Settlement Reached in Probiotic Yogurt Litigation
Without admitting liability for alleged misleading advertising involving its probiotic yogurt products, The Dannon Co. has agreed to settle claims in seven putative class actions for $35 million. Gemelas v. The Dannon Co., Inc., No. 08-00236 (N.D. Ohio, stipulation of settlement filed September 18, 2009). If approved by the court, the settlement would also require the company to modify the advertising and labeling for its Activia® and DanActive® products to explain how they “regulate the digestive system” and to modify promotional statements about
the products’ effects on the digestive tract’s immune system.
Under the proposed settlement, class claimants can obtain $15 by submitting a claim form, $15-$30 by submitting a claim form signed under penalty of perjury, and $30-$100 by submitting a claim form signed under penalty of perjury and register receipts or other sufficient proofs of purchase. The amount ultimately paid to claimants will depend on the number of claims made, and the settlement fund will be used to pay class counsel $10 million, expenses, administrative costs including class notice, and individual awards to named class representatives of
$5,000 for those deposed and $1,000 for those not deposed. Any settlement funds not used will be distributed as product to charitable organizations that feed the hungry.
According to the lead plaintiffs’ lawyer, if approved by the court, the deal will be one of the largest reached in a false-advertising case involving food products. Further details about the litigation appear in issues 245 and 274 of this Update. See Product Liability Law 360, September 18, 2009.
