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Those class action mavens among our readers will want to check out the commentary article by my colleagues James P. Muehlberger, Timothy E. Congrove and Daniel E. Cummings.

The paper is “Class Actions -Will The Supreme Court Finally Resolve The Circuit Split Over Rule 23(C)(4) Issue Class Actions?”

You can find it in the June…

In a much anticipated decision, the Supreme Court unanimously (8-0 with 2 concurrences) decided that certain resident plaintiffs injured by products originally manufactured and sold elsewhere could sue in their home states a defendant which was a nationwide company if it “purposefully avail[ed] itself of the privilege of conducting activities within the forum State.”  Ford…

The Sixth Circuit recently affirmed a trial court’s decision to dismiss a proposed multi-state class action alleging that a car maker sold vehicles with cracked dashboards.  James Smith et al. v. General Motors LLC, No. 19-1614, 2021 WL 631475 (6th Cir. 2/18/21).  According to Plaintiffs, that defect produces dashboard cracking that could cause severe injuries…

A California federal court dismissed a complaint alleging that a company misled  consumers concerning the properties of its Splash-Less bleach cleaner.  See Gudgel v. The Clorox Co., No.  4:20-cv-05712 (N.D. Calif. 1/21/21 ). Plaintiff filed this suit on behalf of herself and a putative class, asserting five causes of action against Clorox: (1) violation of…

A New York federal court has rejected yet another “vanilla” complaint.  In Cosgrove v. Blue Diamond Growers, No. 1:19-cv-08993 (S.D. N.Y. 12/17/20), the court dismissed a proposed class action alleging that the defendant improperly labelled its vanilla almond milk product finding that the company did not mislead consumers with the product’s vanilla flavor label.

Plaintiffs…

A Minnesota federal court has dismissed a proposed class action alleging household sealants turn yellow despite being advertised as “crystal clear.” Ehlis v. DAP Prod., Inc., No. 20-CV-1872 (PJS/ECW), 2021 WL 83269, at *1 (D. Minn. Jan. 11, 2021).

This putative nationwide class brought a host of fraud and warranty claims against DAP,…

Let’s start the New Year off right.  It’s not often we find ourselves agreeing with the Ninth Circuit, especially in the class action realm.  But the Ninth Circuit recently upheld the denial of class certification to a group of dog owners alleging a pet food maker misled buyers about the alleged presence of heavy metals in its food products. See Reitman v. Champion Petfoods USA, Inc., 830 F. App’x 880 (9th Cir. 2020).

Twelve named plaintiffs purported to represent 12 state-specific classes. They alleged that defendant misrepresented the quality and content of the dog food in its label.  In earlier proceedings, the proposed class was narrowed to California residents who purchased the dog food since 2014. The plaintiffs alleged that defendants failed disclose that the dog foods contain levels of arsenic, mercury, lead, cadmium and/or BPA, which are known to pose health risks to humans and animals, including dogs. Plaintiffs also alleged defendants were knowingly, recklessly, and/or negligently selling certain of the contaminated foods containing pentobarbital.  This allegedly rendered false any statement that the ingredients are biologically appropriate. Finally, defendants also allegedly misled consumers by marketing that their dog food is made from fresh and regional ingredients and is never outsourced. Plaintiffs asserted state-law claims on behalf of the class: (1) violations of California’s Consumer Legal Remedies Act (“CLRA”),  (2) violations of California False Advertising Law (“FAL”),  (3) violations of the Unfair Competition Law (“UCL”), (4) breach of express warranty; (5) breach of implied warranty of merchantability; (6) fraudulent misrepresentation; (7) fraud by omission; (8) negligent misrepresentation; and (9) unjust enrichment.

The district court found that common questions of law or fact did not predominate, finding that plaintiffs were not entitled to a presumption of reliance because plaintiffs cannot show that members of the class were exposed to the same misrepresentations. Even if there was a common general “message” on the products, numerous issues requiring individualized attention would predominate over any common questions. Even the specific phrases at issue required context that differs from bag to bag. Reitman v. Champion Petfoods USA, Inc., No. CV181736DOCJPRX, 2019 WL 7169792, at *1–2 (C.D. Cal. Oct. 30, 2019).

Moreover, the variations went to the very heart of plaintiffs’ claims: Whether a reasonable person would be deceived by the message. That question will necessarily require an individualized inquiry into the specific formula at issue i each brand extension because each formula is unique and has different representations on the packaging that give context to the overall message. Here, the misrepresentations at issue were subject to variations depending on the formula purchased by the proposed class member; every package differed and the changes would require the court to determine what combinations of labels were visible before determining whether that combination is deceiving to a reasonable consumer. The district court recognized that every package also differs in providing additional statements that give context to the overall theme such that an individualized determination must be made bag by bag to determine whether a reasonable customer would be deceived. Therefore, plaintiffs did not meet Rules 23(b)(3)’s predominance requirements as to their UCL, FAL, and CLRA claims.
The Ninth Circuit

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Continue Reading Ninth Circuit Affirms Denial of Class Claims in Pet Food Case

Our readers know that vanilla-based litigation remains active.  Yet another proposed class claim fell short in Howard Clark v. Westbrae Natural Inc., No. 3:20-cv-03221 (N.D. Calif. 12/1/20).  Plaintiff  alleged that the use of the word “vanilla” on the label of Westbrae Natural, ’s organic unsweetened vanilla soymilk misrepresents to consumers that the product’s vanilla flavor…