december 11, 2013 - foley & lardner · 2019-04-17 · kraft/cadbury – numerous products...
TRANSCRIPT
12/11/2013
1
©2013 Foley & Lardner LLP • Attorney Advertising • Prior results do not guarantee a similar outcome • Models used are not clients but may be representative of clients • 321 N. Clark Street, Suite 2800, Chicago, IL 60654 • 312.832.4500
Discussion LeadersJo E. Osborn, VP and Assistant General Counsel, TreeHouse Foods, Inc.
Craig Fochler, Partner, IP Litigation, Foley & Lardner LLPAaron Weinzierl, Associate, IP Litigation, Foley & Lardner LLPJaclyne Wallace, Associate, IP Litigation, Foley & Lardner LLP
December 11, 2013
2
12/11/2013
2
THE GROWTH OF CLASS ACTIONLITIGATION
Considered a growth industry for plaintiffs’lawyers.
Reasons for the Growth:– Other types of class actions, such as asbestos and
tobacco litigation, have dried up.
– Expansive consumer protection legislation.
– Plaintiff friendly interpretation of requirements forclass certification.
– Some courts allow questionable practices innaming plaintiffs.
3
FOOD AND BEVERAGE IS THE FAVORITECLASS ACTION TARGET
Class Action lawsuits are increasingly directedat food and beverage companies.
– In 2008, 19 class actions were filed against foodcompanies.
– By 2012, this number increased to 102.
– Nearly 150 cases since 2011.
4
12/11/2013
3
FOOD AND BEVERAGE IS THE FAVORITECLASS ACTION TARGET (Cont’d)
This year more than a third of all class actionsfield against all businesses were broughtagainst food companies.
5
FOOD AND BEVERAGE IS THE FAVORITECLASS ACTION TARGET (Cont’d)
Every type of food and beverage company is a target:
Del Monte fruit/vegetable products
Diamond Food walnuts
Dole fruit products
Dreyer’s Grand ice cream
Dreyer’s Grand ice cream drumstick
Ferrero Nutella
Frito-Lay chips
Frito-Lay snacks
General Mill’s Fruit Roll-Ups
General Mill’s Kix cereal
General Mill’s Yoplait YoPlus
Grove Square coffee
Hain Celestial products
5 Hour Energy7 Eleven7UP products with antioxidantsAnheuser-Busch Cos. BeerArizona iced teaBalance energy barsBear Naked 100% natural productsBear Naked all natural productsBen & Jerry’s ice creamBigalow teaBreyer’s ice creamBumble Bee productsCambell’s soup varietiesChobani Greek yogurtsClover Stornetta Farms yogurts
6
12/11/2013
4
FOOD AND BEVERAGE IS THE FAVORITECLASS ACTION TARGET (Cont’d)
Jamba Juice Do-It Yourself Smoothie
Jason Natural products
Johnson & Johnson Splenda
Kashi all natural products
Kellogg’s Froot Loops, Pop-Tarts etc.
Kellogg’s Frosted Mini-Wheats
King Arthur Flour Co. products
Kraft cookie and cracker products
Kraft/Cadbury – numerous products
McDonald’s Happy Meals
Nabisco Fruit Newton cookies
Naked Juice
Naked Juice all natural products
Nature Valley granola bars
Nature Valley snacks
Nature Path organic products
Nestle chocolate
Hot/Lean Pockets
Ocean Spray drinks
One World Co. O.N.E. coconut water
Quaker’s Mother’s Natural cereals
Redline energy enhancers
Smuckers “all vegetable” products
Snapple acai mixed berry red tea
SoBe’s 0 Calories Lifewater
Super Mario fruit snacks
7
FOOD AND BEVERAGE IS THE FAVORITECLASS ACTION TARGET (Cont’d)
Taco Bell ground beef
Tetley teas
Trader Joe products
Turtle Mountain dairy-free products
Twinings tea
Wholesoy yogurt products
ZonePerfect energy bars
8
12/11/2013
5
FOOD AND BEVERAGE CLAIMSPLEAD
Use of “Natural” and terms implying “Natural”such as “unpasteurized” and “raw” have beenwidely attacked as deceptive based on:
– Synthetic ingredients
– GMO ingredients
– Methods of ingredient processing
9
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
10
12/11/2013
6
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
Use of the terms “No Artificial Ingredients” or“Nothing Artificial.”
11
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
“Natural” class actions have become soprevalent many companies are ceasing use of“Natural” claims.
12
12/11/2013
7
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
Use of terms relating to product health facts:
– Immunity
– Calories
– Fiber
– Metabolism
13
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
14
12/11/2013
8
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
15
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
16
12/11/2013
9
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
Misleading Product Composition or ConditionDescription:
– Soluble and microground coffee
– Fresh
– Butter
– Evaporated cane juice
17
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
18
12/11/2013
10
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
19
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
20
12/11/2013
11
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
21
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
Misleading Geographic Origin Description.
Undisclosed Payment for ProductEndorsement.
Lack of Substantiation.
22
12/11/2013
12
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
23
FOOD AND BEVERAGE CLAIMSPLEAD (Cont’d)
24
12/11/2013
13
COMPANY PRE-LITIGATIONSTRATEGIES
Keep abreast of class action claim trends.
Encourage marketing to avoid using undefined“hot button” terminology, e.g., “all natural.”
Conduct vigorous claim clearance. Consider all interpretations of label or advertising
claims individually and in aggregate.
Make sure there is solid substantiation.
25
COMPANY PRE-LITIGATIONSTRATEGIES (Cont’d)
Educate business personnel not to discussliability risks or concerns, particularly those ofcounsel in writing to anyone outside of thecompany, or even to anyone inside unlesscounsel is present.
If a risky claim is unavoidable, work withmarketing to present in the most defensiblemanner.
26
12/11/2013
14
COMPANY PRE-LITIGATIONSTRATEGIES (Cont’d)
27
COMPANY PRE-LITIGATIONSTRATEGIES (Cont’d)
28
12/11/2013
15
ISSUES BEFORE CERTIFICATION ISREACHED
Standing
Preemption
Primary Jurisdiction
Failure to State a Claim
29
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
Standing:
– Whether named plaintiff has standing to bring aclaim against products he or she did not purchase.
Conflict in Authority - Article III Standing vs. ClassStanding:
– Article III Standing - Plaintiff must plead facts showing: (1)injury-in-fact; (2) causation; and (3) redressability.
– Class Standing – Whether named representative will fairly andadequately protect the interests of the class.
30
12/11/2013
16
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
Preemption:– Implied Preemption: Field Preemption – has Congress expressed an intent to
exclude state regulations from a particular field? Conflict Preemption – does a state requirement conflict with
a federal requirement making compliance with bothrequirements impossible?
– Express Preemption: Is claim based solely on use of specific FDA mandated or
approved language? Use of other terms or material that are interpreted as
impliedly deceptive when read in conjunction with FDAmandated or approved language on packaging or itsadvertising.
31
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
32
12/11/2013
17
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
Primary Jurisdiction– Under doctrine, Court will stay or dismiss case and
refer dispute to FDA for ruling. Reasons for Referral:
– Judges do not have experience with issue.
– Risks usurping the FDA’s interpretive authority.
– Risks undermining the FDA’s considered judgments.
Reasons against Referral:– Courts decide issue all the time.
– FDA ruling may not resolve issue.
– FDA may not rule/ruling may not be timely.
33
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
Failure to State a Claim:
– No Deception as a Matter of Law
– Pleading Fraud with Particularity
– Reliance
– Lack of Substantiation
– State Specific Statutory Requirements
34
12/11/2013
18
ISSUES BEFORE CERTIFICATION ISREACHED (Cont’d)
35
CLASS CERTIFICATION ISSUES
Class Certification Requirements:– Numerosity
Joinder must be impracticable. Class must be ascertainable by objective criteria.
– Commonality/Typicality/Predominance There must be questions of law or fact common to the class. Claims or defenses must be typical of the claims or defenses of the class. Common questions of law or fact predominate over individual questions.
– Adequacy of Representation Representative parties must fairly and adequately protect class interests.
– Superiority Class adjudication must be superior to other methods for fairly and efficiently
adjudicating the controversy.
36
12/11/2013
19
CLASS CERTIFICATION ISSUES(Cont’d)
Individual Issues:
– Interpretations of product and advertising claims
– Causation/Reliance
– Materiality
– State laws
37
CLASS CERTIFICATION ISSUES(Cont’d)
Claims for Injunctive Relief
Challenges to Nationwide Class Certification:
– Material Differences Between State Laws.
– States’ Interest in Having State Law Applied.
38
12/11/2013
20
SUMMARY JUDGMENT ISSUES
Causation/Reliance
Materiality
Meaning of Implied Claims to ReasonableConsumers
– Direct Consumer Evidence
– Survey Evidence
Daubert challenges to survey evidence
Damages
39
BREAK IN PRESENTATION
CLE CODE AND POLLING QUESTION
40
12/11/2013
21
DEFENDANT LITIGATIONSTRATEGIES
Early defense review: Determine applicable primary agency law and
regulations.
If laws of multiple states alleged determine thedifferences in elements of claims under different statelaws.
Interview likely key witnesses to discover potentialproblems.
Obtain early evaluation of problem documents.
41
DEFENDANT LITIGATIONSTRATEGIES (Cont’d)
Make an early evaluation of need for expertresearch.
Consider the advantages of not moving todismiss for failure to state a claim.
If multiple actions consider trying toconsolidate.
Select counsel with experience litigating bothcases in the substantive area of the law andclass actions.
42
12/11/2013
22
DEFENDANT LITIGATIONSTRATEGIES (Cont’d)
Determine maximum possible exposure forboth client and client’s customers’ sales.
If reasonable settlement appears unlikely atoutset, conduct an aggressive defense.
43
Are you prepared? Rising Advertisingand Labeling Class Action Suits
Questions?
To take the survey for this program, click onthe link below:
https://www.surveymonkey.com/s/
RisingAdvertisingLabelingClassActions
44