PITTSBURGH – A federal judge has recused himself from a class action lawsuit from a pair of Pennsylvania residents against Chipotle Mexican Grill, which claimed that the chain restaurant fails to provide proper amounts of change to its customers in exchange for purchased food.
Megan Fox and Bridget McMahon of Allegheny County (on behalf of themselves and all others similarly situated) first filed suit in the Allegheny County Court of Common Pleas on Aug. 20 versus Chipotle Mexican Grill, Inc. (doing business as “Chipotle”) of Newport Beach, Calif.
“On Aug. 13, 2020, plaintiff Fox entered the Chipotle store in Wexford, Pennsylvania, ordered a steak burrito for $8.72 and tendered a $20 bill to the cashier. Consistent with what is believed to be defendant’s corporate policy, the defendant’s representative accepted the tender of $20, and handed Fox a receipt, her order and $11 change. The Chipotle receipt showed change due to Fox of $11.28, which was not the amount returned to her by Chipotle,” the suit said.
“On Aug. 18, 2020, plaintiff McMahon entered the Chipotle store in Allison Park, Pennsylvania, to purchase prepared food to go. Plaintiff’s total purchase was $15.51. To pay for the purchase, plaintiff tendered cash in the form of a $20 bill. The defendant’s cashier accepted the tender. After plaintiff McMahon’s order was prepared and bagged, the defendant’s cashier did not return the $4.49 in change indicated on the receipt. Instead, Chipotle returned only $4.00 to plaintiff, thereby converting $0.49 without providing a credit or other compensation to plaintiff.”
The named plaintiffs said they, and others just like them, were the victims of Chipotle pocketing and misappropriating funds belonging to the consumer for Chipotle’s financial benefit, rather than either (a) giving the correct amount of change, (b) rounding the purchase price down to benefit the consumer, or (c) giving the consumer credit toward a future purchase to offset the loss to the consumer.
“The actual price charged by Chipotle for food purchased is different, and more than the advertised price of the food. Moreover, the receipts provided to plaintiffs Fox and McMahon deceptively indicated that the plaintiffs, had, in fact, received change of more than they were actually given, thus covering up evidence of Chipotle’s improper actions,” the suit said.
The matter of venue in the case remains to be seen, as Chipotle filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on Sept. 25, citing diversity grounds pursuant to the Class Action Fairness Act of 2005 (CAFA) and the amount in controversy, which could total more than $5 million.
However, the plaintiffs filed a counter-motion to remand the case on Sept. 29, arguing that Chipotle’s removal notice was filed beyond the 30-day statutory window.
UPDATE
On Dec. 9, U.S. District Court for the Western District of Pennsylvania Judge Mark R. Hornak disclosed that he was recusing himself from the case.
“Pursuant to 28 U.S.C. Section 455, this Court hereby recuses itself from the above-captioned case and requests that this case be assigned to another member of the Court,” Hornak’s statement said.
According to that statute, it requires a judge to recuse themselves from a case if their impartiality can be questioned, if they have a personal bias or prejudice concerning a party, if they have represented the party in private practice or served as a witness for that party or have a financial interest in the party in question.
Hornak’s colleague, Judge William S. Stickman, was then assigned to preside over the case.
For counts of misappropriation and conversion, unfair trade practices, breach of contract/unjust enrichment and injunction, the plaintiffs are seeking an injunction preventing Chipotle from refusing to provide correct change to customers who tender cash as a form of payment for Chipotle’s goods or services, requiring Chipotle to provide a credit to their customers in those circumstances and for it to not market goods towards non-credit card paying-customers at a higher price than it does for credit card customers. The plaintiffs also request a trial by jury.
The plaintiffs are represented by Frank G. Salpietro of Rothman Gordon, in Pittsburgh.
The defendants are represented by Lindsey C. Kennedy of Eckert Seamans Cherin & Mellott in Pittsburgh, Elizabeth Bulat Turner and Robert Jennings Mollohan Jr. of Martenson Hasbrouck & Simon, in Atlanta, Ga.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01448
Allegheny County Court of Common Pleas case GD-20-008917
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com