Tag: class

A “Vibe” is Not Enough: Ben & Jerry’s “All Natural” Case Loses Class Certification

You’ll remember the scene from "Casablanca." Ilse (Ingrid Bergman) comes in and Rick (Humphrey Bogart) says, "Your unexpected visit isn’t connected by any chance with the letters of transit. It seems as long as I have those letters, I’ll never be lonely." That’s sort of how I feel about "all natural" product labeling litigation. So … Continue Reading

The FDA’s Reportable Food Registry: Four Burning Questions

I authored the following article that appeared in the April 29, 2011 issue of Food Chemical News: As the clock ticks on the FDA’s 24-hour deadline to report to the FDA’s Reportable Food Registry, a food retailer, manufacturer or supplier is forced to make snap decisions that can profoundly impact business and litigation. Once a … Continue Reading

What to Ask About Recall or Product Contamination Insurance Coverage

If they don’t already have it, I advise my clients to talk with their insurance broker about purchasing recall insurance (otherwise known as product contamination insurance) . For clients who have recall insurance, I advise them to make sure the policy provides the coverage they expect. Recall insurance is a different animal than other policies … Continue Reading

Health Claims Class Actions Set to Explode

Stoel Rives food liability attorney Ken Odza discussed with NutraIngredients-USA.com the significance of a rise in activism from consumer lobby groups combined with food manufacturers pushing the envelope with more aggressive health claims. General Mills recently lost its bid to invalidate class action certification at the Eleventh Circuit of Appeals in a Florida lawsuit involving … Continue Reading

Defeating a Consumer Fraud Putative Class Case Early

Last week at the DRI products liability conference in New Orleans, Lara White from Adams and Reese and I presented "Regulatory Compliance Alone Is Not Enough: Understanding and Mitigating Consumer Fraud Claims." Our presentation dealt with putative class claims aimed at the marketing and labeling of food products. A link to the slide-deck can be … Continue Reading

Strategies to Defeat Putative Class Claims Challenging Labeling and Marketing of Food Products

April 8, 2011 – Scott Rickman from Del Monte, Lara White from Adams and Reese, and I will be talking at the Defense Research Institute (DRI) food law break-out. This event is held in conjunction with the DRI annual product liability conference in New Orleans. Click here for the complete manuscript that we’ve prepared to … Continue Reading

Unintended Consequences of FDA Mandatory Recall Authority?

For years, a debate has raged on the merits of vesting the FDA with mandatory recall powers. Mandatory recall is part of the food safety legislation that may or may not pass in this Congress, so it’s worth discussing. At present, the FDA lacks any power to order a recall. Its only legal authority is … Continue Reading

Denial of Insurance for Consumer Fraud/Lanham Act Claims: Blaming the Product, Not the Advertising?

UPDATE: For those interested in reviewing the Axis policy discussed in the motion, it can be linked here.  I’m often asked in my practice about the availability of insurance coverage for claims by consumers or competitors that products are deceptively labeled, marketed or advertised. Those interested in the topic should follow the litigation between Welch Foods, … Continue Reading

One Lesson From Fitzpatrick v. General Mills: Class Cert. Tough To Oppose In Consumer Fraud Cases When Plaintiffs Don’t Have To Demonstrate Individualized Reliance/Causation

Last month Judge Paul Huck of the U.S. District Court for the Southern District of Florida granted in part and denied in part class certification on claims brought in Fitzpatrick v. General Mills. Judge Huck granted class certification on claims asserted under Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA) but denied class certification for claims … Continue Reading

Preemption v. Plausibility: Will There Be More or Fewer Successful Consumer Fraud Suits?

Products Liability Law360 ran a piece this week entitled “Suits Over Deceptive Food Marketing Likely To Increase” (unfortunately, this is a subscription-only site) authored by Liz McKenzie. The article discusses rightly how increased FDA enforcement action may lead plaintiffs attorneys to file “piggy-back” putative class actions. For example, it took just 13 days following the … Continue Reading

Sodium Putative Class Action Suits to Become Epidemic?

Following the putative class suit filed last month in New Jersey by the Center for Science in the Public Interest (CSPI) against Denny’s, a similar suit was filed in Illinois (apparently CSPI is not directly involved in this action). The Illinois complaint can be found here. Like the New Jersey complaint, the Illinois action alleges … Continue Reading

Facts Alleged in CSPI Sodium Suit Incongruent with Claims Asserted

Thought to be the first putative class action against a restaurant chain related to disclosure of sodium content on menus, Center for Science in the Public Interest (CSPI) has filed what appears to be a test case against Denny’s. Best guess is the case will fail on its merits (though for CSPI, success in litigation may not be the … Continue Reading

Energy Drink Maker Sued Over Alleged Health Risks

The maker of Redline energy drinks has been sued in federal court in California.  The plaintiff, Zack Aaronson, is seeking class action status for his lawsuit against Vital Pharmaceuticals, Inc. (operating under the trademark VPX). The plaintiff claims that VPX failed to adequately warn consumers of potential side effects and health risks associated with consuming … Continue Reading

Judge Denies Class Action Status in McDonald’s French Fry and Hash Brown Litigation

A lawsuit claiming that McDonald’s deceived the public about ingredients in its french fries and hash browns will not proceed as a class action. A federal judge in Chicago has denied the plaintiffs’ motion for class certification, characterizing the proposed class and subclasses as “too indefinite and overbroad.” According to the court’s opinion, the potato suppliers … Continue Reading

Alaska Unfair Trade Practices and Consumer Protection Statute

As discussed previously on this blog, the ABA Section of Litigation, Products Liability Committee will soon publish its 50-state survey on consumer protection statutes. In addition to the chapter on Washington, Bryan Anderson and I also coauthored the Alaska chapter.   As with Washington, the Alaska statute is quite broad. See AS § 45.50.471-.561. A … Continue Reading

Washington Consumer Protection Law

The ABA Section of Litigation, Products Liability Committee will soon publish its 50-state survey on consumer protection statutes. Bryan Anderson and I coauthored the chapter for the state of Washington. As described in our article, Washington’s Consumer Protection Act, RCW 19.86.010, et seq., is quite broad:   The Act is modeled after federal statutes, primarily the … Continue Reading

Another High-Profile California Labeling Case

Center for Science in the Public Interest (CSPI) recently filed a putative class action in federal court in the Northern District of California claiming that Glacéau’s VitaminWater is mislabeled under California law. This suit comes on the heels of the recent Ninth Circuit decision that remanded the Gerber foods case. We previously discussed the Gerber … Continue Reading
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