Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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Are Prebiotic Drinks Plaintiffs’ Bar’s Next Target?Late last month, San Francisco resident Kirstin Cobbs initiated a class action lawsuit against poppi after purchasing its product, poppi prebiotic soda, believing the product to be “gut healthy.” Poppi sodas are packaged in cans with label designs making noteworthy statements such as the product is “for a healthy gut.” Additionally, the front of the packaging depicted in the complaint displays the slogan “Be Gut Happy. Be Gut Healthy.”The suit was filed in the Northern District of California under California’s False Advertising Law (FAL), California’s Consumers Legal Remedies Act (CLRA), California’s Unfair Competition Law (UCL), and unjust enrichment. The complaint alleges that the product is not “gut healthy” because consuming the soda in the amount normally ingested will not create meaningful prebiotic effects. Plaintiff concludes that if she had been aware of this, she would not have purchased the product. Cobbs alleges that by promoting poppi soda as a gut-friendly, prebiotic beverage, poppi is misleading consumers because “a consumer would need to drink more than four Poppi sodas in a day to realize any potential health benefits from its prebiotic fiber.” But poppi is likely targeted because it has “quickly climbed the ranks as one of the most popular beverages in the United States” since consumers are interested in alternatives to traditional sodas.Health Halo Litigation Continues with New TrendsPoppi prebiotic sodas are marketed as an alternative to traditional sodas, emphasizing the importance of gut health and prebiotic ingredients. Prebiotics support probiotics, which aid the immune system and digestion. A poppi soda contains two grams of dietary fiber, which appears to come from inulin. Sources suggest that inulin may stimulate the growth of healthy bacteria in the gut.There is an increasing uptick in lawsuits challenging claims that may imply health benefits to consumers. The complaint alleges that consumers search for healthier alternatives to soda, so it is not surprising that companies are trying to appeal to health-conscious consumers. It is similarly not surprising that the plaintiffs’ bar targets emerging trends, beginning with successful, popular products.These lawsuits have targeted products using terms such as “healthy,” “healthier,” “wholesome,” and “good for you.” The suits have faced mixed results, with some defeating false advertising challenges and others proceeding further into litigation. As we have written about <a href="/topics/241022-water-is-in-white-bread-is-out-healthy-gets-a-new-look-in-2023" target="_self">previously</a>, in 2023, FDA redefined its definition of “healthy.” Moreover, these recent lawsuits target terms which are not defined by FDA regulations. While FDA has regulated “healthy,” it does not regulate terms that may imply health benefits. Specifically, here, FDA has not defined “prebiotic,” nor does it regulate “good for your gut,” “gut healthy,” or “gut happy.”Key TakeawaysLike other food labeling false advertising cases, we expect early arguments over whether these terms are puffery and whether a reasonable consumer would be deceived by a term such as “gut healthy” to mean that they are receiving some nutritional benefit. If this case proceeds past the pleadings stage, we expect that the case may turn on whether the ingredients provide the gut health benefits that consumers expect to receive. Additionally, there may be a battle of the experts over whether two grams of inulin can provide health benefits.We will be tracking this litigation and we write this as an important reminder that companies should be sure to review all labeling on food and beverage products and consult with counsel as necessary to stay on top of current changes in litigation trends.Shannon Labuschagne, a Summer Associate in Morrison Foerster's San Francisco office, contributed to this blog post.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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Lauren N. Margolies is an associate in the Litigation Department of Morrison Foerster’s New York Office.

Lauren Margolies

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High Court Orders Rethink Of $9.7M Award After TransUnion

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Are Prebiotic Drinks Plaintiffs’ Bar’s Next Target?
Late last month, San Francisco resident Kirstin Cobbs initiated a class action lawsuit against poppi after purchasing its product, poppi prebiotic soda, believing the product to be “gut healthy.” Poppi sodas are packaged in cans with label designs making noteworthy statements such as the product is “for a healthy gut.” Additionally, the front of the packaging depicted in the complaint displays the slogan “Be Gut Happy. Be Gut Healthy.”



Health Halo Trend Continues With poppi "Gut Healthy" Sodas

Consumer Products

False Advertising

Food Misbranding

A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.Case Background:A group of plaintiffs sued Edgewell Personal Care Company (“Edgewell”) alleging that Edgewell’s statements about two of its tampon products were false and misleading.  Edgewell made various claims on its packaging, such as “100% Organic Cotton” and “free from colors, dyes, and BPA.”  Plaintiffs alleged these statements were false and misleading because the products contain polyfluoroalkyl substances (“PFAS”).The Testing Presented:In support of their allegations, plaintiffs referenced “independent, third-party” testing (which they did not attach), the results of which they alleged showed that Edgewell’s products contained PFAS.  Plaintiffs stated that their testing utilized total organic fluorine (TOF) analysis.  Plaintiffs also alleged that “[o]rganic fluorine is a surrogate or proxy for PFAS chemicals” and that “its presence is indicative that a sample contains PFAS.”  Plaintiffs further alleged that organic fluorine analysis is widely accepted and that “the state of California uses [it] to measure PFAS in its regulation of consumer products.”  According to plaintiffs, their testing showed that Edgewell’s tampon products contain PFAS.  The Complaint did not contain any other information about the testing, including how it was done, or why it showed that Edgewell’s products contained PFAS.The Court’s Holding:In its motion to dismiss, Edgewell argued (among other things) that plaintiffs did not plausibly allege that the products contained PFAS, despite their reference to third-party testing.  Judge Martínez-Olguín agreed with defendants and granted their motion to dismiss.  In so doing, the Court deemed the test results “cursory” and stated that they provided “no specificity as to the results reached or any other findings that would support plaintiffs’ interpretation of those results.”  The Court further held that the allegations required more factual content to “nudge Plaintiffs’ claims, based on the theory that Edgewell’s tampons contain PFAS, from possible to plausible.”  Specifically, plaintiffs excluded “whether the organic fluorine may be indicative of natural sources or is largely, if not exclusively, linked to forever chemicals” or “whether the presence or absence of any other substance might bolster Plaintiffs’ interpretation of their testing’s findings.”In so reasoning, Judge Martínez-Olguín distinguished Warren v. Whole Foods Market California, Inc., where plaintiffs’ test results survived a motion to dismiss.[1]  In Warren, plaintiffs alleged that Whole Foods falsely advertised a coffee creamer as “naturally flavored,” even though plaintiffs believed it contained artificial vanilla flavoring substances.  To support their claim that the creamer contained artificial flavoring, plaintiffs presented test results that they alleged showed the creamer contained artificial flavoring.  Judge Edward M. Chen of the Northern District of California ruled that plaintiffs’ testing showed the presence of artificial flavoring was probable and therefore denied dismissal.  “Plaintiffs offer more than a bare conclusory allegation that the Product contains ethyl vanillin; they support their allegation that the Product contains high levels of artificial flavoring with a photocopy of a test result . . . showing ethyl vanillin at a concentration of 2.205 parts per million.”The difference in what plaintiffs presented in Edgewell and in Warren is stark.  In Edgewell, plaintiffs merely provided conclusory allegations that their testing showed PFAS in Edgewell’s products.  In Warren, plaintiffs attached the test results to their complaint and explained the methodology used to reach their conclusion.  These cases suggest that the Northern District of California is requiring more specificity when plaintiffs present test results in their Complaints.  Edgewell may also signal a shift in false advertising cases to a more stringent view of what suffices to meet the plausibility requirement.What This Means for False Advertising CasesEdgewell highlights the specificity required to withstand a motion to dismiss when a plaintiff uses test results to bolster the allegations in their Complaint.  Judge Martínez-Olguín’s ruling shows that it is not enough to allege that tests were conducted and that those tests support plaintiff’s position.  Rather, courts will look to see whether plaintiffs include specific factual allegations regarding the methodology used in their testing and a discussion of why the findings support plaintiffs’ claims.Morrison Foerster will continue to monitor the impact of this ruling and is available to provide legal guidance to clients on the ramifications of this decision.[1] Warren v. Whole Foods Mkt. California, Inc., No. 21-CV-04577-EMC, 2022 WL 2644103 (N.D. Cal. July 8, 2022).

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Lena is an associate in the Litigation Department in Morrison Foerster’s San Francisco office. Lena’s practice focuses on commercial and class actions litigation, with an emphasis on false advertising, unfair competition, and antitrust. Lena regularly counsels clients in the food and beverage, dietary supplement, cosmetics, retail, and technology sectors.











Lena Gankin

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Mamie Tabet is an associate in the Litigation Department of Morrison Foerster’s San Francisco office.

Mamie Tabet

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A recent case in the Northern District of California addresses the use of testing in a false advertising case at the pleading stage, and how specific plaintiffs must be when discussing test results in a complaint.  In Mack v. Edgewell Personal Care Company, the Court held that cursory allegations regarding testing may be insufficient to survive a motion to dismiss, and that specific factual allegations that explain the test results presented and plaintiff’s interpretation of those results are required to meet the plausibility requirement.

Testing Plaintiff’s Test Results: What Specificity Is Required at the Pleading Stage in False Advertising Cases?

Originally published by Law360, Claudia Vetesi, Nicole Ozeran, and Lena Gankin authored an article discussing a wave of protein-labeling lawsuits hitting food manufacturers, alleging that their products’ front-label protein content statements violate U.S. Food and Drug Administration (FDA) regulations, and mislead consumers by overstating the amount of protein in the food products. Read the full article below. Since spring 2020, food manufacturers have been hit with a wave of protein-labeling lawsuits all making the same core allegation: that their products' front-label protein content statements violate U.S. Food and Drug Administration regulations, and mislead consumers, by overstating the amount of protein in the food products. While the plaintiffs admit that the FDA regulations are explicitly applicable to back-label claims, they allege that these same regulations do not apply to the same statements being made on front labels. The defendants argue otherwise, claiming that the plaintiffs' proffered theory would result in the illogical result of having different protein statements on the front and back labels. And indeed, the U.S. District Court for the Northern District of California, in a February ruling in Nacarino v. Kashi Co., described the applicable regulatory scheme as "convoluted."[1] That was true — until recently. Earlier this year, the FDA released new guidance clarifying labeling requirements concerning protein claims, undermining the foundation of the labeling plaintiffs' claims. And the Northern District of California has since dismissed these protein lawsuits with prejudice. These decisions highlight the dispositive impact of preemption arguments. But in two cases, plaintiffs have since appealed the district courts' orders dismissing their claims, bringing the regulatory scheme back into question. District Courts' Distaste for Protein Suits On Feb. 10, in Nacarino v. Kashi Co., Judge Vince Chhabria dismissed with prejudice the plaintiff's claims that Kashi mislabels its food products by miscalculating their protein content.[2] The Nacarino court found that Kashi's use of the nitrogen method for calculating protein is appropriate under FDA regulations, and any claims brought by individuals based on the use of this method were preempted by the Federal Food, Drug, and Cosmetic Act.[3] In making its ruling, the Nacarino court relied heavily on the FDA's newly issued guidance on its website clarifying appropriate methods for calculating front-label protein statements. Less than a week after the Nacarino decision, another court in the Northern District of California followed suit, dismissing with prejudice the allegations of the plaintiff in Chong v. Kind LLC that Kind's front-label protein claims were deceptive and unlawful.[4] In Chong, the court declined to follow its own earlier decision in what it admitted was a "nearly identical" lawsuit from 2020, Minor v. Baker Mills, which had permitted protein-labeling claims to proceed past a motion to dismiss.[5] The Chong court acknowledged that "it has now become apparent ... that Minor was incorrectly decided."[6] Referencing Nacarino, the Chong court held that the plaintiff's claims were preempted because federal regulations establish "that producers may state grams of protein even outside the Nutrition Facts panel calculated by the nitrogen method, and without adjustment for digestibility."[7] Furthermore, the court rejected plaintiff's claims based on Kind's failure to include a percentage of the daily value of protein on the back label, in violation of FDA regulations. The court found that, because they were entirely dependent on violations of the FDCA, the plaintiff's claims under California's Sherman Law were impliedly preempted under the U.S. Supreme Court's 2001 ruling in Buckman v. Plaintiffs' Legal Committee.[8] The plaintiffs in both Nacarino and Chong have since appealed the courts' decisions dismissing their claims with prejudice.[9] Opening briefs are due in June, which will provide additional insight into the plaintiffs' basis for challenging the courts' conclusions that FDA guidance on protein claims is definitive. FDA Regulations and New Guidance Under FDA regulations, food manufacturers may calculate protein content for front-label protein claims at least two different ways: (1) calculating the amino acid content of the food directly, or (2) using the nitrogen method, which requires manufacturers to multiply the nitrogen content of the food by a factor of 6.25.[10] When food manufacturers calculate the percentage daily value of protein on the product's back label, federal regulations require that the percentage be adjusted for digestibility using a "protein digestibility-corrected amino acid score."[11] Because plant-based proteins are not fully digestible by the human body, the amount of protein calculated under the nitrogen method may differ from the amount of protein as adjusted for digestibility and as used for calculating the percentage of daily value on the back label. Plaintiffs have seized on these nuances in the federal regulations to argue that front-label protein claims overstate the amount of protein by failing to account for protein digestibility. In essence, plaintiffs claim that, despite manufacturers calculating protein claims in accordance with FDA regulations for back-label protein statements, using this same calculation for front-label claims is misleading. But no requirement to calculate protein digestibility exists for front-label claims. In its Jan. 11 guidance, the FDA made it clear that, contrary to plaintiffs' claims, food manufacturers are not required to use only an amino acid content method for calculating front-label protein statements, nor are they required to adjust the front-label content claims for digestibility. Indeed, the FDA approves of the use of the nitrogen method for front-label protein claims, and does not require that manufacturers adjust protein content for digestibility when making such claims. Looking Ahead Where plaintiffs' claims rest on an interpretation of the federal regulatory scheme that the FDA recently rejected, decisions from the Northern District of California suggest that preemption arguments may present a viable defense — at least for now. As the U.S. Court of Appeals for the Ninth Circuit grapples with Chong and Nacarino, manufacturers can expect some reprieve from the barrage of these protein case filings. Even if they are named in new filings, manufacturers have additional ammunition in their pockets, and should consider and give great weight to asserting preemption arguments and requesting a stay of their proceedings. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] <a href="https://advance.lexis.com/api/search?q=2022%20U.S.%20Dist.%20LEXIS%2023409&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2022%20U.S.%20Dist.%20LEXIS%2023409&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Nacarino v. Kashi Co. </a>, No. 21-cv-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022). [2] Id. [3] Id. at *5. [4] <a href="https://advance.lexis.com/api/search?q=2022%20U.S.%20Dist.%20LEXIS%2027438&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2022%20U.S.%20Dist.%20LEXIS%2027438&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Chong v. Kind LLC </a>, No. 21-cv-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022). [5] Id. at *1; <a href="https://advance.lexis.com/api/search?q=2020%20U.S.%20Dist.%20LEXIS%20258880&qlang=bool&origination=law360&internalOrigination=article_id%3D1480247%3Bcitation%3D2020%20U.S.%20Dist.%20LEXIS%20258880&originationDetail=headline%3DRulings%2C%20FDA%20Guidance%20May%20Help%20Food%20Cos.%20In%20Protein%20Suits&" target="_blank">Minor v. Baker Mills Inc. </a>, No. 20-cv-02901-RS, 2020 WL 11564643 (N.D. Cal. Nov. 12, 2020). [6] Chong, 2022 WL 464149, at *1. [7] Id. at *3. [8] Id. at *4. [9] Nacarino v. Kashi Co., No. 22-15377 (9th Cir.) (appeal filed March 14, 2022); Chong v. Kind LLC, No. 22-15368 (9th Cir.) (appeal filed March 11, 2022). [10] See 21 C.F.R. § 101.9(c)(7). [11] Id.

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Rulings, FDA Guidance May Help Food Cos. In Protein Suits

Rulings, FDA Guidance May Help Food Cos. In Protein Suits

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Originally published by Law360, Claudia Vetesi, Nicole Ozeran, and Lena Gankin authored an article discussing a wave of protein-labeling lawsuits hitting food m

Product Liability

Retail

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s Class Actions + Mass Torts Group.<img class="img-responsive" src="https://media2.mofo.com/v3/images/blt5775cc69c999c255/blt5afe385619175981/627315e123c6cf2a1c3af543/210719-legal-500-advertising-infographic.jpg?format=auto&quality=60" alt="Legal 500 Infographic - Advertising and Marketing Law" type="asset" sys-style-type="download">

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Morrison & Foerster Achieves Top Ranking in Advertising and Marketing Litigation

Legal 500 US 2021 recognized Morrison & Foerster as a top firm in Advertising and Marketing Litigation. See what our clients and peers are saying about MoFo’s C

Morrison & Foerster Achieves Top Ranking in Advertising and Marketing Litigation

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Along with making their advertising materials eye-catching and influential, consumer‑facing companies need to ensure that their representations about products and services comply with advertising laws. This article discusses basic advertising law, some things to avoid and some things to do. Although every state has its own consumer protection laws, our focus is on federal and California law.This article was originally published in Today’s General Counsel on September 15, 2020. The full article is available on pages 24–26 of the <a href="https://issuu.com/todaysgc/docs/tgc_fa20_issuu?fr=sMjBhNDI5ODIwMg" target="_blank">fall digital issue</a>.

Energy Drink Manufacturer

Consumer Electronics MDL

Computer Power Management System Litigation

Run Them Sweet, LLC v. CPA Global Limited

Online Billing Practices Class Action

Lipitor Antitrust Litigation

American Booksellers Association v. Barnes &amp; Noble, Inc.


Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and pro

Penelope Preovolos

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Advertising Checklist for In-House Counsel

Advertising Checklist for In-House Counsel

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Along with making their advertising materials eye-catching and influential, consumer‑facing companies need to ensure that their representations about products a

Does a plaintiff who files a class action alleging false advertising have Article III standing to seek injunctive relief—even when that plaintiff is a past purchaser of the product, and therefore is aware of the defendant’s allegedly false statements regarding the product?The Ninth Circuit said “sometimes” in Davidson v. Kimberly-Clark Corp.[1] There, the plaintiff purchased wipes that the defendant described as “flushable,” but that plaintiff alleged caused severe damage to her home plumbing.[2] Although it was “a close question,” the Ninth Circuit held the plaintiff had pleaded enough to establish standing because she plausibly alleged that she wished to purchase truly flushable wipes and had no way of determining whether she could rely on the defendant’s “flushable” label without buying the product and flushing it.[3]Recently, in Berni v. Barilla S.p.A.,[4] the Second Circuit seemingly came out the other way. In Berni, the defendant changed the design, but not the size, of its pasta boxes.[5] The plaintiffs brought a putative slack-fill class action, alleging the new boxes contained less pasta than the old boxes.[6] The Second Circuit concluded that “future harm [was] not likely”—chiefly because these past pasta purchasers, once deceived, were “not bound to purchase [the] product again.”[7] And even if they did, as past purchasers, they are aware of how much pasta is in the new boxes. The requested injunction “[would] not materially improve their position as knowledgeable consumers.”[8]Some commentators have indicated that these decisions are irreconcilable, creating a circuit split. We disagree. The Ninth Circuit’s holding in Davidson is narrower than it first appears. The court found that a false advertising plaintiff suffers an enjoinable injury when she plausibly continues to be unable to tell from the product or its packaging whether the statements at issue were false.Several district courts in the Ninth Circuit have made this point clear, distinguishing Davidson where plaintiff could not plausibly allege continuing deception. For example, these courts have dismissed false advertising claims on grounds that the plaintiff lacked standing because:<ul><li>the defendant’s products’ nutrition labels informed the plaintiff whether the products actually contained real white chocolate;[9]</li><li>the plaintiff could “easily determine the number of pretzels in each package by simply reading the label” or “could feel the bag to determine whether it is filled with pretzels or air”;[10]</li><li>the plaintiff alleged he was now aware what “No Sugar Added” meant;[11] or</li><li>the plaintiff admitted she now knew how the defendant calculated net carbs.[12]</li></ul>As these courts explained, “Unlike Davidson, where plaintiff could not know without purchasing the flushable wipes whether the wipes were truly flushable, [the plaintiffs] do not need to purchase the [p]roducts again in order to know whether” the defendants allegedly misrepresented product information.[13] So too in Berni. There, the plaintiffs could not plausibly assert that they were unable to tell how much pasta was in the new packages after having purchased the product with both the old and new product designs.Note too that Davidson was an appeal from a motion to dismiss, while Berni was an appeal from a final class settlement judgment. The Davidson court had to take the plaintiff at her word (and still acknowledged it was “a close question”); the Berni court could look further at the facts. Moreover, in Berni, the district court had certified a settlement class. Yet as the court pointed out, “a class may not be certified under Rule 23(b)(2) if any class member’s injury is not remediable by the injunctive or declaratory relief sought.”[14] “[T]here is no reason to believe that all, or even most, of the class members—having suffered the harm alleged—will choose to buy it in the future.”[15] Even if they did, the “next time they buy one of the newer pastas, they will be doing so with exactly the level of information that they claim they were owed from the beginning.”[16]Although there is some tension between Davidson and Berni, there is not as much distance between the cases as it might seem. Regardless of where they file suit, plaintiffs and class members seeking injunctive relief for their false advertising claims must satisfy Article III’s requirements.[1] 889 F.3d 956 (9th Cir. 2018).[2] Id. at 961–62.[3] See id. at 970–72.[4] 964 F.3d 141 (2d Cir. 2020).[5] Id. at 143–44.[6] Id. at 144.[7] Id. at 147.[8] Id. at 148.[9] Joslin v. Clif Bar & Co., No. 4:18-cv-04941-JSW, 2019 WL 5690632, at *4 (N.D. Cal. Aug. 26, 2019).[10] Cordes v. Boulder Brands USA, Inc., No. CV 18-6534 PSG (JCx), 2018 WL 6714323, at *4 (C.D. Cal. Oct. 17, 2018).[11] Rahman v. Mott’s LLP, No. 13-cv-03482-SI, 2018 WL 4585024, at *3 (N.D. Cal. Sept. 25, 2018).[12] Fernandez v. Atkins Nutritionals, Inc., No. 3:17-cv-01628-GPC-WVG, 2018 WL 280028, at *14 (S.D. Cal Jan. 3, 2018).[13] See Joslin, 2019 WL 5690632, at *4.[14] Berni, 964 F.3d at 146.[15] Id. at 148.[16] Id.

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Fool Me Once, No Injunctive Relief on Behalf of a Class of Purchasers

Fool Me Once, No Injunctive Relief on Behalf of a Class of Purchasers

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Does a plaintiff who files a class action alleging false advertising have Article III standing to seek injunctive relief—even when that plaintiff is a past purc

Earlier this month, the Ninth Circuit held that state law cannot expand or confine a federal court’s power to issue equitable restitution because federal courts are bound by traditional equitable principles, which require, among other things, a showing of an inadequate remedy at law. Thus, the Ninth Circuit affirmed the district court’s dismissal of plaintiff’s claims for restitution where she failed to establish an inadequate legal remedy.[1]Plaintiff sought to avoid a jury trial by voluntarily dismissing her damages claim and instead seeking to try her equitable restitution claims to the court.Plaintiff Kathleen Sonner (“Sonner” or “plaintiff”) represented a certified class of California consumers who claimed that Premier’s Joint Juice did not provide the advertised joint health benefits. Plaintiff sought damages under the Consumer Legal Remedies Act (CLRA), restitution under California’s Unfair Competition Law (UCL) and the CLRA, and injunctive relief under the UCL and CLRA.After more than four years of litigation and on the eve of trial, Sonner sought leave to amend to voluntarily dismiss her CLRA claim for damages and proceed solely with claims for equitable restitution under the UCL and CLRA. The unorthodox move to dismiss a claim for money damages was motivated by plaintiff counsel’s desire to avoid a jury trial in favor of a bench trial. Plaintiff’s counsel advised the district court that it would continue to seek the same $32 million in equitable restitution that it sought as money damages under the CLRA. Premier opposed plaintiff’s eleventh-hour maneuver on the grounds that she had an adequate remedy at law (money damages under the CLRA) so plaintiff was prohibited from seeking equitable restitution. Premier advised the court that, if plaintiff were granted leave to amend, Premier would move to dismiss the equitable restitution claims.Although the district court granted plaintiff leave to file an amended complaint and vacated the jury trial, the judge strongly cautioned plaintiff’s counsel that if he ultimately granted Premier’s motion to dismiss, he would not allow plaintiff to amend her complaint for a third time to reallege the previously dismissed CLRA damages claim. Plaintiff’s counsel disregarded the district court’s warning and filed an amended complaint that only contained claims for equitable relief.Premier moved to dismiss the restitution claims pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Sonner needed to—but could not—establish that she lacked an adequate legal remedy as required by both federal equitable principles and California law. After full briefing and oral argument, the district court granted Premier’s motion to dismiss, holding that plaintiff could not proceed on her equitable claims for restitution in lieu of a claim for damages. Specifically, the district court concluded that equitable restitution claims brought under the UCL and CLRA remained subject to the inadequate-remedy-at-law doctrine, and that plaintiff failed to establish that she lacked an adequate legal remedy for the same past harm for which she sought equitable restitution. The district court also denied Sonner’s request to amend her complaint to reallege the CLRA damages claim that she had voluntarily dismissed.Ninth Circuit affirms district court’s order.On appeal, Sonner argued (along with amici the CA Attorney General and Consumer Attorneys of CA), that because her UCL and CLRA claims arise under California law and the court’s jurisdiction rests in diversity, state law alone decides whether she must show a lack of an adequate legal remedy before obtaining restitution under those statutes. Sonner and the Amici further argued that the California legislature abrogated the inadequate-remedy-at-law doctrine for equitable restitution claims under the UCL and CLRA.The Ninth Circuit rejected this argument, finding that pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and Guaranty Trust Co. of New York v. York, 326 U.S. 99 (1945), federal courts must apply equitable principles derived from federal common law to claims for equitable restitution under California’s UCL/CLRA. Thus, state law cannot circumscribe a federal court’s equitable powers even when state law affords the rule of decision.The Court held that, “[r]egardless of whether California authorizes its courts to award equitable restitution under the UCL and CLRA, when a plain, adequate, and complete remedy exists at law, we hold that federal courts rely on federal equitable principles before allowing equitable restitution in such circumstances. And because Sonner fails to demonstrate that she lacks an adequate legal remedy in this case, we affirm the district court’s order dismissing her claims for restitution.”[2]The Ninth Circuit further explained that “the strong federal policy protecting the constitutional right to a trial by jury outweighs [a state’s] procedural interest.”[3] Following federal common law, plaintiffs must establish that they lack an adequate remedy at law before obtaining equitable restitution. The Ninth Circuit held that Sonner failed to make such a showing because the complaint did not allege she lacked an adequate legal remedy, and she failed to explain how seeking the exact same amount of money she requested in damages for the same harm was inadequate or incomplete.[4]Lastly, the Ninth Circuit held that the district court did not abuse its broad discretion in denying leave to amend, considering it cautioned Sonner that a third amendment would be “unfair, prejudicial, and an affront to the judicial system.”[5]TakeawaysWhen litigating in federal court, defendants should consider moving to dismiss equitable claims for restitution when the plaintiff has an adequate legal remedy, even if state law authorizes its courts to award equitable restitution. Federal courts rely on federal equitable principles before allowing equitable restitution in such circumstances. See Mort v. United States, 86 F.3d 890, 892 (9th Cir. 1996) (“It is a basic doctrine of equity jurisprudence that courts of equity should not act . . . when the moving party has an adequate remedy at law.” (ellipsis in original) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992))). Thus, a plaintiff must establish that she lacks an adequate remedy at law before securing equitable restitution for past harm, even under consumer protection statutes like California’s UCL, CLRA, and False Advertising Law.Notably, the relevant test is whether an adequate damages remedy is available, not whether plaintiff elects to pursue it, or whether plaintiff will be successful in that pursuit. See, e.g., McKesson HBOC, Inc. v. New York State Common Ret. Fund, Inc., 339 F.3d 1087, 1093 (9th Cir. 2003) (holding that equitable relief was not available to plaintiff because it had “potential legal claims against any number of parties,” and “[w]hether [a plaintiff] chooses to pursue these remedies… does not alter the availability of the remedies at law.”); United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“[f]ailure to comply with a remedy at law does not make it inadequate so as to require the district court to exercise its equitable jurisdiction.”); Rhynes v. Stryker Corp., 2011 WL 2149095, at *4 (N.D. Cal. May 31, 2011) (“[p]laintiffs’ argument that they will have no adequate remedy at law if their other claims fail is unavailing. Where the claims pleaded by a plaintiff may entitle her to an adequate remedy at law, equitable relief is unavailable.” (emphasis in original)). Therefore, even if a plaintiff fails to assert a legal remedy, defendants should investigate whether an adequate remedy at law is available. If so, defendants should consider moving to dismiss equitable claims for restitution.[1] Sonner v. Premier Nutrition Corp., No. 18-15890, 2020 WL 3263043 (9th Cir. June 17, 2020).[2] Id. at *8.[3] Id. at *5.[4] Id.[5] Id. at *8.

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Ninth Circuit Holds Plaintiffs Not Entitled To Equitable Restitution Under UCL/CLRA If Adequate Remedy At Law Is Available

Ninth Circuit Confirms No Choice-of-Law Analysis Necessary to Certify Settlement Class

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Earlier this month, the Ninth Circuit held that state law cannot expand or confine a federal court’s power to issue equitable restitution because federal courts

Ninth Circuit Holds Plaintiffs Not Entitled To Equitable Restitution Under UCL/CLRA If Adequate Remedy At Law Is Available

The California Supreme Court has confirmed that claims for civil penalties brought by government entities under California’s Unfair Competition Law (“UCL”)[1] and False Advertising Law (“FAL”)[2] should be decided by a judge—not a jury. See Nationwide Biweekly Administration Inc. et al. v. Superior Court of Alameda County (People, Real Party in Interest), Cal. Sup. Ct., S250047. In a 74-page decision, the Court held that the UCL and FAL claims at issue in Nationwide were equitable in nature and, therefore, properly tried by the court, rejecting arguments that the statutes and California civil jury trial right compelled adjudication by a jury.Background: California Department of Business Oversight and District Attorneys Sue Nationwide Biweekly Administrative In May 2015, the California Department of Business Oversight and the District Attorneys of four counties (“the People”) accused Nationwide Biweekly Administration Inc.—a mortgage services company—of running an unlicensed debt payment service. The People brought claims under the UCL, the FAL, and other state laws, seeking civil penalties, injunctive relief, restitution, and disgorgement.Court of Appeal Applies “Gist” Test to Determine Nationwide’s Right to Jury Trial for UCL and FAL ClaimsAt the trial court, Nationwide demanded a jury trial, which the People successfully moved to strike. Nationwide filed a petition for a writ of mandate challenging this ruling, which the court of appeal summarily denied. The California Supreme Court granted Nationwide’s petition for review and transferred the matter back to the court of appeal, with directions to issue an order to show cause why Nationwide did not have a right to jury trial. The court of appeal then partially granted Nationwide’s request, finding that the “gist” of the statutory causes of action levied against Nationwide were legal and thus gave rise to a right to jury trial. The court, following the United States Supreme Court’s decision in Tull v. United States,[3] found that the right to jury trial only extended to the issue of liability, while the amount of statutory penalties and whether any equitable relief (such as an injunction) was appropriate were for the judge to determine.The Government Files an AppealIn an appeal to the California Supreme Court, the People argued that the decision of the court of appeal ignored decades of precedent and incorrectly applied the “gist test” in finding that a jury could hear the claims. The People explained that the UCL and FAL are not common law causes of action but statutory equitable claims only suitable for resolution by a judge. Conversely, Nationwide argued that it had a statutory right to a jury trial under the UCL and FAL because, in addition to injunctive relief, the action sought monetary civil penalties. Nationwide asserted that it separately had a right under the civil jury trial provision of the California constitution to a jury trial in an action under the UCL or FAL that sought both injunctive relief and civil penalties. As did the court of appeal, Nationwide relied in part on the United States Supreme Court’s decision in Tull interpreting the federal Seventh Amendment right to a jury trial to a statute allowing simultaneous pursuit of civil penalties and injunctive relief.California Supreme Court Reverses the Decision Below and Finds That the UCL and FAL Claims Are Equitable in Nature and There Is No Constitutional Right to a JuryIn the majority opinion, the California Supreme Court agreed with the People, finding that the causes of action established by the UCL and FAL are equitable in nature and properly tried by the judge rather than a jury.The court first rejected Nationwide’s argument that it had a statutory right to a jury trial. The court found that the legislative history and the purpose of the UCL and FAL evidenced a legislative intent for causes of action under those statutes to be tried by the judge, using her traditional equitable authority to evaluate whether a challenged business or advertising practice should be considered impermissible. The tests for violations of the UCL and FAL were “too indeterminate” to be distilled into jury instructions and applied by a jury, the court stated.The court also rejected Nationwide’s constitutional arguments, finding that because the “gist” of a civil action under the UCL and FAL was equitable rather than legal in nature, there was no constitutional right to a jury trial. The bulk of the remedies available under the UCL and FAL are equitable, the court said, and the civil penalties available in actions brought by certain government officials are noncompensatory and thus unlike traditional monetary damages awarded after an injury. The “broadly worded and expansive” standards to be applied in adjudicating a UCL or FAL claim, the court continued, call for the exercise of discretion and experience that only judges possess. The court rejected Nationwide’s reliance on Tull, finding that interpretation of the federal Seventh Amendment inapposite because of longstanding differences between interpretations of the federal and California constitutional civil jury trial provisions.Finally, the court expressly limited its holding to UCL and FAL claims, saying that the civil jury trial right might apply different to other statutory causes of action that authorize both injunctive relief and civil penalties.[4]Key TakeawaysThe California Supreme Court has settled the ambiguity as to whether UCL and FAL claims brought by the government seeking both civil penalties and equitable relief should be tried by a court or jury. The Court confirmed that determinations under both statutes, such as when a challenged business practice is “unfair,” require equitable analysis to be performed by a court. The holding that UCL and FAL claims are for courts, not juries, was an overall win for defendants.[1] Cal. Bus. & Prof. Code § 17200 et seq.[2] Cal. Bus. & Prof. Code § 17500 et seq.[3] 481 U.S. 412 (1987).[4] Chief Judge Cantil-Sakauye wrote the opinion for the court, joined by Justices Chin, Corrigan, and Groban. Justice Kruger wrote a concurring opinion, joined by Justices Liu and Cuéllar, in which she departed from the court’s finding that the FAL created inherently equitable causes of action. But Justice Kruger ultimately agreed that the FAL claims in this case need to be tried by the judge because they were so intertwined with the UCL claims, and trying them separately would “create procedural complications without significant benefit” to Nationwide.

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California Supreme Court: Civil Penalty Claims Brought by Government Under UCL and FAL Should Be Determined by Court—Not Jury

California Supreme Court: Civil Penalty Claims Brought by Government Under UCL and FAL Should Be Determined by Court—Not Jury

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The California Supreme Court has confirmed that claims for civil penalties brought by government entities under California’s Unfair Competition Law (“UCL”)[1] a

Appellate & Supreme Court

Earlier this month, a California federal judge certified six classes asserting state consumer protection statute claims in a multidistrict litigation alleging that The Coca-Cola Co. misled consumers about artificial flavors and added preservatives in its Coke products. See In re: Coca‑Cola Products Marketing and Sales Practices Litigation (No. II), 4:14-md-02555, N.D. Cal. Plaintiffs did not secure a complete victory, however, because the court declined to certify the classes’ common law claims.Case BackgroundIn this case, plaintiffs claim that a Coke marketing campaign misled consumers about the healthiness and naturalness of Coke’s products. The plaintiffs allege that Coke’s statements that the products had “no artificial flavors” and “no preservatives added” are misleading because the products contained phosphoric acid at the time these statements were made. And while Coke no longer includes those labeling claims in its marketing campaigns, the products’ ingredient list still does not include phosphoric acid as a preservative.Following the consolidation of various state lawsuits, plaintiffs sought class certification in 2017, seeking to certify individual classes of buyers from California, Florida, Illinois, Massachusetts, New Jersey, and New York.Court Grants in Part and Denies in Part Plaintiffs’ Motion for Class CertificationIn its opposition to plaintiffs’ motion for class certification, Coke made the argument that plaintiffs lack standing because it’s unclear if they will ever buy the Coke products again and, relatedly, that they cannot be misled going forward because they know now that phosphoric acid is in Coke products. Plaintiffs countered that all named plaintiffs would consider buying Coke if it were accurately labeled.United States District Court Judge Jeffrey S. White agreed with plaintiffs, finding that each class had standing because at least one named plaintiff from each of the classes said they would purchase “properly” labeled Coke. Accordingly, each class had standing to seek an injunction to force Coke to change its labeling.The court also concluded that, because the state consumer protection statutes relevant to each class premise liability on the reasonable consumer standard, the classes for each state could proceed without requiring individual inquiries into whether plaintiffs relied on Coke’s labels when purchasing the sodas.Conversely, the court denied class certification of the common law claims. It found that plaintiffs cannot show that they meet the requirements for certification of those claims because plaintiffs seek damages that are not “incidental” to the injunctive relief they also seek.TakeawayThis decision on class certification reinforces that plaintiffs do not have standing for injunctive relief claims unless they assert that they would purchase the products at issue in the future. Plaintiffs often forget to do so and even sometimes make assertions to the contrary thinking that doing so supports other arguments. When they do, defendants should use those very statements to preclude class certification.