On March 25, 2019, Judge Gary L. Sharpe of the Northern District of New York dismissed a putative class action against CVS and Lang Pharma alleging that the labeling of defendants’ CVS Omega-3 Krill Oil is deceptive and misleading.  Plaintiff in the lawsuit, James Gaminde, alleged that CVS Omega-3 Krill Oil contained only sixty percent of the 300mg of Omega-3 Krill Oil represented by the label, and therefore violated New York’s General Business Law sections 349 and 350, as well as claims for breach of express warranty, implied warranty, unjust enrichment and fraud.  The court ruled that plaintiff lacked Article III standing stating that plaintiff’s “failure to allege that he tested his bottle of CVS Krill Oil—indeed, his failure to make any allegation regarding how he knows that it was mislabeled—is fatal.”  The court held that plaintiff’s conclusory and unsubstantiated allegations failed to demonstrate that he suffered an ‘injury in fact’ which is concrete and particularized, a requisite to establish Article III standing.  Noting that any amendment would be futile, the court granted defendants’ motion to dismiss with prejudice and entered judgment for defendants.  Defendants were represented by the Perkins Coie food litigation team.

James Gaminde v. Lang Pharma Nutrition, et al –  Case No. 18-cv-00300-GLS (N.D.N.Y)

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Photo of David T. Biderman David T. Biderman

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in…

David Biderman, a partner in Perkins Coie’s San Francisco and Los Angeles offices, focuses his practice on mass tort litigation and consumer class actions. He heads the firm’s Mass Tort and Consumer Litigation group. He has represented a wide variety of companies in state and federal courts in California for 30 years.

On consumer class actions, David represents packaged food companies, coffee companies, dairy companies, footwear companies and others whose nutritional or health claims have been challenged. He also has represented search engines and other online companies. He has a record of favorable results for clients. He successfully tried a major consumer fraud class action on behalf of one of the world’s major search engines in a case involving online gambling advertisements. For that same client, he negotiated a favorable settlement of a class action challenging its online advertising pricing. He represented a major coffee retailer in defeating a class action on standing grounds. He also has litigated pre-emption defenses arising out of food labeling and obtained a dismissal for a client whose nutritional statements were challenged.

For fifteen years, David managed the firm’s full-service product liability team responsible for defending over 1,000 toxic tort cases pending in Los Angeles and Northern California state courts. These cases entailed ongoing trial activity at various levels for several trials set each month. The highly experienced and well-coordinated team has handled thousands of asbestos toxic tort cases for a variety of clients, including FORTUNE 500 companies from such industries as consumer products, aerospace manufacturing, household goods, dry cleaning and industries that generate electromagnetic fields, such as electric utilities and operators of wireless communications systems.

Photo of Charles Sipos Charles Sipos

Charles Sipos is an experienced class action litigator, having successfully represented clients in class action lawsuits in the technology, food and beverage, gaming and pharmaceutical industries over the past 16 years.