pret A Manger is liable for violations of New York’s Deceptive and Unfair Trade Practices Act and false advertising law, as well as common-law fraud. She says the amount in controversy exceeds $5.5 million, excluding interest and costs.
Lau is represented by C.K. Lee and Anne Seelig of Lee Litigation Group, a firm with some experience with slack fill litigation.
Neither Lee nor Pret A Manger’s press office did not respond to a message requesting comment.
The suit is the latest in a growing flood of food class action suits, which include slack fill cases but more commonly are suits filed by plaintiffs who say their food is deceptively labeled as “natural” or “preservative free.”
According to a report from the U.S. Chamber of Commerce’s Institute for Legal Reform released in February, there were 10 slack fill suits filed in 2013 and 2014. In 2015 and 2016, that number ballooned to 65.
The report states that the Northern District of California is the most popular venue for food class actions, but that New York’s Eastern and Southern Districts are seeing a surge in filings.
According to Mondelez International, a snack conglomerate that has faced off in the courtroom with Lee Litigation in slack fill suits, the firm has filed at least 14 slack fill class actions.
Last year, Southern District Judge Colleen McMahon tossed out a suit that Lee Litigation filed against Mondelez on behalf of plaintiffs who argued that packages of Sour Patch Watermelon Candy can hold 44 percent more candy than they do.
McMahon brushed off Mondelez’s argument that, because it accurately lists the quantity and weight of the product on the packaging, it is immune from suit, but dismissed the complaint because the plaintiffs failed to show injury.
In January, Lee Litigation filed another suit against Mondelez in the Eastern District over the packaging of Swedish Fish. A motion to dismiss for failure to state a claim is pending.