Court Grants-in-Part and Denies-in-Part Defendant’s Partial Motion to Dismiss in False Labeling Action Involving Yogurt

Stolz v. Fage Dairy Processing, S.A., No. 1:14-cv-3826 (E.D.N.Y.): The Court granted-in-part and denied-in-part Defendant’s partial motion to dismiss in this putative class action alleging consumers were misled by Defendant’s “Total 0%” packaging on its yogurt products because consumers believe the product lacks fat, sugar sodium, cholesterol, calories or carbohydrates. First, the Court dismissed Plaintiffs’ claims for injunctive relief for lack of standing because they failed to allege they will purchase the product again in the future. The Court dismissed Plaintiffs’ negligent misrepresentation claims under California, Florida, New Jersey and Pennsylvania laws because the claims are premised on omissions rather than positive assertions and the parties did not have a fiduciary or fiduciary-like relationship.

Plaintiffs’ UCL and CLRA claims, however, survived dismissal.  The Court held Plaintiffs’ allegations sufficiently alleged misrepresentations that could deceive a reasonable consumer, as well as that they alleged reliance.  Finally, the Court rejected Defendant’s contention that Plaintiffs could not seek restitution under the CLRA because they did not provide notice.  The Court analyzed the California Supreme Court’s explanation of the distinction between restitution and damages and reasoned that a CLRA claim for restitution is not a damages claim and does not require advance notice of the lawsuit.  Order.

Court Grants Defendant’s Motion for Summary Judgment, Dismissing the Remaining Claim in Tito’s Handmade Vodka False Labeling Lawsuit

Pye v. Fifth Generation, Inc., No. 4:14-cv-493 (N.D. Fla.): The Court granted Defendant’s motion for summary judgment, dismissing the only remaining claim—breach of express warrant —in this false labeling putative class action involving Tito’s Handmade Vodka.  The claim pertained solely to the representation that Tito’s is made in “an old fashioned pot still.”  Undisputed evidence established that Defendant manufactured Tito’s in pot stills, but Plaintiffs challenged that the pot stills are not truly “old fashioned” because pot stills have changed over time.  The Court, however, found nothing in the record to support Plaintiffs’ interpretation of “old fashioned” and declined to interpret the term so narrowly.  The Court also dismissed the express warranty claims because Plaintiffs did not provide evidence that they provided notice to Defendant of the alleged breach of warranty, as Florida law requires. Order.

Court Rejects Repeat Plaintiff’s Unsupported Bid for Class Certification in False Labeling Action Involving Goji Berries

Torrent v. Ollivier, et al., No. 2:15-cv-02511 (C.D. Cal.):  The Court denied Plaintiff’s motion for class action certification in this putative class action asserting violations of California’s CLRA and UCL, based on the allegation that Defendants false represent that their goji berries were harvested from the Himalayas, when they, in fact, came from the Ningxia province of China.  Continue Reading

Court Grants-in-Part and Denies-in-Part Defendant’s Motion for Judgment on the Pleadings in False Labeling Action Involving Coconut Oil

Jones v. Nutiva, Inc., No. 4:16-cv-711 (N.D. Cal.): The Court issued an order granting in part Defendant’s motion for judgment on the pleadings in this putative class action alleging violations of California’s UCL, CLRA, and FAL, based on the claim that Defendant misleadingly labels and markets its coconut oil product as “inherently healthy, and a healthy alternative to butter and other oils,” when in fact it is inherently unhealthy and a less healthy alternative.   Continue Reading

Court Grants Defendants’ Motion, Staying Consolidated Action Involving “Healthy and All Natural” Claim on Primary Jurisdiction Grounds

In re Kind LLC “Healthy and All Natural” Litig., No. 1:15-md-02645 (S.D.N.Y.): The Court entered an order granting in part Defendants’ motion to dismiss this consolidated putative class action asserting violations of multiple states’ consumer protection laws and raising claims for breach of express warranty, unjust enrichment, and negligent misrepresentation.  Plaintiffs allege Defendants deceptively marketed its snack food products with labels including the words “healthy,” “all natural,” and/or “non GMO.” Continue Reading

New Filings for October 20, 2016

Barnes, et al. v. Frontera Foods, Inc., No. 16-L-0459 (Ill. Cir. Ct. – St. Clair Cnty.): putative class action asserting violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and a claim of unjust enrichment.  Plaintiffs allege Defendant’s salsa products are misleadingly labeled as containing ECJ, which is just sugar, and are marketed as  “all natural,” when in fact, the products contain synthetic ingredients such as citric acid and sodium citrate.  Complaint.

Tamayo v. Publix Super Mkts., Inc., No. 6:16-cv-1646 (M.D. Fla.): putative class action asserting violations of Florida’s consumer protection laws, and raising claims for fraudulent and negligent misrepresentation, and unjust enrichment.  Plaintiff alleges that Defendant falsely advertises its grated parmesan and Romano cheese products as containing “100% cheese,” when the products contain significant amounts of adulterants and fillers, including cellulose, a filler and anti-clumping agent derived from wood pulp.   Complaint. Continue Reading

Ninth Circuit Reverses Summary Judgment in “All Natural Fruit” Case, Upholds Denial of Class Certification

Brazil v. Dole Packaged Foods, LLC, No. 14-17480 (9th Cir.):  In an unpublished decision, the Ninth Circuit reversed the district Court’s dismissal on summary judgment of Plaintiff’s claims under the UCL, FAL, and CLRA, but upheld the district Court’s denial of class certification in this closely watched case alleging that the use of the word “All Natural Fruit” on Defendant’s products containing synthetic citric and ascorbic acids is misleading.  The Court held Plaintiff’s evidence, including the label; his testimony; consumer surveys; the FDA’s informal, non-binding “natural” policy; and FDA warning letters, could allow a trier of fact to conclude Defendant’s label is misleading to a reasonable consumer.  The Court also revived Plaintiff’s individual claim for unjust enrichment because the claim can be pleaded in the alternative in quasi-contract actions.  The Court, however, upheld the district Court’s class certification decisions limiting damages to the “price premium” attributable to the “All Natural Fruit” labels and ultimately decertifying the damages class because Plaintiff did not show how the price premium could be calculated with proof common to the class.  The case was remanded to the district Court for Plaintiff to pursue injunctive relief on behalf of the class and his individual restitution claim.

We previously reported on this case here and here.

Court Dismisses Equitable Relief Claims in Octopus False Ad Case

Fonseca v. Goya Foods, Inc., No. 5:16-cv-02559 (N.D. Cal.): The Court entered an order granting in part Defendant’s motion to dismiss this putative class action for breach of express and implied warranties, breach of the implied warranty of fitness, unjust enrichment, and violations of California’s CLRA, UCL, FAL, negligent misrepresentation, and fraud, which alleged that Defendants falsely advertised and marketed its products as containing octopus, when they in fact, contained squid. The Court held that Plaintiff—who sought only equitable relief under the CLRA, UCL, FAL, and doctrine of unjust enrichment—had an adequate remedy at law and dismissed those claims with leave to amend. With respect to Plaintiff’s fraud and negligent misrepresentation claims, the Court held that Plaintiff failed to allege facts necessary to satisfy the heightened pleading standard. The Court left intact the warranty claims, which Defendant did not move to dismiss.  Order.

New Filings for September 12, 2016

Environmental Research Center Inc. v. BPI Sports LLC, No. RG-16-830792 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its food products contain lead.

Benson v. Wheat Montana Farms, Inc., No. RIC-1611718 (Cal. Super. Ct. – Riverside Cnty.): False advertising class action. Plaintiff alleges that Defendant advertises its pancake mix as healthy, but lists “evaporated cane juice” on its ingredient list

O’Neal v. Natural & Tasty, LLC, No. RIC-1611717 (Cal. Super. Ct. – Riverside Cnty.): False advertising class action. Plaintiff alleges that Defendant advertises its dessert as healthy, but lists “evaporated cane juice” on its ingredient list.

As You Sow v. Mishima Foods USA, Inc., No. RG-16-830857 (Cal. Super. Ct. – Alameda Cnty.): Proposition 65 action alleging Defendant failed to warn consumers its snack products contain cadmium and lead.

Kazemi v. Dave’s Gourmet, Inc., No. 3:16-cv-5269 (N.D. Cal.): Evaporated cane juice class action for violations of California’s FAL and UCL, Florida’s Deceptive and Unfair Trade Practices Act, and negligent misrepresentation. Plaintiff alleges that Defendant advertises its pasta sauces as containing “evaporated cane juice” on their ingredient lists, instead of sugar.  Complaint.

Consumer Advocacy Group, Inc. v. Tawa Supermarket, Inc., et al., No. BC634011 (Cal. Super. Ct. – Los Angeles Cnty.): Proposition 65 action alleging Defendants failed to warn consumers its seaweed snack products contain cadmium.

Court Grants in Part and Denies in Part Motion to Dismiss In Goji Berry Origin Case

Torrent v. Ollivier, et al., No. 2:15-cv-02511 (C.D. Cal.): The Court entered an order granting in part Defendant’s motion to dismiss this putative class action for violations of California’s CLRA and UCL, which alleged that Defendants falsely advertised that its goji berries were harvested from the Himalayas, when they, in fact, came from the Ningxia province of China. The Court dismissed the claims insofar as they relate to consumers’ knowledge of the Ningxia province of China, but let stand the allegations that Defendants intended to create the impression in the minds of consumers that the berries were harvested from the Himalayas, based on allegations that Defendants’ packaging includes the statements, “The most famous berry in the Himalayas,” and “Goji berries originate in the high plateaus of the Himalayan mountains.”  Order.

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