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 Partial Dismissal of Tuna Suit

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…

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…

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…

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…

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 III standing, the Court held that Plaintiff lacked standing because she had not alleged a current or credible threat of physical injury. The Court also found that the complaint did not sufficiently allege a credible threat of future harm because Plaintiff failed to show how consuming the popcorn products “once every two or three months over three years” would substantially increase her risk of any disease let alone a probability that the harm would be substantial.  With respect to economic harm, the Court found Plaintiffs allegations insufficient, holding that the purchase of a product that is “less healthy than expected” is not a sufficient economic injury.  The Court further held that Plaintiff received the benefit of her bargain by consuming the popcorn and that Plaintiff’s case was distinguishable from the authority she cited because she had not alleged that the labeling on the products deceived her in any way and did not allege that she would have purchased an alternative product but for Defendants’ representations.
Continue Reading Court Grants Motion to Dismiss in PHO Popcorn Case

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…

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 sugar per serving. The Court recently issued an order dismissing Defendant Whole Foods Market, Inc.’s motion to dismiss as moot (on settlement grounds), and granting the remaining Defendants’ motion to dismiss with leave to amend.

The Court granted the remaining Defendants’ motion to dismiss after finding that Plaintiffs’ state law claims were expressly preempted by the FDCA. Specifically, the Court agreed with Defendants that Plaintiff had failed to allege that the scientific testing conducted by Consumer Reports (upon which the Second Amended Complaint relied) complied with the prescribed testing methodology set forth in the FDA’s regulations. The Court found that Plaintiffs had failed to state a claim because they relied solely upon the Consumer Reports testing, even after affirmatively alleging that it did not follow the applicable protocols. If allowed to proceed on this record, the Court reasoned, Plaintiffs “would impose liability inconsistent with the FDCA.”Continue Reading Sugar Lawsuit Dismissed on Preemption Grounds