Thanks 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
As 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
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.”
By Yvonne M. McKenzie, a Partner with Pepper Hamilton LLP in the firm’s Philadelphia, PA office, and Colleen Kelly, an Associate with the firm.
In February, plaintiffs filed a class-action lawsuit in California against candy maker Jelly Belly on behalf of consumers who purchased jelly beans marketed as “Sport Beans.” They claimed that Jelly Belly used the phrase “evaporated cane juice” (ECJ) in its ingredient labeling to mislead consumers about the amount of sugar in Sport Beans.
Jelly Belly markets the product to athletes seeking a jolt of “quick energy,” which is usually accomplished through ingesting sugar and carbohydrates. Far from masking its ingredients, the product labeling clearly states that Sport Beans contain 19 grams of sugar per serving. Despite this, the plaintiffs claimed that the term ECJ misled them into thinking that the product contained juice, not sugar. Never mind that juice itself typically contains sugar. Continue reading
Here we go again. Lawsuits over allegedly deceptive food labels have become commonplace—a tried-and-true tactic for some plaintiffs’ attorneys to earn an easy buck. By claiming that the labels were intentionally misleading in some way, these lawyers and the purportedly confused clients they represent, seek to leverage the specter of a class action to force quick settlements. Unfortunately, this tactic often works. In fact, it has worked so well that entire subsets of labeling lawsuits have sprung up, among them “healthy food” labels, “all natural” labels, and slack-fill cases. We can now add a new category to the list: plaintiffs alleging they were deceived because their beer was not brewed where they thought it was.
Plaintiffs Sara Cilloni and Simone Zimmer filed a putative class action, Cilloni v. Craft Brew Alliance, Inc., in the Food Court (also known as the US District Court for the Northern District of California) against Craft Brew Alliance, the owners of Kona Brewing Company (Kona). Kona was founded in 1995 on Hawaii’s Big Island. Taking pride in the company’s origins, Kona stylizes each of its beers in an overtly Hawaiian theme, inviting customers to enjoy the “Liquid Aloha” and “Catch A Wave.” With names like Big Wave Golden Ale, Longboard Island Lager, and Wailua Wheat, Kona’s products celebrate their history and ties to Hawaiian culture. Continue reading
In creating the federal judicial branch, the Framers of the US Constitution did not intend that courts would right every possible wrong. Article III authorizes federal courts to resolve “Cases” and “Controversies.” The US Supreme Court has interpreted that power to mean that civil-litigation plaintiffs must prove they suffered an “injury in fact,” which is concrete and particularized, and not speculative. We’ve discussed Article III standing jurisprudence here in numerous contexts, most frequently in consumer class actions targeting food labels or data-security breaches, areas where the ever-amorphous concept of “economic harm” is often alleged. A March 6, 2017 Seventh Circuit decision, Eike v. Allergan, Inc. et al., shot down an especially outlandish attempt to expand standing based on an alleged economic injury. Continue reading
By David E. Sellinger and Aaron Van Nostrand, Greenberg Traurig LLP
In a closely watched appeal, the US Court of Appeals for the Ninth Circuit has squarely weighed in on the “ascertainability” of class members in a class-action lawsuit. The three-judge panel further widened a rift among federal courts of appeal on the issue, holding that plaintiffs need not demonstrate an administratively feasible way to identify class members at the class-certification stage.
In an August, 2016 WLF Legal Backgrounder, we predicted that a trio of class actions then-pending in the Ninth Circuit could prompt the US Supreme Court to resolve the circuit split on the ascertainability issue. Although that issue was briefed in all three cases, it was not decided in Brazil v. Dole Packaged Foods, LLC (No. 14-17480), and a hold placed on Jones v. ConAgra Foods, Inc. (No. 14-16327) pending a Supreme Court decision in Microsoft v. Baker is still in effect. The Ninth Circuit did address ascertainability in the third case discussed in that Legal Backgrounder—Briseno v. ConAgra Foods, Inc. The January 3 decision presents a view sharply in contrast with that of certain other circuits, most notably the Third Circuit. Continue reading