In an opinion yesterday, Judge Engelmayer dismissed a class action accusing Whole Foods of exaggerating the weights of certain pre-packaged foods, so as to overcharge customers.  The genesis of the suit was an analysis by New York City’s Department of Consumer Affairs (DCA) finding that 89% of tested products had incorrect weights.

The lead plaintiff, Sean John, claimed to have bought cupcakes and cheese from Whole Foods, but, since he could only speculate that those particular purchases were weighed wrongly, Judge Engelmayer found he lacked standing:

Although John’s testimony can establish that he purchased cupcakes and cheeses from two Whole Foods stores, there is no competent, non-speculative, evidence that any cupcake or cheese item John bought weighed less than the weight used to price it. The DCA investigation, in the form of spot checks at certain stores, does not support the inference of systematic over-pricing. And John in discovery did not adduce competent evidence of a uniform practice by Whole Foods of falsely inflating the weight of its pre-packaged goods in general, or of cupcakes and cheese in particular.

John’s argument that there was systematic overpricing was as follows: because “Whole Foods utilizes uniform recipes and procedures for pre-packaged cupcakes and cheeses,” “a single instance of a short-weight cupcake or cheese item could be found to dictate that all food items of the same type, having been produced pursuant to the same specifications, must have been identically short-weight.” Judge Engelmayer found this argument “in tension with lived kitchen experience”:

Although it is undisputed that Whole Foods uses uniform recipes and procedures for producing in-house pre-packaged cupcakes, it also appears to be undisputed that those procedures are implemented by human beings, not robots. As even the most punctilious baker will attest, some degree of deviation from a cookbook recipe is inevitable. The same recipe will not, time and again, produce confections that are identical twins .

Decisive here, John’s theory that the existence of a single short-weight Whole Foods product means that all like products were equally short-weight is contradicted by the only record evidence as to the weights, in fact, of Whole Foods pre-packaged goods during this period — the results yielded by the DCA investigation. As reviewed above, the DCA’s spot-checks revealed a mottled record. Food items of the same type were sometimes found properly weighted (at either the audit phase or the statistical analysis phase); sometimes they were found short-weight; and some items found short-weight were found short-weight but to differing extents.

John’s premise of universality in product weight outcomes is thus defeated by the very investigation that prompted him to bring this lawsuit.