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Duncan v. Kahala Franchising LLC

Court Resolves Issues in Deceptive Practices, Warranty Suit Over Pistachios in Ice Cream

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MEMORANDUM OF DECISION AND ORDER “They say all my flavors are guaranteed to satisfy.” -Van Halen, “Ice Cream Man” Archeological evidence suggests that humans have been snacking on pistachios since the Bronze Age.1 And though viscerally associated with modern refrigeration techniques, ice cream — as we understand it — was likely crafted by Europeans in the 1600s2 and also has ancient forebears enjoyed by King Solomon, Alexander the Great and Emperor Nero.3 This delightful dispute lies at the crossroad between these celebrated treats. It raises a deceptively complex question about the reasonable expectations of plaintiff and like-minded ice cream aficionados: should consumers ordering pistachio ice cream at one of defendant’s establishments expect that that product will contain actual pistachios? And if the answer is no, should that leave them with a bitter aftertaste? Factual Background The facts alleged in the amended complaint, which are taken as true for the purposes of the pending motion, include the following: The Pistachio Problem “They say you’re just vanilla with a tealish hue So cherry and sweet, yet nutty and green…When I read your name in the parlor There’s no other flavor to choose.” -My Name is DC, “Pistachio Ice Cream” On a hot summer day in July 2022, plaintiff Jenna Marie Duncan found herself at a Cold Stone Creamery in Levittown, one of nearly 1,000 such locations operated by defendant, an Arizona corporation. Docket Entry (“DE”) 21

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