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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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

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

CPSC Commissioners Abstain from Retracting Infant Sleep Product Statements

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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

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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Associate

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

Lauren Margolies

Lauren N. 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

The Tenth Circuit recently held that the Federal Meat Inspection Act (FMIA) gets the final word on what “Product of the U.S.A.” means for labels of beef products. Thornton v. Tyson Foods, Inc., No. 20-2124, 2022 WL 727628 (10th Cir. Mar. 11, 2022). The court based its decision on federal preemption, finding that the express preemption provision of FMIA preempted plaintiffs’ deceptive labeling claims under state law.Case background. Since 2015, defendants including Tyson Foods, Inc. have imported live cattle from other countries, slaughtered and processed the cattle in the United States, and then labeled the resulting beef products as “Products of the USA.” Already-slaughtered beef imported into the country also gets the same label. Plaintiffs, a rancher and a consumer, both argued in their complaints that this practice is misleading, fraudulent, and deceptive under New Mexico law.At issue is the FMIA, which permits labels that are “not false or misleading” and that the Food Safety Inspection Service (FSIS), an agency of the USDA, has approved. The FSIS has a Policy Book that defines “Product of the U.S.A.” as products that “at a minimum, have been prepared in the United States,” with no requirement that the animals be born or prepared in the United States. The FSIS approved defendants’ beef labels here.Both the consumer’s and the rancher’s cases were removed to federal court, and the district court granted defendants’ motions to dismiss, concluding that federal preemption barred all of plaintiffs’ state law claims. The district court further concluded that, either way, plaintiffs had failed to state a claim under any of their theories of liability. Plaintiffs appealed the ruling to the Tenth Circuit.Federal law and express preemption trump. The Tenth Circuit considered analysis of the beef labels under federal law. The court found it “undisputed” that the FSIS approved defendants’ labels “in line with the currently applicable and permissive regulatory framework and meaning of ‘Product of the U.S.A.’” Furthermore, the court found that, because the FSIS approved the beef labels, this approval was a determination that they were not “false or misleading” under the FMIA.Next, the court evaluated the FMIA’s express preemption provision, which prohibits states from imposing any labeling requirements for meat products that are “in addition to, or different than” the federal requirements. The Tenth Circuit concluded that, because FSIS approval was a determination under federal law, the FMIA’s express preemption provision prohibited any additional arguments under state law.In dissent, Judge Lucero argued the FMIA set separate, dual requirements—one, for the labels not to be misleading, and two, for the FSIS to approve those labels—and disagreed with the majority’s interpretation that FSIS approval automatically cleared the misleading hurdle under federal law.State’s concurrent jurisdiction did not change analysis. Plaintiffs also relied on the FMIA’s concurrent jurisdiction provision, which allows states to exercise concurrent jurisdiction regarding labeling requirements, so long as state requirements are “consistent with” the FMIA. This provision, plaintiffs argued, should mean they could still make an argument under New Mexico law. Judge Lucero’s dissenting opinion agreed, as he thought whether the labels were misleading was an open question that should allow plaintiffs to make arguments under state law.But the court found that this argument, too, was “doomed by the FSIS’s preapproval.” The majority reiterated that “plaintiffs’ concurrent-jurisdiction argument ignores the critical feature of this case”: that defendants’ products were not misbranded under federal law, so there was no open question. An analysis under state law would impose an additional requirement to what federal law calls for. Where federal preemption applies, additional state law analysis is barred.The court pointed to a recent Ninth Circuit decision, Webb v. Trader Joe’s Co., 999 F.3d 1196 (9th Cir. 2021), in which the court found that federal approval of labels for poultry products preempted plaintiff’s attempt to impose additional requirements for those labels under state law. The court also cited a number of district court decisions and concluded the consensus favored its interpretation that additional analysis under state law is preempted by the FMIA for the beef labels in this case. Key takeaways. The Tenth Circuit’s decision is a win for defendants. The Tenth Circuit’s determination that federal preemption prohibits additional requirements under state law for beef product labels should prove helpful for defendants facing class actions claims, who seek to limit plaintiffs’ arguments about other federally regulated products. Preemption is a topic that comes up frequently in disputes involving regulated industries like food and food labeling. Given the rise of food litigation in recent years, it is likely to continue to be an issue that parties should be prepared to confront until the cows come home.

An orthopedic implant company

A children&rsquo;s monthly subscription service product

A fertility company

A major technology company

A smart fitness equipment company

Fitbit

Julie Park provides analytic and strategic counsel for issues in product life cycle, product liability and defective products, consumer class actions, and more.

Julie Park

Julie Park | Product Liability Lawyer

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Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases

Till the Cows Come Home: Tenth Circuit’s Affirmation of Federal Preemption Is a Win for Defendants in Food Labeling Cases

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The Tenth Circuit recently held that the Federal Meat Inspection Act (FMIA) gets the final word on what “Product of the U.S.A.” means for labels of beef product

Last week the FDA announced that it would lift regulations controlling what can be called “French dressing.” The regulations—which had been in place since 1950—previously required that a product contain 35% vegetable oil and vinegar, lemon, or lime juice to be marketed as “French dressing.” Not anymore.The change comes in response to a 1998 petition that was filed by the Association of Dressings and Sauces (ADS), which has spent several decades petitioning the FDA to deregulate the product. ADS argued, in part, that the regulations stifled innovation and competition, limiting a company’s ability to offer customers a low-fat or fat-free version of the dressing.The FDA seems to have agreed, concluding that “the standard of identity for French dressing no longer promotes honesty and fair dealing in the interest of consumers and revoking the standard could provide greater flexibility in the product’s manufacture, consistent with comparable, non-standardized foods available in the marketplace.”[1] The FDA further found the need for the regulations on French dressing obsolete, as no other dressing is controlled by such stringent regulations.This appears to be the FDA’s most specific food deregulation since its consideration of its rules over frozen cherry pies in December 2020.[2] Since 1977, frozen cherry pies have been required to be at least 25% cherries by weight, with no more than 15% of the cherries being blemished. Following a petition from the American Bakers Association (ABA), the FDA determined “[t]he standards do not appear necessary to ensure that these products meet consumer expectations,” and tentatively concluded that they are no longer necessary.[3]As the FDA continues to take a fresh look at other existing standards of identity in light of marketing trends and the latest nutritional science, more changes can be expected. These deregulations seek to make manufacturing easier and more cost-effective, allowing for innovation and increasing customer options. Stay tuned to see what regulations the FDA decides to tackle next, and how this will play out for businesses and consumers. [1] <a href="https://public-inspection.federalregister.gov/2022-00494.pdf">https://public-inspection.federalregister.gov/2022-00494.pdf</a>.[2] <a href="https://www.fda.gov/food/cfsan-constituent-updates/fda-proposes-revoke-standard-identity-frozen-cherry-pie">https://www.fda.gov/food/cfsan-constituent-updates/fda-proposes-revoke-standard-identity-frozen-cherry-pie</a>.[3] Id.

FDA Ends Regulation of “French Dressing”

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FDA Ends Regulation of "French Dressing"

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Last week the FDA announced that it would lift regulations controlling what can be called “French dressing.” The regulations—which had been in place since 1950—

FDA Ends Regulation of "French Dressing"

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

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.

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Is the Coke Half Full or Half Empty?

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Earlier this month, a California federal judge certified six classes asserting state consumer protection statute claims in a multidistrict litigation alleging t

Is the Coke Half Full or Half Empty?

A New York federal court recently dismissed a putative class action alleging that a line of dog food products was improperly labeled as “natural” where the plaintiff alleged that the products contained only trace amounts of glyphosate, an herbicide. See Parks v. Ainsworth Pet Nutrition, LLC d/b/a Rachael Ray Nutrish, 18 Civ. 6936 (S.D.N.Y. Apr. 18, 2019).Case BackgroundPlaintiff Markeith Parks purchased defendant Rachel Ray Nutrish’s dog food products at BJ’s Wholesale in New York. He then brought suit in the Southern District of New York, alleging that, based on the “natural” representation on the products’ labels, the products would “be free of pesticides and other unnatural chemicals.” (Apr. 18, 2019 Order at 2.) The plaintiff also alleged that he was willing to pay more for such “natural” products. He brought claims for violation of the New York General Business Law (“GBL”) §§ 349 and 350, breach of express warranty, unjust enrichment, and injunctive relief.Court Grants the Defendant’s Motion to Dismiss Judge Stanton granted the defendant’s motion to dismiss as to all of the plaintiff’s claims. The court explained that the plaintiff failed to allege false advertising or deceptive acts or practices under the GBL because “a reasonable consumer would not be so absolutist as to require that ‘natural’ means there is no glyphosate, even an accidental and innocuous amount, in the” dog food products. (Id. at 10.) The court also concluded that the presence of negligible amounts of glyphosate that do not cause harmful, toxic, or carcinogenic effects is not material.The court quickly dispatched with the remainder of the plaintiff’s claims. As no reasonable consumer would interpret the “natural” label as conveying that the dog food products contained no amount of glyphosate, the plaintiff’s express warranty claim failed. The plaintiff’s unjust enrichment claim was duplicative of his other claims. The plaintiff’s allegations that he would consider buying the defendant’s dog food products in the future if they were reformulated so that the representations were “truthful” (i.e., the products contained no glyphosate) were insufficient to grant the plaintiff standing to seek injunctive relief.TakeawayDefendants facing false advertising claims based on a “natural” label claim should ask the court to dismiss such claims where the plaintiffs allege only that the products contain trace, not harmful, amounts of the purportedly unnatural substances. Reasonable consumers are not deceived in such circumstances, and the presence of such substances are not material to consumers relying on the “natural” label.

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“Natural” Complaint Barks Up the Wrong Tree

“Natural” Complaint Barks Up the Wrong Tree

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A New York federal court recently dismissed a putative class action alleging that a line of dog food products was improperly labeled as “natural” where the plai

In April, a New York federal court denied certification for a purported class alleging that Johnson & Johnson misled customers by placing the words “no trans fat” on labels for its Benecol buttery spreads. See Bowling v. Johnson & Johnson, et al., 1:17-cv-03892, S.D.N.Y. 2017. The court’s order focused on issues highly specific to the lead plaintiff, showing the benefits of carefully investigating the lead plaintiff in class actions.Case BackgroundIn 2017, Suzanna Bowling brought suit against Johnson & Johnson alleging that the labeling for its Benecol buttery spreads was misleading. According to the complaint, the labeling includes text reading “No Trans Fat” and “No Trans Fatty Acids,” some of which is in “all capitalized, bolded letters.” It was these statements that the complaint alleged misled a New York class of customers to purchase, and overpay for, the product.Court Denies Plaintiff’s Motion for Class CertificationThe United States District Judge Alison J. Nathan denied Ms. Bowling’s motion to certify the New York class, finding that Ms. Bowling was not a suitable class representative for a couple of reasons.First, Ms. Bowling had previously settled with Johnson & Johnson, and as a part of that settlement, there was a “covenant not to sue” in place. This covenant, among other aspects of the settlement, could potentially impede the current case were it to proceed. Judge Nathan stated, “It may be that the covenant not to sue is not binding or is inapplicable to Bowling’s claims here, but … the court concludes she will be required to ‘devote considerable time’ to rebutting its applicability.” As a result of this potentially binding covenant, Ms. Bowling was certainly an atypical—and arguably an inadequate—class representative.Second, Ms. Bowling’s credibility suffered “on key issues.” In fact, key allegations in her complaint were demonstrably false. Ms. Bowling stated in the complaint that she purchased Benecol at a particular location and time, but Johnson & Johnson’s internal records showed that Benecol was never sold at that particular location and time. Ms. Bowling also alleged that, after she came to believe that Benecol actually contained trans fats, she immediately wrote Johnson & Johnson requesting a refund. However, Johnson & Johnson’s customer service department found no record of such a refund request.In conclusion, Judge Nathan stated, “Here, defendants have presented unrebutted evidence that Bowling could not have purchased Benecol Light in the manner in which she has testified; she is therefore ‘vulnerable to serious attacks’ on her credibility.” Accordingly, Ms. Bowling’s motion for class certification was denied.TakeawayThis case reinforces that it is imperative for defendants to always carefully investigate the lead plaintiffs, whether by running a background check or asking questions about their prior litigation history during depositions. All too often, as was the case here, the lead plaintiff is an inadequate class representative for personal reasons that are not apparent at first glance. And while the plaintiff’s unsuitability to represent the class may not end the entire litigation, it can certainly stall the proceedings and create leverage for defendants during settlement negotiations.

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Lead Plaintiff Spreads Her Misleading Butter Case a Little Too Thin

Lead Plaintiff Spreads Her Misleading Butter Case a Little Too Thin

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In April, a New York federal court denied certification for a purported class alleging that Johnson & Johnson misled customers by placing the words “no trans fa

In Hadley v. Kellogg Sales Company, Plaintiff Stephen Hadley, who has filed at least two additional lawsuits alleging the mislabeling of breakfast foods, sought certification of four California subclasses of purchasers of Kellogg’s cereal and cereal bar products.  On August 17, 2018, Judge Koh issued an order that carefully dissected Plaintiff’s request.  The court concluded that Plaintiff had established the requirements for class certification for several of his proposed subclasses challenging health claims on the labels of the products at issue.  Significantly, however, Judge Koh rejected Plaintiff’s attempts to certify a subclass challenging a representation made on the back of packaging of cereal bars.  She also concluded that Plaintiff had not established Rule 23(b)(3)’s predominance requirement as to his deceptive omission theory of liability due to his failure to present a viable damages model.Background. Plaintiff alleges that Kellogg’s use of statements containing terms such as “healthy,” “nutritious,” or “wholesome” on its cereal and cereal bar products misled consumers into believing that those products are healthy, when they are not because of the amount of added sugar they contain.  On this basis, Plaintiff alleges violations of the FAL, CLRA, and UCL, and asserts a claim for breach of warranty.  Plaintiff also predicates his consumer-protection claims on his allegations that Kellogg deceptively failed to disclose to consumers the products’ high sugar content, and that certain of the challenged statements violate FDA regulations.Narrowly Defined Subclasses Prevent Predominance Challenge Based on Lack of Exposure, But Back-of-the-Package Statements Do Not. Kellogg argued that many of the allegedly deceptive statements did not appear on the packaging of the cereal products for a substantial portion of the class period, and that this lack of uniform exposure created significant differences regarding the legal viability of class members’ claims.  The court disagreed.  Judge Koh reasoned that Plaintiff sidestepped this potential problem by narrowly defining the subclasses to include only those individuals who purchased products that actually displayed the challenged statements on their packaging.  Nevertheless, the court agreed with Kellogg that it could not infer class-wide exposure to the “wholesome goodness” statement that only appeared on the back panel of cereal bar packaging.  The court therefore declined to certify a subclass of purchasers of the cereal bar because it would have to conduct individualized inquiries to determine which class members saw the challenged statements.Advantage Realized Model Flunks Comcast for Omission Claims.  Comcast Corp. v. Behrend, 569 U.S. 27 (2013), requires a plaintiff to establish a damages model that matches his or her theory of liability and measures damages across the entire class.  Plaintiff claimed that his expert’s proposed “advantage realized model” satisfied the Comcast requirement for his theory that Kellogg deceptively failed to inform consumers about the allegedly high sugar content of its breakfast products.  Under the advantage realized model, Plaintiff’s expert proposed to measure the market advantage that Kellogg obtained by omitting that information.  The court concluded, however, that this model only provided a measure of nonrestitutionary disgorgement (Kellogg’s unjust enrichment), rather than restitutionary disgorgement (Plaintiff’s loss).  The court explained that nonrestitutionary disgorgement is not a permissible class-wide remedy under the FAL, CLRA, or UCL, and therefore Plaintiff’s damages model was not consistent with his omission theory of liability.Takeaway. Judge Koh’s decision in Hadley emphasizes that plaintiffs challenging multiple statements on multiple products in a single action are not excused from establishing the requirements for class certification for each product at issue and each theory of liability.  Even where defendants cannot entirely defeat class certification, they should parse plaintiffs’ broad requests and direct pointed attacks to particular products or theories of liability that are susceptible to challenge on any class certification requirement.  In particular, Judge Koh’s denial of class certification as to back-of-the-package statements and omission-based claims demonstrates that predominance and damages model requirements remain fruitful areas for opposing class certification.

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Mixed Results on Class Certification for “Cereal” Plaintiff

Mixed Results on Class Certification for “Cereal” Plaintiff

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In Hadley v. Kellogg Sales Company, Plaintiff Stephen Hadley, who has filed at least two additional lawsuits alleging the mislabeling of breakfast foods, sought

On remand from the Ninth Circuit, Judge Koh nixed a plaintiff’s second attempt to certify a nationwide class of Gerber’s baby food purchasers. Her decision is notable for two reasons.  First, in denying plaintiff’s Rule 23(b)(2) injunctive relief class based on changes to Gerber’s product labels, Judge Koh adds to the factual predicates necessary for injunctive standing.  Second, in denying Plaintiff’s Rule 23(b)(3) damages class, Judge Koh reaffirms that a plaintiff must present a Comcast-complaint damage model to secure certification.Judge Koh’s decision is a win for companies facing putative false advertising class actions. It confirms that, despite some recent Ninth Circuit decisions favorable to plaintiffs, the rigorous standards for class certification have not changed.We review the case background, the court’s decision, and key takeaways below.BackgroundPlaintiff’s Claims. Plaintiff Natalia Bruton sued Gerber Products Company (“Gerber”) in 2012, alleging that Gerber’s baby foods included unlawful and deceptive nutrient content claims and low-sugar added claims. She sought to represent a nationwide class of purchasers of these products that contained the challenged claims and alleged violations of the UCL, CRLA, and FAL.Bruton I. Plaintiff’s lawsuit, which was part of a barrage of “misbranded” food claims filed in the Northern District of California by the same counsel at that time, slowly made its way through the district court and appellate systems. First, in June 2014, the Court denied Plaintiff’s motion for class certification, finding that variations in the challenged label statements rendered the class unascertainable.  Then, in December 2014, Judge Koh granted Gerber’s motion for summary judgment on all of Plaintiff’s claims, finding Plaintiff failed to provide sufficient evidence that the labels were deceptive.Ninth Circuit’s Decision. In July 2017, the Ninth Circuit affirmed in part and reversed in part Judge Koh’s order (see our post on the decision <a href="https://classdismissed.mofo.com/food-misbranding/the-ninth-circuits-food-court-menu-a-status-update/">here</a>).  The panel reversed the district court’s class certification decision, as the Ninth Circuit had previously found in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017) that there was no separate ascertainability requirement.  The panel affirmed the district court’s dismissal of deception-based claims under the UCL, CLRA, and FAL, but reversed dismissal of plaintiff’s UCL “unlawful” claim, finding that, because the underlying statutory violation did not require a showing of deception, plaintiff’s particular “unlawful” allegations did not require such a showing either.  The panel also reversed the district court’s earlier decision dismissing the plaintiff’s unjust enrichment/quasi-contract claim, as California law had since confirmed that this claim was viable.  The panel remanded to Judge Koh to consider class certification and the merits of Plaintiff’s remaining unlawful and unjust enrichment claims.Bruton II – Class Certification Denied, AgainOn remand, the plaintiff moved to certify a Rule 23(b)(2) injunctive relief class and a Rule 23(b)(3) damages class. Judge Koh denied both.Injunctive Relief. The Court held that plaintiff lacked standing to seek an injunction because Gerber’s labels no longer included the challenged statements, nor was there evidence that Gerber would use the challenged statements again. Plaintiff therefore had no evidence that she would likely be harmed in the future, and accordingly lacked standing to sue.The plaintiff attempted to rely on Davidson v. Kimberly-Clark Corp., 873 F.3d 1103 (9th Cir. 2017) to claim she had injunctive standing, but the court found the facts distinguishable.  In Davidson, the Ninth Circuit found that the plaintiff alleged a sufficient threat of future harm because the plaintiff intended to buy the product again, but could not be sure if the product was misleading.  That was because the defendant’s labels had not changed, so the plaintiff would either have to refrain from buying the product despite wanting to purchase it, or wrongly assume that the defendant had changed the product to conform to its label.  These scenarios didn’t apply to the plaintiff’s claims, the court held, because all of the labels had changed.  There was accordingly no threat of future harm.Damages. Nor did plaintiff put forth evidence necessary to certify a damages class, the court held. For 23(b)(3) certification, Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) requires a plaintiff to put forth a damages model consistent with her theory of liability.  In a mislabeling case such as plaintiff’s, the court confirmed, the correct measure of damages is the price premium:  the difference between the market value of the product and the value without the offending statement.Plaintiff’s expert offered three damages models, but none sufficed. The first model, “full refund,” didn’t attempt to calculate a price premium, but instead wrongly assumed consumers received no value from the product.  The second model, “price premium,” wrongly assumed that the entire difference in price between Gerber and comparable products could be attributed to the challenged statements “when any number of factors—such as brand recognition or loyalty, ingredients, and product quality—might explain all or part of the difference.”  (Bruton II, Slip Op., 15:19-21.)  And the third model, “regression,” did not provide a reliable means for comparing products with and without challenged label statements, nor did it control for the myriad variables that impact products’ prices or sales.  The individual issues were compounded by the variations in the label statements over time and across different products.  Because each of the damages models plaintiff proposed failed Comcast, the court found that the plaintiff failed to show individual issues related to damages predominated over common ones and denied Rule 23(b)(3) certification as a result.Takeaway.  Judge Koh’s decision in Bruton II demonstrates that the bar for class certification in the food misbranding context remains high, even in the wake of appellate decisions favorable to plaintiffs.  To certify an injunctive class, plaintiffs must present actual evidence that they are likely to be harmed in the future, which means they must intend to purchase the product again, and—as Judge Koh confirms here—show that challenged label statements remain on the product.  And to certify a damages class, a plaintiff must present a rigorous damages model that controls for the many variables that impact price and sales for low-cost, everyday products.  This is a tremendous task.  After years of district court and appeals litigation, the road to class certification has only become more formidable for plaintiffs.  Judge Koh’s decision in Bruton II shows why.