Just over forty years ago, Crosby, Stills, Nash & Young came out with their Déja Vu album. Attorneys at Kellogg USA are undoubtedly thinking, “We have all been here before.” 

Froot Loops pre-dated Crosby, Stills, Nash & Young.  I remember taking the Kellogg’s factory tour in Battle Creek and being handed an individual-sized packet at the end of the tour, even before they hit the market.  I was seven years old, but I knew they were cereal not fruit.  Apparently, some other people think otherwise.

 

Ken has already blogged about the related, and dismissed, Crunchberry lawsuit.  At the ABA Business Law Section Spring Meeting last weekend, my friend Teresa Harmon Wilton mentioned the Crunchberry case in her annual round-up of commercial law cases, and mentioned that the decision was based on the prior Froot Loops case.  I looked down at my Blackberry, and that’s when I realized there was an old Froot Loops case but I had just got notice of a new one. 

 

Two old ones, actually.

 

In 2007, the United States District Court for the Central District of California dismissed a claim against Kellogg USA for violations of various California statutes and common law causes of action based on the claim that Froot Loops do not contain fruit. 

 

In 2009, the United States District Court for the Eastern District of California dismissed a claim against Kellogg USA for violations of various California statutes and common law causes of action based on the claim that Froot Loops do not contain fruit.

 

On April 19, a complaint was filed in the United States District Court for the Northern District of California against Kellogg USA for violations of various California statutes and common law causes of action based on the claim that Froot Loops do not contain fruit.
 

There is clearly a pattern here. I would note that there is only one other federal court district in California, the Southern District in San Diego. Unless I missed a case there.

 

In the McKinniss case, the court dismissed claims for:

In the Videtto case, the court dismissed claims for:

  • Violation of the California Unfair Competition Law
  • Violation of the California False Advertising Law
  • Violation of the California Consumer Legal Remedies Act
  • Intentional Misrepresentation
  • Breach of Implied Warranties

In the Werbel complaint, plaintiff seeks damages for:

  • Violation of the California Unfair Competition Law
  • Violation of the California False Advertising Law
  • Violation of the California Consumer Legal Remedies Act
  • Intentional Misrepresentation
  • Breach of Implied Warranties

Each complaint referenced a study by the Strategic Alliance for Healthy Food and Activity Environments that found that foods it claimed suggested the presence of fruit did not in fact contain fruit. The courts have so far not cared much for this study, which doesn’t in any way demonstrate that anyone could be misled by the actual advertising on the package.

 

Raise your hand if you’re surprised at the fact that the same attorneys brought all three cases. Under our justice system, a plaintiff is not bound by the decision of a court to which he or she was not a party. An attorney is held to a different standard under Rule 11 of the Federal Rules of Civil Procedure.  It will be interesting to see if there is anything that comes from expecting the same conditions to lead to a different outcome.