The plaintiffs’ bar has continued to challenge sourcing and sustainability claims made by food manufacturers. In Ehlers v. Ben & Jerry’s Homemade Inc., 2020 U.S. Dist. LEXIS 80773 (D. Vt. May 7, 2020), however, the court dismissed such a challenge where the allegedly false statement was taken out of context and the plaintiff ignored the totality of the company’s representations. “A plaintiff who alleges that he was deceived by an advertisement may not misquote or misleadingly excerpt the language of the advertisement in his pleadings and expect his action to survive a motion to dismiss.” This case should help companies fend off similar claims in the future.
Continue Reading “Happy Cows” False Labeling Theory is Just “Half Baked”: Court Dismisses False Advertising Claims Against Ben & Jerry’s
CBD Industry Beware: The False Labeling Class Action Has Arrived
Last week, in what may be the first of its kind, a putative class of Massachusetts consumers filed a false labeling class action complaint against Global Widget LLC, d/b/a Hemp Bombs (“Hemp Bombs”) (Ahumada v. Global Widget LLC, D. Mass. Case No. 1:19-cv-12005), challenging the labeling of numerous Hemp Bombs products, including gummies, lollipops, capsules, syrup, vape and pet products.
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Spate of Recent False Advertising Class Actions Take On Animal Treatment Label Claims
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.
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Lack of Standing Dooms Organizational Plaintiffs’ False Advertising Claims; Such a Challenge Can Be Brought at Any Time
Challenges based on lack of standing can be brought at any time and, in Friends of the Earth v. Sanderson Farms, Inc., 2019 U.S. Dist. LEXIS 127964 (N.D. Cal. July 31, 2019), the court dismissed a putative class action for lack of standing pursuant to Rule 12(h)(3) after Plaintiffs supplemented discovery responses and depositions were taken. Although it had earlier denied motions to dismiss brought pursuant to Rule 12(b)(6), the district court concluded that Plaintiffs failed to produce evidence in discovery to establish their injury in fact and, accordingly, lacked standing under Article III.
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Ninth Circuit Confirms Plaintiffs Are Not Required to Undermine Defendant’s Evidence to Withstand Summary Judgment in False Labeling Class Actions
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.
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“I’ll Be Back;” Ninth Circuit Gives Arnold Schwarzenegger-Branded Supplement Purchasers Another Shot to Pursue UCL, FAL, CLRA and Warranty Claims
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
Are credits coupons? The Ninth Circuit Says Yes in Calculating Total Value of Class Action Settlements
Companies may be inclined to offer “coupons” or similar benefits to settle consumer class actions. While offering coupons is permissible, in In re Easysaver Rewards Litigation, No. 16-56307, 2018 U.S. App. LEXIS 28000 (9th Cir. Oct. 3, 2018), the Ninth Circuit has reaffirmed that the full face value of coupons cannot be included when calculating the total value of the settlement, which may reduce the attorneys’ fees awarded to Plaintiffs’ class counsel.
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Ninth Circuit Confirms that Class Action Plaintiffs Must Plausibly Establish Future Intent To Re-Purchase To Maintain Claims for Injunctive Relief
The ruling in Lanovaz v. Twinings N. Am., Inc., 2018 U.S. App. LEXIS 15248 (9th Cir. June 6, 2018), settles what was arguably an open issue among district courts within the Ninth Circuit. A plaintiff must have an intent to re-purchase a product alleged to be falsely advertised in order to maintain an action for injunctive relief.
Twinings’ labels on its green, black, and white tea products stated that the teas were a “Natural Source of Antioxidants”. Plaintiff Lanovaz asserted that the labels amounted to “nutrient content claims,” which are regulated by the FDA (the term “antioxidant” is also subject to regulation). The plaintiff alleged that Twinings’ labels did not satisfy FDA regulations, and therefore were unlawful, misleading consumers.
Continue Reading Ninth Circuit Confirms that Class Action Plaintiffs Must Plausibly Establish Future Intent To Re-Purchase To Maintain Claims for Injunctive Relief
Seventh Circuit Holds Footlong Settlement Falls Short
The Seventh Circuit’s rejection of a class action settlement in a case alleging consumer fraud against Subway for allegedly “shorting” customers of its Footlong sandwiches illustrates the pitfalls of settlements that provide only injunctive relief and the perils to plaintiffs who pursue claims for “worthless benefits.” In Re Subway Footlong Sandwich Mktg. & Sales Practices Litig., 2017 U.S. App. LEXIS 16260, at *14 (7th Cir. Aug. 25, 2017). The Seventh Circuit recognized: “[a] class action that ‘seeks only worthless benefits for the class’ and ‘yields [only] fees for class counsel’ is ‘no better than a racket’ and ‘should be dismissed out of hand.’ That’s an apt description of this case.” Id. (citation omitted). The court further warned that, “[n]o class action settlement that yields zero benefits for the class should be approved[.]” Id. at *11.
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