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”

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”

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”

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”

Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law

Guest Commentary

By Robert S. Niemann, a Partner with Keller and Heckman LLP in the firm’s San Francisco, CA office, and Jill M. Mahoney, an Associate in the firm’s Washington, DC office.

Editor’s note: This blog is an update to the February 2, 2018 WLF Legal Backgrounder, “Litigating over Empty Space: Public and Private Plaintiffs Target Consumer Class Actions at “Slack Fill.”

Defendants of would-be “slack fill”1 lawsuits may have found some reprieve from litigation in California. On September 19, 2018, California Governor Jerry Brown signed into law Assembly Bill 2632, which amends the state’s slack fill law2 to provide manufacturers facing nonfunctional slack fill allegations with additional safe harbors. While specious slack fill lawsuits have been on the rise in recent years, the amendment is a step forward for the food manufacturing industry and demonstrates that California, the home to many slack fill suits,3 may also be growing tired of such claims. Continue reading “Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law”

Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries

article IIIWe return once again (click here for past posts) to the seemingly banal legal doctrine of standing to sue—a subject that few, if any, likely contemplated when celebrating Constitution Day this week. This doctrine does, however, arise from the Constitution’s ingenious separation of powers among the three branches of government. Article III limits the judiciary’s role to resolving “cases” and “controversies.” From that the U.S. Supreme Court derived the standing doctrine as a way to test whether plaintiffs’ claims are fit for judicial resolution. A key part of the test is whether a plaintiff can factually establish that she suffered a concrete “injury in fact” that can be traced to the defendant’s conduct and can be redressed by a judicial remedy.

Legal claims based on conjectural or hypothetical harm, therefore, should not be inundating federal courts’ dockets. Unfortunately, too many no-injury class actions are passing the standing test, thanks in part to broadly worded state consumer-protection laws (and judges’ reluctance to reject jurisdiction). Just last week, for instance, a federal court ruled that state fraud laws are so broad that consumers who purchased vehicles with faulty ignition switches can recover damages even if the defect never manifested itself. And earlier this year, the Supreme Court refused to review an appellate court decision that allows eye-drop users to sue based on the speculative theory that eye-drop producers would charge the same price for a vial with a smaller dispensing hole.

Given the current trend on standing, it is critical to highlight positive outcomes in this area. We discuss two encouraging decisions here, one from the court that allowed the aforementioned eye-drop suit to proceed, the U.S. Court of Appeals for the Third Circuit, and the second from a federal court in California, a state with perhaps the nation’s most permissive consumer-protection laws. Continue reading “Courts Reject Buyers’ Remorse and Wasted Time as Redressable Class-Wide Injuries”

Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant

GLFoodCourtWhen judges defer to an administrative agency’s interpretation of its own rule, targets of government regulation normally lose out. Private enterprises and organizations like Washington Legal Foundation have been urging the U.S. Supreme Court to reconsider Auer v. Robbins, the precedent that unleashed this doctrine that allows the proverbial fox to guard the hen house. We also routinely criticize class action lawsuits alleging that true statements on food labels are unlawfully false, misleading, unfair, or illegal.

It is not without a sense of irony, then, that we applaud a July 30, 2018 Central District of California opinion in Wilson v. Odwalla, which relied on “Auer deference” in granting the defenant’s motion for summary judgment in a consumer class action suit. The district court faithfully applied Auer to reach the correct decision. The Food and Drug Administration rule at issue in Wilson is clearly ambiguous—a key factor in the Auer analysis. Continue reading “Judge’s Deference to FDA’s Interpretation of “Added Sugar” Regulation Secures Win for Food-Labeling Suit Defendant”