• Buffalo Wild Wings is defending its “boneless wings” in court against deceptive marketing claims.
• The plaintiff argues the wings are made from chicken breast meat and not chicken wing meat.
• Buffalo Wild Wings argue it is ‘common sense’ that they are not actually wings, citing another case.

Buffalo Wild Wings has been fighting in court for over a year to prove that its “boneless wings” aren’t just chicken nuggets. Now, the company’s attorneys say an Ohio Supreme Court case has already settled the question.

Aimen Halim filed a class action lawsuit against Buffalo Wild Wings in March 2023, claiming in court documents that the chain’s “boneless wings” are actually made of chicken breast, which he said amounts to “deceptive marketing.” In court papers, lawyers for Halim argue that the boneless wings are “more akin in composition to a chicken nugget rather than a chicken wing.”

Buffalo Wild Wings first filed a motion to dismiss the case in June 2023, which it added to on July 29. In that filing, the chain’s attorneys argued that the issues of the case had already been resolved in a previous case by the Ohio Supreme Court.

Attorneys for Buffalo Wild Wings cited Berkheimer v. REKM LLC, an Ohio lawsuit in which a man sued a restaurant after he “ingested a bone while eating a ‘boneless wing’ made from pre-butterflied, boneless, skinless chicken breasts,” according to court documents.

In that case, the Ohio Supreme Court ruled in favor of the defendant, finding that restaurants can not be held responsible for food that consumers should reasonably expect might be included in their meals.

According to court documents, the Ohio Supreme Court rejected Berkheimer’s argument that no consumer could reasonably expect a bone to be inside a boneless wing as “fanciful and implausible.”

“Regarding the food item’s being called a ‘boneless wing,’ it is common sense that label was merely a description of the cooking style,” the Ohio Supreme Court said in its majority opinion. “A diner reading ‘boneless wings’ on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating ‘chicken fingers’ would know that he had not been served fingers.”

Attorneys for Buffalo Wild Wings said in its most recent filing that even the dissent in the Ohio case agreed with the “common sense” conclusion that “boneless wings are not actually wings.”

“Berkheimer directly supports dismissing Plaintiff’s allegations here,” the filing says.

Halim has also filed class lawsuits against other companies for their products, like the makers of Tom’s Mouthwash, KIND granola, and Hefty recycling bags.

Neama Rahmani, a former federal prosecutor, previously told Business Insider that class action cases like Halim’s “rarely, if ever, go to a jury trial” because the judge has to first decide that the case is appropriate to receive the “class” certification, meaning it can represent a group of plaintiffs.

Bill Marler, an attorney specializing in food safety cases, also previously told BI that these kinds of lawsuits are often legally unproductive and walk the “thin line between consumer advocacy and just being annoying.”

“It raises the issue about what’s the real purpose here? Is it that they’re being a consumer advocate and then extracting fees and costs out of the company to discourage them from doing it again? Or is it just a tool to extract fees and costs out of a company?” Marler told BI.

But Halim’s attorneys are not letting up in their fight. On August 5, they responded to the company’s latest filing.

Halim argued that the Ohio case examined “a completely different legal issue” because the court determined that consumers could expect to find bones in a boneless wing because they are “natural to the chicken.”

Halim’s case, his attorneys argued, is focused on whether consumers should expect “boneless wings” to contain wing meat or meat from other parts of the chicken.

“It would seem based on Berkheimer that if it is reasonable to expect a bone in a boneless wing, it would be just as reasonable for the bone to be in the boneless wing because it was originally a wing,” the filing says.

Buffalo Wild Wings did not immediately respond to a request for comment about the lawsuit filings.