In the last few months, a handful of class actions have been filed challenging label claims regarding the treatment of the animals providing the food item in question. This appears to be a new food litigation trend, as plaintiffs’ attorneys invoke the purchasing public’s apparent concern for “clean”, “pure”, “healthy”, and “organic” food items.
Continue Reading Spate of Recent False Advertising Class Actions Take On Animal Treatment Label Claims

The Ninth Circuit’s recent decision in Sonner v. Schwabe N. Am., Inc. et al.,[1] resolves a split among district courts evaluating the standard that applies to false labeling claims brought under California’s Unfair Competition Law and Consumers Legal Remedies Act on summary judgment. The Ninth Circuit confirmed that plaintiffs can survive summary judgment by supplying a conflicting expert report, invalidating a line of cases that required plaintiff’s expert to also entirely undermine defendant’s expert.
Continue Reading Ninth Circuit Confirms Plaintiffs Are Not Required to Undermine Defendant’s Evidence to Withstand Summary Judgment in False Labeling Class Actions

Following the denial of a petition for rehearing en banc, over a spirited dissent, a Ninth Circuit panel issued its amended order on November 27, 2018 in Sali v. Corona Regional Medical Center, holding that evidence need not be admissible to be considered at the class certification stage. The panel held: “Inadmissibility alone is not a proper basis to reject evidence in support of class certification.” 
Continue Reading Ninth Circuit Panel Affirms Inadmissibility Alone is Not a Proper Basis to Reject Evidence in Support of Class Certification

In Durnford v. MusclePharm Corp., plaintiff Durnford asserted that the company’s “Arnold Schwarzenegger Series Iron Mass” supplements are falsely labeled because the protein content of the supplements is misstated. Durnford brought claims under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”) Consumer Legal Remedies Act (“CLRA”) and for breach of express warranty. The district court dismissed these claims, finding them preempted by federal law. However, the Ninth Circuit affirmed in part and reversed in part the district court’s dismissal of Durnford’s claims effectively reviving them, albeit on a narrower basis. Durnford v. MusclePharm Corp., No. 16-15374, __ F.3d __ (9th Cir. 2018), 2018 U.S. App. LEXIS 28771.
Continue Reading “I’ll Be Back;” Ninth Circuit Gives Arnold Schwarzenegger-Branded Supplement Purchasers Another Shot to Pursue UCL, FAL, CLRA and Warranty Claims

In a recent decision, the California Court of Appeal reaffirmed and clarified how the “reasonable consumer” standard must be applied at the pleadings stage to mislabeling claims. In simplest terms, if the packaging makes a definitive statement on the front that suggests one thing, but fine print on the back contradicts that statement, the defendant cannot rely on the fine print to escape a mislabeling claim. In reaching that conclusion, however, the Court of Appeal appears to have laid a roadmap for how to defeat class certification.
Continue Reading One A Day Will Not Keep Plaintiffs Away

Over the past two years, class actions have been filed against nearly every major retailer challenging various sales and pricing practices. Many of these have focused on outlet stores (sometimes called “factory” stores). These cases have generally claimed that selling product made only for the outlet or factory store, where that product was never sold in mainline channels (e.g., in regular stores, boutiques, department stores or online), is deceptive, particularly product if the store suggests that the made-for-outlet was previously sold in mainline channels for a higher price. In many states, the trend has been to dismiss the case on the pleadings, holding that plaintiffs, who purchased a product for the price advertised, were not injured, especially if they cannot allege that the product was worth less than what they paid. In California, with the expansive reach of the Unfair Competition Law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA), courts have generally permitted these claims to proceed beyond the pleadings.
Continue Reading Outlet And Factory Class Actions Take A Hit: California Court of Appeal Confirms Companies Can Sell Made-For-Outlet Product At Outlet Or Factory Stores

July 21, 2015 Update: On July 20, 2015, the Ninth Circuit Court of Appeals denied Microsoft’s petition for rehearing en banc and amended its March 18, 2015, opinion to add a footnote supporting the conclusion that it had jurisdiction because a stipulated dismissal is an appealable judgment.  The amended opinion can be accessed here.

We recently reported on a Ninth Circuit Court of Appeals opinion reversing a district court’s decision to strike class action allegations in a putative class action against Microsoft.  Baker v. Microsoft Corp., No. 12-35946, 2015 U.S. App. LEXIS 4317 (9th Cir. Mar. 18, 2015).  In Baker v. Microsoft Corporation, the Ninth Circuit panel of judges held that proof that individual class members were damaged by an alleged defect (here, a defect in Xbox 360 video game consoles resulting in scratched game discs) was not necessary for a class action to be certified.  Id. at *20.  You can read the full article here.
Continue Reading Baker v. Microsoft Corporation Revisited: Video Gaming Company Seeks to Stop Class Action Plaintiffs From Shortcutting the Appeals Process

July 21, 2015 Update: On July 20, 2015, the Ninth Circuit Court of Appeals amended its March 18, 2015, opinion to add a footnote supporting the conclusion that it had jurisdiction because a stipulated dismissal is an appealable judgment.  The amended opinion can be accessed here.

The Ninth Circuit Court of Appeals recently reversed a district court’s decision to strike the class action allegations in Baker v. Microsoft Corp., No. 12-35946, 2015 U.S. App. LEXIS 4317 (9th Cir. Mar. 18, 2015).  In Baker, the putative class alleged that a design defect in Xbox 360 video game consoles caused the consoles to malfunction and scratch game discs – although only 0.4% of Xbox console owners reported such problems.  Id. at *1-4.  The majority opinion held that the district court should have followed an earlier Ninth Circuit decision rejecting the notion that individual manifestations of a defect preclude resolution of claims on a class-wide basis.  Id., citing Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168 (9th Cir. 2010).  “[P]roof that [a alleged design defect] caused individual damages is not necessary . . . Rather, plaintiffs’ breach of express warranty claim presents a common factual question – is there a defect? – and a common mixed question of law and fact – does that defect breach the express warranty?”  Baker, 2015 U.S. App. LEXIS 4317 at *16-17.  Notably, the Ninth Circuit’s decision only determined that the district court misapplied the law in striking the class action allegations from the complaint.  Id. at *20.  The decision expressly disclaimed any determination of whether the issues would be best decided on a class-basis or whether class certification should be granted.  Id. 
Continue Reading Baker v. Microsoft Corporation: Ninth Circuit Court of Appeals Decision in Class Action Against Video Gaming Company May Make It More Difficult to Defeat Class Actions

In Aguirre v. Amscan Holdings, Inc., Case No. 073059, 2015 Cal. App. LEXIS 214 (Cal. Ct. App. Feb. 11, 2015), a California Court of Appeal reversed the denial of certification of a putative class alleging violation of Civil Code Section 1747.08 of California’s Song Beverly Credit Card Act.  The trial court had denied certification because the plaintiff did not show the ability to identify, locate, and notify class members.  The court of appeal rejected that standard, and found that the class was, in fact, ascertainable because (1) the class definition contained a set of “common characteristics” that would allow class members to self-identify themselves, and (2) because the plaintiff had suggested an objective method for identifying class members.  This decision clarifies the standard for ascertainability in California state court class actions.
Continue Reading California Court of Appeal Lowers the Bar on Ascertainability Requirement in Consumer Class Actions