Category: Dismissal

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Food Litigation Year in Review

Perkins Coie has published its first Food Litigation Year in Review, covering key developments and trends in food litigation for calendar year 2016.  The Year in Review’s key insights include data-driven assessments of how (and where) the plaintiffs’ bar has continued its assault on the food industry in 2016. That data reflect the filing of … Continue Reading

Slack Fill Class Action Time-Barred and Dismissed for Failure to Plead with Specificity

Kline, et al. v. Iovate Health Sciences, U.S.A., Inc., No. 3:15-cv-02387 (S.D. Cal.):  The Court issued an order granting in part and denying in part Defendant’s motion to dismiss this putative class action alleging Defendant’s supplement products are packaged in “large, opaque containers that contain more than 40% empty space.”  In granting the motion with … Continue Reading

Dismissal for Failure to Plead Reliance in “Unlawful” UCL Class Action

Swearingen v. Pacific Foods of Oregon, Inc., No. 3:13-cv-04157 (N.D. Cal.): The Court issued an order dismissing this ECJ action, which challenged Defendant’s use of the term “evaporated cane juice” on the ingredient lists for its products. The order dismissed with prejudice Plaintiff’s claims, which failed to plead reliance, and asserted violations of California’s CLRA … Continue Reading

New Filings – March 13, 2017

Erika McCartney v. Pacific West Ingredients LLC, et al., No. CGC-17-556912 (Cal. Super. Ct. – San Francisco Cnty.): Proposition 65 action alleging Defendants failed to warn consumers their Organic Merchants Co. brand cacao nibs contain cadmium. Burton, et al. v. Inventure Foods, Inc., No. 3:17-cv-0134 (S.D. Ill.): Putative class action for violation of the Illinois … Continue Reading

Watkins Incorporated v. McCormick & Company

Watkins Incorporated v. McCormick & Company, No. 1:15-mc-01825 (D.D.C.): In this putative class action alleging that Defendant deceptively “slack-filled” its black pepper containers, which Plaintiff says caused it to lose pepper sales by confusing consumers, the Court granted in part Defendant’s motion to dismiss. Defendant moved to dismiss Plaintiffs’ claims for lack of constitutional or … Continue Reading

Decerbo v. Melitta United States of America Inc.

Decerbo v. Melitta United States of America Inc., No. 8:16-cv-00850 (M.D. Fl.): In this putative class action alleging Defendant deceptively mislabeled its flavored coffee products by omitting federally- and state-mandated language about artificial flavorings on its “French Vanilla” and “Hazelnut Creme” flavored coffees, the Court granted in part Defendant’s motion to dismiss. Defendant moved to … Continue Reading

Partial Dismissal of Tuna Suit

Soto v. Safeway Inc., No. 3:15-cv-05078 (N.D. Cal.): In this putative class action alleging Defendant’s five-ounce canned tuna products are under-filled and substantially underweight, the Court granted in part and denied in part Defendant’s motion to dismiss claims for breach of warranty, unjust enrichment, negligent misrepresentation, fraud, and violations of California’s consumer protection statutes. … Continue Reading

Dismissal Without Prejudice of False Advertising Claims Related to Gerber “Puffs” Cereal Products

Henry v. Gerber Prods. Co., 3:15-cv-2201 (D. Ore.): The Court granted Defendant’s motion to dismiss without prejudice in this putative class action asserting violations of Oregon’s consumer protection statutes.  Plaintiffs claim that Defendant’s Graduate Puffs cereal snack products are misleading because the advertising highlights names and colorful pictures of fruits and vegetables that are not … Continue Reading

Partial Dismissal Without Prejudice In Pork and Beans False Advertising Suit

Tye v. Wal-Mart Stores, Inc., No. 8:15-cv-1615 (C.D. Cal.): The Court issued a minute order granting-in-part Defendants’ motion to dismiss in this putative class action asserting violations of multiple states’ (California, New Jersey, Pennsylvania) consumer protection statutes, and raising claims of breaches of warranty, unjust enrichment, breach of implied contract, and breach of the implied … Continue Reading

Dismissal With Prejudice of False Advertising Claims Related to Whole Foods’ 5-Step Meat Rating System

People for the Ethical Treatment of Animals, Inc. (“PETA”) et al. v. Whole Foods, Inc., No. 5:15-cv-4301 (N.D. Cal.): The Court granted Defendant’s motion to dismiss with prejudice, disposing of this putative class action asserting violations of California’s UCL, FAL, and CLRA, based on the allegation that Whole Foods’ representations that it has a five-step … Continue Reading

No Dismissal of False Advertising Claims Related to Chipotle’s “Non-GMO” Representations

Reilly v. Chipotle Mexican Grill, Inc., No. 1:15-cv-23425 (S.D. Fla.): The Court denied in part Defendant’s motion to dismiss this putative class action asserting violations of Florida’s consumer protection statute and unjust enrichment. Plaintiff claims that Chipotle misrepresents that its products contain only non-GMO ingredients when, in fact, meat and dairy products sold at Chipotle … Continue Reading

Court Grants Motion to Dismiss in PHO Popcorn Case

McGee v. Diamond Foods, Inc., No. 3:14-cv-2446 (S.D. Cal.): In a putative class action alleging claims under California’s UCL, public nuisance, and breach of implied warranty based on the contention that the use of PHOs in popcorn products is inherently unfair, the Court granted Defendant’s motion to dismiss without prejudice. With respect to Plaintiffs’ Article … Continue Reading

Motion to Dismiss Granted in Case Alleging Whole Foods Overstated Weights of Products

Bassolino v. Whole Foods Group Inc., No. 1:15-cv-6046 (S.D.N.Y.): The Court granted Defendant’s motion to dismiss this consolidated class action that followed the heels of an investigation by the New York City Department of Consumer Affairs (“DCA”). Plaintiffs asserted violations of New York’s GBL and Executive Law and raised claims of unjust enrichment and breach … Continue Reading

Sugar Lawsuit Dismissed on Preemption Grounds

In re Whole Foods Market, Inc., Greek Yogurt Marketing and Sales Practices Litigation, No. 1:14-mc-2588 (W.D. Tex.): In this multidistrict putative class action, Plaintiffs alleged that Defendant Whole Foods Market, Inc. misrepresents its “365 Everyday Value Plain Greek Yogurt” as having two grams of sugar per serving when it contains at least 11 grams of … Continue Reading

Chipotle Wraps Up Dismissal of GMO Feed Case

Gallagher v. Chipotle Mexican Grill, Inc., No. 3:15-cv-3952 (N.D. Cal.): The Court granted Defendant’s motion to dismiss with leave to amend in this putative class action alleging violations of California’s CLRA, FAL, and UCL. Plaintiff raises claims that Defendant, Chipotle Mexican Grill, misled consumers by claiming that it is the first national company in the … Continue Reading

Court Grants in Part and Denies in Part Motion to Dismiss in False Advertising Suit Involving Tortillas

Guttmann v. La Tapatia Tortilleria, Inc., 3:15-cv-2042 (N.D. Cal.): In a putative class action alleging claims under California’s UCL, FAL, and CLRA, as well as breaches of express and implied warranty, claiming that Defendant misrepresents its tortilla products as having “0g Trans Fat,” among other alleged “health” claims and suggesting that the use of PHOs … Continue Reading

Partial Dismissal Granted in Trader Joe’s Labeling Row

Gitson v. Trader Joe’s Co., No. 3:13-cv-1333 (N.D. Cal.):  The Court granted in part and denied in part Defendant’s third motion to dismiss this putative class action alleging that various Trader Joe’s products are misleading or misbranded. Defendant’s latest motion sought dismissal of Plaintiff’s claims relating to “soymilk” products. The Court found Plaintiff’s claims were preempted … Continue Reading

Seafood Omega-3 Claims Survive Dismissal

McMahon v. Bumble Bee Foods, LLC, No. 1:14-cv-3346 (N.D. Ill.): The Court denied a motion to dismiss this putative class action alleging that Defendant’s seafood and tuna products were labeled with unlawful Omega-3 nutrient content claims.  Declining to find the matter preempted by the Nutrition Labeling and Education Act, the Court held that the claims … Continue Reading

Motion to Dismiss Granted in Part, Denied in Part

Albert v. Blue Diamond Growers, No. 15cv4087 (S.D.N.Y.): In a putative class action alleging that Defendant’s almond milk products are misrepresented as containing a significant amount of almonds when in fact they contain only 2 percent, the Court granted in part and denied in part Defendant’s motion to dismiss.  First, the Court held that Plaintiffs … Continue Reading

Whole Foods Wholly Escapes ECJ Claims in Putative Class Action

Pratt v. Whole Foods Market California, Inc., No. 5:12-cv-5652-EJD (N.D. Cal.): In a putative class action claiming Defendants were unjustly enriched and violated California consumer protection statutes by (1) deceptively representing its 365 Everyday brand organic chicken broth, ketchup, and instant oatmeal products as containing “evaporated cane juice” (ECJ) instead of sugar, and (2) by … Continue Reading

Pierogies Class Suit Survives Dismissal

Steinberg v. Ateeco, Inc., No. 0:15-cv-60973 (S. D. Fla.):  A federal judge denied a motion to dismiss this putative class action alleging that Defendant’s Mrs. T’s Pierogies are mislabeled because they have improper serving sizes, understate the amount of calories and fat, and fail to provide the required disclosure regarding sodium content. Finding that plaintiff … Continue Reading

Denial of Motion for Reconsideration in Baby Food False Advertising Suit

Zakaria v. Gerber Products Co., No. 2:15-cv-00200 (C.D. Cal.): The Court denied Defendant’s motion for reconsideration of an earlier order denying a motion to dismiss in this putative class action alleging Defendant’s violated California’s UCL, FAL, and CLRA, when they advertised their baby food products as helping to prevent infants from developing allergies.   The … Continue Reading

Court Grants in Part and Denies in Part Motion to Dismiss in Instant Noodles False Advertising Suit

Guttman v. Nissin Foods Company, Inc., No. 4:15-cv-00567 (N.D. Cal.): The Court granted in part and denied in part Defendant’s motion to dismiss in this putative class action alleging violations of California’s UCL, and raising claims of nuisance and breach of implied warranty, based on claims that Defendant’s instant noodles are labeled as “Trans Fat: … Continue Reading

Court Denies Motion to Dismiss in Probiotic Beverage False Advertising Suit

Torrent v. Yakult U.S.A., Inc., No. 8:15-cv-00124 (C.D. Cal.): The Court denied Defendant’s motion to dismiss in this putative class action where Plaintiff contend that Defendant violated California’s UCL by claiming that its probiotic beverages are beneficial to digestive and immune system health, when such claims are contrary to scientific evidence. The Court found that … Continue Reading
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