N.D. Cal.

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We recently blogged about one of the recent “class standing” decisions holding that a named plaintiff has standing to represent a class on false advertising claims challenging products the named plaintiff never purchased with labels the named plaintiff never saw. According to that decision, so long as the products that were purchased by the named plaintiff were “sufficiently similar” to the products purchased by the putative class, the named plaintiff had the requisite “sufficient ‘personal stake’ in the litigation” for standing purposes. For example, a named plaintiff who purchased only a few varieties of green tea had standing to sue…
Continue Reading I May Have “Standing” To Sue For False Advertising Of Products I Didn’t Purchase, But Do I Satisfy The “Typicality” Requirement Of Rule 23?

As we have blogged before, the food and beverage industry is facing a tidal wave of class action litigation alleging false advertising under state consumer protection laws. We monitor hundreds of these cases, which often present a similar standing issue – the class representative has purchased one product, say Ben & Jerry’s All Natural Chunky Monkey Ice Cream, which he says was falsely advertised as “all natural,” but seeks to represent a nationwide class of consumers challenging all varieties of Ben & Jerry’s ice cream marketed as “all natural,” including, for example, Chubby Hubby.

One of the latest decisions…
Continue Reading “Sure I Didn’t Buy It, But I’m Suing for False Advertising Anyway!”

The federal Food Drug and Cosmetic Act (“FDCA”)—along with the implementing regulations promulgated by the FDA—sets out a detailed national standard for much of what appears on food and beverage labeling. See 21 U.S.C. §§ 301, et seq.; 21 C.F.R. §§ 101, et seq.; Pom Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170, 1175 (9th Cir. 2012). This national labeling law expressly preempts states from enacting different requirements for labels, including requirements imposed by courts under the guise of redressing a “misleading” or “fraudulent” label. 21 U.S.C. § 343-1; Turek v. Gen. Mills, Inc.,…
Continue Reading Are State-Law Claims for Violating Federal Food Labeling Law Preempted?

A key question in many privacy class actions is whether the plaintiff has suffered an injury sufficient to confer Article III standing. Quite a number of these actions have been dismissed for lack of standing. The plaintiffs’ bar therefore has been brainstorming new theories of injury in the hope that one of them will be deemed sufficient to allow the case to remain in court (and open the door to expensive discovery). A recent order by Judge White of the Northern District of California in Yunker v. Pandora Media, Inc. addresses—and rejects—some of these theories.

The lawsuit involves Pandora’s mobile…
Continue Reading Do Plaintiffs Have Standing To Sue Over Alleged Reduction In The Value Of Their Personal Data?

Although the class action bar in general is eagerly awaiting the Supreme Court argument in Comcast Corp. v. Behrend (No. 11-864)—which will be argued November 5th—antitrust practitioners in particular have a keen interest in the case. The issue presented is whether a district court may certify a class action without first resolving whether an expert witness’s testimony that the case can be tried on a class-wide basis passes muster under Daubert, the standard for admissibility at trial.
Continue Reading Comcast Corp. v. Behrend: Upcoming Supreme Court Case Is Critical to Antitrust Class Actions

In recent years, courts generally have cast a more skeptical eye on fee requests made by plaintiffs’ counsel who have negotiated a class action settlement. In the past, courts often rubberstamped outlandish fee requests. In fact, settlements awarding class counsel “excessive attorneys’ fees with little or no recovery for the class members themselves” were the very first “abuse” identified in the findings accompanying the Class Action Fairness Act (pdf).

But even today, courts do not always slash the fees requested by counsel for the settlement class. In one recent wage-and-hour class action, Lemus v. H&R Block Enterprises LLC (pdf) (N.D.
Continue Reading What Are Courts Doing With Fee Requests Made in Connection with Class Settlements?

There should be little wonder why many plaintiffs’ lawyers hate CAFA: By and large, federal district courts take their obligation under Federal Rule of Civil Procedure 23(e) to police class settlements seriously, which generally means lower fee awards for plaintiffs’ lawyers. The most recent example is Ko v. Natura Pet Products, Inc. (N.D. Cal. Sept. 10, 2012).

Ko is a putative nationwide class action alleging that a pet-food maker misrepresented that the ingredients it uses are fit for human consumption. The parties eventually reached a settlement under which the defendant would alter its advertising and pay the class…
Continue Reading Ko v. Natura Pet Prods., Inc.: District Court Approves Settlement, But Slashes Attorneys’ Fees And Incentive Award

The plaintiffs’ bar often uses adventuresome choice-of-law arguments to attempt to grease the skids towards certification of nationwide classes.  Earlier this year, in a blockbuster decision, the Ninth Circuit rejected one of plaintiffs’ key arguments in Mazza v. American Honda Motor Co. (pdf), 666 F.3d 581 (9th Cir. 2012).  In that case, the plaintiffs had argued that California consumer-protection law should apply to the claims of all putative class members nationwide because the alleged wrongdoing supposedly emanated from that state.  The Ninth Circuit held that the plaintiffs’ approach would contravene fundamental principles of federalism by ignoring the materially different consumer protection laws of the other states where the challenged transactions actually occurred.  (Mayer Brown represented defendant Honda; here is our report on the decision.)

Since then, plaintiffs in consumer false advertising cases have scrambled to find ways to answer Mazza. One tactic—used frequently against food companies—is to bring nationwide class claims under the federal Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. §§ 2301 et seq. Plaintiffs assumed that the existence of a federal claim—allowing the entire nationwide class’s claims to be evaluated under federal law—would do the trick. Plaintiffs thus often allege that statements on a product label, such as “All-Natural Ingredients,” constitute a written warranty by the manufacturer under the MMWA and that a breach of that warranty occurred when consumers did not realize the advertised benefits.Continue Reading Class Action Bar Targets Food Companies for False Advertising Lawsuits, Using Magnuson-Moss Warranty Act to Try to Evade Ninth Circuit’s Mazza Decision