Third Crunch Berries® Class Action Dismissed

A federal court in California has dismissed a putative class action alleging that consumers were misled into believing that Cap’n Crunch’s Crunch Berries® cereal contained real berries or fruit. Werberl v. PepsiCo, Inc., No. 09-04456 (N.D. Cal., decided July 1, 2010). Noting that one law firm had filed unsuccessful suits in two other California federal district courts on behalf of two other class representatives, the court observed that the claims before it were “virtually identical.” Additional information about the dismissal of one of the other cases appears in issue 306 of this Update.

According to the court, “no reasonable consumer would believe that Cap’n Crunch derives any nutritional value from berries” and any reliance on the use of the term “crunch berries” to imply “that real berries or fruit are contained in the cereal would neither be reasonable nor justifiable.” The court also found that leave to amend was unwarranted and denied plaintiff’s request for leave to amend “on the grounds of bad faith.” In this regard, the court stated, “This is Plaintiff’s counsel’s third attempt to pursue a class action against PepsiCo based on the same inherently flawed theory of liability. Instead of pursuing further relief in the Central and Eastern District actions, Plaintiff’s counsel simply abandoned those cases, undoubtedly aspiring to obtain a favorable result in another District. The Court will not countenance such forum shopping.”