Court Dismisses Equitable Relief Claims in Octopus False Ad Case

Fonseca v. Goya Foods, Inc., No. 5:16-cv-02559 (N.D. Cal.): The Court entered an order granting in part Defendant’s motion to dismiss this putative class action for breach of express and implied warranties, breach of the implied warranty of fitness, unjust enrichment, and violations of California’s CLRA, UCL, FAL, negligent misrepresentation, and fraud, which alleged that Defendants falsely advertised and marketed its products as containing octopus, when they in fact, contained squid. The Court held that Plaintiff—who sought only equitable relief under the CLRA, UCL, FAL, and doctrine of unjust enrichment—had an adequate remedy at law and dismissed those claims with leave to amend. With respect to Plaintiff’s fraud and negligent misrepresentation claims, the Court held that Plaintiff failed to allege facts necessary to satisfy the heightened pleading standard. The Court left intact the warranty claims, which Defendant did not move to dismiss.  Order.

New Filings for September 12, 2016

Environmental Research Center Inc. v. BPI Sports LLC, No. RG-16-830792 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its food products contain lead.

Benson v. Wheat Montana Farms, Inc., No. RIC-1611718 (Cal. Super. Ct. – Riverside Cnty.): False advertising class action. Plaintiff alleges that Defendant advertises its pancake mix as healthy, but lists “evaporated cane juice” on its ingredient list

O’Neal v. Natural & Tasty, LLC, No. RIC-1611717 (Cal. Super. Ct. – Riverside Cnty.): False advertising class action. Plaintiff alleges that Defendant advertises its dessert as healthy, but lists “evaporated cane juice” on its ingredient list.

As You Sow v. Mishima Foods USA, Inc., No. RG-16-830857 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its snack products contain cadmium and lead.

Kazemi v. Dave’s Gourmet, Inc., No. 3:16-cv-5269 (N.D. Cal.): Evaporated cane juice class action for violations of California’s FAL and UCL, Florida’s Deceptive and Unfair Trade Practices Act, and negligent misrepresentation. Plaintiff alleges that Defendant advertises its pasta sauces as containing “evaporated cane juice” on their ingredient lists, instead of sugar.  Complaint.

Consumer Advocacy Group, Inc. v. Tawa Supermarket, Inc., et al., No. BC634011 (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendants failed to warn consumers its seaweed snack products contain cadmium.

Court Grants in Part and Denies in Part Motion to Dismiss In Goji Berry Origin Case

Torrent v. Ollivier, et al., No. 2:15-cv-02511 (C.D. Cal.): The Court entered an order granting in part Defendant’s motion to dismiss this putative class action for violations of California’s CLRA and UCL, which alleged that Defendants falsely advertised that its goji berries were harvested from the Himalayas, when they, in fact, came from the Ningxia province of China. The Court dismissed the claims insofar as they relate to consumers’ knowledge of the Ningxia province of China, but let stand the allegations that Defendants intended to create the impression in the minds of consumers that the berries were harvested from the Himalayas, based on allegations that Defendants’ packaging includes the statements, “The most famous berry in the Himalayas,” and “Goji berries originate in the high plateaus of the Himalayan mountains.”  Order.

New Filings for September 12, 2016

Tamar Kaloustian v. Navitas LLC., No. CGC-16-553700 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging defendant Navitas LLC does not warn about lead in Navitas Naturals Organic Mulberry Berries. Plaintiff is represented by the KJT Law Group.  Complaint.

Guerra v. Hero Nutritionals, Inc., No. 2:16-cv-04563 (E.D.N.Y.): Putative class action asserting a violation of the New York General Business Law, the consumer protection statutes of all 50 states, and the Magnuson-Moss Warranty Act. Plaintiff alleges Defendant deceptively labels and markets its gummy vitamins as all natural, when they contain synthetic chemical ingredients, Tocopheryl Acetate, Calcium Citrate, Gelatin, Citric Acid, Lactic Acid, Sodium Citrate, Tricalcium Phosphate, and Trisodium Citrate.  Complaint.

Gates, et al. v. NBTY, Inc., et al., No. 3:16-cv-2090 (S.D. Cal.): Putative class action alleging violations of California’s Consumer Legal Remedies Act, New York Deceptive Trade Practices Act, unfair competition under Section 17200, unfair competition under California Business & Professions Code section 17500, and negligent misrepresentation. Plaintiff alleges that Defendants package their protein products in large, opaque containers that contain more than 37 percent empty space.

Fraser v. Kind LLC, et al., No. 4:16-cv-4766 (N.D. Cal.):  False advertising class action for violation of California Unfair Competition Law and CLRA. Plaintiff alleges that Defendant falsely labels its snack bars as “Made in USA” when their ingredients are sourced from foreign nations.  Complaint.

Ohlweiler v. Mars, Inc., No. 2:16-cv-6295 (C.D. Cal.): Non-functional slack fill class action alleging claims for false advertising, violation of the CLRA, breach of implied warranty, unjust enrichment, negligent misrepresentation, and fraud. Plaintiff alleges that Defendant misrepresents the quantity of candies contained in each unit of M&M’s Minis tube products and that the product is consistently under-filled by 30% or more.  Complaint.

Villagomez v. Free to Eat, Inc., No. 37-2016-28908 (Cal. Super. Ct. – San Diego Cnty.): False advertising class action alleging that Defendant manufactures, markets and sells “Free to Eat” cookies, which it advertises as “healthy,” but lists “evaporated cane juice” on its ingredient list.

Kreider v. Dover Foods, Inc., No. 1622-CC10011 (St. Louis City Circuit Court, MO): False advertising class action alleging that Defendant misled consumers regarding the contents of its “all natural” cake, brownie, cookie, and breakfast mixes.

Organic Consumers Association v. Handsome Brook Farm LLC, et al., No. 16-CA-6223 (D.C. Super. Ct.): False advertising action alleging violations of the District of Columbia Consumer Procedures Protection Act. Plaintiff alleges that Defendants sold eggs labeled as coming from “pasture raised” hens, even though the hens were not raised in conditions that most consumers would consider to fit that description.

Court Grants in Part Motion to Dismiss EJC Soda Case

Swearingen v. Santa Cruz Natural, Inc., No. 3:13-cv-04291 (N.D. Cal.): The Court issued an order granting in part and denying in part Defendant’s motion to dismiss. The order dismissed with prejudice Plaintiff’s claims asserting violations of California’s CLRA, FAL, and UCL, as well as its claims for breach of express warranty, breach of implied warranty, and unjust enrichment. The Court also dismissed, but with leave to amend, Plaintiff’s claims for negligent misrepresentation, negligence, and declaratory relief, and denied the motion to dismiss the claim for recovery in assumpsit. The action was based on Plaintiff’s allegation that Defendant has misleadingly used the term “organic evaporated cane juice” on the label of various products, including its Lemonade Soda, Orange Mango Soda, Raspberry Lemonade Soda, and Ginger Ale Soda.  Order.

Court Grants Summary Judgment for Tea Company

Victor v. R.C. Bigelow, Inc., No. 3:13-cv-2976 (N.D. Cal.) and Khasin v. R.C. Bigelow Inc., No. 3:12-cv-2204 (N.D. Cal.): United States District Judge William H. Orrick granted Defendant’s motion for summary judgment, disposing of this putative class action asserting violations of California’s UCL, CLRA, and FAL, and raising a claim for unjust enrichment.  Plaintiff’s fourth amended complaint alleged that Defendant made unlawful health, nutrient content, and antioxidant claims on the packaging of its tea products.  The Court had previously denied Plaintiff’s motion for class certification, after finding Plaintiff lacked standing and concluding Plaintiff’s proposed methods of calculating damages were meritless.  We previously reported on these cases here.

New Filings For August 29, 2016

Berni, et al. v. Barilla S.P.A., et al¸ No. 1:16-cv-4196 (E.D.N.Y.): Putative class action asserting a violation of New York GBL 349 and raising a claim of unjust enrichment, based on the claim that Defendants misleadingly market their “Whole Grain” and “Protein Plus” varieties of pasta by packaging them in boxes that are the same size as “regular” pasta, although the boxes have significant non-functional slack-fill.  Complaint.

Envtl. Research Ctr., Inc. v. Omega Protein Corp. et al, No. RG16-825174 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant’s dietary supplement products contain lead.

Envtl. Research Ctr., Inc. v. Grenade (U.K.) Ltd., No. RG16-825048 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant’s dietary supplement products contain lead.

Haack v. Drew’s LLC, No. 7:16-cv-60222 (S.D.N.Y.): Putative class action asserting violations of multiple states’ consumer protection laws on behalf of a national class, New York’s consumer protection statutes on behalf of a New York subclass, and raising claims for breach of express warranty, fraud (under Vermont common law), and common law unjust enrichment. Plaintiff claims Defendant’s salad dressings and marinades are deceptively marketed as “All Natural,” although the products contain synthetic ingredients, including xanthan gum, lactic acid, and citric acid.  Complaint.

Final Approval of Settlement in Tortilla Trans Fat Suit

Guttmann v. Ole Mexican Foods, Inc., No. 3:14-cv-4845 (N.D. Cal.): The Court granted final approval of class settlement in this putative class action alleging a breach of express warranty claim and violations of California’s CLRA, UCL, and FAL, based on Defendant’s failure to disclose that its “Xtreme Wellness” line of tortillas contain partially-hydrogenated oil, an artificial trans-fat food additive. The terms of the settlement are as follows: (1) Defendant will immediately refrain from using any partially-hydrogenated oils in its products for ten years; (2) Defendant will pay the class representative a $1,800 incentive award; and (3) Defendant will pay $85,000 in attorneys’ fees and $2,162.85 in costs.  Order.

Class Certification Granted in Olive Oil Suit

Kumar v. Salov North America Corp., No. 4:14-cv-2411 (N.D. Cal.):  The Court granted Plaintiff’s motion for class certification in this action alleging Defendant uses inferior bottles for its extra virgin olive oil and falsely markets its oil as “Imported from Italy” when the olives are not grown or pressed in Italy.  Continue Reading

LexBlog