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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Partner

Julie Park protects her clients’ products no matter what kind of product issue they face—whether it is planning for new product development, recalling an existing product, or defending clients against product liability or consumer class actions. Drawing on her deep technical and legal expertise, Julie counsels clients on consumer product safety regulation and pharmaceutical and medical device preemption while also managing complex and multijurisdictional litigation both in state and federal court.

Julie Y. Park

<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

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 action lawsuits. Claudia also regularly counsels clients in the food, cosmetics, retail, and technology industries. She represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.<h5>More about Claudia</h5>Claudia is active in MoFo’s pro bono efforts, and recently traveled to El Paso, Texas, to work with families separated and detained at the border. She is also supervising a pro bono collaboration with Equal Rights Advocates, a nonprofit fighting for gender justice in work places and schools across the country. The initiative will help students who have been victims of sexual assault, attempted assault, or harassment find support and seek justice. Claudia is also a board member of Bay Area Legal Aid and a former board member of Equal Rights Advocates. Claudia is an editor and frequent contributor to MoFo’s <a href="https://classdismissed.mofo.com/">Class Dismissed</a> blog, which provides reports about the latest defense news, developments, and trends in class action lawsuits and product liability issues that affect consumer-facing companies. Her perspectives are also respected in the larger legal community: Claudia has published articles about class action and false advertising issues, and is a co-author of Chapter 7 — “Unfair Competition in California Business Litigation 2016” — of The Recorder. She also regularly speaks at conferences on class action and advertising trends. Claudia is currently serving as a Lawyer Representative for the Northern District of California. She received her J.D. degree in 2004 from Berkeley Law (Boalt Hall School of Law), where she was an associate editor of the Berkeley Technology Law Journal.

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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 matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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

Adam J. 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.Mr. Hunt has extensive experience representing consumer products companies, financial institutions, and technology firms in class action cases and complex commercial disputes before state and federal trial courts, as well as in arbitrations. Clients seek Mr. Hunt’s counsel for his creative, strategic thinking in high-stakes, high-profile matters. He has represented clients facing claims under false advertising, antitrust, and privacy laws throughout the country, securing wins at the pleading stage, summary judgment, and trial, in addition to negotiating favorable settlements, often early in the case. Representative experience includes successfully securing rulings dismissing two putative false advertising class action cases against one of the best-known consumer electronics companies in the world; obtaining a complete win on summary judgment for a major shipping and logistics company in a multimillion-dollar commercial dispute; appearing as counsel at trial for a leading financial institution in a $100 million commercial dispute, winning a bench trial verdict; and prevailing on motions to dismiss false advertising class actions against a leading Greek yogurt company.Mr. Hunt is also an editor of the firm’s <a href="https://classdismissed.mofo.com/" target="_self">Class Dismissed blog</a>, which provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class action lawsuits that affect consumer-facing companies.Mr. Hunt maintains an active pro bono practice and is the recipient of the New York State Bar Association’s 2017 President’s Pro Bono Service Award for the First Judicial Department, the 2018 Public Service Award from New York University School of Law, and Morrison Foerster’s Kathi Pugh Award for Pro Bono Services.Mr. Hunt received his B.A. with honors from Swarthmore College and his J.D. cum laude from New York University.

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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

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Alexandra Preece Barlow

Adam J. Hunt

Right-to-Repair Laws: The Trend Continues

The Future of Section 230: Protection Against Product Liability Claims?

New Wave of PFAS Legislation Aimed at Consumer Products

CPSC Releases Annual Report on Deaths and Injuries Involving Nursery Products

CPSC Proposes New Safety Rules for Infant Rockers

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On January 29, 2016, NAD recommended that Church & Dwight, the maker of OxiClean White Revive, modify or discontinue various advertising claims conveying the message that chlorine bleach is damaging or “scary” if used on white garments. Church & Dwight Co., Inc. v. OxiClean White Revive, Case No. 5919 (Jan. 29, 2016). The NAD challenge was filed by competitor The Clorox Company, whose rival product is Clorox Regular Bleach. Clorox challenged several advertising claims, including:<ul><li>Bleach is “scary.”</li><li>“We read the care labels on thousands of white garments and we were surprised they had this warning symbol which means do not use chlorine bleach.”</li><li>“Get the tough stains out without the worry of chlorine bleach.”</li><li>“Do not use Chlorine bleach.”</li><li>“Try OxiClean White Revive. The way clothes love to be whitened.”</li></ul>Advertisements at Issue. Two television commercials were at issue in the NAD challenge. The first is the “Test Lab” commercial, in which an announcer in a white lab coat in the “OxiClean White Revive Stain Remover Laundry Lab” states, “We read the care labels on thousands of white garments” and “were surprised they had this warning symbol, which means do not use chlorine bleach.” A large amount of white clothes fall on the floor from the ceiling into a pile. The announcer then says that OxiClean White Revive is the clear choice, and concludes: “Get the tough stains out without the worry of chlorine bleach.”The second challenged advertisement, the “Scary Bleach” commercial, begins by asking “Why is bleach so scary to clothes?” It shows a white shirt clutching the back of its owner. The commercial then states, “It’s right on the tag, don’t use chlorine bleach.” It then concludes, “Try OxiClean White Revive. The way clothes love to be whitened.”Clorox argued that the message conveyed by these commercials is that chlorine bleach is both dangerous and not efficacious. NAD’s Decision. NAD agreed with Clorox, and found that if Church & Dwight’s advertising conveys that bleach is “damaging or scary to white garments,” it must have a reasonable basis for the claims based on reliable testing demonstrating that chlorine bleach is damaging to the kinds of white garments depicted in the advertising. Since Church & Dwight did not have this evidence, NAD recommended that Church & Dwight discontinue the “Scary Bleach” commercial. NAD further recommended that Church & Dwight modify its “Test Lab” commercial to remove words like “worry” and “warning” when referring to the care labels on garments and to avoid conveying a message that chlorine bleach is damaging to white garments.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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

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NAD Recommends Church & Dwight Discontinue OxiClean “Scary Bleach” Advertising Claims

Full Disclosure: New Labeling for Cleaning Products

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On January 29, 2016, NAD recommended that Church & Dwight, the maker of OxiClean White Revive, modify or discontinue various advertising claims conveying the me

NAD Recommends Church & Dwight Discontinue OxiClean “Scary Bleach”  Advertising Claims

In Campbell-Ewald v. Gomez, __ S.Ct. __ (Jan. 20, 2016), the United States Supreme Court held that a defendant’s unaccepted offer of complete relief did not moot a class plaintiff’s claim or require dismissal of the action.  However, the Court expressly reserved the question of whether the result would be different if “a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff and the court then enters judgment for the plaintiff in that amount.”  Justice Breyer, who joined the majority, suggested at oral argument that this approach would have mooted plaintiff’s claims; Justice Thomas’s concurrence suggested that he might reach a similar conclusion.  The three dissenting justices would have held that the offer alone was sufficient to moot the claim. Campbell-Ewald thus suggested a possible strategy for a defendant to moot a class plaintiff’s claims.Brady v. Basic Research, L.L.C., Case No. 2:13-cv-7169 (SFJ) (E.D. N. Y. Feb. 3, 2016), a false advertising class action involving a diet supplement, is the first case since Campbell-Ewald to attempt that strategy.  The defendants made a Rule 68 offer of judgment in an amount sufficient to satisfy plaintiffs’ individual claims, and in addition filed a motion and letter seeking permission pursuant to Federal Rule of Civil Procedure 67 to deposit the amount of their offer with the court.  Citing Ray Legal Consulting Group v. DiJoseph, et al., 37 F. Supp. 3d 704, 729 (S.D.N.Y. 2014), Eastern District of New York Judge Sandra Feuerstein noted that Rule 67 is a procedural device intended to provide a place for safekeeping for disputed funds pending resolution of a dispute, not a means for altering the contractual rights of the parties.  The court emphasized Campbell-Ewald’s “directive that a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted,” and concluded that because defendants’ purpose was to moot plaintiffs’ claims rather than to deposit the money for safekeeping, defendants’ motion should be denied.Brady does not address the situation where a defendant actually deposits the funds into an account payable to the plaintiff or sends the plaintiff a cashier’s check and then asks the court to enter judgment accordingly.

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

New York Federal Court Rejects First Attempt Since Campbell-Ewald to Moot Class Plaintiffs’ Claims

In Campbell-Ewald v. Gomez, __ S.Ct. __ (Jan. 20, 2016), the United States Supreme Court held that a defendant’s unaccepted offer of complete relief did not moo

New York Federal Court Rejects First Attempt Since Campbell-Ewald to Moot Class Plaintiffs’ Claims

The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On January 26, 2015, the Ninth Circuit granted General Mills’ motion to dismiss plaintiff Troy Backus’ appeal of a district court order staying his putative class action against General Mills for its use of partially hydrogenated oils (PHOs) (also known as “trans fats”) in its baking mixes. Backus v. General Mills, Inc., Case No. 15-16658District Court Stay. Judge Henderson stayed the case based on the Food and Drug Administration’s (FDA’s) primary jurisdiction over the safety of trans fats. The court held that whether General Mills’ use of trans fats in food poses a significant safety risk “is both an important question of first impression, and a complicated issue that has been committed to the FDA.” No. 15-cv-01964-THE, 2015 WL 4932687, at *17 (N.D. Cal. Aug. 18, 2015).Plaintiff’s Appeal. The plaintiff appealed, arguing that the stay was effectively final because it was unclear when FDA would complete its review. In a one page order without discussion, the Ninth Circuit disagreed. The stay was not a “final or collateral order” subject to immediate appeal, the panel held, so the court lacked jurisdiction.Takeaway. Backus demonstrates that the Ninth Circuit will not provide immediate relief for plaintiffs facing stays pending FDA’s review of food or cosmetic regulations. Rather, plaintiffs must argue to district courts that stays should be lifted based on the slow pace of FDA’s review. As we describe in a <a href="http://classdismissed.mofo.com/food-misbranding/reviving-a-forgotten-fad/">related post on “evaporated cane juice” (ECJ) stays</a>, while this argument has gained traction with a few courts in this district — including Judge Henderson in a subsequent case, Figy v. Lifeway Foods, Inc., No. 3:13-cv-4828-TEH (N.D. Cal. Jan. 4, 2016), Dkt. No. 57—most courts have rejected it. Food and cosmetic misbranding cases stayed pursuant to the primary jurisdiction doctrine will likely have to wait for FDA’s review to run its course.

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Ninth Circuit: No Relief from Stay in General Mills’ Trans Fats Case Pending FDA Action

Ninth Circuit:  No Relief from Stay in General Mills’ Trans Fats Case  Pending FDA Action

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The Ninth Circuit will not review district court stays, the appeals court recently held, because they are not “final orders” subject to immediate appeal. On Jan

On January 5, 2016, in Torrent v. Yakult U.S.A., Inc., U.S. District Court Judge Cormac J. Carney denied the plaintiff’s motion to certify a class of Yakult yogurt consumers who were allegedly misled by Yakult’s packaging and advertising claims.  The Court found that the sole named plaintiff lacked Article III standing to seek injunctive relief on behalf of the putative class because he failed to allege or offer evidence of a sufficient likelihood of future harm.  This decision is notable for its refusal to carve out an exception to Article III requirements in favor of state consumer protection laws.The named plaintiff, Nicolas Torrent, alleged that Yakult violated California’s Unfair Competition Law (UCL) by deceptively claiming that its probiotic beverages containing the Lactobacillus casei Shirota microorganism help balance the digestive system and maintain overall health.  The plaintiff sought to certify a class of all persons or entities who purchased Yakult while in the state of California since January 2011, and sought only declaratory and injunctive relief on behalf of himself and the putative class.  The plaintiff claimed that he purchased Yakult products multiple times, and “but for” Yakult’s misrepresentations about the health benefits of its products, he would not have done so.  He did not allege that he intended to buy Yakult in the future, and he did not seek restitution or money damages.The Court first considered the threshold question of whether the plaintiff had standing to bring a UCL claim for injunctive relief under Article III of the Constitution.  Judge Carney noted that Article III requires that a plaintiff seeking injunctive relief present evidence that there is a “sufficient likelihood” that he or she “will be wronged in a similar way in the future.”  Past exposure to illegal conduct does not, by itself, show a present case or controversy if there are no continuing, present adverse effects.The Court acknowledged the split within the Ninth Circuit regarding whether the Article III standing requirement for injunctive relief applies in the consumer protection context, noting that some courts have held that a plaintiff in an UCL false advertising case retains standing to pursue injunctive relief so long as the defendant continues to deceptively market and sell the products at issue.  However, the Court rejected this approach, finding “more persuasive the courts that have insisted that it is improper to carve out an exception to Article III’s standing requirements to further the purpose of California consumer protection laws.”  The Court agreed with those cases, concluding that “Article III’s standing requirements take precedence over enforcement of state consumer protection laws,” and “[b]ecause Torrent has not even alleged that he intends to buy Yakult in the future, let alone submitted evidence to that effect,” he had no standing to pursue injunctive relief.Plaintiff’s lack of standing to pursue injunctive relief doomed his class certification motion:“Owing to his lack of standing to pursue injunctive relief,” the plaintiff “failed to provide sound rationale for class certification under either [Rule 23] (b)(1)(A) or (b)(2).”

Stand Down! Court Rejects Yakult Yogurt False Advertising Class for Lack of Standing

On January 5, 2016, in Torrent v. Yakult U.S.A., Inc., U.S. District Court Judge Cormac J. Carney denied the plaintiff’s motion to certify a class of Yakult yog

Stand Down!  Court Rejects Yakult Yogurt False Advertising Class for Lack of Standing

Last week, the California Supreme Court issued a long awaited ruling on organic labeling in Quesada v. Herb Thyme Farms, Inc., No. S216305, 2015 WL 7770635 (Cal. Dec. 3, 2015). At issue in Quesada was whether consumers may bring state law fraud and misrepresentation claims to challenge herb products allegedly mislabeled as “certified organic.” The defendant, Herb Thyme Farms Inc., argued that plaintiff’s claims were preempted by the federal Organic Foods Production Act of 1990 (OFPA).

California Supreme Court Opens the Door to Organic Mislabeling Claims

Last week, the California Supreme Court issued a long awaited ruling on organic labeling in Quesada v. Herb Thyme Farms, Inc., No. S216305, 2015 WL 7770635 (Cal

California Supreme Court Opens the Door to Organic Mislabeling Claims

This week, the U.S. Federal Trade Commission (FTC) announced that it has sent warning letters to five marketers of environmental certifications and seals, as well as over 30 product companies displaying those certifications, citing concerns that the certifications failed to comply with the agency’s Guides for the Use of Environmental Marketing Claims (“Green Guides”). The Green Guides are part of the FTC’s commitment to ensure that marketing statements referencing environmental attributes are truthful and not misleading.

Red Light for Green Claims: FTC Sends Warning Letters to Green Certifiers

This week, the U.S. Federal Trade Commission (FTC) announced that it has sent warning letters to five marketers of environmental certifications and seals, as we

Red Light for Green Claims: FTC Sends Warning Letters to Green Certifiers

On December 2, 2015, Judge Vince Chhabria of the Northern District of California dismissed with prejudice claims that grocery retailer Trader Joe’s violated California’s Unfair Competition Law (UCL) by using the term “soymilk” to describe certain food products that did not have cow’s milk. The plaintiffs alleged that Trader Joe’s’ use of the word “soymilk” to describe products that contain soymilk, but not cow’s milk, violated the federal Food, Drug and Cosmetics Act. Specifically, the plaintiffs claimed that Trader Joe’s’ use of the word “soymilk” misled plaintiffs into believing that the products (1) actually had cow’s milk, or (2) had a similar nutritional content to cow’s milk. Judge Chhabria held that the plaintiffs failed to state a claim that Trader Joe’s’ use of the term “soymilk” violated the federal act under either of the two theories alleged.First, the plaintiffs failed to state a plausible claim that Trader Joe’s’ use of the term “soymilk” is false or misleading under the “reasonable consumer” standard. Judge Chhabria held that a reasonable consumer would not be misled into thinking that soymilk comes from a cow, as soymilk is widely known as an alternative to cow’s milk. Also, a reasonable consumer would not think that the word “soymilk” implies that the product has a similar nutritional content to cow’s milk, because it would be implausible to assume that two distinct products contain the same nutritional content. Second, the court rejected the notion that Trader Joe’s had represented the “soymilk” products as cow’s milk products, which have a “standard of identity” under FDA regulations. Judge Chhabria found “no conceivable justification” for the assertion that a product labeled “soymilk” could be considered to be representing itself as cow’s milk.Judge Chhabria also denied in part and granted in part Trader Joe’s’ motion to dismiss claims based on undisclosed additives in products that the plaintiffs did not purchase, ruling that only the plaintiffs’ claims regarding additives in purchased products would go forward.

Trader Joe’s Wins Dismissal of Soymilk Products Mislabeling Claims

On December 2, 2015, Judge Vince Chhabria of the Northern District of California dismissed with prejudice claims that grocery retailer Trader Joe’s violated Cal

Trader Joe’s Wins Dismissal of Soymilk Products Mislabeling Claims

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to remove an action to federal court must provide sufficient admissible evidence supporting the jurisdictional basis for removal. No. 15-cv-03702-YGR.<a href="#_ftn1" name="_ftnref1">[1]</a>  Judge Yvonne Gonzalez Rogers remanded to California state court an action involving Gerber Products Co.’s Graduates Puffs as a result of insufficient admissible evidence.Gerber removed the action to federal court under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d).  CAFA requires an amount in controversy of at least $5 million.  Gerber argued that the sales amount of Graduates Puffs in California exceeded $5 million during the alleged period and should satisfy the statutory amount.  Gerber attempted to prove this monetary amount through the affidavit of one of its employees who had reviewed sales data provided by a third party researcher tracking the sales of the product.  Gerber provided documents summarizing the third party sales data but failed to provide any documentation in regards to potential hearsay issues.Judge Gonzales Rogers ruled that the evidence was inadmissible multiple hearsay and not subject to any exception. The affidavit constituted inadmissible multiple hearsay because it was a document presenting information from a third party resource. Geber did not submit a declaration from anyone who had knowledge regarding how the data was collected or maintained. Nor did Gerber make any offer of how it intended to cure the defects.  As a result, Gerber could not prove it satisfied CAFA’s amount in controversy requirement by a preponderance of the evidence, and the action was remanded from federal court. <a href="#_ftnref1" name="_ftn1">[1]</a> Gerber’s product, Gerber Graduates Puffs, contains labels depicting vegetables and fruits.  Plaintiffs represent a class of California consumers who allege that these images misled consumers into thinking the products were healthier than they actually are.

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

In Gyorke-Takatri v. Nestle USA, Inc., the United States District Court for the Northern District of California held that parties in a class action seeking to r

Sales Data Alone Insufficient to Support CAFA Jurisdiction in Gerber’s Graduates Puffs Labeling Case

On November 10, the federal Food and Drug Administration (FDA) announced that it is seeking public comments on use of the term “natural” on food labeling. FDA, “Natural” on Food Labeling (Nov. 10, 2015). The agency explained that its actions were prompted by the “changing landscape of food ingredients and production, and in direct response to consumers who have requested that the FDA explore the use of the term ‘natural.’” The announcement came as a surprise since FDA had previously declined requests from consumers, the food industry, and federal judges to define the term.

In re Lumber Liquidators Chinese Laminate Litigation

Maxus Energy Corporation

In re Hydroxycut Personal Injury and Class Action Litigation

Los Angeles World Airport (LAWA)

Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al

Fitbit Force Recall 

People of the State of California v. The Coca-Cola Company

Seagate Technology LLC

Clif Bar, Inc.

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Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on climate-related goals and claims, hazardous substances, mass torts, and consumer product safety.

William Tarantino

Drawing on his considerable experience in environmental health, William (Bill) focuses his practice on environmental and consumer protection law, with an emphasis on hazardous substances, mass torts, and consumer product safety.

William F. Tarantino

FDA Requests Public Comments on “Natural” Food Labeling

On November 10, the federal Food and Drug Administration (FDA) announced that it is seeking public comments on use of the term “natural” on food labeling. FDA, 

FDA Requests Public Comments on “Natural” Food Labeling