Kind bar featured in initial In re Kind LLC “Healthy and All Natural” Complaint

A federal judge in New York certified classes of New York, California, and Florida consumers this week in an “all-natural” product mislabeling class action case, finding all three states’ consumer protection laws contain important, similar elements.

On March 24^th, 2021, Senior District Judge William H. Pauley, III of the United States District Court in the Southern District of New York certified classes of consumers in these three states seeking damages against Kind LLC (“Kind”) for its alleged mislabeling of 39 varieties of snack bars as being “All Natural” and containing no GMOs, when they allegedly contained non-natural and/or genetically modified ingredients.  The case, captioned In re: KIND LLC “HEALTHY AND ALL NATURAL” LITIGATION, Case No. 15md2645, will now proceed on behalf of classes of persons who purchased Kind’s products in New York since April 17, 2009 and by persons who purchased Kind’s products in California and Florida since April 17, 2011.  A copy of the Court’s opinion certifying the classes can be read here.

While other food labeling class actions have been certified in the past (including in cases prosecuted by this Firm), Judge Pauley’s Kind opinion is notable for a number of reasons.

First, the Court found that despite nuances among California, New York and Florida consumer protection laws, they all contain the same three elements: (1) a deceptive act, (2) materiality, and (3) injury.  Given that all 39 varieties of Kind’s products contained the same basic alleged material misrepresentations, and Kind charged a premium for the products, the Court found it appropriate to certify classes under all three states’ laws even if the products’ labels varied in other ways.

Second, the Court found that disagreements by the parties’ experts on whether the alleged misrepresentations were material did not preclude class certification.  Rather, whether the labels are materially misleading was an issue that would be decided for the entire class.  Moreover, the Court found that product-specific labeling beyond the allegedly false All Natural and Non-GMO claims did not require proof as to individual understandings, but could be judged on an objective standard using generalized proof making class certification more appropriate than other mislabeling actions.

Third, the Court found that a class need not be defined as persons who have receipts to prove they purchased the snack bars at issue, for a class to be certified.  While noting that other courts have found receipts to be necessary to find that a class is sufficiently ascertainable, Judge Pauley held that “[i]mposing a receipt requirement would severely constrict consumer class actions where most consumers do not keep receipts because the purchase price is low and part of a minerun retail transaction,” and that requiring class members to have receipts would allow Kind and every other manufacturer and distributor or consumer goods to escape liability for their misconduct.

Fourth, the Court held that plaintiffs need not prove a price premium at the class certification stage, nor determine damages for a class to be certified.  Rather, it was sufficient for the plaintiffs’ expert to identify the type of analysis he could do to calculate damages; identify the data he would use for the analysis; and show that the data is available.  It was irrelevant that the plaintiffs’ expert was not in possession of the data he would use, so long as it was available and could be used as part of a damage model designed to determine the value of the All Natural and Non-GMO claims to consumers.

FDPK’s consumer protection lawyers have significant experience in making sure manufacturers making untruthful or misleading claims on food are held accountable. Please contact us at [email protected] if you are interested in learning more or if you recently purchased a food product that you believe may be labeled with deceptive or untruthful claims.

Posted by R. Samuel Stein.

Class Action Settlement – Rayanne Regmund, et al. v. Talisman Energy USA, Inc.
United States District Court for the Southern District of Texas

Case No.  4:16-cv-02960

FDPK is pleased to announce the proposed Talisman Energy Class Action Settlement (Regmund, et al. v. Talisman Energy, USA, Inc.), a class action alleging failure to pay contractually owed oil and gas royalties.  The Court scheduled a telephonic Fairness Hearing for May 12, 2021, at 11:00 am CST,  at the United States Courthouse, 515 Rusk Courtroom 3-A, Houston, TX  77002, before the Honorable Judge Keith P. Ellison.

The certified Settlement Class is defined as follows:

a. All persons who received or were entitled to receive Royalty payments from Talisman attributable to Production within the Eagle Ford Area occurring during the Claim Period (i.e., between January 1, 2013 and June 1, 2016) that was commingled with Production from one or more other wells, and to whom Talisman paid such Royalties using a volumetric allocation methodology on net production sold and/or estimated “shrunk” production volumes.

b. Excluded from the class are (a) all governmental entities, including federal, state, and local governments and their respective agencies, departments, or instrumentalities; (b) any foreign citizens, states, territories, or entities; (c) owners of any interests and/or leases located on or within any federally created units; (d) owners of any non-operating working interest for which Talisman or its agents or representatives, as operator, disburses royalty; (e) Talisman, Statoil, and any entity in which Talisman or Statoil has a controlling interest, and their officers, directors, legal representatives, and assigns; and (f) members of the judiciary and their staff to whom this action is assigned.

More information about the Talisman Energy Class Action Settlement may be found at:

Settlement Website Link:  www.EagleFordRoyaltySettlement.com

Click on the links to review important documents:

• Order Granting Preliminary Approval
• Talisman Notice of Settlement
• Talisman Final Stipulation and Agreement of Settlement
• Talisman Heirship Beneficiary Info Form
• Talisman First Amended Complaint

Third Circuit Decision —  The Third Circuit Court of Appeals Revives Borrower Class Action in the U.S. District Court for the Western District of Pennsylvania

Click here to read the Third Circuit Decision:  Salvati v. Deutsche-Bank Decision

July 29, 2014.  In Salvati v. Deutsche Bank National Trust Company, N.A., et al., the Court of Appeals for the Third Circuit reversed U.S. District Court Judge Schwab’s March 28, 2013 Order dismissing all claims.

The Third Circuit decision reinstated a class action alleging that Deutsche Bank and Bank of America Home Loans Servicing had violated state (PA Loan Interest and Protection Law) and federal consumer protection laws (FDCPA:  Fair Debt Consumer Protection Act) in connection with handling of residential mortgage foreclosure proceedings.

The Third Circuit held that Judge Schwab had correctly dismissed certain claims because the plaintiff had never alleged that he had paid any fee.  The Third Circuit decision remanded (sent the case back for reconsideration) the case to the U.S. District Court for the Western District of Pennsylvania to consider the plaintiff’s FDCPA claim and PA Loan Interest and Protection Law claim.  These consumer protection laws provide that the plaintiff is entitled to statutory damages and attorneys’ fees regardless of whether he or she had paid the unlawful fee.

The Supreme Court Decision in Halliburton Co. v. Erica P. John Fund, Inc. issued June 23, 2014 Impacts Future Class Actions.

The Supreme Court’s June 23, 2014 decision in Halliburton Co. v. Erica P. John Fund, Inc. upheld the “fraud on the market” theory it had previously established in Basic Inc. v. Levinson.

What is “fraud on the market”?  The fraud on the market theory permits plaintiffs in securities class actions to show that a defendant’s misrepresentation impacted its stock price uniformly throughout the market.  This makes it easier to demonstrate that investors had relied on those misrepresentations.  It would be virtually impossible for investors to bring securities fraud claims as class actions without the fraud on the market theory.

The Halliburton litigation was initiated more than a decade ago when a class of plaintiffs cited the fraud on the market presumption as part of their petition for class certification in order to demonstrate that classmembers had relied upon the defendant’s financial statements and projections.  The classmembers alleged that Halliburton had misrepresented material facts to investors by understating its projected liability for asbestos claims, overstating its revenues and exaggarating costs savings related to a merger.

Haliburton argued strongly for the Supreme Court to overrule Basic and to do away with the fraud on the market theory.  Instead, the Supreme Court held that the original decision in Basic was settled law and that Halliburton had failed to demonstrate the “special justification” required for overturning such a precedent.

The Supreme Court ruled that defendants in securities fraud cases were free to offer evidence that a particular misrepresentation did not uniformly impact its stock price in order to prove their case.  The Supreme Court’s decision does not give securities defendants a new right.  They have always been able to argue at various points that their supposed fraud did not affect share prices. The Halliburton Opinion clarifies that defendants can use those arguments to oppose class certification.

To review Opinion:  June 23 2014 Halliburton Opinion

To review Syllabus:  June 23 2014 Halliburton Syllabus

Feinstein Doyle Payne & Kravec, LLC attorneys represent Boeing retirees in a pension benefits class action.

This pension benefits case, entitled Society of Professional Engineering Employees in Aerospace, et al. v. Boeing Co., et al., is pending in the United States District Court for the District of Kansas.

The Boeing Retirees are represented in this pension benefits class action by attorneys Bill Payne and Joel Hurt, together with the law firm Murphy Anderson and attorney Tom Hammond. The Boeing retirees claim that they have been denied early retirement pension benefits and accompanying healthcare benefits.

The Boeing retirees contend that, under their employee benefit plans and the collective bargaining agreements between the employees’ union and Boeing, the sale of Boeing’s Wichita, Kansas factory activated their right to pension benefits.

The U.S. District Court for the District of Kansas recently issued two important orders. The first denied cross-motions for summary judgment and is permitting the case to proceed to trial. Trial dates will most likely be set at a February 19, 2013 status conference.

In its second ruling, the Court directed that the group of former Boeing employees will have their pension benefits claims decided by a jury.

To review a copy of the Court’s Summary Judgment Order in this Boeing Retirees pension benefits case, click here: Boeing Order re Summary Judgment.

To review a copy of the Court’s Memorandum and Order allowing this pension benefits case to proceed to a jury trial, click here: Boeing Order re Jury Trial.