A federal court in California has rendered its reluctant approval of a preliminary settlement in class litigation against Kellogg Co., alleging that the company falsely advertised its cereal product as a food that could help improve children’s attentiveness by 20 percent. Dennis v. Kellogg Co., No. 09-1786 (S.D. Cal., order entered May 3, 2013). The matter had been remanded from the Ninth Circuit, which reversed an earlier settlement approval, finding that the cy pres distribution to organizations helping the indigent of funds remaining after the class claims were paid had not been properly assigned. Additional information about the Ninth Circuit’s decision appears in Issues 447 and 453 of this Update. The district court observes that the new designated cy pres recipients, the Consumers Union, Consumer Watchdog and Center for Science in the Public Interest, are appropriate as consumer-protection organizations, but expresses its dismay over the decrease in cash value to…
Category Archives 9th Circuit
California’s attorney general (AG) has filed a suit against a number of candy manufacturers and grocery retailers, alleging that they have violated Proposition 65 (Prop. 65) by failing to label “ginger candies and other food products containing ginger” and/or “plum candies and other products containing plums,” which the AG claims contain lead, a substance known to the state “to cause cancer, birth defects, and other reproductive harm.” People v. Dakota Bros., No. __ (Cal. Super. Ct., San Francisco Cty., filed April 30, 2013). Under Prop. 65, “businesses must provide a ‘clear and reasonable warning’ before exposing individuals to lead,” according to the complaint, and the defendants have allegedly not provided such warnings. The AG seeks civil penalties, not to exceed $2,500 per day for each violation, injunctive relief, attorney’s fees, and costs.
Monster Beverage Corp. has filed a complaint for declaratory and injunctive relief against San Francisco’s city attorney, who launched an investigation into the company’s alleged marketing of energy drinks to children in October 2012. Monster Beverage Corp. v. Herrera, No. 13-786 (C.D. Cal., E. Div., filed April 29, 2013). According to the complaint, City Attorney Dennis Herrera has threatened to sue the company under the Sherman Law and California’s consumer protection laws if Monster does not agree to reformulate its product to lower the caffeine content, provide adequate warning labels, cease promoting over-consumption in marketing, cease using alcohol and drug references in marketing, and cease marketing to minors. The energy beverage maker contends that Herrera’s investigation and demands are preempted by federal law and represent an attempt to “usurp FDA’s [the Food and Drug Administration’s] regulatory authority” contrary to the primary-jurisdiction principle. Monster also claims that Herrera’s conduct violates the…
A federal court in California has reportedly ordered two plaintiffs’ law firms to disclose under seal any contributions made “either directly or indirectly by the firm or by any member of the firm to the Democratic Attorneys General Association from January 1, 2012, to present, and any communications between either law firm and the Mississippi Attorney General’s office concerning any such contribution.” In re Diamond Foods, Inc., Securities Litig., No. 11-5386 (N.D. Cal., order entered April 23, 2013). The order follows Diamond Food’s opposition to the appointment of the Mississippi Public Employee Retirement System (MPERS) as class representative in a securities class action alleging that the food company improperly accounted for some $50 million in payments to walnut growers. When the payments, allegedly intended to artificially lower the company’s fiscal 2011 costs, were revealed, a $2.3 billion deal to acquire the Pringles brand was purportedly delayed and later fell apart,…
A federal court in California has ordered Bumble Bee Foods, LLC to produce “documents dating back to 2004 regarding the marketing and labeling strategies for the products [plaintiff] purchased and for products with the same Omega-3 label or with nearly identical labels” in a putative nationwide consumer-fraud class action. Ogden v. Bumble Bee Foods, LLC, No. 12-1828 (N.D. Cal., order entered April 16, 2013). The named plaintiff seeks to represent class members who purchased products she did not buy and purchased a product made by a separate company that is not a defendant in the case. According to the court, the discovery dispute was about whether Bumble Bee “must produce discovery on all of its products . . . from eight years prior to the initiation of this lawsuit . . . [and involving] King Oscar.” The court determined that it was not appropriate to consider whether the named plaintiff has…
A federal court in California has decided that some consumer-fraud claims brought by an animal rights group and a company that makes vegan faux foie gras against Hudson Valley Foie Gras (HVFG) over statements that the defendant’s product is “the humane choice” may proceed. Animal Legal Def. Fund v. HVFG, L.L.C., No. 12-5809 (N.D. Cal., order entered April 12, 2013). While California prohibits the production of foie gras, which involves force-feeding ducks, the law does not prevent out-of-state producers, such as New York-based HVFG, from marketing in the state or shipping its product there. While the court reportedly acknowledged that a definition for “humane” is “hard to pin down,” it found that the plaintiffs might be able to prove use of the term by HVFG false if the production process is shown to cause ducks an undue amount of pain. The court dismissed the Animal Legal Defense Fund from the lawsuit…
A federal court in California has granted in part and denied in part the defendants’ motion to dismiss the first amended complaint in a putative class action alleging that the companies falsely label and market Splenda Essentials with Antioxidants®, Splenda Essentials with Fiber® and Splenda Essentials with B Vitamins®. Bronson v. Johnson & Johnson, Inc., No. 12-4184 (N.D. Cal., order entered April 16, 2013). Dismissed with leave to amend were claims brought under the Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act to the extent that the claims include statements made on the defendants’ website or in print ads. The court found that the plaintiffs failed to allege that they relied on these statements when purchasing the products. Also dismissed with leave to amend are claims about the Fiber and B Vitamins products because the plaintiffs relied on lack of scientific substantiation theories which cannot be asserted…
A federal court in California has issued a tentative rejection of a settlement reached in a putative class action alleging that Ben & Jerry’s Homemade Inc. falsely claims that its ice cream is all natural despite containing genetically modified ingredients. Tobin v. Conopco Inc., No. 12-5881 (N.D. Cal., notice filed April 15, 2013). The court’s notice of tentative ruling also raises questions for hearing including (i) “what is the parties’ best argument that venue is proper in this district,” (ii) are the plaintiff’s claims typical of the class claims in light of the defendants’ contention that she lacks standing to bring her claims under the New Jersey Consumer Fraud Act, (iii) is the parties’ proposed notice the best practicable, (iv) do the proposed cy pres charities have any nexus to the claims, and (iv) is it appropriate to reduce the funds available for settlement purposes to cover fees and administrative…
A federal court in Colorado has dismissed the defendants’ post-trial motions for judgment as a matter of law or for a new trial thus upholding a $7.5 million jury award to plaintiffs who alleged personal injury from exposure to the diacetyl in microwave popcorn consumed at home. Watson v. Dillon Cos., Inc., No. 08-91 (D. Colo., order entered April 10, 2013). The court scheduled an April 18 hearing on post-trial motions to amend the judgment and for an award of attorney’s fees and costs. According to the court, in light of conflicting evidence as to the defendants’ knowledge about purported health effects from diacetyl exposure and whether non-workplace exposures are sufficient to cause injury, a reasonable jury could conclude that the defendants knew about the risk and failed to warn consumers about it. The court also found the punitive damages appropriate because “a reasonable jury could conclude that the Defendants knew…
Two California residents who recently sued Trader Joe’s for allegedly misbranding certain foods by using “organic evaporated cane juice” on its product labels have filed a putative nationwide class action against a yogurt company with similar allegations. Gitson v. Clover Stornetta Farms, Inc., No. 13-1517 (N.D. Cal., filed April 4, 2013). Details about the Trader Joe’s lawsuit appear in Issue 477 of this Update. The named plaintiffs contend that the defendant markets some 14 different flavors of its yogurt products, all of which list “organic evaporated cane juice” as an ingredient on their labels “in violation of a number of labeling regulations.” They cite Food and Drug Administration (FDA) guidance, warning letters and an open letter to demonstrate that use of this term for a yogurt sweetener is “illegal.” The plaintiffs also target the company’s websites for their alleged used of “illegal claims.” According to the complaint, they relied on…
