A California federal court has refused to certify a class of consumers alleging that R.C. Bigelow Inc. misled them by over-representing the amount of antioxidants contained in its green tea. Khasin v. R.C. Bigelow, Inc., No. 12-2204 (N.D. Cal., order entered March 29, 2016). The court previously refused to allow the plaintiff to seek financial records to calculate damages. Additional details appear in Issue 575 of this Update.

In its certification analysis, the court found fault with the plaintiff’s three suggested damages models: (i) a restitution calculation, (ii) statutory damages or (iii) a nominal alternative. The plaintiff argued that the restitution calculation model should amount to payments of the full purchase price of the product because the tea is allegedly “legally worthless” for failing to meet U.S. Food and Drug Administration requirements on antioxidant nutrient claims. The court refused to find that consumers received no benefit from drinking the tea, “in the form of enjoyment, nutrition, caffeine intake, or hydration.” The court further noted that it had previously “expressly stated that the proper measure of restitution in a product mislabeling case is ‘not the full purchase price of all profits.’” In addition, the court rejected the proposed statutory or nominal damages, finding that the plaintiff had not proved the actual damages or breach of duty required to earn such damages.

The court also rejected the plaintiff’s request for an injunction preventing Bigelow from mislabeling its products, noting that it was unconvinced by a declaration that the plaintiff would consider buying Bigelow tea again if its labels complied with California law. Further, the plaintiff could not demonstrate that he could be misled in the future by the same claims because he now knew of Bigelow’s alleged deception. Accordingly, the court denied the plaintiff’s motion for class certification.


Issue 599

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.