Finding that individual issues predominate over common ones in a putative class action alleging that Chipotle Mexican Grill sold conventionally raised meats despite advertising its use of “naturally raised” meats, a federal court in California has denied the plaintiff’s motion for class certification. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered December 2, 2013). Additional details about the case appear in Issue 451 of this Update. According to the court, when and where a class member ate at Chipotle and which meat she ate can only be handled individually. The court deemed these issues significant because the allegations are based on the company’s in-store menu signboards and paper menus and because the dates on which “naturally raised” meats were unavailable to specific stores varied over the course of five years. The court also noted that when Chipotle experienced “naturally raised” meat shortages, it would instruct individual…
Category Archives 9th Circuit
A federal court in California has given preliminary approval to the settlement of a nationwide class alleging that Cytosport, Inc. misleads consumers by representing that its Muscle Milk® Ready-to-Drink products are healthy and nutritious when they actually contain the same amount of calories and almost as much fat as a doughnut. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., order entered November 18, 2013). Additional information about the settlement and litigation appear in Issue 475 of this Update. The court has scheduled a May 15, 2014, final approval hearing.
A California resident has filed a putative nationwide class action against Pacific Foods of Oregon, Inc., alleging that the company falsely labels its Hemp NonDairy Beverage® products as “all natural” despite the presence of processed and artificial ingredients and misbrands them by listing as an ingredient “evaporated cane juice.” Perera v. Pac. Foods of Or., Inc., No. 13-1788 (C.D. Cal., filed November 13, 2013). Plaintiff Sadisha Perera claims that she purchased one specific beverage relying on the prominent “all natural” labeling, but seeks to represent class members who purchased a number of other hemp non-dairy products that are purportedly substantially similar. According to the plaintiff, she would not have purchased the products if she had known that ingredients, such as calcium phosphate, disodium phosphate, xanthan gum, and certain vitamins, listed on the product in smaller print, were non-natural. She claims that she did not get the benefit of the bargain…
A federal court in California has denied the motion to dismiss putative class claims that Jamba Juice falsely labels its frozen smoothie kits as “all natural,” finding that while the plaintiffs lack standing to assert claims related to products they did not buy, “they may seek to represent a class of people who have purchased those products, as long as all plaintiffs, named and absent, have standing in their own right, and as long as the prerequisites to class certification are satisfied.” Lilly v. Jamba Juice Co., No. 13-2998 (N.D. Cal., order entered November 18, 2013). The court will address whether the named plaintiffs may represent the proposed class at class certification and ordered them to file their certification motion by February 3, 2014.
Subject to court approval, Frito-Lay will pay $1.6 million to settle wage-andhour claims filed on behalf of current and former employees who deliver its products to stores and arrange the store displays. Elliott v. Rolling FritoLay Sales, LP, No. 11-1730 (C.D. Cal., filed November 9, 2011). A hearing on the plaintiff’s motion for preliminary approval will be held December 23, 2013. The plaintiff alleged that Frito-Lay did not pay all the wages owed for overtime hours worked, provide duty-free meal periods and rest breaks, provide accurate itemized wage statements, or pay all wages due on cessation of employment to its route sales associates (RSAs), merchandisers and detailers. According to the plaintiff, Frito-Lay calculated overtime pay “using an illegal fluctuating workweek rather than California’s mandated forty hours workweek. The effect of utilizing the fluctuating workweek is that the more hours Plaintiff and RSAs work in excess of forty hours, the lower their…
California residents have filed a putative class action against Whole Foods Market, alleging that the company misleads consumers by labeling certain snack products as “All Natural” because they contain “the synthetic chemical ingredient Sodium Acid Pyrophosphate, among other synthetic ingredients (e.g., Maltodextrin).” Garrison v. Whole Foods Mkt., Inc., No. 13-5222 (N.D. Cal., filed November 8, 2013). Seeking to certify statewide and nationwide classes, the plaintiffs claim that they relied on the truthfulness of the “product label’s promise that these Products were ‘All Natural,’” paid a price premium over products that are not all natural, “ingested a substance that was other than what was represented,” and “ingested a product that did not bring the health benefits Defendant promised.” The products at issue include mini muffins, soft-baked cookies and an array of gluten-free products, including apple pie, cheddar biscuits, corn bread, cookies, and cupcakes. While the plaintiffs mention various claims that the…
Wooden Nickel Music, which owns the copyright to the musical composition “Lady” and the sound recording embodying that composition by the group Styx, has filed an infringement action against Anheuser-Busch, LLC (AB) and a film company that purportedly created a video, currently on YouTube, including part of the recording. Wooden Nickel Music v. Anheuser-Busch, LLC, No. 13-8145 (C.D. Cal., filed November 4, 2013). The video, titled “Bud Light Commercial – The Elevator,” features a scheme in which young men cause an elevator with an attractive woman to stop between floors, so one of the men can share a beer and dance with the woman and, in the process, obtain a phone number. “Lady” is one of the songs played during the dance scene. According to the complaint, AB’s associate general counsel claims it has no record of the company “ever having seen the referenced work using Bud Light indicia” and…
A federal court in Washington has dismissed the second amended consumer fraud complaint filed against Costco Wholesale Corp. concerning its VitaRain® Enhanced Water Beverage; while the court dismissed the complaint without leave to amend, it did not dismiss it with prejudice. Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered November 1, 2013). The plaintiff claimed that the name “VitaRain” is itself deceptive, and the court disagreed, finding it implausible that it could “deceive a substantial portion of the public into believing that the beverage is ‘full of vitamins only’ or that it is a ‘nutritional’ or ‘healthy’ beverage. The name ‘VitaRain’ is largely nonsensical.” The plaintiff also associated the name with another beverage product containing the word “vitamin,” and the court stated in this regard, “Plaintiff’s claim must be limited to the actual representation, ‘VitaRain’ in this case, and not some imagined representation he arrived at through…
While the Ninth Circuit Court of Appeals has granted the Food and Drug Administration’s (FDA’s) motion for expedited consideration of its emergency motion to stay a district court order establishing rulemaking deadlines under the Food Safety Modernization Act, it denied the stay pending appeal. Ctr. for Food Safety v. Hamburg, No. 13-16841 (9th Cir., order entered November 4, 2013). Details about the motion appear in Issue 501 of this Update. The Ninth Circuit has, however, deemed “the period of compliance established by the district court tolled” due to the “government shutdown.” It extended until December 20, 2013, the date on which FDA will be required to publish a notice of proposed rulemaking addressing novel requirements for preventing the intentional adulteration of food. The Ninth Circuit also granted FDA’s motion to expedite the hearing of its appeal. Thus, the opening brief must be filed by December 23, the answering brief is due…
A federal court in California has given final approval to the settlement of a wage-and-hour class action against Starbucks Corp., including less than half of what plaintiffs’ counsel originally requested as attorney’s fees. York v. Starbucks Corp., No. 08-7919 (C.D. Cal., decided October 29, 2013). Starbucks apparently objected to the request for nearly $4.5 million, excluding nearly $250,000 in unreimbursed costs, characterizing it as “astonishing.” Thereafter, the parties agreed to attorney’s fees and costs of $1.9 million, and the court found the request reasonable. Under the agreement, 14,800 employees will receive payments of up to $900, for a total of $3 million, for alleged denial of statutorily mandated meal breaks and wage statements that failed to list the applicable overtime rate in violation of the California Labor Code. See Law360, October 28, 2013.
