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In a unanimous, published decision, a three-judge panel of the Ninth Circuit affirmed the dismissal of a a putative class action brought by a plaintiff-consumer who alleged claims arising when Diamond Foods allegedly included partially hydrogenated oils as an ingredient in Pop Secret popcorn. See McGee v. S-L Snacks Nat’l, 982 F.3d 700 (9th Cir. Dec. 5, 2020).

In sum, the panel affirmed the district court’s dismissal for lack of constitutional Article III standing as the plaintiff did not plausibly allege that, as a result of her purchase and consumption of Pop Secret, she suffered economic or immediate physical injury, or that she was placed at substantial risk of adverse consequences. Concerning plaintiff’s alleged economic injury, the panel held that plaintiff had not alleged that she was denied the benefit of her bargain, particularly given the labeling disclosure that the product contained artificial trans fat.

The panel also held that plaintiff failed to allege an economic injury based on an overpayment theory.
Plaintiff did not allege that Pop Secret contained a hidden defect, or that Pop Secret was worth objectively less than what she paid for it. Concerning plaintiff’s alleged present physical injury, the panel held that plaintiff had not plausibly alleged that she suffered physical injuries due to her consumption of Pop Secret. Concerning plaintiff’s alleged future physical injury, the panel held that plaintiff had not plausibly alleged that her consumption of Pop Secret substantially increased her risk of disease.

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Continue Reading Everyone Knows Popcorn is (Trans-) Fattening

Vanilla in common parlance denotes, well, common.  And indeed, vanilla is one of the most common ingredients in food, whether as a primary flavor or a component of another flavor. But for centuries it was rare, a delicacy for the rich.  And even after new fertilization methods greatly expanded output, demand exceeded supply.  So, as…

In the class action context, the named plaintiffs as class representatives must allege and show that they personally have been injured, not just that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.  If the named plaintiff cannot establish Article III standing, she may not seek relief on behalf of herself or any other class member, and it will lead to dismissal of the action for lack of subject matter jurisdiction. As the 11th Circuit recently noted, see Muransky v. Godiva Chocolatier, Inc., — F.3d —- , No. 16-16486 & 16-16783, 2020 WL 6305084 (11th Cir. October 28, 2020), the question whether pleading merely that a statutory requirement was violated is enough to establish standing, even when the plaintiff suffered no injury from the alleged violation, was a question that had bedeviled litigants, scholars, and lower courts.  At least, up until Spokeo Inc. v. Robins, 136 S. Ct. 1540, 194 L.Ed.2d 635 (2016), in which the Court explained that a party does not have standing to sue when it pleads only the bare violation of a statute.

FYI, defendant Godiva began as a family business nearly 100 years ago in Brussels, and yes, was named after the legend of Lady Godiva and the associated values of boldness, generosity, and a pioneering spirit.  Like StarWars, this legend started over a tax protest.  Anyway, in 1968, Godiva was appointed official chocolatier to the Royal Court of Belgium. Great stuff.

Article III standing consists of three elements:  an injury in fact, that is fairly traceable to the challenged conduct of the defendant, and that is likely to be redressed by a favorable judicial decision.  These elements are an indispensable part of the plaintiff’s case.

In Muransky, plaintiff had pleaded the case as a pure statutory violation of the the Fair and Accurate Credit ‎Transactions Act (“FACTA”). He alleged that Godiva chocolate stores had printed too many credit card digits on hundreds of thousands of receipts over the course of several years, and pointed out that those extra numbers were prohibited under a federal law apparently aimed at preventing identity theft. His complaint disclaimed any recovery for actual damages.
Continue Reading Court of Appeals Decides Important Standing Issue

For the second time, a federal court has rejected a complaint against defendants on behalf of a putative class, alleging defendants misled consumers by selling apple juice and applesauce products with the representation “Natural” and/or “All Natural Ingredients.”  Plaintiffs asserted five causes of action, all revolving around the claim the products contained trace, legal amounts

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Our long time readers know that medical monitoring is a frequent topic here, probably because as a young (younger?) lawyer we got an opportunity to help try a medical monitoring class action to defense jury verdict.

In the years since then, several states have weighed in on the availability of medical monitoring, which refers to future medical testing of a plaintiff who has not suffered a manifest traditional physical injury, but who has been exposed to a hazardous substance or product and claims to therefore be at increased risk of contracting a future disease or injury; the plaintiff is then monitored periodically with appropriate medical testing to facilitate early detection and diagnosis of that possible future consequence.  Medical monitoring thus turns on the notion of latency, the time between exposure and manifestation of a symptomatic or detectable injury. See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6th Cir. 2005) (“A medical monitoring award aids presently healthy plaintiffs who have been exposed to an increased risk of future harm to detect and treat any resultant harm at an early stage.”).

The general trend has been against the recognition of the claim/remedy, and the latest word on the subject comes from the Illinois Supreme Court in a proposed proposed class action by Chicago residents claiming the city failed to warn them of lead exposure in their drinking water. Berry v. City of Chicago, 2020 IL 124999, 2020 WL 5668974  (Ill. Sept. 24, 2020).
Continue Reading Illinois Rejects Medical Monitoring Too

Today’s case is part of a long line of proposed consumer class actions in which the ingredient lists and labels are perused for strained readings and interpretations lacking in common sense. Plaintiff brought a proposed class action alleging that defendant’s branding and advertising of its  “EverSleek Keratin Caring” products was false and misleading.  Devane v.

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Roy Hobbs returned to baseball after 16 years; Grover Cleveland returned to the White House after a four year hiatus, and Gen. MacArthur returned to the Philippines in 1944.  Perhaps with less drama and certainly less fanfare, your humble blogger returns with today’s post on MassTortDefense.

A California federal judge recently denied the motion by customers of a San Francisco fertility clinic seeking class certification of their claims alleging that a defective storage tank damaged their embryos.  The case, In Re Pacific Fertility Center Litigation, No. 3:18-cv-01586, 2020 WL 3432689 (N.D. Cal. June 23, 2020), is interesting for the court’s treatment of superiority and damages issues in the class context.

Pacific Fertility provides fertility services including egg and embryo cryopreservation. Cryopreservation involves preservation of tissue using cooling techniques. In 2018, there was an apparent incident where one of the storage tanks lost coolant for a period of time. At the time of the incident, the tank contained eggs and embryos from 600+Pacific Fertility customers. All these eggs and embryos were exposed to the temperature increase. Plaintiffs were notified, and eventually sued.

We will skip the procedural history up to the point where Plaintiffs sought certification of a class of: All individuals, and their reproductive partners, whose eggs or embryos were in Tank 4 at Pacific Fertility Center in San Francisco, California on the date of the incident.
Continue Reading Class Certification Denied in Cryopreservation Litigation

The Supreme Court has decided a case involving injury-in-fact and standing issues that may have significant impacts on class actions.  See Spokeo Inc. v. Robins, No. 13-1339 (U.S. 5/16/16).

Spokeo, Inc. operated a “people search engine,” which searches a wide spectrum of databases to gather and provide personal information about individuals to a variety…