A California resident has filed a putative nationwide class action against Nestlé USA, Inc., claiming that its use of partially hydrogenated vegetable oil (trans fat) in many of its frozen pizza brands, including DiGiorno®, Stouffer’s® and California Pizza Kitchen® violates California’s Unfair Competition Law and constitutes a nuisance under California Civil Code §§ 3479-3493. Simpson v. Cal. Pizza Kitchen, No. 13-164 (S.D. Cal., filed January 21, 2013). In addition to monetary damages, she seeks an order requiring the company to “cease using artificial trans fat as an ingredient in the Nestle Trans Fat Pizzas.” While the complaint includes detailed information about the purported risks of consuming trans fats and notes that California forbids its use in schools or restaurants in amounts greater than a half-gram per serving, nowhere does she allege what quantity of trans fat is used in the defendants’ products or whether the products are mislabeled. Plaintiff Katie…
Category Archives 9th Circuit
A federal court in California has dismissed statutory and common law claims filed in a putative class action against Sioux Honey Association Cooperative, alleging that the company falsely labels its Sue Bee Clover Honey® product as “honey,” despite removing the pollen from the product. Ross v. Sioux Honey Ass’n Coop., No. 12-1645 (N.D. Cal., decided January 14, 2013). The court found the claims preempted or insufficiently pleaded in the plaintiff’s third amended complaint and, concluding that any further amendment would be futile, granted the motion to dismiss with prejudice. So ruling, the court declined to rule that the plaintiff lacked standing to bring the suit, finding that her pleadings satisfied the requirements of Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011), in which the California Supreme Court recognized that allegations of economic injury arising from reliance on a product manufacturer’s alleged misrepresentations satisfy the injury-in-fact requirement for standing under…
A California resident has filed a putative class action against General Mills, Inc. alleging that two of its frozen vegetable “steamers” products are falsely advertised as “100% Natural” because they contain genetically modified (GM) ingredients. Cox v. General Mills, Inc., No. 12-6377 (N.D. Cal., filed December 17, 2012). According to the complaint, the products contain GM corn, soy, corn derivatives, and/or soy derivatives. Seeking to certify a statewide class of those who have purchased Green Giant Valley Fresh Steamers®, the plaintiff alleges violations of California’s False Advertising and Unfair Competition laws and the California Consumers Legal Remedies Act. She requests injunctive relief; restitution; disgorgement; actual, statutory and punitive damages; attorney’s fees; costs; and interest.
A federal court in California has determined that Asian-American interest organizations have not sustained their burden of showing that they are entitled to preliminarily enjoin the shark fin ban that took effect January 1, 2012, in the state. Chinatown Neighborhood Ass’n v. Brown, No. 12-3759 (N.D. Cal., decided January 2, 2013). Additional details about the case appear in Issue 447 of this Update. The court found that the plaintiffs were unlikely to prevail on their claims of discrimination against the Chinese-American community that uses shark fins in traditional dishes served at many banquets and special events. Finding that the state had a rational basis to impose limits on shark finning and that the state regulations did not overlap federal restrictions, the court denied the plaintiffs’ motion for a preliminary injunction.
According to a news source, the first “popcorn-lung” occupational exposure case tried in California has resulted in a defense verdict. Velasquez v. Flavor & Extract Mfrs. Ass’n, No. BC370319 (Cal. Super. Ct., Los Angeles Cty., verdict reached December 12, 2012). The plaintiff was a former flavoring factory employee who claimed that his exposure to the butter-flavoring chemical diacetyl caused his debilitating lung disease, bronchiolitis obliterans. His attorney was quoted as saying, “The defense was very effective in confusing the jury,” observing that the defense suggested that the plaintiff’s health problems could have been attributed to acetaldehyde, another chemical flavoring. The lawsuit originally involved 10 defendants, a number of whom settled with the plaintiff before trial. Plaintiff’s counsel has reportedly indicated that the verdict will be appealed, citing, among other matters, the trial corut’s decision to allow the jury to hear that the plaintiff is an illegal immigrant. See Law360, December 13, 2012.
A plaintiff who claims he began consuming Monster Beverage energy drinks as a teenager, because he was offered free beverages from a truck parked outside his high school, has filed a putative nationwide consumer-fraud class action against the company in a California federal court. Fisher v. Monster Beverage Corp., No. 12-02188 (C.D. Cal., filed December 12, 2012). Among other matters, he claims that the company aggressively markets the products to youth and falsely labels them as dietary supplements to avoid regulation under Food and Drug Administration beverage rules. He further contends that the products are addictive. Alleging violations of California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act, breach of express and implied warranties, violation of the Magnuson-Moss Warranty Act, and unjust enrichment, the plaintiff seeks actual, statutory and punitive damages; corrective labeling, advertising and marketing; full restitution and disgorgement; and interest.
A federal court in California has dismissed in part putative class claims filed by a man who alleges that Ghirardelli Chocolate Co. white chocolate products do not contain the requisite white chocolate ingredients to be labeled and promoted as such. Miller v. Ghirardelli Chocolate Co., No. 12-04936 (N.D. Cal, decided December 6, 2012). The court agreed with Ghirardelli that the plaintiff lacked standing to pursue claims relating to four products that he did not purchase. According to the complaint, the plaintiff bought a package of “Ghirardelli Chocolate Premium Baking Chips Classic White” and sought recovery on behalf of a class of purchasers of that product as well as white chocolate wafers, ground white chocolate flavor, a mocha mix, and a frappé product. Noting that controlling authority is lacking on whether plaintiffs have standing for products they did not purchase, the court discussed two lines of cases: one in which federal courts have…
In an unpublished decision, a California appeals court has determined thatInnovation Ventures, LLC, the parent company which makes 5-Hour Energy®, may proceed with a malicious prosecution action against Howard Rubinstein and other consumer-fraud attorneys in connection with a putative class action filed against the company in 2010 on behalf of a woman, Vi Nguyen, whose claims about the product apparently changed during her deposition, leading to the suit’s voluntary dismissal with prejudice. Innovation Ventures, LLC v. Rubinstein, No. G046242 (Cal. Ct. App., 4th Dist., decided November 29, 2012) (unpublished). The court noted that the underlying consumer-fraud complaint referred in a number of places to the named plaintiff as “he” and that the named plaintiff did not believe she had ever seen the complaint or she would have corrected these references. She also apparently had never seen the attorneys of record “and had just met Rubinstein the day before her deposition.”…
A federal court in California has granted in part the summary judgment motion filed by a coconut water company facing allegations that it overstates the magnesium and sodium content of its “O.N.E.” product and falsely claims that it is a good source of electrolytes. Vital v. One World Co., LLC, No. 12-00314 (C.D. Cal., order entered November 30, 2012). The court dismissed all claims based on a study that allegedly found lower levels of magnesium and sodium than allowed by Food and Drug Administration (FDA) regulations when a product is claimed to be a “good source” of such nutrients. According to the court, the plaintiffs failed to show that the study was conducted under FDA’s § 101.9(g) methodology and would thus impose more stringent requirements on the defendant than federal law. The court allowed the plaintiffs to pursue claims that the product is falsely marketed as a “good source of…
A federal court in California has determined that Diamond Foods’ investors adequately pleaded knowledge, or scienter, on the part of the company and individual senior officers to allow putative class claims against them for false and misleading statements in violation of federal securities laws to proceed. In re Diamond Foods, Inc., Securities Litig., No. 11-05386 (N.D. Cal., order entered November 30, 2012). The court also dismissed claims filed against the company’s auditor, finding insufficient allegations to raise a strong inference of scienter, but allowed the plaintiffs to amend their complaint to cure its deficiencies. The litigation arises from events occurring in 2010-2012, when Diamond was attempting to purchase the Pringles brand of snack chips from P&G. The company allegedly manipulated prices paid to walnut growers during those years and failed to properly account for the payments, resulting in what appeared to be an inflated value for its shares. When the irregularities…
