In 2013, we examined the state of the ‘‘Food Court’’ in the Northern District of California. While highlighting the tidal wave of food and beverage-related consumer class action litigation in the Northern District, we suggested that the rise in such litigation was tied to factors largely outside of the courts’ control, such as California’s population, its liberal consumer protection statutes, and Ninth Circuit rulings that favor class certification. We also predicted that, despite these factors, food and beverage claims might well lose momentum, as many of the economic damage claims appeared difficult to prove, and because many consumers simply do not care about the alleged misconduct, which has usually centered on violations of very technical regulatory provisions.
One year later, we revisit the ‘‘Food Court,’’ noting new entrants to the fray and analyzing how existing claims have fared. California has maintained its #1 spot on the American Tort Reform Foundation’s list of ‘‘Judicial Hellholes’’ for the second year in a row, due in large part to plaintiffs’ continued assault on ‘‘Big Food.’’ However, there are signs that the assault on the industry may be slowing. Defendants have had some success defeating these claims early on in the litigation process. And, while a number of cases have managed to survive motions to dismiss and win class certification, many others have not. There have been relatively few settlements, and new filings are down precipitously. Whether the charge on the food and beverage industry retreats or gains ground will likely depend on whether plaintiffs and their counsel see a return on their substantial investment, and if so, in what areas. There are also some important cases in the appellate pipeline that could affect the future of this litigation. For example, later this year the Ninth Circuit in Kane v. Chobani and Edwards v. Ford. In Kane, the Ninth Circuit will address whether the terms ‘‘evaporated cane juice’’ (‘‘ECJ’’) and ‘‘All Natural’’ are deceptive. In Edwards, the court will evaluate, among other things, the circumstances under which a presumption of reliance under the CLRA may satisfy a plaintiff’s burden of demonstrating predominance on the issues of reliance and loss causation. Depending on how the Ninth Circuit rules, California might just become a more hospitable place for food and beverage manufacturers to do business.
Originally published in Class Action Litigation Report on July 14, 2014.
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