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Food and Beverage Class Actions:Litigating False Advertising, Labeling,Slack-Fill Packaging or Food Safety ClaimsNavigating Issues of Ascertainability, Predominance, Preemption, Standing and More

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WEDNESDAY, JULY 13, 2016

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Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

David T. Biderman, Partner, Perkins Coie, Los Angeles

Michael R. Reese, Founder, Reese, New York

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LITIGATING CLASS ACTIONS IN THE FOODAND BEVERAGE INDUSTRY

Presenters:Michael R. Reese, Esq.

David Biderman, Esq.

Michael R. Reese- Lead counsel in numerous, multi-milliondollar food class action settlements inthe United States

- Adjunct law professor in New Yorkteaching on topics of class actions andfood law and frequent lecturer at foodlaw conferences in U.S.

- Author of Typical Claims and Defenses inClass Action Food Litigation,ABA Health Lawyer Journal, April, 2016.

David T. Biderman- More than 30 years ofexperience defending food andother companies in federal andstate courts

- Counsel in a significantnumber of defense victoriesincluding Turek v. GeneralMills, Inc. and In re CheeriosCereal Litigation

- Regular contributor to FoodLitigation News

Michael R. Reese- Lead counsel in numerous, multi-milliondollar food class action settlements inthe United States

- Adjunct law professor in New Yorkteaching on topics of class actions andfood law and frequent lecturer at foodlaw conferences in U.S.

- Author of Typical Claims and Defenses inClass Action Food Litigation,ABA Health Lawyer Journal, April, 2016.

David T. Biderman- More than 30 years ofexperience defending food andother companies in federal andstate courts

- Counsel in a significantnumber of defense victoriesincluding Turek v. GeneralMills, Inc. and In re CheeriosCereal Litigation

- Regular contributor to FoodLitigation News

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Agenda• Part I - Introduction

• Part II- Typical Claims and Latest Filing Trends- False Advertising and Mislabeling- Slack-Fill- Food Safety

• Part III - Litigation Strategies and Defenses- Plaintiffs’ Perspective- Defendants’ Perspective

• Part IV - Future Trends and Predictions

• Part I - Introduction

• Part II- Typical Claims and Latest Filing Trends- False Advertising and Mislabeling- Slack-Fill- Food Safety

• Part III - Litigation Strategies and Defenses- Plaintiffs’ Perspective- Defendants’ Perspective

• Part IV - Future Trends and Predictions

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Part IIntroduction – A Brief Background• Explosion in “food” cases in the United States• Increased awareness of:

– Food-related illnesses– Societal problems

• Reflected in U.S. media and other sources:

• Explosion in “food” cases in the United States• Increased awareness of:

– Food-related illnesses– Societal problems

• Reflected in U.S. media and other sources:

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Introduction (cont’d)

• Common theme of growing mistrust anddistrust of food system; who should control?

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Introduction (cont’d)

• U.S. Arenas for debate:Courts & Legislative Bodies– Justice is the tolerable accommodation

of the conflicting interests of society,and I don't believe there is any royalroad to attain such accommodationconcretely. -Judge Learned Hand

– Some circumstantial evidence is verystrong, as when you find a trout in themilk. -Henry David Thoreau

• U.S. Arenas for debate:Courts & Legislative Bodies– Justice is the tolerable accommodation

of the conflicting interests of society,and I don't believe there is any royalroad to attain such accommodationconcretely. -Judge Learned Hand

– Some circumstantial evidence is verystrong, as when you find a trout in themilk. -Henry David Thoreau

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Introduction (cont’d)Number of Filings in the United States

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PART II

TYPICAL CLAIMS AND LATEST FILING TRENDS

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Food Class Actions: Typical ClaimsMOST OF THESE CASES ALLEGE VIOLATION OF STATE CONSUMER PROTECTION LAWS.

Food claims are often brought under state law equivalents of 15 U.S.C. §45(a)(1) thatprohibits unfair or deceptive acts or practices in or affecting commerce.

- California’s Consumer Legal Remedies Act, Cal Civ. Code P. §§1750-1784; New York GeneralBusiness Law §349; and, Florida Statute §§ 501.201-501.213 are some of the morefrequently asserted consumer protection claims.

“[T]hese laws prohibit ‘not only advertising which is false, but also advertising which although true, iseither actually misleading or which has a capacity, likelihood or tendency to deceive or confuse thepublic.’” Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (Cal. 2002); Williams v. Gerber Products Co., 552 F.3d934, 938 (9th Cir. 2008)(same); see also Ackerman v. Coca-Cola Co., CV-09-0395(JG), 2010 WL 2925955(E.D.N.Y. July 21, 2010)(same for New York consumer protection claim); Rollins, Inc. v. Butland, 951 So.2d 860 (Fla. 2d DCA 2006)(same for Florida consumer protection claim).

MOST OF THESE CASES ALLEGE VIOLATION OF STATE CONSUMER PROTECTION LAWS.

Food claims are often brought under state law equivalents of 15 U.S.C. §45(a)(1) thatprohibits unfair or deceptive acts or practices in or affecting commerce.

- California’s Consumer Legal Remedies Act, Cal Civ. Code P. §§1750-1784; New York GeneralBusiness Law §349; and, Florida Statute §§ 501.201-501.213 are some of the morefrequently asserted consumer protection claims.

“[T]hese laws prohibit ‘not only advertising which is false, but also advertising which although true, iseither actually misleading or which has a capacity, likelihood or tendency to deceive or confuse thepublic.’” Kasky v. Nike, Inc., 27 Cal. 4th 939, 951 (Cal. 2002); Williams v. Gerber Products Co., 552 F.3d934, 938 (9th Cir. 2008)(same); see also Ackerman v. Coca-Cola Co., CV-09-0395(JG), 2010 WL 2925955(E.D.N.Y. July 21, 2010)(same for New York consumer protection claim); Rollins, Inc. v. Butland, 951 So.2d 860 (Fla. 2d DCA 2006)(same for Florida consumer protection claim).

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Filing Trends by Jurisdiction

•

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Typical Claims – False Advertising/Mislabeling

• “Natural” Cases– “Non-natural” Ingredients

– “GMO” IngredientsCorn; Soy; Sugar Beets

• “Natural” Cases– “Non-natural” Ingredients

– “GMO” IngredientsCorn; Soy; Sugar Beets

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Typical Claims - Slack-Fill

McCormick’s Pepper StarKist Tuna

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Typical Claims – Health/Safety

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Typical Claims – Health/Safety (cont’d)• FDA Warning Letters

– Kind Bars, March 17, 2015“Your Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind PlusPeanut Butter Dark Chocolate + Protein…products are misbranded…[because they] bearthe claim “Healthy and tasty, convenient and wholesome””

– Kind Bars, May 10, 2016“In our discussions with KIND, we understood the company’s position as wanting to use“healthy and tasty” as part of its corporate philosophy, as opposed to using “healthy” inthe context of a nutrient content claim. The FDA evaluates the label as a whole and hasindicated that in this instance it does not object.”

• FDA Warning Letters– Kind Bars, March 17, 2015“Your Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind PlusPeanut Butter Dark Chocolate + Protein…products are misbranded…[because they] bearthe claim “Healthy and tasty, convenient and wholesome””

– Kind Bars, May 10, 2016“In our discussions with KIND, we understood the company’s position as wanting to use“healthy and tasty” as part of its corporate philosophy, as opposed to using “healthy” inthe context of a nutrient content claim. The FDA evaluates the label as a whole and hasindicated that in this instance it does not object.”

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Typical Claims – Health/Safety (cont’d)

• Failure to warn– Alleges ingredients unsafe/carcinogenic– UCL, FAL, and CRLA class claims (sometimes

grounded in Prop 65)– 4-MEI in soda and malt beverages– Arsenic in wine– Partially-Hydrogenated Oils

• Failure to warn– Alleges ingredients unsafe/carcinogenic– UCL, FAL, and CRLA class claims (sometimes

grounded in Prop 65)– 4-MEI in soda and malt beverages– Arsenic in wine– Partially-Hydrogenated Oils

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Filing Trends by Category

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PART III

TYPICAL PLAINTIFF LITIGATION STRATEGIESAND DEFENSES

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Food Class Actions:Important Cases

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Jurisdiction; Role of Class Action Device

MOST OF THE CASES ARE BROUGHT AS CLASS ACTIONS IN FEDERAL COURT.

- Class actions allow for the claims of many to be litigated in one case. This is often thoughtto be deemed necessary in food litigation, where individual damages are typically small,such that individual actions for damages would not be worth pursuing.

- Since the passage of the Class Action Fairness Act in 2005, federal courts have jurisdictionover class actions where there is diversity jurisdiction, which is almost always the case.

- Federal Civil Procedure Rule 23 governs class actions in federal court.

MOST OF THE CASES ARE BROUGHT AS CLASS ACTIONS IN FEDERAL COURT.

- Class actions allow for the claims of many to be litigated in one case. This is often thoughtto be deemed necessary in food litigation, where individual damages are typically small,such that individual actions for damages would not be worth pursuing.

- Since the passage of the Class Action Fairness Act in 2005, federal courts have jurisdictionover class actions where there is diversity jurisdiction, which is almost always the case.

- Federal Civil Procedure Rule 23 governs class actions in federal court.

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Food Class Actions:Defense Strategies• Motion to Dismiss• Summary Judgment• Class Certification

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Food Class Actions:Defenses• Motions to Dismiss

– Reasonable consumer: limited successes– Standing for non-purchased products– NLEA preemption– “Primary Jurisdiction”

• Summary Judgment– Reasonable consumer– Specific Class Representative issues.– Merits of the deception

• Motions to Dismiss– Reasonable consumer: limited successes– Standing for non-purchased products– NLEA preemption– “Primary Jurisdiction”

• Summary Judgment– Reasonable consumer– Specific Class Representative issues.– Merits of the deception

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Food Class Actions:Defense: Class Certification Appeals• “Natural” cases on appeal:

– Jones (N.D. Cal.); In re ConAgra Foods (C.D. Cal.); Brazil(N.D. Cal.) on appeal

– Issues: (1) Ascertainability; (2) Damages; (3)Materiality; (4) Proof for Summary Judgment

• “Natural” cases on appeal:– Jones (N.D. Cal.); In re ConAgra Foods (C.D. Cal.); Brazil

(N.D. Cal.) on appeal– Issues: (1) Ascertainability; (2) Damages; (3)

Materiality; (4) Proof for Summary Judgment

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Food Class Actions:Defense: Ascertainability Post-Carrera• Ascertainability

– Heightened standard solid within Third Circuit (Carrera,Byrd)

• Eleventh Circuit has adopted (Karhu)• Fourth Circuit appears to follow (EQT)

– Rejected by Sixth, Seventh and Eighth Circuits• Mullins (7th Cir.)• Rikos (6th Cir.)• Sandusky (8th Cir.)

– District courts within the Ninth Circuit currently split• Some Northern District of California cases approve Carrera

(Clorox), but others reject (Jamba Juice)• Central District of California rejects (McCrary, Morales, Rahman)• Ninth Circuit may resolve split in Jones v. ConAgra; In re

ConAgra Foods

• Ascertainability– Heightened standard solid within Third Circuit (Carrera,

Byrd)• Eleventh Circuit has adopted (Karhu)• Fourth Circuit appears to follow (EQT)

– Rejected by Sixth, Seventh and Eighth Circuits• Mullins (7th Cir.)• Rikos (6th Cir.)• Sandusky (8th Cir.)

– District courts within the Ninth Circuit currently split• Some Northern District of California cases approve Carrera

(Clorox), but others reject (Jamba Juice)• Central District of California rejects (McCrary, Morales, Rahman)• Ninth Circuit may resolve split in Jones v. ConAgra; In re

ConAgra Foods27

U.S. Food Class Actions:Summary of Defenses• Standing

– Split of authority on non-purchased products

• Preemption– Implications for trans-fat cases

• Reasonable Consumer– At pleading stages– At summary judgment

• Standing– Split of authority on non-purchased products

• Preemption– Implications for trans-fat cases

• Reasonable Consumer– At pleading stages– At summary judgment

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PART IVFuture Trends and Predictions

1. ConAgra Decision in Ninth Circuit2. FDA rule-making regarding the term Natural3. Continued legislative efforts at the state and

federal levels

1. ConAgra Decision in Ninth Circuit2. FDA rule-making regarding the term Natural3. Continued legislative efforts at the state and

federal levels

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Questions?Please feel free to contact:

Michael R. ReeseREESE LLP

100 West 93rd Street, 16th FloorNew York, New York 10025

mreese@reesellp.com1 (212) 643-0500

David T. BidermanPerkins Coie LLP

1888 Century Park East, Suite 1700Los Angeles, California 90067

DBiderman@perkinscoie.com1 (310) 788-9900

Michael R. ReeseREESE LLP

100 West 93rd Street, 16th FloorNew York, New York 10025

mreese@reesellp.com1 (212) 643-0500

David T. BidermanPerkins Coie LLP

1888 Century Park East, Suite 1700Los Angeles, California 90067

DBiderman@perkinscoie.com1 (310) 788-9900

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