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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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