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

  • Stephen Dunn, et al. v. Ancient Brands LLC, No. 5:21-cv-00390-LEK-ML (September 15, 2023): The Northern District of New York granted defendant’s motion for judgement on the pleadings of a class action alleging defendant’s bone broth products advertise “20g Protein” on the front label when the main source of protein in the products is collagen—which has a low protein digestibility corrected amino acid score (PDCAAS)—meaning that the protein as measured by PDCAAS is allegedly less than what is represented. While the court found that plaintiffs did have standing, the court held that plaintiffs’ claims based on defendant’s failure to use the PDCAAS for the nutrient content claim on the front label is beyond what is required under federal law and is, therefore, expressly preempted, and any claims based on defendant’s failure to include a “%DV” in the nutritional facts panel are predicated on violations of the federal Food, Drug, and Cosmetic Act (FD&C), which provides no private right of action, and are impliedly preempted. Opinion linked here.
  • Melissa Garza v. Nestle USA Inc. et al., No. 1:22-cv-03098 (September 20, 2023)
    U.S. District Court for the Northern District of Illinois: The Northern District of Illinois granted dismissal of an putative class action alleging the defendant’s milk-based toddler drink powder was falsely advertised as nutritionally appropriate when it contained certain amounts of added sugar. The court held that it lacked proper subject-matter jurisdiction over the case. The plaintiff sought to represent both an Illinois class and a multi-state class, while conceding that the plaintiff was not a member of the multi-state class. The court held that the plaintiff could not represent the multi-state class. In addition, the court found that plaintiff’s alleged damages were less than the required $5 million threshold for Class Action Fairness Act (CAFA) jurisdiction, meaning that jurisdiction on this basis was inappropriate. 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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