Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted

maple and brown sugarIn all the blogging we’ve done on food-related consumer-protection litigation over the past five years, we’ve said very little about one of our favorite federal constitutional doctrines, federal preemption. That’s because the Food Court Bar has filed the vast majority of its claims in California, which has a statute, the Sherman Food, Drug, and Cosmetic Law, that explicitly incorporates all federal food laws and regulations. Plaintiffs’ lawyers have been able to defeat most preemption arguments by asserting Sherman Act violations, remedies for which would impose the same requirements as would federal law. Preemption defenses can prevail only when state law (or a state court decision) imposes obligations in conflict with federal law.

But in a series of recent suits against Quaker Oats Company, plaintiffs’ lawyers took a shot at imposing controls on oatmeal-product labeling that went beyond what federal rules required. Perhaps they thought the Central District of California would give them a pass, or that they could convince the court through some legal slight-of-hand. Judge Philip S. Gutierrez, who is presiding over the consolidated class actions, wasn’t buying it, however. On October 10, 2017, he dismissed the plaintiffs’ claims as preempted by federal law. In re Quaker Oats Maple & Brown Sugar Instant Oatmeal Litigation. Continue reading “Food Court Follies: Misled-By-Maple Class Action Against Quaker Oats Preempted”

Update: Plaintiffs in Subway Not-Foot-Long Class Action Throw in the Napkin

1ftIn September WLF’s Cory Andrews applauded the U.S. Court of Appeals for the Seventh Circuit’s rejection of a settlement of a consumer-fraud class-action suit against Subway. The suit alleged that not all Subway foot-long sandwiches measured a full 12″. The WLF Legal Pulse post did note, however, that on the basis of “new” information from an employee of one of Subway’s vendors, the plaintiffs refiled their suit in a Wisconsin federal court after the appeals court’s dismissal.

We learned today, thanks to the Institute for Legal Reform (ILR) (which kindly referenced our September post) and the Legal Newsline story ILR referenced, that the plaintiffs voluntarily dismissed their suit late last month. Not surprisingly, the plaintiffs’ quiet surrender garnered substantially less attention than the filing of their original lawsuit in 2013.

Federal Preemption Ruling Flushes Another Eye-Drop Class Action

eyedropAnyone who’s ever used eye drops has experienced solution overflow. You tilt your head back, pry your eye open, hold the dispenser close to your eyeball, and even though you squeeze very gently, some of the liquid flows onto your cheek. What is your logical next move? Is it to grab a tissue and dab up the excess, or reach for the phone and call your lawyer? As readers of the WLF Legal Pulse learned from a March 31, 2017 post, some overflow sufferers have actually done the latter.

That March 31 commentary recounted the U.S. Court of Appeals for the Seventh Circuit’s dismissal of a class action against nine eye-drop makers alleging that consumers suffered economic harm from a needlessly oversized drop of medicine. A decision in another eye-drop-overflow suit filed in Massachusetts, Gustavesen v. Alcon Laboratories, et. al, recently came to our attention (HT to our friends at the indispensable FDA Law Blog).

The outcome of this suit was the same as the Eike v. Allergan, Inc. in the Seventh Circuit—class dismissed. Unlike Judge Posner’s typically curt, fanciful opinion in Eike, which tossed out the claims for lack of constitutional standing, District of Massachusetts Judge Mark Wolf found that federal regulation of the prescription eye drops preempted the state-law fraud claims. Judge Wolf’s thorough analysis is worth a careful read. Continue reading “Federal Preemption Ruling Flushes Another Eye-Drop Class Action”

Drunk Suing, Another Round: Court Allows False-Labeling Claim on “Hawaiian Beer” to Proceed

indexWe have been covering a legal action against Kona Brewing Company (now renamed Broomfield v. Craft Brew Alliance), which is one suit in the larger trend of class actions against breweries alleging misleading or false labeling and advertising.  In that suit, Judge Beth Labson Freeman, who sits on the U.S. District Court for the Northern District of California (a.k.a. the “Food Court”), recently ruled on Kona’s motion to dismiss.

Though the court trimmed the complaint, dismissing several of the plaintiffs’ causes-of-action and requests for relief, it held that the crux of the allegations could proceed.  The result is that, through strategic pleading, Kona must spend its time and resources fighting a lawsuit with questionable merits.  Judge Freeman created perverse incentives for future litigants by choosing to become, in essence, a product-packaging regulator. Continue reading “Drunk Suing, Another Round: Court Allows False-Labeling Claim on “Hawaiian Beer” to Proceed”

Food-Court Follies: Judge Grates Parmesan-Cheese Multidistrict Litigation

parma cheeseThanks to America’s regrettably litigious nature, the “Reasonable Person” is always busy. This prototypically average, ordinary human being is routinely called upon in legal disputes governed by common-law tort principles and asked: What would you think or do in this situation? One strain of litigation—consumer-fraud class actions—has kept the Reasonable Person especially occupied in recent years.

A recent court case asked the Reasonable Person to put on her “reasonable consumer” hat and determine the meaning of the term “100% Grated Parmesan Cheese” as it appears on containers of shelf-stable, processed shaky cheese.

In February 2016, inspired by overblown media stories, 15 lawsuits were filed in 6 different courts against 7 defendants (Kraft Heinz Co., Albertsons Cos., Target Corp., Wal-Mart Stores, ICCO-Cheese Co., and Publix Super Markets) alleging common-law and statutory violations for those companies’ false or misleading use of that statement. Continue reading “Food-Court Follies: Judge Grates Parmesan-Cheese Multidistrict Litigation”

Food-Court Follies: Fraud Suits Fall Apart after Plaintiffs’ Candid Admissions During Discovery

ocean sprayAs many people learned from watching legendary radio and TV show host Art Linkletter (or from simply being parents), kids say the darnedest things. Similarly, those of us who follow class actions alleging misleading labeling of consumer goods have discovered that adult plaintiffs can say the darnedest things, too.

Three plaintiffs’ candid admissions during their depositions in two product-labeling suits recently revealed their claims to be entirely baseless. Regrettably, neither the plaintiffs nor their lawyers have been held accountable for the costs these frivolous lawsuits imposed on the federal courts, the defendants, and consumers. Continue reading “Food-Court Follies: Fraud Suits Fall Apart after Plaintiffs’ Candid Admissions During Discovery”

Update: Another Instance of Drunk Suing Ushered Out of Court

fosters

A few months ago we blogged about a lawsuit where the plaintiffs alleged they were deceived by the “Hawaiian-ness” that Kona Brewing Company conveyed on their beer labels.  The case was emblematic of a series of suits alleging that because beers were seemingly marketed as “foreign,” but produced in a domestic location, the brewers tricked the public into making purchases.  In addition to Kona, the makers of Red Stripe, Sapporo, Kirin Ichiban, and Beck’s have all been dragged into court.

Luckily, those brewers who fought back have been winning.  As mentioned in that previous commentary, the makers of both Red Stripe and Sapporo successfully petitioned their respective courts to dismiss their plaintiffs’ cases.  We can now add Fosters to the list.  Because Fosters’ product labels specifically state that brewing occurred in Georgia and Texas, no consumer would reasonably believe that it was imported from Australia.

With defeats piling up, let’s hope that the plaintiffs’ attorneys behind these frivolous claims will put an end to their “drunk suing.”