This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives

bai-brasilia-blueberry-202x4841Here at the WLF Legal Pulse, we routinely discuss class-action lawsuits filed against consumer-product makers, especially those who manufacture packaged foods. Plaintiffs’ lawyers have been clogging the aisles of grocery stores for years dissecting food labels for any possible regulatory misstep and perhaps signing up new clients in the process. We could write far more often on this subject, but frankly it’s increasingly difficult to find a decision that breaks new ground or a suit that is uniquely ridiculous. One recent decision was irresistible, however.

The Southern District of California’s March 7, 2019 decision in Branca v. Bai Brands LLC seems like a run-of-the-mill “your product isn’t completely natural” claim. It wasn’t the debate over whether the malic acid in Bai beverages is natural or artificial (though that is perversely interesting) that intrigued us, but the court’s personal-jurisdiction determinations. And Justin Timberlake. Plaintiff Kevin Branca sued Timberlake, a Bai investor, as well as Dr. Pepper Snapple Group CEO Larry Young and former Bai CEO Ben Weiss (Dr. Pepper ousted him when it bought Bai), individually. Continue reading “This Justin: Timberlake Out of Suit but False-Labeling Action against Bai Beverage Mostly Survives”

Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings

supreme courtCivil litigation is waged through a series of small battles between plaintiff’s and defendant’s counsel. One initial battle, which can be outcome-determinative, involves where suit can be filed. Plaintiffs’ lawyers want to be in courts in which “friendly” judges preside, while defense counsel want no part of such jurisdictions. U.S. Supreme Court decisions from the past five years, such as Bristol-Myers Squibb v. Superior Court (BMS), have thrown a monkey wrench into plaintiffs’ lawyers’ jurisdiction battle plans. But without fail, plaintiffs’ lawyers, and particularly those who specialize in class actions, devise new arguments. They have argued, with mixed results in the lower courts, that precedents such as BMS don’t dictate jurisdiction for nationwide class actions. Some class-action lawyers are also relying on a rarely used federal common law doctrine—“pendent personal jurisdiction.” Continue reading “Class-Action Lawyers Invoke Novel Doctrine to Avoid SCOTUS Jurisdiction Rulings”

Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California

Featured Expert Contributor—Civil Justice/Class Actions

Frank Cruz-Alvarez, Shook, Hardy & Bacon L.L.P., with Rachel Forman, Shook, Hardy & Bacon L.L.P.

California is broadening the legal landscape of food-labeling class actions to the dismay of the food and beverage industry.  The Southern District of California in Hilsley v. Ocean Spray Cranberries, Inc. et al. has thrown the doors open for class certification in food-labeling cases.  The court issued an opinion partially certifying a class of consumers consisting of California citizens who purchased one of various Ocean Spray Cranberries, Inc. (“Ocean Spray”) products, such as Ocean Spray Cran Apple or Cran Raspberry, that contain labels which state, “‘No . . . artificial flavors’ when in fact the products contain artificial flavoring chemicals that simulate the advertised fruit flavors.”  Id. at “2. Continue reading “Food-Labeling Suit’s Successful Class Certification is Cause for Concern in California”

Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround

Featured Expert Contributor, Litigation Strategies

Joe G. Hollingsworth, a Partner at Hollingsworth LLP, with Katharine R. Latimer, a Partner at the firm and a member of WLF’s Legal Policy Advisory Board.

A printer-friendly PDF version of this commentary is available here.

Earlier this fall, the Supreme Court took up the Class Action Fairness Act of 2005 (CAFA) when it granted certiorari in Home Depot U.S.A., Inc. v. Jackson, 880 F.3d 165 (4th Cir. 2018).  We’re hoping for a slap-down because the Home Depot decision and its ilk improperly deny an entire sub-category of defendants protection from abusive state court class actions.

CAFA is an important statutory safeguard that Congress enacted to rectify serious class action abuses in state courts.  See CAFA, S. Rep. No. 109-14, at 13 (2005).  Congress expressly found that ungainly and abusive interstate class actions “(A) harmed class members with legitimate claims and defendants that have acted responsibly; (B) adversely affected interstate commerce; and (C) undermined public respect for our judicial system.”  CAFA § 2(a)(2) (codified at 28 U.S.C. § 1711 notes). Continue reading “Games People Play: Supreme Court Can Put a Stop to an Obvious CAFA Workaround”

Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers

cheez itA decision this month from the U.S. Court of Appeals for the Second Circuit reunites us with an old friend, The Reasonable Consumer. As we’ve discussed in previous posts here and in Washington Legal Foundation publications, The Reasonable Consumer has figured prominently in consumer class-action lawsuits that allege harm from supposedly deceptive or misleading food labels. That’s because the question at issue in the Second Circuit case, Mantikas v. Kellogg Company, is a common one in Food Court litigation: would a reasonable consumer interpret the relevant information on the food package the same way the plaintiff claims to have read it, and be similarly misled? Continue reading “Unreasonable Second Circuit Decision Sets Daunting Precedent for Packaged-Food Makers”

In 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions

DC CircuitSince the U.S. Supreme Court’s landmark decision in Bristol-Myers Squibb v. Superior Court (BMS), litigants and courts have struggled to determine its impact on future cases.  The Court held in BMS that courts may not exercise jurisdiction over nonresident defendants with respect to nonresident plaintiffs’ claims arising from conduct that occurred outside the State. This limits defendants’ exposure to nationwide mass-tort actions to States where they are “at home” and subject to that forum’s general personal jurisdiction.

Class actions are now at the forefront of the fight to define BMS. To date, no federal circuit court has considered whether BMS applies equally to class actions as it does to mass-tort actions. But several circuit courts will have the opportunity to resolve this question in 2019, quite possibly with differing results. A WLF Working Paper published in March 2018 framed the question these courts will have to answer as follows: If joinder of plaintiffs does not establish specific jurisdiction over the defendant for nonresident plaintiffs’ claims (as in BMS), can the result be any different when the nonresident plaintiffs are instead absent members of a class? Continue reading “In 2019, Federal Appellate Courts Will Address Impact of SCOTUS Jurisdiction Ruling on Class Actions”

Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case

roibal_lucia_webGuest Commentary

By Lucía Roibal, an Associate with Morrison & Foerster LLP in the firm’s San Francisco, CA office. This commentary is reposted with permission, originally appearing on November 30, 2018 in the firm’s Class Dismissed  blog.

On September 6, 2018, Kimberly-Clark and affiliates filed a petition for writ of certiorari in Kimberly-Clark, et al. v. Davidson, No. 18-304, following a decision in the Ninth Circuit denying Kimberly-Clark’s motion to dismiss.  As noted in previous posts (here and here), the Ninth Circuit had resolved a split among district courts in the circuit and held that a previously deceived consumer may have standing to seek an injunction against false advertising or labeling if he or she sufficiently alleges intent to repurchase the product in the future.  In Kimberly-Clark’s petition, the companies ask the Supreme Court to resolve the issue of whether a consumer, who after using a product and determining that a representation concerning that product is allegedly misleading, can plausibly allege a “real and immediate threat” that she will be deceived by the same representation in the future so as to establish standing to seek an injunction. Continue reading “Kimberly-Clark Seeks Supreme Court Review in “Flushable” Wipes Case”