A federal court in California has granted a motion for final settlement approval in a nationwide class action alleging that Kellogg Co. falsely advertised its Frosted Mini-Wheats cereal products 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 September 10, 2013). Details about prior rulings in the case appear in Issue 483 of this Update.

The court had previously given reluctant approval to the preliminary settlement, concerned that the class relief appeared to have diminished after remand from the Ninth Circuit, with attorney’s fees appearing to remain constant—the original settlement had a cash value of about $10.5 million with $2 million for attorney’s fees and claims administration; the revised settlement has a cash value of $4 million with $1.5-2 million reserved for attorney’s fees and claims administration. According to the court, the plaintiffs demonstrated that “the seemingly unchanged total amount reflects the increased cost of expanded claims notice administration rather than static fees. In fact, the requested attorneys’ fees are 50% less than provided under the initial settlement.” Thus the court found that no aspect of the settlement suggested collusion.

The court further rejected the concerns of objectors who lacked standing, raised baseless objections or were irrelevant. One objector sought attorney’s fees for the objectors’ prior success on appeal, but the court noted that neither this objector nor “his counsel, Theodore Frank of the Center for Class Action Fairness, participated in the appeal.” The class members who had participated in the appeal, said the court, “are no longer participating in the case.”


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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.