“Vanilla” Ice Cream Deceptive Labeling Case Melts on Motion to Dismiss

A federal court in New York recently granted a motion to dismiss claims that ice cream labeled “vanilla” misleads consumers into believing the product’s flavor comes exclusively from vanilla beans or extract, when in fact other natural flavors contribute to the vanilla taste. The decision may be a harbinger of what is to come in similar cases challenging the label description of vanilla and other flavors in products ranging from ice cream to soy milk to energy drinks. The decision also shows that alleged regulatory violations and product testing do not necessarily support a plausible claim of consumer deception.

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The Ship Has Sailed on Plaintiffs’ Efforts to Recover for Mere Fear of Contracting COVID-19

On February 21, 2020, the cruise ship Grand Princess embarked from San Francisco, headed to Hawaii.  Among the ship’s 3,533 passengers and crew were 62 people who had been exposed to COVID-19 on the ship’s immediate prior trip to Mexico.  The Hawaii voyage was curtailed and the ship docked off the cost of California for two weeks, during which passengers were confined to their rooms and two dozen people tested positive.  A number of personal injury lawsuits followed, the majority of which have been coordinated before Hon. R. Gary Klausner in the U.S. District Court for the Central District of California.

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California [Again] Confronts the High Cost of Litigation Uncertainty

The first appellate shoe has dropped in the litigation involving the herbicide Roundup, Johnson v. Monsanto Co., decided July 20, 2020, by California’s 1st District Court of Appeal, Division One. We discussed the verdict and the trial court’s post-trial rulings here, and we now follow through with an update.

Initially, the price tag for allowing questionable science into the courtroom, as measured by this verdict, has been reduced. The court of appeal lowered the compensatory damages award from $39 million to about $10.25 million, concluding the jury had improperly awarded noneconomic damages that plaintiff would likely never suffer. Because plaintiff’s counsel had argued to the jury that plaintiff’s Non-Hodgkins Lymphoma had reduced his future life expectancy to two years, the jury could not award pain and suffering damages beyond that two-year span. And, agreeing with the trial court that constitutional limits required a 1:1 ratio between compensatory and punitive damages, the court slashed the $78 million punitive award to about $10.5 million.

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Deceptive Labeling Claims Based on Trace Amounts Sent to the Dog House

In dismissing a plaintiff’s claims regarding dog food ingredients, the U.S. District Court for the Eastern District of Wisconsin confirmed the common-sense principle that manufacturers need not list anything and everything that could have possibly made it into a product as an “ingredient.”

In Weaver v. Champion Petfoods USA Inc., et al., case no. 18-cv-1996-JPS, a Wisconsin resident claimed that Champion Petfoods USA Inc. and Champion Petfoods LP deceptively marketed their dog food products. The plaintiff took issue with multiple characteristics of defendants’ products, including that the product packaging stated the dog foods adhered to a “biologically appropriate nutritional philosophy,” were made with “fresh” and “regional” ingredients, and were “never outsourced.” The plaintiff asserted claims for fraud by omission, negligence and violation of the Wisconsin Deceptive Trade Practices Act. The defendants moved for summary judgment.

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New Jersey Supreme Court Pumps the Brakes on Use of Aggregate Proof of Damages in Kia Class Action

In Little v. Kia Motors America, Inc., docket no. A-24-18, the New Jersey Supreme Court recently set out the examination New Jersey courts must undertake before admitting aggregate proof of damages, rather than individualized proof, in a class action. Siding with defendant Kia in a vehicle defect suit, the Court ruled that admission of aggregate proof of damages at trial was inappropriate because an unknown number of class members would have received a windfall, and the formula used to estimate such damages was unreliable. This case reviews the key principles courts and litigants should consider when choosing between individualized or aggregate proof of damages in a class action.

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