Presenting a live 90-minute webinar with interactive Q&A Food and Beverage Class Actions: Litigating False Advertising, Labeling, Slack-Fill Packaging or Food Safety Claims Navigating Issues of Ascertainability, Predominance, Preemption, Standing and More WEDNESDAY, JULY 13, 2016 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: David T . Biderman, Partner , Perkins Coie , Los Angeles Michael R. Reese, Founder , Reese , New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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L ITIGATING C LASS A CTIONS IN THE F OOD AND B EVERAGE I NDUSTRY Presenters: Michael R. Reese, Esq. David Biderman, Esq.
Michael R. Reese Michael R. Reese David T. Biderman David T. Biderman - Lead counsel in numerous, multi-million - Lead counsel in numerous, multi-million - More than 30 years of - More than 30 years of dollar food class action settlements in dollar food class action settlements in experience defending food and experience defending food and the United States the United States other companies in federal and other companies in federal and state courts state courts - - Adjunct law professor in New York Adjunct law professor in New York teaching on topics of class actions and teaching on topics of class actions and - - Counsel in a significant Counsel in a significant food law and frequent lecturer at food food law and frequent lecturer at food number of defense victories number of defense victories law conferences in U.S. law conferences in U.S. including Turek v. General including Turek v. General Mills, Inc. and In re Cheerios Mills, Inc. and In re Cheerios - Author of Typical Claims and Defenses in - Author of Typical Claims and Defenses in Cereal Litigation Cereal Litigation Class Action Food Litigation , Class Action Food Litigation , ABA Health Lawyer Journal, April, 2016. ABA Health Lawyer Journal, April, 2016. - - Regular contributor to Food Regular contributor to Food Litigation News Litigation News 6
Agenda • Part I - Introduction Part I - Introduction • Part II- Typical Claims and Latest Filing Trends Part II- Typical Claims and Latest Filing Trends - False Advertising and Mislabeling - False Advertising and Mislabeling - Slack-Fill - Slack-Fill - Food Safety - Food Safety • Part III - Litigation Strategies and Defenses Part III - Litigation Strategies and Defenses - Plaintiffs’ Perspective - Plaintiffs’ Perspective - Defendants’ Perspective - Defendants’ Perspective Part IV - Future Trends and Predictions Part IV - Future Trends and Predictions • 7 7
Part I Introduction – A Brief Background • Explosion in “food” cases in the United States Explosion in “food” cases in the United States • Increased awareness of: Increased awareness of: – Food-related illnesses Food-related illnesses – Societal problems – Societal problems • Reflected in U.S. media and other sources: Reflected in U.S. media and other sources: 8
Introduction (cont’d) • Common theme of growing mistrust and distrust of food system; who should control? 9 9
Introduction (cont’d) • U.S. Arenas for debate: U.S. Arenas for debate: Courts & Legislative Bodies Courts & Legislative Bodies – Justice is the tolerable accommodation Justice is the tolerable accommodation of the conflicting interests of society, of the conflicting interests of society, and I don't believe there is any royal and I don't believe there is any royal road to attain such accommodation road to attain such accommodation concretely. -Judge Learned Hand concretely. -Judge Learned Hand – Some circumstantial evidence is very Some circumstantial evidence is very strong, as when you find a trout in the strong, as when you find a trout in the milk. -Henry David Thoreau milk. -Henry David Thoreau 10
Introduction (cont’d) Number of Filings in the United States 11
PART II TYPICAL CLAIMS AND LATEST FILING TRENDS 12
Food Class Actions: Typical Claims MOST OF THESE CASES ALLEGE VIOLATION OF STATE CONSUMER PROTECTION LAWS. 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) that Food claims are often brought under state law equivalents of 15 U.S.C. §45(a)(1) that prohibits unfair or deceptive acts or practices in or affecting commerce. prohibits unfair or deceptive acts or practices in or affecting commerce. - - California’s Consumer Legal Remedies Act, Cal Civ. Code P. §§1750-1784; New York General California’s Consumer Legal Remedies Act, Cal Civ. Code P. §§1750-1784; New York General Business Law §349; and, Florida Statute §§ 501.201-501.213 are some of the more Business Law §349; and, Florida Statute §§ 501.201-501.213 are some of the more frequently asserted consumer protection claims. frequently asserted consumer protection claims. “[T]hese laws prohibit ‘not only advertising which is false, but also advertising which although true, is “[T]hese laws prohibit ‘not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.’” Kasky v. Nike, Inc. , 27 Cal. 4th 939, 951 (Cal. 2002); Williams v. Gerber Products Co. , 552 F.3d public.’” Kasky v. Nike, Inc. , 27 Cal. 4th 939, 951 (Cal. 2002); Williams v. Gerber Products Co. , 552 F.3d 934, 938 (9th Cir. 2008)(same); see also Ackerman v. Coca-Cola Co., CV-09-0395(JG), 2010 WL 2925955 934, 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. (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). 2d 860 (Fla. 2d DCA 2006)(same for Florida consumer protection claim). 13
Filing Trends by Jurisdiction • 14
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