A federal court in California has denied the defendant’s motion to dismiss the plaintiffs’ first amended consolidated complaint in a case involving claims that “Ferrero misleadingly promotes Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of fat and sugar.” In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided August 29, 2011). According to the court, the plaintiffs sufficiently pleaded exposure to a long-term advertising campaign and reliance on the campaign in making their purchasing decisions to confer standing on them to bring their claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act.
Category Archives 9th Circuit
A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
A Jewish California resident who claims to be a vegetarian has filed a putative class action against Chipotle Mexican Grill, Inc., alleging that the company failed to adequately warn consumers that its pinto beans are prepared with or contain bacon or pork. Shenkman v. Chipotle Mex. Grill, Inc., No. BC467980 (Cal. Super. Ct., Los Angeles Cty., filed August 19, 2011). According to the complaint, the company does not disclose in its in-store menus that pinto beans contain pork, and, when specifically asked, employees informed the plaintiff that the pinto beans did not contain bacon or pork. Relying on these representations, the plaintiff purportedly purchased and ate the beans to his detriment, financial and otherwise. The plaintiff seeks to certify a class of California residents who “abstain from consuming bacon or pork” for “ethical, religious, moral, cultural philosophical, or health-related reasons” and purchased the pinto beans from any Chipotle restaurant in California…
Plaintiffs in a class action certified by a California federal court in April 2011, have filed an opposition to the defendants’ motion to decertify the class in light of a case the U.S. Supreme Court decided in June. Johnson v. General Mills, Inc., No. 10-61 (C.D. Cal., pleading filed August 22, 2011). The plaintiffs allege that class members were misled by the defendants’ representations that YoPlus® products had digestive health benefits. Details about the court’s certification ruling appear in Issue 385 of this Update. According to the plaintiffs, the defendants did not seek review of the court’s certification ruling and, in fact, agreed to the plaintiffs’ class notification program, which the court approved. The defendants purportedly assert that a U.S. Supreme Court ruling rendered 10 days later compels the court to decertify the class. Claiming that the defendants’ argument is untenable as an unwarranted expansion of the U.S. Supreme Court’s holding,…
A lawsuit has been filed in an Oregon federal court on behalf of a 10-month-old girl who allegedly became ill and was hospitalized after eating a meatball made with ground turkey contaminated with Salmonella. Lee v. Cargill Meat Solutions Corp., No. 11-993 (D. Ore., filed August 16, 2011). Represented by an attorney with food plaintiffs’ firm Marler Clark, the plaintiffs allege that the baby spent seven days in the hospital after her parents were advised that “Salmonella Heidelberg bacteria she had ingested from the defendants’ ground turkey product had gotten into her bloodstream, and she needed urgent care.” Seeking damages in excess of $75,000, the plaintiffs allege strict liability, breach of warranty, negligence, and negligence per se. They claim damages for “general pain and suffering; damages for loss of enjoyment of life, both past and future; medical and medically-related expenses, both past and future; travel and travel-related expenses, past and future;…
In an unpublished opinion, a divided Ninth Circuit Court of Appeals panel has determined that a district court erred in awarding Latino farm workers less than statutory damages for growers’ violations of Washington’s Farm Labor Contractors Act (FLCA). Perez-Farias v. Global Horizons, Inc., No. 10-35397 (9th Cir., decided August 17, 2011). The court remanded the case with directions to enter a damages award of nearly $2 million. The class claims were reportedly filed on behalf of more than 600 workers who accused two state growers and a farm labor contractor of violating federal labor laws. The plaintiffs claimed that they were illegally and intentionally displaced in 2004 by temporary agricultural workers from Thailand. The federal guest worker program allows labor contractors to bring foreign workers into the United States only if it can prove that workers cannot be found locally. While the lower court agreed that the defendants had violated…
Hundreds of individually named Philippine banana plantation workers alleging physical and mental injury from exposure to pesticides have filed suit against a number of agricultural and chemical companies in a California state court seeking compensatory and punitive damages. Macasa v. Dole Food Co., No. BC467134 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). The plaintiffs allege that 1,2-Dibromo-3-chloropropane (DBCP), sold under the brand names Nemagon® and Fumazone®, is a “highly toxic and poisonous pesticide” that purportedly causes “sterility, testicular atrophy, miscarriages, congenital reproductive outcome, liver damage, asthma and various forms of cancer in humans when absorbed by the skin or inhaled.” They claim that DBCP continued to be used in the Philippines despite being banned in the United States by the Environmental Protection Agency in 1979. The complaint alleges that the U.S. Department of Agriculture advised the chemical company defendants as early as 1961 “to place precautionary warning…
A California resident has filed a pair of putative class actions in state court against companies that market their coconut water with purportedly exaggerated nutrient claims and overstated hydrating benefits or as a miracle cure for a host of medical problems. Shenkman v. All Mkt., Inc., No. BC 467166; Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., filed August 8, 2011). Seeking to certify statewide consumer classes, the plaintiff alleges intentional and negligent misrepresentation, fraud, and violations of California’s False Advertising Act and Unfair Business Practices Act. The plaintiff requests compensatory and punitive damages, disgorgement, restitution, payment to a cy pres fund, a corrective advertising campaign, and an apology. Among other matters, the plaintiff claims that One World Enterprises sells “O.N.E. Coconut Water” throughout the United States in more than 18,000 retail outlets and promotes it “as a miracle product, curing various medical problems and…
A California consumer who alleged that he gained weight while using a diet drink has reportedly failed to demonstrate that he has standing to pursue putative class consumer-fraud claims against the manufacturer because he did not keep track of his caloric intake when he used the product. Fletcher v. Celsius Holdings, Inc., No. BC439055 (Cal. Super. Ct., decided August 10, 2011). Granting the manufacturer’s motion for summary judgment, the court apparently determined that, without the caloric intake data, it would be impossible for the plaintiff to prove that the product did not, as advertised, burn up to 100 calories when consumed. According to a news source, the plaintiff alleged that he used the product while training to become a firefighter from October 2009 to January 2010, and gained 10 pounds. He also alleged that he maintained a healthy diet and a rigorous exercise regimen during this period. The court suggested that…
A California woman has filed a putative nationwide class action against the company that makes Muscle Milk® beverages and protein bars, alleging that promotions touting the products as “high performance” and “nutritious snacks” are false and misleading because they contain as much fat and calories as Krispy Kreme® doughnuts. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., filed July 18, 2011). The company apparently markets the products as “a ‘meal replacement’ to provide ‘healthy sustained energy’” and allegedly “suggests that these fat-filled Products will help people lose weight, telling consumers, among other things, that the Products will help people ‘Go from cover it up to take it off.’” According to the complaint, the named plaintiff purchased the products for six months and consumed them “before workouts, after workouts, in between meals as a snack, and sometimes as a meal replacement.” She contends that she did so in reliance on the…
