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

  • Magdalena Bojko, et al. v. Pierre Fabre USA Inc., No. 22-cv-06728 (N.D. Ill. – June 27, 2023): The Northern District of Illinois trimmed a lawsuit involving dry shampoo products allegedly contaminated with the carcinogen benzene. Addressing standing, the court held the plaintiffs had alleged an injury; even though they had not alleged the products they purchased contained benzene—they had at least alleged a study found the types of products they purchased included benzene. Next, the court held plaintiffs’ claims based on the omission of benzene from the ingredient list were preempted because benzene is a contaminant, not an ingredient. The court also dismissed claims based on affirmative representations because the products made no representations that suggest the absence of contaminants (e.g., “safe,” “lab tested,” “benzene free”). The court tossed plaintiffs’ lack-of-warning claims because they had not alleged with particularity that defendant knew the product contained benzene. Lastly, the court dismissed plaintiffs’ warranty claims for pleading failures. Claims that the product was “adulterated” in violation of Illinois state law and federal law were allowed to proceed. Opinion linked here.
  • Rosita English v. Danone N.A. Public Benefit Corp., No. 7:22-cv-05105-VB (S.D.N.Y. – June 26, 2023): The Southern District of New York dismissed with prejudice a putative class action alleging the marketing of a coffee creamer product misleads consumers into believing the product contains cream from dairy ingredients when defendant’s coffee creamer purportedly contains no cream or dairy ingredients. The court held that because plaintiff bought the product in Texas, she failed to state a claim under the New York General Business Law, nor did she specify the Texas Business and Commerce Code under which she was bringing the suit. The court ruled that because plaintiff is a Texas citizen and failed to state a claim for a product she actually purchased in Texas, plaintiff did not plausibly allege injury or fraudulent intent and lacked standing to assert claims under other states’ consumer protection laws. 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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