Overview

The food and beverage industry is facing a rising tide of lawsuits and regulatory enforcement actions over product labeling and advertising. With more than 40 lawyers in our Consumer Litigation & Class Actions practice, a world-class Antitrust practice, and one of the top-ranked Supreme Court & Appellate practices, Mayer Brown is exceptionally qualified to defend food, beverage and supplement manufacturers in complex class action matters. In matters involving false advertising, antitrust, patent, trademark, trade secrets, distributor relations and trade practices, we bring to bear our significant and wide-ranging experience on behalf of many of the largest national and international food and beverage companies in the world.

Our high-profile global and national clients in the food and beverage industry speak for themselves. Representative of our experience is the work we have performed for clients Nestlé, Chobani, Foster Farms, Wells Enterprises, Gerber, California Pizza Kitchen, Amy’s Kitchen, KIND, Patagonia and Dreyer’s Grand Ice Cream, to name just a few.

Mayer Brown’s representation of food and beverage clients focuses on providing novel approaches to complex class action litigation. Our lawyers have obtained excellent results for our clients in a wide variety of high-stakes matters.

One example of our work for the food and beverage industry is in the area of false advertising consumer class actions. Over the last five years, the industry has faced a tidal wave of consumer class action lawsuits involving product labels and advertising. Working in partnership with our clients, Mayer Brown takes a multifaceted approach to these cases:

  • We aggressively and efficiently defend against class action litigation, with a strong track record in obtaining early dismissals based on arguments such as preemption, primary jurisdiction, plausibility and standing.
  • We help create a unified strategy to efficiently handle copycat class actions or private claims piggybacking on a government investigation.
  • We advise on how to minimize exposure to future false advertising claims.
Highlights

Praxis

  • Backus v. Nestlé USA, Inc., 167 F. Supp. 3d 1068, 2016 WL 879673 (N.D. Cal. 2016). Secured a ground-breaking victory for Nestlé USA and its iconic Coffee-mate brand when a federal judge in the Northern District of California dismissed with prejudice a consumer class action complaint.  Plaintiffs alleged that Nestlé’s mere use of partially hydrogenated oil in Coffee-mate was unlawful, and that labeling statements touting the product as having “0g Trans Fat” was misleading. The court ruled that plaintiff’s ‘use’ theory was an obstacle to federal law and therefore preempted, and that plaintiff’s false advertising theory, which attempted to impose labeling requirements not identical to federal law, was expressly preempted.
  • In re Chocolate Confectionery Antitrust Litigation, 999 F. Supp. 2d 777, (M.D. Pa. 2014), aff’d, 801 F.3d 383 (3rd Cir. 2015). Mayer Brown litigators helped secure a significant summary judgment victory for Nestlé USA in one of the largest multi-district antitrust litigations to date in the United States. The litigation consisted of over 90 federal lawsuits and alleged a conspiracy with Mars, Hershey and Cadbury to fix the price of chocolate candy products sold in the United States. These complaints were brought on behalf of direct and indirect putative class plaintiffs and large individual corporate plaintiffs (e.g., Safeway, Kroger, CVS) that were not seeking class status. The US Court of Appeals for the Third Circuit affirmed summary judgment for Nestlé USA.
  • Kane v. Chobani, Inc., 973 F.Supp.2d 1120 (N.D. Cal. 2014). Defense of a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to Greek yogurt products marketed as containing “only natural ingredients” and listing “evaporated cane juice” as an ingredient. A motion to dismiss was granted. 2013 WL 5289253. The plaintiffs’ motion for preliminary injunction was denied. 2013 WL 3776172. A motion to disqualify the plaintiffs’ expert was granted. 2013 WL 3991107. After a third amended complaint, a second motion to dismiss was granted with prejudice. 2014 WL 657300. Judgment in Chobani’s favor currently on appeal in the US Court of Appeals for the Ninth Circuit.
  • Chavez v. Nestlé USA, 511 Fed. App’x. 606 (9th Cir. 2013). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to juice products marketed as supporting brain development, immunity and digestive health. The case was dismissed following three successive, successful motions to dismiss (2011 U.S. Dist. LEXIS 58734, 2011 U.S. Dist. LEXIS 58731, 2011 U.S. Dist. LEXIS 58733). Judgment in defendant’s favor affirmed in part on appeal.
  • Carrea v. Dreyer’s Grand Ice Cream, 475 Fed. Appx. 113 (9th Cir. 2012). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to frozen dessert products labeled “0g trans fat,” “original,” and “classic.” A motion to dismiss the second amended complaint was granted in 2011, 2011 WL 159380 (N.D. Cal. Jan. 10, 2011). The US Court of Appeals for the Ninth Circuit affirmed the dismissal on April 5, 2012.
  • Franulovic v. The Coca-Cola Company, 390 Fed. Appx. 125 (3d Cir. 2010). Defended a nationwide false advertising class action filed by the notorious public interest group Center for Science in the Public Interest (“CSPI”). After procuring dismissal for client Nestlé USA from the case at no cost, we then assisted Coca-Cola in obtaining summary judgment and, ultimately, a unanimous affirmance in the US Court of Appeals for the Third Circuit. The Franulovic ruling was one of the first appellate successes for defendants in the field and is cited in a wide range of dispositive motions and rulings.
  • Reilly v. Amy’s Kitchen, 2 F. Supp. 3d 1300 (S.D. Fla. 2014). Defense of a putative Florida consumer class action alleging false advertising under Florida consumer protection laws with respect to food products containing the ingredient “evaporated cane juice.” A federal judge first denied plaintiff’s request to reinstate claims over 57 products that the named plaintiff never purchased.  The court then dismissed the case on jurisdictional grounds because the amount at issue for the three products the named plaintiff did purchase (out of the 60 she sued on) fell below the Class Action Fairness Act amount in controversy requirement. We also represent Amy’s Kitchen in three copycat actions. Figy v. Amy’s Kitchen, Inc., No. 13-3816 (N.D. Cal.); Gilbert v. Amy’s Kitchen, Inc., No. 13-9004 (N.D. Ill.); Bennett v. Amy’s Kitchen, Inc., No. 60CV-13-4924 (Cir. Ct. Pulaski County Ark.).
  • Pelayo v. Nestlé USA, 989 F.Supp.2d 973 (C.D. Cal. 2013). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to labeling of 13 Buitoni refrigerated filled pasta products as “all natural.” Though the plaintiffs have survived motions to dismiss in numerous similar “all natural” cases, Mayer Brown’s motion to dismiss employed innovative arguments and was granted as to the entire complaint, with prejudice and without leave to amend.
  • In re Gerber Probiotic Sales Practices Litigation, 2013 WL 4517994 (D.N.J. Aug. 23, 2013). Defense of a ten-case consolidated nationwide consumer class action alleging false advertising under consumer protection and warranty laws of multiple states with respect to baby formula and cereal products labeled as containing immune-supporting probiotics, digestion-supporting prebiotics, and brain and eye development-supporting DHA. In the face of opposition from class action lawyers looking to “protect their turf,” motions to transfer and consolidate cases were granted. Burns v. Gerber Prods. Co., 922 F.Supp.2d 1168 (E.D. Wash. 2013); Hawkins v. Gerber Prods. Co., 924 F.Supp.2d 1208 (S.D. Cal. 2013). Subsequently, the district court granted Gerber's successive motions to dismiss the consolidated complaint granted (with prejudice as to several claims).
  • Trazo v. Nestlé USA, Inc., 113 F. Supp. 3d 1047 (N.D. Cal. 2015). Defense of a putative nationwide consumer class action alleging false advertising under California consumer protection laws. This case is notable for its scope at filing—challenging an open-ended number of the products of a major food manufacturer. Along with its motion to dismiss, Mayer Brown filed an innovative motion to strike the class action allegations in the complaint at the earliest stage of litigation, essentially “drawing a line in the sand” on the permissible scope of class action allegations. The district court granted both the motion to dismiss and the motion to strike, finding that the sweeping proposed class “cannot as a matter of law be certified.” This is an extremely important ruling insofar as it prevented class action lawyers from threatening major food companies with massive exposure via a sprawling class action complaint. The ruling has had a prophylactic effect in the “Food Court” (N.D. Cal.) in moderating the scope of class action complaints filed against the food and beverage industry. The challenged products have since been reduced from “open-ended” to four and the misbranding theories have been reduced from nine to four.
  • Burke v. Weight Watchers Int’l and Wells Enterprises, Inc., 983 F.Supp. 2d 478 (D.N.J. 2013). Defended a putative nationwide class action alleging that the calorie content of dessert products is higher than reflected on the label in violation of the New Jersey Consumer Fraud Act and express and implied warranties. A motion to dismiss was granted as to the entire complaint, based on a federal preemption issue of first impression on the methodology for computing calories in a food product.
  • Simpson v. California Pizza Kitchen, 989 F.Supp. 2d 1015 (S.D. Cal. 2013). Defended a putative nationwide consumer class action against several naturally-marketed frozen pizza brands owned by Nestlé USA and California Pizza Kitchen alleging violation of California's Unfair Competition Law and statutory nuisance law. This was a bellwether case. Using the class action vehicle, plaintiffs sought to impose an unprecedented judicial ban on artificial trans fats in frozen pizza products. Any success could have “opened the floodgates” to numerous other cases seeking to ban individual ingredients. A motion to dismiss was granted as to the entire complaint, with prejudice and without leave to amend.
  • Astiana v. Dreyer’s Grand Ice Cream, No. 11-2910 (N.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to ice cream products labeled “All Natural.” The case was consolidated with a copycat case, Rutledge-Muhs v. Dreyer’s Grand Ice Cream.
  • Brady v. Basic Research, L.L.C., et al., No. 2:13-cv-07169-SJF-ARL (E.D. N.Y.).  Defended a putative nationwide consumer class action against Basic Research and others alleging false advertising under federal and state law with respect to the marketing and labeling of Zantrex-3 as a weight loss supplement.
  • Francis v. Nestlé HealthCare, No. 10-9544 (C.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising with respect to nutritional and immunity claims of Carnation Breakfast Essentials. The case was dismissed following denial of opposing counsel’s contested pro hac vice application (we developed a record of bar membership irregularities and misrepresentations).
  • Dahl v. Mott’s, No. 10-2976 (E.D.N.Y.). Defended a putative nationwide consumer class action alleging false advertising under California and New York consumer protection laws with respect to nutritional claims of Yoo-hoo chocolate drink. The case was voluntarily dismissed with prejudice following service of a motion to dismiss.
  • Bahn v. Nestle USA, Inc, No. 10-1022 (C.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to Hot Pockets and Coffee-mate products labeled “0g trans fat” and “cholesterol free.” The case was voluntarily dismissed with motion to dismiss pending.
  • Gharring v. PetCoPurina PetCare, No. 09-7937 (C.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to claims that Pro Plan Selects pet food was “formulated without animal by-products” and as “human grade.”
  • Forlenza v. Dynakor Pharmacal, LLC, et al., No. 09-3730 (C.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to dietary supplement Akavar. The case was voluntarily dismissed in January 2010.
  • Dysthe v. Basic Research, LLC, et al., No. 09-8013 (C.D. Cal.). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to dietary supplement Relacor. Summary judgment was granted in June 2011.
  • Everett v. The Carter-Reed Co., LLC, et al., No. BC427533 (filed in L.A. Sup. Ct.; removed to C.D. Cal. No. 10-cv-377). Defended a putative nationwide consumer class action alleging false advertising under California consumer protection laws with respect to a dietary supplement. The case was voluntarily dismissed in April 2010.
  • Christensen v. Jillian Michaels, et al., No. BC431560 (L.A. Sup. Ct.). Defended a putative California consumer class action against manufacturer and Jillian Michaels alleging false advertising under California consumer protection laws with respect to dietary supplement products. The case was dismissed in November 2011 after demurrer was partially granted and plaintiffs declined to proceed with the case.