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10 Catt. 4: That Cheesecake Truck

2012 June 20

CATTLEYA, J., delivered the opinion of the Cart. JEREMY, C.J., wrote a separate concurrence.

We granted cartiorari to That Cheesecake Truck (“TCT”), the mobile extension of Sweetz Cheesecake, a brick-and-mortar bakery. Cheesecake is not the preferred dessert for me or the Chief Justice. I like ice cream, and the Chief Justice is unashamedly a pie guy. Still, we have high expectations for cheesecake. I grew up in the Great State of New York, where cheesecake is creamy but dense. The Chief Justice, who has family ties in New York, similarly appreciates a dense cheesecake. When we think of cheesecake, we think of Junior’s original cheesecake. Rich and smooth. Without the fuss of any fruity or nutty mix-ins. And most importantly: dense, dense, dense. We believe that we are not alone in requiring a dense cheesecake. (Otherwise the word “cheesecake” on restaurant menus would not so often be preceded by “New York Style,” no?) So, the big question: did TCT dish out a worthy cheesecake to please the New York-style palates of the Cart Justices?

That Cheesecake Truck


First, we must address our Eat Wonky test for street food, as it determines where the burden of proof lies in this proceeding. Street food is “the kind[] of food[] that can be cooked in front of you and [is] meant to be eaten with your hands, without forks, while standing up.” In re Eat Wonky (The Whoopie Pie Case), 2 Catt. 5 (2011). Baked goods are not street food. See Eat Wonky , 2 Catt. 5 (a whoopie pie is not street food); In re Dangerously Delicious Pies, 4 Catt. 4 (2011) (a pie slice is not street food); In re Sweetbites, 10 Catt. 1 (2012) (a cupcake is not street food). Because cheesecake is not street food, TCT is not entitled to the presumption that its cheesecake should be affirmed, and TCT’s cheesecake must prove on its own merits that it belongs on the street. In re Big Cheese, 6 Catt. 2 (2012).


Plain Cheesecake

TCT offers individual 4-inch cheesecakes for $4 each. TCT’s menu features rotating flavors like White Chocolate Raspberry, Apple Crumb, and Marble Fudge, but we ordered a plain (vanilla) cheesecake. Just as scrambled eggs are the true test of a chef, plain cheesecake is the true test of a cheesecake baker. To answer the question posed earlier (did TCT dish out a worthy cheesecake to please the New York-style palates of the Cart Justices?), we must honestly say, “No, but yes.” Huh?

Allow me to explain in a sentence: TCT’s vanilla cheesecake was yummy, but it wasn’t cheesecake.

Now allow me to elaborate: The taste of TCT’s vanilla cheesecake was spot on – clean, light, and not too sweet. As for the textural composition of the cheesecake, the moistness was there. The creaminess was there, too. The smoothness was also there. But – and this is a big but – TCT’s version was not dense. Not even a little. Not at all. Instead, it was fluffy and airy. It felt more like a mousse than a cheesecake. The graham cracker base added to the mouthfeel confusion. The graham cracker crumble did not combine together to form a crust. It functioned more like a finely crushed topping, but on the bottom of the dessert rather than on the top.

So, no, TCT’s cheesecake did not satisfy our hunger for cheesecake. But that doesn’t mean that we didn’t enjoy TCT’s dessert. We did. As we said earlier, it was yummy. We gobbled it all up. So, yes, we liked it.


In the end, we have nothing bad to say about the dessert’s qualities; we just take issue with its name. It wasn’t a cheesecake. We don’t know what it was. The best we can do is offer a suggestion: If TCT were to flip the dessert over and serve it upside down, the dessert could more accurately be described as “Mousse with a Crumbled Graham Cracker Topping.” Less marketable perhaps (That Mousse with a Crumbled Graham Cracker Topping Truck?), but we’d happily get in line for it.

AFFIRMED in part and REMANDED in part to That Cheesecake Truck for revision.

JEREMY, C.J., concurring.

I absolutely concur in the conclusion of my sister’s opinion, but I must take issue with the path taken to reach it. We begin always with the text. The subject of interpretation here is the word “cheesecake,” or the concept of cheesecakeness. We must determine whether TCT’s “cheesecake” is, in fact, a “cheesecake” as that term is commonly understood.

Merriam-Webster offers two definitions for “cheesecake,” reproduced here:

(1) a dessert consisting of a creamy filling usually containing cheese baked in a pastry or pressed-crumb shell

(2) a photographic display of shapely and scantily clothed female figures – often used attributively – compare BEEFCAKE

We may safely discard the second definition, for it clearly has no relevance in this context. I have no doubt such a mobile enterprise would run afoul of several municipal ordinances. Even the most ardent textualist can agree that language is, to some degree, contextual. And so context leaves us with the first definition. TCT’s offering does meet this definition. But I would find this definition overly broad and so of little utility as it does not bother to define the all-important texture of cheesecake.

TCT may point to a 1995 treatise, which notes that “[t]he texture of any cheesecake can vary greatly—from light and airy to dense and rich to smooth and creamy.” A federal court may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the court’s jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. In this case, we could not reasonably take judicial notice of a definition of cheesecake encompassing a so-called “light and airy” “cheesecake.” Fed. R. Evid. 201 (2011). This definition is subject to dispute and easily questioned and so must be rejected.

Another learned treatise, Wikipedia, notes that a so-called “New York-style” cheesecake “is rich and has a dense, smooth and creamy consistency.” Much as only New York-style pizza properly qualifies as “pizza,” I would find that only New York-style cheesecake qualifies as “cheesecake.” It would seem that, among gastronomic scholars, “New York-style” translates into common parlance as something akin to “good” or “true.” I would thus accept Wikipedia’s definition of a “good” and “true” cheesecake—that is, one that is “rich” and “dense.”

TCT’s offering, while delectable, was certainly not “rich” or “dense.” Therefore, I must find that it fails to meet the definition of “cheesecake” as understood by a reasonable person. Because there is a degree of false advertising in TCT’s calling its otherwise tasty offering “cheesecake,” I agree with my sister that we cannot fully affirm that offering.

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