Probiotic Yogurt Plaintiff Seek Class Certification in Florida Court

A woman who alleges that General Mills, Inc. deceives the public by claiming its Yo-Plus® probiotic yogurt is beneficial for human digestion has filed a motion for class certification in a federal court in Florida. Fitzpatrick v. General Mills, Inc., No. 09-60412 (S.D. Fla., filed August 4, 2009). More information about the litigation appears in issue 296 of this Update. The plaintiff contends that the company cannot substantiate its claims that the yogurt’s trademarked “unique blend of live probiotic cultures and natural fiber,” “helps keep your digestive system right on track.” She seeks damages in excess of $5 million, alleging that consumers paid premium prices for a product that has upset the yogurt market and gained a significant market share.

Relying on a favorable class certification ruling in similar litigation against Dannon Co., Inc. in California, the plaintiff contends that the claims readily meet Rule 23 class certification requirements. She cites defendants’ conduct and whether their claims are false or misleading as common factual issues and whether General Mills’ promise creates a warranty as a common legal issue. Among the predominant common issues discussed in the motion is “whether it is true that Yo-Plus® is proven to provide the stated health benefits, as it advertises. This claim can be evaluated by scientific and medical studies—just as General Mills asserts has been done.”