ROSELAND, N.J./May 9, 2012 -- Client Quick Chek Food Stores, a chain of over 120 convenience stores (throughout New Jersey and Southern New York), headquartered in Whitehouse Station, N.J., won summary judgment in a purported Consumer Class Action involving its 44 ounce iced coffee cups. The decision was issued May 4, 2012 by Hon. Vincent LeBlon, Superior Court, Law Division, Middlesex County (N.J.) in DeFeo v. Quick Chek, 2012 WL 1617419 (Super.Ct May 4, 2012). Peter J. Pizzi, Managing Partner of the firm’s New York office and a member of the firm’s Class Action Defense team, represented Quick Chek, along with associate Sydney J. Darling.

The allegation in the Complaint was that the 44 ounce cup, shown in the hearing exhibit, did not in fact have the capacity to hold 44 ounces. Quick Chek initially narrowed the claims in the complaint by a partially successful motion to dismiss and then joined the manufacturer of the cup, Berry Plastics Corporation, and the distributor of the cup. Then, Quick Chek moved to inspect the cup, which took place in February 2012. According to Quick Chek’s expert, the inspection showed that the cup held 44.54 ounces. Quick Chek then moved for summary judgment on the basis of its expert’s measurement. The motion was opposed on various grounds, including that the motion was premature because no depositions had taken place. After argument on the motion, plaintiff also submitted an opposing expert affidavit.

Judge LeBlon found for Quick Chek, concluding that the measurement by Quick Chek’s expert in the presence of all parties was unchallenged, and that, in any event, even plaintiff’s measurement of 43.76 ounces was not actionable under the New Jersey Consumer Fraud Act because there could have been no “ascertainable loss,” as required by the CFA.

For further information about the firm’s Class Action Defense practice group, please contact Peter Pizzi at (212) 307-3701 or ppizzi@connellfoley.com.