Übersicht

Keri Borders is a litigator who concentrates her practice on defending consumer packaged goods manufacturers, retailers, and distributors in both competitor and consumer class action litigation. She regularly practices in state and federal courts defending clients in complex cases involving false advertising claims, warranty claims, and violations of consumer protection laws. 

Keri also has significant experience litigating contract, accounting and intellectual property disputes, and defending unfair business practices, unfair competition, misappropriation of trade secrets, breach of fiduciary duty, business torts, insurance coverage, and employment cases. Keri has also litigated cases in the entertainment, personal care products, consumer electronics, pet food, snack food, and real estate industries.

Keri was recognized by Law360 as one of four MVP’s in the United States in Product Liability in 2020. Keri is Co-Head of the firm’s Food & Beverage, and practices with the firm’s Class Action and Consumer Protection practice groups, each of which has recently been recognized as a Law360 practice group of the year. Keri has been repeatedly recognized as one of Southern California’s Super Lawyers and Top Women Lawyers. Keri is regularly quoted in news publications regarding legal developments involving false advertising of consumer packaged goods.

Erfahrung

  • Prescott v. Nestlé USA, Inc., -- F. Supp. 3d --, 2022 WL 1062050 (N.D. Cal. Apr. 8, 2022). The Northern District of California dismissed a consumer class action complaint against Nestlé USA alleging that Nestlé’s Toll House White Morsels are deceptively advertised as white chocolate.
  • Zurilene v. Dreyer’s Grand Ice Cream, Inc., --- F.Supp.3d ---, 2022 WL 816636 (S.D. Ill. Mar. 17, 2022) Motion to dismiss granted in class action alleging false advertising under the Illinois Consumer Fraud and Deceptive Business Practices Act regarding Haagen-Dazs ice cream bars labeled “rich milk chocolate.” Plaintiff alleged that the use of coconut oil in the chocolate coating of “Vanilla Milk Chocolate Ice Cream Bars” without disclosing its presence on the front-of-pack was misleading and contrary to FDA regulations. The court ruled that plaintiff was attempting to impose label requirements that were in addition to or different from FDA regulations and, therefore, the theory of liability was preempted.
  • Yu v. Dreyer’s Grand Ice Cream, Inc. --- F.Supp.3d ---, 2022 WL 799563 (S.D.N.Y. Mar. 16, 2022) Motion to dismiss granted in class action alleging false advertising under the Illinois consumer protection laws regarding Haagen-Dazs ice cream bars labeled “rich milk chocolate.” Plaintiff alleged that the use of coconut oil in the chocolate coating of the ice cream bars without disclosing its presence on the front-of-pack was misleading and contrary to FDA regulations. The court ruled that plaintiff had no private right of action to enforce FDA regulations, and that plaintiff’s theory of deception was not plausible because, among other reasons, the coating does contain FDA standard-of-identify chocolate, the label fully discloses the presence of oil in the ingredient list, and the label never suggests that the product does not contain oil.
  • Kamara v. Pepperidge Farm, Inc., --- F.Supp.4th ----, 2021 WL 5234882 (S.D.N.Y. 2021) Achieved a complete victory for Pepperidge Farm in a putative nationwide consumer class action under New York consumer protection law. The complaint alleged that Pepperidge’s Golden Butter Crackers misled consumers into believing that the product does not include oil. In a 2021 published decision dismissing the complaint with prejudice, the court clarified the principle that false advertising claims must be assessed in context. The court also assessed the plausibility of the complaint’s theory of deception against recent Second (Mantikas) and Seventh (Bell) Circuit precedents, and found the complaint deficient. See also Floyd v. Pepperidge Farm, Incorporated, -- F. Supp. 3d --, 2022 WL 203071 (S.D. Ill. Jan, 24, 2022).
  • Chong v. Kind LLC, -- F. Supp. 3d --, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022). Motion to dismiss granted in class action challenging front-of-pack protein claim on plant-based product. Plaintiffs alleged that the quantitative statement was deceptive and contrary to FDA regulations because it wasn’t corrected for digestibility. Based on our arguments, court reversed a decision it had made on that same issue in a similar lawsuit just a year before. Court also ruled in favor of our client on Buckman preemption, holding that plaintiffs were not able to enforce FDA regulations under the guise of consumer deception claims.
  • Wong v. The Vons Companies, Inc., 2020 WL 5632305 (Alameda County Super. Ct. (Cal.) Sept. 14, 2020) & 2020 WL 6161875 (Alameda County Super. Ct. (Cal.) Oct. 13, 2020). Certification denied in consumer class action challenging label statement on fresh poultry products. Decision affirmed on appeal in unanimous opinion. 2022 WL 1210445 (Cal. Ct. App. Apr. 25, 2022).
  • Cheslow v. Ghirardelli Chocolate Co., 472 F.Supp.3d 686 (N.D. Cal. 2020) & 445 F.Supp.3d 8 (N.D. Cal. 2020). Obtained dismissal on plausibility grounds of consumer class action false advertising action challenging white chips product.
  • Prescott v. Nestlé USA, Inc., 2020 WL 3035798 (N.D. Cal. June 4, 2020). Obtained dismissal on plausibility grounds of consumer class action false advertising action challenging white morsels product.
  • Macedonia Distributing, Inc. v. S-L Distribution Co., LLC, 2020 WL 610702 (C.D. Cal. Feb. 7, 2020). Certification denied in distributor class action alleging underpayment for distribution businesses.
  • Porath v. Logitech, Inc., 2019 WL 6134936 (N.D. Cal. Nov. 18, 2019). Certification denied in consumer class action challenging labeling and advertising of electronics product.
  • Parker v. Logitech, Inc., 2017 WL 4701044 (Cal. Super., Alameda County Oct. 18, 2017). Certification denied in consumer class action challenging labeling and advertising of electronics product.
  • Pelayo v. Nestlé USA, Inc., 989 F. Supp. 2d 973 (C.D. Cal. 2013). Defended Buitoni brand of products in case challenging “natural” label statements. Case dismissed with prejudice at the pleading stage. The court ruled that the plaintiff failed to offer an objective or plausible definition of the allegedly-deceptive phrase “all natural,” stating that “the reasonable consumer is aware that Buitoni pastas are not ‘springing fully formed from ravioli trees and tortellini bushes.’”
  • Shin v. Campbell Soup, No. 17-1082 (C.D. Cal.). Secured a victory for Campbell Soup when a federal judge in the Central District of California dismissed a false advertising consumer class action complaint alleging that labeling of less sodium and fat-free products was deceptive. The court ruled that plaintiffs’ theory of deception was not plausible because the challenged statements were accurate and were not likely to mislead a reasonable consumer.
  • Lucido v. Nestlé Purina Petcare Company, 217 F.Supp.3d 1098 (N.D. Cal. 2016). Successfully moved for summary judgment and to strike plaintiffs’ experts in a consumer class action alleging that Purina failed to disclose that Beneful dog food was harmful. The court ruled that plaintiffs’ case was entirely dependent on their experts’ opinions, but the opinions were unreliable and inadmissible. Accordingly, plaintiffs’ case had no evidentiary support and could not proceed.
  • Kane v. Chobani LLC,645 Fed. App’x. 593 (9th Cir. 2016); see also 973 F. Supp. 2d 1120 (N.D. Cal. 2014), 2013 WL 5289253 (N.D. Cal. Sept. 19, 2013), and 2013 WL 3776172 (N.D. Cal. July 15, 2013). 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. The Ninth Circuit then stayed the case.
  • Wysong Corp. v. APN, Inc., 889 F.3d 267 (6th Cir. 2018). Secured a victory for Nestlé Purina Petcare Company when a federal judge in the Eastern District of Michigan dismissed with prejudice a Lanham Act complaint alleging that using realistic images of meat and vegetables on pet food labels was deceptive. The court ruled that plaintiff’s theory of deception was not plausible because the challenged label images, especially when considered in context, were not false and were not likely to mislead a reasonable consumer. Significantly, the court denied further amendments and entered judgment in favor of our client.
  • In re KIND LLC “Healthy and All Natural” Litigation, 209 F. Supp. 3d 689 (S.D.N.Y. Sept. 15, 2016). Secured a ground-breaking victory for KIND snack bars when a federal judge in the Southern District of New York dismissed claims in an MDL consumer class action challenging KIND’s “healthy” labeling and stayed claims challenging “natural” labeling pending FDA’s consideration of the issue.
  • Cerreta v. Laclede, Inc., No. 14-8066 (C.D. Cal.) (removed from L.A. Sup. Ct.). Defending consumer packaged goods company in nationwide consumer class action alleging false advertising under California consumer protection law regarding “natural” labeling of personal care products.
  • Greenberg v. Galderma Laboratories, L.P., No. 3:16cv6090 (N.D. Cal.). Defended personal care product company against allegations of false advertising re label statements.
  • Magier v. Tribe Mediterranean Foods, Inc., No. 1:15cv5781 (S.D.N.Y.). Defended manufacturer of hummus against claims of false advertising relating to “natural” label statements.
  • Rhinerson v. Van’s International Foods, No. 3:13cv9523 (N.D. Cal.). Defended frozen waffle manufacturer against putative nationwide consumer class action challenging the “natural” labeling of the products.
  • Backus v. Nestlé USA, Inc., 167 F. Supp. 3d 1068 (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.
  • Workman v. Plum PBC, 141 F. Supp. 3d 1032 (N.D. Cal. 2015).  Secured a victory for Campbell Soup and its subsidiary Plum Organics when a federal judge in the Northern District of California dismissed with prejudice a false advertising consumer class action complaint alleging that food labeling was deceptive. The court ruled that plaintiffs’ theory of deception was not plausible because the labels were not false and were not likely to mislead a reasonable consumer.
  • In re KIND LLC “Healthy and All Natural” Litigation, 209 F. Supp. 3d 689 (S.D.N.Y. 2016).  Secured a ground-breaking victory for KIND snack bars when a federal judge in the Southern District of New York dismissed claims in an MDL consumer class action challenging KIND’s “healthy” labeling and stayed claims challenging “natural” labeling pending FDA’s consideration of the issue.  Currently litigating “Non-GMO” claims.
  • Greenberg v. Galderma Laboratories, L.P., No. 3:16cv6090 (N.D. Cal.).  Defended personal care product company against allegations of false advertising re label statements.
  • Parker v. Logitech, Inc., No. RG15781276 (Alameda County, CA Superior Court).  Defending electronics company against false advertising claims challenging a video surveillance product.
  • Rhinerson v. Van’s International Foods, No. 3:13cv9523 (N.D. Cal.).  Defending frozen waffle manufacturer against putative nationwide consumer class action challenging the “natural” labeling of the products.  
  • Lucido v. Nestlé Purina Petcare Company, 217 F.Supp.3d 1098 (N.D. Cal. 2016).  Successfully moved for summary judgment and to strike plaintiffs’ experts in a consumer class action alleging that Purina failed to disclose that Beneful dog food was harmful. The court ruled that plaintiffs’ case was entirely dependent on their experts’ opinions, but the opinions were unreliable and inadmissible. Accordingly, plaintiffs’ case had no evidentiary support and could not proceed.
  • Blue Buffalo, Ltd. v. Nestlé  Purina Petcare Company, (E.D. Mo.). Represented pet food company in prosecuting and defending Lanham Act false advertising claims involving a portfolio of pet food products.
  • Wysong, Inc. v. Nestlé  Purina Petcare Company, (E.D. Mich.)  Defend pet food company Lanham Act false advertising litigation involving dog and cat food products.
  • Simpson v. Kroger, Inc. and Challenge Dairy, Inc., 219 Cal. App. 4th 1352, Sept. 25, 2013. Affirmed dismissal of false advertising claims on reasonable consumer and preemption grounds.
  • Multiple Confidential False Advertising Matters – Have handled numerous CLRA pre-litigation demand letters relating to false advertising allegations challenging labeling and health benefits of consumer package goods, including food, cosmetics, personal care products, electronics, pet food, pet treats, and apparel.  I have also counseled many clients on labeling of products and proactively monitoring labeling and advertising claims.

Ausbildung

University of California, Hastings College of the Law, JD

Associate Production Editor, Hastings Communications and Entertainment Law Journal

Judicial Extern, Honorable Susan Y. Illston, United States District Court, Northern District of California

University of California, Los Angeles, BA

Zulassung

  • California

Gericht

  • US Court of Appeals for the Ninth Circuit
  • US District Court for the Northern District of California
  • US District Court for the Central District of California
  • US District Court for the Southern District of California

Mitgliedschaften

  • Board of Governors, Association of Business Trial Lawyers, Los Angeles Chapter
  • Member, Food and Drug Law Institute
  • Member, Consumer Brands Association
  • Member, American Bar Association
  • Law360 MVP for Product Liability – 2020
  • California Lawyer Magazine, The Top Women 2014
  • Los Angeles Magazine “Super Lawyer” 2013-2017
  • Women Lawyers Association of Los Angeles, Board of Governors 2006 to 2011, Co-Chair of Appointive Office Committee
  • Los Angeles Magazine “Rising Star – Super Lawyer” 2004-2011