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Sascha Henry

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Sascha Henry is a partner in the firm’s Los Angeles office. She leads the firm’s Business Trial Practice Group and Food and Beverage Industry Team.

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This article was originally posted in Food Manufacturing on January 6, 2021.

Despite the COVID-19 pandemic, the number of putative class actions targeting the food and beverage industry increased in 2020 and show no signs of slowing down in 2021. The number of class actions filed against beverage companies in New York increased while the number of cases filed in California decreased. While the Northern District of California, which had become known as the “food court” remained a popular jurisdiction for these suits, filings in New York outpaced those in California. The factual basis of the claims also continues to evolve. Early cases challenged the description of food and beverages as “all natural” when the products contained additives allegedly rendering the “all natural” representation false and misleading.
Continue Reading Food & Beverage Class Actions: What You Need to Know for 2021

In Berger v. Home Depot USA, Inc., Case No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the Ninth Circuit Court of Appeals affirmed the denial of class certification based largely on evidence that the defendant’s point-of-sale signs and oral statements supplied allegedly withheld information.  A proposed class lacks the requisite cohesion where additional information at the point-of-sale place each member’s exposure to the alleged misstatement in doubt.
Continue Reading Ninth Circuit Concludes That Common Issues Do Not Predominate Where Retailer’s In-Store Signs and Oral Sales Statements Place Each Putative Class Member’s Exposure to Misleading Statements in Doubt

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

The Second District of California Court of Appeal recently refused to extend the continuing violations doctrine to causes of action brought under the Unfair Competition Law (“UCL”). The Court of Appeal held that the trial court properly sustained the defendant’s demurrer on the ground that the UCL cause of action was barred by the statute of limitations.
Continue Reading Time Out: California Court of Appeal Enforces Statute of Limitations in Class Action Brought Under the UCL

In Clark v. State Farm Mutual Automobile Insurance Co., Nos. 07-1454, 07-1466, the Tenth Circuit affirmed a district court’s order denying class certification because it lost jurisdiction when the representative plaintiff’s claims became moot. Clark shows how a defendant’s request for a merits determination before class certification was rewarded when the resulting decision mooted the named plaintiff’s claim and defeated class certification.
Continue Reading Tenth Circuit Reaffirms That a Case Terminates When the Class Representative’s Claims Become Moot Before Class Certification

In In re Vioxx Class Cases, (2009) __ Cal. App. 4th __, the trial court denied class certification after the defendant, Merck & Co., Inc. effectively showed that the plaintiff’s theory of the case was grossly simplified. By introducing copious evidence showing the numerous factors that may relate to each class member’s reliance and damages, Merck avoided class certification even in the face of its allegedly pervasive and misleading advertising campaign. The plaintiffs appealed, arguing that the California Supreme Court’s decision in In re Tobacco II Cases, (2009) 46 Cal. 4th 298, undermined the trial court’s rationale. The Court of Appeal, Second District, affirmed the trial court’s denial of class certification.
Continue Reading California Court of Appeal Affirms Denial of Class Certification Based On Presence of Individual Issues While Rejecting Plaintiff’s Argument Based on Tobacco II