On September 30, just two weeks after hearing oral argument in the case (which we previewed here), the Ninth Circuit released an unpublished opinion in Brazil v. Dole Packaged Foods, partially reversing the district court. The opinion correctly upheld the district court’s dismissal of one of Brazil’s “outlandish theor[ies]” and its decertification of the class. Unfortunately, the Ninth Circuit relied on nonbinding FDA guidance and warning letters to evaluate what would mislead a reasonable consumer, reversing the district court’s dismissal of his other claims. Although not officially precedential, the opinion is worth reviewing because it has the potential to guide lower courts and gives insight into the Ninth Circuit’s future food-labeling decisions. Continue reading
Today, September 12, the United States Court of Appeals for the Ninth Circuit will hear oral arguments in two class-action food-labeling cases. The issues before the court are similar and the cases arise from nearly identical facts: the plaintiffs allege that the defendants’ product labels are false or misleading in violation of various state laws because they claim to be “natural.” The appeals will also be heard by the same panel—Judges Fletcher, Christen, and Friedland. In considering these two appeals, the Ninth Circuit will have a chance to set a major precedent that could either reduce the flow of food-labeling suits into California-based federal courts or open the spigot even wider.
The similarities between the two cases, Brazil v. Dole Packaged Foods, LLC and Briseno v. ConAgra, Inc., are striking. The plaintiffs filed putative class actions alleging that the defendants violated various statutory and common-law causes of action by labeling some of their products as “All Natural” or “100% Natural.” Brazil claims that Dole’s use of “All Natural” on several of its juices’ labels is false or misleading because the company added ascorbic acid (vitamin C) and citric acid. Both additives occur naturally in the juice products. Similarly, Briseno claims that ConAgra’s “100% Natural” label is false or misleading because the Wesson Oil in question contains genetically modified organisms (GMOs). Continue reading
“Enough is enough.”
That is how Judge Clay D. Land, Chief Judge of the US District Court for the Middle District of Georgia, concluded the first paragraph of a scathing five-page order in the multidistrict litigation (MDL) proceeding In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation. The September 7, 2016 order includes three-and-a-half pages of what Judge Clay himself labeled “Obiter Dictum.” For non-lawyers or those not fluent in Latin, obiter dictum is that part of a judicial opinion that is not necessary to the holding of the case.
Dicta it may be, but those three-and-a-half pages offer a spot-on critique of the MDL process by an experienced judge who has garnered significant criticism from defense-side lawyers for some of his pro-plaintiff rulings in the In re Mentor litigation. Continue reading
Since its inception in the spring of 2010, the WLF Legal Pulse has routinely cast aspersions upon (mostly California-based) class-action lawsuits alleging fraudulent food labeling and the shopping-cart-chasing lawyers who file them. The blog even has a tag devoted entirely to posts on these suits: Food Court.
Of all the lawsuits we’ve discussed here, few cases epitomize the absurdity of this litigation trend better than the recently decided Forouzesh v. Starbucks Corp. Filed not in the “Food Court” (aka the Northern District of California), but rather in the Central District of California, this suit alleged that Starbucks committed, among other wrongs, fraud, false advertising and breach of warranty by misrepresenting the specific number of ounces in an iced drink. In other words a “Grande” iced coffee or tea, which is 16 ounces, actually contains 12 ounces of coffee plus 4 ounces of ice. As reflected by the grainy photos of a Starbucks cup and a Pyrex bowl in the complaint, Forouzesh actually measured this out. He sought to represent a class of California Starbucks iced-drink purchasers and demanded compensatory and punitive damages, and injunctive relief. Continue reading
This past May, a Cook County Associate Judge dismissed 201 Illinois False Claims Act (IFCA) cases at the request of Illinois Attorney General Lisa Madigan. The state’s action is an encouraging, albeit overdue, development in a long-running legal saga where one enterprising lawyer has harnessed the state’s enforcement power to pursue personal financial gain that provides little or no benefit to the public.
Much like its federal equivalent, the IFCA allows private citizens (relators) to file fraud claims on behalf of the state. The fraud must be based on a false claim, typically a violation of a law or regulation. If successful, relators can collect up to 30% of the award plus attorneys’ fees. Continue reading
By Jeryn Crabb, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law
With Spokeo v. Robins the US Supreme Court clarified the requirements necessary for plaintiffs to establish standing in federal court. Federal district courts are only beginning to explore those parameters, but the early applications are generally encouraging in one key area: data-breach class-action litigation.
In Spokeo, Mr. Robins alleged that Spokeo, a “people search engine,” violated the Fair Credit Reporting Act by inaccurately reporting that he was married, employed, and in good financial standing. The Court held that a plaintiff bringing suit under a federal law that defines a statutory violation as harm must allege the existence of a concrete and particularized injury in order to have standing to sue. Continue reading
By Todd Hobbs, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law
In May, the United States Court of Appeals for the Second Circuit upheld the dismissal of a qui tam lawsuit in U.S. ex rel. Polansky v. Pfizer, Inc. Polansky, a former Pfizer Medical Director, brought suit under the federal False Claims Act (FCA) on behalf of the U.S. government. He alleged that Pfizer submitted a false claim for Medicare payment by illegally marketing its product for an off-label use. The Second Circuit held that the complaint at issue failed to allege any off-label promotion and affirmed the district court’s dismissal on that basis. Federal appeals courts have not considered many FCA lawsuits related to off-label marketing allegations, making the Polansky result worth closer review.