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The long saga of In re Tobacco Cases II recently produced yet another appellate opinion addressing California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and the remedies they provide.  This time, in In re Tobacco Cases II, 240 Cal. App. 4th 779 (Sept. 28, 2015) (“Tobacco II”), the appellate court considered what “restitution” under the UCL actually means, and how to appropriately calculate it.  In doing so, the court provided much needed guidance on these issues and (assuming the decision is affirmed) largely eliminated the “full refund” theory of restitutionary recovery in all but the most extreme UCL and FAL actions.
Continue Reading Plaintiffs’ Full Refund Theory of Restitution Under California’s Unfair Competition Law Goes Up in Smoke in Latest Tobacco II Opinion

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth Circuit either rejected or minimized the use of preemption and primary jurisdiction as defenses to allegations of false labeling of food and cosmetics. 
Continue Reading Recent Ninth Circuit Decisions in False Advertising Consumer Class Action Cases May Prevent Preemption and Relegate the Primary Jurisdiction Doctrine to Second-Class Status

In the recent case of Gallagher v. Bayer AG, Case No. 14-cv-04601-WHO (N.D. Cal. March 10, 2015), the plaintiffs asserted that the defendants Bayer AG and related entities (collectively, “Bayer”) engaged in false advertising under California, New York, and Florida law.  The products in question were 20 varieties of One-A-Day vitamins that each included advertising on their labels stating that they supported “heart health,” “immunity” and “physical energy.”  On behalf of a putative class of purchasers, the plaintiffs alleged that the statements were false, misleading, and constituted illegal advertising under state law based on the regulations of the Food & Drug Administration (the “FDA”).  Bayer moved to dismiss the complaint on multiple grounds, including the argument that the claims satisfied federal law, thereby preempting the plaintiffs’ state law claims.
Continue Reading Court Finds that Class Action Plaintiffs’ False Advertising Claims are Stripped Bayer Based on Federal Preemption

In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink that allegedly caused harmful side-effects.  The plaintiffs brought claims under Florida’s consumer protection statute, known as the Deceptive and Unfair Trade Practices Act, as well as federal and common law breach of warranty claims.  The Plaintiffs sought to certify a class composed of all purchasers of the “Redline Extreme Energy Drink” (the “Product”) since 2008, a drink that retailed for approximately $3.00 per bottle.
Continue Reading Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

In Lanovaz v. Twinings North America, Inc., 2014 WL 1652338, Case No. C-12-02646-RMW (N.D. Cal. April 24, 2014), the court granted-in-part and denied-in-part a motion for class certification in a false advertising case about tea labels.  The plaintiff alleged that the defendant’s tea was “misbranded” because it advertised the tea as a “Natural Source of Antioxidants.”  The plaintiff claimed that this advertising was misleading and violated California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act.  The plaintiff contended that, although the tea indisputably contained flavonoids (a type of antioxidant), the Food & Drug Administration does not allow advertising about flavonoids because it has not established a recommended daily dose.  Plaintiff sought class certification under Rule 23(b)(2) (for an injunctive class) and Rule 23(b)(3) (for a damages class) of the Federal Rules of Civil Procedure.
Continue Reading Tea Manufacturer Defeats Damages – Seeking Class Action Plaintiff in an Opinion Steeped in Comcast

On April 15, 2014, in the case Caldera v. The J.M. Smucker Co., CV 12-4936-GHK, J.M. (C.D. Cal.), Smucker Company (“Defendant”) defeated the plaintiff’s motion for class certification in a case challenging the labels on Defendant’s Crisco shortening and Uncrustables food products.  The lawsuit claimed that Defendant had mislabeled its Crisco shortening with false claims about its healthfulness (such as “50% Less Saturated Fat than Butter”), and that it misleadingly labeled its Uncrustables products as “wholesome” when they contain transfat and high-fructose corn syrup.  As with many California food label class actions, the plaintiff brought suit under California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), the Consumer Legal Remedies Act (“CLRA”), and breach of express and implied warranties.  The plaintiff sought restitution on behalf of the purchasers of the Crisco and Uncrustable products.
Continue Reading J.M. Smucker Company Gets Out of a Jam in Food Labelling Case

On March 25, 2014, the court in In re: POM Wonderful LLC Marketing and Sales Practices Litigation, Case No. ML 10-02199 DDP (C.D. Cal.), granted a motion by defendant POM Wonderful LLC (“POM”) to decertify a previously certified class of consumers who purchased certain POM juice products.  The court granted POM’s motion because plaintiff failed to present a damages model that satisfied Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), and because the class was not ascertainable.
Continue Reading A (POM) Wonderful Result For Consumer Class Action Defendants

In Murray v. Sears, Roebuck and Co., No. C 09-5744, 2014 WL 563264 (N.D. Cal. Feb. 12, 2014), the U.S. District Court for the Northern District of California denied a motion for class certification that was practically identical to a motion brought in the U.S. District Court for the Northern District of Illinois that was initially granted, but subsequently reversed by the Seventh Circuit.  In doing so, the court considered the relative weight and “comity” of identical class actions filed in other states, finding that they were entitled to “respect” but not “preclusive effect.”  Nonetheless, the court denied certification on the same grounds, finding a complete lack of commonality among the proposed class’ claims.
Continue Reading Comity and Commonality: A Tale of Two Identical Class Actions Brought By Forum-Shopping Plaintiffs’ Counsel

It is no secret that some advertisers believe that using the term “natural” is an effective way to advertise a product. Some consumers seem to prefer these “natural” products for a variety of reasons, even while no one (particularly the Food and Drug Administration) has set forth an accepted definition of what “natural” actually means. Not surprisingly, the lack of defined standards for “natural” offers significant litigation opportunities for plaintiffs to file suits (usually class actions) claiming they were misled by the “natural” advertising into purchasing products that are not, in fact, “natural.” The year 2013 saw many of these cases, and defendants tested the lawsuits through motion practice. Defendants often argued: (1) that the FDA has “primary jurisdiction” over the advertising, and (2) no reasonable consumer would be misled by the term “natural.” The mixed success of these arguments suggests that courts are changing their attitudes toward “natural” allegations. In fact, by the end of 2013, the very lack of a “natural” definition that opened the door to this kind of litigation was turned into a defense that successfully dismissed several cases.
Continue Reading ‘Natural’ Suits Persist Absent FDA Definition

How Ben & Jerry’s Defeated an “All Natural” Class Certification Motion

On January 7, 2014, the Northern District of California refused to certify a class of Ben & Jerry’s purchasers who allegedly had purchased ice cream that was falsely advertised as “all natural.”  Astiana v. Ben & Jerry’s Homemade, Inc., No. C 10-4387 PJH, 2014 U.S. Dist. LEXIS 1640 (N.D. Cal. Jan. 7, 2014).  This opinion shows the continuing viability of arguments based on ascertainability and the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) to defeat consumer class actions.  Thus, for many defendants, this opinion will get 2014 off to a delicious start.Continue Reading I Scream, You Scream, We All Scream For…Ascertainability?

In Phillips v. Sprint PCS, __ Cal. App. 4th __, 2012 WL 4378199 (1st Dist., Sept. 26, 2012), the California Court of Appeal affirmed a trial court’s decision to reconsider its past order refusing to enforce an arbitration clause including a class action waiver. In doing so, the Court recognized the “major change in California law” wrought by the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011). Under Concepcion, class action waivers contained in arbitration provisions subject to the Federal Arbitration Act (the “FAA”) are enforceable. The FAA preempts contrary state law.
Continue Reading Enforcing Class Action Waivers: A “Major Change In California Law”