FB Digest November 2021

FOOD BEVERAGE D I G E S T N O V E M B E R 2 0 2 1 | 9 Procedural Posture: Granted with leave to amend Court Doesn’t Bite on FlounderingTuna Sandwich Allegations Amin v. Subway Restaurants Inc ., No. 4:21-cv-00498 (N.D. Cal. Oct. 7, 2021). This lawsuit at first made quite the splash, reeling in readers with allegations that a national sandwich chain’s tuna sandwiches and wraps “entirely lack any trace of tuna as a component, let alone the main or predominant ingredient.” But the plaintiffs recently cut bait on their fake fish claim and now are trawling with claims that the defendant misleadingly labels its tuna products as containing 100% sustainably caught skipjack and yellowfin tuna. Seems a little fishy, doesn’t it? Equally skeptical, the district court dismissed the plaintiffs’ claims under Rule 9(b)’s heightened pleading standard. It concluded that the plaintiffs failed to specify the specific statements they saw, when they saw them, and where they saw them. The plaintiffs’ reliance allegations, the court reasoned, also flopped. The case also did not warrant a relaxed pleading standard because the plaintiffs— not the defendants—supposedly possessed the missing information of the statements that they saw and relied on. However, the district court granted the plaintiffs leave to amend their complaint, and they filed their third complaint in the case on November 8, 2021. Maybe the third time will be the charm for the plaintiffs to land the big one. Motions for Class Certification Procedural Posture: Denied Vanilla Expert Survey Puts Class Cert Bid on Ice Vizcarra v. Unilever United States Inc ., No. 4:20-cv-02777 (N.D. Cal. Oct. 27, 2021). Readers of this Digest know that judges are increasingly likely to give implausible vanilla suits the cold shoulder. Many have already been dismissed on the pleadings. Now, one vanilla suit challenging the labeling of Breyer’s branded natural vanilla ice cream—that survived a pleadings challenge—failed at class certification. At this point, the allegations should sound familiar. The plaintiff alleged that the defendant misleadingly labels its ice cream as “Natural Vanilla,” when in reality some of the vanilla flavor allegedly is derived from non-vanilla sources. The plaintiff moved to certify the class, relying on an oft-relied-upon survey expert to show that common issues (like materiality and consumer perception of the label) predominated in the case. The defendant moved to exclude the expert, arguing that the expert’s survey and proposed conjoint analysis could not test for deception, test for materiality because it does not measure consumer purchasing decisions in market conditions, and could not match the plaintiff’s theory of liability (i.e., the effect of the so-called “Vanilla Representations”). Though the district court declined to strike the expert report, it naturally concluded that “the opinions of [the plaintiff’s expert] … have no persuasive value in the context of the class certification analysis, because [he] did not specifically test the effect of the Vanilla Representations on consumers’ beliefs or purchasing decisions, or on whether consumers paid any price premium attributable to such alleged misrepresentations.” In finding the commonality requirements for certification were not met, the court also noted that there is no fixed meaning for “natural” and that the plaintiff did not show the representations could be deceptive as a matter of law. The district court’s order, however, will offer only cold comfort to the defendant. Rather than have the suit melt away, the district court denied class certification without prejudice, and the plaintiff has advised the court she intends to move for class certification again by June 2022. Settlements A Bittersweet End for Chocolate Origin Suit? Hesse v. Godiva Chocolatier Inc ., No. 1:19-cv-00972 (S.D.N.Y. Oct. 12, 2021). Candy lovers who alleged that they were deceived by a chocolatier have reached a deal with the company to settle their claims. In 2019, consumers who had purchased the company’s chocolate filed suit, alleging that the chocolatier deceptively promoted its chocolateproducts asmade in Belgium through the inclusion of“Belgium1926”on the label—when in reality, the candy is made in Pennsylvania. Godiva moved to dismiss the case, arguing that a reasonable consumer would understand that the reference to Belgium was only an indication of the place and year of the company’s founding. A federal judge, however, declined to dismiss the suit, prompting the parties to strike this settlement, which, if approved by the district court, will provide up to $15 million for all valid claims and $5 million in attorneys’ fees. Parties Agree to Stop the Bleeding in“Healthy Heart”Challenge Hanson v. Welch Foods Inc. , No. 3:20-cv-02011 (N.D. Cal. Oct 4, 2021). Consumers challenging the labeling on the defendant’s grape juice products recently filed a motion for preliminary approval of class settlement. That challenge, filed in March 2020, alleged that the defendant’s grape juice representations misled consumers into believing the products supported heart health when they in fact increase the risk of heart disease. Under the proposed settlement, the defendant will agree to pay $1.5 million and refrain for at least two years from using the challenged “helps support a healthy heart,”“helps promote a healthy heart,” or substantially identical claims on the challenged products. Through the settlement, the putative class will be entitled to claim $1 per product purchased, for up to 12 products, for products purchased between March 23, 2016 and October 1, 2021.