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

  • Kenneth Telesco v. Starbucks Corp., No. 7:22-cv-02687-NSR (S.D.N.Y. – July 18, 2023): The Southern District of New York granted dismissal of a putative class action alleging defendant misled consumers into believing that a package of its cold brew coffee concentrate yields eight servings when it actually only yields five. The court held that plaintiff’s claim failed because a reasonable consumer would not be misled by the labeling instructions for the product’s preparation and, consequently, the expected yield. The court highlighted that the label clearly states it is a 32-ounce container, which following the 1:1 ratio on the label’s instructions, means that it would produce 64 ounces of coffee. The court added that the reasonable consumer test for false advertising claims “is not based on the ‘least sophisticated consumer’ who is unable to perform simple math.” Opinion linked here.
  • Anthony Moreno v. Vi-Jon, LLC, No. 3:20-cv-01446-JM-BGS (S.D. Cal. – July 18, 2023): The Southern District of California granted dismissal of a fourth amended complaint in a putative class action alleging defendant’s hand sanitizers contain labels that misrepresent their ability to kill germs. The court held that plaintiff failed to plausibly allege that a reasonable consumer would be misled by the product’s labeling into thinking that the products kill 99.99% of all germs in existence. Instead, a reasonable consumer would not ignore the labeling’s asterisk leading them to a disclosure on the back panel clarifying that the hand sanitizer is effective at eliminating 99.99% of many common harmful germs. The court denied further leave to amend. 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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