Our weekly roundup aims to keep our readers up to date on recent notable rulings in the food & consumer packaged goods space.

  • Christopher Leonard v. Mondelēz Global LLC, No 1:21-cv-10102-PAC (S.D.N.Y. – March 8, 2023): The Southern District of New York dismissed a class action complaint that alleged the labeling of the defendant’s chocolate sandwich cookies containing mint crème covered in a fudge coating mislead consumers because it purports to contain “fudge.” Plaintiff claimed the product did not comport with the plaintiff’s definition of “fudge,” because the product’s “fudge” is made with palm and palm kernel oil and not milkfat. The court held that “Fudge Covered,” without more, would not mislead a reasonable consumer into believing the product necessarily contained milkfat or butter, regardless of whether “Fudge Covered” refers to the product’s flavor or an ingredient, and that not a single source claims that milk and butter are essential fudge ingredients or that milkfat is necessary to make fudge and dismissed the New York and state consumer fraud claims. Opinion linked here.
  • Julian Foster v. Whole Foods Mkt. Grp. Inc., No. 22-cv-01240-ERK-RML (E.D.N.Y. – February 3, 2023): The Eastern District of New York court granted dismissal of a putative class action alleging that the front label of defendant’s fish oil capsules is false and deceptive because a reasonable consumer would believe that the product contains 1000mg of two types of Omega-3 fatty acids per capsule, when in fact the product contains only 300mg of Omega-3’s per capsule. The court held that the plaintiff’s claim failed, reasoning that a consumer would not be misled by the challenged labeling statement on the front of the package because the back label clarifies any ambiguity. The court dismissed the plaintiff’s GBL claims reasoning that, while the front label was ambiguous, it was not actually false. Leave to amend was denied. Opinion linked here.
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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.

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Photo of Tommy Tobin Tommy Tobin

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false…

Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.

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