McCabe v. Conagra Foods, Inc.
681 F. App'x 82
| 2d Cir. | 2017Background
- ConAgra ran an annual promotion (2011–2015) promising to donate money to Feeding America for each code entered from product packaging, subject to a yearly maximum donation.
- Kevin McCabe filed a putative class action in EDNY alleging breach of contract and violation of the D.C. Consumer Protection Procedures Act (DCCPPA).
- District court dismissed the complaint for failure to state a claim and denied leave to file a second amended complaint; McCabe appealed both rulings.
- At issue for contract: whether ConAgra’s promotion constituted a unilateral or bilateral offer that was accepted by code entry and whether any alleged contract was breached.
- At issue for DCCPPA: whether plaintiffs alleged they purchased ConAgra consumer goods, as required to bring a private cause of action under the statute.
- The Second Circuit affirmed the district court’s dismissal and denial of leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ConAgra’s promotion created a unilateral contract (2011–2014) | McCabe: code entry accepted ConAgra’s offer, forming a unilateral contract each year | ConAgra: promotion was an invitation, limited by yearly caps, so not an offer | Held: No unilateral contract; yearly caps made offers indefinite and entrants lacked power of acceptance |
| Whether a bilateral contract arose (2011–2015) | McCabe: entry of a code was an offer accepted by ConAgra’s acknowledgment | ConAgra: pre-entry materials were not sufficiently definite to fix terms of any bilateral contract | Held: No bilateral contract; terms were not sufficiently definite and code entry did not clarify them |
| Whether 2015 promotion created a contract and was breached | McCabe: 2015 website counter made the offer definite; ConAgra failed to donate as promised | ConAgra: even if definite, complaint lacks factual allegation that ConAgra failed to make the per-code donations | Held: Even assuming definiteness in 2015, McCabe pleaded no breach of the only definite term (per-code donation) |
| Whether DCCPPA claim is viable without purchase allegations | McCabe: should be allowed leave to amend to plead purchases; existing allegations suffice or amendment should be permitted | ConAgra: DCCPPA requires that plaintiffs be consumers who purchased or received consumer goods; complaint lacks such allegations | Held: DCCPPA requires purchase/receipt of consumer goods; McCabe failed to plead purchases and district court did not abuse discretion in denying leave to amend |
Key Cases Cited
- Krys v. Pigott, 749 F.3d 117 (2d Cir. 2014) (standard of review for motion to dismiss and leave to amend)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Eternity Glob. Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168 (2d Cir. 2004) (elements of breach of contract under New York law)
- Leonard v. PepsiCo, Inc., 88 F. Supp. 2d 116 (S.D.N.Y. 1999) (advertisement/promotional materials generally not offers; offer must be clear, definite, explicit)
- Lefkowitz v. Great Minneapolis Surplus Store, Inc., 86 N.W.2d 689 (Minn. 1957) (advertisement can be an offer when terms are definite and first-come-first-served is clear)
- Amalfitano v. NBTY Inc., 128 A.D.3d 743 (N.Y. App. Div. 2d Dep’t 2015) (promotional statement limited by supply is invitation to offer)
- Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120 (2d Cir. 2014) (district court’s wide discretion in denying leave to amend)