A federal court has denied class certification to plaintiffs in multidistrict litigation involving false advertising claims for 5-Hour Energy® drinks, finding they failed to allege that common issues predominate over individual ones, including a common definition of “energy.” In re 5-Hour Energy Mktg. and Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered June 7, 2017). The plaintiffs could not establish the definition of “energy,” the court found, because they defined it as “caloric energy” based on U.S. Food and Drug Administration dietary-supplement standards but did not show that consumers interpret “energy” the same way. In addition, plaintiffs in California, Missouri and New Mexico proposed a theory of liability based on underfilling, alleging that the product provided only 3.7 minutes of caloric energy instead of five hours, while plaintiffs in other states did not argue for the theory. Issue 637
Category Archives 9th Circuit
The family of Bob Marley will receive more than $2.8 million in damages and unpaid royalties from Jammin Java Corp. in a trademark-infringement suit. FiftySix Hope Rd. Music Ltd. v. Jammin Java, No. 16-5810 (C.D. Cal., order entered May 30, 2017). The family’s companies, 56 Hope Road Music Ltd. and Hope Road Merchandising LLC, own the late musician’s intellectual property and publicity rights and sued Jammin Java after it failed to pay royalties on a license to produce Marley Coffee. Jammin Java was founded by Marley’s son Rohan, who left the company in 2008. Issue 636
A consumer has filed a proposed class action alleging Sargento Foods misleadingly advertises its cheese products as “natural” despite containing genetically modified organisms (GMOs) or animal growth hormones. Stanton v. Sargento Foods, Inc., No. 17-2881 (N.D. Cal., filed May 19, 2017). The plaintiff asserts that the cows providing milk for the production of Sargento cheeses are fed GMO corn and soybeans as well as a growth hormone. Alleging violations of state consumer protection acts and breach of warranty laws, the plaintiff seeks class certification, damages, an injunction and attorney’s fees. Issue 636
A California jury found that retired University of California, Davis, professors willfully infringed the university’s patents on strawberries they developed in the school’s program. Regents of Univ. of Cal. v. Cal. Berry Cultivars, No. 16-2477 (N.D. Cal., verdict filed May 24, 2017). The professors formed a private strawberry-breeding company, California Berry Cultivars, after retiring from UC Davis. The jury found they had engaged in conversion, willful infringement, breach of duty of loyalty and breach of fiduciary duty, but released them from allegations that they interfered with the university’s business contracts or prospective economic relationships. Additional details appear in Issues 604 and 633 of this Update. Issue 636
A group of California citrus growers has sued the U.S. Department of Agriculture seeking to stop implementation of a new rule that would lift the ban on importation of lemons from Argentina, claiming the rule violates both “sound science and good public policy.” U.S. Citrus Sci. Council v. USDA, No. 17-0680 (E.D. Cal., filed May 17, 2017). The plaintiffs assert that the United States has banned Argentine lemon imports since 1947 because “highly destructive plant pests and diseases plague Argentine citrus” and the Argentine government agency charged with plant protection “has a long and problematic history of failing to report pest and disease outbreaks promptly and of failing to ensure compliance” with basic plant protection measures. The plaintiffs argue that the Animal and Plant Health Inspection Service violated both the Plant Protection Act and the Administrative Procedure Act when it promulgated the new rule relying on conclusions reached during a…
Two proposed class actions have been filed in California claiming false labeling of truffle-flavored olive oil. Schiffman v. Urbani Truffles, No. 17-935 (E.D. Cal., filed May 3, 2017); Quiroz v. Sabatino Truffles, No. 17-783 (C.D. Cal., filed May 3, 2017). The plaintiffs argue that the olive oil producers add 2,4 dithiapentane to flavor their products instead of truffles and sell the “truffle infusions” at markups as high as 1,400 percent over the price of plain olive oils. The actions claim violations of the Magnuson-Moss Warranty Act and state consumer protection laws. Details on similar lawsuits in New York appear in Issue 633 of this Update. Issue 634
A California federal court has approved a plan to publicize the settlement of a proposed class action filed against Safeway alleging the supermarket chain underfilled its canned tuna. In re Safeway Tuna Cases, No. 15-5078 (N.D. Cal., order entered May 4, 2017). The judge approved the settlement in March 2017 but was concerned that potential class members would be unaware of the dismissal of the case. The publicity plan requires the parties to issue press releases to major news outlets and legal publications in California and nationwide and post notice on a publicly searchable website. When that plan is complete, the court said, the action will be dismissed. Additional details on the settlement appear in Issue 628 of this Update. Issue 634
A consumer has filed a lawsuit alleging Mondelez International misleadingly markets Ginger Snaps cookies as healthy. Winn v. Mondelez Int’l, No. 17-2524 (N.D. Cal, removed to federal court May 3, 2017). The proposed class action claims that Ginger Snaps packages were marketed with the phrases “Made With Real Ginger and Molasses” and “Sensible Solutions,” leading consumers to believe the cookies were healthy despite allegedly containing “dangerous levels” of partially hydrogenated oils and high-fructose corn syrup. For alleged violations of California’s consumer protection laws, the plaintiff seeks class certification, damages, restitution, injunctive relief and attorney’s fees. Issue 634
Bumble Bee Foods, LLC has agreed to plead guilty to one felony count for its role in a conspiracy to fix prices of shelf-stable tuna and will pay a minimum $25 million fine. U.S. v. Bumble Bee Foods LLC, No. 17-CR-249 (N.D. Cal. May 8, 2017). According to the U.S. Department of Justice, Bumble Bee conspired with other seafood companies and their executives to inflate prices for canned and pouch tuna. Two Bumble Bee executives have already pleaded guilty to criminal charges; details appear in Issue 625 of this Update. “Today’s charge is the third to be filed—and the first to be filed against a corporate defendant—in the Antitrust Division’s ongoing investigation into price fixing among some of the largest suppliers of packaged seafood,” Acting Assistant Attorney General Andrew Finch said in a May 8, 2017, press release. “The division, along with our law enforcement colleagues, will continue to hold…
A California federal court has ruled that plaintiffs who admitted to reading Healthy Beverage’s website cannot sue the company for listing evaporated cane juice (ECJ) on the ingredient list rather than sugar. Swearingen v. Healthy Beverage, No. 13-4385 (N.D. Cal., order entered May 5, 2017). The plaintiffs initially filed a putative class action claiming Healthy Beverage misled consumers by listing evaporated cane juice on their product labels, but they later alleged in an amended complaint that the company’s website “is incorporated into the label for each of Defendants’ products” and that the website states “cane juice is natural sugar.” Given those allegations, the court dismissed the suit with prejudice, holding, “An allegation of reliance, which is necessary for all of plaintiffs’ claims” under California consumer protection laws and unjust enrichment, was “impossible . . . [t]he Court will not allow them a third bite at the apple to amend a…
