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September 2016

San Diego Team Successfully Obtains Full Dismissal of Four-Year Food Labeling Case Involving Antioxidant and Health Claims

Gordon & Rees San Diego partners Miles D. Scully and Timothy K. Branson, and senior counsels Joni B. Flaherty and James C. Danaher, have succeeded in obtaining a full dismissal of two food labeling lawsuits filed against their client, R.C. Bigelow, Inc., following the Northern District of California’s granting of summary judgment in their client’s favor.  Judge William H. Orrick’s written orders, issued on August 29, 2016, have garnered national attention, with Law360.com and Reuters both covering the decisions (subscriptions required).

Bigelow’s black tea and green tea labels promote the health benefits of its teas and the inclusion of beneficial antioxidants in its products.  The motions for summary judgment filed by Gordon & Rees on behalf of Bigelow sought to dismiss all claims alleged by the two plaintiffs, Alex Khasin and Adam Victor, who were litigating their individual claims after the litigation team succeeded at defeating their bids for class certification in April 2016. (To read the press release, click here.)  

The court held that neither plaintiff could proceed to trial on any of their claims, given that there was no genuine dispute as to any material fact regarding their claims over Bigelow’s tea labels, which tout the healthful benefits of the tea products.  The court found that the plaintiffs provided no evidence that the labels were actually false – given that the tea products at issue do contain healthy antioxidants – or that a reasonable consumer was likely to be misled by the statement of the labels.  The court also ruled that plaintiffs had failed to present any admissible evidence in support of a claim for proper damages, or to demonstrate standing for injunctive relief.

Following the litigation team’s successfully denial of class certification earlier this year, the plaintiffs elected to proceed to trial on behalf of their two individual clients. The Gordon & Rees litigation team promptly filed motions for summary judgment on all remaining claims, which set forth substantial support from established case law, expert opinions, and other evidence.  The team’s efforts again prevailed, and judgments in favor of Bigelow and against the plaintiffs were entered by the court on August 29, 2016.

Consistent with the court’s prior orders denying class certification, the court found that the plaintiffs still failed to provide adequate evidence of damages, based upon a legally-recognized theory of recovery for the claims asserted.  The court reiterated that the proper measure of damages is the amount necessary to compensate the purchaser for the difference between a product as labeled and the product as received, and not the full purchase price or all profits. The plaintiffs improperly attempted to shift the burden of proving damages to Bigelow, and further failed to offer any evidence that they paid a price premium for the products containing the challenged labels. The court rejected the plaintiffs’ plea that the court should craft its own equitable remedy, which was found to be a concession that there was no support for damages. Finally, the court found that the plaintiffs lacked standing to sue for injunctive relief.

The cases against Bigelow were two of nearly 50 lawsuits filed by the same attorneys against food manufacturers beginning in 2012.  The cases claim that the food companies have harmed consumers through their product labeling, allegedly violating California’s consumer protection laws.  Dozens of other food labeling cases continue to be heard by federal judges throughout California.

These dismissals achieved by the Gordon & Rees team come after four years of hard-fought litigation and further cement the continued collective success of the firm’s Food & Beverage and Class Action practice groups.

Gordon & Rees was recognized as the fastest growing AmLaw 200 firm in the country. A national litigation and business transactions firm, Gordon & Rees has more than 700 lawyers and 38 offices in 24 states.  In 2016, Law360 ranked the firm 53rd on its list of the largest U.S. firms. The American Lawyer ranked the firm at No. 39 on its Diversity Scorecard.  Founded in 1974, Gordon & Rees has been recognized as a “Go-To Law Firm” for Fortune 500 companies.

Khasin v. R.C. Bigelow, Inc., No. 12-cv-02204-WHO, slip op. at 10:9-13 (Aug. 29, 2016); Victor v. R.C. Bigelow, Inc., 3:13-cv-02976, slip op. at 10: 7-11 (Aug. 29, 2016).

Timothy K. Branson
Joni B. Flaherty
Miles D. Scully



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